Rakesh Singh & Another vs State Of Uttarakhand

Sharad Kumar Sharma, J

The revisionists are charged with for the commission of an offence under Section 6(1) read with Section 11(2) of the Uttarakhand Cow Progeny Act, 2007, which was registered as Criminal Case No. 304 of 2011 for the offences which is said to have been committed at Bhaniyawala.

The allegation of the prosecution was that the revisionists, who are said to have been accused for commission of an offence under Section 3/6/11(2) of the Cow Progeny Act of 2007, which was registered as Criminal Case No. 304 of 2011, are alleged that they have committed an offence from the view point that (1) first, they were not having a valid document for the procurement of the two oxes, which were recovered from their custody, (2) secondly, they were charged with an offence that they were trying to carry the oxes from one State to another in violation of the provisions contained under Section 6(1) of the Act, as for the purpose of the transportation from one State to another they were not carrying any valid permit in that regard as per the provisions of the Act, (3) thirdly, the allegation, which was leveled by the prosecution was that at the time when the revisionists were apprehended on 14.11.2011, the allegation which was leveled was that the team of police personnels, who have apprehended the revisionists accuseds at Yogesh Bhatt, Nepali Chauraha, they have found that the revisionists at that point of time were carrying two oxes without a valid document with them to prove their valid possession of the oxes because under Section 6 of the Act transportation itself without a valid document is an offence under the Act.

The allegations, which was leveled against the revisionists, was to the effect that they were walking with the two oxes from Chhiddarwala and they, in all probability, were likely to be taken to Bijnor (U.P.) from where the revisionists are said to be the resident of. The sole allegation for the purposes of charging the present revisionists for the offences under Section 3/6/11(2) of the Cow Progeny Act was that at the time when they were apprehended by the police personnels they were unable to produce any valid document, which could justify that they were legally possessing the oxes and they have violated the provisions contained under Section 6 of the Act of 2007.

Consequently, an FIR was lodged against them being FIR No. 04/2011 under Section 3/6/11(11) of Cow Progeny Act on 14.01.2011.

Consequently, the investigation was conducted, the revisionists were chargesheeted as a consequence thereto cognizance was taken by the Trial Court and they had been convicted by virtue of an impugned order dated 23.08.2012 for commission of an offence under Section 6(1) to be read with Section 11(2) of the Cow Progeny Act and, consequently, they were made liable to undergo a sentence of 6 months simple imprisonment each and a fine of Rs. 2,000/- has been imposed upon each of them.

The argument, which has been extended by the learned counsel for the revisionists, is that they were validly holding the animal in their possession after purchasing the same from, "Pashu Mandi Gram Sabha Bhaniyawala", District Dehradun, and for which they have a valid receipt dated 03.01.2011 bearing no. 2. The said receipt was placed on record before the learned Trial Court as paper no. 14kha showing that the revisionists has purchased the two young oxes from the Pashu Mela after paying a sum of Rs. 11,000/- in advance as against the total consideration of Rs. 22,000/- for the two oxes.

When the Trial proceeded a statement was recorded by the prosecution witness of PW1, i.e. Constable Sanjeev Kumar, who had made an averment that on 14.01.2011 the petitioners were apprehended to be having a custody of two oxes dehors to the provisions of the Cow Progeny Act of 2007, and on being apprehended by the police, when they were asked to produce a valid document, they were unable to show the receipt of having purchased the same validly from Chhidarwala, Pashu Mela. It was on that premise and that since in the absence of production of valid document the revisionists were made as an accused for commission of an offence under Section 3/6/11(2) of the Cow Progeny Act, 2007.

What is important to be considered at this stage is that either of the questions, which were posed to the revisionists under Section 313 of Cr.P.C., none of the questions were posed to them to the effect as to whether after the purchase of the oxes from Pashu Mela, they ever had an intention to carry the same outside the State for the purposes of which whether they had a valid permit was required to be procured by the revisionist in view of the provisions contained under sub-section (1) of Section 6 of the Cow Progeny Act. Rather to the contrary if the statement of PW1 is read in precision, it could be splitted into two parts for the purposes of its interpretation, one that it was admittedly as per receipt was a purchase, which was being made by the revisionists, of the oxes from Chhiddarwala, but the second question pertaining to the oxes being carried to the other State was not a question either which was posed to be answered by the accused persons at the stage of Section 313 of Cr.P.C., i.e. the revisionists herein, nor it was ever posed to them while answering the question under Section 313 of Cr.P.C. Rather to the contrary, the PW1, who is the prosecution witness on his own has developed a case that since the revisionists belongs to Bijnor in all probability after purchasing the oxes from Chhiddarwala there was a possibility of the same being carried by him to the other State and hence sub-section (1) of Section 6 would be attracted because according to the version of PW1 the said transportation was not being made on a valid permit being granted to the revisionists by the District Magistrate.

What is surprising here to be considered is that this apprehension of the oxes being carried to the other State is an apprehension, which has been generated by PW1 himself on his own without any such case being pleaded or argued by the learned counsel for the revisionists or any such question to the said effect being posed to them during the course of trial at the stage of the proceedings under Section 313 of Cr.P.C. Hence, until and unless there happens to be transportation of the oxes purchased under the Act from the State to the other State, it is this only when the production of the permit from the District Magistrate becomes mandatory under sub-section (1) of Section 6 of the Cow Progeny Act of 2007, when they are being transported outside the State, but as far as the valid possession of the oxes with the revisionists are concerned, for the said purpose, they have produced the document paper no. 14ka/31, which was the receipt issued in favour of the revisionists from the Pashu Mandi, Gram Sabha Bhaniyawala, which in itself shows that the possession of the two oxes with the revisionists was not without an authority for the reason that they had been a valid purchaser made by them from the Pashu Mandi. The rest of the story for the purposes of attracting a breach of sub-section (1) of Section 6 has been rather generated based of the statement of PW1, who has without any basis only apprehended that in all probability it may be carried to the other State without a valid permit being taken from the District Magistrate under sub-section (1) of Section 6 of the Act. For a moment if this presumption is drawn by PW1 is taken as to be true, then too, atleast for the purposes of making the revisionists liable for an offence under Section 6(1) of the Act, this question ought to have been posed to the revisionists during the course of the Trial about the probability of the oxes being carried by them to the other State, but no question was ever placed to them in the proceedings under Section 313 of Cr.P.C., hence, the self generated theory of PW1 of probable transfer to other State cannot be believed with to convict the revisionist under sub-section (1) of Section 6 of the Act of 2007.

For the reason that until and unless the said fact is established that the revisionists at all had any intention to carry the oxes from the other State, the necessity of production of the permit as contemplated under Section 6(1) and as recorded in the statement of PW1 becomes necessary, but in the absence of there being any material on record to prove at the behest of the prosecution that the revisionists ever had any intention to carry the oxes to other State nor the prosecution has proved any such case before the Court below. The apprehension expressed merely because of the fact that the revisonsits were the place of residence of the revisionists is of Bijnor may not lead to attracting of the provisions of Section 6(1) of the Act for carrying the oxes without a valid permit outside the State, for that reason in itself, the offence under Section 6(1) is not made out nor the prosecution has been able to establish the same beyond the doubt, even by virtue of the witness, which was produced by them before the Court below while prosecuting the revisionist.

Since in accordance with the receipt, which has already been considered above, the possession of the oxes with the revisionists were validly proved by placing the receipt on record as an exhibit, the revisionists cannot be leveled with an allegation under sub-section (1) of Section 6 of the Act of probable transportation of oxes outside the State that too without any valid material before the Court.

Consequently, this court is of the view that the prosecution has utterly failed to make out a case under sub-section (1) of Section 6 of the Act. As such, the revision is allowed. The impugned orders of conviction are quashed. The revisionists, who are already on bail, need not to surrender. The respondent is directed to discharge the sureties, which has been extended by the revisionists at the time of availing the bail.