Sumersingh And Gopal vs State Of Mp

Being aggrieved by judgment dated 15.06.2018 passed in Criminal Appeal No.147/2018 by Add. Sessions Judge, Mahidpur District Ujjain, whereby

the learned Appellate Court has confirmed the conviction of the petitioners under Sections 9 of M.P. Govansh Vadh Pratishedh Adhiniyam, 2004 (for

short Adhiniyam, 2004), Section 11 (d) of the Prevention of Cruelty to Animals Act, 1960 (for short the Act, 1960) and in addition to that, conviction of

driver Sumer Singh for Section 3/181 and 81/177 of Motor Vehicles Act, 1988 (for short the Act 1988) is also confirmed. The learned Appellate Court

also maintained the sentence awarded by the learned Trial Court with regard to the offences U/S 9 of the Adhiniyam, 2004 and U/S 11(d) of the Act,

1960 and exempted the petitioner Sumer Singh from the sentence U/S 81/177 of Motor Vehicles Act, 1988 considering that this is lesser offence

of the offence U/S 9(2) r/w Sec. 6(2) (a) of the Adhiniyam, 2004, therefore, no separate sentence is required. Nothing is mentioned in the impugned

judgment regarding sentence awarded under section 3/181 of the Act 1988. The Learned Judicial Magistrate First Class, Mahidpur recorded this

conviction in criminal case no.519/2014 vide judgment and order dated 28.02.2018.

The prosecution case in brief is that after receiving information on 08.03.2014 at about 3:00 in the afternoon PW/3 ASI Vikram Singh Rathore of

police station Makdoan District Ujjain intercepted Mahindra loading vehicle bearing registration No. MP-42-G-0276 and found that the petitioners

were transporting 8 cow progeny and were taking them out of State for the purpose of slaughtering. The vehicle was taken to the police station,

where crime no.80/2014 under Sections 9 and Sections 4,5,6 & 10 of the Adhiniyam, 2004, 11 (d) of the Act,1960 was registered and after usual

investigation charge-sheet was filed.

The petitioners were charged, tried and convicted and their conviction is maintained by the learned Appellate Court as stated in para no.1 above.

Though this appeal has been filed challenging the conviction of sentence of the petitioners for all the offences but during arguments, the learned

counsel representing the petitioners pleaded that the petitioners do not want to challenge their conviction under Sections 11 (d) of Act, 1960, and

conviction u/s 3/181 and 81/177 of the M.V. Act, 1988 and they only want to challenge their conviction and sentence under Section 9 of MP

Govansh Vadh Pratishedh Adhiniyam, 2004.

The contention of the learned counsel for the petitioners is that there is no evidence that the cow progeny were being transported for the purpose of

slaughtering. It is further submitted by the learned counsel that the farmers have purchased the cow progeny from the haat bazar of Gosala and to

save their transportation cost/expenses they together hired the vehicle of the present petitioners and as per direction of the rentees, they were

transporting and going to deliver the cow progeny at the place directed by them. The receipt of purchase of cow progeny have been produced before

the learned Trial Court but as it could not be proved, therefore, the learned Trial Court did not rely on them. No evidence could be produced by the

prosecution to establish the charge against the petitioners under Section 9 of the Adhiniyam, 2004, therefore, their conviction under such section is

not sustainable.

Learned counsel for the respondent/State has opposed the prayer stating that neither the petitioners have produced any receipt as to how they have

procured the cow progeny nor they have proved the said receipt, therefore, the learned Trial Court has rightly held that the cow progeny was being

transported for the purpose of slaughtering. He further submitted that no ground for interference in the judgment of the learned Trial Court which is

later confirmed by the learned Appellate Court is made out, therefore, the petition deserves to be dismissed.

I have considered the documents produced by the prosecution before the learned Trial Court. Seizure witness PW/1 Madan has turned hostile, Dr.

M.L. Jatav PW/2 has only medically examined the cow progeny and have not found any significant injury except some scuffs. M.S. Nagar PW/4 is

only investigating officer and has proved the investigation. Another witness of seizure PW/5 Ishwardas has supported the prosecution in examination-

in- chief but in cross examination he has clearly admitted that he had seen cow progeny in the premises of the police station. He has not stated that he

was present on the spot at the time of the seizure as he has stated that he had seen the cow progeny wandering open in the premises of the police

station where he had signed the seizure memo and other documents. He further stated that he does not know how and from where the cow progeny

were seized by the police. None of these witnesses have stated that the cow progeny were being transported for the purpose of slaughtering. The sole

witness remained is seizing officer ASI Vikram Singh Rathore PW/3 who has proved the seizure but even he stated nothing that the cow progeny

were being transported for the purpose of slaughtering. In his statement before the Court he has stated that he had received information that the

seized cow progeny are being transported for the purpose of slaughtering. But this was only information and no positive evidence or any other

evidence is produced by the prosecution to prove this fact.

Burden of proving this fact lies on the prosecution and it is settled law that such burden never shifts. It cannot be expected from the accused to

disprove or rebut a fact by producing any evidence until and unless the fact itself is proved by the prosecution by adducing cogent and positive

evidence.

Section 9 of the Adhiniyam, 2004 makes the transportation of cow progeny only when it is being transported for the purpose of slaughtering. Section

9 reads thus;

“Whoever contravenes or attempts to contravene or abets the contravention of the provisions of Sections 4, 5 and 6 shall be punished with

imprisonment of either description for a term which may extend to three years, or with fine which may extend to ten thousand rupees or with both. â€​

To better understand section 9 reference of section 4,5,6,6-A & 6B would be appropriate which reads thus:

“4. Prohibition of slaughter of cow progeny. - No person shall slaughter or cause to be slaughtered or offer or cause to be offered, for slaughter of

any cow progeny.

Prohibition of possession of beef. - No person shall have in his possession beef of any cow progeny slaughtered in contravention of the provisions of

this Act.

Prohibition on transport of cow progeny for slaughter. - No person shall transport or offer for transport or cause to be transported any cow progeny

from any place within the State to any place outside the State, for the purpose of its slaughter in contravention of the provision of this Act or with the

knowledge that it will be or is likely to be, so slaughtered.

6.-A- Prohibition of export of cow progeny and grant of permit- (1) No person including transporter shall export or cause to be exported any cow

progeny himself or by his agent, servant or by any other person cating in his behalf from any place of the State to any place outside the state without

permit as provided in sub section (2)

(2) The competent Authority may grant a permit within seven days onpresenting application in his behalf in such manner as may be prescribed for

export of cow progeny from Madhya pradesh for agricultural of diary framing purposes or for participation in a cattle fair and like purposes except for

the purpose of slaughter.

(3) Any persons seaking permit under sub section (2) aggrieved by an orderof the Competent Authority may make an application within thirty days

from the date of receipt of the order to the Divisional Commissioner, and the Divisional Commissioner may upon such application call for the examine

the record of the case for the purpose of satisfying himself as to the correctness, legality or propriety of any order and may pass such order as it

may deem just and proper and the order passed by the Divisional Commissioner shall be final and shall not be called in question in any civil Court.

6-B- Prohibition of transporting cow progeny via Madhya Pradhesh and grant of tansit permit:- No person including transporter shall transport cow

progeny via Madhya Pradesh State and if any person including transports wants to transport any cow progeny from one State to other via Madhya

Pradesh State then he shall take transit permit from competent Authority in such manner as may be prescribed.â€​

Bare perusal of these sections shows that section 9 is applicable only in case when someone slaughters or cause to be slaughtered or offer or cause to

be offered, for slaughter of any cow progeny. Section 5 applies when beef of any cow progeny is being transported. Section 6, 6-A & 6B, are

applicable in case when cow progeny is being transported outside the State or via the State of M.P. for slaughtering and it is not the case of the

prosecution that the petitioners were transporting the cow progeny from any place of State to any place outside the State without permit as prescribed

in Sub Section 2 of Section 6-A.

Both the learned courts below, missed this fact to appreciate in their judgment, therefore, the conviction recorded by both the courts below under

Section 9 of the Adhiniyam, 2004 is not sustainable in the eyes of law.

Consequently, the appeal is partly allowed and the conviction and sentence of the petitioners, so far as it relates to Section 9 of M. P. Govansh Vadh

Pratishedh Adhiniyam, 2004 is hereby set aside. The petitioners are acquitted from the offence under Section 9 of M.P. Govansh Vadh Pratishedh

Adhiniyam, 2004. So far as conviction of the petitioners for the other charges is concerned, the petition is dismissed as the petitioners have not

challenged those conviction and sentences before this Court.

Since the petition is finally disposed of, therefore, IA No. 4955/2018 for suspension of sentence is also closed.