Bombay High Court: The Division Bench of V.M. Deshpande and Anil S. Kilor, JJ., addressed the issue on whether there is any prohibition for the possession of skin of dead animals under Maharashtra Animal Preservation Act, 1976.
Applicant was an accused of the offences punishable under Section 5-(A), 5- (B), 5-(C), 9, 9-(A) of the Maharashtra Animal Preservation Act, 1976 read with Section 188 of the Penal Code, 1860 and Section 105, 117 of the Bombay Police Act.
By the instant application, quashing of the FIR was sought under Section 482 of the Criminal Procedure Code, 1973.
The prosecution submitted that the Pick Up Bolero van was found carrying animal’s skin and therefore on a complaint lodged by non-applicant 2 who claimed to be a President of Bajrang Dal, the FIR in question was registered.
Adding to the above, prosecution submitted that on verification, the vehicle was found to carrying 187 skins of cow species.
Analysis and Decision
Bench noted that:
From the reading of Provision of Section 5-(A), it is clear that it prohibits transfer within the State or export outside the State cow, bull or bullock for the purpose of its slaughter, in contravention of the provisions of the Act of 1976.
Section 5-(B) prohibits purchase, sell or otherwise dispose of or offer to purchase, sell or otherwise dispose of any cow, bull or bullock for slaughter.
Section 5-(C) prohibits possession of flesh of any cow, bull or bullock slaughtered in contravention of the provision of the Act, 1976.
In the instant case, Court noted that there were allegations that the applicant was transporting or exporting cow, bull or bullock for the purpose of slaughter in contravention of a provision of the Act, 1976.
No allegations of the applicant purchasing or selling or otherwise disposing of or offering to purchase or selling or disposing of cow, bull, bullock for slaughter were made, hence no offence was constituted against the applicant under Sections 5-(A) or 5-(B) of the Act of 1976.
Further, the Court added that as far as Section 5-(C) is concerned the expression used in the said Section is ‘flesh of any cow bull or bullock slaughtered’. It is, therefore, necessary to consider whether ‘flesh’ includes the skin.
Having considered the difference between ‘skin’ and ‘flesh’ and having considered the basic rule of interpretation, it can not be said that the word ‘flesh’ used under Section 5-(C) of the Act, 1976, covers the skin of animal. The legislature has expressed its intention through the word ‘flesh’ used under Section 5-(C) of the Act, 1976 and therefore, the said word needs to be interpreted accordingly, as per the intention of the legislature.
Relying on the decision of Shaikh Najir Shaikh Umar v. State of Maharashtra, Criminal Application No. 364 of 2018, decided on 21-06-2018. Court held that there is no doubt that the skin is not covered under the provisions of the Act of Maharashtra Animal Preservation Act, 1976.
Therefore, Bench expressed that
“…there is no prohibition for the possession of skin of dead animals.”
In the absence of above prohibition, no offence under Section 5-(A), 5-(B), 5-(C) attracts in the present matter and consequently, Section 9 and 9-(A) also would not attract.
“…in absence of any statutory provision, which prohibits possession of skin of a dead animal, even if, any circular or notification or order has been issued by the State Government, prohibiting possession of skin, such circular, notification or order which has no statutory force will not prevail over the provisions of the statute and to that extent, it would be in contravention with the statute. Thus, the contravention of any such notification or circular or order as regards possession of skin will not attract Section 188 of the Penal Code.”
The application was disposed of in view of the above discussion.[Shafiqullaha Kha Ashfaqullha Kha v. State of Maharashtra, 2020 SCC OnLine Bom 4341, decided on 14-12-2020]