Advocate for & Anr. v. State of Bombay

Advocate for the Petitioner : MR. S ISLAM, MR. M MONDAL Advocate for the Respondent : PP, ASSAM, Page No.# 2/4 BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

11.12.2025 ORDER

Heard learned counsel Mr. S. Islam for the petitioners namely, (i) Mainal Haque, (ii) Sainal Haque, And (iii) Eyanur Islam Akand @Yanur Ali who have filed this application under Section 528 of the BNSS, 2023 with prayer for quashing the entire proceeding of PRC Case No. 605/2024 in respect of the petitioners. This PRC Case has been registered on the basis of South Salmara P.S. Case No. 86/2024 under Sections 379/411 of the IPC read with Section 13(1)/16 of the Assam Cattle Preservation act, 2021.

Heard learned Additional Public Prosecutor, Mr. M. P. Goswami for the respondent State who has accepted notice on behalf of the respondent No. 1 and thus no formal notice is required to be issued.

Learned counsel for the petitioner has relied on the decision of a Co- ordinate Bench of this Court in Crl. Pet./601/2022, wherein vide order dated

19.05.2023, the proceedings under 13(1)/16 of the Assam Cattle Preservation Act, 2021 has been set aside and quashed.

It is submitted that the case of the present petitioners is a similar case as the allegation against the petitioners is that they are guilty of smuggling 26 heads of buffaloes. It is submitted that buffalo has been exempted from the purview of Assam Cattle Preservation Act, 2021 and as regards to other charges i.e., under Section 379/411 of the IPC, there are no incriminating materials in Page No.# 3/4 the record. It is submitted that the petitioners are the owners of 12 heads of cattle out of total allegedly smuggled 20 heads of cattle (buffaloes).

It is submitted that cognizance has been taken under Section 13(2)/16 of the Assam Cattle Preservation Act, 2021 (The Act of 2021 for short) and Sections 379/411 of the IPC vide order dated 30.10.2024.

Learned counsel for the petitioner has relied on the decision of this Court in Crl. Pet./601/2022, in the case of Mofijul Hoque Vs. The State of Assam & Anr., wherein vide order dated 19.05.2023, it has been observed that:- “The reasoning, so assigned by the learned court below for framing charge against the petitioner under section 13[1] of the Assam Cattle Preservation Act, 2021, in spite of the word ‘Buffalo’ not being therein the Schedule of the Act left this court unimpressed. It is to be mentioned here that an extended meaning cannot be given to the word ‘Calves’ while the world ‘Buffelo’ finds no mention therein. Indisputably, the Assam Cattle Preservation Act, 2021, is a penal statute. A statute enacting an offence or imposing a penalty is to be construed strictly. Clear language is now needed to create a crime. In a criminal statute one must be quite sure that the offence charged is within the letter of the law. In the case of Tolaram vs. State of Bombay, reported in AIR 1954 SC 496; it has been held that

If two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature.

It is also well settled that an enactment is a penal provision, is in itself a reason for hesitating before ascribing to phrases used in its meaning broader than that they would ordinarily bear. Reference in this context can be made to a decision of Hon’ble Supreme Court in Bijoya Kumar Agarwala vs. State of Orissa, reported in (1996) 5 SCC 1. Since herein this case, ‘Buffalo’ is not incorporated in the Schedule, this court is of the view that an extended meaning cannot be given to the word ‘Calves’ so as to incorporate ‘Buffalo’ calves therein, while strict construction is required being the Act a penal statute. As held in the case of Tolaram (supra) the court has to lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. “ Page No.# 4/4

In view of the foregoing discussions, so far as the proceedings are concerned, the proceedings under Sections 13(2)/16 of the Act of 2021 are set aside and quashed, but this case will proceed under Sections 379/411 of the IPC.

The order of cognizance under Section 13(1) of the Act of 2021 is hereby set aside and quashed, whereas, this case will proceed under Section 379/411 of the IPC.

The same may be raised by the petitioners before the learned Trial Court at the time of framing of charges.