New Delhi: A bench of the Bombay high court has held that the possession of a dead animal’s skin does not amount to an offence under the Maharashtra Animal Preservation Act, 1976.
The Nagpur bench of the high court comprising Justice V. M. Deshpande and Anil S. Kilor said that under the Act, which prohibits slaughtering, importing, exporting and possessing beef, there is no prohibition on possession of skin of dead animals, reported the Indian Express.
The bench also noted that any circular or order prohibiting possession of skin issued by the state government will not prevail over the provisions of the statute.
The court passed a judgement on December 14, in connection with a plea by Shafiqullaha Kha, the driver of a van allegedly carrying the skin of dead cows, seeking the quashing of an FIR filed against him as per sections 5A (prohibition on transportation of cow, bull or bullock from any place within state for purpose of slaughter), 5B (prohibition on export of cow, bull or bullock within state or any place outside for slaughtering) and 5C (prohibition on possession of flesh of cow, bull or bullock slaughtered) among others.
A complaint in the case was lodged by a person who claimed to be the president of a local unit of the Bajrang Dal after this van, allegedly carrying animal’s skin, was found in July 2018. An FIR was then registered in Shivaji Nagar Police station.
The police also said that they had verified the complaint and confirmed that the vehicle was carrying 187 skins of cow species. This claim was corroborated with the animal husbandry department.
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Appearing for the petitioner, advocate A.V. Bhide said that all relevant documents including the Udyog Aadhar Memorandum, a licence under the Maharashtra Shops and Establishment Act, and a bill prepared for selling of raw hide had been provided and that there was no contravention of any provisions of the state Animal Preservation law.
Appearing for the police, additional public prosecutor N.S. Rao opposed the plea, and sought its dismissal.
The court, however, observed that despite allegations that the petitioner was carrying 187 skins of cows in the van, there was no allegation that he was transporting or exporting cow, bull or bullock for purpose of slaughter and hence no offence was constituted against the applicant as per the Act of 1976.
“(Allegedly), the applicant was carrying 187 skins of cows in the van. There are no allegations that the applicant was transporting or exporting cow, bull or bullock for the purpose of slaughter in contravention of provision of the Act, 1976. There are also no allegations that the applicant purchased or sold or otherwise disposed of or offered to purchase or sell or dispose of cow, bull or bullock for slaughter,” the court said, reported LiveLaw.
The court also said that it could not be concluded that the word ‘flesh’ used under Section 5-(C) of the Act, 1976, covers the skin of the animal.
“The main difference between ‘skin’ and ‘flesh’ is that the ‘skin’ is a soft outer covering organ of vertebrates and the ‘flesh’ is a soft substance of an animal body that consists of muscle and fat,” the court noted and said that “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.”
“There is no doubt that the skin is not covered under the provisions of the Act of Maharashtra Animal Preservation Act, 1976. Thus, there is no prohibition for the possession of skin of dead animals and in absence of such prohibition, we have of a convinced view that no offence under Section 5-(A), 5-(B), 5-(C) attracts in the present matter and consequently Section 9 and 9-(A) ( both providing punishments under the law) also would not attract,” the bench said.
“Moreover, 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 (contempt of lawful authority of public servant) of the Indian Penal Code,” the court further observed.
In an analysis for The Wire in 2016, Shraddha Chigateri had charted the evolution of the law and how the court had sought to interpret it. Maharashtra Animal Preservation Act 1978 was amended in 2015 (it was passed by the Maharashtra legislature in 1995 and received presidential assent 20 years later) to extend the bans on the slaughter of cows and calves to bulls and bullocks (section 5 of the Amendment Act), and prohibit the transport (from Maharashtra to another state), the export, as well as the purchase, sale and disposal of cows, bulls and bullocks for the purpose of slaughter (sections 5A and 5B).
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Further, it sought to prohibit the possession of the flesh of the cow, bull or bullock slaughtered in contravention of the provisions of the Act (section 5C), and perhaps most controversially of all, the possession of beef per se, whether or not this was obtained through lawful slaughter from another state (section 5D). The Amendment Act also stipulated a punishment of five years and/or a fine of 10,000 rupees for contravention of the prohibitions on slaughter, transport, export, purchase and sale and one year and/or a fine of 2000 rupees for the contravention of the prohibitions on possession of beef.
The amendment was hotly challenged in the Bombay high court in the years following its passage.
In recent years, the notion of cow protectionism or cow vigilantism has lead to a number of lynchings, nearly all of them resulting grievous harm done to Muslim or Dalit people. A report by a Delhi-based NGO in 2019 found that a majority of police personnel also endorsed encounter killings and punishment by a mob for cow slaughter.