Seized cattle cannot be released to owners during trial under Assam Cattle Preservation Act, Gauhati High Court rules

On 3 May 2026, the police intercepted a Bolero pickup allegedly transporting eight cattle from the Gohpur side towards Biswanath Chariali. The driver and two passengers, including the petitioner, failed to produce valid documents. The cattle and vehicle were seized, and the persons were apprehended on allegations of illegal and cruel transportation, including inadequate space, food, water and hygiene.

The petitioner claimed ownership of the eight cattle and sought their interim custody (zimma) before the Sub-Divisional Judicial Magistrate, Biswanath. The Magistrate rejected the prayer on 26 May 2026.

Earlier, by order dated 4 May 2026, the Magistrate had directed that the cattle be handed over to Dhyan Foundation, Sri Ganga Gaushala, while the vehicle was subsequently released to the petitioner.

The petitioner challenged the rejection order under Sections 438/442 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Whether Section 11(5) of the Assam Cattle Preservation Act, 2021 requires the Magistrate to record satisfaction regarding a prima facie offence before refusing interim custody of seized cattle.

Whether the Magistrate possesses power under Section 11(5) of the Assam Cattle Preservation Act, 2021 to release seized cattle to their alleged owner pending conclusion of the criminal proceedings.

Whether the petitioner was entitled to interim custody of the cattle in light of the allegations of cruel and undocumented transportation.

The court primarily applied Section 11(5) of the Assam Cattle Preservation Act, 2021, which empowers the Judicial Magistrate, upon receiving the police report and being satisfied that sufficient material exists to presume a prima facie offence or intended offence under the Act, to release seized materials, including a vehicle or conveyance, pending criminal proceedings; the court interpreted this provision as not authorising release of seized cattle to the owner.

As a special statute, the Assam Cattle Preservation Act prevails in relation to custody of cattle seized under it.

The court distinguished Manager, Pinjrapole, Deudar v. Chakram Moraji Nat, (1998) 6 SCC 520, which interpreted Section 35(2) of the Prevention of Cruelty to Animals Act, 1960 and held that interim custody with a Pinjrapole is discretionary and not mandatory.

It also relied on Shri Chatrapati Shivaji Gaushala v. State of Maharashtra, Criminal Appeal No. 1719 of 2022, decided on 30 September 2022, for the principle that where cattle are prima facie transported cruelly and without a valid permit, custody may properly be entrusted to a gaushala rather than the persons transporting them.

The court held that the requirement of recording satisfaction under Section 11(5) arises when the Magistrate releases seized materials such as a vehicle or conveyance, not when the prayer for release of cattle is rejected.

The petitioner’s argument was further weakened because he had not challenged the earlier order directing delivery of the cattle to the respondent gaushala, and he had accepted release of the vehicle without insisting upon a similar recorded satisfaction.

Rejecting the contrary interpretation in Md. Sirajul Islam v. State of Assam, 2022 SCC OnLine GAU 1534, the court concluded that the statutory scheme did not confer power upon the Magistrate to release seized cattle to their owner during the pendency of proceedings.

The allegations that the cattle were transported without valid documents and in cruel and inhumane conditions additionally supported their continued custody with the gaushala rather than the petitioner.

The court held that Section 11(5) of the Assam Cattle Preservation Act, 2021 does not empower the Magistrate to release seized cattle to the owner pending criminal proceedings, and that no separate recording of prima facie satisfaction was necessary while rejecting the petitioner’s custody application.

Consequently, the impugned order dated 26 May 2026 rejecting the petitioner’s prayer for custody of the eight cattle was sustained.