Mumbai (The Hindu): Court says preventing an individual from eating food of his choice is intrusion into personal life
A division bench of the Bombay High Court struck down Sections 5(d) and 9(b) of the Maharashtra Animal Preservation Act, 1976 (MAPA 76), and allowed the possession and consumption of beef in Maharashtra.
In its order, the Bench upheld Article 21 (Right to Life) of the Indian Constitution and said it includes the right to lead a meaningful life.
The courts observed that Article 21 “protects the citizen from unnecessary state intrusion into his home. For leading a meaningful life, a citizen will have to eat food and preferably food of his choice.” If the state tells a citizen not to eat a particular kind of food even though that food is not injurious to health, the court noted, it would prevent that citizen from leading a meaningful life. The court said, “If the State starts making intrusion into the personal life of an individual by preventing him from eating food of his choice, such act may well affect his personal liberty. Hence, even assuming that there may not be any kind of privacy, such interference will be violation of his personal liberty guaranteed by the State.”
The court observed that in many countries, and many Indian states, the slaughter of a cow, bull or bullock is legal, and that the only slaughter which is in contravention of MAPA 76 is the slaughter within Maharashtra.
Observing that that there was no way of distinguishing bovine flesh from cattle slaughtered within the state to that slaughtered elsewhere, the court said “There is absolutely no question of fastening any presumed knowledge of slaughter within the state on the accused.”
Possession can not be prosecuted
The court ensured that the possession of beef could not be prosecuted. “Merely because a person is found in possession of bovine flesh does not make his knowledge of slaughter within the state in any way probable.”
These observations came after the bench summed up the entire scenario placed before it on the beef ban as mentioned in the Act, where “the moment anyone is found to be in possession of bovine flesh in Maharashtra, irrespective of where the slaughter has taken place, such person commits an offence under the act and a uniform punishment is provided for the offence.”
The bench noted that to contravene the Act, mere possession of bovine flesh was enough. If such possession could be proved, an accused would have the burden of proving that he did not know that the flesh was that of a cow, bull or bullock.
“It is unthinkable how even the test of preponderance of probabilities, the accused can reasonably or fairly be expected to discharge this burden beyond possibly his own statement in the witness box that he did not know that it is bovine flesh.”
The burden of proof
The court put the burden of proof on the accuser rather than accused, holding that it was relatively easy for the prosecution to bear the burden of establishing that the slaughter was in contravention of the act than for the accused to show otherwise. The bench observed that the greater difficulty would be faced if on the basis of possession of such flesh, the state were to prosecute him for possession of flesh of cow, bull or bullock slaughtered in Maharashtra.
“How is the accused to discharge the onus of proving that he did know that the animal was slaughtered in contravention of the Act?” the court asked.
The bench held that, “Not only does the burden placed on him offend the rule against burden to prove a negative fact, it also subjects the accused to a great hardship and oppression, which is not commensurate with the balance of difficulty faced respectively by the prosecution and the accused in establishing the ingredients of the offence or the lack thereof.”
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