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2003 DIGILAW 521 (GAU)

Md. Jamal v. State of Assam

2003-11-21

AMITAVA ROY

body2003
JUDGMENT Amitava Roy, J. 1. The subject matter of challenge in Criminal Revision No. 413/2001 is the order dated 10.8.2001 passed by the learned Sessions Judge, Dhubri in Criminal Revision Case No. 2(3)/2001 and 3(3)/2001 with regard to the interim prayer for custody of Barks of Leham Trees, whereby the Respondent No. 6 was allowed Zimma of 420 bags of seized Laham Barks and the petitioner was allowed to take Zimma of the remaining bags seized in connection with Dhubri P.S. Case No. 1307 2001. This Court by order dated 16.8.2001 while issuing notice of motion stayed the operation of the order dated 10.8.2001 allowing Zimma of 420 bags of Laham Barks in favour of the Respondent No. 6. 2. Criminal Revision No. 476/2001 has been filed against the order dated 21.8.2001 passed by the learned lower revisional court declining to issue a direction to take back the Zimma of the Laham Barks which in the meantime had been granted in favour of the Respondent No. 6. By the said order the learned court below also stayed further proceedings of the revision petition pending before it. This court while issuing notice of motion by order dated 6.9.2001 directed maintenance of status quo of the seized articles. 3. The factual background in short would be necessary. An F.I.R. was lodged by the petitioner with the Dhubri P.S. contending that he had taken settlement of a Bark Mahal from Garo Hills District Council and in course of his business, he used to transport the same to various destinations through Sagar Road Carrier. 590 bags of Barks were as usual handed over to the above-named transporter with transit passes. The transporter, however, failed to despatch the goods and instead threatened and intimidate him for which the aforementioned F.I.R. was lodged with the police and on the F.I.R., Dhubri P.S. Case No. 130/2001 was registered under Section 143/407/506 IPC. The Respondent No. 6 runs the Transport Firm named above. In course of the investigation, as the petitioner claims, the police seized 567 bags of Laham Barks from the Godown of the Transporter, both the petitioner and the Respondent No. 6 thereafter filed applications for custody of the seized Laham Barks and their prayer was rejected by the trial Court. The petitioner filed a revision petition before the learned lower revisional court being Criminal Revision No. 2(3)/2001. The petitioner filed a revision petition before the learned lower revisional court being Criminal Revision No. 2(3)/2001. The Respondent No. 6, also aggrieved by the refusal of the custody of the seized Laham Barks approached the learned lower revisional court with a revision petition being C.R. 3(3)/2001. On the prayer for interim custody of the seized Laham Barks, the learned lower revisional court heard the parties and by the order dated 10.8.2001 granted interim custody of 420 bags of the seized Laham Barks in favour of the Respondent No. 6 subject to execution of a bond of Rs. 75,000. By the same order, interim custody of the remaining bags of seized Laham Barks was allowed in favour of the petitioner on his executing a bond of Rs. 25,000. 4. Assailing the said order, it has been contended on behalf of the petitioner that the learned lower revisional court totally left out of consideration the documents and records in support of his ownership of the seized Laham Barks and on an erroneous appreciation of the materials on record granted custody of 420 bags of the seized Barks in favour of the Respondent No. 6. It appears from the revision petition filed in Criminal Revision No. 476/2001 that a civil suit has also been filed in the court of the Additional District Magistrate-cum-Civil Judge, Tura claiming ownership over the seized Laham Barks. It has been pleaded by the petitioner that the suit is still pending. It has been further contended that in spite of the fact that this court by order dated 16.8.2001 had stayed the order granting custody of the Laham Barks in favour of the Respondent No. 6, the learned revisional court did not pass any order directing the police to withdraw the same from the possession of the Respondent No. 6 and instead not only stayed further proceedings in the revision petition before it, but also the handing over of all the remaining Laham Barks in favour of the petitioner as ordered earlier. 5. When the case was called out for hearing yesterday, none appeared for the petitioner. The learned counsel for the Respondent No. 6 was, however, present. On second call as well, the petitioner remained unrepresented. 5. When the case was called out for hearing yesterday, none appeared for the petitioner. The learned counsel for the Respondent No. 6 was, however, present. On second call as well, the petitioner remained unrepresented. Having regard to the fact that the revision petitions are pending on issues pertaining to interim custody of articles seized in connection with the police case since 2001 and in view of Section 403 of the Cr.PC as well as the decision of the Apex Court in Bani Singh and Ors. Appellants v. State of U.P. Respondents, reported in 1996 SCC 2439. I have decided to dispose of the revision petitions on merits. The learned counsel for the respondent No. 6 was accordingly heard. Mr. P. Bora, learned counsel for the respondent No. 6 while taking this court in details through the order dated 10.8.2001 passed by the learned lower revisional court, granting interim custody of the seized Laham Barks in favour of the petitioners as well as the Respondent No. 6 has argued that the learned court below before passing the order had considered in details all relevant aspects of the matter and that therefore this court in the exercise of its revisional jurisdiction would not displace the same by re-appreciating the materials on record. He further submitted that pursuant to the order dated 10.8.2001, the custody of 420 bags of Laham Barks was given to the Respondent No. 6 much before this court had passed the order dated 16.8.2001 and, therefore, the order dated 21.8.2001 passed by the learned lower revisional court as assailed in Criminal Revision petition No. 476/2001 cannot be faulted with. He further pointed out that as this court by order dated 6.9.2001 passed in Criminal Revision No. 476/2001 has directed maintenance of status quo of the seized articles and further as the revision petitions before the learned court below are pending for final disposal on merits, this court may be pleased to remand the matter back to the learned revisional court for disposal of the pending revision petitions before it by making the interim order dated 6.9.2001 absolute. 6. I have closely examined the order dated 10.8.2001 passed by the learned revisional court with regard to interim custody of the seized Laham Barks. I have also considered the submissions made in the revision petitions before this court as well as the documents annexed thereto. 6. I have closely examined the order dated 10.8.2001 passed by the learned revisional court with regard to interim custody of the seized Laham Barks. I have also considered the submissions made in the revision petitions before this court as well as the documents annexed thereto. It appears therefrom that the petitioner and the Respondent No. 6 Kawaza Nazrul Hussain alias Munna Ahmed (impleaded as Respondent No. 6 in Criminal Revision No. 413/2001 and as Respondent No. 5 in Criminal Revision No. 476/2001) have registered competing claims of ownership over the Laham Barks seized by the police in connection with Dhubri P. S. Case No. 130/2001. A suit filed by Sri Dishing N. Marak claiming to be the settlement holder of the concerned Bark Mahal, claiming ownership of the seized Barks is also pending. The learned lower revisional court in passing the order for interim custody of the said Barks has made a detailed appreciation of all relevant facts as well as the documents having a bearing on the issue. The revision petitions are pending before the learned lower revisional court for final disposal in course of which the rival contentions of the parties in support of their claims for the custody of the seized Barks would be considered afresh. Pursuant to the order dated 10.8.2001 the interim custody of 420 bags, of Laham Barks, as claimed, is with the private respondent. This court, as noticed hereinabove, by order dated 6.9.2001 had directed that the status quo of the seized materials be maintained. The order is still in force. In the above premises, I do not consider it to be fit and proper to disturb the state of things as on today in exercise of the revisional jurisdiction of this court by reappreciating the materials on record. It would therefore be appropriate that the learned lower revisional court be allowed to dispose of the revision petitions on merit with expeditions by maintaining the status quo of the seized articles, as on today. Ordered accordingly. 7. In the light of the above discussion, the revision petitions stand disposed. The learned lower revisional court would now proceed to hear the revision petition being C.R. No. 2(3) 2001 and C.R. 3(3) 2001 pending before it expeditiously and dispose of the same on merits after hearing both the parties. Ordered accordingly. 7. In the light of the above discussion, the revision petitions stand disposed. The learned lower revisional court would now proceed to hear the revision petition being C.R. No. 2(3) 2001 and C.R. 3(3) 2001 pending before it expeditiously and dispose of the same on merits after hearing both the parties. In view of the fact that 2 years have passed in between after the interim custody of 420 bags of Laham Barks had been handed over to the private respondent, it is further ordered that pending disposal of the revision petitions before the learned lower revisional court, status quo with regard to be custody of the seized articles as on today shall be maintained by the parties. No Costs.