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2019 DIGILAW 169 (GAU)

AL AMIN ESSENTIAL OIL INDUSTRIES v. STATE OF ASSAM

2019-02-06

A.S.BOPANNA, NANI TAGIA

body2019
JUDGMENT : A.S. BOPANNA, J. 1. Heard Mr. A.K. Bhuyan and Mr. A. Khound, learned counsel for the appellant. Also heard Mr. D. Mozumdar, learned Additional Advocate General, Assam assisted by Ms. J. Kakati, learned counsel for the respondents. 2. The appellant is before this Court assailing the order dated 29.05.2018 passed by the learned Single Judge in W.P.(C) No.7328/2017. Through the said order, the learned Single Judge has dismissed the writ petition. 3. The facts in brief are that on 29.10.2015, four cartons of oil were seized at the Kamakhya Railway Station when it was being transported to Mumbai for export purpose. The consignment belongs to the appellant and was suspected to be Agar oil. Since, according to the authorities, it was a banned item and since the carrier did not possess a valid pass from the forest officer under the Assam Wood Based Industries (Establishment & Regulation) Rules, 2000, the carrier was proceeded against. In the said process, 20 ml of sample of the seized oil was sent to Forensic Science Laboratory (FSL) for further confirmation and on the report dated 31.12.2015 establishing that the sample was under the Agar wood oil, Forest Offence Case No.G/56 of 15-16 was registered and order dated 27.05.2016 was passed. 4. Against the confiscation order, an appeal being Misc. Appeal No.38/16 was preferred. 5. The Addl. District Judge, on hearing the appeal, through the order dated 26.05.2017 set aside the confiscation order dated 27.5.2016 and directed the authorized officer to provide reasonable opportunity to cross-examine the FSL Expert and, thereafter, pass the orders in accordance with law. It is pursuant thereto, the order dated 7.8.2017 impugned in W.P.(C) No.7328/2017 was passed. In the above background, the learned Single Judge having taken note of the order dated 26.5.2017 passed in Misc. Appeal No.38/16, was of the opinion that the authorized officer in terms of the said order had provided the opportunity of cross-examining with regard to FSL report had arrived at the conclusion that, in that view, since opportunity as directed had been provided and conclusion has been reached by the competent authority, further interference with the order would not arise. To arrive at the conclusion, the learned Single Judge has also made specific reference to paragraph-8 of the order dated 7.8.2017 wherein a conclusion has been reached after providing opportunity. 6. To arrive at the conclusion, the learned Single Judge has also made specific reference to paragraph-8 of the order dated 7.8.2017 wherein a conclusion has been reached after providing opportunity. 6. Learned counsel for the appellant while assailing the order of the learned Single Judge would seek to contend that, firstly the appellant herein had not been provided opportunity in the said proceeding inasmuch as the seized material belong to the appellant, but the person against whom the proceedings had been taken up are not the persons who were authorized by the appellant establishment. Even otherwise, it is contended that the order dated 7.8.2017 passed by the authorized officer does not satisfy the requirement of law inasmuch as the seizure of the sample was made only subsequently and, therefore, there was violation of the procedure as contemplated in law. The learned counsel for the appellant would seek to refer to the nature of the evidence that has been recorded before the authorized officer to contend that a perusal of the evidence itself would disclose that the procedure contemplated had not been followed and since the sample was seized subsequently, the entire procedure being faulty is unsustainable. In any event, it is the contention that the appellant be provided with an opportunity of filing an appeal to the District Judge under the statutory provision against the order passed by the authorized officer. It is in that light, he seeks that an opportunity be provided after setting aside the order passed by the learned Single Judge. 7. Learned Additional Advocate General, Assam appearing for the respondent would, however, oppose such contention. It is pointed out that the appellant herein, in fact, was before this Court in W.P.(C) No.2834/2016 raising certain contentions. In the said proceeding, this Court through the order dated 11.05.2016 provided an opportunity to the appellant herein to participate in the proceedings before the competent authority and put forth the contention. Though such opportunity has been granted, the appellant herein has not participated, but the proceeding in any event had been taken up against the persons who had preferred the earlier proceedings in Misc. Appeal No.38/16. In the said process when opportunity had been granted in Misc. Though such opportunity has been granted, the appellant herein has not participated, but the proceeding in any event had been taken up against the persons who had preferred the earlier proceedings in Misc. Appeal No.38/16. In the said process when opportunity had been granted in Misc. Appeal No.38/16 and, thereafter, the order dated 7.8.2017 was passed, the learned Single Judge was justified in taking note of the manner in which a consideration has been made by the Authorized Officer and, therefore in the present circumstance, if the contention as put forth by the learned counsel for the appellant is accepted, it would amount to reopening an issue which has attained finality. Hence, he seeks that the appeal is liable to be rejected. 8. In the background of the contention as put forth, at the outset a perusal of the order dated 29.05.2018 would indicate that the learned Single Judge has taken into consideration the entire nature of the proceedings from the initial stage including the earlier order passed by this Court. In that light, the learned Single Judge having referred to the earlier order passed in Misc. Appeal No.38/16 and taking note of the limited scope available in the proceeding before the competent authority on remand when a specific indication in the order passed in the appeal providing opportunity of cross-examination of the FSL expert alone was permitted. In that light, when the learned Single Judge has taken into consideration the conclusion reached by the Authorized Officer by referring to the cross-examination of the FSL expert, we are of the opinion that the learned Single Judge was ultimately justified in the conclusion. In addition, we take note that this Court in the earlier proceedings in W.P.(C) No.2834/2016 through the order dated 11.05.2016 had permitted the appellant herein to participate in the proceeding before the competent authority and put forth the contention therein. Admittedly, the appellant in its name has not participated in the said proceeding and even though the persons who participated in the proceedings claimed to be on behalf of the appellant herein, they have not taken steps to assail the order dated 7.8.2017. Admittedly, the appellant in its name has not participated in the said proceeding and even though the persons who participated in the proceedings claimed to be on behalf of the appellant herein, they have not taken steps to assail the order dated 7.8.2017. In that circumstance, when the appellant is now seeking to make out a case with reference to the other evidence of the officers which had been recorded in the proceedings before the authorized officer, the same would amount to reopening the entire process at this stage, though it had attained finality. Therefore, this aspect of the matter is kept in view and, in that light, if the scope which was available before the authorized officer being limited to the aspect of remand in Misc. Appeal No.38/16 is taken note, we are of the opinion that further consideration of providing an opportunity to the appellant would not arise. 9. In view of the above, we see no merit in this appeal. The same is, accordingly, dismissed.