Research › Search › Judgment

Gauhati High Court · body

2022 DIGILAW 1034 (GAU)

State of Assam v. Lalhruaizela

2022-09-16

ROBIN PHUKAN

body2022
JUDGMENT : Robin Phukan, J. Heard Mr. P.N. Goswami, learned Addl. Advocate General, Assam, being assisted by Mr. P. Borthakur, learned Addl. P.P., Assam appearing for the petitioners. Also heard Mrs. S.B. Choudhury, learned counsel appearing for the respondent. 2. In this petition under Sec. 482 of the CrPC, the petitioner i.e. the State of Assam, represented by the Commissioner and Secretary, Govt. of Assam, Home and Political Department and Sri Mayank Kumar, Superintendent of Railway Police, Pandu, Assam has challenged the legality, propriety and correctness of the judgment and order dtd. 23/5/2022, passed by the learned Sessions Judge, Hailakandi in Crl. Revision No.38/2022. It is to be noted here that vide the impugned judgment and order dtd. 23/5/2022, the learned Sessions Judge, Hailakandi has set aside the order dtd. 6/5/2022, passed by the learned CJM, Hailakandi, in Badarpur GRPS Case No.33/2022, under Ss. 120(B)/420/471/413/34 IPC and directed to release 530 bags of seized betel nuts (areca nuts), in favour of the revisionist, on executing a bond of Rs.1, 20, 75, 000.00 (Rupees one crore twenty lac seventy five thousand) only. 3. The factual background leading to filing of the present petition is briefly stated as under : "On 13/4/2022, acting on a tip off that Mizo betel nut traders, in connivance with the Railway official, illegally loaded Burmese betel nut from Bairabi Railway Station in two wagons of Bairabi-Silchar local train and the train is about to reach Jamira Railway Station, the Officer-in-Charge, Ramnathpur P.S. has recorded a G.D. Entry No.302 dt. 13/4/2022, and rushed to the Bairabi Railway Station and intercepted the train and on checking, he found huge quantities of areca nuts in two wagons, suspected to be of foreign origin, and the documents furnished for transportation of the aforesaid areca nuts are found to be fabricated and manipulated. The said information was communicated to the superior officers and as per instruction, the Wagon No.10828 and 094913 of train No.05568 (up) Bairabi-Silchar train were detached from the main train, after submitting a memo to the Station Master, Jamira Railway Station and 530 bags of areca nuts were seized preparing seizure list. Accordingly, on the basis of an FIR lodged by S.I. Nabajyoti Lahan, the Officer-in-Charge, Ramnathpur P.S. registered a case being Badarpur GRPS Case No.33/2022, under Ss. 120(B)/420/471/13/34 IPC." 4. Accordingly, on the basis of an FIR lodged by S.I. Nabajyoti Lahan, the Officer-in-Charge, Ramnathpur P.S. registered a case being Badarpur GRPS Case No.33/2022, under Ss. 120(B)/420/471/13/34 IPC." 4. Thereafter notice under Sec. 91 CrPC was issued to the Station Master, Bairabi and on being produced by him, several documents were seized on 16/4/2022 and after checking of the aforesaid documents, it was found that the seized areca nuts were loaded by the respondent, namely, Lalhruaizela in the name of a farm namely, Lalhruaizela Timber. Thereafter several notices were issued under Sec. 41(A)/91 CrPC to the respondent through the Officer-in-Charge of Bairabi P.S., Mizoram on 18/4/2022 and 26/4/2022 to produce all documents related to seized areca nuts for examination. But, the respondent neither appeared nor produced any documents for examination and did not cooperate with the investigation. Thereafter on 19/4/2022, the I.O. has written a letter to the Superintendent of Taxes, Hailakandi requesting him to furnish a report regarding genuineness of seized documents under Sec. 91 of the CrPC and by the letter dtd. 20/4/2022, request was also made to the District Agricultural Officer, Hailakandi to ascertain whether the seized areca nuts were of local or foreign origin and the approximate market value of the same and on 21/4/2022, the I.O. has written another letter to the Food Analyst, Govt. of Assam to examine whether the seized areca nuts were fit for human consumption and whether the same are subject to speedy natural decay, and thereafter, the District Agricultural Officer, Hailakandi, vide his letter dtd. 22/4/2022, informed that as per physical inspection done by the District Level Expert Committee, the sample of areca nuts seems to be not of local origin and so far the price is concerned, it was stated that there is discrepancy of price shown in the tax invoice and in the market price list. In the tax invoice, the price of seized areca nuts were shown as Rs.250.00 per Kg., but the actual price of areca nut is Rs.450.00 per Kg. and as such the respondent has cheated the Government by showing false market price and also not paying tax. 5. In the tax invoice, the price of seized areca nuts were shown as Rs.250.00 per Kg., but the actual price of areca nut is Rs.450.00 per Kg. and as such the respondent has cheated the Government by showing false market price and also not paying tax. 5. Thereafter, the respondent filed one Zimma Petition No.542/2022, before the learned CJM, Hailakandi, seeking zimma of the seized areca nuts, stating that the same were of local origin and he purchased the same from Vairengnti Kumbhe Ching Society, Mizoram and the learned CJM, Hailakandi then called for one report from the I.O. and Superintendent of Taxes, Hailakandi and the I.O. has submitted a report on 27/4/2022, stating that the claimant is not the legal/lawful owner of the seized areca nuts, as he could not produce any document to establish his claim during investigation and the investigation reveals that an organized network is involved in smuggling of betel nuts, showing the documents as genuine. However, the Superintendent of Taxes, Hailakandi submitted its report stating that the tax invoice and the e-way bill are found in order. 6. Thereafter, the learned CJM, Hailakandi, considering the materials on record as well as the report submitted by the I.O., dismissed the Zimma Petition No.542/2022, vide order dtd. 6/5/2022. Thereafter the I.O. has also received the report of Food Analyst on 7/5/2022, wherein it is stated that the sample of areca nuts is not suitable for human consumption, as per the Food Safety and Standard Regulation. 7. Thereafter, the respondent being aggrieved by the order of the learned CJM, Hailakandi dtd. 6/5/2022, preferred a revision petition before the learned Sessions Judge, Hailakandi being Crl. Revision No.38/2022 and thereafter, vide impugned judgment and order dtd. 23/5/2022, the learned Sessions Judge, Hailakandi was pleased to set aside the order dtd. 6/5/2022, passed by the learned CJM, Hailakandi, after hearing learned Advocates of both sides and directed to release the seized areca nuts in favour of the petitioner on his executing a bond of Rs.1, 20, 75, 000.00 only. 8. Being aggrieved, the petitioner approached this Court for setting aside the impugned judgment and order passed by the learned Sessions Judge, Hailakandi in Crl. Revision No.38/2022, on the ground that while passing the impugned order dtd. 8. Being aggrieved, the petitioner approached this Court for setting aside the impugned judgment and order passed by the learned Sessions Judge, Hailakandi in Crl. Revision No.38/2022, on the ground that while passing the impugned order dtd. 23/5/2022, the learned Sessions Judge, Hailakandi has misconstrued the law laid down by the Hon'ble Apex Court regarding grant of zimma of the seized articles, that the Food Analyst, Govt. of Assam has clearly stated that the seized betel nuts are not suitable for human consumption and in the event of releasing the seized betel nuts in favour of the respondent, he will sell the same in open market and would be consumed by the public, which will be detrimental to their health and the learned Court below has failed to appreciate the fact that the respondent has failed to produce any documents to proof his ownership and that the seized betel nuts were originated from Burma and the respondent had failed to produce any genuine document to establish his claim that he had purchased the same from local market and that the learned Court below has failed to appreciate the fact that payment of taxes, obtaining e-way bills, GST bills, etc. does not prove the ownership of the goods and the District Agricultural Officer, Hailakandi, vide his letter dtd. 22/4/2022 has stated that the seized sample of areca nuts seems to be not of local origin and the learned Court below has ignored the same while passing the impugned judgment and order and as such the same suffers from non-application of mind and therefore, it is contended to allow this petition, by setting aside the impugned judgment and order. 9. The respondent has submitted his affidavit-in-opposition, denying the assertion made by the petitioners in the petition. It is stated that the seized betel nuts are local agricultural products of Mizoram and not of foreign origin and the documents carried by the respondent at the time of boarding of the train has clearly reflected and proved that the same are local agricultural products of Mizoram and all the relevant documents such as tax invoice, e-way bill, Challan Book No.17 issued by the Vairengts Kuhva Ching Society, Mizoram and its money receipts, RTI information, affidavit etc. were found to be genuine by the learned Sessions Judge, Hailakandi and the Superintendent of Taxes, Hailakandi, in his report has confirmed that the tax invoice and e-way bills are genuine and found to be in order and rightly accepted by the learned Sessions Judge, Hailakandi. It is also stated that the respondent is cooperating with the investigating agency and produced all the relevant documents and there is no question of evading tax and the market value of the seized areca nuts were not shown in the lower side and the same is genuine. It is further stated that the seized areca nuts are being kept in a damp place, without any proper care and it starts decaying and in that event, the respondent will suffer irreparable loss by the action of the petitioners and therefore, it is contended to dismiss the petition. 10. Mr. P.N. Goswami, learned Addl. Advocate General, Assam submits that the learned Court below, by exercising the power under Sec. 451 CrPC has directed to release the areca nuts in favour of the respondent but under Sec. 451 CrPC, the Criminal Court has no power to release the seized article during investigation. Mr. Goswami further submits that the power under Sec. 451 CrPC has to be exercised only in the case of giving custody of the property, pending trial or inquiry and that the term 'inquiry', as contemplated under Sec. 2(g) CrPC does not cover the term 'investigation' as defined in Sec. 2(h) CrPC, and here in this case, investigation is still going on, and as such the articles cannot be released. 11. To bolster his submission, Mr. Goswami has referred to the case of Nevada Properties Private Ltd. Vs. State of Maharashtra, reported in (2019) 20 SCC 119 . Mr. Goswami also referred another case law i.e. Directorate of Revenue Intelligence Vs. PRK Diamonds Pvt. Ltd. and Anr., reported in 2019 SCC Online Del 8226 in support of his submission. Referring to another order of a co-ordinate Bench of this Court dt. 29/4/2022, in Criminal Revision Petition No.16/2022, Mr. Goswami submits that it has been held in the said case that 'inquiry' is not an enquiry relating to investigation of the case by the investigating agency, but it is an inquiry after the case is brought to the notice of the Court, on filing of the charge sheet. 12. Further Mr. 29/4/2022, in Criminal Revision Petition No.16/2022, Mr. Goswami submits that it has been held in the said case that 'inquiry' is not an enquiry relating to investigation of the case by the investigating agency, but it is an inquiry after the case is brought to the notice of the Court, on filing of the charge sheet. 12. Further Mr. Goswami, referring to the case of Official Liquidator Vs. Dayanand and Ors., reported in (2008) 10 SCC 1 submits that the doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions, forming part of his daily affairs. And, therefore, there is need for a clear and consistent enunciation of legal principle in the decisions of a court. 13. Mr. Goswami further submits that since areca nuts are subject of speedy and natural decay and as such, the same may be auctioned and the sale proceeds may be deposited in the Government treasury and subject to outcome of the criminal case, the same may be disposed of. 14. On the other hand, Mrs. S.B. Choudhury, learned counsel for the respondent has vehemently opposed the petition and submits that the learned Sessions Judge, Hailakandi has rightly granted the zimma of the seized areca nuts, based on authentic documents and that the seized areca nuts are in the raw stage and it has to undergo several scientific processes before releasing in the market for consumption by public and as such, the apprehension expressed by the petitioners is unfounded. Mrs. Choudhury further submits that the impugned judgment and order passed by the learned Sessions Judge, Hailakandi is backed by a decision of the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai Vs. Mrs. Choudhury further submits that the impugned judgment and order passed by the learned Sessions Judge, Hailakandi is backed by a decision of the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in (2002) 10 SCC 290 and that the seized areca nuts are perishable article and since the same were seized in the month of April, 2022 and being kept in a damp place and unless released in the custody of the respondent, the same will get damaged and in that case, the respondent will suffer irreparable loss and that the respondent has collected the seized areca nuts from the local farmers of Mizoram and he had producedn all the relevant documents and therefore, the objection filed by the petitioners is devoid of merit and the same may be dismissed. Mrs. Choudhury further submits that the action of the petitioners are contrary to their own SOP prepared by them. 15. Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the impugned judgment and order passed by the learned Sessions Judge, Hailakandi in Crl. Revision No.38/2022. I have also carefully gone through the case laws referred by Mr. P.N. Goswami, learned Addl. Advocate General, Assam appearing for the petitioners and I find substance in the submission so advanced by Mr. Goswami. 16. The word 'investigation', as defined in Sec. 2(h) CrPC is different from the word 'inquiry', as defined in Sec. 2(g) CrPC. It is not in dispute that while the impugned judgment and order was passed by the learned Sessions Judge, Hailakandi, the case has not been charge sheeted and was under the investigation and as held by the Hon'ble Supreme Court, during 'investigation', the power under Sec. 451 CrPC cannot be exercised by Criminal Courts. It is to be noted here that the power under Sec. 451 CrPC can be exercised only during inquiry and trial as stated in the case of Nevada Properties (P) Ltd. (supra). In the case of Sunderbhai Ambalal Desai (supra), also it has been held that Sec. 451 CrPC empowers the Court to pass appropriate order with regard to property for proper custody, pending conclusion of the inquiry or trial. In the case of Sunderbhai Ambalal Desai (supra), also it has been held that Sec. 451 CrPC empowers the Court to pass appropriate order with regard to property for proper custody, pending conclusion of the inquiry or trial. Therefore, it would not come into aid of the learned counsel for the respondent, though she has relied upon it heavily. 17. In view of above settled proposition of law, the impugned judgment and order passed by the learned Sessions Judge, Hailakandi seems to be not in conformity with the law, so laid down by the Hon'ble Supreme Court. A co-ordinate Bench of this Court also, in Crl. Revision Petition No.16/2022, vide order dtd. 29/4/2022 has held that "investigation is different from that of inquiry" and as no charge sheet in the case has been submitted before the learned Court below, where in custody of the vehicle is being sought for, releasing of the same to the petitioner is not maintainable in law and is pre-mature and further it is held that the petitioner will be at liberty to file a fresh petition seeking custody of the seized vehicle after filing of the charge sheet. 18. In view of the doctrine of binding precedent, this Court is not entitled to take a different view and this has rightly been pointed out by Mr. P.N. Goswami, learned Addl. Advocate General, Assam and the case law of Official Liquidator (supra) also bolstered his submission. 19. In view of the above discussion and finding, this Court is of the considered opinion that the impugned judgment and order dtd. 23/5/2022, passed by the learned Sessions Judge, Hailakandi in Crl. Revision No.38/2022 failed to withstand the test of propriety and correctness and accordingly the same stands set aside. 20. Since the seized areca nuts are subject to speedy and natural decay and since it was seized in the month of April, 2022 and several months have already been elapsed, and the investigation is yet to be completed, this Court is of the view that balance of equity can be maintained if the seized areca nuts are put to auction and the sale proceeds thereof be deposited in the Government treasury and subject to outcome of the criminal case, the same may be disposed of. 21. 21. Accordingly it is provided that the petitioners shall put the 530 bags of seized areca nuts in auction by following proper procedure and giving wide publicity, at least in two newspapers: one is local and another one is national newspaper, widely circulated in the respective area and the sale proceed thereafter shall be deposited in the Government treasury and subject to outcome of the Criminal Case, the same shall be disposed of. 22. In terms of the above, this Criminal Petition stands allowed.