Shyamal Mitra vs The State Of Assam And Anr
2021 Latest Caselaw 1727 Gua

                                                                       Page No.# 1/9

GAHC010130742020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.Pet./478/2020

            SHYAMAL MITRA
            S/O LT BASAN MITRA, R/O VILL-JAGRATAPARA, KHARIJA PAIKAN,
            KRISHNAI GURIA PT-I, KRISHNAI, GOALPARA, MATIA, P.S.-MATIA, DIST-
            GOALPARA, ASSAM, PIN-783126



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:M/S BIKANER ASSAM ROADLINES INDIA LTD.
             REPRESENTED BY ITS MANAGER
             SHYAM SHANKAR SHUKLA
             R/O C/O M/S BIKANER ASSAM ROADLINES INDIA LIMITED
             H.B. ROAD
             FANCY BAZAR
             P.S.-PANBAZAR
             GUWAHATI-781001
             DIST-KAMRUP(M)
            ASSA

Advocate for the Petitioner   : MR F KHAN

Advocate for the Respondent : PP, ASSAM

Page No.# 2/9

BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN

JUDGEMENT AND ORDER (ORAL) Date of Hearing : 29.07.2021

Date of Judgment : 29.07.2021

Heard Mr F Khan, learned counsel for the petitioner and Mr P K Roychoudhury, learned

counsel appearing for and on behalf of private respondent No. 2. Also heard Mr M P

Goswami, learned Additional Public Prosecutor for the State of Assam.

2. The brief facts that can be recapitulated is that one Shyam Shankar Shukla, Manager

of Bikaner Assam Roadlines India Ltd., sent dried areca nut (supari) in a truck bearing

Registration No. AP39U6219, on 13.06.2020, from their warehouse situated at Brahmaputra

Industrial Park, Gauripur. The driver of the vehicle, namely, Badal Kumar Yadav and the

helper were in not their contact after such transportation and their mobile phones were

switched off. On the facts, an FIR was lodged on 16.06.2020, which was registered as

Changsari PS Case No. 325/2020, under Sections 407 IPC and later on, as the driver and

handyman were found dead, Section 302 IPC was added. During the course of investigation

on 13.07.2020, Police visited the godown of the present petitioner, located at his residence,

who runs a partnership firm, namely, M/s Mitra Brothers and seized 2 Nos. of Bolero Pick-Up

Van, bearing No. AS18C9029 and No. AS25CC7192, along with 60 bags of dried areca nut

(supari) on each vehicle (total 354 bags).

Page No.# 3/9

3. The petitioner, herein, filed a zimma petition before the learned trial Court on

28.07.2020, praying for custody of the seized bags of dried areca nut (supari) and as against

the prayer of zimma, the respondent No. 2/informant filed an objection petition and on the

basis of the said, the learned trial Court, vide order dated 03.08.2020, directed the IO to

thoroughly investigate the matter and submit about the ownership details and particulars of

seized articles, fixing 14.08.2020, for the report. On the next date so fixed, the petitioner

sought for supply of copies of the objection that was filed by the respondent No. 2 and the

learned trial Court allowed the prayer and the petitioner was also allowed to file the reply

against the objection petition filed by the respondent No. 2, on 17.08.2020, fixing the hearing

on the matter on 21.08.2020. Accordingly, the petitioner filed his reply to the objection

petition filed by the respondent No. 2 on 21.08.2020, but the respondent No. 2 again filed a

second objection on 21.08.2020, against the zimma petition filed by the petitioner dated

28.07.2020. Raising the contention that the second and subsequent objection is not

maintainable and which has prejudiced the petitioner, the petitioner, herein, filed a petition

before the learned trial Court and the learned trial Court after hearing the submission of

learned counsel for both the parties has rejected the prayer of the petitioner by impugned

order dated 17.09.2020 by holding that the second objection dated 21.08.2020 is

maintainable and cannot be rejected, merely because, it was subsequently filed. It was held

by the Court that the main matter in dispute is zimma of seized areca nuts (supari) contained

in 354 bags and said petition cannot be outrightly rejected, because already a first objection

petition has already been filed by the same person. Learned Court has directed the learned

counsel for the petitioner to advance his submission at the time of hearing, if any, on his

reply and objection against the said petition and the matter shall be decided accordingly.

Page No.# 4/9

Simultaneously, the Court has also called for a report from the IO as directed on earlier

occasions and the matter was listed for hearing on the zimma and objection.

4. Challenging the impugned order dated 17.09.2020, the present petition has been

preferred by the petitioner under Section 482 CrPC, for quashing the aforesaid order on the

contention that second objection filed by the respondent No. 2 against the zimma petition

filed by the petitioner is not maintainable and that the learned trial Court has not taken on

record the objection petition No. 995/2020, dated 21.09.2020, filed by the petitioner against

the Zimma Petition filed by respondent No. 2, dated 21.08.2020.

5. The respondent No. 2, herein, has filed their affidavit-in-opposition, contending that

there is no illegality in the order passed by the learned trial Court, while allowing the second

objection petition. So far the second objection filed by the respondent No.2, it has been

contended that the initial objection that was filed on 03.08.2020, against the zimma petition

filed by the petitioner was a formal objection petition as still then, respondent did not receive

the copy of zimma petition filed by the petitioner and whereas the Court already called for

report from the IO on the zimma petition filed by the petitioner. It is stated that on obtaining

the certified copy of zimma petition, they filed a detailed objection against the zimma petition

filed by the petitioner on 21.08.2020, by annexing all the text invoice and payment ledgers of

consignor, Shanti Lal Baid, who purchased the seized areca nut (supari) in local market of

Assam from various traders and other relevant documents and as such, there cannot be

question of maintainability of second objection petition and same is maintainable in law and Page No.# 5/9

there exists no bar in filing second or subsequent objection to any petition and hence, the

present petition is devoid of merit. Various other aspects have also been revealed in the

affidavit, pertaining to the ownership of the areca nut (supari) and other various documents

of the proposed consignor and consignee, but I refrain from narrating all details as same are

not relevant for the purpose of the matter. The limited question that has been raised in the

present petition that the respondent No. 2 cannot file second/subsequent objection petition,

as against the zimma petition filed by the petitioner.

6. The petitioner also filed affidavit-in-reply against the affidavit-in-opposition filed by

respondent No. 2, confronting the averment made in their affidavit that no confessional

statement of the accused persons have been recorded in any Court and any statement

recorded by Police under Section 161 CrPC is to be tested in trial and only under statement of

accused person, it cannot be said that the seized 354 bags of dried areca nut (supari) are

stolen goods and it is stated that stolen bags and seized bags are not the same and different.

The ownership of the respondent No. 2 is also very much challenged by the petitioner. The

bold objection raised by the petitioner is that the second objection filed by the respondent

No. 2 without taking permission of the Court is not maintainable and it is against judicial

propriety, while the first objection is still pending. For the sake of brevity, all details of the

affidavit-in-reply is not discussed, which is not necessary.

7. I have heard the submission of learned counsel for both the parties and also the

impugned order and the relevant documents annexed, including the FIR, seizure list and

other documents.

8. Undisputedly, the respondent No. 2 is the informant in the present case, who has Page No.# 6/9

despatched 354 bags of areca nut (supari) on a truck and subsequent thereto, almost same

amount of areca nut (supari) was recovered and seized from the premises of the petitioner. It

is also an admitted position that both the parties have claimed that the seized articles belong

to them. The petitioner, herein, preferred the zimma petition before the Court after few days

of its seizure and the respondent knowing about the seizure and the zimma petition preferred

by the petitioner, also filed objection against the zimma petition. It is the contention of the

respondent that as on the day of filing objection, he did not receive the copy of zimma

petition preferred by the petitioner, so, he filed the second objection after receipt of the

certified copy of zimma petition, along with all the relevant documents. It cannot be lost sight

that such a detailed objection with relevant documents have been filed before the Court to

adjudicate the matter of zimma. Although the respondent No. 2 has filed the same as

"second objection", but the Court can regard the same as further reply/objection to the

zimma petition preferred by the petitioner. Only because the word "second objection" has

been used by the respondent No. 2, the same cannot be discarded by the Court, because the

respondent No. 2 has the locus to challenge the matter being the informant of the case and

obviously, he will possess relevant documents as regards the seized article. The Court is

already in seisin of the matter and has to appreciate each and every claim and counter claim

preferred by both the parties in the light of relevant documents as well as on the Police

Report. The learned Court will obviously examine the authenticity of the respective claim

through IO concerned for which the Court has already called for a Police Report. Amidst all

these process of adjudication, the Court is the best authority to decide the necessity of such

documents and it is not relevant as to whether one can file subsequent objection and only

concern to the Court to adjudicate the matter of seizure as to who will be entitled to the Page No.# 7/9

seized article?

9. It is to be noted that in the impugned order, the learned Court has taken note of

submissions of both the parties and relevant portion of the order dated 17.09.2020 is

reproduced below:-

"17.09.2020.........xxx xxx xxx

As the second objection petition No. 997 dated 21.08.2020 is also a part of

entire zimma hearing and arose out of the original first zimma petition, hence, in my

considered opinion, petition No. 997 dated 21.08.2020, is very much maintainable and

cannot be merely rejected because it was subsequently filed. The main matter in

dispute is zimma of seized areca nut (supari) contained 354 bags and said petition

cannot be outrightly rejected because already a first objection petition filed by the

petitioner, Shyam Sunder has been filed.

The learned Advocate for the other side, i.e., for the petitioner, Shyamal Mitra

shall advance his hearing, if any, on his reply and objection against petition No. 997

dated 21.08.2020 and thereafter, matter shall be decided.

All petitions be kept properly and serially tagged properly with the case record.

Xxx xxx xxx

Report from the IO as sought on 10.09.2020, based on petition No. 1016 dated

10.09.2020, filed by the petitioner, Shyamal Mitra, has not been received. IO is

directed to submit report as per order dated 10.09.2020, without fail on or before

22.09.2020.

                                                                                     Page No.# 8/9

              xxx             xxx        xxx

Fixing 22.09.2020, for hearing on zimma and objection, if any."

10. From the above order, it reveals that the Court is conscious about the existence of first

and second objection preferred by the respondent No. 2, as against the zimma petition, filed

by the petitioner and the Court has given the liberty to the petitioner's side to submit reply

and objection on the matter of zimma. As the entire matter on the zimma along with

objection, reply to the objection etc. is to be heard by the learned trial Court with a liberty to

both the parties, it can no way cause prejudice to the petitioner as apprehended. This Court

finds no any irregularities in the impugned order, which may call for any interference by

invoking extraordinary power under Section 482 CrPC, as has been sought for by the learned

counsel for the petitioner.

11. The inherent power under Section 482 CrPC envisages three circumstances under

which the inherent jurisdiction may be exercised, namely, i) to give effect to an order under

the Court, ii) to prevent abuse of process of Court and iii) to otherwise secure the ends of

justice. Such a jurisdiction although wide, has to be exercised sparingly and in exceptional

circumstances, where it is brought to the notice of the Court that the order under the

challenge would result in serious miscarriage of justice or abuse of process of Court and such

an inherent power cannot be invoked in a routine manner.

12. There being no any merit in the present petition, same is disposed of with a direction Page No.# 9/9

to the Court, to take the matter of zimma at the earliest and to consider each and every

petition/objection filed by both the parties in chronological way and to take into account the

petition No. 995/2020, filed by the petitioner, that was filed against the second objection

dated 21.08.2020 and to decide the matter in accordance with law. The interim order stands

vacated.

JUDGE

Comparing Assistant