Gauhati High Court
Dipak Kr Paul vs The State Of Assam And Anr on 7 October, 2021
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GAHC010141872021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./485/2021
DIPAK KR PAUL
SON OF LATE SURENDRA PAUL,
PERMANENT R/O GURIAHAT, P.S. KOTWALI, DIST. COOCHBEHER, WEST
BENGAL AND TEMPORARY, RESIDENT - C/O RATAN RAJAK,
WARD NO. 6,
DHUBRI TOWN,
P.S. AND DIST. DHUBRI, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:ASI PAUL LALHLIMSANG
SIMULTAPU OUT POST
S/O LATE BIJAY CH.NATH
ASSISTANT SUB-INSPECTOR OF SIMULTAPU OUTPOST
P.S. GOSSAIGAON
DIST. KOKRAJHAR
ASSAM
PIN-78336
Advocate for the Petitioner : MR. M KHAN
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
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ORDER
Date : 07-10-2021
Heard Mr. M Khan, learned counsel for the petitioner and Mr. D Das, learned Addl. PP,
Assam.
This application under section 482 Cr.P.C., is preferred by Shri Dipak Kr. Paul, S/o late
Surendra Paul, challenging the legality, propriety and correctness of order dated
07.08.2021 passed by the learned Sessions Judge in Criminal Revision Petition
No.15/2021.
It is to be mentioned here that vide the impugned judgment and order the learned
Sessions Judge has set aside the order dated 24.06.2021 passed by the learned SDJM
(M) Gossaigaon, in Gossaigaon PS Case No.325/2021 by which the learned SDJM (M)
Gossaigaon has passed order for releasing the alleged truck bearing registration
No.AS-17B-2396 to the respondent after necessary verification and submitting a
bond.
Mr. Khan, learned counsel for the petitioner has submitted that the judgment and
order passed by the learned Sessions Judge suffers from manifest illegality. It is
further submitted that the ld. Sessions judge has set aside the order of the ld. SDJM
(M) Gosaigaon solely on the basis of the Notification No. FSC.12/2013/11, dated
12.01.2021, issued under Regulation 2.3.4 of the Food Safely and Standards
(Prohibition and Restriction on Sales) Regulations, 2011, read with section 26 of Food
Safety & Standard Act 2006. But, the ld. Counsel for the petitioner submitted that
such restrictions are applicable in the state of Assam only. The articles were
purchased in West Bengal and transported to Agartala, Tripura through Assam. The
articles were not meant for Assam. Moreover, while issuing the Notification exceeds
the Statutes where the word transportation is not there. And this submission is not
disputed by the ld. Addl. P.P. for the State. Mr. Khan further submits that the vehicles
No. AS-17 B 1251, was seized on 14.06.2021 on the basis of one FIR lodged by ASI
Manojit Nath, ASI, Simalutapu Out Post under Gosaigaon, for allegedly carrying
suspected Tobaco leaves. Since then the same are lying in the campus of Police
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Station. Mr. Khan further submits that the petitioner is the registered owner of the
vehicle and the same is lying in the P.S. Campus for more than 15 days and in view of
the judgment of the Hon'ble Supreme Court in Sunderbhai Ambala Vs. State of
Gujrat in Special Leave Petition (Crl) 2745 of 2002, the seized Truck has to be
released in custody of the petitioner by set aside the impugned judgment and order
dated 07.08.2021, of the ld. Sessions Judge, Kokrajhar.
Mr. D Das, learned Addl. PP, Assam has submitted that he has no objection if this
Court, rely on the decision of the Hon'ble Supreme court in Sunderbhai Ambala
Vs. State of Gujrat (Supra).
Having heard the submission of the learned counsel for both the sides and having
carefully going through the record and also the notification issued by the Government
of Assam dated 12.01.2021 we find sufficient force in the submission of Mr. Khan.
Prima-facie the Notification exceeds the Statute. And as such the impugned judgment
and order of learned Sessions Judge, Kokrajhar is suffers from manifest illegality. The
vehicle was seized on 14.06.2021. Since then it is lying unattended in the P.S. campus
and exposing to the sun and rain and its value is diminishing day by day.
While dealing with the issue of releasing the seized vehicle, the Hon'ble Supreme
Court in Sunderbhai Ambala case (supra) has held that "In our view, the powers
under section 451 Cr.P.C., should be exercised expeditiously and judiciously. It would
serve various purposes, namely:
1. Owner of the article would not suffer because of its remaining
unused or by its misappropriation.
2. Court or the police would not be required to keep the article in safe
custody.
3. If the proper panchnama before handing over possession of article
is prepared, that can be used in evidence instead of its production
before the Court during the trial. If necessary, evidence could also be
recorded describing the nature of the property in detail: and
4. This jurisdiction of the Court to record evidence should be exercised
promptly so that there may not be further chance of tempering with the
articles.
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It is also observed that "In our view, whatever be the situation, it is of no use to keep
such seized vehicles at the police stations for a long period. It is for the Magistrate
to pass appropriate orders immediately by taking appropriate bond and guarantee as
well as security for return of the said vehicles, if required at any point of time. This
can be done pending hearing of applications for return of such vehicles."
Hon'ble Supreme Court again in the case of Ashok Kumar Vs. State of Bihar Vs.
Ors reported in (2001) 9 SCC 718 held that
"We do not think it necessary to keep the vehicle in the compound of the Court
indefinitely for a very long time till the final disposal of this case. It is more advisable
to entrust it to the registered owner on behalf of the Court under certain conditions.
We, therefore, direct the Court in whose custody the vehicle is presently kept to
release the same to the appellant on the following conditions:
1. He shall execute a bond in a sum of Rs.1,00,000/- (one lakh) with
two solvent sureties to the satisfaction of the Chief Judicial Magistrate,
Muzaffarpur,.
2. He must satisfy the Court that he is the registered owner of the
vehicle.
3. He shall not allow his son Deepak Singh to use the vehicle until
disposal of the prosecution case against him. He shall fine an
undertaking in Court to that effect.
4. He shall produce the vehicle either before the Court or before such
other authorities as the Court may direct.
5. He will not transfer the vehicle to anybody else nor possession of
the same be parted with until disposal of the case."
Having examined the impugned judgment and order on the touchstone of the ratio
laid down by the Hon'ble Supreme Court and the aforementioned case, this court is of
the considered opinion that the impugned judgment and order passed by the learned
Sessions Judge, Kokrajhar in Criminal Revision Petition No.14/2021 failed to withstand
the test of legality, propriety and correctness.
Accordingly, the impugned judgment and order dated 07.08.2021 stands set-aside.
It is provided that the seized vehicle shall be released in the custody of the petitioner
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on the same terms and condition imposed by the ld. SDJM(M) Gossaigaon, vide order
dated 24.06.2021. The petition stands disposed of.
JUDGE
Comparing Assistant
