M/S North East Explo Chemicals vs The State Of Assam
2022 Latest Caselaw 1327 Gua

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GAHC010058702021




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

                              Case No. : Crl.Rev.P./109/2021

            M/S NORTH EAST EXPLO CHEMICALS
            A PARTNERSHIP FIRM HAVING ITS OFFICE AT UMSKUN, PAHAMRIOH, RI-
            BHOI- DISTRICT, MEGHALAYA AND BRANCH OFFICE AT PODDAR
            COMPLEX, NARENGI, FOREST GATE, GUWAHATI- 781026, ASSAM, REP. BY
            ONE OF ITS PARTNER SMT. KANCHAN PODDAR, A RESIDENT OF PODDAR
            COMPLEX, NARENGI, FOREST GATE, GUWAHATI- 781026, ASSAM.



            VERSUS

            THE STATE OF ASSAM
            REP. BY LD. PUBLIC PROSECUTOR, ASSAM.



Advocate for the Petitioner   : MR K AGARWAL

Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

Date of hearing : 10.02.2022 Date of verdict : 21.04.2022

VERDICT (CAV)

Legality, propriety and correctness of order dated 21.01.2021, passed by the learned Additional Chief Judicial Magistrate, Kamrup (M) is challenged in this revision petition by the petitioner, M/s North East Explo chemicals, a partnership firm, having its office at Umskun, Pahamrioh, Ri-Bhoi-District, Meghalaya, having its branch office at Poddar complex, Narangi, Forest Gate, Guwahati, represented by its partner Smt Kanchan Poddar, of Narangi.

2. The factual background leading to filing of the present petition is briefly stated as under:-

"Acting on a tip off about keeping stolen timbers in the office premises of Shri Ajay Poddar, atlas COPCO situated at Narangi Forest Gate, Sub Inspector (S.I.) Shri Bipul Chandra Kalita of Noonmati Police Station, on 27.07.2018 at about 4.00 PM, rushed to the office premises of Shri Ajay Poddar and found one Truck No. AS-01-BC-9785 loaded with teak timbers and also found the driver has already fled away from the campus, and the security personnel available there could not produce any documents in respect of the said vehicle. The S.I. also found another vehicle bearing registration No. AS-11-AC-

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7886, loaded with teak timbers and on asking the security personal reported that the driver of the vehicle fled away. Accordingly the SI had seized both the Truck along with the timbers and taken to the Police Station. On 28.07.2018 both the vehicles were examined by the forest official who have identified the timbers as Teak Sawn Timber, total 265 pieces approximately 130 CFT found in the explosive Van No. AS-01-BC-9785, and 370 pieces approximately 150 CFT Sawn Timbers from the explosive Van No. AS-11-AC-7886, and it was revealed during the investigation that Shri Ajay Poddar along with explosive van drivers have stolen the teak timbers from Meghalaya's side and illegally running their business and committed cheating on Govt. revenue. Thereafter SI Bipul Chandra Kalita has lodged one formal FIR on 28.07.2018, upon which Noomati P.S Case No. 438/2018, under Section 379/420 of the Indian Penal Code read with Section 41 of Assam Forest Regulation Act, 1891 has been registered and investigated upon. The investigation culminated in submission of charge sheet against accused Shri Ajay Poddar and Shri Sanjay Agarwal under Section 41 of Assam Forest Regulation, 1891 before the learned Chief Judicial Magistrate, Kamrup for trial. Thereafter, the petitioner has filed a petition before the court of learned Addl. Chief Judicial Magistrate, Kamrup seeking custody of the seized timbers. Then hearing both the parties the learned Addl. C.J.M has rejected the petition. Being highly aggrieved by the said rejection order the petitioner has approached this court by filing the present petition.

3. I have heard Mr. K. Agarwal, learned Senior Counsel, appearing on behalf of the petitioner and also heard Mr. B. Sharma, learned Additional Public Page No.# 4/7

prosecutor for the State of Assam.

4. Mr. Agarwal, learned Senior Counsel submits that the petitioner is the partner of M/s North East Explo Chemicals, a Partnership Firm, having its office at Umskun Pahamrioh of Ri-Bhoi District, Meghalaya and that the petitioner is the lawful owner of 260 piece approximately 130 CFT Teak Sawn Timbers which were seized from the explosive Van bearing registration No. AS-01-BC-9785 and 370 pieces, approximately 150 CFT Teak Sawn Timbers, seized from explosive van bearing registration No. AS-11-AC-7886. Mr. Agarwal submits that and the timbers were swan from the trees fallen by miscreants in the lease land of the petitioner comprising of 123 Acres, which the petitioner has taken from one Shri Swel Khongkai, pursuant to sanction of the Joint Secretary, Revenue and Disaster Management Department, Government of Meghalaya and the same were cut with permission from the Range Forest Officer, Nangpoh of Meghalaya. Mr. Agarwal, further submits that in view of judgment of Hon'ble Supreme Court in the Case of Sunderbhai Ambalal Desai-Vs- State of Gujarat reported in (2002) 10 SCC 83, the seized articles are not required to be kept in the police campus and can be released after taking proper security and after taking photographs and a bond that such articles would be produced if required at the time trial. It is further submitted that the seized teak timbers were lying unattended in the Police Station campus and till the end of trial, the same would be damaged completely and as such it can be handed over to the petitioner on furnishing a bond and the petitioner will produce the same as and when required. Mr. Agarwal, further submits that in the light of the observation of the Supreme Court in the case of Sunderbhai (supra) the impugned order of reject of custody dated 21.01.2021, passed by the learned Additional Chief Judicial Magistrate Kamrup (M) suffers from patent illegality and therefore, it is Page No.# 5/7

contended to set it aside and to released the seized timbers in the custody of the petitioner.

5. On the other hand, Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent, has opposed the petition and submitted that the seized timbers are not lying in the Police campus and rather it was handed over Forest Department by the investigating Officer for safe custody as such the apprehension of the petitioner that the same would be damaged having for being lying either in the Police Station Campus is unfounded and therefore, it is contended to dismiss the petition.

6. 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 the impugned order dated 21.01.2022, passed by the learned Additional Chief Judicial Magistrate, Kamrup (M).

7. It is to be noted here that while rejecting the petition seeking custody of the seized timbers the learned Court below has observed as under:-

"Perusal of record revels that the instant Cases under Section 379/420 Indian Penal Code read with section 41 Assam Forest Regulation, Act, 1891, wherein, Shri Ajay Poddar, one of the partner of the petitioners firm- North East Explosive Chemical is one of the accused. Perusal of the order of the Range Forest Officer Nangpoh (T) Range, revels that the same order was passed only on 25.02.2019, allowing one Shri Swel Khongkai to lift 30 Nos. of wind fallen teak tress from the lease land of the petitioner. But in the instant Case was registered on 28.07.2018, and the timbers in this Case were seized on 27.07.2018, which is about 5 (five) months before the date of order of Range Forest Officer. On the basis of which the petitioner claim ownership to the seized timbers. Since the timbers were seized while in transportation, without valid documents on 28.07.2018, the order dated 25.02.2019, submitted by the Page No.# 6/7

petitioner cannot be said to be relevant in the respect of the seized timbers. The petitioner failed to show any valid documents showing ownership of the seized timbers. Since the petitioner could not show any document to prove prima facie ownership of the seized timbers, the zimma petition is rejected."

8. Thus, it appears that the learned court below has rejected the petition on the ground that the order of the Range Forest Officer Nongpoh (T) Range, was passed only on 25.02.2019, allowing one Shri Swel Khongkai to lift 30 Nos. of wind fallen teak tress from the lease land of the petitioner, whereas, the timbers were seized much earlier on 28.07.2018, for failing to show valid document. As such, the order issued later by the Range Officer, Nonghpo cannot validate the claim of the petitioner in respect of timbers seized on 28.07.2018. Had it been issued prior to the seizure of timbers, then the matter would have been quite different. Viewed from that stand point, it cannot be said that the impugned order of the learned court below suffers from any illegality or infirmity requiring any interference of this Court. The order of the Range Forest Officer, dated 25.02.2019, reveals that one Shri Swel Khongkai is allowed to lift 30 nos. of wind fallen teak trees of the lease land of the petitioner, but in the present petition, it is stated that the tress were fallen by miscreant/thieves in the land of the petitioner. Thus, the plea so taken by the petitioner in her petition is contradictory with the order dated 25.02.2019, which also raised suspicion about the genuineness of the same.

9. Further, it appears from the letter dated 11.11.2020, of the O/C Noomati Police Station that the seized timbers were already handed over to the Forest Department and from the letter dated 23.11.2020 of the Forest Officer Narangi Forest Beat confirmed that the seized timbers were handed over to Page No.# 7/7

them for safe custody.

10. Since the seized timbers have already been handed over to the Forest Department for the Safe custody the question of being damaged for keeping the same in Police Station campus does not arise and as such the Case law, referred by Sunderbhai Ambalal Desai (Supra) could not come into aid of the petitioner.

11. In the result I find no merit in this petition and accordingly, the same stands dismissed. However, the learned Court below is requested to make an endeavor to dispose of the case at an early date. The parties have to bear their own cost.

JUDGE

Comparing Assistant