Page No.# 1/3 vs Sahidul Alom Laskar
2022 Latest Caselaw 1364 Gua

                                                                          Page No.# 1/3

GAHC010067912022




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

                                 Case No. : Crl.Pet./358/2022

              THE STATE OF ASSAM AND ANR
              REP. BY THE PP, ASSAM

              2: TH. CHINGLEN SINGH
               SON OF LATE NINGTHOU SINGHA
               R/O VILL- THANGJAM LEIKAI
               P.S. SONAI DIST. CACHAR
               PIN-788119
              ASSAM AND PRESENTLY SERVING AS SUB-INSPECTOR
              ASSAM POLICE AND INVESTIGATING OFFICER IN LALA P.S. CASE NO.
              849/2021 UNDER SECTIONS 379/411 OF THE INDIAN PENAL CODE

              VERSUS

              SAHIDUL ALOM LASKAR
              SON OF HAZI GULEY AHMED
              LASKAR, R/O VILL- SAHABAD PART-I,
              P.O. SAHABAD, P.S. LALA, DIST. HAILAKANDI, ASSAM

Advocate for the Petitioner   : MR. P N GOSWAMI

Advocate for the Respondent :


                                     BEFORE
                    HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


                                          ORDER

26.04.2022.

By way of this petition under Section 482 of the CrPC, the petitioners have sought for Page No.# 2/3

quashing and setting aside the judgment and order dated 07.03.2022, passed by the learned Sessions Judge, Hailakandi, in Criminal Revision No.18/2022, arising out of the order dated 14.01.2022, passed by the learned JMFC, Hailakandi, in Lala P.S. Case No.849/2021, under Section 379/411 of the IPC.

Heard the submission of learned counsel for the petitioners.

It is contended by the learned counsel for the petitioners that, pending investigation of the matter, the learned trial Court has allowed the zimma prayer of the private respondent, without waiting for the report of the Food Analyst, Govt. of Assam, even though the prayer was made to submit such report. The learned Revisional Court has also upheld the order without considering the entirety of the matter, which has crept into an illegality.

Reliance has been placed upon the decision of the Hon'ble Apex Court in the case of the Nevada Properties Pvt. Limited vs. State of Maharashtra, wherein it has been held that Section 451 CrPC empowers the Criminal Court to pass an order of proper custody of any property, pending trial or inquiry, as defined under Section 2(g) CrPC and it does not empower the Court to decide the custody during the course of investigation, without hearing the concerned persons.

The ratio of the said decision is followed by the Hon'ble Delhi High Court in (2019) 259 DLT 601 (Directorate of Revenue Intelligence vs. PRK Diamonds Pvt. Ltd. and another), wherein it has been held that for applicability of Section 451 CrPC, an inquiry or trial is essentially to be progressed.

Similarly the Meghalaya High Court, in Crl. Petition No.1/2022 (Directorate of Revenue Intelligence, Shillong Regional Unit vs. Ajay Babu Manda) with Crl. Petition No.2/2022 (Directorate of Revenue Intelligence, Shillong Regional Unit vs. Guttikonda Sridhar), has held that the provision under Section 451 CrPC, empowers the Criminal Court to order for custody of property, pending trial in certain cases and without such property was produced before the Court, an appropriate order may be passed for custody of such property.

The inquiry in terms of Section 2(g) CrPC is defined as "every inquiry, other than a trial, conducted under this Code by a Magistrate or Court".

Referring to the decision of the Apex Court in Hardeep Singh vs. State of Punjab and others, Page No.# 3/3

reported in AIR 2014 SC 1400, it has been held that inquiry is not an enquiry relating to investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the Court, on filing of the charge sheet.

In view of the above, it is submitted that the learned Magistrate has acted beyond jurisdiction while passing the order and approval of the aforesaid order by the revisional Court, is also bad in law, without obtaining the report from the Food Analyst.

It is submitted that after passing the order, the report of the Food Analyst has been received, which disclosed that the article seized were mostly damaged with fungal growth and not suitable for use of human consumption and as such, release of the seized article in favour of the respondent cannot be considered.

Considered the submission so made before this Court and gone through the documents annexed including the impugned orders, which supports the contention of the petitioners that without obtaining the report from the Food Analyst, the learned trial Court has released the seized supari in favour of the respondent, during the couse of investigation.

Section 2(g) and 2(h) of the CrPC described inquiry and investigation as follows:-

(g) " inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

(h) " investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf".

Issue notice to the respondent, returnable by four weeks.

Call for the scan copy of the case diary of Lala P.S. Case No.849/2021, along with the report of the Food Analyst, Govt. of Assam and considering all entirety, the impugned orders passed by the learned trial Court as well as by the revisional Court is hereby stayed, until further order.

JUDGE

Comparing Assistant