Gauhati High Court
M/S R L Traders vs The State Of Assam And 3 Ors on 10 May, 2022
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GAHC010058662022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./269/2022
M/S R L TRADERS
REP. BY SHRI SHANKAR NISHAD
NEAR MAYUR STEEL, DAMUDAR PATH, NORTH JALUKBARI, GUWAHATI-
781014
MOB. NO. 7578079008
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE CHIEF SECRETARY, BLOCK-C, 3RD FLOOR, ASSAM
SACHIVALAYA, DISPUR, GUWAHATI-781006
2:SUPERINTENDENT OF POLICE
CHAPAGURI ROAD
NEW COLONY
MAHABIRSTAN
BONGAIGAON
ASSAM
-783380
3:OFFICER-IN-CHARGE
BONGAIGAON POLICE STATION
BONGAIGAON
ASSAM-783380
4:INVESTIGATING OFFICER
BONGAIGAON POLICE STATION
BONGAIGAON
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ASSAM-78338
Advocate for the Petitioner : MR N DASGUPTA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
10.05.2022
This is an application under Section 482 of the Cr.P.C. preferred in connection
with an order dated 22.12.2021 passed by this Court in Criminal Revision Petition No.
291/2021.
By the said order, this Court had directed the Investigating Officer of
Bongaigaon P.S. to draw a fresh sample of the seized Burmese Betel Nut in presence
of the petitioner and send for a chemical analysis.
It is the case of the petitioner that the sample was accordingly drawn and
though the test was conducted, the report was not made available to the petitioner.
The petitioner however, came to learn that the test report was not negative and even
otherwise the articles in question had many uses other than as a food item.
Before coming to the issue involved, the facts may be narrated in brief.
On 23.05.2021, the Bongaigaon Police had seized a truck bearing Registration
No. AS-01-LC-1276 carrying 223 bags of Burmese Betel Nuts and alleging irregularities
and illegalities, an F.I.R. was lodged on 25.05.2021 leading to registration of
Bongaigaon P.S. Case No.460/2021. It is the case of the petitioner that there was no
illegality in the said transportation and carriage, the petitioner accordingly submitted
an application under Section 451 of the Cr.P.C. for zimma before the learned Sessions
Judge, Bongaigaon, which however was denied on 26.08.2021.
The aforesaid order dated 26.08.2021 was however the subject matter of
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challenge before the learned Sessions Judge in Criminal Revision Petition 10/2021 in
which a judgment dated 30.10.2021 has been passed upholding the judgment of the
learned Chief Judicial Magistrate, Bongaigaon.
Thereafter, as has been stated earlier, a Revision Petition was preferred in this
Court being Criminal Revision Petition No. 291/2021 in which the direction was given
to the I.O. for sending the samples for a fresh chemical analysis whereafter the matter
has vested without any development and therefore the present application was filed.
I have heard Ms. P. Sikdar, learned counsel for the petitioner whereas the State-
respondents are represented by Shri P.N. Goswami, learned Addl. Advocate General,
Assam.
Ms. Sikdar, learned counsel for the petitioner submits that in view of the test
report whose result is not negative and also the fact that under a new SOP, betel nut
could be used for purposes other than as a food item, the impugned orders may be
interfered with and zimma be accordingly granted to the petitioner.
On the other hand, Shri Goswami, the learned Addl. Advocate General, Assam
submits that the orders which are the subject matter of challenge arise from an
application for zimma made under Section 451 of the Cr.P.C. which itself is a wrong
provision of law. He submits that the provision of Section 451 of the Cr.P.C. is to be
invoked only at the time of enquiry or trial and not at the stage of investigation and
admittedly, in the instant case, the investigation is yet to be over.
The learned Addl. Advocate General, Assam, however fairly submits that under
Chapter XXXIV of the Cr.P.C., there are other provisions which could have been taken
into recourse for dealing the situation of this nature.
This Court has given its anxious considerations to the submission made by the
parties.
Though from a bare reading it appears that the powers under Section 451 of
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the Cr.P.C. are to be exercised only at the time of enquiry or trial and not during the
time of investigation, the learned State Counsel has also fairly referred to the other
provisions of the Chapter XXXIV by which powers can be invoked by the Trial Court
even at the time of investigation to ensure that minimum loss is caused to either of
the parties. In the instant case, it appears that the seizure was done on 22.12.2022
and the materials are still lying in the custody of the State and till date it is submitted
that the goods in question being perishable in nature, there is decrease in the value.
At this stage, both the learned counsel, however refer to a new SOP by which
other uses for the articles in question have also been permitted.
In that view of the matter and without going into the rival contention, this Court
is of the opinion that pending investigation and Trial, an endeavour should be made so
that the loss suffered by either of the parties can be minimized.
In that view of the matter, this Court directs that the seized goods in question,
namely, Burmese Betel Nuts be put to auction by the Government strictly as per
procedure laid down. The State however is to ensure that proper publicity is given
before such auction giving atleast 15 days time so that a fair auction can be held in
which maximum price can be fetched.
It is needless to say that the sale proceeds of the auction is to be deposited in
the Court of the learned Chief Judicial Magistrate, Bongaigaon and would be subject to
the outcome of the Bongaigaon P.S. Case No. 460/2021.
The petition is accordingly disposed of.
JUDGE
Comparing Assistant
