Gauhati High Court
Anowar Hussain vs The State Of Assam And Anr on 3 May, 2023
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GAHC010059692023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./254/2023
ANOWAR HUSSAIN
S/O TOMSER ALI
VILL- DOTURI
P.S. BIJNI
DIST. CHIRANG, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:ROFIQUL ISLAM
S.I. OF CHPAR P.S.
DIST. DHUBRI
ASSA
Advocate for the Petitioner : MR. A AHMED
Advocate for the Respondent : MR. P BORTHAKUR(ADDL.PP, ASSAM)
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
JUDGMENT
Date : 03-05-2023
1. Heard Mr. A. Ahmed, learned counsel for the petitioner and Mr. P. Borthakur, learned
Addl. P.P. for the State of Assam.
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2. The petitioner Anowar Hussain has filed an application under Section 482 read with
Section 401 Cr.PC and Article 227 of the Constitution of India challenging the order dated
22.02.2023 passed by the learned Judicial Magistrate, 1 st Class, Bilasipara whereby the
learned Court rejected the zimma of the petitioner relating to zimma of 400 bags of dry areca
nuts (28 tones) seized in connection with Chapor P.S. Case No. 234/2022 under Sections
120B/379/420/468/471/34 IPC.
3. The FIR unfolds that the S.I. Rofiqul Islam received a secret information on 25.12.2022.
He along with his staff proceeded towards the petrol pump situated at Dhirghat and found
the truck loaded with supari (betel nuts). The Registration No. of the truck was AS-19-
AC4459. The driver and the co-driver informed him that the betel nuts were loaded from a
godown at Goalpara Matia area and the truck was proceeding towards Falakata of Coch Bihar
but due to some mechanical defect, the truck was stopped near the petrol pump. The
challans and the E-way bills produced by the driver and the co-driver were from A.R.
Enterprise at Bijni under Chirang district. Thereafter on 26.12.2022, one requisition was sent
to the Assistant Commissioner of Taxes to determine the genuineness of the challan and E-
way bills but they were informed over phone that the E-way bills as well as the challans were
fake and taxes tantamounting to lacs of rupees were being evaded in the process.
4. The learned Addl. P.P. has raised serious objection stating that the IO has sent a report
that the District Agriculture Department, Dhubri has opined that suspected areca nuts does
not match with the product of this locality and the areca nuts have been collected from illegal
sources without proper documents and appears to be non-permitted species from Burma. The
IO has also submitted a report that GST Tax payment receipt amounting to Rs. 11,49,060/-
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was paid as penalty in the name of Vimal Das while Vimal Das was behind bars and it has
come as a surprise as to how tax of seized goods in custody of police can be paid by a person
who was still lodged in the jail and why was the driver paying the GST Tax instead of the
service provider or the owner of the truck. It is also submitted that the accused are not co-
operating with the investigation.
5. The petitioner had applied for zimma of the seized 400 bags of dry areca nuts which
are perishable in nature but vide order dated 23.02.2023 the petition was rejected as the
petitioner had failed to produce any documents regarding the purchase and procurement of
the seized areca nuts. However, the truck bearing Registration No. AS-19-AC4459 was
allowed to be handed over to the registered owner. The seized areca nuts are not fit for
human consumption. The articles seized by the police were duly purchased by the petitioner.
Annexure-4 series are the invoices of the procurement of the areca nuts by the petitioner.
Annexure-7 is the token receipt of payment of tax to the tune of Rs. 11,49,060/- as penalty
relating to vehicle bearing registration No. AS-19-AC4459.
6. The learned counsel for the petitioner has also filed additional-affidavit today. Through
the affidavit it is submitted that regarding seizure, disposal, zimma and other procedures
relating to areca nuts are mentioned in the SOP issued by the Additional Director General of
Police, CID, Assam, Ulubari, Guwahati (CID-XI/SOP/Betel Nut/2021/3571 dated 16.09.2021.
Even if the areca nuts are not fit for human consumption, there is no bar to allow zimma of
the areca nuts to the owner as per Clause-15 of the SOP which is as follows:
"It may happen that even if the seizures are unfit for human consumption there may
be an owner or a claimant who may submit a plea before the court that they would use such
betel nuts as raw material for manufacture of some non-edible products and that the same
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will not be used for human consumption. It that case Supdt. of Police should get the claim
verified and report to the court. If the claim is genuine, then the court should be requested
to impose strict conditions to ensure that the betel buts are used as per claim and not for
human consumption."
7. The learned counsel for the petitioner has also laid stress on the Annexure-A submitted
along with the additional-affidavit which clearly reflects that a report has been sent by the IO
that the areca nuts seized in connection with this case are suspected to be smuggled from
Burma and the report of the District Agricultural Department reflects that the areca nuts are
not legal products. It was also submitted through the report of the IO that as per record, the
seized areca nuts belong to A.R. Enterprise, C/o. Anowar Hussain, who is the present
petitioner. The Annexure-6 is dated 15.02.2023. Vide report dated 19.02.2023, the IO has
submitted that the IO will abide by any direction of this Court relating to the areca nuts
seized in connection with this case. The impugned order was passed on 22.02.2023. The
petition No. 5397/2023 was filed by the petitioner with prayer for zimma of the areca nuts.
The learned Judicial Magistrate, 1st Class has observed that -
"The IO has submitted that the areca nuts are required for further investigation to
find out and root out other smugglers involved in the case. The petitioner has prayed to
ascertain his ownership to the seized areca nuts. He has also failed to produce any
documents regarding purchase and procurement of the seized areca nuts."
8. In view of the above observations, the learned Judicial Magistrate, 1 st Class rejected
the petition No. 5397/2023.
9. Now the petitioner has appended the invoice dated 19.12.2022, 20.12.2022,
22.12.2022 and 24.12.2023 marked as Annexure-4 and the copy of the E-way bill marked as
Annexure-5. The Annexure-A appended to the additional-affidavit is the report of the IO
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which clearly reveals that the petitioner is the owner of the seized areca nuts.
10. I do not agree with the observation of the learned Magistrate that the areca nuts are
required to be retained to find out and root out other smugglers of areca nuts. In the instant
case the penalty has already been paid and Annexure-7 appended to the petition clearly
reveals payment of Rs. 11,49,060/- as penalty of the seized areca nuts.
11. Thereby, the impugned order dated 22.02.2023 relating only to rejection of the prayer
of zimma of the seized areca nuts to the custody of the petitioner is set aside. The petitioner
is at liberty to submit a petition before the jurisdictional Court with prayer for zimma of the
seized areca nuts with an undertaking that the seized areca nuts will not be used for human
consumption and the learned Magistrate may pass an order directing the SP to consider the
zimma of the seized areca nuts as per SOP for disposal of seized betel nuts (suprai) vide No.
(CID-XI/SOP/Betel Nut/2021/3571 dated 16.09.2021.
In terms of the above, this petition is disposed of.
Send back the Case Diary.
JUDGE
Comparing Assistant
