Hiran Ali vs The State Of Assam
2023 Latest Caselaw 1751 Gua

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GAHC010229042022




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

                               Case No. : Crl.Pet./1130/2022

            HIRAN ALI
            S/O- TURAB ALI, R/O- MILIJULI PATH, BORAGAON, OPP. EXCEL CARE
            HOSPITAL, P.O. GOTANAGAR, P.S. JALUKBARI, GHY- 781033



            VERSUS

            THE STATE OF ASSAM
            REP. BY P.P., ASSAM



Advocate for the Petitioner   : MS R R MUZIB

Advocate for the Respondent : MS. S H BORA(ADDL.PP, ASSAM)




                                  BEFORE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                         JUDGMENT

Date : 03-05-2023

1. Heard Mr. A. Chaudhury, learned counsel for the petitioner and Ms. S.H. Bora, learned

Addl. P.P. for the State of Assam.

2. The petitioner has approached this Court aggrieved by the order dated 13.10.2022 Page No.# 2/4

passed by the Court of the learned Chief Judicial Magistrate, 1 st Class, Cachar, Silchar

whereby the learned Court rejected the petition No. 2264/2022, preferred by the petitioner

seeking zimma/custody of vehicle bearing registration No. AS-01-GC-2434 (the vehicle for

short), seized in connection with Silchar P.S. Case No. 2133/2022.

3. From the First Information Report (FIR) lodged in connection with Silchar P.S. Case No.

2133/2022 by the Incharge, Arunachal Outpost on 05.09.2022, pursuant to Arunachal

Outpost G.D. Entry No. 48 dated 04.09.2022 it transpires that 80 bags of Burmese Supari

were concealed in the boot space of the bus bearing registration No. AS-01-GC-2434, and the

bus along with the Burmese Supari were seized in connection with this case. The petitioner

Sri Hiran Ali has claimed to be the registered owner of the afore-mentioned bus. Two

petitions were filed before the Court of the Chief Judicial Magistrate, Cachar at Silchar being

petition No. 2264/2022 and 2265/2022 with prayer for custody of the vehicle along with 80

bags of Burmese Supari respectively. The petition No. 2264/2022 was filed on behalf of the

present petitioner whereas the petition No. 2265/2022 was filed by another petitioner,

namely, Mominul Islam Mazumdar for custody of the bags of Burmese Supari. Both the

petitions were rejected by the learned Chief Judicial Magistrate vide a common order dated

13.10.2022. A report was to be obtained by the Additional P.P. from the IO regarding the

vehicle and the Supari seized in connection with this case.

4. It is submitted on behalf of the petitioner that his livelihood depends on the bus. It is

submitted on behalf of the petitioner that the driver and the handyman who were arrested in

connection with Silchar P.S. Case No. 2133/2022 were forward to jail and vide order dated

07.09.2022 the bail petition of the driver and the handyman were rejected by the learned

CJM observing that their bail will hamper the investigation. Vide the impugned order dated Page No.# 3/4

13.10.2022, the learned CJM rejected the petition of prayer for zimma of the afore-mentioned

vehicle observing that the release of the vehicle will prejudicially affect the investigation. The

additional affidavit was filed on behalf of the petitioner placing on record that three petitions

being petition Nos. 2246/2022, 2264/2022 and 2265/2022 had been filed before the learned

CJM, Cachar. The orders passed in connection with those petitions have also been appended

as Annexure-1 series.

5. The learned Addl. P.P. has submitted that the driver and the handyman were arrested in

connection with this case as they have failed to produce valid documents relating to the

transportation of the seized Burmese Supari. The learned CJM can decide the prayer for

zimma of the vehicle on the basis of an appropriate petition lodged by the petitioner before

the CJM.

6. The learned counsel for the petitioner has relied on the decision of the Hon'ble

Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat , reported in (2002) 10 SCC

283, wherein it has been observed that -

"7. 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 panchanama 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 tampering with the articles.

7. It was also held in Sunderbhai Ambalal Desai's case (supra) that-

" In our view, whatever be the situation, it is of no use to keep such-seized Page No.# 4/4

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."

8. The petitions with prayer for zimma of the vehicle No. AS-01-GC-2434 are marked as

Annexure 2 and Annexure-3 and appended along with the additional affidavit. These petitions

were rejected by the learned CJM vide order dated 13.10.2022 with the observation that the

release of vehicle will prejudicially affect the investigation.

9. At present investigation may have presumably progressed to a certain extent or

investigation may have concluded. The vehicle is a Night Super Bus and is lying in the

custody of the police. Upon considering the submissions at the Bar, I deem it proper to pass

an order directing the learned Chief Judicial Magistrate, Cachar, Silchar to consider the

petition for zimma of the afore-mentioned vehicle if submitted by the petitioner before the

learned Chief Judicial Magistrate, Cachar, Silchar and pass an order for zimma of the vehicle

to the custody of the registered owner in any manner the learned CJM deems fit and proper

and under such terms & conditions which the learned CJM, Cachar, Silchar deems fit and

proper.

10. The order dated 13.10.2022 relating only to the rejection of the prayer for zimma of

the vehicle bearing Registration No. AS-01-GC-2434 is hereby set aside.

In terms of the above, this petition is disposed of.

JUDGE

Comparing Assistant