Gauhati High Court
Crl.Pet./1040/2023 on 1 April, 2025
GAHC010215872023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl. Petition/1040/2023
1. Samsul Hoque @ Gabbar Singh
S/O Late Taijuddin Sk.
R/O Village-Madhusoulmari Part-II
(Mecherdair) P.S. Gauripur,
District-Dhubri, Assam
....Petitioner
-Versus-
1. The State of Assam,
Represented by the learned Public Prosecutor,
Assam
2. Kapil Ch. Das,
SI, Gauripur Police Station
Investigating Officer of
Gauripur P.S. Case No. 182/2022
.....Respondents
For Petitioner : Mr. S. Das, Advocate
For Respondent(s) : Mr. R. J. Baruah, Additional Public Prosecutor
Date of Judgment : 01.04.2025
Crl.Pet./1040/2023 Page 1
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(Mridul Kumar Kalita, J.)
1. Heard Mr. S. Das, the learned counsel for the petitioner. Also
heard Mr. R. J. Baruah, the learned Additional Public Prosecutor
appearing for the State of Assam.
2. This application under Section 482 of the Code of Criminal
Procedure, 1973 has been filed by the petitioner, namely, Samsul
Hoque @ Gabbar Singh, praying for quashing of the attachment
of immovable property of the petitioner by the Investigating
Officer of the Gauripur P.S. Case No.182/2022 as well as for
setting aside the order dated 06.01.2023, passed by the learned
Sessions Judge, Dhubri in Criminal Appeal No.14/2022.
3. The facts relevant for consideration of the instant criminal
petition, in brief, are that, on 09.04.2022, one Sri Ajay Kumar
Singh, ASI of police of Gauripur Police Station lodged an FIR
before the Officer-In-Charge of Gauripur Police Station, inter-alia,
alleging that on that day, i.e., on 09.04.2022 an information was
received by the Officer-In-Charge of Gauripur Police Station, over
phone, regarding keeping of five numbers of cattle tied in the
middle of a field in Gughufanda village by some unknown
miscreants. It was also informed that the said cows were stolen
cows. Accordingly, the first informant rushed to the place i.e.,
Crl.Pet./1040/2023 Page 2
Gughufanda village, and recovered the five cows there from. It
was suspected that the cows were stolen cows, for the purpose
of smuggling them to Bangladesh.
4. It is also pertinent to note that no one came forward to claim the
ownership of the seized cows, therefore, they were kept in the
government pound.
5. On receipt of the said FIR, the Gauripur P.S. Case No.182/2022
was registered under Section 379/411 of the Indian Penal Code,
read with Section 13 (1) of the Assam Cattle Preservation Act,
2021 and one Vinay Kumar Roy, ASI of police was entrusted to
complete the investigation.
6. During the course of the investigation, the petitioner, Samsul
Hoque @ Gabbar Singh was arrested on the ground that the
cattle were stolen as per his guidance. He was remanded to
judicial custody on 03.07.2022. However, by order dated
02.09.2022 the petitioner was released on bail.
7. It has been stated in the petition that, on 07.11.2022, the
petitioner came to know from a local newspaper (Asamiya
Pratidin dated 26.07.2022) that his property, worth Rs. 1.2
crores, was attached.
8. Mr. S. Das, the learned counsel for the petitioner has submitted
that the petitioner was unaware about the attachment of his
property by police, therefore, on 09.11.2022, he filed an
application before the learned Judicial Magistrate, 1st Class,
Dhubri with a prayer for calling a report from the Investigating
Crl.Pet./1040/2023 Page 3
Officer as to whether any property of the petitioner had been
seized/attached in connection with the Gauripur P.S. Case
No.182/2022.
9. It is further submitted by the learned counsel for the petitioner
that accordingly, the learned Judicial Magistrate 1st Class, Dhubri
by orders dated 09.11.2022 and 23.11.2022 directed the
Investigating Officer to submit a report regarding the attachment
of the property of the petitioner in connection with the
aforementioned case, and if the same is attached, the details
thereof.
10. The learned counsel for the petitioner has further submitted that,
in pursuant to the directions of the Court, the Investigating
Officer of the Gauripur P.S. Case No.182/2022 submitted two
different reports before the Court of the learned Judicial
Magistrate 1st Class, Dhubri, wherein it was informed that he had
attached the properties belonging to the petitioner in connection
with the Gauripur P.S. Case No.182/2022.
11. It is further submitted by the learned counsel for the petitioner
that, as per the report dated 05.12.2022 submitted by the
Investigating Officer before the Court of the learned Judicial
Magistrate 1st Class, Dhubri, the following immovable properties
of the petitioner were attached -
i. Land measuring about 3 bigha, 8 lecha covered by
Dag No. 1038 in Patta No. 22. The approximate value
of the said land was estimated at Rs. 43,12,000/-.
Crl.Pet./1040/2023 Page 4
ii. Land measuring about 18 lecha covered by Dag
No.277 in Patta No. 283. The approximate value of the
said land was estimated at Rs. 13,50,000/-
iii. Land measuring about 3.6 lecha covered by Dag
No. 2395 in Patta No.1018. The approximate value of
the said land was estimated at Rs. 9,24,000/-.
iv. Land measuring about 2 bigha, 2 katha, 15 lecha
covered by Dag No. 1263 in Patta No. 1452. The
approximate value of the land was estimated at
Rs. 35,70,000/-.
12. It is further submitted by the learned counsel for the petitioner
that by his subsequent report dated 15.12.2022, the
Investigating Officer of the Gauripur P.S. Case No.182/2022 had
informed the learned Judicial Magistrate 1st Class, Dhubri that
before the attachment of the property of the petitioner, no notice
could have been served on him, as the petitioner was detained in
judicial custody and his family members were untraceable, as
they had left their villages due to fear of the police.
13. The learned counsel for the petitioner has also submitted that, it
was also informed to the learned Judicial Magistrate 1st Class,
Dhubri by the Investigating Officer that apart from the above
mentioned immovable properties, following bank accounts of the
petitioner were also freezed-
Crl.Pet./1040/2023 Page 5
a. Saving Account No. 30756482128 in State Bank of India,
Dhubri Branch, in the name of the petitioner with the total
amount of Rs. 34,493.92/- deposited therein.
b. Current Account No. 1380110000289 of Punjab and Sindh
Bank, Dhubri Branch with total amount of Rs. 10,709.48/-
deposited therein.
14. Being aggrieved by the attachment of his properties by the
Investigating Officer of the Gauripur P.S. Case No.182/2022, the
petitioner preferred an appeal under Section 12 of the Assam
Cattle Preservation Act, 2021, before the Court of the learned
Sessions Judge, Dhubri.
15. The said appeal was registered as the Criminal Appeal
No.14/2022. In the appeal, the main grounds for assailing the
attachment of his properties by the Investigating Officer was that
properties of the petitioner were seized by the Investigating
Officer without following due procedure and without issuing
notice to the petitioner. However, by the order dated
06.01.2023, passed in the Criminal Appeal No.14/2022, the
learned Additional Sessions Judge, Dhubri dismissed the appeal
on the ground that under Section 12 of the Assam Cattle
Preservation Act, 2021 appeal lies against order passed under
Section 7 and 11 of the said Act, however, in the instant case, no
such order has been passed, hence, no appeal lies under Section
12 of the said Act. It was also observed by the Court of the
learned Additional Sessions Judge that the lapse on the part of
Crl.Pet./1040/2023 Page 6
the Investigating Officer in not reporting the seizure or
attachment of the properties to the Judicial Magistrate 1st Class
was an irregularity, which is not appealable under Section 12 of
the said Act.
16. Mr. S. Das, the learned counsel appearing for the petitioner has
submitted that the Investigating Officer of the Gauripur P.S. Case
No.182/2022 did not follow the basic minimum procedures laid
down in the Section 11 of the Assam Cattle Preservation Act,
2021, as he did not issue any notice to the petitioner before
attaching his movable and immovable property in connection
with the aforesaid case.
17. The learned counsel for the petitioner has further submitted that
as the petitioner was unaware about the procedures adopted by
the Investigating Officer for attachment of his properties, he was
denied an opportunity to prove that the properties, which were
so attached, were not illegally acquired through the sale or
transportation of cattle in violation of any provisions under the
Assam Cattle Preservation Act, 2021. He has also submitted that
though, a burden is cast upon the aggrieved person, under the
Proviso to Section 11(11) of the Assam Cattle Preservation Act,
2021, to show that the properties attached have not been
illegally acquired, however, he was deprived of the said
opportunity of relieving the statutory burden.
18. The learned counsel for the petitioner has submitted that the
petitioner had purchased the landed property, which has been
Crl.Pet./1040/2023 Page 7
attached in this case, in the year 2008, 2009 and 2010,
respectively, which is beyond the statutory period of 6 years
prior to the registration of the case as required under Section
11(11) of the Assam Cattle Preservation Act, 2012. The learned
counsel for the petitioner has submitted that the petitioner had
purchased the said properties by the registered sale deed
3261/2008, 1202/2009 and 128/2010, respectively.
19. The learned counsel for the petitioner has also submitted that
the property which is mentioned at Serial No. 2 of the report
dated 05.12.2022 was purchased by the petitioner in the year
2019 by the registered Sale Deed No. 1364/2019 and the same
was not acquired from any income generated from the sale or
transportation of cattle, in violation of the provisions of the
Assam Cattle Preservation Act, 2021.
20. The learned counsel for the petitioner has submitted that the
above mentioned aspect were not looked into by the
Investigating Officer, while exercising the powers of seizure and
attachment under Section 11 of the Assam Cattle Preservation
Act, 2021.
21. The learned counsel for the petitioner has also submitted that in
his reports, which were furnished to the Court of learned Judicial
Magistrate 1st Class, Dhubri, the Investigating Officer has not
stated as to by virtue of which order, the movable and
immovable properties of the petitioner were attached, thereby,
depriving the petitioner to approach the appropriate forum by
Crl.Pet./1040/2023 Page 8
filing an appeal against such order for attachment under Section
12 of the Assam Cattle Preservation Act, 2021.
22. The learned counsel for the petitioner has, therefore, submitted
that as the attachment of the properties of the petitioner by the
Investigating Officer in Gauripur P. S. Case No. 182/2022 is not
justified from any point of view, the same is liable to be set
aside.
23. On the other hand, Mr. R. J. Baruah, the learned Additional
Public Prosecutor appearing for the State has submitted that by
the impugned order dated 06.01.2023, the Court of Additional
Sessions Judge has rightly dismissed the appeal filed by the
present petitioner as not maintainable as no order, passed under
Section 7 or Section 11 of the Assam Cattle Preservation Act,
2021, was put to challenge in that appeal.
24. The learned Additional Public Prosecutor has also submitted that
the Investigating Officer is empowered under Section 11 of the
Assam Cattle Preservation Act, 2021 to attach or seize the
movable and immovable properties in respect of which there is a
prima facie reason to believe that the same has been acquired
within six years prior to registration of the case, from income
earned through sale and transportation of cattle in violation of
provisions of the aforesaid Act. He has also submitted that the
Investigating Officer had issued notice on two occasions to the
family members of the petitioner, Samsul Hoque, however, as
the family members had fled away due to fear of police, the
Crl.Pet./1040/2023 Page 9
notice could not be served. Hence, he submits that there was no
procedural lapse on the part of the Investigating Officer and
therefore, he submits that the attachment of the properties of
the petitioner in connection with the Gauripur P. S. Case No.
182/2022 may not be interfered with by this Court.
25. I have considered the submissions made by learned counsel for
both the sides, and have gone through the materials on record,
including the scanned copy of the PRC Case No. 1735/2023,
along with the case diary of the Gauripur P.S. Case No.
182/2022, which were requisitioned in connection with this case.
26. For the sake of convenience, Section 11 of the Assam Cattle
Preservation Act, 2021 is reproduced herein below:
"11. Power to enter, inspect, search,
seizure and detain
(1) For the purpose of enforcing the
provisions of this Act, a Police Officer not
below the rank of Sub-inspector or a
registered Veterinary Officer, or any
person authorized in this behalf by the
state government, shall have the power
to enter and inspect any premises within
the local limits of jurisdiction of such
persons where he has reason to believe
that an offence under this Act has been
or is likely to be committed.
2) Every person in occupation of any such
premises as is specified in sub-section (1)
Crl.Pet./1040/2023 Page 10
shall allow the Police Officer not below
the rank of Sub-inspector or Veterinary
Officer or the person authorized in this
behalf by the state government, as the
case may be, such access to the premises
as he may require for the aforesaid
purpose and shall answer any question
put to him by such Police Officer or
Veterinary Officer or the person
authorized in this behalf by the state
government as the case may be, to the
best of his knowledge and belief.
(3) A Police Officer not below the rank of
Sub-inspector or Veterinary Officer or the
person authorized in this behalf by the
state government, as the case may be, if
of the opinion that an offence under this
Act has been committed or is likely to be
committed, may seize any materials or
carcasses or cattle or vehicle or
conveyance, which have been or likely to
be used in commission of the offences,
from the premises so inspected and may
detain any person suspected to have
committed such offence.
(4) After the seizure under sub-section
(14) of section 7 and sub-section (3) of
section 11, such police officer shall report
such seizure without unreasonable delay,
before the Judicial Magistrate 1st Class:
Crl.Pet./1040/2023 Page 11
Provided that the authority or
officer, other than police officer, seizing
such vehicles or conveyance or cattle,
shall maintain the seized cattle and hand
over any other material, vehicles or
persons detained to the jurisdictional
police station along-with complaint.
Officer-in-charge of jurisdictional police
officer shall report such seizure without
unreasonable delay before the Judicial
Magistrate 1st Class.
(5) On receipt of the report, the Judicial
Magistrate 1st Class may, on his being
satisfied that there is enough material to
presume that a prima-facie offence under
this Act has been committed or intended
to be committed, release the seized
materials including vehicle/conveyance
except cattle on furnishing of a bank
guarantee, equal to the value of the
material or vehicle/conveyance *[****],
to the satisfaction of the court, pending
disposal of the criminal proceedings
instituted in respect of the alleged
offence.
(6) The expenditure incurred on the
maintenance of the seized cattle shall be
recovered from such persons as
prescribed in the rules.
(7) The cattle so seized, may be handed
over to an institution established under
Crl.Pet./1040/2023 Page 12
section 20 of this Actor any existing
Gaushala, or similar institution after value
assessment by the Animal Husbandry and
Veterinary Department.
(8) Notwithstanding anything contained in
this Act, no person accused of an offence
punishable under this Act shall, if in
custody, be released on bail or on his
own bond unless the Public Prosecutor
has been given an opportunity of being
heard on the application for such release.
(9) On conviction, the vehicle or any
conveyance or bank guarantee so
furnished and cattle so seized under this
Act shall stand forfeited to the State
Government in the manner as may be
prescribed.
(10) The appropriate Court on being
approached by the Police Officer, having
the authority of seizure under sub-section
(3) of this section, may make such order
for sale of the seized vehicle/conveyance
including boat, vessel etc., except cattle,
through public auction, after being
produced before the appropriate Court,
during any inquiry or trial.
(11) No person and his/her family
members, against whom a case has been
registered under the provisions of this
Act, shall alienate moveable or immovable
property in any manner and the
Crl.Pet./1040/2023 Page 13
Investigation Officer, in case having a
prima-facie reason to believe that such
moveable and immovable property has
been acquired within six years prior to the
registration of a case, from income
earned through sale or transportation of
cattle in violation of the provisions of this
Act, shall have the authority to attach or
seize documents relating to such
moveable and immoveable property
Provided that the burden of proving
that the property so attached or seized
has not been illegally acquired through
sale or transportation of cattle in violation
of any of the provision under this Act,
shall be on the person affected."
27. On a bare perusal of the above statutory provisions, it would
reveal that the power to enter, to inspect, search and seizure
under Assam Cattle Preservation Act, 2021, when there are
reasons to believe that an offence under the aforesaid Act is
likely to be committed, is vested only on a Police Officer who is
not below the rank of Sub-Inspector or any person authorized in
this behalf by the State Government.
28. In the instant case, all the seizures have been made by the
Investigating Officer of this case, who is an officer of the rank of
Assistant Sub-Inspector of Police. Thus, apparently, under the
Act, he is not empowered to conduct search and seizure in
respect of an offence committed under the Assam Cattle
Crl.Pet./1040/2023 Page 14
Preservation Act, 2021. There is also no material on record to
show that the said Assistant Sub-Inspector of Police was
authorized by the Government of Assam to conduct such search
and seizure.
29. Further, it is also pertinent to note that though, in Section 11(11)
of the Act, the power to seize and attach has been given to the
Investigating Officer, however, when other provision of the said
Section categorically provides that the power of search and
seizure is entrusted to a Police officer not below the rank of Sub-
Inspector, It is the natural corollary of the said provision that the
Investigating Officer to conduct the investigation of an offence
under this Act should be a police officer not below the rank of
Sub-Inspector of Police.
30. Further, if we carefully peruse the provisions contained in Section
11 (11) of the Assam Cattle Preservation Act, 2021, it would
reveal that the provision authorizes the Investigating Officer only
to attach or seize the documents relating to immovable property
or movable property regarding which there is a prima facie
reason to believe that it has been acquired within six years prior
to the registration of the case from income earned through sale
or transportation of cattle in violation of the provision of the Act.
31. The said statutory provision is clear that the Investigating Officer
has been authorized to attach or seize only the documents, not
the property itself. When such documents are relating to
properties are seized or attached, a seizure list has to be
Crl.Pet./1040/2023 Page 15
prepared. However, in the instant case, no such seizure list has
been prepared.
32. Moreover, even for attaching or seizing the documents relating
to immovable or movable property, the Investigating Officer
must arrive at prima facie finding regarding his believe that such
movable and immovable property has been acquired within six
years prior to registration of the case from income earned
through sale and transportation of cattle in violation of provision
of this Act. However, in this case, there is no material to show
that such prima facie satisfaction has been arrived at by the
Investigating Officer before exercising the powers of seizure or
attachment under the said Act.
33. In the instant case, on 19.12.2023, the Investigating Officer has
laid the charge sheet against the petitioner and four others
under Section 379/411 of the Indian Penal Code, read with
Section 13 (1) of the Assam Cattle Preservation Act, 2021. The
accusation against the present petitioner and the other accused
persons is that six numbers of cattle were recovered, which are
suspected to be stolen and were meant to be smuggled to
Bangladesh. Nothing beyond that has been alleged against the
present petitioner.
34. It also appears that the Investigating Officer has for the first
time reported regarding the attachment of movable and
immovable properties of the petitioner to the Court in his reports
submitted to the Court on 05.12.2022, as well as on 15.12.2022,
Crl.Pet./1040/2023 Page 16
when such reports were called for by the Court of the learned
Judicial Magistrate, 1st Class, Dhubri. On perusal of the said
reports, it appears that though, there has been mentioned about
attachment of the movable and immovable properties of the
petitioner, however, there is no indication that the Investigating
Officer had prima facie reason to believe that such movable and
immovable properties have been acquired within six years prior
to registration of the case from the income earned through sale
or transportation of the cattle in violation of the provision of
Assam Cattle Preservation Act, 2021. There is also no indication
as to on which date and by which order the properties of the
petitioner were attached.
35. As already discussed herein before, that the Section 11 (11) of
the Assam Cattle Preservation Act, 2021 only authorizes the
Investigating Officer to attach or seize documents relating to
movable and immovable property. It nowhere authorizes the
Investigating Officer to attach the properties. For doing so, the
prior leave of the Court would be required. The Investigating
Officer in this case, being an Assistant Sub-Inspector of Police
has acted beyond the provisions of the statute in an illegal
manner.
36. For the reasons discussed in the foregoing paragraphs, the
attachment of the properties of the petitioner as mentioned in
the report dated 05.12.2022 as well as 15.12.2022 by the
Investigating Officer of Gauripur P.S. Case No. 182/2022 to the
Crl.Pet./1040/2023 Page 17
learned Judicial Magistrate, 1st Class, Dhubri are, therefore, liable
to be set aside and quashed, which this Court accordingly, does.
37. This Criminal Petition is accordingly, allowed and the properties
which are reported to be attached by the Investigating Officer of
Gauripur P.S. Case No. 182/2022, in his report dated 05.12.2022
as well as 15.12.2022 to the learned Judicial Magistrate, 1st
Class, Dhubri are hereby quashed and set aside.
38. Let a copy of this order be furnished to the Court of learned
Judicial Magistrate, 1st Class, Dhubri.
JUDGE
Comparing Assistant
Crl.Pet./1040/2023 Page 18
