Sri Rafikul Islam vs The State Of Assam And Anr
2025 Latest Caselaw 5759 Gua

Gauhati High Court

Sri Rafikul Islam vs The State Of Assam And Anr on 26 June, 2025

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GAHC010042812025




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

                                 Case No. : Crl.Pet./264/2025

            SRI RAFIKUL ISLAM,
            S/O. TANJUL ISLAM, R/O. RANGAMATI G.P.
            P. S. -SONAMURA, DISTRICT- SEPAHIJALA, TRIPURA.



            VERSUS

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

            2:DIPAK KR. SINGHA
             SI OF POLICE

            BAZARICHERRA POLICE STATION

            DIST. KARIMGANJ
            ASSA

Advocate for the Petitioner   : MRS. R RONGMEI, MS. S DEVI

Advocate for the Respondent : PP, ASSAM,
                                                                                         Page No.# 2/6

                                            BEFORE
                        HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
                                              ORDER

26.06.2025

Heard Mrs. R. Rongmei, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Addl. Public Prosecutor for the State respondent.

2. By way of this application under Section 528 of BNSS, 2023, the petitioner i.e., Rafikul Islam, is seeking setting aside and quashing of the impugned Order dated 03.09.2024 passed by the Court of learned Special Judge, Sribhumi (Karimganj) (hereinafter referred to as the "Trial Court") whereby the zimma petition filed by the petitioner for zimma of seized vehicle (Mahindra Bolero) bearing Registration No. TR-01-J-3471 in connection with Bazaricherra PS Case No. 198/2022 registered under Section 21(C)/25/29 NDPS Act, 1985 was rejected.

3. Pertinent that by Order dated 06.03.2025, this Court while issuing notice was pleased to call for the scanned copy of the Case Diary from the Trial Court.

4. It appears that thereafter by order dated 07.04.2025, a report from the Investigating Officer as regards the prayer for custody in respect of the aforesaid seized vehicle was also called. However, despite several orders of this Court for issuing reminder vide orders dated 19.05.2025 26.05.2025 09.06.2025 16.06.2025 and 25.06.2025, no such report has been placed before this Court till date.

5. In view of the fact that the subject matter of the petition being the custody of the vehicle in question, the criminal petition has been taken up for final disposal with consent from the learned counsel appearing for both the parties.

6. The brief facts of the case is that on November 16, 2022, at around 9:00 a.m, the Officer-in- Charge (O/C) of Bazaricherra Police Station received information from HC Jagadish Chandra Rabha, I/C of Rangamati AD Camp, about a suspected Bolero vehicle (Reg No. TR-01-J-3471) allegedly transporting a large quantity of drugs from Mizoram to Agartala via Assam. The driver was detained during a Naka check. The O/C recorded the information and dispatched a team, including S.I Dipak Kr. Singha/informant, with a drug seizure kit to the spot. Upon arrival, the vehicle was cordoned off, and the driver, Raju Ahamed, was interrogated. He admitted to concealing drugs in a secret chamber beneath the rear seat. Independent witnesses were called, and the chamber was broken open, revealing 99 soap cases containing suspected heroin. Each packet was weighed using a digital weighing machine. Additional SP, IPS Shri Patha Pratim Das, along with CRPF personnel, arrived and authorized the search and seizure under Section 42 of the NDPS Act, 1985. The process was conducted in the presence of witnesses, and all team members underwent a self-body search to ensure transparency.

7. It further appears that on November 16, 2022, at 1:00 p.m, S. Dipak Kumar Singha of Bazaricherra P.S, seized the following items from Raju Ahamed, aged 27 years, driver of a white Bolero (TR-01-J 3471), at Rangamati AD Camp: 1) the vehicle with keys, 2) Raju's driving license, 3) Page No.# 3/6

his Aadhar card, 4) delivery documents from Tara Sankar Motors, 5) a trade certificate, 6) vehicle insurance, 7) an Oppo mobile with two SIM cards, and 8) 99 soap cases Containing 1181.96 grams of suspected heroin concealed in a Secret chamber beneath the rear seat. The drugs were sealed in a carton box, wrapped in cloth, and marked with Witness and officer signatures.

8. Thereafter, the petitioner filed a zimma petition seeking custody of the aforesaid seized white Bolero (TR-01-J-3471), from which suspected heroin were recovered on November 16, 2022, at Rangamati AD Camp. It is the specific case of the petitioner that the vehicle, though used in the crime was without the knowledge of the owner i.e. the Petitioner. However, the learned Special Judge, Karimganj, rejected the said petition vide order dated 03.09.2024. Situated thus, the instant criminal petition has been filed.

9. Mrs. R. Rongmei, learned counsel for the petitioner submits that the petitioner is a lawful owner of the vehicle in question and has been using the aforesaid seized vehicle for the aforesaid purposes. Hence, the seizure of the aforesaid vehicle has caused financial hardship to the petitioner.

10. She further relies upon the decision of the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in AIR 2003 SC 638.

11. Mr. B. Sarma, learned Addl. Public Prosecutor for the State respondent submits that it is apparent from the Order dated 03.09.2024, that the prayer for zimma of the aforesaid vehicle was rejected on the ground that the said vehicle was used for transporting the recovered alleged contraband articles. He further submits that the aforesaid contraband articles were seized from the chamber of the seized vehicle.

12. I have heard the learned counsels for the parties and have also perused the materials available on record.

13. Apt to reproduce the order dated 03.09.2024 by which the zimma petition of the petitioner was rejected:-

"Special (NDPS) Case No. 163/2022 COURT OF SPECIAL JUDGE : KARIMGANJ Present: Smt. T. Ari, AJS

ORDER

03.09.24.

Accused Raju Ahmed is produced from judicial custody through VC. He is remanded further to judicial custody.

Petitioner of the pending petition no.1420/16 is represented.

Heard both sides on said petition. Seen the report of the I/O. Page No.# 4/6

I have considered the rival submission as well as perused materials on record. On perusal of record it is found that though the petitioner is the registered owner of the vehicle bearing registration no.TR-01J/3471 (Mahindra Bolero) but as per report of the I/O the seized contraband was recovered from the inside secret chamber of the said vehicle which was commercial quantity. Therefore, it appears that the seized vehicle was knowingly used for transporting the recovered alleged contraband. Hence, I do not find merit in the instant petition seeking zimma of seized vehicle bearing registration no.TR-01J/3471(Mahindra Bolero) and accordingly, same is rejected. Fix 17.09.2024 for production."

14. Reading of the aforesaid order, it appears that the primary ground of rejecting the custody of the said seized vehicle is due to the fact that the aforesaid vehicle was knowingly used for transporting the recovered alleged contraband articles from the chamber of the said vehicle. The aforesaid ground appears to be fallacious inasmuch as the seized vehicle ought to have been returned by taking sufficient bond and guarantee inasmuch as keeping the same in the police custody for a long time is of no use. That apart, it appears that the contraband article which is the subject matter of the investigation is already in the custody of the Investigating Officer.

15. Apt to refer to the decision of the Apex Court in Sunderbhai Ambalal Desai(Supra), wherein the Apex Court has laid down the principles in relation to the power of the Trial Court under Section 451 CrPC to be exercised. Relevant paragraph of the aforesaid judgment with regard to vehicles reads as hereunder:-

"15. Learned Senior Counsel Mr. Dholakia, appearing for the State of Gujarat further submitted at present in the Police Station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

16. However, the learned Counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

17. In our view, whatever be the situation, it is of no use to keep such seized 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 Page No.# 5/6

vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

18. In case where the vehicle is not, claimed by the accused, owner, or the Insurance Company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the Insurance Company then Insurance Company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance Company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared."

16. In view of the above, the Trial Court ought to have passed appropriate orders by taking appropriate bond and guarantee as well as security for return of the said vehicle, if required at any point of time in as much as it is of no use to keep such seized vehicle at the Police Station only for the purpose that the said vehicle was used for transporting recovered alleged contraband articles.

17. That being so, the aforesaid order of the Trial Court whereby the custody of the seized vehicle to the petitioner was rejected is totally erroneous. Accordingly, the impugned Order dated 03.09.2024 passed by the Court of Special Judge, Sribhumi (Karimganj), is hereby set aside and quashed.

18. Resultantly, considering the principle settled in the case of Sunderbhai Ambalal Desai(Supra), the prayer for zimma of the seized vehicle bearing Registration No. TR-01-J-3471, which was seized in connection with Bazaricheera PS Case No. 198/2022 registered under Section 21(C)/25/29 NDPS Act, 1985 is allowed.

19. As such, the I.O. is directed to release the seized Bolero vehicle bearing Registration No. TR-01-J- 3471 to the above named petitioner on his proper identification and on verification of all the relevant documents relating to the said vehicle, in original, and after taking photographs of the said vehicle, and on furnishing a zimma-bond equivalent to the market value of the seized vehicle, with further condition that the petitioner shall not alienate the said vehicle and shall produce it before the Court whenever it is required in the case, during the course of trial.

20. Hence, the criminal petition stands disposed of.

JUDGE Page No.# 6/6

Comparing Assistant