Narayan Das vs The State Of Assam And Anr
2025 Latest Caselaw 4842 Gua

Gauhati High Court

Narayan Das vs The State Of Assam And Anr on 20 May, 2025

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GAHC010008762013




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

                                 Case No. : Crl.Pet./532/2013

            NARAYAN DAS
            S/O LT. BEHARILAL DAS R/O HAKIMPARA, P.O. and P.S. SILIGURI, DIST.
            JALPAIGURI, WEST BENGAL.

            VERSUS

            THE STATE OF ASSAM AND ANR


            2:THE INDIAN OIL CORPORATION LTD.
            ASSAM OIL DIVISION REP. BY THEIR SENIOR DIVISIONAL MANAGER
             NOONMATI
             SECTOR-III
             GUWAHATI-21
             DIST. KAMRUP
            ASSAM

Advocate for the Petitioner   : MR.A M BORA, MR.R SARMA

Advocate for the Respondent : MR.A SARMA, MR. D SARMA (r-2),MR. ABU JAHID (r-2),MR.S
N SARMA,PP, ASSAM,MR.S CHOUDHURY,MR.A ZAHID




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                          ORDER

Date : 20.05.2025

1. Heard Mr. A. M. Bora, learned senior counsel assisted by Mr. R. Sarma, learned counsel for the petitioner. Also heard Mr. M. P. Goswami, learned Page No.# 2/6

Additional Public Prosecutor for the State respondent as well as Mr. A. Jahid, learned counsel for the respondent No. 2.

2. This criminal petition under Section 482 of the Code of Criminal Procedure, 1973 read with Section 401 of the said Code have been filed by the petitioner, namely, Narayan Das impugning the judgment and order dated 16.03.2013 passed by the Court of the learned Additional Sessions Judge No. 2, Kamrup, Guwahati in Criminal Appeal No. 57/2009.

3. The facts relevant for consideration of the instant criminal petition, in brief, are that on the basis of an F.I.R. dated 23-11-1985 lodged by one Roshanlal Agarwal of M/s. Delhi Assam Roadways Corporation on specific allegation that on 10-10-1985, a consignment of 260 bags of paraffin wax was despatched from Guwahati to Kolkata by the complainant's roadways in Truck No. WMK 7722 and another consignment of 240 bags of paraffin wax despatched in Truck No. WMK 9475 and the said materials has been misappropriated at Siliguri, the Bharalumukh P.S. Case No. 185 of 1985 was registered.

4. In the course of Investigation, police personnel from Siliguri visited the candle factory belonging to the petitioner on 21-10-1985 and seized 214 bags containing 10700 Kgs of paraffin wax and 16 numbers of empty gunny- bags in connection with the case.

5. On 02-01-1986, the then learned Chief Judicial Magistrate by his order gave the zimma of 214 bags containing 10700 Kgs of paraffin wax and 16 numbers of empty gunny-bags to Indian Oil Corporation (Respondent No. 2) and accordingly, the Indian Oil Corporation took over the custody of seized 214 bags containing 10700 Kgs of paraffin wax and 16 numbers of empty gunny-

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bags as zimmadar of the same. After completion of investigation, police laid charge-sheet in the case.

6. By order dated 28-10-1991 passed in the G.R. case No.3108/85, the then learned C.J.M., Kamrup at Guwahati discharged the appellant from the case and by his order dated 07-01-2006 passed in the said case, the learned C.J.M. directed the present respondent no. 2, being the zimmadar of the seized 214 bags containing 10700 Kgs of paraffin wax and 16 numbers of empty gunny-bags, to hand over those to the present petitioner.

7. Subsequently, on 06-06-2007, the learned counsel for the respondent no. 2 informed the learned C.J.M. that as the seized paraffin wax taken by them in custody was perishable in nature, hence the I.O.C. was not in a position to comply with the direction of learned C.J.M. vide order dated 07-01-2006 passed in connection with G.R. Case No.3108/85. Thereafter, a formal petition having been filed by the appellant for releasing the seized 214 bags containing 10700 Kgs of paraffin wax and 16 numbers of empty gunny-bags in his favour, learned C.J.M. after hearing both the parties, vide his order dated 28-05-2009 passed in

Misc case No. 63M/2007 accepted the unconditional apology tendered by the respondent corporation and directed the Respondent Corporation to carry out the order dated 07-01-2006 further observing that if seized articles have already perished due to its perishable nature, then the Respondent Corporation will make necessary arrangement for payment of the value of the goods at the rate prevailing on 02-01-1986.

8. Being aggrieved by the order dated 28.05.2009 passed in Misc. Case

No. 63M/2007, the present petitioner filed an appeal before the Court of learned Additional Sessions Judge No. 2, Kamrup, Guwahati. The said appeal was Page No.# 4/6

registered as Criminal Appeal No. 57/2009. In the said appeal, the present petitioner had pleaded that the respondent i.e., Indian Oil Corporation was playing tricks by not releasing the seized paraffin wax from the candle factory which was seized from the present petitioner on 21.10.1985 and prayed for directing the respondent to hand over similar quantity of paraffin to the appellant in order to partially mitigate the loss sustained by the appellant.

9. By the impugned judgment, the appeal preferred by the present petitioner was dismissed by the First Appellate Court on the ground that the paraffin wax being a perishable item and not taken into custody in the year 1986, there is no likelihood of the seized paraffin wax to be released in the same state in which it was taken in custody as it was a perishable item. It also took into consideration the fact that the respondent No. 2 i.e., IOC Limited was ready to pay the price of the seized paraffin at the rate prevailing on the date when it was taken by them in custody. The First Appellate Court also took into consideration the fact that the seized paraffin was given in zimma as a measure of interim custody as the criminal case in which the paraffin was seized is not yet disposed of and, therefore, the zimmadar in whose custody the seized paraffin was given would always be under obligation to produce the said paraffin before the court as and when so directed and same may not be used by the zimmadar unless there is an order to that effect by the Court.On the aforesaid grounds, the appeal was dismissed.

10. The learned senior counsel for the petitioner has submitted that the respondent No. 2, while seeking the zimma of the seized paraffin wax, in the year 1986, did not state that the seized wax is a perishable item. It was only in the year 2006 i.e., by order dated 07.01.2006 the Court of the learned Chief Judicial Magistrate, Kamrup by its order dated 07.01.2006 observed that as the Page No.# 5/6

seized item is perishable, the zimma of the same was given to the petitioner.

11. The learned senior counsel for the petitioner has fairly submitted that as the paraffin wax which was seized in this case is in fact aperishable item, the respondent No. 2 i.e., the IOC was under obligation to deposit the value of the seized paraffin to the Court so that same may be given to the present petitioner in custody in pursuant to the order dated 28.05.2009. However, he submits that in spite of the dismissal of the Criminal Appeal No. 57/2009, the respondent No. 2 has not deposited the value of the seized paraffin to the Trial Court so that same may be given again in custody to the petitioner in pursuant to the order dated 28.05.2009 passed by the learned Chief Judicial Magistrate, Kamrup in

Misc. Case No. 63M/2007.

12. The learned senior counsel for the petitioner fairly submits that the petitioner is not pressing this criminal petition if the respondent No. 2 is ready to pay the value of the seized paraffin wax to the petitioner in pursuant to the direction given by the learned Chief Judicial Magistrate, Kamrup by order dated

28.05.2009 in Misc. Case No. 63 M/2007 and it was upheld by the impugned judgment passed in Criminal Appeal No. 57/2009.

13. On this Mr. A. Jahid, learned counsel for the respondent No. 2 i.e., Indian Oil Corporation submits that the IOC is ready to comply with the direction of the Court of learned Chief Judicial Magistrate, Kamrup which was

given by order dated 28.05.2009 in Misc. Case No. 63 M/2007 and which was upheld by the impugned judgment passed in Criminal Appeal No. 57/2009.

14. As learned counsel for the respondent No. 2 has has submitted that they are going to comply with the directions passed in the impugned judgment, this criminal petition is disposed of with a direction to the respondent No. 2 i.e., Page No.# 6/6

Indian Oil Corporation to deposit the value of the seized paraffin wax in

pursuant to the order dated 28.05.2009 passed in Misc. Case No. 63 M/2007 by the then ChiefJudicial Magistrate, Kamrup, Guwahati in the Court of the learned Chief Judicial Magistrate, Kamrup(M) within two months from the date of this order and on such deposit the said Court shall in pursuant to the order passed

on 28.05.2009 in Misc. Case No. 63 M/2007 shall hand over the said amount to the petitioner on furnishing a bond equivalent to the amount which is to be deposited by the respondent No. 2.

15. It is also hereby made clear that after culmination of the trial of GR Case No. 3108/1985, which is still pending in filed condition, the Trial Court shall pass final order regarding disposal of the seized items in the said case.

16. With above observations, this criminal petition is disposed of.

JUDGE

Comparing Assistant