Point of Law: Powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month.

JUDGMENT :

1. This revision petition, under section 397/401 of the Cr.P.C., is preferred by Smti. Mistu Das, W/o Dhananjoy Das of Dinhata Gram, P.O. Boranachina, P.S. Dinhata, District-Konch Bihar, West Bengal, challenging the legality, propriety and correctness of the order dated 04.08.2021, passed by ld. Judicial Magistrate 1st class, Gossaigaon in G. R. Case No. 420/2021, arising out of Gosaigaon P.S. Case No. 362/2021. It is to be mentioned here that vide impugned order, dated 04.08.2021, the ld. Court below has rejected the petition filed by the petitioner seeking custody of the seized 2800 kg of motihar (tobacco) leaves.

2. Heard Mr. A. Ahmed, ld. counsel for the petitioner and also heard Mr. D. Das, learned Addl. P.P. for the respondent No.1 and 2.

3. The factual background, leading to filing of the present revision petition is adumbrated herein below:-

“The petitioner is a businesswoman by profession and running business of jute and tobacco in the name and style of M/S M.D. Tobaco. She has valid Trade licence No. 726, dated 23.12.2020, issued by Dinhata village-I Gram Panchayat. On 11.07.2021, one Truck, bearing registration No. AS-01-GC-7873, was carrying 2800 KG of loose motihar (tobacco) leaves from M/S. M.D. Tobaco, West Bengal to deliver the same to one Ashadul Hoque, Abdul Matlib and Syed Miah of Nagaon, after paying GST, Road Tax, and other applicable taxes. The authority has also issued one e-way bill in respect of the said Truck. But, on 11.07.2021, the said Truck was apprehended at Srirampur NH-31C, Police Check Post, on the ground of illegally carrying tobacco, as carrying and selling tobacco is banned in Assam. Then the respondent No.2 lodged one FIR to that effect with the Officer-in-Charge, Gossaigaon P.S. and upon the said FIR, Gosaigaon P.S. Case No. 362/2021, under section 420/269/270/379/411/180 IPC, R/W section 7(2) COPTA Act and R/W Section 51(b) Disaster Management Act, has been registered and during investigation the said Truck and the goods carried by it, were seized by police. Thereafter, the owner of the Truck preferred a petition before the ld. Judicial Magistrate, 1st Class, Gossaigaon seeking custody of the Truck and the ld. Court below has, vide order dated 31.07.2021, has allowed the same. The petitioner also filed one petition on 15.07.2021, seeking custody of the seized Tobaco leave. But, the ld. Court below, vide order dated 04.08.2021, after calling a report from the I.O., has dismissed the petition, though the ld. Court below has released similar goods carried by another Truck which was seized in connection with Serfanguri P.S. Case No. 32/2021 on 22.07.2021. Therefore, the petitioner approached this court by filing the present petition.”

4. Being highly aggrieved, by the impugned order dated 04.08.2021, the petitioners preferred this revision petition on the following grounds:-

(i) that the ld. Court below has failed to apply its judicial mind while rejecting the petition filed by the petitioner seeking custody of the seized goods;

(ii) that the impugned order is illegal and contrary to the provisions of law;

(iii) that the petitioner is the legal owner of the goods and she purchased the same after paying taxes, as applicable, and as such the petitioner is entitled to take zimma of the vehicle;

(iv) that the ld. Court below has misread the provision of law and rejected the petition filed by the petitioner seeking custody of the goods and that the goods are no longer required for the purpose of investigation;

(v) that the ld. Court below has observed in the impugned order that transportation of tobacco is prohibited in the state of Assam, by Food and Drug Administration, Assam, Commissioner of Food Safety, vide letter No. FSC.12/2013/22 dated 12.01.2021, but the ld. court below has failed to consider that the said Notification and the Act (Prohibition of Advertisement and Regulation of Tread and Commerce, production, Supply and Distribution) Act 2003 relates to tobacco products only, not the t