Back
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ROBIN PHUKAN, J.
MD. RAJIBUL ISLAM S/O ABDUL MUTALEB – Appellant
VERSUS
THE STATE OF ASSAM AND 3 ORS – Respondent
Crl.Rev.P./371/2022
Decided on : 30-08-2022
Indian Penal Code,1860 - Section 379/411 - Code of Criminal Procedure,1973 - Sections 401/397 and 451 – Offence of theft – Dishonestly receiving stolen property - Charged - Police Station lodged an FIR with Officer-In-Charge, P.S. to effect that on that day at about 12-30 pm, during Naka Checking they found 26 bags of betel nuts, weighing 1936 kg, being carried by one, inside dickey of a bus, bearing registration No., which was proceeding towards side, and he could not produce any supporting documents and as such same are suspected to be stolen article and seized accordingly preparing seizure list - Upon said FIR, P.S. Case No. has been registered and investigation was being carried out - Petitioner had filed one petition, No. seeking custody of seized 26 bags betel nuts before learned Judicial Magistrate, and then vide impugned order, dated learned Magistrate, had rejected petition filed by petitioner - Whether betel nuts are fit for human consumption or not.
Finding of Court :
A careful perusal of impugned order dated , reveals that while dismissing petition, learned court below has considered report of I.O. that seized betel nuts are not required for purpose of investigation - Learned court below has also considered fact that ownership of betel nuts could not be established by producing the GST Bills by petitioner and also due to non receipt of report from Agriculture Department as to whether betel nuts are fit for human consumption or not - Seized betel nuts are subject to speedy natural decay - And same are not required for purpose of investigation- From the date of seizure, till date, more than 128 days, already elapsed - There is no allegation of theft in respect of said seized betel nuts - Learned counsel for petitioner has also produced one certificate issued by Gaon Burah and Chairman of Zutovi Village in respect of purchasing of betel nuts from their village - Moreover, he is ready to pay tax, if required by any rule, for same - Under above facts and circumstances, it cannot be said that impugned order withstand the test of legality, propriety and correctness.
Result : Court find sufficient merit in this revision petition, and accordingly, same stands allowed.
JUDGMENT :
1. This revision petition, under Sections 401/397 of the Code of Criminal Procedure, is directed against the order dated 09.06.2022, passed by the learned Judicial Magistrate, Bokajan, Karbi-Anglong, Assam, in Khatkhati P.S. Case No. 27/2022, under section 379/411 IPC. It is to be noted here that vide impugned order, dated 09.06.2022, the learned Judicial Magistrate, Bokajan, Karbi-Anglong, Assam, has rejected the petition No. 105/2022, filed by the petitioner-Md. Rajibul Islam, seeking custody of 26 bags of betel nuts, seized by Police in connection with the aforementioned case.
2. The factual background, leading to filing of the present petition, is briefly stated as under:
3. Being highly aggrieved, the petitioner has approached this court by filing the present petition, on the ground that the learned court below had failed to consider the fact that the seized betel nuts, are lying in the police station for more than 128 days, and that it had failed to consider the report of the I.O. that the seized betel nuts were not required for the purpose of investigation, and that no body, except the petitioner had claimed the betel nuts, and that the petitioner, had purchased the same locally from Zutovi Village, Dimapur, Nagaland and transporting the same to Rupahi, and that the petitioner is ready to pay tax for the same, and that the value of the betel nuts are diminishing day by day and subject to speedy and natural decay and in the event of damage, the petitioner will suffer loss of Rs. 4,50,000/, and that the learned court below had failed to exercise its jurisdiction under section 451 Cr.P.C. and that one Mobile Phone was also seized by Police and the same is required for his personal use and therefore, it is contended to allow the petition.
4. The respondents side has not filed any objection herein this petition, though opportunity is afforded to it.
5. I have heard Mr. M.A. Sheikh, learned counsel for the petitioner, and also heard Mr. P. Borthakur, the learned Addl. P.P. for the state respondent.
6. Mr. Sheikh, the learned counsel for the petitioner, submits that the petitioner had purchased the betel nuts locally from Zutovi Village, Dimapur and transported the same to Rupahi and he is the legal owner of the same and he is ready to pay Tax and that the betel nuts are lying the P.S. Campus for more than 128 days and is a subject to speedy natural decay and in the event of damage he will suffer losee to the tune of Rs. 4,50,000/ and that the learned court below has committed manifest illegality by dismissing the petition. Mr. Sheikh has also produced documents of purchasing the same from Dimapur Nagaland. Mr. Sheikh, therefore, contended to allow the petition by setting aside impugned order. Mr. Sheikh also referred following case laws in support of his submission:-
(ii) M/S Kumar Traders And Company & Anr. vs. The State of Assam & 4 Ors. : WP(C) 4785/2017
7.
Point of Law : Ownership of betel nuts could not be established by producing the GST Bills by the petitioner and also due to non receipt of report from Agriculture Department.
The court established that while Section 451 of the Cr.P.C. cannot be applied during the investigation, the court retains the discretion to invoke other provisions to prevent loss, particularly in ca....
Section 123 of Act, 1962 provides that where any goods included under Sub-section 2 of Section 123 are seized on basis of reasonable belief that same are smuggled goods, then burden of proving that t....
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 p....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
