The central legal point established in the judgment is that custody of seized illegal intoxicants should be subject to the procedure laid down under Sec. 75 of the Assam Excise Act, 2000, and discrepancies in documents should be carefully evaluated before granting custody to the accused.

JUDGMENT :

RUMI KUMARI PHUKAN, J.

1. Heard Mr. D. Gogoi, learned Standing Counsel, Excise Department, Govt. of Assam, representing the petitioners. Also heard Mr. P.J. Saikia, learned counsel appearing for the respondents.

2. By filing this application under Sec. 482 of the Cr.P.C. read with Article 227 of the Constitution of India, the State of Assam, as petitioner no. 1 and one of its officer as petitioner no. 2 have sought for quashing and setting aside the order dated 17/7/2021, passed by the learned Sessions Judge, Dibrugarh in Crl. Revision No. 15(3)/2021, whereby the custody/zimma of the seized vehicle as well as the consignment of 1000 cases of rum/whiskey have been granted de hors the provisions of the Assam Excise Act, 2000.

3. The case of the parties, in brief is that, on 11/6/2021, at about 6:30 A.M., the Dibrugarh Excise team led by the Deputy Superintendent of Excise, intercepted a truck bearing Registration No. AS-06-AC-8975, based on sourced information, near Jamira in Dibrugarh District. The truck was carrying 1000 cases of IMFL from M/s. Angels Share Enterprises, Likabali, Arunachal Pradesh, to M/s. New World Wine, Longding, Arunachal Pradesh, as per the documents related to the consignment. However, upon physical verification, the consignment was found comprising of 1008 cases of IMFL. As, the physical stocks of the consignment and the recorded figures in the documents of the consignment were found not matching each other, the truck along with the consignment of 1008 cases of IMFL was seized and Dibrugarh Excise Case No. DBR-12/21 was registered in connection with the aforesaid case under Sec. 53(1)(a) of the Assam Excise (Amendment) Act, 2018.

4. The seized vehicle as well as the liquor were produced before the learned CJM, Dibrugarh. The seized liquor and the vehicle was directed to store at the licensed warehouse premises of M/s. Royal Paradise Wholesale Warehouse, Dibrugarh.

5. On 19/6/2021, a zimma petition for custody of the vehicle and the IMFL was filed by Anil Kumar Agarwalla, on the strength of a power of attorney executed by license holder Chinknga Wangpan before the learned SDJM (S), Dibrugarh. On the basis of which, the learned court called for a report from the I.O., pursuant to which, a status report was submitted by the I.O. before the Court, on 24/6/2021. In the said report, it was stated that the ownership of the consignment of IMFL could not be properly ascertained. It was also stated in the report, that in spite of issuance of notice under Sec. 41(a) of the Cr.P.C. the accused persons have not appeared before the I.O. and stated that further investigation of the matter is required to be carried out.

6. On receipt of the status report, learned court on 24/6/2021 rejected the zimma prayer of the applicants. However, in a criminal revision preferred before the learned Sessions Judge, Dibrugarh, vide Crl. Revision No. 15(3)/2021 and by the impugned order dated 17/7/2021, the custody/zimma of the seized vehicle as well as the seized IMFL have been granted to the respondents.

7. Being highly aggrieved by the said order of the learned Sessions Judge, Dibrugarh, present petition has been preferred contending that handing over custody of an illegal intoxicant to the persons who has committed the offence, will result in releasing the same into the market and will defeat the provisions of the Act itself. Moreover, Sec. 71 of the Act raises the presumption, that any person who is found in possession of intoxicant for which he cannot give any satisfactory explanation shall be presumed to have committed an offence under the Act unless the contrary is proved. Therefore, custody/zimma of an illegal intoxicant involved in an offence under the Assam Excise Act, 2000 cannot be handed over to the accused as a matter of routine and should be subject to the procedure laid down under Sec. 75 of the Act.

8. It is also contended by the petitioners that as regard custody and disposal of seized property, special provision h