The court emphasized the need for caution in exercising inherent powers under Section 482 of the CrPC and highlighted the importance of scrutinizing evidence before drawing conclusions.

The petitioners in this case are the State of Assam represented by the Secretary to the Department of Excise and Sri Pranjal Panging, Deputy Superintendent of Excise, Kamrup (Metro) cum Investigating Officer (IO for short) of Excise case No. NM/EX.01/2023. The respondents in this case are the (1) Modi Distillery (2) Sri Parag Jyoti Boragi, Manager/authorized representative of Modi Distillery, a unit of Modi Industries, Modi Nagar, Ghaziabad and (3) Sri Momon Hateli, LDC (S) In-Charge G.P. 5, CSD Depot, Narengi. Modi Distillery/Modi Industries Limited (MIL) is a public limited company, which came into existence in the year 1932 with its office at Modi Nagar, Uttar Pradesh.

2. This case in brief is that on 24.02.2023 at about 1:00 P.M., the petitioner No. 2 as directed by the Superintendent of Excise, Kamrup (Metro) visited CSD Depot Narengi, regarding an information submitted by the Officer-In-Charge, CSD, Narengi dated 23.11.2022 under No. NGD/GP-V/Excise/ that consignment of 300 cases i.e. 3,600 bottles of ‘Rockford Reserve Fine & Rare Whiskey 750 ml’ Batch No. 218/L1 dated November 2022, was imported to CSD Bonded Warehouse Narengi, C/O Narengi Cantt, Satgaon on 16.11.2022 from the Modi Distillery, a unit of Modi Industries, Modi Nagar at Ghaziabad. During the examination of the consignment, it was found that the holograms were missing in clear violation of the Assam Excise Act, 2000 (Act of 2000, for short) and the Rules framed thereunder by not affixing hologram on the bottles at the time of import. The aforementioned consignment was seized and given in custody to Momon Hateli, LDC (S) In-Charge G.P. 5 for safe custody at CSD Depot, Narengi and the Excise Case No. NM/EX-01/2023 was registered at Noonmati Excise Circle under Sections 58(b) & 64A of the Act of 2000.

3. On 28.02.2023, the petitioner No. 2 forwarded the complaint along with the seizure list to be produced before the learned Chief Judicial Magistrate, Kamrup (M) (CJM for short) regarding the excise case captioned above. Vide order dated 28.02.2023 the learned SDJM (S) No. I, Kamrup (M) had seen seized sample and the same was forwarded for chemical analysis.

4. Meanwhile, a petition for zimma was filed seeking custody of the seized quantity of liquor by Sri Parag Jyoti Boragi/respondent No. 2 herein, Manager/authorized representative of Modi Distillery whereupon, vide order dated 28.07.2023, the IO was called upon to furnish a report if he had objection against the prayer of zimma of the seized articles and whether the respondent No. 2 was the actual owner of the seized articles.

5. On 01.08.2023, Sri Pranjal Panging/petitioner No. 2 submitted his report before the learned Judicial Magistrate 1st Class (Magistrate for short) with a prayer to reject the zimma petition, because the CSD Bonded Warehouse Narengi, C/O Narengi Cantt, Satgaon is the consignee and Modi Distillery was the consignor. Thus, the respondent No. 2, Manager/Authorized representative of respondent No. 1, cannot be considered to be the owner of the seized articles. It was also further submitted that the consignment would be required for further investigation.

6. It is contended that vide the order dated 08.08.2023 the learned Magistrate without considering the report dated 01.08.2023 submitted by the petitioner No. 2, directed the IO to handover the custody of the seized articles to the respondent No. 1. It is averred that the learned Magistrate has also failed to appreciate that the consignment of alcohol was not some article merely involved in the alleged offence, but was the subject matter of the offence itself. The order dated 08.08.2023 has also rendered the powers of the Excise Department under Sections 74 and 75 of the Act of 2000 infructuous to confiscate any intoxicant, receptacles, packages, vessel, conveyance etc., whenever an offence under the Act is committed.

7. It is further contended that under the provisions of Section 71 of the Excise Act, the presumption is that whenever any person