IMPORTANT POINT
The central legal point established is that the perishable nature of seized items and the lack of evidence of theft should be considered when deciding on custody of seized goods.

JUDGMENT :

1. Heard Mr. S. Hoque, learned counsel for the petitioner. Also heard Mr. K. Baishya, learned Additional Public Prosecutor for the State.

2. This application under Section 482 of the Code of Criminal Procedure, 1973, read with Article 227 of the Constitution of India has been preferred by the petitioner, namely, Abul Kalam Azad impugning the order dated 09.11.2023 passed by the learned Additional Sessions Judge, Kamrup, Amingaon in Criminal Revision No. 39/2023 whereby the learned Additional Sessions Judge, Kamrup, Amingaon has upheld the orders dated 28.07.2023 and 23.08.2023 passed by the learned Chief Judicial Magistrate, Kamrup, Amingaon in connection with Chhaygaon P.S. Case No. 235/2023 whereby the prayer of the present petitioner seeking zimma of the 460 bags of rice (each bag containing 49 kgs. rice approximately) which were seized in connection with Chhaygaon P.S. Case No. 235/2023 was rejected.

3. The facts relevant for consideration of the instant criminal petition, in brief, are as follows:-

i. That on 15.05.2023, one Ankit Kumar, SI of Police had lodged an FIR before the Officer-in-charge of Chhaygaon Police Station, inter alia, alleging that on the basis of an information received from some reliable sources that one Abul Kalam Azad (present petitioner) has illegally collected huge quantity of rice from different places and stored in his godown located in Jorshimuli market for smuggling the same for his personal gain. On receipt of said information, a general diary was made in the police station and the informant along with the other police personnel arrived at the godown of Abul Kalam Azad and recovered total 460 bags of rice (each bag containing approximately 49 kg of rice).

ii. It is also stated in the FIR that the owner of the godown Abul Kalam Azad was present at the time of conducting the search, however, he failed to produce any document relating to purchase and storage of such huge quantity of rice. It is also stated in the FIR that the seized rice was brought to the police station and the petitioner was also brought to the police station for interrogation. On receipt of said FIR, Chhaygaon P.S. Case No. 235/2023 was registered.

4. Learned counsel for the petitioner has also submitted that the petitioner Abul Kalam Azad was arrested in connection with Chhaygaon P.S. Case No. 235/2023 on 15.05.2023, however, as the Court of learned Chief Judicial Magistrate, Kamrup granted him bail and he was released on 16.06.2023. It is also submitted by the learned counsel for the petitioner that the petitioner is a businessman carrying out the business of rice in the name and style of “Saraighat Enterprise” and he used to purchase rice from Jorshimuli market at a cheaper rate and stored it in his go down situated in the said market. The petitioner has annexed as Annexure- I, a certificate issued by the President and Secretary of Jorshimuli Anchalik Market Management Committee to the effect that the petitioner is running the business of rice at Jorshimuli weekly Saturday market.

5. It is also submitted by the learned counsel for the petitioner that the petitioner used to purchase the “Atap” rice from the open market and used to store the same in his godown. It is also submitted by the learned counsel for the petitioner that after getting released on bail, the petitioner had filed a zimma petition before the learned Chief Judicial Magistrate, Kamrup seeking zimma of the seized rice, however, the learned Chief Judicial Magistrate by his order dated 23.08.2023 rejected the prayer for zimma on the ground that by an earlier order dated 28.07.2023, he had already directed the Investigating Officer to sell the entire quantity of seized rice through auction.

6. Being aggrieved by the said order, the petitioner had filed the criminal revision petition before the Court of the learned Additional Sessions Judge, Kamrup, Amingaon. The said criminal revision petition has been registered as Criminal Revision No. 39/2023. By