ORDER

13.12.2024 Heard Mr. B. D. Konwar, learned Senior Counsel assisted by Mr. H. Agarwal, learned counsel for the petitioner. Also heard Ms. S. H. Borah, learned Additional Public Prosecutor for the State respondent.

2. This application is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, read with Section 438 thereof, against the impugned Order dated 04.10.2024, passed by the learned Sub-Divisional Judicial Magistrate (M), Margherita, whereby the petitioner’s application for zimma/custody of the seized coal in connection with Lekhapani P.S. Case No. 35/2024 was rejected, and further observing that, vide Order dated 27.09.2024, zimma of the said seized coal was granted to the Directorate of Geology and Mining, Assam.

3. The Case diary has been received and I have perused the same.

4. It is submitted by Mr. Konwar, learned Senior Counsel, that the petitioner’s business involves processing coal into coke and distributing it across India. He had taken leased land for the coal depot with authorization from the landowner, Mr. Hetobi Sema. Additionally, the petitioner has registered his proprietorship concern with the GST department to conduct his business. The petitioner contends that he has acquired the requisite NOC from Lalpahar Village Panchayat, as well as consent to establish from the Pollution Control Board to set up the coal depot. He also has a license from Lekhapani Gaon Panchayat and a certificate of registration under the Assam Shops and Establishment Act. However, on 15.07.2024, the Sub-Divisional Officer (Civil), Margherita, seized the coal stored at the petitioner’s depot, along with all goods, machinery, furniture, buildings, and other items located there, without providing any prior notice to the petitioner. Subsequently, the SDO (Civil), Margherita, issued a notice to the landowner, Mr. Hetobi Sema, vide No. MRJ.1/2023/PT, dated 15.07.2024, stating that during a spot visit, the said coal was found stored on his premises as of 16.07.2024. The landowner was further directed to submit certain details regarding the coal stored on his premises, including land documents. The respondent No. 3, the Senior Geologist from the Office of the Resident Geologist, Directorate of Geology and Mining, Assam, then handed over the custody of the coal to SI (P) Rajib Deka of Lekhapani Police Station, vide a Handling Over Certificate dated 16.07.2024, bearing No. DGM/RM/MM/CIL/25. Thereafter, the Directorate of Geology and Mining approached the learned Trial Court with a petition for zimma, which was disposed of on the grounds that it might be hazardous to the people of the locality. Accordingly, the prayer was allowed by the Trial Court, vide order dated 27.09.2024. Subsequently, the petitioner approached the learned Trial Court with a petition for zimma on 01.10.2024 (Petition No. 382/2024), seeking zimma of the seized coal. He also submitted various documents in support of the petition to prove the ownership of the coal, as well as to show that he legally purchased the coal for business purposes. However, the learned Trial Court rejected the petitioner’s prayer merely on the ground that, by its earlier order dated 27.09.2024, the Court had already allowed the zimma of the seized coal to the Directorate of Geology and Mining, Assam. Thus, the petition was rejected without even perusing the documents annexed to it.

5. Mr. Konwar, learned Senior Counsel, further submits that it is settled law that under Section 106 of the BNSS, a police officer is not empowered to seize immovable property, land, plots, residential houses, streets, or similar properties. As such, in the instant case, the sealing of the petitioner’s premises by putting a lock amounts to the seizure of the same and, therefore, violates the law laid down by the Hon'ble Supreme Court in the case of Nevada Properties Private Limited vs. The State of Maharashtra & Anr., reported in (2019) 20 SCC 119, wherein, he relies on paragraph 47 of the said judgment