O R D E R

01.06.2022 By way of this petition under Sections 397 and 401 CrPC, the petitioner has challenged the orders dated 20.04.2022, 26.04.2022 and 05.05.2022 passed in petition nos.139/2022, 159/2022 and 177/2022 respectively by the SDJM (M), North Salmara, Abhayapuri in Abhayapuri P.S. Case No.128/2022 under Section 13/14 of the Assam Game and Betting Act, 1970, corresponding to N.G.R. No.184/2022, rejecting the zimma petitions filed by the petitioner under Section 451 CrPC for taking zimma of his motorcycle bearing registration no.AS-19-G-8276.

Referring to the documents annexed, it is submitted by the learned counsel for the petitioner that informant herein who is a police official arrested three accused persons and the allegations against them that they are involved in illegal gambling in the house of Saifur Rahman of Pancha Village. Along with the accused persons police also seized certain articles regarding gambling, like- play cards, cash amount and one motorcycle bearing registration no. AS-19-G-8276. It is submitted that the accused persons so arrested in connection with the aforesaid case has already been released on bail and the present petitioner Dharmendra Narayan Dev who is the brother of one of the accused Kalyan Narayan Dev sought for zimma of the above seized motorcycle. The learned trial court rejected the zimma prayer on two occasions, firstly- on 26.04.2022 and on 05.05.2022, which has arisen out of Abhayapuri P.S. Case No.128/2022 under Section 13/14 of the Assam Game and Betting Act, 1970.

The petitioner has now challenged both the aforesaid orders on the ground that the court has erred while appreciating the facts that the petitioner being the registered owner of the motorcycle is entitled for zimma of the said motorcycle more particularly as the motorcycle was not involved in the commission of the offence alleged.

I have heard the submission of the learned counsel for the petitioner as well as learned Addl. Public Prosecutor, Assam representing the State.

Also gone through the documents and the impugned orders.

Primarily, the trial court by referring to Section 10 of the Assam Game and Betting Act, 1970 has rejected the prayer for zimma and also considered the prayer made by the I/O that the petitioner has not submitted proper proof of ownership of the vehicle, for which his ownership could not been established.

A bare perusal of the FIR as well as forwarding report, it reveals that the three persons named in the FIR were involved in illegal gambling and I/O while arresting the accused persons also seized one motorcycle from the premises as mentioned in the FIR. So far as regard the provision of Section 10 of the Assam Game and Betting Act, 1970, it provides as under:

“10. On conviction of any person for an offence under the provisions of this Act, the convicting Magistrate shall order all the instruments and records of betting found therein to be destroyed and shall order all and any of the securities for money and other articles seized, not being instruments or records of betting to be sold and converted into money and the proceeds thereof and all money seized therein to be forfeited.”

Obviously, the above provision provides the confiscation/forfeiture in the event of conviction and closure of the proceeding. The provision also indicates that Magistrate can direct for confiscation only if the articles seized were found instrument of betting. It is visible that the motorcycle in question is not meant for game and betting under the provision of the Act of 1970.

The learned trial court has not appreciated the aforesaid aspect while considering the zimma petitions. On the other hand, the petitioner herein who is not an accused in the said case and stated to be a registered owner of the vehicle vide Annexure-6 is the RC of the said motorcycle stood in the name of the petitioner, which is valid upto 25.02.2030. The motorcycle is also under insurance coverage vide Annexure-7.

In the fitness of the matter, it can