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GAHC010021172024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./38/2024
SAMAR ALI LASKAR
S/O KUDRAT ALI
VILL- BORJANI MAJGAON
P.S. JAMUNAMUKH
DIST. HOJAI, ASSAM
PIN-782435
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:OFFICER-IN -CHARGE
JAMUNAMUKH POLICE STATION
DIST. HOJAI
ASSAM
PIN-78242
Advocate for the Petitioner : MR K BHUYAN
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
29.02.2024
Heard Mr. K. Bhuyan, learned counsel for the petitioner. Also heard Mr. D.
Das, learned Additional Public for the State of Assam.
2. This is an application filed under Section 397/401 of the Code of Criminal
Procedure, 1973, praying for releasing the seized articles of 49 bags of areca
nuts which has been seized by the police in connection with Jamunamukh P.S.
Case No. 44/2023, registered under Sections 379/411 of the Indian Penal Code
arising out of Jamunamukh P.S. GDE No. 348 dated 24.08.2023.
3. In this regard, Mr. Das, learned Additional Public Prosecutor has produced
the Status Report along with the FSL Report issued by the Food Analyst to
Government of Assam, Guwahati, which revealed that the areca nuts which
were seized in connection with this case are not suitable for use for human
consumption and apart from that the case has already been charge-sheeted
vide CS No.60/2023 dated 31.12.2023 against the accused/petitioner.
4. On the other hand, Mr. Bhuyan, learned counsel for the petitioner has
submitted that the seized articles are perishable goods and since last 6 (six)
months the goods are under police custody, and hence, there is a probability of
damage of those seized goods, if, further kept under the police custody. He also
submits that the accused/petitioner is the owner of the seized areca nuts and no
one other then the petitioner claimed for the seized goods which he had
purchased and collected for his business purposes.
5. In support of his submission, Mr. Bhuyan, learned counsel for the petitioner
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relies on the decision passed by the Hon’ble Apex Court reported in (2002) 10
SCC 283 [Sunderbhai Ambalal Desai vs. State of Gujrat] , wherein, he
emphasized mainly in paragraph Nos. 7 and 8 of the said judgment which read
as under;
“7. In our view, the powers under Section 451 Cr.P.C. should be exercised
expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its
misappropriation.
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared,
that can be used in evidence instead of its production before the Court during the trial.
If necessary, evidence could also be recorded describing the nature of the properly in
detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so
that there may not be further chance of tampering with the articles.
8. The question of proper custody of the seized article is raised in number of
matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977]
4 SCC 358, this Court dealt with a case where the seized articles were not available for
being returned to the complainant. In that case, the recovered ornaments were kept in
a trunk in the police station and later it was found missing, the question was with
regard to payment of those articles. In that context, the Court observed as under-
"4. The object and scheme of the various provisions of the Code appear to be that
where the property which has been the subject-matter of an offence is seized by the
police, it ought not to be retained in the custody of the Court or of the police for any
time longer than what is absolutely necessary. As the seizure of the property by the
police amounts to a clear entrustment of the property to a Government servant, the
idea is that the property should be restored to the original owner after the necessity to
retain it ceases. It is manifest that there may be two stages when the property may be
returned to the owner. In the first place it may be returned during any inquiry or trial.
This may particularly be necessary where the property concerned is subject to speedy
or natural decay. There may be other compelling reasons also which may justify the
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disposal of the property to the owner or otherwise in the interest of justice. The High
Court and the Sessions Judge proceeded on the footing that one of the essential
requirements of the Code is that the articles concerned must be produced before the
Court or should be in its custody. The object of the Code seems to be that any
property which is in the control of the Court either directly or indirectly should be
disposed of by the Court and a just and proper order should be passed by the Court
regarding its disposal. In a criminal case, the police always acts under the direct
control of the Court and has to take orders from it at every stage of an inquiry or trial.
In this broad sense, therefore, the Court exercises an overall control on the actions of
the police officers in every case where it has taken cognizance."
6. Per contra, Mr. Das, learned Additional Public Prosecutor has submitted that
the case has already been charge-sheeted and the FSL Report has already been
received by the I.O. He further raised a point in regards to the SOP of the
Government for disposal of the seized areca nuts/betel nuts, where as per the
said SOP in clause 15, it is stated that “It may happen that even if the seizures
are unfit for human consumption there may be a owner or a claimant who may
submit a plea before the Court that they would use such betel nuts as a raw
material for manufacturing of some non-edible products and that the same will
not be used for human consumption. In that case the Superintendent of Police
would get the claim verified and report to the Court. If the claim is genuine,
then the Court should be requested to impose strict conditions to ensure that
the betel nuts are used as per claim and not for human consumption.”
7. Accordingly, the learned Additional Public Prosecutor has submitted that
the petitioner can file a proper application before the Superintendent of Police to
verify the claim which may be place before the learned Trial Court, and if the
Trial Court finds the claim as genuine one, then, the order may be passed
accordingly with some strict conditions. Further, if the accused/petitioner is
given the zimma of the seized beetle nuts without any verification or report from
the Superintendent of Police, and the same is sold in the open market then in
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that case, there may be health hazard which may be endanger of life and may
also affect the general public at large.
8. He further, submits that as per the SOP in clause-15 for disposal of the
sized betel nuts issued by the Additional Director General of Police, CID, Assam,
where verification is to be done by SP, whether, the seized areca nuts would be
used for raw material for manufacturing non-edible products and that the same
will not be used for human consumption.
9. So considering the entire facts and circumstances of the case as well as
considering that the case has already been charge-sheeted, I find it appropriate
to direct the accused/petitioner to file a proper application before the learned
Trial Court for seeking report from the SP regarding seized areca nuts as well as
to verify the genuineness of the claim of the petitioner. Further, on receipt of the
said report from the concerned S.P, if the learned Trial Court finds the report
satisfactory one, then, the Court may dispose of the zimma petition in
accordance with law.
10. With above observations, this criminal revision petition stands disposed of.
JUDGE
Comparing Assistant