Gauhati High Court
Page No.# 1/8 vs The State Of Assam And 10 Ors on 19 October, 2021
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/8
GAHC010174692021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5591/2021
ASSAM TRADING AND MARKETING AGENCY AND ANR
HAVING ITS HEAD OFFICE AT GROUND FLOOR, HOUSE NO. 25/C
PARGONA, BARAKPAR, MOUZA BARENGA, SILCHAR-1, CACHAR (ASSAM)
(TO BE REPRESENTED BY ITS PROPRIETOR IQBAL BAHAR, AGED ABOUT
37 YEARS, S/O ABDUL MALIK, A R/O VILL. UMAPATI, P.O. BETAIL, P.S.
KARIMGANJ, DIST. KARIMGANJ, ASSAM.
2: JAISWAL ENTERPRISES
ADDRESS OF PRINCIPAL PLACE OF BUSINESS AT HOUSE NO. 87
HOWAIBARI
TELIAMURA
RANGAMURA TAIDU ROAD
WEST TRIPURA
TRIPURA 799205 (TO BE REPRESENTED BY ITS PROPRIETOR SUDHIR
JAISWAL
AGED ABOUT 27 YEARS
S/O TARA SHANKAR JAISWAL
A R/O VILL. HOUSE NO. 87
HOWAIBARI
P.O. TELIAMURA
P.S. RANGAMURA TAIDU ROAD
DIST. WEST TRIPURA (TRIPURA)
PIN 79920
VERSUS
THE STATE OF ASSAM AND 10 ORS
TO BE REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT
OF ASSAM, HOME DEPTT., DISPUR, GUWAHATI 6
2:THE SUPERINTENDENT OF POLICE
KARIMGANJ
DIST. KARIMGANJ
Page No.# 2/8
ASSAM.
3:THE DEPUTY COMMISSIONER
KARIMGANJ
DIST. KARIMGANJ
ASSAM.
4:DEPUTY INSPECTOR GENERAL OF POLICE (RAILWAY)
GUWAHATI
ASSAM.
5:THE SUPERINTENDENT OF RAILWAY POLICE
PANDU
GUWAHATI
ASSAM.
6:THE OFFICER IN CHARGE
BADARPUR GRPS CUM INVESTIGATING OFFICER IN BADARPUR GRPS
CASE NO. 13/2021 NAMELY SI BUDDHA CHANDRA SINGHA
P.O. BADARPUR
DIST. KARIMGANJ
ASSAM.
7:ASI MOJIBUR RAHMAN
BADARPUR GRPS
BADARPUR
KARIMGANJ
ASSAM.
8:THE GENERAL MANAGER
N.E.F. RAILWAY
MALIGAON
GUWAHATI 12
9:DIRECTOR
TRAFFIC COMMERCIAL (CLAIMS) RAILWAY BOARD
NEW DELHI
10:PRINCIPAL CHIEF COMMERCIAL MANAGER
N.E.F.RAILWAY
MALIGAON
GUWAHATI 12
Page No.# 3/8
11:THE STATION MANAGER
BADARPUR RAILWAY STATION (JUNCTION)
BADARPUR
DIST. KARIMGANJ
ASSAM
Advocate for the Petitioner : MR A R BHUYAN
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 19-10-2021 Heard Mr. A R Bhuyan, learned counsel for the petitioners. Also heard Mr. P Nayak, learned counsel for the respondent no. 1 being the Commissioner and Secretary to the Government of Assam in the Home Department, Guwahati and Mr. R Dhar, learned counsel for the respondents no. 2, 3, 4, 5, 6 and 7 being the authorities under the Assam Police.
2. None appears for the respondents no. 8, 9, 10 and 11 being the authorities under the NF Railway although their names are shown in the cause list and notices had also been served. However, considering the nature of the order proposed to be passed, none appearance on behalf of the respondents no. 8, 9, 10 and 11 need not impede the Court any further.
3. The petitioner no. 1 Assam Trading and Marketing Agency having its head office at Silchar and represented by Iqbal Bahar and the petitioner no. 2 Jaiswal Enterprises having its principal place of business in West Tripura of Tripura being represented by the Sudhir Jaiswal are both registered marketing agencies under the Government of India for the purpose of trading and business of agricultural Page No.# 4/8 products including dry betel nuts which is also called as areca nuts.
4. An FIR was lodged by the ASI Mazibur Rahman of Badarpur Government Railway Police Station resulting in Badarpur GRPS Case No. 13/2021 registered under Section 120(B)/420/379/411/471 of Indian Penal Code on the allegation that certain suspected substances were being transported through a Parcel Special train which was halled at Badarpur Railway station and such suspected substances would adversely affect the financial security of the nation. Pursuant to the registration of the aforesaid FIR, 17 (seventeen) railway wagons containing dry betel nuts/areca nuts were seized as per seizure list dated 11.09.2021.
5. The aforesaid seizure led to the order dated 21.09.2021 of the learned Additional CJM, Karimganj in Badarpur GRPS Case No. 13/2021. The said order was passed in an application by the authorities under the Badarpur GRPS under Section 451 of the Cr.P.C. for auction of the seized unclaimed dry betel nuts/areca nuts. The learned Additional CJM by the order dated 21.09.2021 arrived at its conclusion that even after the examination of the witnesses and a preliminary investigation being made, no consigner could be identified or be communicated with and therefore, the ownership of the seized property remained undetermined. As the seized goods were found to be perishable in nature, therefore, an order was passed directing the Deputy Commissioner, Karimganj, Superintendent of Police, Railway and Superintendent of Police, Karimganj for publication of an auction notice in the respective official website. The order dated 21.09.2021 of the learned Additional CJM, Karimganj was assailed by Tomjidur Rahman in Criminal Revision No. 30(3) of 2021 before the learned Sessions Judge, Karimganj. The learned Sessions Judge in the order dated 30.09.2021 arrived at a satisfaction that the dry betel nuts/ areca nuts Page No.# 5/8 were fit for human consumption and that there was a claim by the petitioner in the Criminal Revision No. 30(3) of 2021 namely Tomjidur Rahman before the Court that he has the ownership over the seized articles. Accordingly by the order dated 30.09.2021, liberty was given to Tomjidur Rahman to make proper prayer as per law in respect of the seized articles and in the event of a failure to make a valid claim over the seized articles, the Investigating Officer would be at liberty to proceed as per law. The order dated 30.09.2021 was assailed in Criminal Petition No. 575/2021 which was given a final consideration by the order dated 08.10.2021.
6. In the order dated 08.10.2021 of this Court in Criminal Petition No. 575/2021, a submission of the learned Public Prosecutor was recorded that out of 17 (seventeen) wagons ownership were available only in respect of 4 (four) wagons and in respect of balance 13 (thirteen) wagons there is no claim and therefore, unless the seized articles of the balance 13 (thirteen) wagons are put up in auction, the same would perish and would cause substantial loss of revenue to the State.
7. In light of the aforesaid submission, this Court by its order dated 08.10.2021 in Criminal Petition No. 575/2021 had allowed the prayer of the Investigating authority to proceed with the auction.
8. We have to take note that to allow the prayer to proceed with the auction was made on the premises of the submission of the learned Public Prosecutor that no claimants were available for the balance 13 (thirteen) wagons. In the aforesaid circumstances, applications were made before the learned Additional CJM, Karimganj by Md. Tamjidur Rahman, Md. Kabil Ahmed Barbhuiya , Md. Iqbal Bahar, Sunil Kumar Das and Sudhir Jaiswal seeking zimma of the seized dry betel nuts/areca nuts on the basis of their claims that they are the owners Page No.# 6/8 of the seized property. The said application was given a consideration by the learned Additional CJM by the order dated 16.10.2021. In the order of 16.10.2021, the submission of the Investigating Officer was recorded that as the ownership of the seized articles were not ascertained, therefore, the zimma thereof could not be handed over to the applicants before the Court. In the order dated 16.10.2021, the learned Additional CJM, Karimganj arrived at his satisfaction that the ownership of Sunil Kumar Das over the seized articles could not be ascertained. In doing so, a satisfaction was also arrived at by the learned Additional CJM, Karimganj that even in respect of another applicant Md. Tamjidur Rahman the claim of ownership could not be ascertained. Based upon such satisfaction, the zimma claimed for by the aforementioned 5 (five) persons stood rejected.
9. In the aforesaid circumstance, this writ petition is instituted by the two petitioners who are represented by Iqbal Bahar and Sudhir Jaiswal being the petitioners no. 1 and 2 and the resultant auction notice dated 12.10.2021 by which the auction of the seized articles were fixed on 21.10.2021 has been assailed.
10. We put a query to the learned counsel for the petitioners as to what legal right the petitioners have over the seized articles so as to warrant an interference by this Court under Article 226 of the Constitution of India against the auction notice. The reply given by Mr. A R Bhuyan, learned counsel for the petitioners is that the petitioners are the owners of the seized articles. In other words, in order to arrive at a legal right of the petitioners so as to determine any legal injury that they may suffer because of the impugned auction notice, this Court would also have to arrive at its conclusion that the two persons namely Iqbal Bahar and Sudhir Jaiswal are the owners of the seized articles/part Page No.# 7/8 of the seized articles. The very question is a disputed question of fact which cannot be entertained by the Court under Article 226 of Constitution of India but at the same time we have noticed that the applications were also submitted by Md. Iqbal Bahar and Sudhir Jaiswal before the Additional CJM seeking zimma of the seized articles by claiming that they have ownership over the articles/part of the articles.
11. While rejecting such application by the order dated 16.10.2021, the learned Additional CJM, Karimganj had arrived at its conclusion that the ownership of Sunil Kumar Das and Tamjidur Rahman could not be ascertained but no conclusion was arrived at as regards the claim of ownership of Iqbal Bahar and Sudhir Jaiswal.
12. In the aforesaid circumstance, the appropriate remedy before the petitioners would be to move any application either revisional or appellate as may be provided under the Cr.P.C. in respect of the order dated 16.10.2021 which do not provide any conclusion as regards the claim of Iqbal Bahar and Sudhir Jaiswal as regards their claim of ownership over the seized articles/part of the seized articles. But there being an alternative remedy available, this writ petition under Article 226 of the Constitution of India would not be maintainable.
13. In the aforesaid circumstance, this writ petition stands rejected. However, liberty remains with the petitioners to invoke the appropriate provision of law as may be available under the Cr.P.C. as indicated above. In the event of any such application, a request is made to the learned Court wherever such application is made to take up the matter with urgency keeping in mind that the date of auction is 21.10.2021. In granting liberty to the petitioners to approach the Court as may be provided under the Cr.P.C. it should not be construed to be any Page No.# 8/8 indication that this Court had interfered with the impugned auction notice and the auction notice shall be viewed by the appropriate Court in the manner as the provided under the law.
14. Writ petition stands rejected in the above terms with liberty as granted.
JUDGE Comparing Assistant