Gauhati High Court
Asish Mandal vs The State Of Assam on 2 December, 2021
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/9
GAHC010182852021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./251/2021
ASISH MANDAL
S/O FATICK MANDAL
A RESIDENT OF RAILWAY STATION ROAD, RAJBARI, DHARMANAGAR,
P.O. AND P.S. DHARMANAGAR, DIST. NORTH TRIPURA, TRIPURA.
PROPRIETOR OF ASISH MANDAL,
HAVING ITS HEAD OFFICE AT RAILWAY STATION ROAD, RAJBARI,
DHARMANAGAR, NORTH TRIPURA.
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE LEARNED PP, ASSAM
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : PP, ASSAM
:: BEFORE ::
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
02.12.2021 By filing this petition under Section 397 read with Section 401 Cr.P.C., the Page No.# 2/9 petitioner has prayed for revision of the order dated 28.10.2021 passed by the learned Judicial Magistrate, 1st Class, Kamrup (M) in connection with GRPS P.S. Case No.93/2021, registered under Section 120(B)/420/471/379/413/34, whereby his prayer for zimma of seized betel nuts/Areca Nuts contained in two number of Railway wagons was rejected.
2. Heard Mr. K.N. Choudhury, learned senior counsel for and on behalf of the petitioner as well as Mr. D. Saikia, learned Advocate General, Assam representing State respondent. Also perused the case diary, as produced.
3. The brief facts that can be recapitulated from the matters on record is that on 11.09.2021 GRP on receipt of a credible information that huge quantity of supari/Arica Nuts (foreign origin) were being transported through Railway (Agartala-Sealdah Kanchenjunga Express), conducted a search inside the aforesaid train after arriving at Platform No.1 Guwahati Railway Station. During search, 535 nos. of gunny bags containing supari/betel nut/Areca Nuts suspected to be foreign origin and 15 nos. of gunny bags of suspected betel nuts, without any railway mark number was recovered and seized but there was no record of booking of betel nuts/ Areca Nuts and no claimant of the seized articles were also found. Accordingly, Guwahati GRPS Case No.93/2021 under Section 120(B)/ 420/ 471/ 379/413/34 IPC was registered and the investigation was started.
4. During investigation, several relevant documents and mobile handsets were also seized from the possession of the accused persons and call details of the accused persons were analysed.
5. The present petitioner preferred a zimma petition before the court of JMFC, Kamrup (M) praying for zimma of the seized betel nuts/Areca Nuts claiming Page No.# 3/9 himself to be the owner of those articles. The learned court obtained a report from the investigating officer in this regard. The investigating officer in his report has submitted that it was found during investigation that accused Asish Mandal does not deal with Areca Nut business and he is a simple businessman who runs a motor garage and could not invest such huge amount of Rs.1 crore in the business (value of Areca Nuts is more than Rs.1 crore). Further, investigation reveals that he is involved in smuggling racket along with other persons namely, Arif Ali Payal, Altaf Hussain and Abul Hussain Mazumdar. Those persons stated to have used the GST of the present petitioner in such business of Areca Nuts and the Areca Nuts was booked in the name of Asish Mandal.
6. The learned court on consideration of the report, various other documents and also considering the fact that the accused petitioner failed to produce relevant documents showing his financial capacity, has come to a finding that the seized articles were not legally procured goods and the matter is now subject-matter of trial and whereas the seized materials were suspected to be exported from foreign land, refused to give zimma of the seized articles in favour of the petitioner by the impugned order dated 28.10.2021.
Challenging the aforesaid order, the petitioner is before the Court.
7. Referring to the documents annexed, the petitioner contended that he is the proprietor of Trading Agency, namely "Asish Mandal" and his firm is duly registered with the Government of India with relevant GST vide GST Registration Certificate dated 03.08.2021. He also stated to have another agency in the name of M/S. Reliable Automobile Servicing Station with GST Registration Certificate dated 31.10.2017 and the petitioner deals in business of locally produced Areca Nuts and in the process he purchased local Areca Nuts under Panisagar Regulated Market area. For the purpose of supply of 535 bags Page No.# 4/9 Areca Nuts, he made a deal with Surojit Enterprise of 21 Amratala Street, Kolkata, West Bengal and executed two tax invoices amounting to `3,402,000/- and also procured E-Way Bills dated 14.09.2021 and 16.09.2021. The aforesaid consignments were booked by the petitioner agency under valid documents and NF Railway issued receipts in favour of the petitioner. Thus, it is contended that seizure of Areca Nuts despite having valid documents is bad in law and the learned court has failed to appreciate the matter and has rejected his zimma prayer purely on the basis the police report which is not proper. It is pleaded that petitioner being the owner of the article is legally entitled to zimma of the same, whereas there is no evidence that the seized nuts were of foreign origin but procured from local market.
8. At the time of hearing of the matter at the motion, the respondent's side pointed out that the process of auction sale of the seized article has already been initiated and this Court directed that the respondent can proceed with the auction but same should not be finalized till hearing of the matter.
Resisting the prayer made by the petitioner, the respondent filed affidavit-in- opposition in detail, highlighting certain findings surfaced during the investigation which is as below:
(a) Though seized Area Nuts were booked in the name of the petitioner but he does not himself deal in any supari business.
Rather, he has a small motor garage and associated with smuggling syndicate. The smuggling syndicate booked such smuggled supari in the name of the petitioner.
(b) Investigation reveals that there is a supari syndicate run by Arif Payal of Gujarat, Abul Kaseem Mazumdar, Hailakandi and Altaf Page No.# 5/9 Hussain, Silchar and many others who obtained Burmese supari by unlawful smuggling from Myanmar and they booked the areca nuts in the name of Asish Mandal (petitioner herein) using his GST Registration No. 16AEVPM0120J2ZG.
(c) The petitioner disclosed on interrogation that he never signed any Railway forwarding/challan etc. against such booking of seized supari.
(d) The analysis of mobile handsets and the CDR along with the video footage reveals the communications between all the persons regarding unlawfully dealing in the Areca Nut business and gunny bags bear the language of Myanmar, which reveals that it was procured from Myanmar illegally.
(e) The petitioner failed to produce any documents before the I/O regarding purchase and procurement of seized supari, value of which is more than Rs.1 crore.
(f) Seventeen Railway wagons of similar Areca Nuts booked in the name of various fraudulent claimants including the petitioner and total 4,680 gunny bags out of which few wagon loads of 546 bags were carrying by the petitioner, market value of which will be more than Rs.1 crore. Merely, because GST registration while the petitioner failed to prove the ownership, in absence of financial capacity to deal such huge financial transaction, the petitioner cannot claim the zimma of seized areca nuts in view of apparent illegal transaction on the basis of documents fraudulently obtained. The investigation also reveals that purported documents obtained Page No.# 6/9 from Panisagar Market is also a fabricated one.
(g) Examination of Railway records pertaining to seized Areca Nuts of the present petitioner although it was shown to have booked by him but signature in the booking paper are apparently different from the purported signature of the petitioner. So, there is strong suspect about the signature of the petitioner in the Railway record and necessary steps has been taken for sending the documents to the handwriting expert.
(h) So far as regard the claim that the seized Areca Nuts were purchased from Panisagar Regulated Market, it was found during investigation that Areca Nuts syndicate perpetrator brought the Areca Nuts loaded in the vehicles, known source suspected to be from Burma and paid the levy to the market committee just to regularise their plea. The officials of the Panisagar Market Committee has disclosed the same facts that such huge amount of dry Areca Nuts is not available for purchase at Panisagar Market.
(i) On the scrutiny and comparing the Railway booking records etc. with the record of Panisagar Regulated Market regarding purchase of 535 bags of Areca Nuts with E-Way challan, tax invoice etc. are not found similar.
(j) Lastly, it is submitted that in terms of the order of the learned court an Auction Committee has already been formed and the committee has fixed the base price at Rs.350/- per kg. whereas the petitioner has showed his purchase price is Rs.150/- and hence if auction is conducted, there will be no loss to the petitioner as it will Page No.# 7/9 be deposited in refundable fund and if the petitioner succeeds to establish his ownership after the trial, the entire fund will be transferred to his account.
9. Mr. K.N. Choudhury, learned senior counsel for the petitioner has urged before this Court that in view of the documents submitted by the petitioner, the same has invariably reveals that it is the petitioner who has booked the goods and the GST Registration and E-Way Bill etc., which stood in the name of the petitioner cannot be discarded at the stage of investigation and the petitioner is entitled to the zimma of the seized articles. The finding of the learned trial court which primarily based on the report of the I/O is also stated to be not proper while in terms of the decisions of Sunderbhai Ambalal Desai -Vs- State of Gujarat; AIR 2003 SC 638, the seized articles is to be returned to its owner from whom it was seized.
10. Another limb of argument is that the subject-matter may be dealt with by the Custom Department and the Railway police has nothing to do with such matter of smuggling.
11. Mr. D. Saikia, learned Advocate General, Assam has opposed such contention that it is not a pure case of smuggling but a case of illegal transportation of Areca Nuts by using forge documents. The petitioner who failed to produce any valid documents in support of the ownership of seized article, he cannot claim the zimma only on the basis of E-Way Bill and the tax, invoice etc. which never established the ownership. Further, it contends that findings of the I/O during investigation cannot be denuded that has appeared as highlighted in their affidavit.
12. Due consideration is given to the submission of both the parties. Also gone Page No.# 8/9 through the status report that has been submitted that the auction has already been completed.
13. Obviously, in the present case although the present petitioner has claimed to be the owner of the seized articles/Areca Nuts but save and except, the tax invoice, E-Way Bill and GST Registration, the petitioner failed to produce any authentic documents in support of his ownership. The astounding findings during the course of investigation as highlighted above, raises serious doubt over the authenticity of the documents the petitioner relied and nobody can deny that any suspected document is subjected to scrutiny in the investigation, which has been conducted in the present case. Needless to say, each and every document that has been relied by the petitioner found to be fabricated, manipulated and has been used at the behest of other persons/the syndicate, indulging in illegal business of supari by using the documents in the name of petitioner. The status of the petitioner has divulged in the investigation regarding his capacity to invest such huge amount of money is another serious matter to be investigated in due course. Till now, the authenticity of all the documents is under serious scrutiny including the handwriting of the petitioner on various documents and every case depends upon the outcome of the investigation.
14. In the present case, zimma of seized article cannot be given to the petitioner as he has not yet proved his ownership to get the benefit of the observation and direction under Sunderbhai Ambalal (supra). It can be pointed out that in the said decision it was held that seized article can be given to its "owner" not any other unauthorised person. The petitioner still does not fall under the category of owner of the seized article. The learned trial court has rightly appreciated every aspect of the matter and there appears no irregularity Page No.# 9/9 in the impugned order. Hence, no interference is called for.
15. It has now brought on record that the auction has already been taken place in terms of the order of the trial court and the petitioner will be entitled to the sale proceed which is in higher side (as indicated above), if he succeeds in the case.
16. The petition stands dismissed with direction that till disposal of the proceeding before the trial court, the sale proceed in the auction shall not be released and the same will be the outcome of the proceeding.
Return the case diary.
JUDGE Comparing Assistant