The State Of Assam And Anr. vs. Modi Distilerry And 2 Ors.

Held

The Court held that the petition filed under Section 482 of the CrPC is dismissed. The reasoning was based on the fact that the impugned order dated 08.08.2023 directed the respondent No. 2, attorney holder of respondent No. 1, to produce the bottles given in zimma as and when required by the Court. The Court found no justified ground for suspicion that the whiskey would be released to the public. The order stipulated that the 300 cases of Rockford whiskey were given in zimma to the respondent Company upon execution of a bond of Rs. 10,00,000/-, with the condition to produce the same in Court as and when directed. Since the respondents resisted the prayer for setting aside the order, they were not aggrieved by it and were willing to produce the whiskey as required. Therefore, the Court concluded that the petitioners' suspicion was put to rest by the terms of the zimma order. No issue was expressly left undecided. The operative direction was the dismissal of the petition.

Facts

The State of Assam and an Excise Officer (petitioners) filed a petition under Section 482 of the CrPC challenging an order dated 08.08.2023 by a Magistrate. The order directed the Investigating Officer (IO) to hand over 300 cases of 'Rockford Reserve Fine & Rare Whiskey' to Modi Distillery (respondent No. 1) and its authorized representative (respondent No. 2) on zimma. The seizure occurred on 24.02.2023 from a CSD Depot, with excise case No. NM/EX.01/2023 registered under Sections 58(b) & 64A of the Assam Excise Act, 2000, for missing holograms on the bottles. The petitioners contended that the Magistrate erred by not considering the IO's report opposing the zimma and by releasing the subject matter of the offence, thereby rendering confiscation powers under Sections 74 and 75 of the Act infructuous.

Key Issues

1. Whether the learned Magistrate erred in directing the handover of the seized liquor consignment to the respondent company on zimma, despite the Investigating Officer's report opposing the prayer and highlighting that the liquor was the subject matter of the offence, thereby potentially rendering the confiscation powers under Sections 74 and 75 of the Assam Excise Act, 2000, infructuous? (Question of law and mixed fact and law, turning on Sections 74, 75, and 71 of the Assam Excise Act, 2000, and Section 451 of the CrPC). Petitioner's Arguments: The learned Magistrate erred by not considering the IO's report and by releasing the seized liquor, which is the subject matter of the offence, not merely an article involved. This release would defeat the purpose of Sections 74 and 75 of the Act, which grant powers of confiscation. Reliance was placed on Section 71 of the Act, which creates a presumption of guilt for possession of intoxicants without satisfactory explanation. They argued that specific statutory provisions for confiscation under the Excise Act must prevail over general provisions of Section 451 of the CrPC. The District Collector has specific powers to confiscate seized articles. Respondent's Arguments: The respondents did not file any specific arguments opposing the petitioners' contentions in the provided text. However, their application for zimma and resistance to the setting aside of the impugned order imply their agreement with the Magistrate's decision.