Anowar Hussain vs. The State Of Assam And Anr

Held

The High Court disagreed with the learned Magistrate's observation that the areca nuts were required for further investigation to identify other smugglers. The Court noted that a penalty of Rs. 11,49,060/- had already been paid, as evidenced by Annexure-7. Consequently, the impugned order dated 22.02.2023, specifically its rejection of the petitioner's prayer for zimma of the seized areca nuts, was set aside. The petitioner was granted liberty to file a fresh petition before the jurisdictional court seeking zimma. This new petition should include an undertaking that the seized areca nuts will not be used for human consumption. The learned Magistrate was directed to consider the zimma application and pass an order directing the Superintendent of Police to consider the zimma of the seized areca nuts in accordance with the SOP for disposal of seized betel nuts (supari) dated 16.09.2021. The ratio decidendi is that once a substantial penalty has been paid and the goods are perishable, and an undertaking can be provided for non-human consumption, zimma should be considered, even if the goods are suspected to be smuggled, to avoid wastage and facilitate potential use as raw material.

Facts

The petitioner, Anowar Hussain, filed a petition under Section 482 Cr.PC and Article 227 of the Constitution challenging an order dated 22.02.2023 by the Judicial Magistrate, 1st Class, Bilasipara. The Magistrate rejected the petitioner's plea for zimma (custody) of 400 bags of dry areca nuts (28 tonnes) seized in connection with Chapor P.S. Case No. 234/2022. The seizure occurred on 25.12.2022 when a truck loaded with areca nuts was intercepted. The driver claimed the goods were loaded from Goalpara Matia and destined for Falakata. Challans and e-way bills produced were later found to be fake, indicating tax evasion of lacs of rupees. The District Agriculture Department opined the areca nuts were not local products and possibly smuggled from Burma. A penalty of Rs. 11,49,060/- was paid, reportedly by one Vimal Das while he was in jail.

Key Issues

1. Whether the learned Judicial Magistrate erred in rejecting the petitioner's application for zimma of the seized areca nuts, despite the perishable nature of the goods and the payment of penalty, when the petitioner claimed ownership and produced invoices and e-way bills? Petitioner's Arguments: The petitioner argued that the seized areca nuts are perishable and that he has produced invoices (Annexure-4 series) and an e-way bill (Annexure-5) to establish his purchase and procurement. He also relied on the SOP issued by the Additional Director General of Police, CID, Assam, which allows for zimma of seized goods even if unfit for human consumption, provided they are intended for non-edible products. The petitioner highlighted that a penalty of Rs. 11,49,060/- (Annexure-7) had already been paid. Revenue/State's Arguments: The State, through the learned Addl. P.P., objected to the zimma, citing reports from the District Agriculture Department and the Investigating Officer (IO). These reports suggested the areca nuts were not local products, possibly smuggled from Burma, and collected from illegal sources without proper documents. The State also raised concerns about the payment of penalty by a person in jail and the lack of cooperation from the accused during the investigation.