Asish Mandal And Anr vs. The State Of Assam And Anr
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The petitioners, Asish Mandal and Kabil Ahmed Barbhuiya, are challenging an order dated 21.09.2021 passed by the Addl. CJM, Karimganj, in GRPS Case No.13/2021. The case was registered under Sections 120(B)/420/379/411/471 of the IPC after a consignment of local areca-nut was apprehended while being transported by train on 11.09.2021. The consignment was seized as it was suspected to be illegally transported. The Court ordered the disposal of the seized articles through auction within 15 days, citing the perishable nature of the goods and the lack of any claimant. The petitioners claim to be the rightful owners of the seized articles, possessing GST registration certificates, e-way bills, tax invoices, and purchase receipts, but were unaware of the seizure and subsequent court order.
Held
The Court held that while the learned Addl. CJM had no other option but to pass the order for auction based on the reports that no one had claimed the seized articles, the petitioners have now come forward with documents that prima facie indicate a valid claim. Therefore, they should be given an opportunity to assert their claim before the concerned court. The Court acknowledged the petitioners' submission that apprehension of arrest prevented them from approaching the court earlier. Consequently, the Court directed that the petitioners be given 10 days to approach the trial court with a prayer for 'zimma' of the seized articles. The learned trial court is to provide an opportunity of being heard to both parties in light of the documents produced. Until a decision is given by the trial court, the execution of the auction order dated 21.09.2021 is stayed. The petition was disposed of at the motion stage with these directions.
Key Issues
1. Whether the learned Addl. CJM, Karimganj, was justified in ordering the auction of the seized areca-nut consignment without providing an opportunity to the petitioners to assert their claim as owners, considering their apprehension of arrest and subsequent inability to approach the trial court earlier? (Mixed question of law and fact, concerning principles of natural justice and procedural fairness). Petitioner's contention: The petitioners argued that they are the rightful owners of the seized articles, supported by documentary evidence such as GST registration, e-way bills, and purchase receipts. They contended that they were unaware of the seizure and the court proceedings due to apprehension of arrest, which prevented them from filing a 'zimma' petition. They sought an opportunity to present their claim before the court and requested a stay on the auction. Revenue's contention: The State submitted that the order of auction was justified as, at the time of passing the order, no one had appeared before the Investigating Officer or the trial court to claim the seized articles. They argued that the perishable nature of the goods necessitated the auction, and the trial court acted appropriately under the circumstances.
Sections Cited
Section 120(B), Section 420, Section 379, Section 411, Section 471, Section 397, Section 482
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
O R D E R
2021. By way of this petition under Sections 397 read with Section 482 of the CrPC, the two petitioners namely (1) Asish Mandal and (2) Kabil Ahmed Barbhuiya have challenged the order dated 21.09.2021, passed by the learned Addl. CJM, Karimganj in GRPS Case No.13/2021. Heard the submission of learned counsel for the petitioners. Also heard the learned Addl. P.P., Assam, appearing for the State/respondent No.1, who is also representing the respondent No.
As per the FIR, filed by the respondent No.2, a huge consignment of local areca-nut was apprehended while transporting in train on 11.09.2021, which was sent from Dharmanagar (Tripura) and Jirighat (Manipur) and the aforesaid train was halted at Badarpur. Suspecting to be the illegal transportation of such areca-nut, entire consignment was seized and the GRPS Case No.13/2021 was registered under Sections 120(B)/420/379/411/471 of the IPC. The entire seizure was reported to the concerned Court and the learned Court vide order dated 21.09.2021, noting all the reports given by the I.O., regarding the seizure and the fact that the articles were carried in a suspicious circumstance and more particularly, none appears to claim the articles and the efforts made by the I.O., the Court finally pass an order for disposal of the said articles, on the ground that the seized articles may be damaged if kept unattended for a long period in the open space of the Railway Platform. Accordingly the Court directed for auction of the seized articles within 15 days of publication of the auction notice in the newspaper, with the reasons given in the order. The two petitioners have preferred the present petition contending that they are the original
Page No.# 3/4 owner of the aforesaid seized articles but they were not aware of the seizure and hence could not prefer the zimma petition before the Court, which has now came to know by them and they intended to prefer a zimma petition before the Court. It has also been fairly submitted that as the petitioners were apprehensive of arrest in connection with the case, for which they have already preferred for anticipatory bail, had also not approached the trial Court to file such zimma petition. However it has been contended that in case of auction of the aforesaid seized article, which was duly purchased by the two petitioners in support of which they have all the relevant documents, they will suffer a lot in case they are not given an opportunity to assert their claim. I have heard the learned counsel for the petitioners, who has led this Court to the various documents they have annexed with the present petition like: GST Registration Certificates in the name of both the petitioners, E-way bills, tax invoice, receipt of purchasing the articles, registration of the Firm, etc. etc., to submit that they are the rightful owner of the said seized articles and they may be provided an opportunity to prefer a claim before the concerned Court and till then, the auction of the seized articles may be stayed. The learned Addl. P.P., Assam, Mr. R.J. Baruah has however submitted that there is nothing illegal in the order so passed by the learned Court, as the time of passing the order, after registration of the Case, nobody appeared before the I.O. or the learned trial Court to claim the seized article and the learned trial Court has rightly passed the order, as the articles were perishable in nature and in the circumstances, the order of auction was the exact course to be adopted by the learned trial Court. Due consideration is given to the submission of learned counsel for both the parties. Of-course till the passing of the order, nobody appeared before the I.O. or before the Court concerned to claim the seized article and in view of such reports given by the I.O., the learned Court had no other option than to pass the said order. However the petitioners have now come up with certain documents, which prima facie indicate that they have some valid documents in their favour and they are dealing with local areca-nut, on the basis of certain documents. That being so, they should be given an opportunity to assert their claim before the Court concerned and till such exercise is done, the matter of auction should be stayed.
Page No.# 4/4 The submission of learned counsel for the petitioners is also taken into account that because of apprehension of arrest, they could not approach the Court below. Another aspect of the matter is that the seizure was made on 11.09.2021 and the order of auction was made on 21.09.2021, after few days of the seizure, whereas the petitioners were under the apprehension of arrest. Having regard to the materials on record and the submission made, this Court is of the opinion that the petitioners should be given an opportunity of hearing, prior to finalization of auction, if so advised.
Accordingly the petitioners are given 10 (ten) days time to approach the Court below along with all documents, with a prayer for zimma of seized articles and the learned trial Court will give an opportunity of being heard to both the parties, in the light of the documents that can be produced in support of their respective claims and such a prayer will be disposed of as early as possible by the learned Court below. Till any decision is given by the Court, there will be stay of execution of auction, as ordered on 21.09.2021. The petition stands disposed of at the motion stage itself, with the above direction.
JUDGE Comparing Assistant
Reproduced from the public record of the Gauhati High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.