Mistu Das vs. The State Of Assam And Anr.

Held

The High Court allowed the revision petition, setting aside the impugned order of the Judicial Magistrate. The Court found that the Magistrate's rejection of the petitioner's plea for custody was based on a notification prohibiting the 'transportation' of tobacco. However, upon perusing the notification and the relevant provisions of the Food Safety and Standards Act, 2006 (specifically Regulation 2.3.4 and Section 26), the Court found that the prohibition pertained to the use of tobacco and nicotine as ingredients in food products, not the transportation of tobacco leaves. The Court noted that the word 'transportation' was not present in the cited provisions. Therefore, prohibiting transportation based on this notification was deemed to be without legislative mandate. The Court also considered that the seized goods were lying unattended for over three months, risking deterioration, and that no useful purpose would be served by keeping them at the police station. Citing the Supreme Court's decision in Sunderbhai Ambala Desai vs. State of Gujarat, the Court emphasized the need for expeditious and judicious exercise of powers under Section 451 Cr.P.C. to prevent loss to the owner and avoid the burden of safe custody. The seized tobacco leaves were ordered to be released in the interim custody of the petitioner upon furnishing a bond of Rs. 2,00,000/- and two solvent sureties of like amount, with the condition that she must produce the goods when directed and not dispose of them without court permission.

Facts

The petitioner, Mistu Das, is a businesswoman who owns M/S M.D. Tobaco. On July 11, 2021, a truck carrying 2800 kg of tobacco leaves, purchased by the petitioner and with GST and e-way bill paid, was apprehended in Assam. The apprehension was based on the ground that carrying and selling tobacco is banned in Assam. A First Information Report (FIR) was lodged, and the truck and its contents were seized. The petitioner filed a petition seeking the custody of the seized tobacco leaves, which was dismissed by the Judicial Magistrate, 1st Class, Gossaigaon, by an order dated August 4, 2021. The petitioner noted that similar goods seized in another case were released by the same court. This revision petition challenges the Magistrate's order.

Key Issues

1. Whether the Judicial Magistrate, 1st Class, Gossaigaon, erred in rejecting the petitioner's petition for interim custody of the seized tobacco leaves by misinterpreting the applicable law and notifications? (Mixed question of law and fact, turning on Section 451 of the Cr.P.C. and the Food Safety and Standards Act, 2006). Petitioner's arguments: The petitioner argued that the Magistrate failed to apply judicial mind and that the impugned order was illegal. She contended that she is the legal owner, having paid applicable taxes, and is entitled to custody. She further argued that the Magistrate wrongly relied on a notification prohibiting tobacco products, whereas the seized goods are tobacco leaves, and that a previous Division Bench judgment declared a similar Act unconstitutional. The petitioner also emphasized that the goods are perishable and will deteriorate if left unattended, and that she only seeks interim custody, promising to produce the goods when required. Reliance was placed on the Supreme Court's decision in Sunderbhai Ambala Desai vs. State of Gujarat. Revenue's arguments: The respondent (State of Assam) argued that the Magistrate rightly rejected the petition based on the notification dated January 12, 2021, and therefore, no interference by the High Court is warranted.