Quashed

The State of Assam and Anr. v. Nazrul Ali and 2 Ors.

Gauhati HC3 Dec 2021Crl.Pet./609/2021

Case brief

AI extract

What is this about?

In a revision under Section 482 CrPC, the State challenged the trial court's order releasing seized liquor. The High Court quashed the order, directing the I.O. to re-examine documents and consider release under the Assam Excise Act within two weeks.

What did the court decide?

Impugned order dated 04.10.2021 quashed; direction to I.O. to re-examine matter under S. 75(2) Assam Excise Act and consider release within two weeks.

The State of Assam and Anr. Vs Nazrul Ali… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010175932021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./609/2021

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THE STATE OF ASSAM AND ANR.

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REP. BY THE COMMISSIONER AND SECRETARY TO THE EXCISE DEPARTMENT, GOVT. OF ASSAM, DISPUR, GUWAHATI-781006, ASSAM

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2: SRI NAWAB IMTIAJE ALI INSPECTOR OF EXCISE JORHAT SADAR CIRCLE

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VERSUS

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NAZRUL ALI AND 2 ORS. SON OF SRI AMANAT ALI

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R/O HOUSE NO. 121, WARD NO. 54, VILLAGE - SATGAON, BARDANGBARI, P.O. UDAYAN VIHAR, P.S. SATGAON DIST. KAMRUP (M), PIN-781027, ASSAM

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2:SRI MUKUL HAZARIKA SONOF GANESH HAZARIKA R/O VILL- LAHDOIGARH PIN-788700 DIST. JORHAT ASSAM

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3:SRI DIPANKAR BORGOHAIN SON OF SRI LUHIT BORGOHAIN R/O CHENGLIBARI P.O. CHEREKAPAR PIN-785701 DIST. SIVASAGAR ASSA

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Advocate for the Petitioner : MR. P N GOSWAMI

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Advocate for the Respondent : MR P KATAKI (R-1)

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BEFORE HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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O R D E R

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03.12.2021.

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Heard the submission Mr. K. P. Pathak, learned counsel for the petitioners as well as Mr. P. Kataki, learned counsel appearing for the respondents.

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Challenging the order dated 04.10.2021, passed by the learned Addl. CJM, Jorhat, in Jorhat (Sadar) Excise Case No.08/2021, the Excise Department has preferred the present revision petition under Section 482 of the CrPC, to set aside the aforesaid order.

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The crux of the matter is that on 20.08.2021, the Inspector of Excise, Jorhat Sadar Circle, on the basis of the secret information about carrying some excise articles from Arunachal Pradesh, intercepted a vehicle bearing number AS-27C-6978, which was carrying consignment of 1000 cases of Indian Made Foreign Liquor (in short ‘the IMFL’) and as the driver could not reply satisfactorily, he was taken into custody and the article carried, were also seized.

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In connection with the present matter, a report was submitted to the concerned Court as per Section 59 of the Assam Excise Act, 2000, stating that the consignment was illegal, as it mentioned only 800 cases of IMFL, whereas actually they carried 1000 cases. The second contention that was raised that the challan was not properly prepared and the excise duty was also not properly paid.

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The respondent No.1/Nazrul Ali herein made a prayer before the learned trial Court for release of the seized IMFL in his favour. A report from the I.O. was also obtained on the subject. In his report, the I.O. has submitted that there is need of chemical examination of the seized article and the seized liquor was carried without any supporting document. The I.O. has also stated in his report that they have made a visit to the location of the M/s. N.E.

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Liquor Bonded Warehouse, Bhalukpong in Arunachal Pradesh, where the godown is situated and nobody was found to reply their query, about the authenticity of the challan, etc.

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The learned trial Court, after hearing the learned counsel for both the parties and also going through the documents annexed, coupled with the decision of Sunderbhai Ambala Dessai V. State of Gujarat, reported in AIR 2003 SC 638, it has been held that keeping of seized liquor for indefinite period will not serve any purpose, where the petitioner has produced the relevant documents, even if there is some discrepancy in the challan i.e. excess of 200 cases above the permitted amount, whereas there is not dispute to the fact that the M/s. N.E. Liquor Bonded Warehouse, Bhalukpong has sent the seized consignment to Namsai and while in the process of transportation, it was seized. accordingly, the learned trial Court directed release of the seized article on execution of a bond of Rs.11,58,000/-.

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Challenging the aforesaid order, the Excise Department is before this Court contending that such release is of pre-mature in nature and in as much as, they have already submitted their reply in the shape of objection, when the matter is still under investigation, as the ownership of the seized liquor is not yet established.

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The respondent herein has filed affidavit refuting the contention of the petitioner that they have duly carried the articles and the challan was validly issued by the concerned authority. Further it has also been contended that the concerned Excise Officer In-charge of the M/s. N.E. Liquor Bonded Warehouse, Bhalukpong has clarified the matter vide letters dated 24.09.2021 and 01.10.2021 that there was an error in filing the challan and it was by mistake, written as premium band, whereas it was a general band. From the aforesaid that has been annexed, the M/s. N.E. Liquor Bonded Warehouse, Bhalukpong had not denied about sending the consignment as per the challan.

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The aforesaid clarification has now obviously supports the contention of the respondents side that there may be some clerical error in mentioning the number of cases but it was otherwise not illegal and not a manufactured one.

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Learned counsel for the petitioners herein has now submitted that the Exercise Department, Assam can re-examine the aforesaid aspect, as the necessary documents might have been reached their office in the meantime. Obviously such a communication/reply from the

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Exercise Department may change the scenario in the entirety.

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On the other hand, it is also considered that the articles were seized far back in the month of August and several months has already elapsed. So it would be appropriate if the concerned Department consider the release of the consignment in favour of the respondent, on the basis of the documents and the response of the Excise Officer In-charge of the M/s. N.E. Liquor Bonded Warehouse, Bhalukpong. Both the parties have also entered into the consensus to the above proposition.

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Considering all entirety of the matter, the impugned order dated 04.10.2021 is hereby quashed and set aside, with direction to the I.O. to re-examine the matter under Section 75(2) of the Assam Excise Act and to consider the release of the article, after examining all the documents, that have been referred into, within a period of two weeks from the receipt of an application, to be filed by the petitioner, in this regard.

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The petition stands disposed of with the above direction.

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JUDGE

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Comparing Assistant

The State of Assam and Anr. v. Nazrul Ali and 2 Ors.

Case brief

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The State of Assam and Anr. v. Nazrul Ali and 2 Ors.

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