Quashed

Nekibud Zaman v. the State of Assam and Anr.

Gauhati HC9 Nov 2021Crl.Rev.P./234/2021

Case brief

AI extract

What is this about?

On revision, the Gauhati High Court quashed the Sessions Judge order rejecting the petitioner owner for vehicle zimma. The court held him entitled to release under Section 451 CrPC via a bond, citing non-involvement and lack of confiscation proceedings.

What did the court decide?

Quashed impugned order; Directed IO to release vehicle after bond execution and document verification.

Nekibud Zaman Vs the State of Assam and Anr. — Property and Title | Gauhati HC (2021)

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GAHC010171572021

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

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Case No. : Crl.Rev.P./234/2021

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NEKIBUD ZAMAN S/ O MOTIUR RAHMAN VILL- SATGAON AMBARI P.O. UDAYAN VIHAR P.S. SATGAON DIST. KAMRUP (M), ASSAM

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VERSUS

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THE STATE OF ASSAM AND ANR TO BE REP. BY THE PP, ASSAM

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2:HEMANTA BARGOHAIN S/O DULU BORGOHAIN I/C TOP OF GOALPARA TOWN

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DIST. GOALPARA ASSA

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Advocate for the Petitioner : MR. A AHMED

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Advocate for the Respondent : PP, ASSAM

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BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN ORDER

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09.11.2021

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Heard the learned counsel for the petitioner and also the learned Additional Public Prosecutor for the State of Assam, appearing for and on behalf of respondent Nos. 1 and 2.

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Heard the learned counsel for both the parties.

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The petitioner, herein, has challenged the impugned order dated 23.09.2021, passed by the learned Sessions Judge, in Special Case No. 25/2021, (corresponding to GR Case No. 1237/2021, arising out of Goalpara PS Case No. 390/2021) under Sections 420/511/379/34 of the IPC, read with Sections 21(a)/22(b)/29/27 of the NDPS Act, whereby the learned Court has rejected the prayer for zimma of the seized vehicle in favour of the petitioner.

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Briefly, the prosecution case as disclosed from the FIR is that on 26.06.2021, at the time of naka checking near the petrol pump at Hedayatpur, Goalpara, the Police apprehended one Maruti Wagon R, bearing Registration No. AS-01 N 8254 and on being searched, certain amount of heroin (80 mg) was recovered from the two persons inside the vehicle, namely, 1) Azmir Hussain and 2) Rakibul Islam, along with a cash amount of Rs. 3,20,000/-. Police seized the drugs as well as the vehicle and on completion of the investigation, submitted charge sheet against the two persons apprehended from inside the vehicle. These accused persons are now facing trial.

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The petitioner herein, preferred a zimma petition before the learned trial Court, claiming himself to be the registered owner of the aforesaid seized vehicle bearing Registration No. AS-01 N 8254, contending that he is in no way associated with the offence alleged and as such, he is entitled to get the vehicle. The learned trial Court, vide order dated 23.09.2021, rejected the prayer on the objection that was raised by the prosecution side that the vehicle was carrying drugs and there is a provision for confiscation of the drugs as well as the vehicle seized in the said occurrence.

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The Court also observed that there is nothing to show that the accused persons were carrying drugs without their knowledge.

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I have heard the submissions of learned counsel for both the parties and have also gone through the documents annexed.

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In view of the content of the FIR as well as the fact that the charge sheet has been laid only against the aforesaid two persons named in the FIR, it is apparent that the petitioner was not found involved in the offence alleged, otherwise, he would also have been charge sheeted in the said case.

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The petitioner herein, has contended that he was unaware of the fact of commission of the offence by the accused persons, namely, 1) Azmir Hussain and 2) Rakibul Islam, who took the vehicle because of their good terms with the present petitioner since earlier. It is submitted by the petitioner that since the date of seizure dated 26.06.2021, the vehicle is lying unattended and which may cause damage to the vehicle as well as cause loss to the petitioner.

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The learned Additional Public Prosecutor, on instructions has submitted that no any confiscation proceeding has been initiated as regards the seized vehicle.

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In view of the materials on record, it is now apparent that the charge sheet has been laid as against the two accused persons only and there is no other incriminating evidence against the present petitioner suggesting his involvement with the offence and that being so, he being the registered owner of the vehicle is entitled to get the zimma of the same, more so, when there is no confiscation proceeding.

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The petitioner herein, has produced the RC of the vehicle, which stood in his favour. A vehicle cannot be kept idle for the sake of trial only on the objection of the prosecution side that there may be some confiscation proceeding. So far as regards the disposal of the seized articles, the Hon’ble Supreme Court in the case of Sunderbhai Ambalal Desai –Vs- State of Gujarat; AIR 2003 SC 638, has observed that the matter of custody and disposal of seized property, pending trial can be dealt under Section 451 of the CrPC. The Hon’ble Supreme Court is of the view that the power under Section 451 of the CrPC should be exercised expeditiously and judiciously, which would serve various purposes, namely:-

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1. Owner of the article would not suffer because of its remaining unused or by

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its misappropriation.

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2. Court or the police would not be required to keep the article in safe custody;

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3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and

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4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

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In view of the decision laid down by the Hon’ble Supreme Court in Sunderbhai Ambalal (supra), and having regard to all the aspects of the case the impugned order dated 23.09.2021, passed by the learned Special Judge, Goalpara, in Special Case No. 25/2021, arising out of Goalpara PS Case No. 390/2021, is hereby quashed and set aside with a direction to the IO to release the vehicle in favour of the petitioner on execution of bond of Rs. 1,50,000/- (Rupees One Lac Fifty Thousand Only) on due verification of the relevant documents, with further direction to the petitioner to co-operate with the investigation.

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The criminal petition stands disposed of.

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JUDGE

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Comparing Assistant

Nekibud Zaman v. the State of Assam and Anr.

Case brief

What is this about?

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Nekibud Zaman v. the State of Assam and Anr.

Case brief

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