Allowed

Amin Nurul Islam v. the State of Assam and Anr.

Gauhati HC14 Sept 2022Crl.Pet./67/2022

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a criminal petition to set aside a Magistrate's order rejecting claims for interim custody of a seized JCB vehicle. The court held that prudent ownership presumes registration, directing the Magistrate to release it to the petitioner as the registered owner.

What did the court decide?

The impugned order rejecting zimma petitions for custody of the seized vehicle was set aside and the vehicle released to the petitioner as the registered owner.

Amin Nurul Islam Vs the State of Assam and Anr. — Property and Title | Gauhati HC (2022)

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GAHC010014642022

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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./67/2022

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AMIN NURUL ISLAM S/O PASHAN ALI VILL- MAHABIR PATHAR P.S. CHHAYGAON DIST. KAMRUP ASSAM VERSUS

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THE STATE OF ASSAM AND ANR REP. BY THE PP ASSAM 2:MD. AJMAL HOQUE S/O SUKUR ALI R/O VILL- TAMULDI P.O. CHAMPPUPARA BAZAR P.S. BOKO DIST. KAMRUP ASSAM -----------Advocate for : MR. A PARAMANIK Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR

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BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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14.09.2022

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Heard Mr. K. Agarwal, learned counsel appearing for the petitioner. Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam appearing for the State

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respondent No. 1 and Mr. A.K. Ahmed, learned counsel for the respondent No. 2.

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By this petition under Section 482 read with Section 397 r/w Sections 457/451 of the Code of Criminal Procedure (‘Cr.P.C.’ for short), the petitioner has prayed for setting aside and quashing of the impugned order, dated 10.01.2022, passed by the learned Chief Judicial Magistrate, Kamrup, Amingaon (‘C.J.M.’ for short) in connection with Chhaygaon P.S. Case No. 992/2021, whereby rejected the interim zimma prayer of the petitioner in respect of the seized vehicle bearing registration No. ML-10-B3715.

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The petitioner’s case precisely is that on 01.09.2021, he lodged an F.I.R. at Chhaygaon P.S. wherein he, inter-alia, alleged that he is the owner of a vehicle (JCB) bearing registration No. ML-10-B-3715 and on 24.07.2018, he sold the said vehicle at a total consideration amount of Rs.20,66,907/- by executing an agreement. As per agreement, the petitioner received an amount of Rs. 9,00,000/- from the respondent No. 2 and the remaining 21 EMIs was fixed to be paid by the respondent No. 2 to the finance company. But, the respondent No. 2 consecutively failed to pay the EMIs and after 7/8 instalments concealed the vehicle, as a result of which, the finance company issued notice upon the petitioner to pay the balance amount. When the petitioner approached the respondent No. 2 and enquired about the vehicle, he did not give any information regarding the said vehicle. Somehow, the petitioner came to know that the respondent No. 2 sold the vehicle at Manipur and finding no alternative, the petitioner lodged an F.I.R. which is registered as Chhaygaon P.S. Case No. 992/2021. After recovery of the vehicle by police, the petitioner and the respondent No. 2 filed two separate zimma petitions before the Court of learned C.J.M., Kamrup, Amingaon, which was rejected vide the impugned order, dated 10.01.2022.

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The impugned order, dated 10.01.2022 reads as hereinbelow extracted-

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“10.01.2022

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Both petitioners are represented.

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Petitioner namely, Amin Nurul Islam filed petition No. 1164 u/s 451 Cr.P.C. praying for custody

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of JCB vehicle bearing registration number ML-10-B-3715 which was seized in connection with the instant case.

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Petitioner namely, Md. Ajmal Hoque also filed petition no. 1178 praying for custody of the same vehicle.

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Heard both sides.

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Petitioner, Md. Ajmal Hoque also filed petition no. 1240 stating that petitioner Amin Nurul Islam who is the registered owner of the vehicle sold the vehicle to him by executing a sale deed date 15.07.2018 for Rs.20,66,907/- out of which he paid Rs.9,00,000/- in cash and the remaining Rs.11,66,907/- was to be paid in 21 EMIs of Rs.55,567/- and the petitioner stated that he cleared the entire amount but the registered owner did not deposit the money to the financer.

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The registered owner, i.e. petitioner Amin Nurul Islam denied that petitioner Ajmal Hoque deposited the EMIs.

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Learned counsel for petitioner, Amin Nurul Islam admitted of receiving Rs.9,00,000/- but denied that Ajmal Hoque deposited the remaining EMI as agreed.

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Learned counsel for both the zimma petitioners on several occasions prayed for time to produce relevant documents regarding the transaction of money but failed to do so and today, both the counsel for the petitioners prayed that the zimma petitions to be dismissed.

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As the ownership of the seized JCB vehicle bearing registration number ML-10-B-3715 could not be ascertained, I am not inclined to allow the zimma petition no. 1164 & 1178 and accordingly, both the petitions stands rejected.

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Zimma Petition nos. 1164 and 1178 are disposed of.”

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I have given due consideration to the arguments advanced by the learned counsel of both sides. Perused record.

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In Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in (2002) 10 SCC 283, the Hon’ble Supreme Court held that order for custody and disposal of property pending trial should be exercised expeditiously and judiciously. It would serve various purposes, namely (1) the owner of the article would not suffer because of its remaining unused or by its misappropriation; (2) Court or the police would not be required to keep the article in safe custody; (3) if proper panchnama before handing over the possession of the 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 property in detail; (4) the jurisdiction of the Court to record evidence should be exercised promptly so that there may be no further chance of tampering with the articles. So far the vehicle is concerned, the Apex Court observed that in case of seized vehicles, it is no use keeping them at

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police station for long and it is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and bank guarantee as well as security for return of the said vehicles.

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A perusal of the above impugned order shows that the learned Magistrate, after hearing the learned counsel of both sides and scrutiny of the documents on record, having not been able to ascertain the ownership of the seized JCB vehicle rejected the prayers for zimma petitions filed by both sides for its interim custody pending investigation.

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Needless to point out that the prima facie presumption of ownership of vehicle is always in favour of its registered owner, that is, the petitioner herein, which is not disputed by the respondent No. 2. The respondent No.2, however, claimed his right to hold and use of the said seized vehicle by virtue of purchase agreement, dated 24.07.2018, and payment of consideration price of remaining 21 monthly instalments, which the petitioner herein claims to have not paid in full and therefore, the petitioner has refused to transfer the registered ownership of the vehicle to him. In the aforesaid disputed fact situation, the criminal Court can act on the settled presumption of law that the rightful ownership of a vehicle is always in favour of the registered owner. The ownership cannot be deemed to have automatically stood transferred to the respondent No. 2 on his claim of payment of all instalments towards the purchase agreement value, which is a claim of right that can be effectively decided by the competent civil Court. The criminal Court can only decide the prima facie ownership of the seized vehicle in the interim custody petition pending investigation or trial. The respondent No.2 has a prima facie remedy to enforce his right to claim ownership over the seized vehicle in civil Court.

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For the above stated reasons, the petition stands allowed setting aside the impugned order.

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The learned Court below is directed to release the seized vehicle bearing

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registration No. ML-10-B-3715 to the petitioner, who is the registered owner, on such terms and conditions as deemed proper in accordance with law.

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Petition stands disposed of accordingly.

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JUDGE

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Comparing Assistant

Amin Nurul Islam v. the State of Assam and Anr.

Case brief

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Amin Nurul Islam v. the State of Assam and Anr.

Case brief

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