Asasa International Mining Pvt. Ltd. Vs the State of Assam and Anr.

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GAHC010151592025

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2025:GAU-AS:11327

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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./259/2025

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ASASA INTERNATIONAL MINING PVT LTD REPRESENTED BY ITS AUTHORIZED SIGNATORY SRI HRISHIKESH MAZUMDAR SON OF LATE BIMAL KANTA MAZUMDAR RESIDENT OF HOUSE NO. 14, LANE NO. 5, VIDYAMANDIR PATH, BHETAPARA P.S. BASISTHA, GUWAHATI-781029 DIST. KAMRUP ()M), ASSAM, PH. NO. 7896593738

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VERSUS

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THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM

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2:SRI CHINMOY BARUAH SI (P)

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JORABAT POLICE OUT POST

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UNDER BASISTHA POLICE STATION

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P.O. KHANAPARA PS. BAISTHA GUWAHATI-781022 DIST. KAMRUP (M) ASSA

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Advocate for the Petitioner : MS. M DEV, MS P DEB,MS N DEB

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Advocate for the Respondent : PP, ASSAM,

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT & ORDER

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12.08.2025

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Heard Ms. M. Dev, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor for the respondent no. 1, State of Assam.

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The instant criminal revision petition under Section 438 read with Section 442, Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 is preferred to assail an Order dated 06.06.2025 passed by the Court of learned Sub-Divisional Judicial Magistrate [S]-II, Kamrup [M], [‘the SDJM[S]’, for short], Guwahati whereby a petition filed by the petitioner seeking interim custody of 53 MTS [approx.] of coal seized in connection with Basistha Police Station Case no. 188/2025, has been rejected.

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On 30.03.2025, upon recovery and seizure of suspected stolen coals after interception of a vehicle bearing registration no. AS-01/DC-3405 [Tata 909], a case, Basistha Police Station Case no. 188/2025 was registered on 30.03.2025 for the offences under Section 61[2]/305[e], Bharatiya Naya Sanhita [BNS], 2023. Subsequently, in the early hours of 09.04.2025, another vehicle bearing registration no. AS-01/QC-9326 [‘the subject-vehicle’] loaded with 53 MTS [approx.] of coals was seized. Sakayet Khan [driver] and Bishnu Mandal [helper] were found to be occupants of the subject-vehicle and they were arrested.

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It is stated that the petitioner is an incorporated company dealing in coals. On 20.11.2023, it entered into a Sale and Purchase Agreement with one Dominic Myrthong for purchase of 1490 MTS of coal auctioned by the Meghalaya Government via MSTC. It is asserted that the quantity of coal, 53 MTS [approx.] seized on 09.04.2025 was part of the quantity of coals purchased by the petitioner pursuant to the said Agreement dated 20.11.2024. In support of such claim, the petitioner has annexed the copies of the Sale and Purchase Agreement, E-Way bill, Authorization Certificate, etc. with this petition.

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When the petition for interim custody of the said seized coal weighing 53 MTS [approx.] was preferred, the learned SDJM [S]-II, Kamrup [M], on 22.05.2025, framing three questions, called for a Report from the I.O. The I.O. was also directed to verify the annexures and to submit a Report of verification along with the replies to the said questions. The I.O. submitted a Report stating that the ownership of the subject-vehicle and the seized coal of 53 MTS [approx.] could not be verified as no person had appeared before him and no documents in support of the ownership of the seized subject-vehicle/coal were submitted before him. On consideration of the said Report, the SDJM [S]-II, Kamrup [M] vide the impugned Order dated 06.06.2025 has rejected the petition for interim custody filed by the petitioner in respect of the seized subjectvehicle. Hence, the criminal revision petition.

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When this criminal revision petition was listed on 28.07.2025, the learned Additional Public Prosecutor had placed a Report dated 24.07.2025 of the I.O., as called for by an earlier Order dated 16.07.2025. In the Report, the I.O. had stated that the case has been investigated and thereafter, a charge-sheet vide Charge-Sheet no. 278/2025 had been submitted against the apprehended accused persons on 29.06.2025. The Report further mentioned that despite giving ample opportunity, the driver and the helper failed to produce any valid legal documents in support of the coal being transported through the subject-vehicle.

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There was no reflection in the Order dated 06.06.2025 that the I.O. had verified the documents submitted by the petitioner with regard to its claim of ownership for the seized coal weighing 53 MTS [approx.]. The impugned Order dated 06.06.2025 is found to have been passed without any observation on the documents submitted by the petitioner in support of its claim of ownership for the seized coal weighing 53 MTS [approx.]. In the Report dated 24.07.2025, there was also no reflection that the I.O. had considered the documents which the petitioner has relied upon in support of its clam for ownership in this criminal revision petition annexing those as Annexure-1 to Annexure-11.

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In such context, by the Order dated 28.07.2025, the petitioner was allowed to furnish the afore-stated documents before the I.O. on or before 01.08.2025. It was further observed that on submission of the afore-stated documents, the I.O. should send a fresh Report on or before

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07.08.2025 after verification of those documents, to the learned Additional Public Prosecutor.

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A Report dated 07.08.2025 of the I.O. from Jorabat Police Out Post under Bsistha Police Station, addressed to the Public Prosecutor, Gauhati High Court, in connection with Basistha Police Station Case no. 188/2025 has been placed before this Court. In the Report dated 07.08.2025, the I.O. has inter alia reported that the subject-vehicle along with 53 MTS [approx.] of coal was seized in connection with Basistha Police Station Case no. 188/2025. The I.O. has further stated that the seized coal weighing 53 MTS [approx.] would not be required for further investigation as the case has already been charge-sheeted vide Charge-Sheet no. 278/2025 on 29.06.2025. The I.O. has further mentioned that in deference to the Order dated 28.07.2025 the petitioner had submitted relevant documents such as E-Way Bill, Tax Invoice, Authorization Certificate, etc. pertaining to its claim for ownership of the seized coal. It is further reported that upon verification of those documents, it appears that the petitioner is the owner of the seized coal weighing 53 MTS [approx.] loaded in the subject-vehicle. The I.O. has mentioned that no such documents were earlier produced by the petitioner at the time when the subject-vehicle was intercepted or during the course of investigation, to establish ownership of the seized coal. It is further mentioned that in view of the case being charge-sheeted and upon verification of the ownership of the subject-vehicle submitted in deference to the Order dated 28.07.2025, the seized coal weighing 53 MTS [approx.] can be released in interim custody.

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Chapter XXXVI of BNSS, 2023 [earlier, Chapter XXXIV of CrPC] titled ‘Disposal of Property’ has enumerated the provisions for disposal of property pending investigation, inquiry or trial and also at the conclusion of the trial. The provisions of Section 497 and Section 503 of BNSS which are pari materia to Section 451 and Section 457, CrPC reads as under :-

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Section 497 : Order for custody and disposal of property pending trial in certain cases.

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[1] When any property is produced before any Criminal Court or the Magistrate empowered to take cognizance or commit the case for trial during any investigation, inquiry or trial, the Court or the Magistrate may make such order as it thinks fit for the proper custody of such property pending the conclusion of the investigation, inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court or the Magistrate

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may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

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Explanation. - For the purposes of this section, ‘property’ includes -

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[a] property of any kind or document which is produced before the Court or which is in its custody;

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[b] any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

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[2] The Court or the Magistrate shall, within a period of fourteen days from the production of the property referred to in sub-section [1] before it, prepare a statement of such property containing its description in such form and manner as the State Government may, by rules, provide.

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[3] The Court or the Magistrate shall cause to be taken the photograph and if necessary, videograph on mobile phone or any electronic media, of the property referred to in subsection [1].

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[4] The statement prepared under sub-section [2] and the photograph or the videography taken under sub-section [3] shall be used as evidence in any inquiry, trial or other proceeding under the Sanhita.

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[5] The Court or the Magistrate shall, within a period of thirty days after the statement has been prepared under sub-section [2] and the photograph or the videography has been taken under sub-section [3], order the disposal, destruction, confiscation or delivery of the property in the manner specified hereinafter.

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Section 503 : Procedure by police upon seizure of property.

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[1] Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Sanhita, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

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[2] If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions [if any] as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

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Section 503 of BNSS deals with the powers of the Magistrate to pass order as to the disposal of the property seized during the course of inquiry or trial but not produced before the Court.

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In the case of Sunderbhai Ambalal Desai vs. State of Gujarat, [2002] 10 SCC 283, the Hon'ble Supreme Court had considered the situations which have emerged due to non-exercise of powers vested in the jurisdictional Magistrate under Section 451, CrPC. It considered the situation of keeping seized articles at various Police Stations. To overcome such situation and to avoid misappropriation or tempering of the records at the Police Station, the Hon'ble Supreme Court issued a set of directions so that the burden of courts as well as at the Police Station can be reduced to some extent and that there may not be any scope for misappropriation or replacement of valuable articles by spurious articles.

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12.1. The Hon'ble Supreme Court has laid down a set of guidelines to be followed in the following manner :-

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To avoid such a situation, in our view, powers under Section 451 CrPC should be exercised promptly and at the earliest.

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With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, the Magistrate should pass appropriate orders as contemplated under Section 451 CrPC at the earliest.

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For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after :

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[1] preparing detailed proper panchnama of such articles;

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[2] taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and

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[3] after taking proper security.

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For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition.

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In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the court may direct that such articles be kept in bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles

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in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the court may direct that such articles be handed back to the investigating officer for further investigation and identification. However, in no set of circumstances, the investigating officer should keep such articles in custody for a longer period for the purposes of investigation and identification. For currency notes, similar procedure can be followed.

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In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.

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In case where the vehicle is not claimed by the accused, owner, or the insurance company or by a third person, then such vehicle may be ordered to be auctioned by the court. If the said vehicle is insured with the insurance company then the insurance company be informed by the court to take possession of the vehicle which is not claimed by the owner or a third person. If the insurance company fails to take possession, the vehicles may be sold as per the direction of the court. The court would pass such order within a period of six months from the date of production of the said vehicle before the court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.

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However, these powers are to be exercised by the Magistrate concerned. We hope and trust that the Magistrate concerned would take immediate action for seeing that powers under Section 451 CrPC are properly and promptly exercised and articles are not kept for a long

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time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the High Court concerned in seeing that the rules framed by the High Court with regard to such articles are implemented properly.

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Ms. Dev, learned counsel for the petitioner has submitted that the interim custody of the subject-vehicle has already been granted in favour of the owner of the subject-vehicle by an Order dated 28.07.2025 by this Court in Criminal Revision Petition no. 260/2025 subject to the conditions mentioned therein. Ms. Dev has further submitted that the seized coal weighing 53 MTS [approx.], involved herein, is kept loaded in the subject-vehicle till date. In view of such situation, both the seized coal weighing 53 MTS [approx.] involved herein and the subject-vehicle are still kept at the Police Station and despite the Order dated 28.07.2025, the interim custody of the subject-vehicle has not yet been handed over to the registered owner of the subject-vehicle.

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On the basis of the documents annexed at Annexure-1 to Annexure-11 to this petition the petitioner seems to be entitled to the possession of the seized coal weighing 53 MTS [approx.]. The I.O. of the case in his Report dated 07.08.2025 has also formed such prima facie opinion. Therefore, the interim custody of the seized coal can be given to the petitioner. It is accordingly ordered.

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Before handing over the interim custody of the seized coal, the jurisdictional Magistrate shall prepare a statement of such property containing description and shall take the photograph[s] and if necessary, shall take videography of the seized coal on mobile phone or any electronic media. The statement so prepared and the photograph[s] and the videography, if any, so taken shall be used as evidence in any enquiry, trial or the proceedings under the BNSS. The photograph[s] of such property so released should be attested or countersigned by the I.O., the accused persons as well as the petitioner to whom the interim custody is handed over. It is further observed that the actual production of the seized articles during the trial is not to be insisted upon and the photograph[s] and videography, if any, should be treated as sufficient for the purpose of evidence.

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The custody of the seized coal is to be given to the petitioner provided that the

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petitioner furnishes a bond equivalent to the valuation of the said seized coal reflected in e-Way Bill dated 06.04.2025 and the Seizure List, M.R. no. 294/2025 or the market valuation, whichever is higher. The I.O. shall keep all the information and documents necessary for identification of the seized coal.

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By setting aside the impugned Order dated 06.06.2025, the instant criminal revision petition is allowed in the afore-stated terms.

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The Report dated 07.08.2025 of the I.O. is kept in the case records by marking as Document – ‘A’.

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Asasa International Mining Pvt. Ltd. v. the State of Assam and Anr.

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Asasa International Mining Pvt. Ltd. v. the State of Assam and Anr.

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