Keramat Ali @ Babul Ali v. The State of Assam

JUDGMENT & ORDER (ORAL)

¶1Heard Mr. S. Rana, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State.

¶2The present application under Section 397 and 401 of the Code of Criminal Procedure, 1973 read with Section 482 of Cr.P.C. and Article 227 of the Constitution of India is filed assailing order dated 07.02.2024 passed by the learned Additional Chief Judicial Magistrate, Lakhimpur, North Lakhimpur in connection with Laluk P.S. Case No. 08/24, whereby the learned Magistrate was pleased to reject the prayer for zimma of 8 (eight) numbers of cattle (bulls) seized in connection with the aforesaid case.

¶3By the impugned order dated 07.02.2024, the learned Magistrate had refused to grant zimma of the seized cattle to the petitioner on the ground that the under Section 11(5) of the Assam Cattle Preservation Act, 2021, there is an express bar for giving zimma of seized cattle in a particular case when a prima facie case is made out.

¶4Mr. Rana, learned counsel for the petitioner submits that the seized cattle were duly purchased from the registered cattle market and the petitioner had already produced the receipt of purchase before the I.O., and that being the position, the learned Magistrate could not have rejected the zimma of the cattle.

¶5Mr. D. Das, learned Additional Public Prosecutor for the State raising a maintainability of the present petition contends that an express provision of appeal is there under Section 12 of the Act, 2021 against any order passed Page No.# 3/8 under Section 11 of the Act, 2021 and therefore, the impugned order is an appealable order. According to Mr. D. Das, learned Additional Public Prosecutor for the State, when an express provision of appeal is provided under the Act, the revisional power under Sections 397/401 of Cr.P.C. can not be exercised and when it comes to the exercise of power under Section 482 of Cr.P.C., the same can only be exercised in exceptional cases, where glaring illegality resulting in miscarriage of justice is shown.

¶6There is no doubt that the inherent power of Section 482 of Cr.P.C., should not be exercised/resorted to, if there is specific provision in the code for redressal of grievances of aggrieved party (In Madhu Limaye –Vs-The State of Maharastra reported in 1977 4 SCC 551).

¶7There is also no quarrel to the proposition that in terms of Section 401 of Cr.P.C., when there is a provision of appeal under the code and no such appeal is filed, a proceeding by way of revision under Section 401 of Cr.P.C., shall not be entertained at the instance of the party, who could have appealed.

¶8Section 397 of the Cr.P.C. allows High Court and Session Judges to call and examine the records of criminal Courts inferior to them, within their territory to examine and make sure that the decisions of such Courts are correct, legal and fair. This Court in exercise of such power can also look into whether the Courts below had followed the right procedure. In such a proceeding, the superior Court can also call for the records of the Courts below. However, such exercise of power shall not be resorted to, when there is an express provision of appeal. Page No.# 4/8

¶9A bare reading of Sub Section 14 of Section 7 of the Act, 2021, Sub Sections 3, 4 and 5 of Section 11 of the Act, 2021 and Section 102 of the Code of Criminal Procedure, 1973, it is crystal clear that the purpose of enactment of such provision is to facilitate investigation and to give the police officers power to gather evidence to support the allegations made, which includes search, seizure and detain etc.

¶10Further, under the aforesaid provisions of law, the officer empowered to make seizure, is to report the seizure to the Magistrate within a reasonable time/forthwith. The police officer under Section 102 (3) of Cr.P.C. is even empowered to release the custody of the seized materials to any person on execution of a bond to produce the property before the Court as and when required, when such property seized cannot be transported to the Court conveniently. At the same time under Act, 2021, a provision for keeping the custody of the cattle under gaushala etc., is also provided. The objection of such provision is for the protection of the seized property inasmuch as cattle cannot be allowed to be kept in the police station. Further such course of action, if permitted, may also amount to cruelty to these animals under the Act'1960.

¶11From the provisions of law as discussed hereinabove, this court is of the considered opinion that the mandate under Sub Section 4 of Section 11 of the Act, 2021 of reporting of the seizure to the Jurisdictional Magistrate/First Class Magistrate, is to bring to the notice of the jurisdictional Magistrate such fact of seizure. It is the further considered opinion of this Court that it is a mandatory requirement under the Act, 2021 to report to the Judicial Magistrate First Class as regard the factum of Page No.# 5/8 search and seizure. An obligation is imposed under Sub Section 4 of Section 11 of the Act, 2021 upon the police officers designated in this regard to report such seizure to the Judicial Magistrate First Class, the same without unreasonable delay. Law is no more res integra that when there is a prescription to report the seizure "without reasonable delay", the same shall mean that the report of seizure is made with reasonable speed with expedition and any delay in the matter should be satisfactorily explained.

¶12Text of section 102 of the Code and Sub Sections 3, 4 and 5 of Section 11 of the Act, 2021 is very clear and this Court is of the unhesitant view that the power to release the seized material under sub Section 5 of Section 11 of the Act, 2021 and under Section 102 of Cr.P.C., are relatable only to the stage of seizure under Sub Section 3 of Section 11 of the Act, 2021 and under Chapter VIII of the Cr.P.C. as the case may be. The reason is obvious that such seizure can be carried out only in a situation as envisaged under sub section 3 and 4 of section 11 of the Act'2021 and the same is without approval of the jurisdictional magistrate. Therefore, such prescription cannot be made relatable to a provision of disposal of property during enquiry and trial. Thus, such power and mandate of law also cannot be treated to be a power and / or prescription for entire period of enquiry and trial.

¶13Though a power has been granted to the Magistrate under Sub Section 10 of Section 11 of the Act, 2021 to allow sale of seized material on an application filed by the police officer having authority to make seizure, however, the Act is silent under what circumstances such permission can be granted. The provisions of forfeiture and sale including the handing over of Page No.# 6/8 the cattle to gaushalas are enumerated under the provision of Section 11 of the Act, 2021, which deals with power to enter, inspect, search and detain.

¶14That being the position and in absence of any specific prescription in the Act'2021 as regards disposal of property during enquiry and trial or post trial or at the conclusion of trial, the provision of Chapter XXXIV of the Code, 1973 shall be applicable, so far the same relates to disposal of property seized under the provision of Section 11 of the Act, 2021. Further, the Act,2021, more particularly, Sub Section 1 of Section 11 of the Act, 2021 makes it clear that Section 11 is enacted to deal with the power of search and seizure, which has been granted for the purpose of enforcing the provision of the Act, 2021.

¶15Power of search and seizure are important tools for the investigating authorities to properly investigate the case. The purpose of seizure in a criminal case is to secure and preserve evidence or items that are relevant for investigation or for prosecution of a criminal case. Thus, in the aforesaid context and the determination made hereinabove, this Court is of the unhesitant view that the provision of Chapter XXXIV of Cr.P.C., more particularly, Section 451 and 457 of Cr.P.C. shall be applicable in a case under the Act, 2021 inasmuch as it is clear that barring the provision of Sub Section 9 of Section 11 of the Act, 2021, there is no procedure prescribed for disposal of property.

¶16Now coming to the case in hand, it is alleged that 8 (eight) numbers of bullocks were seized on 21.01.2024. The petitioner subsequently filed a petition, however, no statement has been made when such application for zimma was filed and under what provision of law, such application was Page No.# 7/8 filed. A copy of the zimma petition filed before the learned Magistrate is also not part of the present petition. By way of the impugned order dated

07.02.2024, the zimma was rejected on the ground that the Section 11(5) of the Act, 2021, expressly bar the Magistrate from giving zimma of cattle seized in a particular case provided that a prima facie case is made out against the zimma petitioner. Such finding of the Magistrate cannot be faulted with though, as determined hereinabove, such proposition shall be applicable at the stage as envisaged under Sections 11(3) and 11(4) of the Act, 2021.

¶17The petitioner has also not annexed the application seeking zimma before the learned Magistrate to ascertain at what stage and under what provision of law, such application was filed. That being the position, this Court cannot also presume the zimma petition to be a petition under Section 451 or under Section 457 of the Code. On this count also, the impugned order cannot be interfered.

¶18Accordingly, in view of the determination made hereinabove, and the given facts of the present case as recorded hereinabove, the present petition stands dismissed with a liberty to the petitioner to file a fresh application in terms of Chapter-XXXIV of the Code of Criminal Procedure, 1973 seeking zimma of the vehicle and in the event such application is filed, same be decided as expeditiously as possible and within a period of one month of filing of such application and in terms of the determination made hereinabove and also taking note of the ratio laid down by the Hon'ble Apex Court in the case of Sunderbhai Ambala Desai –Vs-State of Gujrat reported in (2002) 10 SCC 283. Page No.# 8/8

¶19It is further made clear that the condition of bank guarantee may not be imposed for the reason that such condition is relatable and applicable when an application is considered and order is passed under Section 11(5) of the Act, 2021 JUDGE Comparing Assistant

Page No.# 1/8 GAHC010046762024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./79/2024 KERAMAT ALI @ BABUL ALI S/O ABDUL JALIL R/O VILL- SATR A MOINBARI P.S. KALGACHIA DIST. BARPETA, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MD A ALI Advocate for the Respondent : PP, ASSAM BEFORE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Petitioner : Mr. S. Rana, Adv For the Respondents : Mr. D. Das, Addl.PP. Date of Hearing : 24.04.2024 Date of Judgement : 24.04.2024 Page No.# 2/8