Afzal Hussain v. The State of Assam

ORDER Date : 01.03.2023 Heard Mr. M. Rahman, learned counsel for the petitioner. Also heard Mr. Bhaskar Sarma, learned APP appearing for the State. Page No.# 2/3

¶2By filing this criminal petition under section 397/401 Cr.P.C. read with section 482 Cr.P.C., the petitioner has assailed the order dated 13.09.2022, passed by the learned Additional Sessions Judge No.2, Kamrup (Metropolitan), Guwahati in connection with NDPS Case No.97/2022, arising out of Khetri P.S. Case No. 31/2022, under section 20(b)/29 of the NDPS Act, thereby rejecting the zimma petition no.2158/2022 filed for zimma of two mobile phones.

¶3Pursuant to order dated 28.11.2022, scanned copy of the LCR is received. On the next date, i.e. 01.02.2023, the learned APP sought for some time to go through it. Therefore, notwithstanding that no notice has been issued to the learned APP in the matter, the matter has been taken up for disposal.

¶4The prayer for zimma is opposed by the learned APP.

¶5On perusal of the scanned copy of the LCR, which includes the scanned copy of the case diary, it is seen that there is no prayer by the I/O for forensic analysis of the data in the said two mobile phones, being (1) Realme 6 handset, mobile number 9366951653, IMEI-868136045831198, IMEI-868136045831180, and (2) Realme Note 10 handset, mobile number 9402029845, IMEI-865008052237200/09, IMEI-86500805223718/09. It also does not appear from the case diary that the I/O suspects that any data relevant for the case is stored in the said two mobile phones.

¶6In this case, on 15.02.2022, in course of checking, one motorcycle bearing registration number AS-02-T-6855 was stopped by the police and 1.856 kg of ganja was seized from the left side tool box of the motorcycle and both the driver and the pillion rider were arrested. The I/O suspects that the motorcycle was being used for transporting ganja from Meghalaya to Dimapur. Page No.# 3/3

¶7As the case diary does not disclose the requirement of the hereinbefore referred two mobile phones for investigation, the Court is inclined to hold that the order dated 13.09.2022, passed by the learned Additional Sessions Judge No.2, Kamrup (Metropolitan), Guwahati in connection with NDPS Case No. 97/2022 is not sustainable and therefore, the same is set aside.

¶8Resultantly, the petition no.2158/2022, filed by the petitioner under section 451 Cr.P.C. is restored to file. Liberty is granted to the petitioner to argue on the said zimma petition afresh and it is provided that on certified copy of this order being produced, the learned Additional Sessions Judge No.2, Kamrup (Metropolitan), Guwahati shall hear the said petition afresh and pass orders thereon in accordance with law.

¶9This revision petition stands allowed to the extent as indicated above.

¶10Registry shall not issue copy (certified/un-certified) of any part of the scanned LCR.

¶11Accordingly, this petition stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/3 GAHC010240642022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./559/2022 AFZAL HUSSAIN S/O FARUK AHMED R/O LAMAJUAR BADARPUR P.S. AND P.O. KARIMGNAJ PIN-788713 DIST. KARIMGANJ, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. M RAHMAN Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA