Page No.# 1/5 GAHC010153602025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./839/2025 SRI FOYAZ AHMED BARBHUIYA S/O- ABDUL MATIN BARBHUIYA. R/O- DIGABOR ROAD, P.O- DUMKAR, P.S- KALAIN, DISTRICT- CACHAR, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM. Advocate for the Petitioner : MRS. R RONGMEI, S. DEVI,M N RONGMEI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER Date : 25-07-2025 Heard Ms. R. Rongmei, learned counsel for the petitioner and Mr. R.J. Baruah, learned Additional Public Prosecutor for the respondent State of Assam. 2. In connection with Lakhipur Police Station Case no. 160/2024, a consignment of areca nuts contained in 465 sacks, weighing 26,905 Kgs, was seized vide Seizure List, M.R. no. 156/2024. The First Information Report [FIR] Page No.# 2/5 was lodged by a Sub-Inspector of Police attached to Lakhipur Police Station on 13.10.2024 pursuant to Lakhipur Police Station General Diary Entry no. 20 dated 13.10.2024. The sacks of areca nuts were seized from one vehicle [Wagon R] bearing registration no. AS-11/X-3280 [‘the subject-vehicle] on 13.10.2024 and two persons, namely, [i] Dilwar Hussain Mustafa and [ii] Mustak Ahmed Tapadar were occupants of the seized subject-vehicle. 3. The petitioner is the registered owner of the said seized vehicle and the petitioner sought custody of the said seized subject-vehicle by filing a petition before the Court of learned Sub-Divisional Judicial Magistrate [M], Lakhipur, Cachar. The Court of learned Sub-Divisional Judicial Magistrate [M], Lakhipur, Cachar, by Order dated 16.11.2024, granted custody of the seized subject- vehicle subject to execution of a bond of the amount and the terms and conditions mentioned in the Order. Another petition was preferred by the petitioner for custody of the seized areca nuts before the same Court. By the said Order dated 16.11.2024, the learned SDJM [M], Lakhipur, Cachar rejected the prayer for custody of the areca nuts. 4. Subsequently, the Officer In-Charge, Lakhipur Police Station moved a petition in connection with Lakhipur Police Station Case no. 160/2024 indicating that the areca nuts weighing 26,905 Kgs and seized vide M.R. no. 156/2024 was lying in the Police Station compound and no true owner could be found. Stating areca nut a perishable agro-product, the Officer In-Charge of Lakhipur Police Station/I.O. sought permission from the Court to sell the said seized areca nuts through public auction and to deposit the proceed of the auction to State Exchequer to prevent the areca nuts from further damage. Page No.# 3/5 5. By an Order dated 27.03.2025, the SDJM [M], Lakhipur, Cachar in connection with PRC no. 19/2025 after examination of a physical verification report from the District Agricultural Officer, Cachar, Silchar; a report submitted by the State Public Health Laboratory, and paper publications made in widely circulated newspapers in two languages; and other documents available on record; had reached a finding that the areca nuts so seized and lying in the Police Station premise, were not suitable for human consumption. The learned SDJM [M], Lakhipur, Cachar had thereafter, directed to conduct a public auction under the supervision of the District Disposal Committee for Areca Nuts and deposit the sale proceed of the said auction to the State Exchequer; with the observation that the same ensure fair disposal of the said goods. In the Order dated 27.03.2025, the learned SDJM [M], Lakhipur, Cachar has further observed that if any true claimants appears thereafter, such claimant can be reimbursed. 6. The instant criminal petition is preferred by the petitioner to assail the Orders, dated 16.11.2024 and 27.03.2025, on the strength of an E-Way bill annexed as Annexure-6 to this petition. 7. It is the contention of the petitioner that he went to Lakhipur Police Station for release of his seized areca nuts with the said E-Way bill but the Police Station refused to hand over the same to the petitioner without any order from the Court. It is contended on behalf of the petitioner that the public auction has not yet been taken place. 8. Mr. Baruah, learned Additional Public Prosecutor has contended that the E- Page No.# 4/5 Way bill was generated only on 15.10.2024, that is, after the seizure of the areca nuts weighing 26,905 Kgs. 9. It appears that the E-Way bill on the strength of which the petitioner has claimed ownership of the seized areca nuts, was generated on 15.10.2024 [Annexure-6], which is a date, subsequent to the recovery and seizure of 26,905 Ks of areca nuts on 13.10.2024 and the same raises a disputed questions of fact. 10. The Order dated 27.03.2025 has been passed by the learned SDJM [M], Lakhipur, Cachar apparently under Section 504[1] of the Bharatiya Nagarik Suraksha Sanhita [BNSS] [earlier, Section 458[1], CrPC]. A remedy of appeal in such case is available under sub-section [2] of Section 504, BNSS [earlier, sub- section [2] of Section 458, CrPC]. As in an appellate jurisdiction, the appellate court can decide both the questions of facts as well as of law and there is disputed questions of fact involved in this case, this Court is of the considered view that the petitioner has to avail the remedy of appeal available to him under Section 504[2], BNSS, 2023 [earlier, Section 458[2], CrPC] to establish his claim of ownership of the seized areca nuts weighing 26,905 Kgs. As the claim for such ownership of the seized areca nuts weighing 26,905 Kgs is in doubt, this Court does not find any merit to entertain this criminal petition under Section 528, BNSS. Therefore, this criminal petition is dismissed reserving the liberty to the petitioner to avail the remedy under Section 504[2], BNSS, 2023 [earlier, Section 458[2], CrPC]. JUDGE Page No.# 5/5 Comparing Assistant