The Guwahati High Court in the case of smuggling of areca nut and set aside the order rejecting zimma of seized areca nut since the assessee proved the ownership by submitting invoices.
The petitioner Anowar Hussain has applied to Section 482 read with Section 401 Cr.PC and Article 227 of the Constitution of India challenging the order dated 22.02.2023 passed by the Judicial Magistrate, 1st Class,whereby rejected the zimma of the petitioner relating to zimma of 400 bags of dry areca nuts (28 tones) seized in connection with Chapor P.S. Case No. 234/2022 under Sections 120B/379/420/468/471/34 IPC.
Based on secret information on 25.12.2022 the department found the truck loaded with supari (betel nuts). The Registration No. of the truck was AS-19- AC4459. The driver and the co-driver informed him that the betel nuts were loaded from a godown at Goalpara Matia area and the truck was proceeding towards Falakata of Coch Bihar but due to some mechanical defect, the truck was stopped near the petrol pump.
The challans and the E-way bills produced by the driver and the co-driver were from A.R. Enterprise at Bijni under the Chirang district. The Assistant Commissioner of Taxes informed over the phone that the E-way bills as well as the challans were fake and taxes tantamounting to lacs of rupees were being evaded in the process.
On IO it was stated that suspected areca nuts do not match with the product of this locality and the areca nuts have been collected from illegal sources without proper documents and appears to be non-permitted species from Burma.
The IO has also submitted a report that the GST Tax payment receipt amounting to Rs. 11,49,060/-was paid as a penalty in the name of Vimal Das while Vimal Das was behind bars and it has come as a surprise as to how the tax of seized goods in the custody of police can be paid by a person who was still lodged in the jail and why was the driver paying the GST Tax instead of the service provider or the owner of the truck.
The petitioner had applied for zimma of the seized 400 bags of dry areca nuts which are perishable in nature but vide order dated 23.02.2023 the petition was rejected as the petitioner had failed to produce any documents regarding the purchase and procurement of the seized areca nuts.
However, the truck bearing Registration No. AS-19-AC4459 was allowed to be handed over to the registered owner. The seized areca nuts are not fit for human consumption. The articles seized by the police were duly purchased by the petitioner who submitted the invoices for the procurement of the areca nuts to substantiate the purchase.
The areca nuts seized in connection with this case are suspected to be smuggled from Burma and the report of the District Agricultural Department reflects that the areca nuts are not legal products. It was also submitted through the report of the IO that as per the record, the seized areca nuts belong to A.R. Enterprise, C/o. Anowar Hussain, who is the present petitioner. The impugned order was passed on 22.02.2023. Petition No. 5397/2023 was filed by the petitioner with prayer for the zimma of the areca nuts.
A single judge bench comprising Justice Susmita Phukan Khaund observed that the petitioner has appended the invoice dated 19.12.2022, 20.12.2022, 22.12.2022 and 24.12.2023 and the copy of the E-way bill which proves that the petitioner is the owner of the seized areca nuts. It was evident that the penalty for the seized areca nuts. has already been paid.
The Court set aside the impugned order dated 22.02.2023 relating only to the rejection of the prayer of zimma of the seized areca nuts to the custody of the petitioner.
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