Gauhati High Court
Page No.# 1/8 vs Page No.# 2/8 on 21 August, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/8
GAHC010181642025
2025:GAU-AS:11186
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./329/2025
GEREMSA NARZARY AND 3 ORS
S/O AMOREN NARZARY
R/O VILL- KANTHALGURI, P.S. AMGURI,
DIST. CHIRANG (BTR), ASSAM
2: SRI RAJIB BRAHMA
S/O TENGENA BRAHMA
R/O VILL- GWMWBIL
P.O. AMTEKA
P.S. AMGURI
DIST. CHIRANG
BTR
ASSAM.
3: SRI PURNA NARZARY
S/O LATE BUDHACHARAN NARZARY
R/O VILL- KUMGURI
P.O. AMTEKA
P.S. AMGURI
DIST. CHIRANG
BTR
ASSAM
4: SRI SONEN NARZARY
S/OLATE BUDHA CHARAN NARZARY
R/O VILL- KUMGURI
P.O. AMTEKA
P.S. AMGURI
DIST. CHIRANG
BTR
ASSA
VERSUS
Page No.# 2/8
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : S I AKAND, MR. T HUSSAIN,KAUSHIK JAIN
Advocate for the Respondent : PP, ASSAM,
BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT & ORDER 21.08.2025 Heard Mr. S.I. Akand, learned counsel for the petitioners and Mr. R.R. Kaushik, learned Additional Public Prosecutor for the respondent no. 1, State of Assam.
2. The present criminal revision petition under Section 538 and Section 442 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 has been preferred seeking modification of a part of an Order dated 01.07.2025 passed by the Court of learned Sessions Judge, Kokrajhar in Sessions Case no. T.2/75 of 2025, which arose out of G.R. Case no. 163 of 2024 and Police Report Case [P.R.C.] no. 218 of 2025.
3. On 27.03.2025, a Sub-Inspector of Police & In-Charge, Patgaon Out Post under Serfanguri Police Station in reference to two general diary entries, [i] General Diary Entry no. 394 dated 26.03.2025 and General Diary Entry no. 399 dated 27.03.2025 lodged a First Information Report [FIR] before the Officer In-Charge, Serfanguri Police Station.
4. As per the FIR, based on information received, three vehicles bearing Registration no.
- [i] AS-26/C-7800 [Mahindra Supro Maxi Truck, 'the subject-vehicle no. 1']; [ii] AS-26/A-7557 [Maruti Suzuki Desire, 'the subject-vehicle no. 2']; and [iii] AS-16/L-3702 [NS Pulsar, 'the subject-vehicle no. 3'] - were intercepted at an area in Patgao. After search and seizure of the Page No.# 3/8 subject-vehicle no. 1, six nos. of cattle [Bull] were recovered in presence of independent witnesses. The driver, Rajib Brahma [the petitioner no. 2] and the handyman, Geremsa Narzary [the petitioner no. 1] of the subject-vehicle no. 1 could not produce valid document as regards transportation of the cattle. The driver for the subject-vehicle no. 1 stated that the driver of the subject-vehicle no. 2, Purna Narzary [the petitioner no. 3] and the rider of the subject-vehicle no. 3, Sonen Narzary [the petitioner no. 4] were owners of the seized cattle. All four of them were interrogated and apprehended suspecting them to be involved in smuggling of cattle for slaughtering purpose. The FIR has been registered as Serfanguri Police Station Case no. 12/2025 [corresponding G.R. Case no. 163 of 2024 and P.R.C. no. 218 of 2025] under Sections 303[2]/3[5] of the Bharatiya Nyaya Sanhita [BNS], 2023 read with Section 11[1] of the Prevention of Cruelty to Animals Act, 1960 read with Sections 13[1]/14 of the Assam Cattle Preservation Act, 2021, as amended.
5. The investigation continued thereafter and after completing the investigation, the Investigating Officer [I.O.] of the case submitted a charge-sheet pursuant to which the case stood committed to the Court of Sessions, Kokrajhar ['Trial Court', for short]. On being committed, the case has been registered as Sessions Case no. T.2/75 of 2025.
6. The four petitioners herein who were apprehended on 27.03.2025 in connection with Serfanguri Police Station Case no. 12/2025, preferred an application before the Trial Court seeking interim custody of the following articles which were seized from them during the course of investigation, :-
[i] One VIVO smart phone bearing SIM no. 9707014309, IMEI no. 865318057988313 & 863318057988305.
[ii] One OPPO A53 Mobile phone bearing SIM no. 8099562693 & 9395030924, IMEI no. 860439054640312 & IMEI no. 860439054640304.
[iii] One Maruti Suzuki Swift Desire vehicle bearing Registration no. AS-26-A/7557; [iv] One OPPO Mobile phone bearing SIM no. 8812832774, IMEI no. 861096055322479 & IMEI no. 12-861096055322461.
[v] One NS Pulsar motorcycle bearing Registration no. AS-16-L/3702.
Page No.# 4/8 [vi] One Samsung Mobile Phone bearing SIM no. 6901488338, IMEI no. 352989672181789 & IMEI no. 353308122181787.
7. The Order dated 01.07.2025 has been passed by the Trial Court after hearing the learned counsel for the petitioners and the Public Prosecutor on the prayer for interim custody made by the petitioners vide Petition no. 2168/2025, Petition no. 3166/2025; Petition no. 2162/2025; and Petition no. 2164/2025. The Trial Court took into consideration that keeping the said seized articles would not serve any purpose and the seized items would be required for day-to-day use by the petitioners. The Trial Court was of the further view that the interim custody of the seized articles could be allowed to the petitioners subject to the condition that they would produce those articles as and when required by the Court. The Trial Court was of the further view that there was nothing on record that the trial of the case would be hampered if the interim custody of the seized articles were allowed to the petitioners. Accordingly, the four afore-mentioned interim custody petitions were allowed. By the Order dated 01.07.2025, the I.O. of the case was directed to give interim custody of the seized article to the owners on execution of bank guarantees and after verifying the authenticity of the ownership.
8. The operative parts of the Order dated 01.07.2025 in respect of which modification has been sought for partly, read as under :-
Accordingly, I.O. is hereby directed to give zimma of the following seized articles to the owner on execution of bank guarantee and also after verifying the authenticity of the ownership :
[i] One VIVO smart phone bearing SIM no. 9707014309, IMEI no. 865318057988313 & 863318057988305, on furnishing a bank guarantee of Rs. 15,000/ - [Rupees fifteen thousand] only, which is equal to the value of the mobile phone.
[ii] One OPPO A53 Mobile phone bearing SIM no. 8099562693 & 9395030924, IMEI no. 860439054640312 & IMEI no. 860439054640304, on furnishing a bank Page No.# 5/8 guarantee of Rs. 15,000/ - [Rupees fifteen thousand] only, which is equal to the value of the mobile phone.
[iii] One Maruti Suzuki Swift Desire vehicle bearing Registration no. AS-26- A/7557, on furnishing a bank guarantee of Rs. 9,00,000/ - [Rupees nine lakhs] only, which is equal to the value of the vehicle.
[iv] One OPPO Mobile phone bearing SIM no. 8812832774, IMEI no. 861096055322479 & IMEI no. 12-861096055322461, on furnishing a bank guarantee of Rs. 15,000/ - [Rupees fifteen thousand] only, which is equal to the value of the mobile phone.
[v] One NS Pulsar motorcycle bearing Registration no. AS-16-L/3702, on furnishing a bank guarantee of Rs. 1,50,000/ - [Rupees lakh fifty thousand] only, which is equal to the value of the motorcycle.
[vi] One Samsung Mobile Phone bearing SIM no. 6901488338, IMEI no. 352989672181789 & IMEI no. 353308122181787, on furnishing a bank guarantee of Rs. 15,000/ - [Rupees fifteen thousand] only, which is equal to the value of the mobile phone.
9. It is the contention of the petitioners that the condition imposed by the Trial Court regarding furnishing of bank guarantees equivalent to market value of the seized articles is not easy and in fact, onerous and harsh. It is contended that the condition of furnishing bank guarantee has been imposed perhaps for the provision contained in sub-section [5] of Section 11 of the Assam Cattle Preservation Act, 2021 ['the Act, 2021', for short]. Sub-section [5] of Section 11 of the Act, 2021 has provided as follows :-
Section 11[5] - On receipt of the report, the Judicial Magistrate 1st Class may, on his being satisfied that there is enough material to presume that a prima-facie offence under this Act has been committed or intended to be committed, release the seized materials including vehicle/conveyance except cattle on furnishing of a bank guarantee, equal to the value of the material or vehicle/conveyance except, to the satisfaction of the court, pending disposal of the criminal proceedings instituted in respect of the alleged offence.
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10. A co-ordinate Bench of this Court in a Judgment and Order dated 22.05.2024 passed in Criminal Revision Petition no. 143/2024 has laid down the following propositions :-
I. 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, is enacted to facilitate investigation and to give the police officers the power to gather evidence to support the allegations made, which includes search, seizure and detain etc. II. The release of seized material as envisaged under sub-section [5] of Section 11 of the Act, 2021 and envisaged under Section 102 of CrPC, are relatable only to the stage of seizure under sub-section [3] of Section 11 of the Act, 2021 and under Chapter VII of the CrPC, respectively. And, therefore, such prescription cannot be made relatable to a provision of disposal of property during enquiry and trial.
III. The Act, 2021 is silent as regards disposal of property during enquiry and trial and that being the position and in absence any specific prescription in the Act, 2021, 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. Therefore, when application under Section 451 or Section 457 of CrPC is made, the principles laid down in Sunderbhai Ambala Desai vs. State of Gujrat, reported in [2002] 10 SCC 283, shall be made applicable.
IV. The prescription made under sub-section [5] of Section 11 of the Act, 2021 is relatable only to a situation/stage when the authorised officer[s] exercises its power under sub-section [3] of Section 11 of the Act, 2021 or under sub-section [14] of Section 7 of the Act, 2021 and reports the same to the Judicial Magistrate First Class in terms of sub-section [4] of Section 11 of the Act, 2021.
V. A revision either under Section 401, 397 or 482 of CrPC shall not be maintainable against an order passed in exercise of power under sub-section [5] of Section 11 of the Act, 2021 and appropriate remedy shall be an appeal under Page No.# 7/8 Section 12 of the Act, 2021.
VI. No appeal shall be maintainable under Section 12 of the Act, 2021 when a determination is made in an application filed under Section 451 or Section 457 of the CrPC, as the case may be.
11. In the case in hand, six nos. of cattle [Bull] were seized from the subject-vehicle no. 1. The present petition relates to the afore-stated six articles and the condition imposed regarding furnishing of bank guarantees to facilitate interim custody to the petitioners. The I.O. of the case has already submitted the charge-sheet after investigation.
12. By making determination in Criminal Revision Petition no. 143/2024 by the co-ordinate Bench, it has been observed that when an application for interim custody is filed after the charge-sheet was laid, the consideration of grant of interim custody cannot be said to be an exercise of power under sub-section [5] of Section 11 of the Act, 2021 and therefore, the insistence for bank guarantee as prescribed in sub-section [5] of Section 11 of the said Act shall not be applicable.
13. Taking note of such determination, this Court is of the view that the part of the Order dated 01.07.2025 [supra] whereby the Trial Court's insistence for bank guarantees for amounts, mentioned therein, is not sustainable under the law inasmuch as at the time of filing the four interim custody applications, the investigation was already concluded. In view of the above, the present petition is allowed by setting aside that part of the Order dated 01.07.2025 whereby furnishing of bank guarantees for the amounts, mentioned in the extracted portion of the Order above, was insisted by the Trial Court. The direction to verify the authenticity of ownership remains unchanged. As a consequence, it is ordered that the interim custody of the six seized articles, mentioned above, be granted to the petitioners on the following terms and conditions.
[i] The Investigating Officer [I.O.] shall prepare proper panchnama of the articles and vehicles and shall get the signatures of the owner or representative Page No.# 8/8 after submission of indemnity bond each against the seized articles/vehicles for the amounts quoted by the Trial Court.
[ii] The petitioners shall not change the colour or structure of the vehicles and shall not also dispose of the articles/vehicles till disposal of the case.
[iii] The petitioners/owners shall produce the articles/vehicles before the I.O. or concerned authority as and when called for the purpose of trial.
14. The criminal revision petition is disposed of in the aforesaid terms. No cost.
JUDGE Comparing Assistant