Page No.# 1/6 GAHC010177322026 2026:GAU-AS:12133 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1166/2026 M/S PRAGATI TRADERS AND TRANSPORT AND ANR REPRESENTED BY ITS PROPRIETOR/OWNER SMTI PRIYA DEVI, AGED 27 YEARS, W/O- SRI CHANDAN NEWAR, PERMANENT RESIDENT OF VILLAGE- JAKHALABHANDHA, DIST.- NAGAON, ASSAM, PIN-782136 2: SMTI PRIYA DEVI W/O- SRI CHANDAN NEWAR PERMANENT RESIDENT OF VILLAGE- JAKHALABHANDHA DIST.- NAGAON ASSAM PIN78213 VERSUS STATE OF ASSAM AND ANR REPRESENTED BY PUBLIC PROSECUTOR, ASSAM 2:SRI DEW KUMAR SINGH HC (UB) HEAD CONSTABLE UNARMED BRANCH ANJOKPANI POLICE STATION DIST.- KARBI ANGLONG ASSAM Advocate for the Petitioner : MR B P BORAH, MR H MAZUMDER Advocate for the Respondent : PP, ASSAM, Page No.# 2/6 BEFORE HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER Date : 24.08.2026 Mr. B.P. Borah, the learned counsel for the petitioner and Ms. S.H. Bora, the learned Additional Public Prosecutor for the State. 2. By this application, filed under Section 528 of the BNSS 2023, read with Sections 442/438 of the BNSS 2023, the petitioner has challenged the order dated 29.04.2026, passed by the learned CJM, Karbi Anglong, in PRC Case No.90/2026, by which his custody application was rejected. The petitioner has also challenged the revisional order dated 16.07.2026, passed by the Session Judge, Karbi Anglong, Diphu, in Criminal Revision No.4/2026, by which the revision application was rejected by the court and the order of the learned CJM was upheld. 3. The learned counsel for the petitioner submits that the petitioner is claiming for custody of a Tata Hitachi Poclain, used for crushing rock. The counsel submits that the petitioner is the owner of the said machine. It is stated that the said machine was taken by a truck and the truck hit an electric wire and when it stopped, the handyman of the truck tried to remove the electric wire which got stuck with the truck and in the said exercise, the person got electrocuted and was taken to the hospital and the doctor said that he was brought dead. The police on receipt of the Ejahar, had registered the case and had seized both the truck and the machine. The learned counsel for the petitioner submits that the truck was given in custody to the owner of the Page No.# 3/6 vehicle but however, in respect of the machine, zimma applications were filed before both the learned CJM, Karbi Anglong as well as the Sessions Court but the same were rejected only on the ground that the petitioner could not show her ownership over the said machine. 4. The learned counsel submits that, it has been wrongly construed by the court that the said article was a vehicle. He submits that, it is a machine and that although, it has wheel attached to that, but it is not a vehicle since it cannot be used for plying on the roads. He further submits that the machine does not fall within the definition of vehicles as provided within Sub-section 28 of Section 2 of Motor’s Vehicles Act 1988. 5. He submits that the vehicle running on fixed rails is not considered as a motor vehicle under the said provision. He also submits that in case of such vehicles, there is no requirement of registration under Section 39 of the said Act. He further submits that the said machine was purchased by the petitioner from one, Mamtaj Ali and a sale agreement was entered into between the petitioner and said Mamtaj Ali, wherein, it was stipulated that from the date i.e. 27th of August 2024, the owner of the machine, i.e Tata Hitachi Ext 210 LC, will vest on the M/S Pragati Traders & Transport, a proprietorship firm and it is stated that the petitioner is the proprietor of the said firm. 6. Ms. S. H. Bora, learned APP, however, submits that the petitioner and the alleged seller, i.e. Mamtaj Ali had themselves referred the machine as a vehicle in the aforesaid agreement and as such, she submits that the petitioner having failed to produce the registration certificate showing that she was the owner of the said machine or vehicle, the learned Court had rightly rejected the zimma Page No.# 4/6 application filed by the petitioner. 7. I have considered the submissions of the counsels and have gone through the records. It is a settled position of law that articles seized in connection with any criminal case should not be kept in the police station or any other place for long, as the same would be damaged with time. It is held by the Hon’ble Supreme Court that as soon as possible, the Magistrate should hand over the articles to the owner or the person from whom it was seized or to the insurance company. It is also held that, if no one comes forward to take custody of the article, the same can be auctioned by the court. 8. In the present case, it is noticed that the petitioner had filed custody applications before the CJM, Karbi Anglong and on rejection of the same by the said court, she had also filed a revision before the revisional Court but it is noticed that the custody was not allowed in view of the fact that she could not produce the ownership certificate or the registration certificate of the said vehicle in her name. Although, the revisional Court had reached the finding that the sale deed would not be sufficient to hold that the vehicle is owned by the petitioner but it is noticed that the article which is seized by the police and the custody of which is claimed by the petitioner is a machine for crushing of the rock. 9. On a bare perusal of the photograph of the said machine shows that it has fixed rails surrounding the wheels but under Motor Vehicles Act, more so, under Section 2(88) of the said Act provides that any machine with fixed rails will not be considered as vehicle. It has also been noticed that it was seized by the police in pursuance to the FIR lodged on 30.03.2026. It is also noticed by the Page No.# 5/6 sale deed executed between the erstwhile owner and the petitioner, who is the proprietor of the proprietorship firm, i.e. M/S Pragarti Traders & Transport, that the said machine would be owned by the petitioner from the date of the agreement, i.e. 27th August, 2026. It is seen that the petitioner is the owner of the said machine, and as such, there is no bar in giving the custody of the machine to the petitioner, more so, in view of the fact that apart from the petitioner, no one else had approached the court, either the CJM, Karbi Anglong, or any other court for custody of the said machine. 10. In view of the same, this court directs that the machine, i.e. Tata Hitachi Proclaim EX 210 LC, machine with Rock Breaker Atlas Copco Model, MB1500 Engine No.60A6244886 (orange color) be given in custody to the petitioner during the trial of the Anjokpani P.S. Case No.03/2026. It is further stated that the Investigating Officer before giving the custody of the said machine to the petitioner would exercise all the necessary steps to the effect that he should take the photographs, take a bank guarantee as well as take a guarantee that the petitioner will produce the machine as and when required during the trial and with other conditions as is required for giving articles in custody to the owner of the said articles. 11. Further the order dated 29.04.2026, passed by the CJM, Karbi Anglong as well as Order dated, 16.07.2026, passed by the Sessions Judge, Karbi Anglong is hereby quashed. Page No.# 6/6 12. The petition is disposed of. JUDGE Comparing Assistant