Gujarat High Court
Bhavsangji Balaji Jagani Proprietor Of ... vs State Of Gujarat on 20 April, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/1052/2026 ORDER DATED: 20/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MUDDAMAL) NO. 1052 of
2026
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BHAVSANGJI BALAJI JAGANI PROPRIETOR OF CHAMUNDA TRADERS
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JAY R SHAH(8428) for the Applicant(s) No. 1
MR NIRAV K PADHIYAR(5678) for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/04/2026
ORDER
1. The challenge is given to the order dated 11.03.2026 passed in Cr.MA No.1056 of 2026 by the learned 2 nd Additional Sessions Judge, Banaskantha at Palanpur, whereby the prayer releasing the Muddamal vehicle being ASHOK LEYLAND DUMPER bearing registration no. GJ-08-AW-9752, Chassis no. MB1JJDHD9PPMV2572 and Engine No. PMPZ104765, came to be rejected, ordering confiscation.
2. Learned Advocate Mr. Jay R Shah submitted that the order of the 2nd Additional Sessions Judge, Banaskantha at Palanpur is prima-facie bad in law. The learned Judge was required to deal with the application as per the provision of Section 451 and 457 of the Code of Criminal Procedure, 1973 (for short, 'Cr.PC'), which are analogous provisions to Section 497 and 503 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, the 'BNSS Act').
3. Referring to the judgment of the Hon'ble Supreme Court Page 1 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026 NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined in Pradeep S. Wodeyar vs. State of Karnataka, reported in 2021 (19) SCC 62, advocate Mr. Shah submitted that here in the present matter, the registration of the FIR was invoking Sections 221 and 281 of the Bharatiya Nyaya Sanhita, 2023 (for short, the 'BNS Act') and submitted that the filing of the charge-sheet by the police under the Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'MMDR Act') would be bad in law since no private complaint has been filed by the geologist for the invocation of the Sections of MMDR Act before the learned Judicial Magistrate First Class.
3.1 It is submitted by advocate Mr. Shah that the FIR No.11195051250354 dated 15.05.2025 before the Thara Police Station, Banaskantha has made a reference of Section 221 which refers to obstructing the public servant in discharge of public function and Section 281 for rash driving or riding on a public way and the charge-sheet ought to have been filed only in connection with these both invoked sections.
3.2 Advocate Mr. Shah stated that thus, the order of the learned 2nd Additional Sessions Judge, Banaskantha at Palanpur allowing the application Exh.6 by the geological department for confiscation of the vehicle would be bad in law in absence of private complaint by the geological department under MMDR Act.
3.3 Advocate Mr. Shah has also referred to the provisions of Section 33 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA Act) and Section 30C of the MMDR Act, 1957, to deal with the Page 2 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026 NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined initial jurisdiction of taking cognizance and committal of the cases.
3.4 While interpreting the observations in Pradeep S. Wodeyar (supra), advocate Mr. Shah submitted that the Special Court has no authority to take direct cognizance of the matter and therefore, stated that the order passed by the learned Sessions Judge allowing the confiscation of the Muddamal vehicle is contrary to the provision of law. Advocate Mr. Shah submitted that it is only the Judicial Magistrate First Class before whom the FIR had been filed would have the jurisdiction to deal with the Muddamal vehicle and has to pass the order as per Section 497 of the BNSS Act.
4. Countering the arguments, learned APP Ms. Asmita Patel stated that the FIR was filed by the officer of the geology department. It was during the course of the search when the complainant found that there was an illegal transport of the sand and when the officer was trying to restrain the vehicle, the applicant had tried to run away with the Muddamal vehicle, hence, the FIR came to be filed and during the course when the offences under the MMDR Act were found and therefore, those sections were invoked in the charge-sheet.
5. The operative part of the order of the learned Judge is as under:
ORDER
1. Present Muddamal application filed by the applicant u/s.497 of BNSS, 2023 is hereby rejected.Page 3 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026
NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined
2. The application for confiscation filed at Exh.6 by the Department is hereby allowed.
3. The Geological Department, Banaskantha is hereby permitted to confiscate the Muddamal Ashok Leyland Dumper bearing Engine No. PMPZ104765 and Chasis No. MB1JJDHD9PPMV2572 in their custody which is lying in Thara Police Station as per rules and regulation and submit the compliance report within 30 days from today.
4. A copy of this order shall be sent to the Geologist, At- Office of Geologist, Geology and Mining Department, 2nd Floor, Jilla Seva Sadan, Palanpur, Banaskantha, Phone: 02742-252296, Email: [email protected]. For necessary action at their end.
5. Copy of this order be put in the Sessions Case No.116/2025.
6. No order as to costs.
6. While distinguishing the judgment of Jayant Etc. vs. State of Madhya Pradesh, the Hon'ble Supreme Court in Pradeep S. Wodeyar (supra) had made the following conclusion:
"108.1. The Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate under Section 209CrPC. The order of the Special Judge dated 30-12-2015 taking cognizance is therefore irregular.
108.2. The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465CrPC is applicable to interlocutory orders Page 4 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026 NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465CrPC.
108.3. The decision in Gangula Ashok [Gangula Ashok v. State of A.P., (2000) 2 SCC 504 : 2000 SCC (Cri) 488] was distinguished in Rattiram [Rattiram v. State of M.P., (2012) 4 SCC 516 :
(2012) 2 SCC (Cri) 481] based on the stage of trial.
This differentiation based on the stage of trial must be read with reference to Section 465(2)CrPC. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2)CrPC is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among others.
108.4. In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated.
108.5. It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no "failure of justice" under Section 465CrPC is proved. This irregularity would thus not vitiate the proceedings in view of Section 465CrPC.
Page 5 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined 108.6. The Special Court has the power to take cognizance of offences under the MMDR Act and conduct a joint trial with other offences if permissible under Section 220CrPC. There is no express provision in the MMDR Act which indicates that Section 220CrPC does not apply to proceedings under the MMDR Act.
108.7. Section 30-B of the MMDR Act does not impliedly repeal Section 220CrPC. Both the provisions can be read harmoniously and such an interpretation furthers justice and prevents hardship since it prevents a multiplicity of proceedings.
108.8. Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order if it otherwise appears that the Special Judge has applied his mind to the material.
108.9. A combined reading of the Notifications dated 29-5-2014 and 21-1-2014 indicate that the Sub- Inspector of Lokayukta is an authorised person for the purpose of Section 22 of the MMDR Act. The FIR that was filed to overcome the bar under Section 22 has been signed by the Sub-Inspector of Lokayukta Police and the information was given by the SIT. Therefore, the respondent has complied with Section 22CrPC.
108.10. The question of whether A-1 was in charge of and responsible for the affairs of the company during the commission of the alleged offence as required under the proviso to Section 23(1) of the MMDR Act is a matter for trial. There appears to be a prima facie case against A-1, which is sufficient to arraign him as an accused at this stage."
7. In the case of Pradeep S. Wodeyar (supra), it has been noted that the Special Court does not have in absence of specific provision to the effect the power to take cognizance of Page 6 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026 NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined the offence under the MMDR Act which requries the case being committed to it by the Magistrate under Section 209 of Cr.PC. It has been noted by observing the cardinal principles that guides Section 465(2) of Cr.PC, that the irregular orders have to be challenged at the earliest. While elaborating on the principle of law that cognizance has taken on the offence and not the offender, it has been reflected in the judgment that the Special Court has the power to take cognizance of the offence under MMDR Act and conduct a joint trial with the other offences if permissible under Section 220 of Cr.PC observing that there is no expressed provision in the MMDR Act which indicates that Section 220 of Cr.PC does not comply to the proceedings under the MMDR Act.
7.1 The Fact was also taken notice with the cognizance taken by the Special Judge on the police report and not on private complaint.
8. Here, in this present matter, it is required to be noted that the FIR is under Section 221 and 281 of the BNS Act. The application moved by the geology department Exh.6 is in connection with the FIR which has been filed. The noticeable fact is that no private complaint has been lodged by the geologist before the Judicial Magistrate First Class under the MMDR Act and the matter has not been committed to the Special Court as laid down in the case of Pradeep S. Wodeyar (supra). The private complaint was required to be filed by the geology department for the cognizance to be taken under the act. The appellate Court has failed to deal with this issue. The vehicle has not been confiscated by the department after Page 7 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026 NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined following the provision under Section 23B of the MMDR Act.
8.1 Section 21(4) of the MMDR Act and Section 21(4A) are reproduced here-in-below:
"...S.21(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.
S.21(4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.] 8.2 Section 22 of the MMDR Act is also reproduced here-in- under:
"No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government."
8.3 It is also to be noted that Section 23A makes provision for compounding the offence.
9. The application Exh.6 had been moved referring to the Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Page 8 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026 NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined Transportation and Storage) Rules 2017 which is as under:
"12. Seizure of property liable to confiscation.-
(1) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or other thing (hereinafter referred to as "property") shall be liable to be seized by the Government in the manner specified in sub-rule (2) of this rule.
(2) [Every Authorised Officer seizing any property under these rules shall photograph the property and place on such property a mark in such manner as may be determined, indicating that the same has been so seized and shall:
(a) issue a notice in Form J informing the person from whom the property is seized of the property so seized, and release the property so seized upon receipt of a bank guarantee for an amount equal to-
(i) the penalty payable under rule 21, in case of transportation of, or causing to transport, mineral without lawful authority; or
(ii) the written down value of the property, in case of illegal mining or illegal storage of mineral:
Provided that, release under clause (a) of sub-rule (2) shall be without prejudice to and shall not in any manner affect the conduct of investigations and other actions contemplated under clause (b) of sub- rule (2).
Explanation: Under these rules property is seized as a security against the amount of penalty due to the Government and to ensure the presence of the alleged offender before the Government if the case is Page 9 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026 NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined at notice stage.]
(b)[conduct,
(i) an investigation and if he is satisfied that a compoundable offence has been committed in respect of the property, he may, subject to receipt of a compounding application, order payment of such amount for compounding the offence as may be deemed appropriate, which amount, if not paid within thirty days, may be recovered by invocation of the bank guarantee furnished under clause (a) of sub-rule (2); or
(ii) a preliminary investigation, and if compounding is not permissible under rule 22 or if he is satisfied that the offence committed in respect of the property is not compoundable, upon the expiry of forty-five days from the date of seizure or upon completion of the investigation, whichever is earlier, shall approach by way of making a written complaint, before the Court of Sessions.
Explanation: Any offence under these rules shall be tried by the Court of Sessions in accordance with the Procedure laid down under the Code of Criminal Procedure, 1973;] (3) [Where the court is satisfied that an offence has been committed and is punishable under these rules, the court may order for,-
(a) penalty in accordance with rule 21,
(b) confiscation of the property under sub-section (4A) of section 21 of the Act, where the property seized under sub-rule (1) above is produced before a court under sub-clause (ii) of clause (b) of sub- rule (2).]"
Page 10 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined 9.1 Under Rule 12, the authorized officer who seizes the property is required to issue notice in Form J informing the person from whom the property is seized that it would release the property so seized upon receipt of bank guarantee for an amount equal to the penalty payable under Rule 21 in case of transportation or causing to transport mineral without lawful authority or the written down value of the property in case of illegal mining or in case of storage of minerals. The application Exh.6 does not refer to any issuance of Form J informing the applicant regarding the invocation of Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules 2017, Rule 12. Further confiscation of vehicle can be ordered only after the procedure under Section 21 of MMDR Act.
10. The inherent irregularity which has led to illegality in the matter would be that the FIR is under the BNS Act and the charge-sheet which was required to be under BNS Act, has been filed under MMDR Act without a private complaint being filed for the Magistrate to take the cognizance and to commit the case to the Special Court.
11. The vehicle has been seized in connection with the FIR while the applicant was not informed by way of Form J of MMDR Act which could have given him the opportunity to exercise the option as per Rule 12. Without following the procedure, the application Exh.6 has been allowed permitting the geological department to confiscate the Muddamal vehicle, the custody which is lying in Thara Police Station.Page 11 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026
NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined
12. The order of the learned 2nd Additional Sessions Judge, Banaskantha at Palanpur prima-facie is bad in law.
13. Since the seizure is in connection with the FIR under Sections 221 and 281 of the BNS Act and having perused the judgment of Bapalsinh Dolatsinh Jadeja vs. State of Gujarat, reported in 2017 (0) GUJHC 38883, the present revision application is allowed.
14. In the case of Sundarbhai Ambalal Desai v. State of Gujarat reported in 2002 (10) SCC 283, the Hon'ble Apex Court dealt with the provision of Section 451 of Cr.P.C. and has stated in Paragraphs 5 and 7 as under:-
"5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as-
(1) for the proper custody pending conclusion of the inquiry or trial;
(2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary;
(3) if the property is subject to speedy and natural decay, to dispose of the same.
14.1 In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
Page 12 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined "1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."
15. In view of the above, the authority concerned is directed to release the Muddamal vehicle being ASHOK LEYLAND DUMPER bearing registration no. GJ-08-AW-9752, Chassis no. MB1JJDHD9PPMV2572 and Engine No. PMPZ104765 in favour of the applicant on the terms and conditions that the applicant:-
(i) shall execute a bond of Rs.5,00,000/-, (Rupees Five Lacs Only);
(ii) shall file an undertaking on oath before the concerned Trial Court that prior to alienation or transfer of the vehicle in any mode or manner, prior permission of the concerned Trial Court shall be taken;
(iii) shall also file an undertaking on oath to produce the vehicle as and when directed by Page 13 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026 NEUTRAL CITATION R/CR.RA/1052/2026 ORDER DATED: 20/04/2026 undefined the Trial Court.
16. In view of the above, the present application is allowed in the above terms. Direct Service is permitted.
(GITA GOPI,J) PARMAR KRISH/60 Page 14 of 14 Uploaded by PARMAR KRISH JAYESH(HC02348) on Tue Apr 21 2026 Downloaded on : Tue Apr 21 23:50:13 IST 2026