Arvind Kumar vs State Of U.P.
2014 Latest Caselaw 1968 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved
 
A.F.R.
 

 
Case :- CRIMINAL REVISION No. - 263 of 2014
 

 
Revisionist :- Arvind Kumar
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Pradeep Kumar Singh
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The present criminal revision has been preferred against the order dated 23.1.2014 passed by Chief Judicial Magistrate, Chitrakoot in Miscellaneous Case No. 31A/xii/2014 under Section 4/21 Mines and Mineral (Development and Regulation Act, P.S. Mau, District Chitrakoot whereby the learned Magistrate has rejected the application of the revisionist for release of his tractor.

I have heard learned counsel for the revisionist and learned A.G.A. for the State and have carefully perused the records.

The learned counsel for the revisionist has submitted that the revisionist is registered owner of the tractor in question. The vehicle in question was duly insured by Oriental Insurance Company. His tractor was seized by the Mining Officer, Chitrakoot on 6.1.2014 on the allegation that it was found carrying illegal sand without proper transportation pass (MM 11). The learned counsel for the revisionist has argued that the sand was not illegal but it was purchased by the revisionist from a contractor holding valid license to store the sand. The contractor has issued Form (MM 11) to the revisionist but his tractor, was seized in a malafide manner by the Mining Officer, Chitrakoot. The revisionist moved an application before the Chief Judicial Magistrate, Chitrakoot for release of his tractor but the learned Magistrate dismissed his application on the ground that without filing of a complaint by the Mining Officer, he has no jurisdiction to pass an order of the release of vehicle especially keeping in view the fact that the applicant has not even deposited any compounding amount.

The learned counsel for the revisionist has questioned the validity of the aforesaid order dated 23.1.2014 by arguing that the learned Chief Judicial Magistrate has passed the order in a cursory manner and has illegally rejected the application moved by the revisionist for release of his tractor merely on the ground that as no complaint has been filed in the court regarding the offence, therefore he has no jurisdiction to take cognizance in the matter. Learned counsel for the revisionist has contended that the Magistrate was fully competent and empowered to release the vehicle even if the complaint was not filed, in view of Section 457 Cr.P.C. In this regard learned counsel for the revisionist has relied upon a judgment of this Court passed by the Hon'ble Single Judge in case of Smt. Sudha Kesarwani Vs. State of U.P. and others reported in 2011(1) ADJ 498. He has also placed reliance on the law laiddown by the Apex Court in landmark case of Sunderbhai Ambalal Desai Vs. State of Gujrat; 2003 (46) ACC 223 (Supreme Court). On the aforesaid ground it has been prayed that the impugned order be set aside and the learned Chief Judicial Magistrate be directed to release the tractor alongwith trolly in favour of the revisionist.

The State has filed counter affidavit opposing the revision mainly on the ground that the vehicle in question was seized under Section 207 of Motor Vehicle Act. The sand was found loaded on the tractor but the driver had failed to show any valid paper or permit to carry such sand, so the vehicle was seized by the Mining Officer, Chitrakoot. When the revisionist moved an application for release of the tractor before the learned Chief Judicial Magistrate, the learned C.J.M. called for a report from the District Magistrate, Chitrakoot. After receiving such report, it was found that no complaint has been filed in this matter. Moreover the compounding fee has also not been deposited by the applicant, so learned C.J.M. rejected the release application on the ground of lack of jurisdiction. The learned A.G.A. has contended that the release application has rightly been rejected by the impugned order. There is no illegality or irregularity in the order. The revision being devoid of merit, is liable to be dismissed.

After hearing learned counsel for both sides and keeping in view the relevant legal provisions I am of the considered view that the revision is devoid of merit and is liable to be dismissed. The reasons are as follows :

1. Admittedly the tractor in question was seized by the Mining Officer, Chitrakoot because it was found loaded with sand (Morang) and its driver was unable to show any permit for carrying such sand. Section 207 of Motor Vehicle Act provides that "any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or section 4 or section 39 or without the permit required by sub-section (1) of section 66 ?........................, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle.

Sub-section 2 of Section 207 provides that where a motor vehicle is seized and detained under sub-section 2, "the owner or person incharge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the vehicle and such authority or officer may, after verification of such documents, by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose."

Now, in view of the aforesaid legal provisions the question which arises for consideration is whether the vehicle seized by Mining Officer, Chitrakoot under Section 207 of Motor Vehicle Act could have been released by C.J.M. even when no criminal case/complaint case was pending before him.

A Division Bench of this Court in the case of Phool Chandra Vs. Assistant Regional Transport Officer, Banda and others has held that where a vehicle was seized by the Transport Authority under Section 207 of the Act, the registered owner or the person incharge of the vehicle, could move application for release of the vehicle either under Section 207 (2) of the Act before the Transport Authority or the Officer authorized by the State Government in this behalf or under Section 457 of the Code but in the case of Mazhar Ali Khan Vs. Chief Judicial Magistrate and Others; 1995(2)AWC 849 (DB) decided by Division Bench of this Court, it had been specifically held that where a vehicle is sized by Transport Authority under Section 207 of the Act, only transport Authority or any Officer authorized by the State Government in this behalf has power to release the vehicle. The relevant observation of the court finds place in para 4 of the judgment which is being reproduced below:

"Sub-section (2) of Section 207 provides for release of the Vehicle. Although under sub-section (1), any police officer or any other person authorized in this behalf can seize and detain the vehicle, but under sub-section (2), only transport authority or the officer authorized in this behalf by the State Government has the power to release the vehicle irrespective of the fact that the vehicle was seized and detained by some one else but for this purpose the owner or the person incharge of the motor vehicle has to apply before them. For the reasons given above, the Regional Transport Officer was not justified to refuse to entertain the application for release on the ground that it was seized by police officer."

In the case of Jagat Pal Singh VS. State of U.P. and Others [2001 (1) AWC 551] the same view as above had been expressed by one more Division Bench of this Court. The relevant observation of the court finds place in para 4 of the judgment which is being extracted below:

"From a perusal of Section 207 of the Act is appears that the remedy available to the petitioner is to apply to the transport authority or any officer authorized in this behalf by the State Government together with relevant documents for the release of the vehicle in terms of sub-section (2) of Section 207 of the Act. We are of the view that since statue provides power to release the vehicle on the concerned authority under sub-section (2) of section 207 of the Act and the application of the writ petitioner, the writ petitioner should act according to the statute and take appropriate steps in terms of section 207 (2) of the Act and make appropriate application before the concerned authority. We are of the further view that it is incumbent on the part of the parties to follow the procedure laid by the statute and have no jurisdiction or authority to direct release of the vehicle through Chief Judicial Magistrate."

In the case of Deoraj Singh Vs. State of U.P. [2010 (69) ACC 259], this court relying on earlier case laws cited therein has laid down the same principle of law as laid down in the above cited case. The relevant observation of the Hon'ble Court finds place in para 10 of the judgment which is being extracted below:

"From a perusal of the Section 207 (2) of the Motor Vehicles Act, 1988 the remedy available to the applicant is to apply to the transport authority or to officer authorized in this behalf by the State Government together with relevant documents for the release of the vehicle. This issue has been considered by the Division Bench of this Court on case of Jagat Pal Singh V State of U.P. And others in Criminal Misc. Writ Petition No. 5528 of 2000 (M/B) as reported in 2001 (1) AWC 551."

The judgment in the case of Smt. Sudha Kesarwani relied upon by the revisionist is of no help to him as the judgment in this case has been passed by a learned Single Judge whereas various division benches in judgments cited above, have clearly expressed the view that the Chief Judicial Magistrate has no jurisdiction to release the vehicle seized under Section 207 of the Motor Vehicle Act.

In wake of the crystal clear statutory legal position discussed by several division benches of this Court cited above, I do not find any good ground to take a different view. Accordingly, I am of the considered view that the application moved by the petitioner for release of the vehicle seized by Mining Officer was not maintainable before the learned Chief Judicial Magistrate and learned Chief Judicial Magistrate has rightly rejected it by the impugned order. There appears no illegality or irregularity in the order impugned requiring interference by this Court. The revision being devoid of merit is liable to be dismissed and is dismissed accordingly. However, it will be open to the revisionist to move application for release of his vehicle before the appropriate authority under Section 207 (2) of the Act and the said authority will pass appropriate orders in accordance with law and keeping in view the law laid down by Hon'ble Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujrat; 2003 (46) ACC 223 (SC).

Order Date :- 23.5.2014

S.B.