Allahabad High Court

Mohammad Raza vs State Of U.P. And Another on 13 December, 2016

Bench: Amar Singh Chauhan




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 44                                                                 AFR
 

 
Case :- CRIMINAL REVISION No. - 3834 of 2016
 

 
Revisionist :- Mohammad Raza
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Javed Husain Khan,Gulrez Khan,W.H. Khan
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Amar Singh Chauhan,J.

The revisionist Mohammad Raza has preferred this criminal revision against the order dated 08.11.2016 passed by the Additional Chief Judicial Magistrate-II, Banda in Criminal Case No. 1291/IX/2016 (Shailendra Kumar vs. Mohd. Raza) under section 4/21 Mines and Mineral (Regulation & Development) Act, 1957 (Act No. 67 of 1957), Police Station Badausa, District Banda whereby the application of the revisionist for release of Truck No. U.P. 90 T 4919 was rejected.

The facts which are requisite to be stated for adjudication of this revision are that on 17.10.2016, a report has been received from the S.O. Badausa, District Banda that Truck No. U.P. 90 T 4919 was seized under section 207 of Motor Vehicles Act which was said to be used in transporting the illegal sand. The release application was moved by the truck owner/revisionist on the ground that applicant's truck was carrying sand under valid "Abhivahan Pas" by the lease permit holder Manoj Babu Mishra, which was seized by S.O. Badausa, District Banda and kept the truck at the police station. On 24.10.2016, the complaint was filed by Shailendra Singh, Mines Officer, Banda under section 4/21 of the Act No. 67 of 1957. The release application was rejected by ACJM-II Banda vide order dated 08.11.2016 on the ground that the vehicle was used in transporting the mineral sand which lead to losses of natural resources of the State and confiscation proceeding would be initiated at the instance of the concerned department.

Feeling aggrieved from the aforesaid order, the applicant-revisionist came up before this Court in revision.

Heard Sri W.H. Khan, senior counsel, assisted by Sri J.H. Khan, learned counsel for the revisionist and learned AGA for the State.

Learned counsel for the revisionist submitted that no search or seizure memo was prepared according to the provisions of the Act or Cr..P.C. or U.P. Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2002. Therefore, entire prosecution is illegal. There was no transportation of illegal sand. The truck driver possess of "Abhivahan Pas" but "Abhivahan Pas" was not considered at the time of checking. The S.O. Badausa was not authorized by the Central Government or the State Government for seizure of the truck in sand. The judgement of Writ C No. 11489 of 2015 (Rajendra Singh vs. State of U.P. and others) is not applicable. It is further submitted that the detention of the truck at police station was causing serious damage to the truck. The truck would be released after giving bonds by the revisionist but to produce the same as and when required by the Court. No proceeding for confiscation of truck has yet been initiated and detention of the truck at same places is illegal. The applicant is the owner of the truck and has valid registration permit and insurance.

Per contra, learned AGA contends that the truck was used for illegal transporting of sand which may cause losses to the natural resources such as sand, gravel and other minerals from the river. Natural resources are the public property and national assets. It is also submitted that no useful purpose will be served to keep this revision pending.

In this revision, the main point of determination is whether the seized vehicle can be released in favour of the revisionist during confiscation proceeding on his furnishing adequate sureties and who is authorized to dispose of the application for release of the vehicle in the Mines and Mineral (Regulation & Development) Act, 1957.

The Division Bench of this Court in case of Rajendra Singh vs. State of U.P and others, AIR 2015 Allahabad 93 held as under:

"The procedure contemplated in respect of minerals, tool, vehicles involved in an offence under Section 21 (4) and Section 21 (4A) is :-

(a) The mineral, tool, vehicle etc. have to be seized by the officer/authority empowered for the purpose;

(b) The mineral, tool, vehicle etc. have to be confiscated under an order of the Court, Competent to take cognizance of the offence under Sub-Section (1) of Section 21;

It is the competent court only, which can direct the disposal of the seized goods including the mineral plant and machinery etc.

In our opinion, the District Magistrate has no power whatsoever to deal with the seized minerals, tool, vehicle, plant and machinery etc. used in illegal activities as per the Act of 1957. The District Magistrate is not competent to release seized minerals, plant, machinery, vehicles etc. used offence under Section 21 of the Act 1957.

Accordingly, we hold that the release of the mineral (sand) in the facts of the case as directed by the District Magistrate, itself is without authority. The seized minerals have to be placed before the court concerned for confiscation and disposal in view of Section (4A) of the Act 1957.

We further direct that a copy of this order may be forwarded to the State Government for necessary information to all the District Magistrates to act strictly in accordance with provision applicable and not to release any seized tool, plant, machinery, vehicles, mineral etc., which are involved in an offence under Section 21 of the Act 1957. Confiscation and disposal of such plant and machinery, tool, mineral, vehicle, etc. must be effected only under the order of the competent Court as provided under Section 21( 4A) of the Act."

In Sunder Bhai Ambalal Desai vs. State of Gujarat, 2003 (46) ACC 223, the Apex Court has observed as under:

"The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance.

However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly."

It has also been held by the Apex Court in Jai Prakash Sharma v. State of U.P. reported in 1993 ACC 6 that during pendency of the confiscation proceeding, the vehicle can be released.

In the case in hand, it is not desirable that a truck be kept at the police station for a long time as that may result in the vehicle becoming junk. In these circumstances, the application for release should have been allowed by the trial court subject to conditions. There is no justification for trial court to reject the application for release. The vehicle should have been released by the Magistrate in favour of its owner subject to adequate security and necessary conditions. Therefore, the impugned order cannot be sustained and is liable to be set aside.

Revision is allowed.

The impugned order dated 08.11.2016 passed by the Additional Chief Judicial Magistrate-II, Banda in Criminal Case No. 1291/IX/2016 is hereby set aside and the learned Magistrate is directed to release the aforesaid vehicle in question in favour of the registered owner on furnishing adequate security to the satisfaction of the court concerned subject to further following conditions:

(i) The revisionist shall not transfer or sale the vehicle in question to any person without permission of the Court.

(ii) The revisionist shall produce the aforesaid vehicle as and when directed by the Court or the District Magistrate at his own expenses.

Order Date :- 13.12.2016

Puspendra

Case :- CRIMINAL REVISION No. - 3834 of 2016

Revisionist :- Mohammad Raza

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- Javed Husain Khan,Gulrez Khan,W.H. Khan

Counsel for Opposite Party :- G.A.

Hon'ble Amar Singh Chauhan,J.

Application moved on behalf of the revisionist that name of opposite party no. 2 Shailendra Singh, Mines Officer, Banda be deleted.

Prayer made is allowed.