Bombay High Court
Mahadeo Ankush Jamale And Others vs The State Of Maharashtra And ... on 15 June, 2021
Bench: R. G. Avachat
1 Cri-WP-487-2021.doc
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 487 OF 2021
Mahadeo Ankush Jamale and others ... Petitioners
Versus
The State of Maharashtra and another ... Respondents
....
Mr. S. J. Salunke, Advocate for the petitioners
Mr. S. N. Morampalle, APP for the respondents - State
....
CORAM : R. G. AVACHAT, J.
DATED : 15th JUNE, 2021
PER COURT :-
. The present writ petition is filed for quashing of
condition Nos. 6, 7 and 8 imposed in the order dated 16.03.2021,
passed by the learned Judicial Magistrate, First Class (J.M.F.C.),
Wadwani, District Beed.
2. The vehicles belonging to the petitioners have been
seized by the police in connection with Crime No.0025/2021,
registered with Wadwani Police Station, for the offences punishable
under Section 379 read with Section 34 of the Indian Penal Code,
Section 21(1), 25 of Mines and Minerals (Development and
Regulation) Act, 1957 and Section 48(7) of the Maharashtra Land
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Revenue Code (M.L.R.C.), 1966. The petitioners moved Criminal
Miscellaneous Application No.28 of 2021 for release of those
vehicles. The learned Magistrate allowed the said application, inter-
alia on the following three conditions.
"6] Applicant nos. 1 to 4 shall deposit amount of
Rs.1,00,000/- (Rs. One Lakh only) each with the office of
Executive Magistrate, Wadwani.
7] Deposit of amount of Rs.1,00,000/- by the each
applicant would be without any prejudice to the rights of
revenue authority to proceed under Section 48 of
M.L.R.C.
8] Only on the submission of receipt of payment of
penalty amount of Rs.1,00,000/- by each applicant with
the office of Executive Magistrate, Wadwani, investigating
officer shall release the disputed vehicles in the favour of
concerned applicants."
3. The aforesaid conditions have been imposed by the
learned Magistrate in view of the fact that proceedings under Section
48 of the M.L.R.C. have been initiated against the petitioners herein.
4. The learned Advocate for the petitioners would submit
that imposing of aforesaid conditions amount to usurping power of
the revenue authorities under Section 48 of the M.L.R.C.
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5. The learned APP would, on the other hand, submit that
the Magistrate has been justified in imposing the aforesaid
conditions, since the vehicles were involved in unauthorized
excavation of sand.
6. The learned Magistrate, in paragraph Nos. 10 and 11 of
the impugned order, has observed thus:-
"10. Even though it is the submission of the Executive
Magistrate, Wadwani that, proceeding under Section 48
of M.L.R.C. was came to be initiated against the owners of
disputed vehicles and notices also served upon them. But,
applicants nowhere submitted that, they received any
such notices from the Executive Magistrate, Wadwani. On
the other hand, no final penalty amount was decided by
the Executive Magistrate and it is needless to say here
that, final penalty amount shall be decided after the full
fledge of the enquiry and after considering the say of the
applicants. Hence, before deciding such final penalty
amount it will be not in the interest of the justice to ask
the applicants to deposit the penalty amount of
Rs.7,51,000/- before they taking the possession of the
disputed vehicles. On this point, I would like to rely upon
judgment of Hon'ble Bombay High Court Bench at
Aurangabad in Dnyaneshwar Devidas Kharat Vs. State of
Maharashtra, Criminal Writ Petition No. 1259/2020 dated
24.11.2020. In the said Writ Petition Hon'ble Bombay
High Court Bench at Aurangabad held that, when the
proceeding under Section 48 of M.L.R.C. is pending and
concerned Executive Magistrate has not quantified the
amount of penalty in such situation it would be very
much premature to direct the applicant that, he should
deposit the amount of penalty and only upon the show of
the receipt owner of the disputed vehicles will be entitled
to get back the disputed vehicles.
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11. In the present case in my hand also as I have
already mentioned that, there is no any submission on the
part of the applicants that they received any such notice
from the Executive Magistrate, Wadwani and Executive
Magistrate, Wadwani also not decided final penalty
amount. So, it will be premature to direct the applicants
to pay the penalty amount of Rs.7,51,000/-. But,
considering the nature of the offence, it will be
appropriate to direct the applicants to deposit
Rs.1,00,000/- by each applicant with the revenue
authority. But, it is needless to say here that, if in future
Executive Magistrate awarded any penalty excessing to
the amount of Rs.1,00,000/- then applicants shall pay the
remaining penalty amount with the office of Executive
Magistrate, Wadwani. Hence, applicants have better right
to possess the disputed vehicles during the pending of the
trial. So, I answer point no.1 accordingly and to answer
the point no.2, ....."
7. The aforesaid observations, undoubtedly indicate that
the learned Magistrate has directed the petitioners to deposit
Rs.1,00,000/- (Rupees One Lakh) each, so as to ensure payment of
any penalty that may be imposed by the revenue authorities on
conclusion of the proceedings under Section 48 of the M.L.R.C. Since
independent proceedings have already been initiated against the
petitioners herein, the learned Magistrate has no reason to impose
the aforesaid conditions.
8. Needless to mention that the revenue authorities are
seized with the matter under Section 48 of the M.L.R.C. and would
take it to the logical conclusion. It is, therefore, desirable to set aside
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the aforesaid conditions imposed by the learned Magistrate in his
order dated 16.03.2021.
9. In view of the above, the writ petition is allowed in
terms of prayer clause (C).
[ R. G. AVACHAT, J. ]
SMS
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