Gopinath Transport Company Thro ... vs State Of Gujarat
2021 Latest Caselaw 15381 Guj

     R/SCR.A/3899/2021                          ORDER DATED: 01/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/SPECIAL CRIMINAL APPLICATION NO. 3899 of 2021
                             With
CRIMINAL MISC.APPLICATION (FIXING DATE OF EARLY HEARING) NO.
                          1 of 2021
      In R/SPECIAL CRIMINAL APPLICATION NO. 3899 of 2021
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     GOPINATH TRANSPORT COMPANY THRO PATEL UPENDRABHAI
                         BABUBHAI
                           Versus
                     STATE OF GUJARAT
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 2,3,4,5,6,7
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                          Date : 01/10/2021

                            ORAL ORDER

ORDER IN SCRA NO.3899 OF 2021

Draft amendment is allowed. Necessary amendment to be carried out forthwith.

1. By way of this petition, the petitioner has prayed to direct the respondent-authority to release the truck of Tata Motors Ltd. LPK 2518 TC 38 BSII 14CUM BODY bearing Registration No.GJ-01-CT-4081 in favour of the petitioner, which was seized in connection with the First Information Report bearing Part - A - 11206074201200 of 2020 (C.R. No.214 of 2020) registered with Vijapur Police Station, Mehsana under Sections 379 and 114 of the Indian Penal Code and under Sections 4(1) and 4(1)A of the Mines and Minerals (Development and Regulation) Act,

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1957 and under Sections 3, 5 and 7 of the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules and under Section 4 of the Gujarat Minor Mineral Concession Rules, 2010.

2. The petitioner herein is the registered owner of the muddamal vehicle being truck of Tata Motors Ltd. LPK 2518 TC 38 BSII 14CUM BODY bearing Registration No.GJ- 01-CT-4081, which came to be seized in connection with the impugned First Information Report. The petitioner filed an application under section 451 of Cr.P.C. before the Magisterial Court concerned; however, the same came to be rejected. Against the order of the Magisterial Court, the petitioner preferred a Revision Application being Criminal Revision Application No.6 of 2021 before the Sessions Court. The said revision application also came to be rejected. Hence, this petition.

3. Learned advocate for the petitioner submitted that nothing was found during the course of investigation that ordinary sand was being transported illegally and the vehicle in question came to be detained because ordinary sand was kept in the vehicle. It is submitted that the vehicle in question is the only source of livelihood of the petitioner and that if the vehicle is kept in an open plot and continuous seizure, it will lead to corrosion of the vehicle. It was, therefore prayed that the Courts below have seriously erred in not releasing the vehicle in question in favour of the petitioner.

4. Ms. Shruti Pathak, learned Additional Public

R/SCR.A/3899/2021 ORDER DATED: 01/10/2021

Prosecutor, drew attention of the Court to the reasons assigned by the Courts below in the impugned orders and submitted that the Courts below were completely justified in rejecting the applications since the vehicle in question was used in illegal mining. Learned APP also drew attention to the judgment and order passed by the Coordinate Bench of this Court in Special Criminal Application No.9745 of 2017 decided on 18.12.2017. It was, accordingly, prayed that the present petition deserve to be rejected.

5. Heard learned advocates on both the sides and perused the documents on record. Considering the facts of the case, a reference to the provisions of Section 451 Cr.P.C. would be apposite:

"451. Order for custody and disposal of property pending trial in certain cases:

When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fitfor the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation--For the purposes of this section, "property" includes- (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."

6. Sec. 451 Cr.P.C. mandates that when any property is

R/SCR.A/3899/2021 ORDER DATED: 01/10/2021

produced before any criminal Court during the trial, the Court may make order for the proper custody of such property pending the conclusion of the trial. The object of Section 451 Cr.P.C. is well defined by the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, 2003(1) G.L.H. 307, wherein the Hon'ble Apex Court have extracted Para- 4 of the judgment delivered in the case of Smt. Basava Kom Dyamangouda Patil vs. State of Mysore and Another [ (1977) 4 SCC 358], as under :

"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subjectmatter 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 inquire 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 otherwisin 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. The court further observed that where

R/SCR.A/3899/2021 ORDER DATED: 01/10/2021

the property is stolen, lost or destroyed and there is no prima facie defence made out that the state or its officers had taken due care and caution to protect the property, the magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.

To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest."

7. In Jayant Etc. v. The State of Madhya Pradesh rendered in Criminal Appeal Nos.824-825 of 2020 decided on 03.12.2020, the Apex Court observed as under :

"13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder visa-vis Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:

i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In charge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted;

ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder;

iii) for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and

iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned Incharge/SHO of

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the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned Incharge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.

v) in a case where the violator is permitted to compound the offences on payment of penalty as per sub-section1 of Section 23A, considering subsection 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under sub-section 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further."

8. In the present case, it is an admitted position that the vehicle in question stands registered in the name of the petitioner herein and as per the allegation in the impugned complaint, the vehicle in question was used for excavation purpose. Considering the facts and circumstances of the case and in view of the principle laid down by the Apex Court in Sunderbhai Ambalal Desai's case as also in the judgment rendered in Jayant Etc.'s case (supra), this Court is of the opinion that both the Courts below have seriously erred in not releasing the vehicles in question in favour of the petitioner. There is nothing on record to show that the authorized officer had issued the requisite "Form-J" to the petitioner calling upon the

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petitioner to furnish bank guarantee for the release of the vehicle in question.

9. In the result, the petition is allowed and the impugned orders are quashed and set aside. The respondent authority is directed to release the truck of Tata Motors Ltd. LPK 2518 TC 38 BSII 14CUM BODY bearing Registration No.GJ-01-CT-4081, in favour of the petitioner on furnishing bond equivalent to the value of the vehicle to the satisfaction of the trial Court concerned within a period of 15 days from the date of receipt of this order. The petitioner shall carry on his business strictly in accordance with the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 as also the provisions of the Minor Mineral Concession Rules, 2017. The petitioner shall not sell, transfer or alienate the vehicle in question in any manner pending the trial and shall produce the vehicle in question as and when called for. The petition stands disposed of accordingly. Rule is made absolute to the above extent. Direct service is permitted.

Order in CRMA NO.1 OF 2021 IN SCRA NO.3899 OF 2021

In view of order passed in the main matter, present application would not survive and stands disposed of accordingly.

(ILESH J. VORA,J) TAUSIF SAIYED