Jharkhand High Court
Navin Kumar Choudhary vs The State Of Jharkhand on 3 March, 2021
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No.862 of 2020
Navin Kumar Choudhary ...... Petitioner
Versus
The State of Jharkhand ..... Opp. Party
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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Petitioner : Mr. O. N. Tiwary, Advocate
For the State : Mr. P. K. Chatterjee, A.P.P
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rd
04/Dated: 03 March, 2021
1. This revision is directed against the order dated
21.10.2020 passed by the court of learned Chief Judicial
Magistrate, Deoghar, rejecting the application filed by the
petitioner for release of tractor bearing registration No.
JH15M-6179 and trailor bearing registration No.JH15M-
0162 in Criminal Misc. Application No.1633 of 2020, in
connection with Jasidih P.S. Case No.269 of 2020 under
Section 54 (4) of Jharkhand Mines Mineral Concession
Rules, 2004 and Section 21 of Mines and Minerals
(Development and Regulation) Act 1957 and Sections 413
and 414 of the Indian Penal Code.
2. Heard the learned counsel for the petitioner and
learned A.P.P.
3. On perusal of the impugned order, it appears that on
the application filed by the Investigating Officer,
confiscation proceeding being Criminal Misc. Case No.10 of
2020, was initiated under Section 21 MMDR Act by the
court of Chief Judicial Magistrate, Deoghar with respect to
the aforesaid seized tractor and trailor. The petition for
release of the seized vehicles was rejected by the court
below by the impugned order. The operative part of the
order reads as under ;
"so far notification of Government of Jharkhand,
which empowers the Deputy Commissioner to make
confiscation under the Rules is concerned, the same
are rules framed by the State Government. Whereas,
the Act empowers the court, which have jurisdiction to
try the offence to make confiscation under the Act. So,
it appears that the rules notified by the State
Government are in direct conflict with the provisions
of the present Act. In my opinion jurisdiction of this
court provided by the act can not be taken away by any
Rule framed under the Act. Furthermore, whether this
court has jurisdiction or not is an issue to be decided
in the confiscation proceeding and not at the time of
hearing of this release petition. Furthermore, even if it
is accepted that now Deputy Commissioner is
empowered to make confiscation under the Rules, then
also the seized tractor and trailor are liable to be
confiscated. Merely because confiscation proceeding
has been initiated at a wrong forum, does not mean
that the seized tractor and trailor can not be
confiscated."
On going through the order, it is abundantly clear that
the learned Chief Judicial Magistrate has taken note of the
fact that the Government of Jharkhand had issued the
Notification dated 27.01.2018 of the Rules, framed by the
State Government in exercise of the powers conferred under
Section 23 C (1) and Section 23 C (2) of the MMDR Act,
1957.
4. For appreciating the legality and propriety of the
order, it will be useful to refer to the provisions of Section
21 of MMDR Act, which reads as under:
"Section 21. Penalties- (1) Whoever contravene the
provisions of Sub-Section (1) or Sub-Section (1-A) of
Section 4 shall be punishable with imprisonment for
a term which may extend to five years and with fine
which may extend to five lakhs rupees per hectare of
the area.
(2) ...............
(3) ..............
(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 of authority especially empowered in this
behalf.
(4-A) 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.
(5) .............
(6) ............."
The procedure for taking cognizance of the offence
under Section 21(1) of the Act, has been prescribed under
Section 22, as under;
"Section 22. Cognizance of offence - No court shall
taken cognizance of any offence punishable under
this Act or any rules made there under except upon
complaint made by a person authorized in this behalf
by the Central Government or the State
Government".
5. On plain reading of the aforesaid provisions it is
manifest that Section 21 of the Act provides for punishment
for the offence committed in contravention of Section 4 of
the MMDR Act. Section 21 (4A) provides that the court
competent to take cognizance of the offence under Section
21(1), shall order for confiscation of the seized vehicle used
for transportation of any mineral, otherwise than in
accordance with provisions of the Act and the rules made
thereunder. As noticed Section 22 stipulates that no court
shall take cognizance of any offence under the Act or rules
thereunder, except upon complaint in writing by a person
authorized by the Central or the State Government.
6. It would be evident from fasciculus contained in
provisions of Sections 21(4A) and 22 of the MMDR Act, that
the confiscation order shall be passed by a court competent
to take cognizance of the offence under Sub-section (1) of
Section 21 of the Act. In this context, it is necessary to refer
to the judgment, in State (NCT of Delhi) Vs. Sanjay
(2014) a SCC 772, wherein the Apex Court, at para-70,
has observed as under:
"70 there cannot be any dispute with regard to
restriction imposed under the MMDR act and
remedy provided therein. In any case, when there is
a mining activity by any person in contravention of
the provisions of Section 4 and other Sections of the
act, the officer empowered and authorised under the
act shall exercise all the powers including making a
complaint before the Jurisdictional Magistrate. It is
also not a dispute that the Magistrate shall, in such
cases, take cognizance on the basis of the complaint
filed before it by a duly authorized officer. In case of
breach and violation of Section 4 and other
provisions of the act, the police officer cannot insist
the Magistrate for taking cognizance under the act
on the basis of the report submitted by the police
alleging contravention of the said Act. In other
words, the prohibition contained in Section 22 of
the Act against prosecution of a person except on a
complaint made by the officer in attracted only
when such person is sought to the prosecuted for
contravention of Section 4 of the Act and not for any
act or omission which constitute an offence under
the penal code."
In view of the observations and judgment in Sanjay
(Supra) it is explicit that cognizance of the offence under
Section 21 is to be taken by the court on the basis of a
complaint in writing made by the authorized officer of the
Central Government or the State Government meaning
thereby, that the court cannot take cognizance of an offence
under Section 21 of the Act on the basis of the report
submitted by the police under Section 173 (2) of Cr.P.C.
7. It is evident that the State Government, in exercise of
the powers vested under Section 23-C, has published the
notification containing the Rules for preventing illegal
mining, transportation and storage of minerals and for
purposes connected therewith. In the Rules the list of the
authorized officers have been incorporated, who can stop
and verify at any place truck/any vehicle carrying the
mineral/ ore from the mine or other source for storage, and
seize the same as required within their respective
jurisdiction. Rule 11 (v) empowers the Court of Deputy
Commissioner, to order for confiscation of such mineral,
tool, equipment, vehicle or anything seized. As per the Rules
the court of Judicial Magistrate, First Class, is conferred the
power to take cognizance of the offence punishable under
the Rules. At this stage it is necessary to reiterate that it is
well settled principle of law that the procedure as laid down
under the Special Act, has an overriding effect over the
rules framed by the State Government. The executive orders
or notification cannot dilute the import of the provisions of
the Act.
8. In view of the provisions of the MMDR Act and the
rules notified by the State Government and the order
impugned herein it would be evident that the court below,
while rejecting the application has held that even if the
confiscation proceeding has been initiated in a wrong
forum, it does not mean that the seized tractor and trailor
cannot be confiscated.
Assignment of such reasons by the court below is an
exposition of the lack of proper understanding and
interpretation of statutory provisions of Section 21(4A) and
Section 22 of the MMDR Act, 1957. The court below has not
considered and appreciated that under Section 21 of the
MMDR Act the court competent to take cognizance of the
offence under Section 21 of the Act can order for
confiscation. The court below has committed a manifest
error in law and passed the order in a cavalier manner
without appreciating the mandate of Section 22 of the Act
which prohibits the court from taking cognizance of the
offence under Section 21 of the Act, except on a complaint
in a writing by an authorized person, as held in Sanjay
(Supra) by the Apex Court.
9. However, the court is not denuded of the power to
take cognizance of the offences under the Penal Code and
the offences enumerated under the Rules notified by the
State Government. Under the notified Rules of the State
Government, the competent court to order for confiscation
of the seized vehicle is the court of Deputy Commissioner
and not the court of Chief Judicial Magistrate. Since the
court was not empowered to take cognizance of the offence
under Section 21 in view of the bar as contained in Section
22 of the Act, therefore, the initiation of confiscation
proceeding, by the court of the Chief Judicial Magistrate,
was without jurisdiction and non est in the eyes of law. The
court below has failed to apply its judicial mind to the
provisions of the statute and its interpretation. The order
has been passed in contravention of the statutory
provisions.
10. In fact, Section 22 of MMDR Act will override the
provisions of Section 190 Cr.P.C for the purposes of taking
cognizance of the offence under Section 21 of the Act,
accordingly to prevent miscarriage of justice, the order
taking cognizance of the offence under Section 21 of MMDR
Act is not sustainable in law or on facts.
11. Thus for the foregoing reasons and the discussions
made hereinabove, the petitioner is at liberty to file an
appropriate application alongwith relevant documents in the
court below, which shall call for a verification report
regarding the genuinity of the documents. If the report is
submitted in favour of the petitioner then the court below
shall release the vehicle bearing Registration Nos.JH15M-
6179 and JH15M-0162 to the custody of the petitioner on his
furnishing indemnity bond of Rs.2,00,000/- (Two lakhs) with
two sureties of like amount each. The petitioner shall give
an undertaking and guarantee that :-
(i) he shall not sale, mortgage or transfer the
ownership of the vehicles on hire purchase
agreement or mortgage or in any manner;
(ii) the custody of the vehicles shall be subject
to the orders to be passed by the court on
conclusion of trial;
(iii) he shall not alienate or tamper with the
identification of the vehicles in any manner
(iv) he shall produce the vehicles before the
competent authority as and when directed by the
competent court;
12. The court below shall direct the police to take the
photographs of the vehicles and prepare a detailed
panchnama; to be submitted before the court below.
13. With the said direction the impugned order dated
21.10.2020 passed by the court of learned Chief Judicial
Magistrate, Deoghar, in Criminal Misc. Application No.1633
of 2020, is, hereby, set aside.
Accordingly, the application stands allowed.
(AMITAV K. GUPTA, J.)
Chandan/-
