Jharkhand High Court
Md. Zahid Alam vs The State Of Jharkhand on 11 May, 2022
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr.M.P. No. 1332 of 2020
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Md. Zahid Alam, aged about 36 years, son of Abdul Motalliv, resident of
Aullad Colony, Chouparan, PO and PS -Chouparan, District-Hazaribagh
..... Petitioner
-- Versus --
The State of Jharkhand ...... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. R.S.Mazumdar, Sr. Advocate
For the State :- Mr. P.D. Agarwal, Spl.P.P.
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6/11.05.2022 This petition has been heard through Video Conferencing in
view of the guidelines of the High Court taking into account the situation
arising due to COVID-19 pandemic. None of the parties have complained
about any technical snag of audio-video and with their consent this
matter has been heard.
This petition has been filed for quashing the order dated
29.01.2020 passed in Criminal Revision No.410 of 2019, whereby the
prayer of the petitioner for release of the vehicle in question has been
rejected and the order passed by the learned Judicial Magistrate, 1 st
Class, Bokaro dated 07.11.2019 passed in G.R.No.738 of 2019, arising
out of Chas (M) P.S.Case No.52 of 2019 was affirmed.
The First Information Report was registered
alleging therein that on 25.06.2019 the District Mining
Officer Bokaro has reported the local police alleging that on
24.06.2019 at 12.30 hours after noon in court of patrolling
vehicle no.JH-02-AP-5418 loaded with 57.240 MT Steal coal
seized at NH-32 near Chas(M) P.S. and entrusted to police
station to keep it in safe custody. In respect of loaded coal
and its paper verified by Mining Inspector, according to him
Transport Challan in Form 'D' as per Jharkhand Minerals
(Prevention of Illegal Mining, Transportation and Storage),
Rules 2017 was not with the vehicle which is violation of
Jharkhand Mineral (Prevention of Illegal Mining,
Transportation and Storage), Rules 2017 and prayed to lodge
FIR against the owner and driver of the vehicle No.JH-02-AP
5418 with loaded coal of 57.240 MT as per above regulation
and proper sections of Indian Penal Code together with to do
its confiscation.
Mr. Mazumdar, the learned Senior counsel appearing on
behalf of the petitioner submits that the petitioner is not the owner of the
coal in question which was being transported in the vehicle of this
petitioner. He submits that, however, a petition for release of the vehicle
and for release of the coal was filed by the respective owners which was
rejected and subsequently affirmed in the criminal revision. He submits
that this vehicle is commercial in nature and the trial has not been
concluded as yet. He further submits that there is provision of
confiscation of the seized article in terms of section 21(4-A) of the Mines
and Minerals (Development and Regulation) Act, 1957. He further
submits that confiscation is required to be done once the trial is
concluded and the petitioner is found to be guilty in the trial. He further
submits that in view of amendment in Rule 54(5) of the Jharkhand Minor
Mineral Concession Rules, 2004 which was incorporated in Jharkhand
Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules,
2017. By virtue Rule 54(5) of the Jharkhand Minor Mineral Concession
Rules, 2004, the petitioner is required to pay the double amount of the
minerals and the goods in question can be released.
Mr. P.D.Agarwal, the learned counsel appearing on behalf of
the respondent State submits that in light of Rule 54(5) of Jharkhand
Minor Mineral Concession Rules, 2004, the petitioner is the owner of the
minerals and he is required to pay the double amount of minerals and
the arrangement has been granted in the said Rule how to deposit. He
further submits that for release of the vehicle, the petitioner is required
to follow the procedure as an interim measure.
Since the petitioner is not claiming the coal as he has
submitted that he is not the owner and only the transporter, there is no
need to deposit the double amount if the coal in question is not being
claimed by the petitioner. For the sake of convenience, section 21(4-A) of
the Mines and Minerals (Development and Regulation) Act, 1957) is
quoted hereinbelow:
"21.(4-A) Any mineral, took, 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."
On plain reading of this provision, it is clear that the word
used "vehicle or anything seized", literally the use of word, in the section
that any vehicle or anything seized shall be liable to be confiscated by an
order of the court competent to take cognizance, and at the stage it is
found, the section connotes that a finding has to be arrived that the
vehicle was used for transportation of coal or mineral in contravention of
the provisions of the Act. Such finding can only be arrived if it is brought
on record during the enquiry or trial meaning thereby that the charges
/allegations have to be proved that the vehicle was used in contravention
of the provisions of the Act whereafter the vehicle will be forfeited by the
State Government by order of the court. It is not disputed in the instant
case that no proceeding has been initiated for confiscation neither does
the Act provides for initiation of confiscation proceeding and, moreover,
the vehicle is lying at the police station without any use in an uncared
manner. On plain reading of the above provision, it is crystal clear from
(whenever a vehicle is found to have been used ........") and it further
says that the vehicle should be forfeited to the State Government by
order of the court, meaning thereby once the trial is concluded and the
conviction is held by the trial court then only the forfeiture of the vehicle
will come in to effect. The vehicle in question is commercial as indicated
and this aspect of the matter has been decided by the Hon'ble Supreme
Court in the case of "Sunderbhai Ambalal Desai v. State of Gujarat"
reported in (2002) 10 SCC 283. Paragraph nos.5 and 17 of the said
judgment are quoted hereinbelow:
"5. Section 451 clearly empowers the court to pass
appropriate orders with regard to such property, such as:
(1) for the proper custody pending conclusion of the inquiry
or trial;
(2) to order it to be said or otherwise disposed of, after
recording such
(3) If the property is subject to speedy and natural decay, the
dispose of the same.
17. In our view, whatever be the situation, it is of no use to
keep such seized vehicles at the police stations for a long period. It
is for the Magistrate to pass appropriate orders immediately by
taking appropriate bond and guarantee as well as security for
return of the said vehicles, if required at any point of time. This can
be done pending hearing of applications for return of such
vehicles."
In view of the above facts and settled law, the detention of
the vehicle is of no use as it will not only lead to damage and loss of
utility of the vehicle but will also cause a loss of revenue to the
Government due to non-pliance of the commercial vehicle.
The trial court is directed to grant interim custody of the
vehicle bearing Registration No. JH02AP-5418 by ordering it to be
released in favour of the petitioner on his giving an undertaking on the
following terms and conditions:
(i) Petitioner shall furnish an indemnity bond to the tune of
rupees as disclosed in the Insurance paper assessing the
value of the vehicle in question with two sureties.
(ii) One of the surety must be a resident and owner of a
commercial vehicle of District-Bokaro.
(iii) That the petitioner shall not sale, mortgage or transfer
the ownership of the vehicle on hire purchase agreement in
any manner.
(iv) He shall not change or tamper with the identification of
the vehicle in any manner, and
(v) He shall produce the vehicle as and when directed by the
trial court.
The trial court is at liberty to impose any other terms and
condition as the trial court may deems it fit and proper.
With the above direction, the impugned order dated
07.11.2019 and 29.01.2020 are hereby set-aside.
Cr.M.P.No.1332 of 2020 is allowed and disposed of.
( Sanjay Kumar Dwivedi, J)
SI/
