Jharkhand High Court
Sadhan Nandi vs The State Of Jharkhand .... .... ... on 16 February, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No.1520 of 2023
Sadhan Nandi, son of Amar Nandi, resident of Ward No.16, Devipur,
Mangalbari, P.O. Mangalbari, P.S. Malda, District Malda (W.B.)
..... ... Petitioner
Versus
The State of Jharkhand .... .... Opposite Party
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioner : Mr. Gautam Kumar, Advocate
Ms. Savita Kumari, Advocate
For the State : Mr. Pankaj Kr. Mishra, APP
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04/16.02.2024 Learned counsel for the petitioner and learned APP for the State are
present.
2. The instant criminal revision has been directed on behalf of the
petitioner against the order dated 02.11.2023 passed by the learned Judicial
Magistrate-1st Class, Rajmahal in Taljhari P.S. Case No.38 of 2023, whereby
for release of the truck bearing Registration No. WB-59C/8906 has been
rejected.
3. The brief facts leading to this criminal revision are that as per
prosecution case the informant/Circle Officer, Taljhari has carried out the
surprise raid on 27.05.2023 having received information that near Mouza
Bekchury, M/s Md. Samim Stone Works operating the stone crusher machine
in plot No.27 in the area of 3 acres and 2 kathas of Mouza Bekchury. The
petitioner has also the dealer registration form-B issued by the Mining
Department bearing registration No.J062021777 valid up to 28.06.2022 and
also the certificate issued by the Pollution Department valid up to 31.03.2024
but the order of "Close down the operation of the Unit with immediate effect"
passed by the Member Secretary, JSPCPB, Ranchi vide letter No.717 dated
10.04.2023. Despite that the illegal excavation of the stone and the same were
being crushed to prepare the stone chips was carrying on. At the time of the
raid, the truck bearing registration No. WB25E 0749 was found loaded with
900 cubic ft. stone chips, its driver was Nitish Kumar Yadav. No paper was
shown by him on demand. This truck was also seized. In that work other
vehicles were also involved, details of which are also given in the schedule. At
Sr. No.4, the truck bearing registration No. WB59C 8906 is shown empty and
the same was also seized thereon. In view of the allegations made, case crime
No.38 of 2023 was registered with the Taljhari Police Station under Sections
175, 379, 411 and 188 of the Indian Penal Code, Section 4/ 54 of the JMMC
Rule, 2004, 07/09 of the Jharkhand Mineral Transportation and Storage Rule,
2017 and Sections 21(1), 21(6) of the MMDR Act, 1957.
4. The owner of the truck bearing registration No. WB59C 8906 had
moved the application for release of the said truck before the learned trial Court
with these averments that the he is the bona fide owner of the seized truck,
which is the commercial vehicle and the same is being detained in the police
station, so he has been suffering heavy loss day to day. He undertakes that he
would produce the same vehicle as per the direction of the Court and also ready
and willing to furnish the sureties to the satisfaction of the Court concerned.
5. The report issued by the In-charge Officer of District Legal Cell Branch,
Sahibganj addressed to the Station-In-charge Officer, Taljhari Police Station
dated 31.10.2023 are on record, which shows that the confiscation proceeding
of the vehicles involved in the offence including the vehicle of the petitioner
bearing registration No. WB59C 8906 is still pending.
6. The learned trial Court rejected the release application of the said vehicle
on the very ground that since the confiscation proceeding was pending and
relied upon the judgment passed by the of Hon'ble Apex Court in the case of
State of Madhya Pradesh Vs. Uday Singh in Criminal Appeal No.524 of 2019
dated 26.03.2019.
7. Aggrieved from the impugned order passed by the learned trial Court,
the instant Criminal Revision was directed on behalf of the petitioner on the
ground that the impugned order is bad in the eyes of law. The learned trial
Court has relied upon the judgment passed by the Hon'ble Apex Court, which
was not application at all in the facts and circumstances of this case in hand. It
is further stated that there is no bar in releasing the said vehicle in the rule of
Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage)
Rules, 2017 though the confiscation proceeding under Section 11 of the
Jharkhand Minerals (Prevention of Illegal Mining Transportation and Storage)
Rules, 2017 power is given to the Deputy Commissioner to conduct the
confiscation proceeding; yet nothing is there to exclude the jurisdiction of the
Court to release the vehicle.
8. The learned APP for the State has defended the impugned order on the
ground that the impugned order bears no infirmity, as per the report received
from the Legal Cell Branch, Sahibganj, the confiscation was pending, as such,
the learned trial Court has rightly rejected the release application.
9. I have heard the learned counsel for the petitioner and learned APP for
the State and perused the materials available on record.
10. Herein the Rule 11 of the Jharkhand Minerals (Prevention of Illegal
Mining, Transportation and Storage) Rules, 2017 becomes relevant to
reproduce as under:
"11. Search, Seizure and Confiscation.- (i) The following officers are authorized
to stop, check, search and verify at any place/truck/other vehicle carrying the
minerals/ore from the mine or other source or storage and seize the same as
required within the jurisdiction as specified below:
(i) Additional Chief In the entire State.
Secretary/Principal
Secretary/Secretary/
Commissioner, Mines
(ii) Director of mines In the entire State.
(iii) Additional Director of mine -do-
(iv) Deputy Director of mine Within their respective jurisdiction
(v) District Collector/Deputy Within their respective jurisdiction
Commissioner
(vi) District/Assistant Mining Officer Within their respective jurisdiction
(vii) Sub Divisional Magistrate/Any Within their respective
other officer authorized by the jurisdictions/jurisdiction authorized by
collector the collector in the District
(viii) Mining Inspector -do-
(ix) In-charge check-gate -do-
It shall be the responsibility of the mining lessee/dealers to ensure that their
carriers afford all assistance and co-operation for such inspection.
(ii) The dealer/lessee shall allow any competent authority/competent officer or
any such officer authorized by competent authority to inspect the place where
mining, storage and processing unit exists to verify the stocks of ore and minerals
and take sample or the abstract from the records maintained by him.
(iii) Every dealer shall allow competent authority competent officer or any
officer authorized by the director, Mines/Commissioner, Mines or Secretary,
Department of Industries, Mines and Geology, Jharkhand to enter and inspect
the premises, where the mineral is kept or stored. Inspection of such documents
as desired in writing and furnishing of information as directed in writing shall
be obligatory for such dealer.
(iv) Every officer making a seizure, under these rules shall prepare a list of
minerals, tools equipment, vehicles or any other article, so seized and deliver a
copy thereof signed by him to the person found in possession of such minerals,
Such officer shall keep such seized property under proper custody with proper
official seal and with detailed information.
(v) Any minerals, tool, equipment, vehicle or any thing seized shall be liable to
be confiscated by an order of the court of the Deputy Commissioner of the
concerned District and shall be disposed of in accordance with direction of such
court."
11. From the bare perusal of Rule 11(v) of the Jharkhand Minerals
(Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, it
is evident that though the court of Deputy Commissioner of the district
concerned is empowered to conduct the confiscation proceeding in regard to
the minerals, tool, equipment, vehicle or anything seized shall dispose of the
same; yet this jurisdiction of the court of Deputy Commissioner of the district
concerned is not exclusive jurisdiction. Neither in the Rule 11 of the
Jharkhand Minerals (Prevention of Illegal Mining, Transportation and
Storage) Rules, 2017 nor in any other rule of the said Rules, the jurisdiction
of the Criminal Court is barred to release the vehicle by exercising power under
Chapter 34 of the Code of Criminal Procedure, 1973. Consequently, the
Criminal Court was empowered to entertain the application for release of the
vehicle, because in the Rules, the jurisdiction of the Court is not ousted. Mere
pendency of confiscation proceeding is not bar to dispose of application for
release of vehicle. The learned Court below has placed reliance upon the
judgment of Hon'ble Apex Court in the case of State of Madhya Pradesh Vs.
Uday Singh in Criminal Appeal No.524 of 2019 dated 26.03.2019 reported in
(2020) 12 SCC 733 rejected the release application of the vehicle. It is pertinent
to mention here that the said judgment of the Hon'ble Apex Court is not
applicable in the facts of the case in hand because in the case of State of
Madhya Pradesh Vs. Uday Singh (supra) the Hon'ble Apex Court had dealt
with confiscation and seizure proceedings initiated under Section 52 of the
Forest Act, 1927. Under Section 52-C of the Forest Act, 1927, there is specific
bar of jurisdiction of Court, wherein it is provided that no Court, Tribunal or
Authority (other than the authorized officer, appellate authority and Court of
Session referred to in Section 52, 52-A and 52-B) shall have jurisdiction to
make orders with regard to possession, delivery, disposal or distribution of the
property in regard to which proceedings for confiscation are initiated under
Section 52. Therefore, the learned Court below has eared in rejecting the
release application of the appellant by placing reliance upon the judgment
passed by the Hon'ble Apex Court in the case of State of Madhya Pradesh Vs.
Uday Singh (supra).
12. Since there is no bar in this very provision, the learned Court below was
empowered to release the vehicle in view of Section 451 of the Code of
Criminal Procedure after having verified the title of the said vehicle and it was
also incumbent upon the learned trial Court to impose the condition in regard
not to transfer the said vehicle to anyone during pendency of the case and also
to take undertaking from the registered owner of the vehicle to produce the
same when and where the said vehicle was required during trial inter alia along
with other just and proper condition.
13. The Hon'ble Apex Court in "Sunderbhai Ambalal Desai v. State of
Gujarat" (2002) 10 SCC 283 has laid down following guidelines in regard to
release of vehicle:
"Para 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 sold or otherwise disposed of,
after recording such evidence as it thinks necessary;
(3) if the property is subject to speedy and natural decay, to
dispose of the same.
Para 7. In our view, the powers under Section 451 CrPC
should be exercised expeditiously and judiciously. It would
serve various purposes, namely:
1. owner of the article would not suffer because of its
remaining unused or by its misappropriation;
2. court or the police would not be required to keep the article
in safe custody;
3. if the proper panchnama before handing over possession
of the article is prepared, that can be used in evidence instead
of its production before the court during the trial. If necessary,
evidence could also be recorded describing the nature of the
property in detail; and
4. this jurisdiction of the court to record evidence should be
exercised promptly so that there may not be further chance of
tampering with the articles.
Para 13. For this purpose, the court may follow the
procedure of recording such evidence, as it thinks necessary,
as provided under Section 451 CrPC. The bond and security
should be taken so as to prevent the evidence being lost,
altered or destroyed. The court should see that photographs
of such articles are attested or countersigned by the
complainant, accused as well as by the person to whom the
custody is handed over. Still however, it would be the function
of the court under Section 451 CrPC to impose any other
appropriate condition.
Para 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."
14. In view of the above discussions, the impugned order passed by the
learned trial Court needs interference. The case law of Hon'ble Apex Court,
which was relied upon by the learned Court below is not applicable in the facts
of the case in hand.
15. Accordingly, this Criminal Revision is allowed and the impugned order
passed by the learned trial court is, hereby, set-aside. The matter is remitted
back to the learned court below to dispose of the release application of the
petitioner afresh in view of the observations made by this Court and also taking
into consideration the guidelines as laid down by the Hon'ble Apex Court in
the case of Sunderbhai Ambalal Desai (supra).
(Subhash Chand, J.)
A.F.R.
Madhav/-
