Jharkhand High Court
Shiv Pujan Saha vs The State Of Jharkhand .... .... ... on 11 January, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No.1211 of 2023
1. Shiv Pujan Saha
2. Fagu Mandal ..... ... Petitioners
Versus
The State of Jharkhand .... .... Opposite Party
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Petitioners : Mr. Gautam Kumar, Advocate
Ms. Savita Kumari, Advocate
For the State : Mr. Pankaj Kr. Mishra, APP
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08/11.01.2024 Learned counsel for the petitioners and learned APP for the State
are present.
2. The instant criminal revision has been directed on behalf of the
petitioners Shiv Pujan Saha and Fagu Mandal against the order dated
26.08.2023 passed by the learned Judicial Magistrate-1st Class, Rajmahal in
Radhanagar P.S. Case No.180 of 2022 whereby the petition filed by the
petitioner no.1, for release of the tractor bearing Registration No.JH-
18K/2846 and Trailer No. JH-18E/6603 as well as petitioner no.2 for release
of the tractor bearing Registration No.JH-17Z/0546 has been rejected.
3. The brief facts leading to this criminal revision are that as per
prosecution case the informant/Circle Officer, Udhwa had received the secret
information on 24.08.2022 in regard to the illegal transportation of the sand
by the tractors and in order to verify the secret information at 8 O'Clock he
alongwith other officials conducted raid at East Udhwa Diara. All the tractor
driver managed to flee away having seen the raiding party and it was found
that the four tractors were loaded with the sand and the three tractors were
vacant. All the seven tractors were seized alongwith the sand found at the
spot. All these tractors were given in custody of Station Officer, Radha
Nagar. The details of all the seven tractors pertaining to their model numbers
were given in the written information. On this written information, case
crime no. 180 of 2022 was registered under sections 175 and 379 of IPC,
sections 21(1), 21(6), 22 of the Mines & Mineral Act (Development &
Regulation Act) and also under section 04/54 of Jharkhand Minor Mineral
Concession Rule 2004.
4. During investigation the release application was moved on
behalf of the petitioner Shiv Pujan Saha and Fagu Mandal before the court of
Magistrate concerned for release of the tractor bearing Registration No.JH-
18K/2846 and Trailer No. JH-18E/6603 as well as for release of the tractor
bearing Registration No.JH-17Z/0546.
5. The learned lower court called the report from the IO of the
police station concerned and after hearing the rival submission of the learned
counsel for the petitioner and learned APP passed the impugned order
whereby the release applications of the petitioners were rejected.
6. Aggrieved from the impugned judgment the instant criminal
revision has been filed on behalf of the petitioners on the ground that the
impugned order passed by the learned court below is bad in the eye of law.
The learned court below has not taken into consideration while rejecting the
release application of the petitioner that there is no bar in releasing the said
vehicle in the rules of Jharkhand Minerals (Prevention of Illegal Mining,
Transportation and Storage) Rules, 2017 and though the confiscation
proceeding under Rule-11 of Jharkhand Minerals (Prevention of Illegal
Mining, Transportation and Storage) Rules, 2017 is given to the Deputy
Commissioner to conduct; yet in the rules itself nothing is given that the
Deputy Commissioner was exclusively empowered to release the vehicle.
Since there being no specific bar, the court concerned was empowered to
release the vehicle of the petitioner in view of the title of the vehicle having
been belonged to the petitioners.
7. The learned APP opposed the contentions made by the learned
counsel for the petitioners and contended that the impugned order passed by
the learned court below bears no infirmity as per report received from the
police station concerned the confiscation proceeding was pending before the
Deputy Commissioner and during pendency of the confiscation proceeding
the said vehicle cannot be released.
8. I have heard the learned counsel for the parties and perused the
material available on record. On behalf of the petitioner alongwith this
criminal revision petition has been filed the copy of the registration
certificate of the tractor JH-18K/2846 and Trailer JH-18E/6603 of which
registered owner is shown Shiv Pujan Saha and the photo copy of R.C. of the
another tractor bearing registration no. JH-17Z/0546 of which registered
owner is shown Fagu Mandal.
9. From the very perusal of the impugned order it is found that the
learned court below had rejected the release application of the petitioners on
the ground that the confiscation proceeding has been initiated.
10. On behalf of the State, the counter-affidavit was filed in which it
is stated at para-19 that the confiscation proceeding is still pending and letter
to this effect is also made part of the counter-affidavit.
11. Herein the Rule-11 of 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
collector by 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."
12. From the very perusal of this rule, it is found that as per rule
11(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 the
direction of such court.
13. From this provisions it is the Deputy Commissioner who is
empowered to conduct the confiscation proceeding but in this rule no where
is mentioned that so far as the release of the vehicle is concerned the same is
barred to be released by any other court. Even nothing is mentioned in this
rule that the exclusive power is given to the Deputy Commissioner in regard
to release of the vehicle the only provision is given in regard to the search,
seizure and confiscation.
14. Since there being no specific bar on the court concerned who has
taken the cognizance of the offence is empowered to release the vehicle in
view of section 451 of Cr.PC. It was incumbent upon the learned court below
after being satisfied in regard to the title of the vehicle and also after having
taken the undertaking from the petitioner in regard to production of the same
and whenever before whom it was to be produced as required should have
allowed the release application of the petitioner.
15. The Hon'ble Apex Court in "Sunderbhai Ambalal Desai v. State
of Gujarat" (2002) 10 SCC 283 held as under:
"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."
16. In view of the above, this Cr. Revision deserves to be allowed.
17. Accordingly, this Cr. Revision is allowed. The impugned order
passed by the court below is set-aside.
18. The matter is remitted back to the learned court below to dispose
of the release application of the petitioners afresh in view of the observation
made by this Court and also taking into consideration the guideline laid down
by the Hon'ble Apex Court in case of Sunderbhai Ambalal Desai v. State of
Gujarat 2002 (10) SCC 283 (supra).
(Subhash Chand, J.)
RKM
