Piyush Maheshwari vs The State Of Madhya Pradesh
2022 Latest Caselaw 2983 MP

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          The High Court Of Madhya Pradesh
                          Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

MCRC 7021 of 2022

Piyush Maheshwari vs.

State of MP

============================== Shri Ankur Maheshwari, counsel for the petitioner. Shri Nitin Goyal, Panel Lawyer for the respondent/ State.

             ==============================
Reserved on                                  24/02/2022
Whether approved for reporting              ......../........
            ==============================
                                 ORDE R
                            (Passed 03/03/2022)

Per Rajeev Kumar Shrivastava, J

Petitioner has preferred this petition under Section 482 of CrPC

challenging the order dated 14/01/2022 passed by Second Additional

Sessions Judge, Kerera, District Shivpuri in CRR No.89 of 2021,

affirming the order 12/10/2021 passed by JMFC, Karera in RCT No.

306 of 2020, whereby the application filed by petitioner u/S. 457 of

CrPC to get his JCB Machine bearing Engine No.HOO193157,

Chassis No.RAJ3DHSSJO2746582, registration No.MP33D1369 on

Supurdignama has been rejected.

(2) As per the prosecution case, in the intervening night of 23-

24/08/2020, an information was received by the police that some

unknown persons are illegally excavating the sand with the help of

aforesaid JCB machine along with one dumper. On getting

information, the police party reached the spot and found that the driver

of said JCB machine was illegally excavating the sand from the area

and filling the same in the dumper. Thereafter, the police seized the

said JCB machine as well as dumper and arrested the driver of said

JCB Machine and dumper on the spot and accordingly, an FIR was

lodged on 24/08/2020 vide Crime No.120 of 2020 at Police Station

Sehore, Shivipuri for offence u/Ss. 379 and 414 of IPC. Matter was

investigated and during investigation, the owner of said JCB machine

was arrested and later on, he was enlarged on bail by this Court vide

order dated 19/07/2021 passed in MCRC No. 29326 of 2021. After

completion of investigation, charge sheet was filed before the Court

concerned. In the meanwhile, the Collector initiated confiscation

proceedings vide order dated 15/03/2021 in exercise of powers under

Rule 53(2)(3) of MP Minor Mineral Rules, 1996. Being aggrieved, the

petitioner challenged the order of the Collector before the appellate

authority (Directorate of Geology & Mining, Bhopal) but the appellate

authority, vide impugned order dated 04/08/2021, allowed the said

appeal and remanded the matter back to the Collector to decide the

matter afresh. Thereafter, the Collector, upon hearing the matter, on

04/10/2021 ordered to release JCB Machine. The Mining Officer also

vide letter dated 05/10/2021 directed the police station concerned for

release the seized JCB machine by imposing a penalty amount of

Rs.1,03,125/- but the police has refused to release the JCB machine.

Afterwards, the petitioner filed an application under Section 457 of

CrPC before the Magistrate for release of seized JCB Machine to the

the petitiner on Supurdignnama but the learned Magistrate vide order

dated 12/10/2021 dismissed the said application. Being aggrieved, the

petitioner filed a revision before the Additional Sessions Judge and the

same was dismissed vide impugned order dated 14/01/2022. Hence,

this petition.

(3) It is submitted by learned counsel for the petitioner that the

seized JCB machine is the only source of his livelihood and if the same

is permitted to be kept for indefinite period in the open place in the

concerning police station, then there is every likelihood of being

damaged. Petitioner is ready and willing to abide by any condition

which may be imposed by this Court. It is submitted that the impugned

order passed by the Courts below are contrary to law as per the MP

Minor Mineral Rules and the same are liable to be quashed. Petitioner

has already deposited the penalty amount. The conclusion of trial will

take some time. Since the Collector as well as Mining Officer has

directed for release of JCB machine on Supurdignama to the petitioner

and offence under Sections 379 and 414 of IPC remains to trial after

compounding of other offence, therefore, in the light of judgments

passed by the Full Bench of this Court in the case of Raj Kumar Sahu

vs. State of MP reported in 2019 (2) MPLJ 438, and the Division

Bench decision of this Court in leading case of Rajendra Singh vs.

State of MP passed on 03/08/2021 in WP 8615 of 2020 as well as the

order dated 31/08/2021 passed by this Court in MCRC No.43109 of

2021 (Manoj Kumar vs. State of Madhya Pradesh), the interim

custody of seized JCB machine be given to the petitioner on

Supurdignma. Therefore, it is prayed that after considering all the facts

and imposing stringent conditions, the seized JCB machine may be

released to the petitioner on Supurdignama during pendency of trial.

Since the penalty amount has already been deposited, now there is no

criminal liability against the petitioner, therefore, the seized JCB

Machine is not liable to be confiscated. Hence, the impugned order

passed by learned Court below deserves to be quashed, by allowing

the present petition.

(4) Per contra, the learned State Counsel has vehemently opposed

petition and submitted that if the entire allegations are taken on their

face value, then it is clear that apparently, the petitioner is also guilty

of the alleged offence as he is involved in illegal excavation of sand

because he is the registered owner of the said JCB Machine, by which

the sand was illegally excavated from the area concerned. Therefore,

the Court below have rightly rejected the application for grant of

re;lease of JCB machine in question to the petitioner on Supurdignama

and prayed for dismissal of this petition. It is further submitted that

illegal excavation of sand is disturbing the ecological balance of the

area. It is further causing serious threat/damage to the bed of the rivers,

thereby seriously jeopardizing the habitats of marine life. The Apex

Court in the case of Jayant etc. Vs. State of MP passed on 03/12/2020

in CRA 824-825 of 2020 has considered the adverse impact of illegal

excavation of sand on the ecological balance of the area.

(5) In the matter of Sunderbhai Ambalal Desai vs. State of

Gujarat reported in (2002) 10 SCC 283, the Hon'ble Apex Court has

laid down the following provisions as to how to release the vehicle and

it is profitable to reproduce relevant paragraphs 17 and 18 of said

judgment herein:-

"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."

18. It is undisputed that the criminal trial is still pending in relation to vehicle in question and the said vehicle is lying idle since long in the custody of police, due to which its condition is deteriorating day by day.'' Section 457 of CrPC reads as under:-

(6) Under Section 457 of CrPC, there is a procedure by police upon

seizure of property, which runs as under:-

''(1)Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the

possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.''

(7) On perusal of the record, it is apparent that petitioner is the

registered owner of the seized JCB Machine and the copy of receipt

filed along with this petition reflects that the petitioner has already

deposited the penalty amount imposed upon him. In the light of above

judgments passed by Hon'ble Supreme Court as well as the judgments

passed by this Court and after taking into consideration submissions

made by rival parties, it is directed that if the petitioner submits a Bank

Guarantee of Rs.20 lac (Rupees twenty lac only) before the

concerned Court/Magistrate and furnishes an interim custody bond in

the sum of Rs.20 lac- (Rupees twenty lac only) to the satisfaction of

the trial Court/Magistrate concerned, then the possession of JCB

Machine in question be given to the petitioner on Supurdignama

during pendency of trial subject to the following conditions:-

(i) On verification of requisite documents pertaining to seized

JCB Machine in question, the same shall be released and be

handed over to the custody of petitioner on Supurdignama

subject to confiscation proceedings.

(ii) Petitioner will not make any change in the appearance of

JCB Machine in question;

(ii) Petitioner shall not create third party rights over the JCB

Machine in question;

(iv) Petitioner shall produce the JCB Machine before the trial

Court/ Magistrate, as and when demanded, on his own cost;

(v) It is made clear that after release of JCB Machine, if same

nature offence or any offence is committed by using this

machine, the aforesaid Bank Guarantee shall be forfeited

automatically without reference to the Court.

(vi) This order shall remain in force till final disposal of the

case pending before the trial Court/Magistrate and at the time of

final disposal of the case, the trial Court/Magistrate will be at

liberty to pass an appropriate order with regard to JCB Machine

in question in accordance with law without getting influenced

by this order, subject to confiscation proceedings, as per law.

(8) In the light of above terms, petition under Section 482 of CrPC

is accordingly allowed and disposed of.

(Rajeev Kumar Shrivastava) Judge MKB

Digitally signed by MAHENDRA BARIK Date: 2022.03.03 17:59:49 +05'30'