Rajasthan High Court
Irfan Son Of Shri Noor Khan ... vs State Of Rajasthan on 16 February, 2021
Bench: Sanjeev Prakash Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Petition No. 742/2021
Irfan son of Shri Noor Khan Deshwali, Resident of Pimun,
Reendliya, Tehsil, Malpura, District-Tonk (Raj.).
(Petitioner is the registered owner of the vehicle i.e. Tractor
bearing registration no. RJ 26 RB 7620 with Trolley)
----Petitioner
Versus
1. State Of Rajasthan, Through PP
----Respondent
AND
Other similar matters as per Schedule-A appended to this
order
This Order shall govern all the cases the particulars of
which have been given in Schedule-A appended to this
order.
For Petitioner(s) : Mr. Manish K Sharma, Mr. Aditya
Mishra, Mr. Mukesh Kumar Meena, Mr.
Praveen Kumar Jain, Mr. Moti Lal
Sharma, Mr. Arshabh Sharma, Mr.
Brijesh Kumar Bhardwaj, Mr. Ashindra
Gautam, Mr. Arpit Srivastava, Mr.
Deepak Khandelwal, Mr. Sanjay Khan
For Respondent(s) : Mr. Prashant Sharma, PP
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order
16/02/2021
1. All these petitions relate to the prayer for release of
tractors and trolleys/trucks/dumper/trailer, which have been
seized by the Police Authorities/Mining Authorities/Forest
Officials for various reasons including carrying "bazri", by way
of illegal mining in Rajasthan and selling out the same etc.
(2 of 30) [CRLMP-742/2021]
2. All these petitions have been filed against the order
passed by the concerned Magistrate whereby application
under Sections 451 & 457 Cr.P.C for releasing of tractor and
trolley/Truck/Trailer/Dumper were rejected and therefore, the
same are being heard together.
3. The question regarding grant of release of vehicles has
been examined at length by this Court in S.B. Criminal
Misc. Petition No.2723/2019, Asharam & Ors. Vs. State
of Rajasthan & connected misc. petitions decided by
common order dated 3.2.2020 wherein this Court has held as
under:-
"1. Since the controversy involved in this
batch of criminal misc. petitions is similar, therefore,
the same are being heard together and decided by this
common order.
2. The petitioners, in these criminal misc. petitions,
have prayed for release of their vehicles, namely,
tractors and trolleys, which have been seized by the
concerned Police Station. The Registration Certificates
of their vehicles have also been seized. The seizure
has been effected on account of the tractor along with
trolley being found to be used for allegedly committing
offences under Section 4/21 of the Mines and Minerals
(Development & Regulation) Act, 1957 (hereinafter
referred to as "the Act of 1957") and under Section
379 IPC for illegal transportation of "Bajri". In other
cases, the illegal transportation is being found of other
minerals without obtaining royalty receipt, ravanas,
transit pass etc. The details of the vehicles are as
under:-
Number of S.B. Cr. Tractor Registration Trolley Registration
Misc. Petition No. No.
SB Cr. Misc. Petition RJ-34-RB-1420 ---
No.2723/2019
SB Cr. Misc. Petition RJ-29-RB-4395 RJ-29-EB-0548
No.6867/2019
SB Cr. Misc. Petition RJ-25-RB-4675 RJ-25-EV-0127
No.6873/2019
SB Cr. Misc. Petition RJ-34-RA-4068 RJ-34-EV-0646
No.6924/2019
SB Cr. Misc. Petition RJ-25-RB-7603 RJ-25-EV-0381
No.6927/2019
(3 of 30) [CRLMP-742/2021]
SB Cr. Misc. Petition RJ-42-RA-2386 RJ-25-EV-2300
No.6928/2019
SB Cr. Misc. Petition RJ-14-RD-2341 RJ-14-EB-0053
No.6929/2019
SB Cr. Misc. Petition RJ-34-RB-1712 RJ-25-EV-421
No.6930/2019
SB Cr. Misc. Petition RJ-25-RB-7829 RJ-25-EV-0389
No.6931/2019
SB Cr. Misc. Petition RJ-25-RB-7801 RJ-25-EV-1926
No.6932/2019
SB Cr. Misc. Petition RJ-25-RB-6522 RJ-25-EV-0121
No.7561/2019
SB Cr. Misc. Petition RJ-25-RB-0600 RJ-25-EV-0599
No.7560/2019
SB Cr. Misc. Petition RJ-34-RA-4706 ---
No.3656/2019
3. The trial Court has rejected the applications
moved under Section 457 Cr.P.C. by the petitioners
observing that there is a great loss of revenue caused
by illegal transportation of minerals by the tractors
along with trolleys and are likely to be used for
recurrence of the illegal activity. It has also been
noticed that the amount of penalty for compounding
the offence under the Act of 1957 has also not been
deposited and some of the trolleys are found to be
unregistered.
4. Taking into consideration, the flurry of cases
coming to this Court with regard to the aforesaid
aspect, this Court vide order dated 15.1.2020
observed as under:
"In M/s. Natwar Parikh and Co. Ltd. Versus
State of Karnataka and Others, AIR 2005 SC
3428 after examining the Motor Vehicles Act, 1988
held as under:-
"22. The question still remains as to
whether the taxation authority was right in
categorizing tractor-trailer as a separate
assessable entity and whether that
authority was right in calling upon the
appellant to obtain permit under Section 66
of the M.V. Act, 1988."
Thus, a tractor alongwith the trolley (trailer)
would constitute goods carriage and would thus
require the permit under Section 66 of the Motor
Vehicles Act, 1988 (hereinafter 'the Act of 1988').
However, it is noticed that the tractors which are
being seized alongwith the trolleys carrying Bajri, do
not have permit under Section 66 of the Act of 1988
and the Transport Department is not carrying out
(4 of 30) [CRLMP-742/2021]
regular vigil and are not seizing such goods carriage
plying on roads.
Let the Commissioner, Transport Department
alongwith the Regional Transport Officer, Jaipur be
present in the court detailing their proposed plan to
curve such activity as above. The Director, Mines shall
also appear to explain as to what steps have been
taken for stopping Bajri mining in the State of
Rajasthan. It would also be informed to the court as
to what conditions have been laid down for issuing
commercial licenses to these vehicles. Notice in this
regard be sent to the aforesaid officers.
List this case again on 27.1.2020."
5. Upon notice, this Court again on 27.1.2020 passed
the following order:
"Mr. Rajesh Yadav, Principal Secretary & Transport
Commissioner, Mr. Gaurav Goyal, Director, Mines &
Geology, Mr. Rajendra Verma, RTO and Mr. Satyaveer,
Additional Transport Commissioner, Jaipur are present
in person and submitted their suggestions which have
been found to be very useful. It has also been
informed that there is a PIL (Khem Singh Vs. State of
Raj.) pending before the Principal Seat at Jodhpur
wherein the Government is in the process of
submitting its detailed recommendations with regard
to illegal mining activities being conducted and
transportation of illegal "Bajri" and other minerals."
6. The Motor Vehicle Act, 1988 (hereinafter referred to
as "the Act of 1988") provides for necessity of permits for
transport vehicle as per Section 66, and conditions for
grant of goods carriage permit under Section 79
commonly known as "commercial permit", which read as
under:
"66. Necessity for permits--(1) No owner of a motor
vehicle shall use or permit the use of the vehicle as a
transport vehicle in any public place whether or not
such vehicle is actually carrying any passengers or
goods save in accordance with the conditions of a
permit granted or countersigned by a Regional or State
Transport Authority or any prescribed authority
authorising him the use of the vehicle in that place in
the manner in which the vehicle is being used:
Provided that a stage carriage permit shall,
subject to any conditions that may be specified in the
permit, authorise the use of the vehicle as a contract
carriage:
Provided further that a stage carriage permit
may, subject to any conditions that may be specified in
the permit, authorise the use of the vehicle as a goods
carriage either when carrying passengers or not:
(5 of 30) [CRLMP-742/2021]
Provided also that a goods carriage permit shall,
subject to any conditions that may be specified in the
permit, authorise the use of the vehicle for the carriage
of goods for or in connection with a trade or business
carried on by him.
2[Provided also that where a transport vehicle
has been issued any permit or permits, as well as a
licence under this Act, such vehicle may be used either
under the permit, or permits, so issued to it, or under
such licence, at the discretion of the vehicle owner.]
(2) The holder of a goods carriage permit may
use the vehicle, for the drawing of any public or
semitrailer not owned by him, subject to such
conditions as may be prescribed.
1[Provided that the holder of a permit of any
articulated vehicle may use the prime-mover of that
articulated vehicle for any other semi-trailor.]
(3) The provisions of sub-section (1) shall not
apply--
(a) to any transport vehicle owned by the Central
Government or a State Government and used for
Government purposes unconnected with any
commercial enterprise;
(b) to any transport vehicle owned by a local
authority or by a person acting under contract
with a local authority and used solely for road
cleansing, road watering or conservancy
purposes;
(c) to any transport vehicle used solely for police,
fire brigade or ambulance purposes;
(d) to any transport vehicle used solely for the
conveyance of corpses and the mourners
accompanying the corpses;
(e) to any transport vehicle used for towing a
disabled vehicle or for removing goods from a
disabled vehicle to a place of safety;
(f) to any transport vehicle used for any other
public purpose as may be prescribed by the State
Government in this behalf;
(g) to any transport vehicle used by a person who
manufactures or deals in motor vehicles or builds
bodies for attachment to chassis, solely for such
purposes and in accordance with such conditions
as the Central Government may, by notification in
the Official Gazette, specify in this behalf;
(h) [*****]
(i) to any goods vehicle, the gross vehicle weight
of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central
Government may, by notification in the Official
Gazette, specify, to any transport vehicle
purchased in one State and proceeding to a place,
situated in that State or in any other State,
without carrying any passenger or goods;
(6 of 30) [CRLMP-742/2021]
(k) to any transport vehicle which has been
temporarily registered under section 43 while
proceeding empty to any place for the purpose of
registration of the vehicle;
(l) [*****]
(m) to any transport vehicle which, owing to
flood, earthquake or any other natural calamity,
obstruction on road, or unforeseen circumstances
is required to be diverted through any other
route, whether within or outside the State, with a
view to enabling it to reach its destination;
(n) to any transport vehicle used for such
purposes as the Central or State Government
may, by order, specify;
(o) to any transport vehicle which is subject to a
hire-purchase, lease or hypothecation agreement
and which owing to the default of the owner has
been taken possession of by or on behalf of, the
person with whom the owner has entered into
such agreement, to enable such motor vehicle to
reach its destination; or
(p) to any transport vehicle while proceeding
empty to any place for purpose of repair.
1[(q) to any transport vehicle having been issued
a licence under a scheme, under sub-section (3)
of section 67 or sub-section (1) of section 88A, or
plying under such orders as may be issued by the
Central Government or by the State
Government.]
(4) Subject to the provisions of sub-section (3), sub-
section (1) shall if the State Government by rule made
under section 96 so prescribes, apply to any motor
vehicle adapted to carry more than nine persons
excluding the driver.
79. Grant of goods carriage permit:
1) A Regional Transport Authority may, on an
application made to it under section 77, grant a goods
carriage permit to be valid throughout the State or in
accordance with the application or with such
modifications as it deems fit or refuse to grant such a
permit:
Provided that no such permit shall be granted in
respect of any area or route not specified in the
application.
(2) The Regional Transport Authority, if it decides to
grant a goods carriage permit, may grant the permit
and may, subject to any rules that may be made under
this Act, attach to the permit any one or more of the
following conditions, namely:--
(i) that the vehicle shall be used only in a
specified area or on a specified route or routes;
(ii) that the gross vehicle weight of any vehicle
used shall not exceed a specified maximum;
(7 of 30) [CRLMP-742/2021]
(iii) that goods of a specified nature shall not be
carried;
(iv) that goods shall be carried at specified
rates;
(v) that specified arrangement shall be made
for the housing, maintenance and repair of the
vehicle and the storage and safe custody of the
goods carried;
(vi) that the holder of the permit shall furnish to
the Regional Transport Authority such periodical
returns, statistics and other information as the
State Government may, from time to time,
prescribe;
(vii) that the Regional Transport Authority may,
after giving notice of not less than one month,--
(a) vary the conditions of the permit;
(b) attach to the permit further
conditions;
(viii) that the conditions of the permit shall not
be departed from, save with the approval of the
Regional Transport Authority;
(ix) any other conditions which may be
prescribed.
(3) The conditions referred to in sub-section (2) may
include conditions relating to the packaging and
carriage of goods of dangerous or hazardous nature to
human life."
7. The provisions of Section 86 of the Act of 1988
empower the Transport Authority for cancellation and
suspension of permits, which read as under:
"86. Cancellation and suspension of permits.--(1)
The transport authority which granted a permit may
cancel the permit or may suspend it for such period as
it thinks fit--
(a) on the breach of any condition specified in section
84 or of any condition contained in the permit, or
(b) if the holder of the permit uses or causes or allows
a vehicle to be used in any manner not authorised by
the permit, or
(c) if the holder of the permit ceases to own the
vehicle covered by the permit, or
(d) if the holder of the permit has obtained the permit
by fraud or misrepresentation, or
(e) if the holder of the goods carriage permit, fails
without reasonable cause, to use the vehicle for the
purposes for which the permit was granted, or
(f) if the holder of the permit acquires the citizenship
of any foreign country:
Provided that no permit shall be suspended or
cancelled unless an opportunity has been given to the
holder of the permit to furnish his explanation.
(2) The transport authority may exercise the powers
conferred on it under sub-section (1) in relation to a
permit granted by any authority or person to whom
(8 of 30) [CRLMP-742/2021]
power in this behalf has been delegated under sub-
section (5) of section 68 as if the said permit was a
permit granted by the transport authority.
(3) Where a transport authority cancels or suspends a
permit, it shall give to the holder in writing its reasons
for the action taken.
(4) The powers exercisable under sub-section (1)
(other than the power to cancel a permit) by the
transport authority which granted the permit may be
exercised by any authority or person to whom such
powers have been delegated under sub-section (5) of
section 68.
(5) Where a permit is liable to be cancelled or
suspended under clause (a) or clause (b) or clause (e)
of sub-section (1) and the transport authority is of
opinion that having regard to the circumstances of the
case, it would not be necessary or expedient so to
cancel or suspend the permit if the holder of the
permit agrees to pay a certain sum of money, then,
notwithstanding anything contained in sub-section (1),
the transport authority may, instead of cancelling or
suspending the permit, as the case may be, recover
from the holder of the permit the sum of money
agreed upon.
(6) The powers exercisable by the transport authority
under sub-section (5) may, where an appeal has been
preferred under section 89, be exercised also by the
appellate authority.
(7) In relation to a permit referred to in sub-section
(9) of section 88, the powers exercisable under sub-
section (1) (other than the power to cancel a permit)
by the transport authority which granted the permit,
may be exercised by any transport authority and any
authority or persons to whom power in this behalf has
been delegated under sub-section (5) of section 68, as
if the said permit was a permit granted by any such
authority or persons."
8. From the perusal of the aforesaid provisions, it is
apparent that a power has been given to the Transport
Authority for grant of goods carriage permit and if the
vehicle is found to be carrying goods illegally, the said
permit is required to be cancelled or a fine can be
imposed instead of cancellation as has been informed by
the Transport Commissioner. The question is being
examined at length in the PIL pending before the
Principal Seat at Jodhpur, therefore, in the present
cases, I need not to go into the said aspect.
9. For the Transport Commissioner has handed over
the circulars, which were issued from time to time by
the State Government, laying down guidelines, which
are to be followed with regard to the registration of the
trolley for commercial purposes and action to be taken
where there is a violation. A chart was handed over,
which mentions about the action taken as against illegal
(9 of 30) [CRLMP-742/2021]
transportation of "Bajri" from January, 2019, which
reads as under:
tuojh&2019 ls vc rd ctjh ifjogu djus okys
VªsDVj&Vªksyh ds fo:) dh xbZ dk;Zokgh%
izknsf'kd dqy Tkcr vkjlh dj olwyh iz'keu
ifjogu pkyku okgu fuyEcu dh jkf'k
dk;kZy; dk;Zokgh
vtesj 344 334 0 22-94 14-87
vyoj 2 2 0 0-13 0-10
Hkjriqj 3 3 0 0-00 0-00
nkSlk 593 537 0 1-95 42-64
chdkusj 7 2 0 0-26 0-36
t;iqj 148 136 0 11-40 17-04
lhdj 3 3 3 0-21 0-82
tks/kiqj 1 1 0 0-06 0-02
ikyh 9 3 0 0-52 0-18
dksVk 38 22 0 2-31 1-67
mn;iqj 67 64 10 4-69 2-14
fprkSM+x<+ 206 129 0 6-54 13-15
dqy ;ksx 1421 1236 13 51-01 92-99
10. Total number of registrations, which have been done
upto January, 2020, are 382471 out of which number of
tractors are 373342 for commercial purpose while
commercial tractors upto 2020 are only 298 and
commercial trolleys are 9101. Thus, it is apparent that the
trolleys are being used with tractors, which do not have
commercial permit. Similarly, there would be trolleys,
which do not have commercial permit, but are being used
for commercial purpose.
11. In the aforesaid background, this Court finds that
while it is true that a vehicle should not be allowed to get
rusted in Police Station and the same ought to be
released for its better maintenance and proper use.
Several suggestions were given out by the Officers of the
Transport Department as well as by the Mining
Department for laying down the conditions before release
of the seized tractors, trolleys and vehicles being used for
illegal mining activities.
12. In Harun Versus State of Rajasthan: D.B. Criminal
Misc. Petition No.76/2014 decided on 23.7.2015 along
with connected matters by the Division Bench of this
Court wherein it has been held that if a vehicle is found to
be involved in committing violation of the Rajasthan
Forest Act, 1953 and carrying forest produce, the same
cannot be released during the pendency of trial on
supurdgi to the registered owner of the vehicle, if
(10 of 30) [CRLMP-742/2021]
proceedings of confiscation have already been initiated.
Relying upon the law laid down in Harun (supra), a
Coordinate Bench of this Court in Shoukat Khan Versus
State of Rajasthan: S.B. Criminal Misc. (Petition)
No.6307/2016, decided on 22.2.2017 has held that
supurdginama can be given, if proceedings for
confiscation have been initiated. In Laxman Versus State
of Rajasthan: D.B. Criminal Misc. Petition
No.60/2018 decided on 6.4.2018 along with connected
matters by the Division Bench where a reference was
made to the Division Bench on account of different
opinion relating to the power of release of vehicles
wherein the Division Bench has held as under:
"Most of the judgments cited by learned counsel
appearing from the side of the petitioners have ruled
in favour of the jurisdiction of the Magistrate to
release the vehicles under the provisions of Section
451 and/or 457 of the Cr.P.C. A discordant note has
however been sounded by Single Bench judgment in
Ramswaroop's case, which was later followed in Mala
Ram's, supra. These judgments, in view of the
analysis of law which we have made herein-above, do
not lay down correct law. In fact, the same Single
Judge, who delivered the judgment in Ramswaroop's
case on 28.08.2015, in his earlier judgment dated
26.10.2012 in Muknaram Vs. State of Rajasthan - S.B.
Criminal Misc. Petition No.3285/2012, had held that in
a case in which offence has already been compounded
by the competent authority and an amount has been
imposed as compounding fees and the same has not
been paid or deposited by the person concerned, for
the purpose of recovery or realization of the same, a
condition can be imposed by the Court while ordering
release of the vehicle to pay or deposit the same and
the Court can refuse to release the seized vehicle even
temporarily under Section 457 Cr.P.C., if such deposit
is not made.
In view of the above discussion, the referred
questions are answered in the terms that once the
Officer of the Mining Department, who seized the
vehicle, has reported such seizure to his Superior
Officer and to the Magistrate having jurisdiction, he
shall cease to have the power to release the vehicle,
and in that event, the Magistrate having jurisdiction
would be empowered to release such vehicle, with or
without the condition of deposit of compounding fee."
In view thereof, the power is vested with the concerned
Magistrate for release of seized vehicle.
13. Keeping in view the above, as this Court notices that in
none of the cases, the Mining Department has not initiated
the confiscation proceedings, it was submitted that
compounding fee must be charged from the petitioners before
release of the vehicle. However, this Court is of the view that
the compounding fee can only be charged, if it is adjudicated
(11 of 30) [CRLMP-742/2021]
that the concerned vehicle was involved in the illegal
activities, which can only be when trial is completed. A
presumption in this regard cannot be taken at the present
stage.
14. In view thereof, the impugned orders passed by the
Courts below dated 30.3.2019, 21.10.2019, 3.10.2019,
10.10.2019, 8.11.2019, 25.4.2019 and 8.4.2019 in each of
the case shall stand set aside and this Court directs as under:
a) The concerned Police Station shall release the tractor and
trolley to the person, who is the registered owner of the
vehicle alone.
b) The release of the tractor and trolley shall be subject to
the condition that the concerned owner shall get both the
tractor and the trolley registered with the transport
authorities and also obtain due permit within a period of one
month from the date of release and deposit the copy with
the concerned Police Station.
c) A personal security of an amount of Rs.1,00,000/- to the
satisfaction of the concerned Court to which the concerned
Police Station is attached, shall be submitted for the purpose
of release of the vehicle.
d) The petitioners shall keep the vehicle so released intact
and shall not change its identification. The petitioners shall
produce the vehicle as and when trial Court requires the
same for proposed identification of the case property.
e) The petitioners shall furnish the photographs of the
vehicle showing its number and colour etc.
f). At the time of release, the petitioners shall also give an
undertaking to the effect that vehicle shall not be used for
any illegal purpose and if so found, the concerned owner
shall be personally liable.
15. With the aforesaid directions, all these criminal misc.
petitions are allowed.
16. All the pending applications also stand disposed of.
17. A copy of this order be placed in each of the file."
4. The issue again come up before the Court in S.B.
Criminal Misc. Petition No.397/2020: Julfi Singh Vs.
State of Rajasthan & connected petitions (as per Schedule
"A" appended to the order) decided by common order dated
23.10.2020. This Court after considering the law, reiterated
the view and passed the following orders.
"1. All these petitions relate to the
prayer for release of tractors and trolleys,
which have been seized by the Police
Authorities/Mining Authorities/Forest Officials
for various reasons including carrying "bazri",
by way of illegal mining in Rajasthan and
selling out the same etc.
(12 of 30) [CRLMP-742/2021]
2. All these petitions have been filed against
the order passed by the concerned Magistrate
whereby application under Section 451 & 457
Cr.P.C for releasing of tractor and trolley was
rejected and therefore, the same are being
heard together.
3. Learned counsel for the petitioners have
relied upon the judgment passed by this court
in S.B. Criminal Misc. Petition No. 2723/2019
(Asharam & Ors. Vs. State of Rajasthan &
connected misc. petitions) decided by common
order dated 3.2.2020.
4. Learned counsel for the petitioners relied
upon the order passed subsequently by this
court in S. B. Criminal Misc.(Petition)
NO.2687/2020 (Nandlal Vs. State of
Rajasthan) decided on 1.10.2020 to submit
that vehicle should be released.
5. Learned counsel for the petitioners also
rely upon the judgment passed in the case of
Nathulal Vs. State of Rajasthan (S.B.
Criminal Misc. Petition No.2755/2020) decided
on 1.10.2020, which also took into
consideration the interim order passed in PIL
"Khem Singh Vs. State of Rajasthan",
(D.B.Civil Writ Petition NO.4239/2019) as
well as judgment passed by the Supreme Court
in the case of Sunderbhai Ambalal Desai &
Ors. Vs. State of Gujrat: (2002) 10 SCC 283.
6. The Mining Officer of the rank of Mining
Engineer (Writ), Jaipur, who is present in court,
opposed these petitions and submitted that
decision has been taken by Mining Department
to challenge the order passed in Asharam
(supra) before the Supreme Court by filing of
SLP. It is also stated that the Mining
Department on the basis of judgment passed
by Coordinate Bench in the case of Ganga
Ram Vs. State (S.B. Criminal Misc.(Petition)
No.1363/2020) at Principal Seat, Jodhpur
decided on 2.9.2020 has received opinion from
the Additional Government Counsel at Jodhpur
to cite the said judgment before the concerned
lower Court for denial of release of the vehicle.
7. I have considered the submissions and
have gone through the judgments which have
been cited at bar.
(13 of 30) [CRLMP-742/2021]
8. At the outset, this court finds that in
Ganga Ram Vs. State (S.B. Criminal Misc.
Petition No.1363/2020), decided by Principal
Seat of this Court at Jodhpur on 2.9.2020, the
judgment of Asharam (supra) was not cited
and was not considered. The judgment passed
by the Supreme Court in Sunderbhai Ambalal
Desai & Ors. (supra) was also not considered
and the judgments passed in Harun Versus
State of Rajasthan (D.B. Criminal Misc.
Petition No.76/2014), decided on 23rd July,
2015 and Laxman Versus State of
Rajasthan (D.B. Criminal Misc. Petition
No.60/2018) were also not brought to the
notice of the Court.
9. This court further finds that the interim
order passed in the case of Khem Singh
(supra) and the order passed by NGT have
been considered in Gangaram (supra) and
directions have been issued that the petitioners
therein would be required to deposit the
amount determined by Mining Engineer and
after the said amount being determined, the
vehicle has been directed to be released.
10. In Asharam's case judgment (authored
by me), I had an occasion to examine the
dispute and consider the law laid down by the
Supreme Court with regard to release of
vehicle under Sections 451 & 457 Cr.P.C. The
provisions of Motor Vehicle Act with regard to
permits as well as the conditions for carriage
permit were also examined.
11. This court also examined the power of
suspension of permits. That apart, the
judgment passed in Harun (supra) was
considered by this court which took into
consideration the offence committed by the
vehicle relating to the Rajasthan Forest Act.
In another case of Laxman (supra), the Division
Bench considered the aspect regarding confiscation
by the Mining Department where the reference was
made to the Division Bench as to in what
circumstances the vehicle should not be released
and it was held that where the confiscation
proceedings have already been conducted, the
power would not lie with the Magistrate to release
the vehicle. The court thereafter passed direction
for releasing of the tractor with trolley laying down
certain conditions.
(14 of 30) [CRLMP-742/2021]
12. The Rajasthan Minor Mineral Concession
Rules, 2017 laid down the provisions relating to
offenses, penalties and prosecution under Chapter
10. Rule 54(5) & (6) of the Rules, deserve to be
quoted, which read as under:
"54. Illegal mining, transportation and
storage of minerals:-
(1) ....
(2) ....
(3) ......
(4) .....
(5) Whenever any person, without a lawful
authority, raises any mineral from any land
other than under any mineral concession or
any other permission and for that purpose
bring on the land any tool, equipment, vehicle
or other thing, such tool, equipment, vehicle
etc. mineral, if any, may be seized by the
authorities mentioned in sub-rule (4) who
shall give a receipt to the person from whose
possession the property or mineral is seized:
Provided that every officer seizing any
property or mineral under this rule may
handover the property or mineral so seized to
the nearest police station or police chauki.
Provided further that the seized vehicle,
equipment or mineral may be released after
deposition of cost of mineral along with the
compound fees as specified in sub-rule (3).
Provided also that where mineral so raised
has already been dispatched or consumed,
the authorities mentioned in sub-rule (3)
shall recover cost of mineral along with the
compound fees as specified in sub-rule (3).
Provided also that where vehicle, equipment
or mineral so seized is not released, the
officer seizing the property or mineral shall
make a report of such seizure within seventy
two hours to his superior officer and to the
Magistrate having jurisdiction.
(6) All property seized under this rule shall be
liable to be confiscated by an order of
Magistrate if the amount equal to ten times of
royalty in lieu of cost of mineral, rent,
royalty, compensation for environmental
degradation and tax chargeable on the land
occupied without lawful authority, etc. is not
paid by the trespasser within a period of
(15 of 30) [CRLMP-742/2021]
three months from the date of commission of
such offence or when the recoveries are not
affected by that time:
Provided that on payment of these dues
within the said period of three months, all
properties seized shall be ordered to be
released and shall be handed over to the
trespasser or the owner of the property."
13. On the basis of aforesaid provisions, the
Officer i.e. the Mining Engineer (Writ) submits that
the power lies with the Mining Engineer to seize
the vehicle.
14. Per contra, learned counsel appearing for the
petitioner has specifically submitted that in none
of the case, the Mining Department has passed
order either under Rule 54(5) or under Rule 54(6)
of the Rules, 2017 that is to say that neither any
penalty has been imposed nor the confiscation
proceedings have been undertaken.
15. The Mining Engineer (Writ), who is present
in person in court, does not dispute with regard to
the said fact of the vehicle having not been
confiscation as yet.
16. In the case of Nathulal (supra), this court
had occasion to again examine this aspect and in
the case of Sunderbhai Ambalal Desai &
Ors. (supra), this court while relying upon the
judgment in Sunderbhai Ambalal Desai &
Ors. (supra) directed for release of the
vehicle.
17. This court also notices that different view had
been taken by the Coordinate Bench in Naval
Singh Vs. State of Rajasthan (S.B. Criminal
Misc. Petition No.2670/2020), decided on
3.9.2020, which did not notice the law laid down
by this court in Asharam (supra) as well as by
the Supreme Court supra and therefore, judgment
in Naval Singh (supra) was treated as per-
incuriam in Nathulal Vs. State of
Rajasthan (supra).
18. This court finds that the observations made
in Khem Singh (supra) were of interregnum in
nature and the law laid down by Supreme Court
earlier was not brought to its notice. The
provisions for compounding is also after
confiscation. In none of the cases herein, the
provisions under Rule 54 of the Rajasthan Minor
Mineral Concession Rules, 2017 have been
pressed by the Mining Department. Till date,
(16 of 30) [CRLMP-742/2021]
neither penalty has been imposed nor confiscation
has been done.
19. The Supreme Court in the case of
Sunderbhai Ambalal Desai & Ors. (supra)
has examined the law laid down and the
conditions with regard to release of different
goods/vehicle in different circumstances as
under:-
"8. The question of proper custody of
the seized article is raised in number of
matters. In Basavva Kom Dyamangouda Patil
v. State of Mysore: (1977) 4 SCC 358 this
Court dealt with a case where the seized
articles were not available for being returned
to the complainant. In that case, the
recovered ornaments were kept in a trunk in
the police station and later it was found
missing, the question was with regard to
payment of those articles. In that context,
the Court observed as under:-
"4. The object and scheme of the
various provisions of the Code appear
to be that where the property which
has been the subject-matter of an
offence is seized by the police, it ought
not to be retained in the custody of the
Court or of the police for any time
longer than what is absolutely
necessary. As the seizure of the
property by the police amounts to a
clear entrustment of the property to a
Government servant, the idea is that
the property should be restored to the
original owner after the necessity to
retain its ceases. It is manifest that
there may be two stages when the
property may be returned to the
owner. In the first place it may be
returned during any inquire or trial.
This may particularly be necessary
where the property concerned is
subject to speedy or natural decay.
There may be other compelling
reasons also which may justify the
disposal of the property to the owner
or otherwise in the interest of justice.
The High Court and the Sessions Judge
proceeded on the footing that one of
the essential requirements of the Code
is that the articles concerned must be
produced before the Court or should
be in its custody. The object of the
(17 of 30) [CRLMP-742/2021]
Code seems to be that any property
which is in the control of the Court
either directly or indirectly should be
disposed of by the Court and a just
and proper order should be passed by
the Court regarding its disposal. In a
criminal case, the police always acts
under the direct control of the Court
and has to take orders from it at every
stage of an inquiry or trial. In this
broad sense, therefore, the Court
exercises an overall control on the
actions of the police officers in every
case where it has taken cognizance."
9. The Court further observed that
where the property is stolen, lost or
destroyed and there is no prima facie
defence made out that the State or its
officers had taken due care and caution to
protect the property, the Magistrate may, in
an appropriate case, where the ends of
justice so require, order payment of the
value of the property.
10. To avoid a situation, in our view,
powers under Section 451 Cr.P.C. should be
exercised promptly and at the earliest.
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.
21. However, these powers are to be
exercised by the concerned Magistrate. We
hope and trust that the concerned
Magistrate would take immediate action for
seeing that powers under Section 451
Cr.P.C. are properly and promptly exercised
and articles are not kept for a long time at
the police station, in any case, for not more
than fifteen days to one month. This object
can also be achieved if there is proper
supervision by the Registry of the concerned
High Court in seeing that the rules framed
(18 of 30) [CRLMP-742/2021]
by the High Court with regard to such
articles are implemented properly.
20. In Fuerst Day Lawson Ltd. Vs. Jindal
Exports Ltd.:(2001) 6 SCC 356, the Supreme
Court has held as under:-
"19. In Mamleshwar Prasad and Another
vs. Kanhaiya Lal reflecting on the
principle of judgment per incuriam, in
paras 7 & 8, this Court had stated
thus:-
"7. Certainty of the law, consistency of
rulings and comity of courts - all
flowering from the same principle -
converge to the conclusion that a
decision once rendered must later bind
like cases. We do not intend to detract
from the rule that, in exceptional
instances, where by obvious
inadvertence or oversight a judgment
fails to notice a plain statutory provision
or obligatory authority running counter
to the reasoning and result reached, it
may not have the sway of binding
precedents. It should be a glaring case,
an obtrusive omission. No such situation
presents itself here and we do not
embark on the principle of judgment per
incuriam.
8. Finally it remains to be noticed
that a prior decision of this Court on
identical facts and law binds the Court
on the same points in a later case. Here
we have a decision admittedly rendered
on facts and law, indistinguishably
identical, and that ruling must bind.
20.This Court in A.R.Antulay vs. R.S.
Nayak & Another (1998 (2) SCC 602),
in para 42 has quoted the observations
of Lord Goddard in Moore vs. Hewwit
(1947) 2 All.ER 270 and Penny vs.
Nicholas (1950) 2 All.ER 89 to the
following effect:-
"Per incuriam are those decisions given
in ignorance or forgetfulness of some
inconsistent statutory provision or of
some authority binding on the court
concerned, so that in such cases some
part of the decision or some step in the
reasoning on which it is based, is found,
on that account to be demonstrably
wrong..."
(19 of 30) [CRLMP-742/2021]
21.This Court in State of U.P. & Another
vs. Synthetics & Chemicals Ltd. &
Another
MANU/SC/0616/1991:1993(41)ECC326
: 1993 (41) ECC3 26 in para 40 has
observed thus :-
"40. 'Incuria' literally means
'carelessness'. In practice per incuriam
appears to mean per ignoratium.
English courts have developed this
principle in relaxation of the rule of
stare decisis. The 'quotable in law' is
avoided and ignored if it is rendered, 'in
ignoratium of a statute or other binding
authority'. (Young v. Bristol aeroplane
co. Ltd)..."
22. The two judgments (1) Punjab Land
Development and Reclamation Corporation
Ltd., Chandigarh vs. President Officer, Labour
Court, Chandigarh and Others
MANU/SC/0479/1990 : (1990)IILLJ70SC :
(1990)IILLJ70SC and (2) State of U.P. and
Another vs. Synthetics and chemicals Ltd.
and Another MANU/SC/0616/1991 :
1993(41)ECC326 : 1993(41)ECC326 were
cited in support of the argument. Attention
was drawn to paras 40, 41 and 43 in the first
judgment and paras 39 and 40 in the second
judgment. In these two judgments no view
contrary to the views expressed in the
aforesaid judgments touching the principle of
judgment per incuriam is taken.
23. A prior decision of this court on identical
facts and law binds the Court on the same
points of law in a latter case. This is not an
exceptional case by inadvertence or oversight
of any judgment or statutory provisions
running counter to the reason and result
reached. Unless it is a glaring case of
obtrusive omission, it is not desirable to
depend on the principle of judgment 'per
incuriam'. It is also not shown that some part
of the decision based on a reasoning which
was demonstrably wrong, hence the principle
of per incuriam cannot be applied."
21. In Jai Singh & Ors. Vs. Municipal
Corporation of Delhi:(2010) 9 SCC 385, the
Supreme Court has held as under:-
"37. It must be remembered that in these
proceedings, the pleas raised by the DTC and MCD
before the ARC as well as the ARCT were identical. The
(20 of 30) [CRLMP-742/2021]
order passed by the ARCT has been upheld by a
coordinate bench of the High Court. The RCSA No:
17/2001 filed by MCD on identical grounds was thus
dismissed by a subsequent coordinate bench. That
was indeed in conformity with the high traditions,
procedures and practices established by the courts to
maintain judicial discipline and decorum. The
underlying principle being, to avoid conflicting views
taken by coordinate benches of the same court.
Except in compelling circumstances, such as where the
order of the earlier bench can be said to be per
incuriam , in that it is passed in ignorance of an earlier
binding precedent/statutory or constitutional
provision, the subsequent bench would follow the
earlier coordinate bench."
22. According to Blacks' Law Dictionary (Edition) per-
incuriam means through inadvertence. The doctrine of
per-incuriam is that a decision is to be treated as
given per-incuriam when it is given in ignorance of the
terms of statute or of a rule having statutory force or
a binding precedent.
23. Lord Goddard, in Huddersfield Police Authority
Vs. Watson: 27 (1947) 2 All ER 193 observed "where
a case or statute has not been brought to the Court's
attention and the Court gave the decision in ignorance
or forgetfulness of the existence of the case or statute,
it would be a decision rendered in per-incuriam".
24. In the opinion of this court, the view taken by
the Supreme Court requires to be considered and
followed and any judgment, which did not notice the
law laid down by the Supreme Court or the provisions
of law, has to be treated as per-incuriam. The
provision of Section 451 & 457 Cr.P.C. are
unambiguous and clear and it would be useful to quote
them as under:-
451. Order for custody and disposal of property
pending trial in certain cases.
When any property is produced before any Criminal Court
during any inquiry or trial, the Court may make such
order as it thinks fit for the proper custody of such
property pending the conclusion of the inquiry or trial,
and, if the property is subject to speedy and natural
decay, or if it is otherwise expedient so to do, the Court
may, after recording such evidence as it thinks
necessary, order it to be sold or otherwise disposed of.
Explanation.- For the purposes of this section," property"
includes-
(a) property of any kind or document which is produced
before the Court or which is in its custody,
(21 of 30) [CRLMP-742/2021]
(b) any property regarding which an offence appears to
have been committed or which appears to have been
used for the commission of any offence.
457. Procedure by police upon seizure of property.
(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.
25. Unless the respondents namely; Mining Authorities or
the State have confiscated the goods/vehicle etc. till that
stage, the vehicle can be released by the concerned
Magistrate laying down the conditions under Sections 457
Cr.P.C. The prime reason is that goods or vehicle, which
have been seized should not go waste or rusted. Of
course, the condition of bond can always be imposed as
one of the conditions as directed by this court in the case
of Asharam (supra) for the purpose.
26. Keeping in view the law as noticed above and in view
of the fact that there is no confiscation having done for
illegal mining as on the date and the imposition of fine or
penalty would be on the person (owner) and not on the
vehicle, this court is inclined to follow its earlier view taken
in Asharam's case, which reads as under:-
"11. In the aforesaid background, this Court finds
that while it is true that a vehicle should not be
allowed to get rusted in Police Station and the same
ought to be released for its better maintenance and
proper use. Several suggestions were given out by
the Officers of the Transport Department as well as
by the Mining Department for laying down the
conditions before release of the seized tractors,
trolleys and vehicles being used for illegal mining
activities.
12. In Harun Versus State of Rajasthan: D.B. Criminal
Misc. Petition No.76/2014 decided on 23.7.2015 along
with connected matters by the Division Bench of this
(22 of 30) [CRLMP-742/2021]
Court wherein it has been held that if a vehicle is
found to be involved in committing violation of the
Rajasthan Forest Act, 1953 and carrying forest
produce, the same cannot be released during the
pendency of trial on supurdgi to the registered owner
of the vehicle, if proceedings of confiscation have
already been initiated. Relying upon the law laid down
in Harun (supra), a Coordinate Bench of this Court in
Shoukat Khan Versus State of Rajasthan: S.B.
Criminal Misc. (Petition) No.6307/2016, decided on
22.2.2017 has held that supurdginama can be given,
if proceedings for confiscation have been initiated. In
Laxman Versus State of Rajasthan: D.B. Criminal
Misc. Petition No.60/2018 decided on 6.4.2018 along
with connected matters by the Division Bench where
a reference was made to the Division Bench on
account of different opinion relating to the power of
release of vehicles wherein the Division Bench has
held as under:
"Most of the judgments cited by learned counsel
appearing from the side of the petitioners have ruled
in favour of the jurisdiction of the Magistrate to
release the vehicles under the provisions of Section
451 and/or 457 of the Cr.P.C. A discordant note has
however been sounded by Single Bench judgment in
Ramswaroop's case, which was later followed in Mala
Ram's, supra. These judgments, in view of the
analysis of law which we have made herein-above, do
not lay down correct law. In fact, the same Single
Judge, who delivered the judgment in Ramswaroop's
case on 28.08.2015, in his earlier judgment dated
26.10.2012 in Muknaram Vs. State of Rajasthan -
S.B. Criminal Misc. Petition No.3285/2012, had held
that in a case in which offence has already been
compounded by the competent authority and an
amount has been imposed as compounding fees and
the same has not been paid or deposited by the
person concerned, for the purpose of recovery or
realization of the same, a condition can be imposed
by the Court while ordering release of the vehicle to
pay or deposit the same and the Court can refuse to
release the seized vehicle even temporarily under
Section 457 Cr.P.C., if such deposit is not made. In
view of the above discussion, the referred questions
are answered in the terms that once the Officer of the
Mining Department, who seized the vehicle, has
reported such seizure to his Superior Officer and to
the Magistrate having jurisdiction, he shall cease to
have the power to release the vehicle, and in that
event, the Magistrate having jurisdiction would be
empowered to release such vehicle, with or without
the condition of deposit of compounding fee."
In view thereof, the power is vested with the
concerned Magistrate for release of seized vehicle.
(23 of 30) [CRLMP-742/2021]
13. Keeping in view the above, as this Court notices
that in none of the cases, the Mining Department has
not initiated the confiscation proceedings, it was
submitted that compounding fee must be charged
from the petitioners before release of the vehicle.
However, this Court is of the view that the
compounding fee can only be charged, if it is
adjudicated that the concerned vehicle was involved
in the illegal activities, which can only be when trial is
completed. A presumption in this regard cannot be
taken at the present stage.
14. In view thereof, the impugned orders passed by
the Courts below dated 30.3.2019, 21.10.2019,
3.10.2019, 10.10.2019, 8.11.2019, 25.4.2019 and
8.4.2019 in each of the case shall stand set aside and
this Court directs as under:
a) The concerned Police Station shall release the
tractor and trolley to the person, who is the
registered owner of the vehicle alone.
b) The release of the tractor and trolley shall be
subject to the condition that the concerned owner
shall get both the tractor and the trolley registered
with the transport authorities and also obtain due
permit within a period of one month from the date of
release and deposit the copy with the concerned
Police Station.
c) A personal security of an amount of Rs.1,00,000/-
to the satisfaction of the concerned Court to which
the concerned Police Station is attached, shall be
submitted for the purpose of release of the vehicle.
d) The petitioners shall keep the vehicle so released
intact and shall not change its identification. The
petitioners shall produce the vehicle as and when trial
Court requires the same for proposed identification of
the case property.
e) The petitioners shall furnish the photographs of the
vehicle showing its number and colour etc.
f). At the time of release, the petitioners shall also
give an undertaking to the effect that vehicle shall not
be used for any illegal purpose and if so found, the
concerned owner shall be personally liable."
27. It is noticed that the on coming "Rabi" crop
season is approaching and the farmers would require
their tractors and trolleys for the said purpose,
therefore taking into consideration the above,
keeping the vehicles at Police Station would render
them go waste.
(24 of 30) [CRLMP-742/2021]
28. Accordingly, these petitions are allowed and
tractor and trolley as mentioned in these petitions as
per Schedule-A annexed to this order shall be
released as per aforesaid conditions laid down
herein-above in Para 14(a) to (f) of Asharam's case
(supra).
29. All pending applications also stand disposed off."
5. In S.B. Criminal Misc. Petition No.679/2020: Kurshid
Versus State of Rajasthan, along with other connected
petitions decided by common order dated 23.10.2020 wherein this
Court has held as under:-
"All these petitions have been filed by the
petitioners praying for release of
Dumper/Truck/Trailer, which were seized, while
doing illegal mining. The details of the concerned
vehicle are being shown in the annexed Schedule-"A"
to this order as per their respective petitions.
The release of vehicle has been examined at
length by the Supreme Court in the case of
Sunderbhai Ambalal Desai & Ors. Versus State of
Gujarat: (2002) 10 SCC 283, which has been
followed by this Court in Asharam Versus State of
Rajasthan: S.B. Criminal Misc. Petition
No.2723/2019 along with connected cases decided
on 3.2.2020 and Nathulal Versus State of Rajasthan:
S.B. Criminal Misc. Petition No.2755/2020
decided on 01.10.2020. In the case of Asharam
(supra), the Court has held as under:
"11. In the aforesaid background, this Court
finds that while it is true that a vehicle should
not be allowed to get rusted in Police Station
and the same ought to be released for its better
maintenance and proper use. Several
suggestions were given out by the Officers of
the Transport Department as well as by the
Mining Department for laying down the
conditions before release of the seized tractors,
trolleys and vehicles being used for illegal
mining activities.
12. In Harun Versus State of Rajasthan: D.B.
Criminal Misc. Petition No.76/2014 decided on
23.7.2015 along with connected matters by the
Division Bench of this Court wherein it has been
held that if a vehicle is found to be involved in
committing violation of the Rajasthan Forest
Act, 1953 and carrying forest produce, the
same cannot be released during the pendency
of trial on supurdgi to the registered owner of
the vehicle, if proceedings of confiscation have
already been initiated. Relying upon the law laid
(25 of 30) [CRLMP-742/2021]
down in Harun (supra), a Coordinate Bench of
this Court in Shoukat Khan Versus State of
Rajasthan: S.B. Criminal Misc. (Petition)
No.6307/2016, decided on 22.2.2017 has held
that supurdginama can be given, if proceedings
for confiscation have been initiated. In Laxman
Versus State of Rajasthan: D.B. Criminal Misc.
Petition No.60/2018 decided on 6.4.2018 along
with connected matters by the Division Bench
where a reference was made to the Division
Bench on account of different opinion relating
to the power of release of vehicles wherein the
Division Bench has held as under:
"Most of the judgments cited by learned
counsel appearing from the side of the
petitioners have ruled in favour of the
jurisdiction of the Magistrate to release the
vehicles under the provisions of Section 451
and/or 457 of the Cr.P.C. A discordant note has
however been sounded by Single Bench
judgment in Ramswaroop's case, which was
later followed in Mala Ram's, supra. These
judgments, in view of the analysis of law which
we have made herein-above, do not lay down
correct law. In fact, the same Single Judge,
who delivered the judgment in Ramswaroop's
case on 28.08.2015, in his earlier judgment
dated 26.10.2012 in Muknaram Vs. State of
Rajasthan - S.B. Criminal Misc. Petition
No.3285/2012, had held that in a case in which
offence has already been compounded by the
competent authority and an amount has been
imposed as compounding fees and the same
has not been paid or deposited by the person
concerned, for the purpose of recovery or
realization of the same, a condition can be
imposed by the Court while ordering release of
the vehicle to pay or deposit the same and the
Court can refuse to release the seized vehicle
even temporarily under Section 457 Cr.P.C., if
such deposit is not made. In view of the above
discussion, the referred questions are answered
in the terms that once the Officer of the Mining
Department, who seized the vehicle, has
reported such seizure to his Superior Officer
and to the Magistrate having jurisdiction, he
shall cease to have the power to release the
vehicle, and in that event, the Magistrate
having jurisdiction would be empowered to
release such vehicle, with or without the
condition of deposit of compounding fee."
In view thereof, the power is vested with
the concerned Magistrate for release of seized
vehicle.
(26 of 30) [CRLMP-742/2021]
13. Keeping in view the above, as this Court
notices that in none of the cases, the Mining
Department has not initiated the confiscation
proceedings, it was submitted that compounding
fee must be charged from the petitioners before
release of the vehicle. However, this Court is of
the view that the compounding fee can only be
charged, if it is adjudicated that the concerned
vehicle was involved in the illegal activities,
which can only be when trial is completed. A
presumption in this regard cannot be taken at
the present stage.
14. In view thereof, the impugned orders
passed by the Courts below dated 30.3.2019,
21.10.2019, 3.10.2019, 10.10.2019, 8.11.2019,
25.4.2019 and 8.4.2019 in each of the case
shall stand set aside and this Court directs as
under:
a) The concerned Police Station shall
release the tractor and trolley to the
person, who is the registered owner of the
vehicle alone.
b) The release of the tractor and trolley
shall be subject to the condition that the
concerned owner shall get both the tractor
and the trolley registered with the transport
authorities and also obtain due permit
within a period of one month from the date
of release and deposit the copy with the
concerned Police Station.
c) A personal security of an amount of
Rs.1,00,000/- to the satisfaction of the
concerned Court to which the concerned
Police Station is attached, shall be
submitted for the purpose of release of the
vehicle.
d) The petitioners shall keep the vehicle so
released intact and shall not change its
identification. The petitioners shall produce
the vehicle as and when trial Court requires
the same for proposed identification of the
case property.
e) The petitioners shall furnish the
photographs of the vehicle showing its
number and colour etc.
f). At the time of release, the petitioners
shall also give an undertaking to the effect
that vehicle shall not be used for any illegal
purpose and if so found, the concerned
owner shall be personally liable."
In view of the above, all these petitions are allowed
and the orders passed by the Court below are quashed
and set aside, however, taking into consideration that the
vehicle is a dumper/truck/trailer and not tractor as in
(27 of 30) [CRLMP-742/2021]
Asharam (supra), the security amount is liable to be
enhanced and following directions are passed:
a) The concerned Police Station shall release
the Dumper/Truck/Trailer to the person(s), who
is the registered owner of the vehicle alone.
b) The release of the Dumper/Truck/Trailer
shall be subject to the condition that the
concerned owner shall get
Dumper/Truck/Trailer registered with the
Transport Authorities and also obtain due
permit within a period of one month from the
date of release and deposit the copy with the
concerned Police Station.
c) A personal security of an amount of
Rs.5,00,000/- to the satisfaction of the
concerned Court to which the concerned Police
Station is attached, shall be submitted for the
purpose of release of the vehicle.
d) The petitioners shall keep the vehicle so
released intact and shall not change its
identification. The petitioners shall produce the
vehicle as and when trial Court requires the
same for proposed identification of the case
property.
e) The petitioners shall furnish the
photographs of the vehicle showing its number
and colour etc.
f). At the time of release, the petitioners
shall also give an undertaking to the effect that
vehicle shall not be used for any illegal purpose
and if so found, the concerned owner shall be
personally liable.
All pending application stand disposed of.
A copy of this order be placed in each of the file."
6. Admittedly, in all the present cases, no confiscation
proceedings have been initiated by the concerned
Department although such provisions are existing under the
concerned Mining Laws/Forest Laws/ Motor Vehicles Act/Police
Act.
7. Learned Public Prosecutor has placed before the Court
an order passed by the Apex Court recently in SLP No.106-
107/2021 wherein the Supreme Court has directed not to
release the vehicles if not released vide order dated
28.1.2021.
(28 of 30) [CRLMP-742/2021]
8. The facts of the said case are not before this Court
whether the said vehicle was under auction or confiscation
proceedings have been initiated therein.
9. This Court is of the firm view that keeping in view the
vehicles at the Police stations would be a waste of public
money and would allow them to be rusted and go waste, the
offence as alleged resulting in seizure of vehicle(s) has been
committed by the Driver/Owner of the vehicle(s) and
proceedings under the concerned Act would have to be taken
against those accused. A vehicle cannot be said to have
committed the crime. In letting the vehicle remain in police
custody and allowing it to be rusted would virtually mean
directing it to be destroyed.
10. In the opinion of this Court, such is neither the intention
of the law makers nor can it be public policy. Since the State
authorities who seized vehicle(s) have not proceeded to
confiscate the vehicles, there is no other option but to release
the vehicle(s) to their respective owners/Power of Attorney
Holders.
11. It is also noticed that judgments passed by the Court in
Asharam (supra), Julfi Singh (supra) and Kurshid (supra)
have not been challenged before the Supreme Court.
12. In view thereof, these petitions are allowed with the
aforesaid terms:-
a) The concerned Police Station shall release the
vehicles-Tractor and trolley/Truck/Trailer/Dumper to the
person, who is the registered owner of the said vehicles.
b) A personal security of an amount of Rs.1,00,000/- each
for tractor and trolley and Rs.5,00,000/- for
(29 of 30) [CRLMP-742/2021]
truck/trailer/dumper to the satisfaction of the concerned
Court to which the concerned Police Station is attached, shall
be submitted by the petitioner/s for the purpose of release of
the vehicles.
c) The petitioner/s shall furnish the photographs of the
vehicles showing their numbers and colour etc.
d). At the time of release, the petitioner/s shall also give an
undertaking to the effect that vehicle/s shall not be used for
any illegal purpose and if so found, the concerned owner
shall be personally liable.
13. The orders passed by the Courts below are accordingly
quashed and set aside.
14. However, it is made clear that if vehicle(s) have been
confiscated under the relevant provisions of the Act, then said
vehicle(s) shall not be released by the concerned Magistrate.
Keeping in view of law laid down in the case of Laxman Versus
State of Rajasthan: DB Criminal Misc. Petition No.60/2018
decided on 6.4.2018.
(SANJEEV PRAKASH SHARMA),J
NITIN/
(30 of 30) [CRLMP-742/2021]
SCHEDULE - "A"
Item No. in
Vehicle Registration
Sr. No. cause list Case type Case number Vehicle Type
Number
dt.16.02.2021
1. 141 CRLMP 742/2021 Tractor with Trolley RJ-26-RB-7620
2. 142 CRLW 173/2021 Tractor with Trolley RJ-11-RA-9844
RJ-25-RB-8163
3. 143 CRLW 226/2021 Tractor with Trolley
RJ-25-RB-1581
4. 144 CRLW 227/2021 Tractor with Trolley RJ-25-RB-5449
5. 145 CRLW 228/2021 Tractor with Trolley RJ-25-RC-0509
6. 146 CRLW 255/2021 Tractor with Trolley RJ-26-RB-9200
7. 147 CRLW 256/2021 Tractor with Trolley RJ-25-RB-6893
8. 148 CRLW 257/2021 Truck RJ-25-GA-3858
9. 149 CRLW 259/2021 Tractor RJ-25-EV-1136
10. 150 CRLMP 536/2021 Trailer RJ-17-GA-3969
153 CRLMP 1345/2021 Tractor with Trolley RJ-14-RD-3406
12. 154 CRLMP 5524/2020 Tractor with Trolley RJ-47-RA-2450
RJ-25-RB-9172
Tractor with Trolley RJ-25-RB-9091
Tractor with Trolley RJ-25-RB-7835
13. 159 CRLW 272/2021 Tractor with Trolley RJ-25-RC-0531
Tractor with Trolley Chasis
Tractor with Trolley No.MBNGAAJXNLJB0
14. 160 CRLW 273/2021 Tractor with Trolley RJ-25-RB-9747
RJ-25-RB-7162
Tractor with Trolley
RJ-34-RA-9773; RJ-34-
Tractor with Trolley
EV-0376
15. 161 CRLW 274/2021 Tractor with Trolley
RJ-34-RB-2602
Tractor with Trolley
RJ-34-RB-4495
Tractor with Trolley
RJ-34-RB-2885
16. 162 CRLW 275/2021 Tractor with Trolley RJ-25-RC-0677
Tractor with Trolley RJ-29-RB-4560
Tractor with Trolley RJ-29-RB-6049
17. 163 CRLW 276/2021
Tractor with Trolley RJ-25-RC-1240
Tractor with Trolley RJ-25-RC-0856
18. 164 CRLW 277/2021 Tractor with Trolley RJ-25-RC-0739
19. 165 CRLW 279/2021 Tractor with Trolley RJ-25-RB-1885
20. 166 CRLW 281/2021 Tractor with Trolley RJ-25-RC-0271
Tractor RJ-37-RA-0683
21. 167 CRLW 282/2021
Trolley RJ-25-EV-0991
Tractor RJ-25-RB-3860
22. 168 CRLW 283/2021
Trolley RJ-25-EV-2199
Tractor RJ-25-RB-7254
23. 169 CRLW 284/2021
Trolley RJ-25-EV-2332
Tractor RJ-25-RA-6142
24. 170 CRLW 285/2021
Trolley RJ-25-EV-2360
25. 171 CRLW 288/2021 Tractor with Trolley RJ-29-RB-4558
26. 172 CRLW 289/2021 Tractor with Trolley RJ-29-RB-5134
27. 173 CRLW 290/2021 Tractor with Trolley RJ-34-RA-5422
28. 174 CRLW 291/2021 Tractor with Trolley RJ-52-RA-2204
29. 175 CRLW 292/2021 Tractor with Trolley RJ-25-RB-1998
30. 176 CRLMP 1251/2021 Tractor with Trolley RJ-11-RB-2005
31. 177 CRLMP 1310/2021 Trailer RJ-08-GA-3138
32. 178 CRLMP 1315/2021 Dumper HR-55-Q-9790
33. 179 CRLMP 1344/2021 Tractor with Trolley RJ-14-RD-2782
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