Rajasthan High Court - Jodhpur
Kesha Ram Patel vs State Of Rajasthan (2025:Rj-Jd:17965) on 8 April, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:17965]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2044/2025
Kesha Ram Patel S/o Sawal Ram, Aged About 24 Years, Resident
of Sutharo Ka Bas, Mogra Kalla, Tehsil Luni, District Jodhpur
----Petitioner
Versus
State of Rajasthan, through Public Prosecutor
----Respondent
For Petitioner(s) : Mr. Mr. Sukh Dev
Mr. Kshitij Vyas
For Respondent(s) : Mr. Narendra Singh Chandawat, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
08/04/2025
1. By way of filing the instant Criminal Misc. Petition, a
challenge has been made to the orders dated 12.02.2025 and
04.03.2025 passed by the learned Chief Judicial Magistrate, Pali
and the learned Session Judge, Pali respectively pertaining to FIR
No.15/2025 registered at Police Station Rohat, District Pali
whereby the prayer made by the petitioner for releasing the
vehicle in question (Dumper) bearing Registration No. RJ04-GB-
8220 has been declined.
2. Learned counsel for the petitioner submits that the petitioner
is the registered owner of the vehicle in question which has been
seized by the Police Officials. He further submits that the
petitioner being the registered owner of the vehicle in question, is
the person best entitled to get back the possession of the seized
vehicle. There is no other person claiming supurdagi of the same.
[2025:RJ-JD:17965] (2 of 4) [CRLMP-2044/2025]
Learned counsel submitted that in identical case being M/s
Mahadev Construction verus State of Rajasthan & Anr. (S.B.
Criminal Misc. (Pet.) No. 2179/2025), a co-ordinate Bench of this
Court vide order dated 17.03.2025 while relying upon the
judgment of Hon'ble Supreme Court of India in the case of
Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in
AIR 2003 SC 638, has directed the respondents to release the
vehicle in favour of the petitioner on interim custody.
3. Learned Public Prosecutor has opposed the instant Criminal
Misc. Petition.
4. There is no complete bar under law giving interim custody to
the rightful owner of the property. A proceeding under mining laws
can be instituted only upon filing of a complaint at the instance of
the authorized officer and the cognizance of offence can be taken
based upon the averments made in the complaint. There is a non
obstante clause to the effect that no Court shall take cognizance
under the MMDA or Rules made thereunder except upon a
complaint moved on behalf of the authorized officer. If any
proceeding is undertaken by the Mining Department, the process
shall be followed in accordance with the provision and rules made
thereunder. A Criminal Court is not supposed to keep detained a
vehicle seized by the Police for an offence of theft of mineral. After
effecting seizure by the Police under the force of BNSS, the
provision under Section 503 of Cr.P.C. attracts automatically and
the law relating to disposal of the property would govern the field.
5. Reliance can be placed upon the judgment rendered by
Hon'ble the Supreme Court in the case of Sunderbhai Ambalal
Desai (supra) and the judgment passed by the Coordinate Bench
[2025:RJ-JD:17965] (3 of 4) [CRLMP-2044/2025]
of this Court is similar circumstance in the case of Kishore Singh
Vs. State of Rajasthan: (2021) 0 Supreme (Raj.) 139.
6. The Mining Department may initiate the proceeding
independently and it would be free and at liberty to take all legal
actions if fine, penalty etc. are ascertained and whereafter needful
can be done in accordance with the procedure laid down therein.
As on date, the vehicle has not been confiscated, thus, a Criminal
Court is not supposed to keep a vehicle detained until the
confiscation proceeding is commenced and concluded by the
Mining Department in the manner of an agent of the Department
of Mining. If any order is passed by the Mining Department or
even if confiscation order is made, the vehicle can be taken back
by the Department but not by the Police. As on date, there are no
reasonable grounds to keep detained the vehicle for an indefinite
period or for the purpose of completion of procedural formalities.
Keeping detained a vehicle for an indefinite period certainly put
decay and deterioration to the property which would be a loss to
the asset of the Nation.
7. Till now notice has not been given by Mining Department to
the petitioner and taking into account the submission with regard
to non-obstante clause of the MMDA which stipulates taking
cognizance of offence only upon a complaint moved by
appropriate officer and so also considering that the Criminal Court
can handover interim custody of the property to its true owner, in
light of Sunderbhai Ambalal Desai (supra), the instant
Criminal Misc. Petition is allowed and this Court deems it just and
appropriate to release the vehicle in question in favour of the
petitioner on interim custody till conclusion of the trial provided he
[2025:RJ-JD:17965] (4 of 4) [CRLMP-2044/2025]
furnishes a Supurdaginama of Rs. 10,00,000/- and surety of like
amount to the satisfaction of the Court below.
(KULDEEP MATHUR),J
28-Dinesh/-
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