Court No. - 45
Case :- MATTERS UNDER ARTICLE 227 No. - 376 of 2018 Petitioner :- Abid Khan Respondent :- State Of U.P.
Counsel for Petitioner :- Mr Jitendra Prasad Mishra Counsel for Respondent :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
This petition has been filed for setting aside the impugned judgement and order dated 6.9.2017 passed by Sessions Judge, Banda in criminal revision no. 171 of 2017 (Abid Khan Vs. State of U.P. and another) as well as order dated 5.8.2017 passed by Additional Chief Judicial Magistrate-II, Banda in case crime no. 100 of 2017 under section 4/21 of Mines and Minerals Act, Police Station Badausa, District Banda.
The argument of the learned counsel for petitioner is that his machine was not involved in any illegal excavation .It was taken in possession at the time of alleged incident. It is standing in police station from 28.6.2017 and applicant is paying installment of loan of machine taken from bank. He has submitted that his Hydraulic Excavator will become useless if it is not released in his favour.The court belows have passed absolutely illegal order rejecting his prayer for release of his vehicle.
Learned counsel for the applicant has relied upon case of Apex court in Sunder Bhai Ambalal Deasi Vs. State of Gujrat, 2002 Law Suit SC, 1346 wherein Apex court has held that the vehicle kept in police station will become junk and therefore such vehicle should be released in favour of person from whom they are seized. The Magistrate Should take appropriate bond and guarantee as well as security for rerun of such vehicle at any point of time.
Excavation machine of the applicant is a moving machine like vehcile and it cannot be kept indefinitely in police station.
Learned A.G.A. has submitted that the vehicle/machine of the applicant has been favoured to be involved in illegal mining and therefore it should not be released in his favour.
After considering argument of the parties and material on record ,court is of the view that orders passed by the court below are not in accordance to law of Apex court in case Sunderbhai Ambalal Desai(Supra) therefore orders are hereby quashed.
Learned Magistrate concern is directed to release machine of the applicant after taking appropriate bonds and security as well as guarantees for return of vehicle if required by the court and release the vehicle of the applicant after he complies with aforesaid formalities forthwith.
The petition is finally disposed of.
Order Date :- 28.11.2018 Atul kr. sri.