Court No. - 44
Case :- CRIMINAL REVISION No. - 1357 of 2018 Revisionist :- Rudal Yadav Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Shashi Kant Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Shashi Kant Dwivedi, learned counsel for the revisionist and the learned AGA for the State.
This criminal revision has been filed challenging the order dated 12.04.2018 passed by the Chief Judicial Magistrate, Court No. 17, Deoria in Misc. Case No. NIL/2018 (State Vs. Unknown), under Rule 3, 70 of the U.P. Minor Mineral (Concession) Rules, 1963. P.S. Kotwali, District-Deoria.
From the record, it appears that the vehicle in dispute that is a tractor-trolley was seized by the Mines Inspector on 11.01.2018 on the ground that the disputed vehicles was carrying a mineral product which was mined illegally and was also being illegally transported. Hence the same was confiscation in terms of Rule 3 and 70 of the Rules referred to above. Being aggrieved by the confiscation of the tractor-trolley, the revisionist filed an application dated 05.02.2018 in the Court of CJM, Court No. 17, Deoria seeking release of his vehicle. On this application, the CJM vide order dated 05.02.2018 called for a report from the concerned Police Station. Pursuant to the said order the Mines Inspector, Deoria submitted the report dated 06.03.2018 before the CJM, Deoria. Upon receipt of the report dated 06.03.2018, the CJM, Deoria by means of the impugned order dated 12.04.2018 disposed of the release application filed by the revisionist by observing that the Court has no jurisdiction in the matter as the same vests with other competent court. Being aggrieved by the order dated 12.04.2018 the revisionist has now come up before this Court by means of the present criminal revision.
Learned counsel for the revisionist has invited the attention of the court to the Division Bench Judgment of this Court in the case of Rajendra Singh Vs. State of U.P. reported in Laws (ALL) 2015-3-105, wherein the Division Bench has categorically held that the District Magistrate has no power whatsoever to deal with the seized minerals, vehicle, plant and machinery etc. used in illegal activities as per the Mines and Minerals (Regulation and Development) Act, 1957. Paragraphs 15, 16, 23, 24 and 25 of the aforesaid judgment are relevant for the issue in hand and, therefore, the same are being reproduced hereinunder:
"15. The Act contemplates compounding of an offence by authorized officer only, which in the facts of the case, would be the District Magistrate. But so far as the confiscation and disposal of the minerals, tool, vehicle etc. is concerned, the same is controlled by Section 21 (4) read with Section 21 (4A) of the Act 1957.
16. The procedure contemplated in respect of minerals, tool, vehicles involved in an offence under Section 21 (4) and Section 21 (4A) is:-
(a) the mineral, tool, vehicle etc. have to be seized by the officer/authority empowered for the purpose;
(b) The mineral, tool, vehicle etc. have to be confiscated under an order of the Court, competent to take cognizance of the offence under Sub Section
(1) of Section 21;
(c) The mineral, tool, vehicle etc. have to be disposed of in accordance with the direction of such Court;
23. We also find that under the Act 1957 no power has been conferred upon the District Magistrate or for that purpose on any other authority to dispose of the seized good except upon the Court under Section 21 (4A).
We may record that in the facts of the case there is no finding by the District Magistrate that the sand was raised and transported by a person legally entitles to do so. There can be no storage of minor-mineral at a place different from the mine without it being raised and thereafter being transported to the place where it is stored. Therefore, in respect of stored minor-minerals unless it is specifically established by material evidence that the minor-mineral was raised and thereafter transported by a person legally entitles to do so to the place where it is stored, the same, i.e., sand has to be seized under Section 21 (4) and, thereafter confiscated and disposed of as per Section 21 (4A) of the Act 1957.
24. The judgment in the case of Chandar Bhushan Misra is on the facts of that case. The facts of the case in hand are much different to those of Chandar Bhushan Misra. It has been repeatedly held by the Hon'ble Supreme Court that a little difference in the facts or additional facts may make a lot of difference in the precedential value of a judgment (Reference Bhavnagar University Vs. Palitna Sugar Mills (P) Ltd. Ors., 2003 2 SCC 111, which has recently been followed in the case of Rajveer Singh Vs. Chaudhary Devi Lal, 2008 AIR (SCW) 5817.
25. Accordingly, we hold that the release of the mineral (sand) in the facts of the case as directed by the District Magistrate, itself is without authority. The seized minerals have to be placed before the court concerned for confiscation and disposal in view of Section (4A) of the Act 1957. "
In view of the above, there is no doubt that the power to released the seized minerals, plant, machinery, vehicle etc. vests with the Court.
Learned counsel for the applicants next submitted that a learned Single Judge of this Court in the case of Smt. Sudha Kesarwani Vs. State of U.P. and others reported in 2011(1) ADJ 498 has considered the provision of the U.P. Minor Minerals (Concession) Rules, 1963 and has held that the authority to release the vehicle is the Magistrate, in view of Section 21 (4A) of the Mines and Minerals (Regulation and Development) Act, 1957 as well as under Sections 457 of Cr.P.C. Paragraphs 3, 4, 5 and 6 of the aforesaid judgment are relevant for the controversy in hand and the same are quoted hereinbelow:
"3. In the counter affidavit, it has been averred that the petitioner has violated Rule 75 of the Rules and Section 23A of the Act and the District Magistrate is authorized to compound the offence.
Section 22 of the Act provides:
"22. Congnizance of Offences:- No Court shall take cognizance of any offence punishable under this act, or any Rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government."
Section 21 of the Act provides for penalties and Section 23A relates to compounding of offences under the act, or any Rule made thereunder.
Section 21 (4a) of the Act provides:
"any mineral, tool, equipment, vehicle or any other thing seized under sub-section 4, shall be liable to be confiscated by an order of the Court competent to take cognizance of the offence under sub Section -1 and shall be disposed of in accordance with the directions of such Court."
Section 21 (4a) is specific on the point that a competent Court i.e. Magistrate is competent to confiscate the vehicle and is also competent to dispose it of in accordance with directions given by it. The District Magistrate or the Collector or any other authority has not been given power to confiscate the vehicle either under the Act, or in the rules. This power is reserved for the Court, which is a competent to try the case after a complaint in respect of which same has been filed by the District Magistrate .
4. In this view of the matter, it cannot be said that the Magistrate has no jurisdiction to release the vehicle pending trial or even before the trial as the complaint has not yet been filed by the competent authority. The District Magistrate or Judicial Magistrate cannot compel the petitioner to compound the case against her will. If the petitioner is not ready to compound the case, she cannot be compelled to do so. Since the complaint has not yet been filed even after a period of nine months from the incident, a vehicle lying at the police station is likely to become junk, and it was desirable for the Magistrate to pass vehicle lying at the police station is likely to become junk, and it was desirable for the Magistrate to pass an order for release in favour of its registered owner subject to certain conditions, which he might impose.
5. Even under Sectioin 457 Cr.P.C. Learned Magistrate had the jurisdiction to release the truck in favour of its registered owner since there is no other provisions in either the Act or the Rules for release of the vehicle.
6. In view of the aforesaid, the order passed by the learned Magistrate is void-ab-initio. Learned Magistrate has failed to exercise the jurisdiction vested in it.
Under normal circumstances, a proper remedy for the petitioner was to file a revision but in the instant case, revision was not filed and the same has become time barred and also since the impugned order is void-ab- initio, and since the impugned order is patently erroneous and illegal, there are sufficient grounds to interfere in the writ jurisdiction.
Learned Magistrate has ample authority to release the vehicle under Section 21 (4a) of the Act as well as Section 457 Cr.P.C.
The writ petition is allowed. Impugned order dated 12.02.2010 is quashed. Learned Magistrate is directed to decide the release application afresh within a period of one week from the date on which a certified copy of this order is produced before him."
In light of the aforesaid judgements, it is urged by the learned counsel for the revisionist that the impugned order passed by the Magistrate is, therefore, manifestly illegal and has resulted in miscarriage of justice. Learned AGA appearing for the State could not dispute the applicability of the aforesaid two judgements in the facts and circumstances of the case. No such material was placed before this Court to take a contrary view as has been taken by a learned Single Judge of this Court in the case of Smt. Sudha Kesarwani (Supra).
Having considered the rival submissions raised by the parties as well as the law on the subject as crystallized in the above quoted two judgements of this Court, this Court is of the considered opinion that the Magistrate has erred in refusing to entertain the application on the ground that he has no jurisdiction to deal with the subject matter. In light of the discussions made herein above, it is explicitly clear that it is only the Court of competent jurisdiction which has the power to release the vehicle. The Magistrate is therefore the competent Court to release the vehicle as held by the Division Bench Judgement (supra) referred to above.
Consequently the present revision succeeds and is allowed. The impugned order dated 12.04.2018 passed by the CJM, Deoria is hereby quashed. The matter is remanded to the C.J.M., Deoria, who is directed to decide the release application afresh within a period of one month from the date of presentation of a certified copy of this Order.
Order Date :- 27.4.2018 S. Thakur