Court No. - 83
Case :- CRIMINAL REVISION No. - 1631 of 2021 Revisionist :- Vidya Nand Yadav Opposite Party :- State of U.P.
Counsel for Revisionist :- Akhilesh Singh,Shivam Yadav Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Shivam Yadav alongwith Mr. Akhilesh Singh, learned counsel for revisionist and learned A.G.A. for State.
2. Perused the record.
3. This criminal revision under Section 397/401 Cr.P.C. has been filed challenging order dated 07.07.2021 passed by Chief Judicial Magistrate, Kushinagar at Padrauna, on release application filed by revisionist under Section 21 (4) Mines and Minerals (Regulation and Development) Act 1957 as amended in 1963, P.S. Kotwali Padrauna, District- Kushinagar.
4. Record shows that on 18.04.2021, Truck No. U.P 52AT- 3108, which was loaded with gravel (Gitti) and belonging to revisionist was inbound for Kushinagar where Public Works Department was laying down a road. Aforesaid Truck was intercepted by Mines Officer, Kushinagar at Padrauna and was thereafter seized. Disputed truck alongwith Minor, Mineral was parked at Police Out Post, Ravindra Nagar, District-Kushinagar.
5. Revisionist, accordingly filed a Release Application dated 03.06.2021 under Section 21 (4) Mines and Minerals (Regulation and Development) Act 1957 as amended in 1963, before Chief Judicial Magistrate, Kushinagar at Padrauna regarding release of disputed vehicle. On the aforesaid release application, Chief Judicial Magistrate, Kushinagar at Padrauna passed an order dated 08.06.2021, whereby a report was called for from concerned police station. In compliance of above, Police Station, Kotwali, at Kushinagar, Padrauna submitted a report stating therein that disputed vehicle has been seized and has been parked at Police out post, Ravindra Nagar, District-Kushinagar. Subsequently, Mines Officer, Kushinagar at Padrauna submitted a report dated 10.06.2021 stating therein that District Magistrate, Kushinagar at Padrauna by his order dated 28.05.2021 has imposed penalty of Rs. 4,50,080/- in terms of Rule 74 of U.P. Minor Minerals Concession Rules 1963. Since aforesaid amount has not been deposited, no occasion arises for release of disputed truck. After receipt of police report as well as the report from District Mines Officer, Kushinagar at Padrauna, Chief Judicial Magistrate, Kushinagar at Padrauna, by means of order dated 07.07.2021 rejected aforesaid release application filed by revisionist.
6. Feeling aggrieved by order dated 07.07.2021, revisionist has now approached this Court by means of present criminal revision.
7. Mr. Shivam Yadav, learned counsel for revisionist contends that Chief Judicial Magistrate, Kushinagar at Padrauna has rejected the release application filed by revisionist on the ground that since pursuant to order dated 28.05.2021 passed by District Magistrate Kushinagar, whereby penalty to the tune of Rs. 4, 50,080/- has been imposed, has not been deposited by revisionist. As such, no occasion arises to release the disputed truck.
8. Learned counsel for revisionist then contends that the issue with regard to release of minor minerals vehicle, goods, plants and machinery, which have been seized pursuant to proceedings under the Mines and Minerals (Regulation and Development) Act 1957 as amended in 1963 and U.P. Minor Mineral (Concession) Rules 1963 has now been settled by a Division Bench of this Court in Rajendra Singh Vs. State of U.P. and others AIR 2015 Alld. 93, wherein Court has held as follows in paragraphs 15, 16, 17, 18 and 19:-
" 15.In our opinion, the Act of 1957 contains a complete procedure for dealing with the commission of the offences; penalty to be imposed, compounding of the offences and disposal of the seized goods.
16. 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.
17. 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;
18. It is the competent court only, which can direct the disposal of the seized goods including the mineral plant and machinery etc.
19. In our opinion, the District Magistrate has no power whatsoever to deal with the seized minerals, tool, vehicle, plant and machinery etc. used in illegal activities as per the Act of 1957. The District Magistrate is not competent to release seized minerals, plant, machinery, vehicles etc. used offence under Section 21 of the Act 1957.
9. On the aforesaid premise, learned counsel for revisionist contends that in case an order passed by District Magistrate in terms of U.P. Minor Mineral (Concession) Rules 1963, whereby penalty has been imposed is not complied with, same cannot be taken as a ground for refusing the release of seized vehicle in terms of Section 451 Cr.P.C. readwith Section 21 (4) Mines and Minerals (Regulation and Development) Act 1957 as amended in 1963, It is thus submitted that once District Magistrate has no jurisdiction to deal with the release of minor minerals, vehicles, plants and machinery then order passed under U.P. Minor Mineral (Concession) Rules 1963, whereby penalty has been imposed, cannot be taken as a ground to refuse the release of disputed vehicle.
10. Order passed by District Magistrate is not full and final adjudication of penalty proceeding as remedy of appeal and revision is also provided under the Rules. Moreover, Rule 75 of the Rules also provides for compounding.
11. The amount of penalty so imposed, if not deposited can be recovered as per procedure provided in U.P. Minor Mineral (Concession) Rules, 1963. Court below has failed to consider aforesaid distinguishing feature and has, therefore, erred in rejecting the release application filed by revisionist.
12. Learned counsel for revisionist has then invited attention of Court to the judgement rendered by Supreme Court in Sunder Bhai Amba Lal Desai Vs. State of
Gujarat, 2003 Supreme Court 223, wherein Court has expressed its anxiety in paragraphs 6, 7, 10 and 14 of the judgement. Placing reliance upon aforesaid, learned counsel for revisionist contends that court below should have allowed release application filed by revisionist by placing reliance upon any of the safeguards provided in aforesaid judgement.
13. On the aforesaid factual and legal premise, learned counsel for revisionist contends that impugned order passed by court below be set aside and revision be allowed.
14. Per contra, learned A.G.A has opposed this criminal revision. Learned A.G.A. contends that it is an undisputed fact that District Magistrate, Kushinagar, has passed an order dated 28.05.2021 against revisionist, whereby penalty to the tune of Rs. 4,50,080/- has been imposed against revisionist. It is also an admitted fact that aforesaid amount has not yet been deposited by revisionist. In view of aforesaid, no illegality has been committed by Court below in rejecting release application filed by revisionist.
15. Having heard learned counsel for revisionist, learned A.G.A. for State and upon perusal of record, this Court finds that Chief Judicial Magistrate, Kushinagar at Padrauna, has refused to release the disputed vehicle only on the ground that a sum of Rs. 4,50,080/-, which has been imposed upon revisionist as penalty, vide order dated 28.05.2021 passed by District Magistrate, Padrauna, has not been deposited by revisionist.
16. The issue that will arise for consideration is ; what will be the situation where concerned court refuses to release the disputed vehicle on account of pendency of confiscation proceedings or on failure to deposit the penalty imposed in confiscation proceedings under U.P. Minor Minerals (Concession) Rules 1963.
17 Division Bench of this Court in Rajendra Singh (Supra) has considered aforesaid situation. It has been clearly held by Division Bench in paragraph 19 of the judgement that District Magistrate has no power whatsoever to deal with seized minerals, tool, vehicle, plant and machinery etc. used in illegal activity as per Mines and Minerals (Regulation and Development) Act 1957.
18. It is thus explicitly clear that proceedings for release in terms of Section 21 (4) and Section 21 (4A) of Mines and Minerals (Regulation and Development) Act 1957 read with Section 451 Cr. P. C. are independent proceedings. Court, while, considering release application cannot consider the pendency of confiscation proceedings or imposition of penalty on confiscated minor mineral, while, deciding release application. Furthermore, confiscation proceedings under Rules 70 of U.P. Minor Minerals (Concession) Rules 1963 are subject to compounding as provided in Rule 75 of aforesaid Rules. Moreover an order passed by District Magistrate is subject to appeal and revision. Therefore, what follows from above is that an order passed by District Magistrate, in exercise of jurisdiction under Rule 70 of above noted Rules is not full and final determination of the proceedings.
19. In the aforesaid context, this Court has to consider as to whether release of disputed vehicle claimed by revisionist should be allowed or not. Division Bench judgement of this Court in Rajendra Singh (supra) has categorically held that District Magistrate has no power to deal with minerals, tool, vehicle, plant and machinery etc. Consequently, proceedings for release of above are independent irrespective of the pendency of penalty proceedings or any order passed therein. As such, release of disputed vehicle prayed for by revisionist cannot be denied on account of non-compliance of an order of penalty passed by District Magistrate imposing penalty in terms of U.P. Minor Mineral (Concession) Rules 1963. In case an order passed in terms of Rule 70/74 of U.P. Minor Minerals (Concession) Rules is not complied with, then consequential proceedings provided under aforesaid Rules on account of non-compliance can be initiated against the person against whom an order referred to above has been passed. In view of above, this Court is of the view that reasoning assigned by Chief Judicial Magistrate, Kushinagar at Padrauna for refusing to release the vehicle in question is manifestly illegal and erroneous.
20. There is another aspect of the matter. Apex Court in Sunder Bhai Ambala Desai Vs., State of Gujarat, 2003 (46) S.C. 223, upon consideration of various provisions of the Code has ultimately laid down that seized goods should be released as early as possible, until and unless there withholding is very essential. Following has been observed in paragraphs 6, 7, 10, 14, 15, 16 and 17 of the aforesaid judgement, which are, accordingly, reproduced herein-below:
"6. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation.
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [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 it 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 inquiry 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 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."
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.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.
10. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs or such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition.
14. 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.
15. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.
16. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing.
17. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same."
21. In the opinion of the Court, Chief Judicial Magistrate, Kushinar at Padrauna would have been prudent, if he had allowed the release application by placing reliance upon aforesaid judgement.
22. For the facts and reasons noted above, this Court comes to the conclusion that order impugned in present criminal revision is manifestly illegal. Court below has committed a jurisdictional error in refusing release of disputed vehicle. As such, impugned order is unsustainable in law and fact.
23. Accordingly, present criminal revision succeeds and is allowed. Order impugned dated 07.07.2021 passed by Chief Judicial Magistrate, Kushinagar at Padrauna is hereby quashed. Matter is remitted to Chief Judicial Magistrate, Kushinagar at Padrauna to decide the release application filed by revisionist afresh in the light of observations made herein above. Appropriate order shall be passed by Chief Judicial Magistrate, Kushinagar at Padrauna within a period of one month from the date of production of a certified copy/computer generated copy of this order which shall be filed by revisionist before court below by means of a Notary Affidavit.
Order Date :- 20.9.2021 YK