Reserved
Court No. - 53
Case :- MATTERS UNDER ARTICLE 227 No. - 7642 of 2017 Petitioner :- Vipin Singh Respondent :- State Of U.P.
Counsel for Petitioner :- Jitendra Prasad Mishra Counsel for Respondent :- G.A.
Hon'ble J.J. Munir,J.
1. This petition under Article 227 of the Constitution is directed against an order of Sri Bhupendra Sahai, the then Sessions Judge, Banda, dated 09.10.2017 dismissing the Criminal Revision no.187 of 2017 and affirming an order dated 19.08.2017 passed by the Second Additional Chief Judicial Magistrate, Banda in Case Crime no.385 of 2017, under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the 'Act'), Police Station Kotwali, District Banda, rejecting an application by the petitioner seeking release of his Tata Hitachi Ex 200 LC S200-52397 Hydraulic Excavator with GP Bucket and kit. The petitioner has come up with a prayer to set aside the orders aforesaid, reverse the same and allow his application for release.
2. The petitioner is the proprietor of M/s. Har Har Mahadev Construction, Rath, District Hamirpur (U.P.) and Tata Hitachi Ex 200 LC S200– 52397 Hydraulic Excavator (HR38L-2737(HTO)) that is purchased by and in the name of said firm. It appears that a First Information Report was lodged by the Mines Officer, Banda, one Ram Padarath Singh against a certain Suresh, another Mohd. Ishtekhar, Lallu, Pokland Operators and one Deepak, JCB Operator, that has come to be registered as Case Crime no.385 of 2017, under Section 4/21 of the Act, Police Station Kotwali Nagar, District Banda. In connection with the said FIR, the petitioner's Pokland Machine has been seized by the police as case property. The allegation is that the said Pokland Machine was involved in illegal excavation of sand and is, therefore, case property in the case crime under reference. The petitioner who is the owner of the Pokland Machine made an application seeking release on 10.08.2017 before the learned Additional Chief Judicial Magistrate-II, Banda, alleging that the petitioner's machine has been wrongfully seized in connection with the crime; that it was never involved in any illegal mining operation; that it was engaged in civil construction work of road building; that the petitioner's operator, Lallu has been granted bail at the Police Station; that the petitioner would suffer irreparable loss in case the machine is parked idle at the Police Station; and, that the petitioner who is the owner of the machine is entitled to release of the same.
3. The learned Magistrate by his order impugned dated 19.08.2017, rejected the said application holding inter alia that the Pokland Machine was caught on the spot, while engaged in an illegal mining operation; and, that the report of the District Mining Officer dated 14.08.2017 shows that Case Crime no.385 of 2017 has been registered on a First Information Report, involving the petitioner's Pokland Machine, under Section 4/21 of the Act. The Magistrate has remarked that the petitioner has not produced any mining permit, and, therefore, there is no good reason to release the petitioner's machine.
4. The petitioner aggrieved by the Magistrate's refusal to release the Pokland Machine, went up in revision to the learned Sessions Judge, who by his order dated 09.10.2017 dismissed the revision, and, upheld the Magistrate, with a quaint reasoning that once the petitioner says that his Machine was not involved in illegal mining but in road building work, it would be expected of the petitioner that he would have a valid mining licence, which he has not filed on record. The learned Sessions Judge has further recorded a finding, that the petitioner has failed to prove, that the Pokland Machine was employed in what work, at the place of occurrence. It appears that before the Sessions Judge, it was also argued that the crime itself was not validly registered, inasmuch as, a case under Section 4/21 of the Act cannot be taken cognizance of on a police report, but on the basis of a complaint, made by a competent officer authorized by the Central Government, or the State Government, or by those Governments, as envisaged under Section 22 of the Act. The said plea, the learned Sessions Judge has discarded saying that the issue can be raised at the time when the Magistrate takes cognizance. In saying so, the learned Sessions Judge may not be wrong. But, about everything else, he is utterly wrong.
5. The beacon light authority on the issue about release of vehicles, is the decision of the Hon'ble Supreme Court in Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283. In the said decision of their Lordships, the issue of release of vehicles, seized in connection with crimes, and, parked at Police Stations, has been dealt with thus:
“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.
18. 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 the 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 the 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.”
6. The Pokland Machine is not a motor vehicle, and, its registration is not required to be done under the Motor Vehicles Act. Nevertheless, it is an earth moving machine, that works at construction sites. In case it is made to stand idle at a police station pending decision of a criminal case, it would deteriorate to scrap or would be seriously impaired in its operational efficiency. On this consideration, the principle in Sunderbhai Ambalal Desai (supra) would have all application to this kind of a machine. The principle laid down by their Lordship is unqualified, and, is to be implemented untrammelled by any inhibiting considerations, particularly, irrelevant considerations. This Court finds that the learned Sessions Judge has gone absolutely askew in his reasoning, when he says that the petitioner has not produced a mining licence, whereas the case of the petitioner is that, his machine was never engaged in mining operations; rather, it was engaged in road building operations. Where then, did the question of the petitioner producing a mining licence arise, is beyond reasonable understanding and good logic. The other finding that the petitioner has failed to prove, that his machine was not involved in mining operations, or what was the precise activity that it was involved in, at the place of occurrence, is an issue that is not at all relevant to be considered at the stage of release.
7. There is no quarrel about the fact that the petitioner is the owner of the machine. A perusal of the Sales Invoice-cum-Despatch Memo, issued by the Tata Hitachi Construction Machinery Company Limited, dated 20.01.2015, shows the consignee to be M/s. Har Har Mahadev Construction, Rath, Hamirpur (U.P.). The sale invoice-cum- despatch dated 20.01.2015, shows that the petitioner is the owner of the machine. The Pokland Machine under reference has been purchased through funds raised by way of loan from the HDFC Bank Ltd., and, the petitioner is paying monthly installments, towards liquidation of that liability. The fact that the machine is parked at the Police Station, owing to the stand of the State resisting release before the courts below, on the one hand is leading to progressive deterioration of the machine, and, on the other depriving the petitioner of means to raise funds, that are to be employed in repayment of the bank finance. This Court would think that a Pokland Machine that is essentially purchased for specialized building or earth moving operations – all commercial activity, is employed to earn profit, out of the proceeds of which normally, the purchaser repays his installments, in case of a bank financed purchase, as the present one.
8. Once the law is against idling of vehicles at Police Stations, that deteriorate there, either unused, and, sometimes even misused, there was absolutely no justification for the courts below, to have refused release of the Pokland Machine in question, to which the principle against idle parking of motor vehicles can and must be extended to motor driven earth moving machine, like the Pokland Machine, even though, it is not a motor vehicle. The extension of the principle is based on the sound and wider consideration that where a rule of law, is devised to curtail a particular mischief, or to achieve a certain purpose, it should receive extended application to all such subjects, where identical mischief is required to be curtailed, or an identical object required to be achieved.
9. In the result, this petition succeeds and is allowed.
10. The impugned order dated 09.10.2017 passed by the Sessions Judge, Banda in Criminal Revision no.187 of 2017 and the impugned order dated 19.08.2017 passed by the Second Additional Chief Judicial Magistrate, Banda in Case Crime no.385 of 2017, under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957, Police Station Kotwali City, District Banda, are hereby set aside and reversed. The release application filed by the petitioner dated 10.08.2017 before the Magistrate stands allowed.
11. It is ordered that the Pokland Machine bearing model no. EX200 LC Super Machine No. S.200-52387, shall be released in favour of the petitioner, on his furnishing a personal bond in the sum of Rs.5 lakh, along with an undertaking that he will not transfer the Pokland Machine in favour any third party, dismantle, destroy, or alter its facade, or colour in any manner, and, shall produce the same, if and when, required by the court.
Order Date :- 30.10.2018 Anoop