Gujarat High Court
Ajaybhai Kanubhai Vanjhara vs State Of Gujarat on 13 June, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/645/2024 ORDER DATED: 13/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MUDDAMAL) NO. 645 of
2024
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AJAYBHAI KANUBHAI VANJHARA
Versus
STATE OF GUJARAT
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Appearance:
MUKUNDKUMAR A THAKKAR(9034) for the Applicant(s) No. 1
MS KRINA CALLA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/06/2024
ORAL ORDER
1. RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent - State.
2. The present application filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'Cr.P.C.') challenges the order of rejection dated 29.03.2024 passed by the learned 6th Additional District and Sessions Judge, Ahmedabad [Rural] at Navrangpura in Criminal Miscellaneous Application No.4251 of 2023 whereby the applicant had preferred the application under Section 451 of the Cr.P.C. for release of the Excavator Machine being SANY company's bearing Model Page 1 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined No.SY210C-9, Serial No.(22SY210C000349) with Standard Machine and Tools in connection with First Information Report bearing No.11192064230236 of 2023 registered with Dholka Rural Police Station, Ahmedabad Rural.
3. The FIR being No.11192064230236 of 2023 registered with Dholka Rural Police Station, Ahmedabad Rural is under Sections 379 and 114 of the Indian Penal Code (IPC), under Sections 4 and 21 of the Mines and Minerals [Development and Regulation] Act, 1957 (Amended 2015) and under Rule No.3 and 21 of the Gujarat Mineral [Prevention of Illegal Mining Transportation and Storage] Rules, 2017.
4. The case of the prosecution is that on 21.06.2023, the office of the complainant received a letter with an information from the Additional Director, Appeal and Flying Squad that the Excavator Machine was used for illegal extraction of sand from Survey No.878 of Moje Saroda, Taluka Dholka, District Ahmedabad and the machine has extracted minerals to the tune of 4,57,440.83 metric tonnes worth Rs.15,47,97,977/-. The Page 2 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined alleged extraction in connivance was without any permission.
5. Learned Advocate for the applicant Mr. Mukundkumar A. Thakkar submitted that the muddamal Excavator Machine as per the panchnama suggests that the same was given to one Tejabhai Shankarbhai Vanjara who in turn had given it to Ramjibhai Thobanbhai Rabari. The present applicant is merely the owner of the machine who had only rented it and the coaccused had hired the said Machine. It is further submitted that the present applicant was not having any knowledge of the illegal use of the vehicle much less carrying out any excavation of sand which becomes an offence under the Mines and Minerals Act. It is further submitted that the FIR which could be registered before the learned Judicial Magistrate would only be under IPC, while a private complaint has to be lodged before the learned Sessions Court. As per Section 22 of the Mines and Minerals Act, 1957, the cognizance of the offence can be taken only on a complaint in writing by a person authorized on behalf Page 3 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined of the Central or State Government and such cognizance could be taken only by the said Court which is a designated Court of Sessions. It is further submitted that under the Mines and Minerals Act, if a person authorized under Section 22 comes to a decision of compounding the offence, it becomes tenable in terms of the provision of Section 23(A) and then that proceedings would come to an end.
6. It is further submitted that the FIR directly cannot be registered before the Police in view of the decision of the Hon'ble Apex Court in the case of Jayant vs. The State of Madhya Pradesh reported in 2021 (2) SCC
670. It is also submitted that the seizure of the Excavator Machine thus becomes illegal. Referring to the Tax Invoice dated 17.12.2021, it is submitted that the same was purchased by the present applicant at the cost of Rs.59,90,354/- which was SANY Hydraulic Excavation Model. It is further submitted that the FIR and charge-sheet also suggests that the applicant himself was not involved in the excavation of sand.
7. It is also submitted that the offences under the Page 4 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined MMRD Act would only be attracted at the stage of cognizance of offences and not prior and submitted that the decision in the case of Jayant (supra) does not need consideration and therefore, urged this Court to consider the application.
8. Learned Additional Public Prosecutor Ms. Krina P. Calla submitted that the allegations are of criminal conspiracy of the accused and the intention of the accused could be decided only after a full fledged trial and submitted that it was through the Excavator Machine, the loss has been caused in crores of rupees to the State. It is further submitted that the machine should not be enlarged as it would be further used for other illegal activities and therefore, urged to reject this application.
9. In the case of Jayant (supra), it has been held as under :-
"13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder visàvis the Page 5 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under :
i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In charge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted;
ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/ summons for the offences under the MMDR Act and Rules made thereunder;
iii) for commission of the offence under the IPC, Page 6 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and
iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned Incharge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned Incharge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may Page 7 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.
v) in a case where the violator is permitted to compound the offences on payment of penalty as per subsection1 of Section 23A, considering subsection 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under subsection 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and Page 8 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined the same shall be proceeded with further."
10. Having heard learned Advocates for the parties and on perusing the records of the case, it transpires that the FIR registered does not suggest of any cognizance taken by the learned Magistrate concerned. The investigation was conducted on the basis of the information received. The FIR does not disclose that it has been filed on the direction of the learned Magistrate. The procedure as laid down in the case of Jayant (supra) appears to have not been followed. The evidence of ownership of the Excavator Machine is in the favour of the applicant, which is supported by the Tax Invoice. The chargesheet states that the muddamal Excavator Machine was given to one Tejabhai Shankarbhai Vanjara and in turn who had given it to Ramjibhai Thobanbhai Rabari for the excavation of sand and thus, accordingly, the complaint came to be filed.
11. In the case of Sundarbhai Ambalal Desai v. State of Gujarat reported in 2002 (10) SCC 283, the Hon'ble Apex Court dealt with the provision of Section 451 of Page 9 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined Cr.P.C. and has stated in Paragraphs 5 and 7 as under :-
"5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same.
7. 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."
12. Here, the 'muddamal' in question is an Excavator Machine. The said machine is lying unused as it has Page 10 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined been seized and if it is kept for a long period, it would loose its value with the passage of time, get rusted and ultimately become junk. The machine if it lies idle before the Police Station without being used, it would loose its value. Further, the applicant would also loose his earnings. The intention under Section 451 of Cr.P.C. is to make available the machine during the trial. Thus, the Excavator Machine can be handed over to the applicant, on imposition of certain terms and conditions so that the object under Section 451 of Cr.P.C. would be addressed.
13. In the result, the present application is allowed. The authority concerned is directed to release the Excavator Machine Excavator Machine being SANY company's bearing Model No.SY210C-9, Serial No. (22SY210C000349) with Standard Machine and Tools of the applicant in connection with First Information Report bearing No.11192064230236 of 2023 registered with Dholka Rural Police Station, Ahmedabad Rural, on the terms and conditions that the applicant :-
(i) shall furnish by way of security, a bond as per the Page 11 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024 NEUTRAL CITATION R/CR.RA/645/2024 ORDER DATED: 13/06/2024 undefined value noted in the Panchnama;
(ii) shall file an Undertaking on oath before the concerned trial Court that prior to alienation or transfer of the Machine in any mode or manner, prior permission of the concerned trial Court shall be taken;
(iii) shall also file an Undertaking on oath to produce the Machine as and when directed by the trial Court.
14. Rule made absolute to the aforesaid extent. Direct Service is permitted.
(GITA GOPI,J) MISHRA AMIT V. Page 12 of 12 Downloaded on : Fri Jun 14 22:43:37 IST 2024