Biva Jha vs The State Of Jharkhand on 19 December, 2013

[Cites 5, Cited by 4]

Jharkhand High Court

Biva Jha vs The State Of Jharkhand on 19 December, 2013

This application is directed against the order dated 30.9.2013 passed by 1st Additional Sessions Judge, Saraikella in Cr. Revision No. 79 of 2013, affirming the order dated 11.9.2013 passed by S.D.J.M. in Misc. Case No. 2 of 2013 (Kandra P.S. Case No. 32 of 2013), whereby and whereunder prayer for release of Pay-loader bearing no. JH 05-AT - 0640 was rejected.

It is the case of the prosecution that on receiving secret information that some persons have indulged themselves in doing business of coal clandestinely, a raid was laid behind the hotel of Santosh Majhi, where 1600 MT of coal was found stored. There six trucks as well as one Pay- loader, which is the subject matter of this case, were found standing over there. The coal was suspected to be the stolen one and at the same time, it was also suspected that some persons have indulged themselves in trading of coal illegally and for that a case was registered for commission of the offence under Section 414 of Indian Penal Code as well as for contravention of the provision of the Mines and Minerals (Development and Regulation) Act (for short MMDR Act) and Jharkhand Mineral Dealer's Rules, 2007. The trucks as well as Pay-loader were seized.

Upon seizure of Pay-loader, an application was filed for its release before the court below which prayer was rejected on the premise that the confiscation proceeding for confiscating the vehicle has already been initiated. That order was challenged before the revisional court but the revisional court by assigning the same reason also rejected the revision application.

Being aggrieved with this order, this application has been filed. Mr. Anil Kumar, learned counsel appearing for the petitioner, submits that though sub section (4 & 4A) of Section 21 of the MMDR Act do prescribe for confiscation of any mineral, tool, equipment, vehicle etc. involved in the commission of offences under the MMDR Act but no bar has been laid down under any of the provisions of the MMDR Act like that of the Forest Act to the effect that upon initiation of a confiscation proceeding vehicle, equipment, tool be not released.

Further, it was submitted that on going through the FIR it would never appears that any case is made out under the MMDR Act, as it has never been the case of the prosecution that the said coal, which was found dumped at a place, had been brought there after extracting it illegally and therefor when the police submitted charge-sheet against the other accused persons, it submitted charge-sheet only under Section 414 of Indian Penal Code.

Under the situation, the court below committed illegality in refusing to release the Pay-loader in favour of the petitioner in view of the decision rendered in the cases of Sunderbhai Ambalal Desai Vs. State of Gujarat [(2002) 10 SCC 283] and General Insurance Council & Ors. Vs. State of A.P. & Ors. [2010 (3) JCR 92 (SC)] particularly when the vehicle had been hypotheticated to the financial institution.

Having heard learned counsel for the parties and on perusal of the records, it does appear that a case was lodged on the allegation that 1600 MT of coal was found stored at a place for doing business illegally. On such allegation, case was registered under Section 414 of Indian Penal Code and also for contravention of the provision of MMDR Act as well as Jharkhand Mineral Dealer's Rules. However, it has been submitted on behalf of the petitioner that the police in course of investigation did not find the case either under the MMDR Act or under the Jharkhand Mineral Dealer's Rules rather it did find the case to be true under Section 414 of Indian Penal Code and thereby the police has submitted charge-sheet against the other accused persons only under Section 414 of Indian Penal Code.

At this stage, I need not to go into the question whether the offence is made out under the MMDR Act or not? Rather accepting the case as it has been made out in the FIR, it is to be considered as to whether the courts below were justified in rejecting the prayer for release. There appears to be provision of confiscation of vehicle or other materials if it gets involved in the offence. Said provisions are there in sub-section (4 and 4A) of Section 21 of the MMDR Act which reads as follows:-

"21.Penalties.-- xxx xxx xxx (4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.

(4A) Any mineral, took, 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."

In the Act, no such provision seems to be there which prevents the court from making the order for releasing the vehicle seized in a case for contravention of the MMDR Act and thereby it was not proper on the part of the court to refuse the prayer for release of the vehicle in favour of the petitioner on the ground that the confiscation proceeding has been initiated. The vehicle, which has been seized, is said to have been hypotheticated to a financial institution. In that event, it would not be proper and appropriate to allow the vehicle to be kept in the police custody.

Accordingly, let Pay-loader bearing registration No. JH 05-AT-0640 be released in favour of the petitioner on furnishing security bond of Rs. 25,00,000/- (twenty five lakhs) with one surety of the like amount to the satisfaction of the S.D.J.M., Seraikella on giving undertaking that whenever it shall be required by the court, the same would be produced.

In the result, this application is allowed.

AKT                                                   (R. R. Prasad, J.)

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Jharkhand High Court