Bombay High Court
State Of Mah. Thr. Tahsildar Mohadi ... vs Pankaj S/O Gangadhar Gawande And ... on 18 April, 2022
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
(1) 33.wp.219.2022.wp.220.2022 & wp.221.2022(common ord)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.219 OF 2022
State of Maharashtra, Through Tahsildar, Mohadi, District Bhandara
Vs.
Pankaj s/o Gangadhar Gawande and another
AND
CRIMINAL WRIT PETITION NO.220 OF 2022
State of Maharashtra, Through Tahsildar, Mohadi, District Bhandara
Vs.
Rohit s/o Ashok Sathwane and another
AND
CRIMINAL WRIT PETITION NO.221 OF 2022
State of Maharashtra, Through Tahsildar, Mohadi, District Bhandara
Vs.
Vilas s/o Rupchand Nerkar and another
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S. M. Ukey, APP for petitioner in all petitions.
Mr. V. B. Gawali, Advocate for respondent no.1 in all petitions.
Ms. T. Udeshi, APP for respondent no.2 in all petitions.
CORAM : AVINASH G. GHAROTE, J.
DATE : 18/04/2022 Heard Mr. Ukey, learned APP for the petitioner and Mr. Gawali, learned counsel for the respondent no.1 in all petitions.
2. All these petitions raise a common issue and therefore, are decided by common order. For the sake of convenience, the facts in Writ Petition No.219 of 2022 are being considered.
(2) 33.wp.219.2022.wp.220.2022 & wp.221.2022(common ord)
3. The vehicle of the petitioner bearing No. MH-40/BL-1806, was seized on 03.12.2021 by the Tahsildar, Mohadi, District Bhandara, as it was found to be carrying sand without a legal transit pass. The seizure was under Section 48 (7) of the Maharashtra Land Revenue Code, 1966 (hereinafter referred as "the MLR Code") in pursuance to which, the Tahsildar Mohadi, imposed a penalty of Rs.90,500/- upon the respondent no.1, by his order dated 13.12.2021, for illegal transportation of sand, which obviously was in exercise of the powers as conferred upon him under Section 48 (7) of the MLR Code.
4. The respondent no.1, filed Misc. Criminal Application No.197 of 2021 for release of the said vehicle by invoking the jurisdiction of the learned Magistrate under S. 457 of the Code of Criminal Procedure, 1973 (hereinafter referred as "the Cr.P.C")(Page 22). The learned Magistrate by the order dated 27.12.2021 (Page
30) directed the release of the said vehicle in favour of the respondent no.1 upon terms as contained therein.
5. The petitioner preferred the revision bearing Criminal Revision No.6 of 2022 before the learned Sessions Judge, Bhandara, who, by the judgment dated 01.02.2022 dismissed the same. That is how the petitioner is before this Court questioning the legality and validity of the aforesaid order and judgment. (3) 33.wp.219.2022.wp.220.2022 & wp.221.2022(common ord)
6. Mr. Ukey, learned APP for the petitioner/State by relying upon the language of Section 48(8)(1)(2) of the MLR Code, in juxtaposition to the language of Section 457 of the Cr. P.C., submits that when the seizure is under Section 48(8)(1) of the MLR Code, the provisions of Section 457 of the Cr.P.C. would not be attracted. He submits, that the provisions of Section 48(8)(1) of MLR Code specifically confer a power upon the Collector or any revenue Officer authorized by the Collector to seize or confiscate any mineral as well as the vehicle used for transporting the same and the power to release such vehicle is with the Collector or any other Officer not below the rank of Deputy Collector authorized by the Collector in this behalf. It is therefore submitted, that when a specific power is conferred upon a specific authority under the MLR Code for the purpose of release of the vehicle which is seized, the provisions of Section 457 of the Cr.P.C. would not be attracted and the impugned order and judgment, which do not consider this position of law, cannot be sustained.
7. Mr. Gawali, learned counsel for the respondent no.1, vehemently opposes the petition and contends that under Section 48(8)(2) the Officer seizing the vehicle, under Section 48(8)(1), has the obligation, to produce it within 48 hours before the Collector or Officer authorized in this behalf and in case the same is not so done, the seizure would become illegal, thereby (4) 33.wp.219.2022.wp.220.2022 & wp.221.2022(common ord) vesting the Magistrate, with jurisdiction to entertain an application under Section 457 of the Cr.P.C. Reliance is place upon Rakesh s/o Bajiraoji Tumsare Vs. State of Maharashtra, Criminal Writ Petition No.666 of 2018, decided on 20.07.2018; Abdul Wahid Shaikh son of Abdul Karim Shaikh Vs. State of Maharashtra and others, Criminal Writ Petition No.335 of 2012 decided on 02.08.2012; Basudev s/o Matoliram Agrawal Vs. State of Maharashtra and others, Criminal Writ Petition No.702 of 2017 decided on 11.10.2017; Pravin s/o Eknath Solanke Vs. State of Maharashtra, Criminal Writ Petition No.35 of 2021 decided on 22.01.2021 and Mangesh s/o Eknath Shinde Vs. State of Maharashtra, Criminal Writ Petition No.1000 of 2019 decided on 11.09.2019.
8. The essential facts are not disputed, that the Tahsildar acting under the powers under Section 48(8) (1) of the MLR Code has seized the vehicle on 03.12.2021 and by his order dated 13.12.2021 has imposed the penalty for illegal transportation of sand, which power is traced to Section 48(7) of the MLR Code. It is also not in dispute that the seizure of the said vehicle is under Section 48(8)(1) of the MLR Code, which is the position acceded to by Mr. Gawali, learned counsel for the respondent no.1. This being the position, in my considered opinion, since there is a specific power conferred by virtue of Section 48(8)(2) of the MLR Code upon the Collector or such other Officer not below the (5) 33.wp.219.2022.wp.220.2022 & wp.221.2022(common ord) rank of Deputy Collector to release the seized vehicle/machinery/equipment, it is only the person or the authority empowered under the statute which in this case, is the Collector or the Officer authorized by him, not below the rank of Deputy Collector, who would have the power or jurisdiction to entertain an application for release of the seized vehicle and no other authority.
9. It would be a different situation altogether, if the vehicle is seized by the Police, upon an offence being registered under the Indian Penal Code or any other provisions of law, under which the Police is empowered to take action as per the relevant statute in this regard, for which the language of Section 457(1) Cr.P.C. is clear and specific and empowers the Magistrate to assume jurisdiction whenever the seizure of any property by any Police Officer is reported to him under the provisions of the Cr.P.C. and such property is not produced before the Criminal Court during an enquiry or trial, and it is only upon such reporting and non-production that the Magistrate would be empowered to pass appropriate orders in respect of the property seized and not otherwise. In the instant case, it is an admitted position that there is no offence registered against the respondent no.1 either under any provisions of the Indian Penal Code or for that matter under the provisions of any other statute, of which the Police is empowered to take notice of, nor is the seizure by the Police. That being the (6) 33.wp.219.2022.wp.220.2022 & wp.221.2022(common ord) position, in my considered opinion, the provisions of Section 457 of Cr.P.C. would clearly not be attracted in such a situation.
10. As the seizure is by the Tahsildar under the provisions of Section 48(8)(1) of the MLR Code and a specific provision has been made in Section 48(8)(2), empowering the Collector or any Officer not below the rank of Deputy Collector as authorized by him, to entertain an application for release of the vehicle, it is only the Collector or the Deputy Collector as authorized by him, who would be empowered to entertain an application for release of the vehicle upon such terms, as are specified in Section 48(8)(2) of the MLR Code and not otherwise, for the reason that a special provision has been enacted by the State legislature, in respect of illegal transportation of sand and other minerals, by virtue of Section 48 of the MLR Code as amended from time to time in this regard. Thus, when a specific provision is created/enacted for the purpose illegal seizure of sand and other minor minerals and the confiscation, seizure and release of the vehicles transporting such minerals, then only the authority empowered under the Act shall have the jurisdiction to entertain an application for release of the said vehicle and none else.
11. In none of the judgments relied upon by Mr. Gawali, learned counsel for the respondent no.1, this (7) 33.wp.219.2022.wp.220.2022 & wp.221.2022(common ord) position has been canvassed and dealt with. That apart, in Abdul Wahid Shaikh (supra), the seizure of the truck is under Section 102 of the Cr.P.C.; in Pravin s/o Eknath Solanke (supra), Basudev s/o Matoliram Agrawal (supra) and Mangesh s/o Eknath Shinde (supra) there was an offence under Section 379 of the Indian Penal Code, registered in view of which, the seizure was by a Police Officer as contemplated by Section 457 (1) of the Cr. P.C. Therein too, the question of the power conferred under Section 48(8) of the MLR Code in contradiction to the powers under Section 457 (1) of the Cr. P.C., in absence of any offence under the Indian Penal Code or any other related law in which the Police Officer was under an obligation to investigate, did not fall for consideration, as a result of which, these judgments are not applicable for decision of the question raised herein.
12. In so far as the contention, that the vehicle has not been produced within a period of 48 hours of its seizure, by the Tahsildar before the Collector or the Deputy Collector as authorized by him, that would be a case to be examined depending upon the fact of each matter and in case it is so found, there may be a claim for damages against the authorities for illegal detention. That however will not preclude the respondent no.1, from filing an application before the Collector or such other Officer not below the rank of Deputy Collector as authorized by the Collector in that behalf and such (8) 33.wp.219.2022.wp.220.2022 & wp.221.2022(common ord) authority from entertaining such an application, for release of the vehicle, on such terms and conditions, as are spelt out by Section 48(8)(2) of the MLR Code.
13. In light of what has been discussed above, the impugned orders passed by the learned Magistrate as well as the judgments of the learned Revisional Court are clearly not sustainable in law and are accordingly quashed and set aside and the applications under Section 457 of Cr.P.C as filed by respondent no.1 and other respondents, are dismissed as not maintainable.
14. The Criminal Writ Petitions are allowed and disposed of accordingly.
JUDGE Sarkate Digitally signed byANANT R SARKATE Signing Date:20.04.2022 14:51