Gujarat High Court
Rameshbhai Bhimabhai Algotar vs State Of Gujarat on 27 February, 2024
NEUTRAL CITATION
R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (POSSESSION OF MUDDAMAL)
NO. 1726 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 1727 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 1728 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 1731 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 1771 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 1806 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 2255 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RAMESHBHAI BHIMABHAI ALGOTAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AB GATESHANIYA(3766) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR MANAN MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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NEUTRAL CITATION
R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 27/02/2024
COMMON ORAL JUDGMENT
RULE returnable forthwith. With the consent of learned advocates for the parties, present petitions are taken up for final hearing today.
[1.0] Since the issue involved in all these petitions is same and concerning release of muddamal vehicles seized in connection with common FIR, all these petitions are heard, decided and disposed of by this common oral judgment.
[2.0] By way of present petitions under Articles 14, 19, 21, 226 and 227 of the Constitution of India read with Section 451 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the petitioners - transporters are seeking quashing of order dated 29.12.2023 passed by the learned 2nd Additional Sessions Judge, Surendranagar in muddamal applications filed under Section 451 of the CrPC and further to release the muddamal vehicles.
[3.0] The details of petitions with corresponding muddamal applications vis-a-vis muddamal vehicles involved are as under:
Sr. SCR.A No. Muddamal Muddamal Vehicle Details No. Application (CR.MA) No.
1. 1726/2024 679/2023 Excavator Machine JCB205SC Track 600 0.90 CUM HD BKT A.C., Registration No.GJ-18-AZ-0154
2. 1727/2024 678/2023 Goods Carrier of Ashok Leyland Ltd.
Registration No.GJ-05-AV-1239 Page 2 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined
3. 1728/2024 681/2023 Goods Carrier of Ashok Leyland Ltd.
Registration No.GJ-14-Z-3672
4. 1731/2024 676/2023 Goods Carrier of Ashok Leyland Ltd.
Registration No.GJ-13-W-1623
5. 1771/2024 683/2023 Goods Carrier of Ashok Leyland Ltd.
Registration No.GJ-13-AW-7581
6. 1806/2024 677/2023 Goods Carrier of Ashok Leyland Ltd.
Registration No.GJ-13-AW-6147
7. 2255/2024 680/2023 Goods Carrier of Ashok Leyland Ltd.
Registration No.GJ-13-AT-3672 For the sake of brevity, Special Criminal Application No.1726 of 2024 is taken as a lead matter and facts of the said petition are considered.
[4.0] That, an FIR being CR No.11211045230331 of 2023 came to be registered with Sayla Police Station, District Surendranagar for the offences punishable under Sections 379 and 114 of the Indian Penal Code, 1860 (for short "IPC"); Section 21 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (for short "Rules, 2017") and Sections 4(1), 4(1)A, 21(1) and 21(5) of the Mines and Minerals (Regulation and Development) Act, 1957 (for short "MMRD Act") and muddamal vehicles were seized.
[4.1] After the investigation, charge-sheet is filed against some accused and during the investigation, muddamal vehicles came to be seized and kept in police custody. The respective petitioners - transporters filed respective applications under Section 451 of the CrPC, as mentioned in aforesaid table, before the Court of learned 2nd Additional Sessions Judge, Surendranagar, which came to be rejected vide order dated 29.12.2023.
Hence, present petitions are filed.
Page 3 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined [5.0] Heard learned advocate for the petitioner and learned APP for respondent No.1 - State of Gujarat.
[6.0] Learned advocate for the petitioner has submitted that the order passed by the learned Additional Sessions Judge, Surendranagar is ex facie illegal, arbitrary and unjust. Learned Judge failed to consider the settled proposition of law and dismissed the muddamal application. Further, as the petitioner has not gained any monetary benefit from the alleged illegal activity, seizure of muddamal vehicle on the part of the authority itself is without jurisdiction and muddamal vehicle is wrongfully detained by the police and since inception it appears that the custody of the muddamal vehicle was illegal and unjust. Further, he has submitted that under Section 22 of the MMRD Act and the Rules thereunder, the FIR itself is not maintainable as the FIR is not filed by a person authorized on behalf of the State Government and as the same is not filed before the competent Court. He has submitted that in this regard, quashing petition being Criminal Misc. Application No.888/2024 is also filed and vide order dated 16.01.2024, the proceedings qua offence under Sections 4(1), 4(1)A, 21(1) and 21(5) of the MMRD Act and Rules 3 and 21 of the Rules, 2017 has been stayed. In support of his submissions, he has relied on the decision of the Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat reported in 2003 (1) GLH 307 and the oral order of the coordinate Bench of this Court in the Special Criminal Application No.7174/2023 and has requested to allow the present petitions.
[7.0] Per contra, learned APP has vehemently opposed the Page 4 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined present petitions and submitted that the petitioner is involved in illegal activity and under one or the other pretext continued with such illegal activities under the MMRD Act and in this regard, without any pass, permit or license, since last 5 years, petitioner has been indulging in illegal transportation of black trap and 62,20,390.15 MT of black trap is illegally excavated and during the raid, theft of minerals worth Rs.2,46,88,72,850.25/- is found and in this connection offence is registered and 7 excavator machines and 13 dumpers indulged in such illegal activity have been seized by the police. Further, report for addition of sections under the MMRD Act is filed before the learned Magistrate. He has further submitted that accused are repeatedly indulging in such illegal activities and hence, has strongly objected for the release of muddamal vehicles. Nonetheless, he has also raised the objection due to use of explosives for illegal mining and blasting purpose and that separate proceedings be initiated and even accused persons are till date out of reach of investigating agency. Further, considering the gravity of offence, investigation came to be transferred to the State Monitoring Cell, State of Gujarat. Even, during the raid, it was informed to the Geology Department which has also initiated further action through their department. He has further submitted that over and above the IPC offences, offences under the provisions of Sections 4(1), 4(1)A of the MMRD Act and Rules 3, 5, 7, 10, 20 and 21 of the Rules, 2017 are also invoked and even confiscation proceedings of muddamal vehicle are also initiated. Further, the accused indulging in such illegal activities are habitual of committing such offences again and again.
[7.1] Learned APP has further submitted that, the accused Page 5 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined involved in connection with the present FIR have again indulged into such illegal activity and were caught from the said place pursuant to which another FIR being CR No.11211045230462 of 2023 has been registered with Sayla Police Station for the offences punishable under Sections 379, 186, 114 and 120(B) of the IPC and sections 4(1), 4(1A) of the MMRD Act and Rules 3, 5, 7, 10 and 21 of the Rules, 2017. Thus, if the muddamal vehicles are released then the same will be again used in such illegal activities as the petitioners are habitual in committing such type of illegal activity. In view of the above, he has requested to dismiss the present petitions.
[8.0] I have given thoughtful consideration to the arguments canvassed by learned advocates for respective parties.
[8.1] It is undisputed and admitted fact that the offence is registered under the MMRD Act and vehicles came to be seized. First grievance of the learned advocate for the petitioners is that police has no authority to lodge the complaint and to seize the vehicles or to lay the raid. Second limb of argument of learned advocate for the petitioner is that merely because confiscation proceedings are initiated or going to be initiated is not a ground to dismiss the present petitions and this regard he has relied on the decision of Hon'ble Supreme Court in the case of Sunderlal Ambalal Desai (Supra) and Anirudhsinh Bharatsinh Kher vs. State of Gujarat rendered in Special Criminal Application No.7174/2023 and submitted that in such offences release of vehicle is permissible and merely because the offence is registered under the MMRD Act.
Page 6 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined [8.2] Perusing the record and the order passed by the learned Sessions Judge, it appears that accused persons are out of reach and during the raid, muddamal vehicle came to be seized. Due to theft of black trap minerals illegally, huge revenue loss worth Rs.2,46,88,72,850.25/- is caused to the State Revenue and therefore, considering the seriousness of the offence, investigation is now transferred to State Monitoring Cell, Gujarat State.
[9.0] It is true that, there is no bar to release the vehicle under Section 451 of the CrPC but at the same time, considering the law laid down by the Hon'ble Supreme Court in the case of Sunderlal Ambalal Desai (Supra), it is worth to mention that, while deciding the criminal cases, Court should not adopt any straitjacket formula or blindly rely on the authority or pronouncement or judgments of either higher Court or coordinate Bench. The precedents of which factual matrix is similar is binding and for that determination of factual matrix is necessary and more particularly in criminal cases the Courts should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Iveco Magirus Brandschutztechnik GMBH vs. Nirmal Kishore Bhartiya reported in (2024) 2 SCC 86. Hence, there is no dispute about the ratio laid down by the Hon'ble Supreme Court in the case of Sunderlal Ambalal Desai (Supra) to handover the custody of vehicle or property during the pendency of trial but in the said matter, facts were different as no confiscation proceedings were initiated. Under Section 451 of the Page 7 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined CrPC, order to release muddamal is discretionary power of the Court and powers to decide, the method and mode of disposal of muddamal, depends on facts and circumstances of each case. At the same time, the object of the Act is also required to be considered. The provisions of a particular statute is also required to be considered and interpreted in true letter and spirit in light of the object of the Act. Herein, the offence is registered under the MMRD Act to curb such illegal activity, special Rules and provisions under the statute are being made and to curb such menace of illegal mining including transportation and storage of mines and minerals, stringent provisions are being made.
[9.1] The Hon'ble Supreme Court in the case of State of NCT of Delhi vs. Sanjay reported in (2014) 9 SCC 772 has observed and held as follows:
"29. The Court cannot lose sight of the fact that adverse and destructive environmental impact of sand mining has been discussed in the UNEP Global Environmental Alert Service report. As per the contents of the report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in India, it was stated that Sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our Country.
69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the eco-system of the rivers and safety of bridges. It also Page 8 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels."
Further, the Hon'ble Supreme Court in the case of Deepak Kumar and Others vs. State of Haryana and Others reported in (2012) 4 SCC 629, has observed as under:
"Extraction of alluvial material from within or near a stream bed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, in-stream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both in-stream biota and the associated riparian habitat. The demand for sand continues to increase day-by- day as building and construction of new infrastructures and expansion of existing ones is continuous thereby placing immense pressure on the supply of the sand resource and hence mining activities are going on legally and illegally without any restrictions. Lack of proper planning and sand management cause disturbance of marine ecosystem and also upset the ability of natural marine processes to replenish the sand."
[9.2] Thus, the minerals are non-renewable and limited natural resources and constitute vital raw materials in number of basic and important industries. The extraction of minerals from nature often creates imbalances, which adversely affect the environment. The key environmental impacts of mining are on wildlife and fishery habitats, the water balance, local climates and the pattern of rainfall, sedimentation, the depletion of forests and disruption of the ecology.
Page 9 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined [10.0] A bare reading of the provisions of the MMRD Act and the Rules, 2017 make it clear that, any violation of section 4 of the MMRD Act, imposes restriction on the mining operations in any area, except according to the terms and conditions of the permit or license. It also imposes restriction on transporting, storage of any mineral in violation of the provisions of the MMRD Act. The violation of the provisions under section 4 of the MMRD Act are punishable under Section 21 of the MMRD Act. Section 21(4-A) of the MMRD Act confers jurisdiction to the Court to confiscate the vehicle, whereas section 22 of the MMRD Act provides the procedure for taking cognizance of the offence under the MMRD Act.
[10.1] Rule 12(3) of the Rues, 2017 makes it clear that if the property seized under sub-Rule (1) of Rule 12 is produced before a Court under sub-clause (ii) or clause (b) of sub-rule (2) of Rule 12 and the Court is satisfied that the offence has been committed in respect thereof, the Court may order confiscation of the property under sub-section (4-A) of section 21 of the MMRD Act. The Rules, 2017 makes it clear that, although the authorized officer can seize the vehicle, yet, cannot retain its possession, as no power has been given to deal with the vehicle, as the same vests exclusively with the learned Judicial Magistrate. In case, the authorities decide to take any action with regard to the vehicle, then it becomes their solemn duty to file a complaint as envisaged under section 22 of the MMRD Act before the competent Court.
[10.2] In any case, the very fact of seizure of vehicle would amount to a prima facie decision by the Authority under the Page 10 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined MMRD Act and the Rules, 2017 to have the matter adjudicated through the Court by filing a complaint with the Judicial Magistrate. Otherwise, they can proceed to seize the mines and minerals and impose penalties without dealing with the vehicle. The power of the authority, therefore, with regard to the transport vehicle, is limited to seizure and for production before the Court. They have no power to, thereafter, retain the vehicles.
[11.0] Now, coming back to the facts, perusing the record it appears that, the confiscation proceedings are initiated considering the possibility of repetition of illegal activity by using the muddamal vehicles. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of State of Karnataka and K. Krishnan reported in AIR 2000 SC 2729 held that a liberal approach for release of vehicle or equipment involved in aforesaid offences should not be adopted by the Court and the same should not be normally be returned to a party till the culmination of the proceedings in respect of such offences including confiscation proceedings except in exceptional cases. The said view has been reiterated and reaffirmed by the Hon'ble Supreme Court in the case of State of West Bengal Vs. Gopal Sarkar reported in (2002) 1 SCC 495 and State of West Bengal & Anr. Vs. Mahua Sarkar reported in (2008)12 SCC 7612.
[12.0] Further, it is to be noted that though confiscation proceeding may arise out of the same set of facts or they may be distinct and different under Section 21(4)(A) of the MMRD Act by the competent Court and competent Court may take the cognizance and competent Court is empowered to confiscate any Page 11 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined minerals, tools, equipment, vehicles or any other things seized. The powers of confiscation of vehicle is not dependent on whether criminal prosecution for commission of an offence under the MMRD Act has been launched against the offender as confiscation is a separate and distinct proceeding from the trial under the MMRD Act. Sections 21, 22 and 23C of the MMRD Act read as follows:
"21. Penalties ― (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare of the area.
(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention.
(3) Where any person trespasses into any land in contravention of the provisions of subsection (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State 4 Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.
(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, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable Page 12 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined 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.
(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable. Explanation - On and from the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2021, the expression "raising, transporting or causing to raise or transport any mineral without any lawful authority"
occurring in this Section, shall mean raising, transporting or causing to raise or transport any mineral by a person without prospecting licence, mining lease or composite licence or in contravention of the rules made under Section 23C.
22. Cognizance of offences ― No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government. Under Section 21(4A), any vehicle seized under sub-section (4) is liable to be confiscated by an order of the court competent to take cognisance of the offence.
23(C). Power of State Government to make rules for preventing illegal mining, transportation and storage of minerals.-
(1) The State Government may, by notification in the Official Gazette, make rules for preventing illegal mining, transportation and storage of minerals and for the purposes connected therewith.
Page 13 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) establishment of check-posts for checking of minerals under transit;
(b) establishment of weigh-bridges to measure the quantity of mineral being transported;
(c) regulation of mineral being transported from the area granted under a prospecting licence or a mining lease or a quarrying licence or a permit, in whatever name the permission to excavate minerals, has been given;
(d) inspection, checking and search of minerals at the place of excavation or storage or during transit;
(e) maintenance of registers and forms for the purposes of these rules;
(f) the period within which and the authority to which applications for revision of any order passed by any authority be preferred under any rule made under this section and the fees to be paid therefor and powers of such authority for disposing of such applications; and
(g) any other matter which is required to be, or may be, prescribed for the purpose of prevention of illegal mining, transportation and storage of minerals.
(3) Notwithstanding anything contained in section 30, the Central Government shall have no power to revise any order passed by a State Government or any of its authorised officers or any authority under the rules made under sub-sections (1) and (2)."
[12.1] The said provisions are having overriding effect as provision of section 21(6) starts with a non-obstante clause.
Page 14 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined Hence, considering section 21(4A) of the MMRD Act, the Court is competent to take cognizance of any offence under the MMRD Act and the powers to confiscate the vehicle involved in the offence.
[12.2] Considering the aforesaid fact and the repeated illegal activity, if muddamal vehicles are released in favor of the respective petitioners then this Court is of the considered view that such release may embolden such elements and possibility of again using the muddamal vehicle in similar offence of illegal mining and excavation and for transporting and storing such natural resources, cannot be ruled out.
[13.0] So far as another argument of learned advocate for the petitioner that, stay of proceedings in form of ad-interim relief qua the provisions of the MMRD Act has been granted by this Court in the proceedings of Criminal Misc. Application No.888/2024 is concerned, it is needless to say that said ad- interim relief was granted after considering the argument that Authorized Officer has not initiated the proceedings under the MMRD Act but the investigation qua IPC offences is still going on and no any interim relief qua IPC offences has been granted. Even, the learned APP has submitted that considering the statement of the Officer of the State Monitoring Cell, it appears that separate and independent proceedings being initiated by the Mines and Minerals Department and even confiscation proceedings are also going on. Considering the aforesaid fact, if any order is passed qua release of the vehicle, same would thwart the confiscation proceedings.
Page 15 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined [14.0] Insofar as argument of learned advocate for the petitioner that police has no authority to register an FIR for the offence under the provisions of the MMRD Act is concerned, in light of the decision of the Hon'ble Supreme Court, police has no authority considering the bar under Section 22 of the MMRD Act. It is true that as per the law laid down by the Hon'ble Supreme Court in the case of Jayant and Others vs. State of Madhya Pradesh reported in (2021) 2 SCC 670 and Pradeep S. Wodeyar vs. The State of Karnataka reported in 2021 INSC 798, the Court shall not take cognizance of the offence. It is needless to say that herein offences are not only under the MMRD Act but also under the IPC also and there is no bar to register an offence or investigate an offence under the IPC as offence of theft under Section 379 of the IPC being committed in view of the decisions of the Hon'ble Supreme Court in the case of Sanjay (Supra) and Kanwal Pal Singh vs. The State of Uttar Pradesh reported in (2020) 14 SCC 331.
[15.0] Insofar as argument on behalf of the petitioner that police has no authority to seize the muddamal vehicles is concerned, it is pertinent to note that as per section 102 of the IPC, police has a general power to arrest or seize any vehicle or suspect in any offence. Section 102 of the IPC reads as follows:
"102. Commencement and continuance of the right of private defence of the body.--
The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues."Page 16 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024
NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined [15.1] In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of State of Maharashtra vs. Tapas D. Neogy reported in (1999)7 SCC 685 wherein in paragraph 6, the Hon'ble Supreme Court has observed and held as under:
"6. A plain reading of sub-section(1) of Section 102 indicates that the Police Officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression "any property" and "any offence"
have made the applicability of the provisions wide enough to cover offences created under any Act...."
[15.2] Further, the Full Bench of the Kerala High Court in the case of Prakash Nayak vs. The District Collector, Kasaragod and Others reported in AIR 2017 Kerala 55, in paragraph 27 has observed as follows:
"27. The general powers of the police for arrest and seizure under the Code of Criminal Procedure are not specifically ousted or excluded by any of the provisions of the MMDR Act. On the other hand the offence punishable under Section 21 is made specifically cognizable also. That the offence is made cognizable means that any police officer, competent and empowered to act under the Code of Criminal Procedure, is competent to make arrest and to make seizure of properties, but prosecution can be launched only by the persons authorised by the Government under Section 22 of the MMDR Act. Contraband articles including minerals are liable to confiscation by court orders under Sub Section 4A of Section 21 of the MMDR Act. The latter part of the Sub Section provides that the property shall be disposed of in accordance with the directions of such court. This means that appropriate orders including confiscation orders can be passed by the court having jurisdiction to take cognizance of an offence punishable under Sub Section (1) Page 17 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined of Section 21, on a complaint brought by any officer authorised under Section 22 of the MMDR Act. Appropriate orders meant under Sub Section 4A will include even interim orders authorising interim custody under Section 451 of the Coder of Criminal Procedure. The object of Sub Section 4A of Section 21 is not that the property seized under Sub Section 4 shall be liable to confiscation in all situations. What we find on an analysis of the various provisions is that confiscation of properties is authorised under Sub Section 4A, by orders of the court having jurisdiction. However the court is competent to pass appropriate orders, for disposal of the properties. In appropriate cases where the facts and situations are of extreme violation, confiscation will have to be ordered by the court. However, in the case of minerals illicitly transported or imported, confiscation must be the rule. But in the case of vehicles and other articles, appropriate orders including confiscation orders can be passed by the court having jurisdiction, and such properties can be appropriately dealt with."
Thus, the argument canvassed by the learned advocate for the petitioner that police has no authority to seize the vehicle is not sustainable.
[16.0] Section 13 of the MMRD Act and Rule 12 of the Rules, 2017 provides for release of vehicle seized under the provisions of the MMRD Act. Considering the said provisions also, as confiscation proceedings being initiated under the special Act and as section 5 of the CrPC states that, nothing contained in the Code shall, in absence of specific provision to the contrary, affect any special law or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. Thus, considering section 5 of the CrPC, the MMRD Act and Rules, 2017 framed thereunder are special law / enactment and Page 18 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined hence, petitioners are not entitled to claim release of muddamal vehicles under Sections 451 and 457 of the CrPC as of right as powers are also discretionary one. As stated earlier, the very purpose of confiscation is to ensure that the vehicles which are frequently put to use in illegal activity of extracting and transporting minerals are kept out of circulation. In such circumstances, if vehicles are released then it would frustrate the very object of the intention of the legislature.
As the confiscation proceedings being initiated, no case is made out to interfere with the order dated 29.12.2023 passed by the learned Additional Sessions Judge and question to exercise discretionary powers under Section 451 of the CrPC does not arise in view of the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. Uday Singh reported in (2020) 12 SCC 733.
[16.1] Considering the fact that confiscation proceedings being initiated, the initiation of confiscation proceeding is independent one as per the law laid down by the Hon'ble Supreme Court in the case of State of West Bengal vs. Gopal Sarkar reported in (2002) 1 SCC 495 considering the decision of the Hon'ble Supreme Court in the case of Divisional Forest Officer vs. G.V. Sudhakar Rao reported in (1985) 4 SCC 537. Further, validity of confiscation of property proceedings at pre- trial stage is also not a punishment in view of law laid down by the Hon'ble Supreme Court in the case of Yogendra Kumar Jaiswal vs. State of Bihar reported in (2016) 3 SCC 183. Section 23-C of the MMRD Act specifically empowers the State Government to make rules for preventing illegal mining, transportation and storage of minerals. All natural resources vest Page 19 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1726/2024 JUDGMENT DATED: 27/02/2024 undefined with State as per Entry No.23 of State List of VIIth Schedule of the Constitution of India, 1949 and the State is the owner of the minerals. The object of confiscation is to stop violators from repeating such illegal activity by imposing high penalty which ultimately leads to confiscation proceedings which is only for the purpose to stop such menace of illegal mining and transportation of minerals.
[17.0] In wake of aforesaid discussion and in peculiar facts of the case, present petitions being devoid of any merit, present petitions are dismissed. Rule discharged.
It is made clear that, the confiscation proceedings are to be decided by the concerned Authority independently on it's own merits without being influenced by any of the observations made herein.
Sd/-
(HASMUKH D. SUTHAR, J.) Ajay Page 20 of 20 Downloaded on : Thu Feb 29 20:40:26 IST 2024