Rajasthan High Court - Jodhpur
Narayan Gadri vs State Of Rajasthan (2024:Rj-Jd:26630) on 2 July, 2024
[2024:RJ-JD:26630]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 6304/2021
Narayan Gadri S/o Sh. Roopa Gadri, Aged About 47 Years,
Ojiyada, P.s. Hameergarh, Dist. Bhilwara Through His Power Of
Attorney Holder Sh. Shankarlal Gadri S/o Sh. Devalal, Aged
About 37 Years, R/o Ojiyada, P.s. Hameergarh, Dist. Bhilwara
(Raj.).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ashok Kumar Panwar A/w Mr.
Pravin Vyas.
For Respondent(s) : Mr. S.K. Bhati, P.P.
HON'BLE MR. JUSTICE ARUN MONGA
Order(Oral) 02/07/2024
1. A Tractor trolley, stated to be source of livelihood of the petitioner/owner, was allegedly found stealthily transporting masonry stone. Allegation also is that it was un-authorizedly quarried/mined without any valid permission of sanction from the competent authority. The said offending vehicle is sought to be released on Superdari through instant petition. It was impounded pursuant to an FIR No.113/2021 registered under Sections 379 read with 414 of IPC and Section 4/21 of Mines and Minerals (Development & Regulation) Act, 1957 (for short 'MMDA').
2. Ever-since 12.08.2021, the vehicle in question is lying parked, turning into junk/beyond repair by each passing day, (Downloaded on 26/07/2024 at 08:52:24 PM) [2024:RJ-JD:26630] (2 of 7) [CRLMP-6304/2021] unattended and out of usage, at police station Hameergarh, District Bhilwara.
3. An application for release of vehicle on Superdari filed by the petitioner before the learned Magistrate was though allowed vide impugned order dated 08.09.2021, but an onerous condition of depositing the entire amount of penalty to the tune of Rs.6,51,200/-, which includes compounded fee, as levied by Mining Officer, was directed to be deposited as a precondition of its release.
4. A criminal revision assailing the order of the learned trial Court/Magistrate before the learned Sessions Judge was also dismissed vide an order dated 20.09.2021 affirming the view taken by the learned Magistrate.
5. Briefly speaking, the relevant facts of the case are that on 12.08.2021, the Mining Officer on duty i.e. Shri Jogaram intercepted the offending vehicle, which was found to be filled with 5 tonnes of masonry/mineral stone allegedly mined without any authorization from the mining site bearing ARAJI No.1140 as per revenue records.
5.1. The said site is stated to be not an authorized piece of land for mining, and thus, comes under the category of illegal mining area. The petitioner was booked for illegal mining activity under Rules 54 read with 60 of Rajasthan Minor Mineral Concession Rules, 2017 (for short 'RMMCR') and Section 4/21 of MMDR read with Section 379 of Indian Penal Code. On the complaint of the Mining Officer, the aforesaid FIR was thus registered. (Downloaded on 26/07/2024 at 08:52:24 PM) [2024:RJ-JD:26630] (3 of 7) [CRLMP-6304/2021] 5.2. Simultaneously penalty proceedings were also initiated by the mining department. After due calculations, qua the quantity of the stone extracted and the applicable royalty per tonne and the compounding fee, a total of Rs.6,51,200/- was directed to be paid by the petitioner vide an office order dated 08.09.2021. 5.3. Meanwhile, when an application for Superdari was filed by the petitioner under Sections 451/457 of Cr.P.C. before the learned Magistrate, it was allowed subject to the precondition of deposit of the penalty as already stated hereinabove. Aggrieved by the onerous condition, the instant petition before this Court.
6. In the aforesaid backdrop, I have heard the learned counsel for the petitioner as well as the learned Public Prosecutor appearing for the State.
7. At the very outset, before proceeding further, it would be worthwhile to refer to a judgment rendered by the coordinate Bench of this Court in somewhat similar circumstances in case title Kishore Singh Vs. State of Rajasthan : (2021) 0 Supreme (Raj.) 139 speaking for this Court, my learned Brother Dr. Pushpendra Singh Bhati, J. opined thus:-
"25. This Court, on a careful examination of the precedent laws in an intricate manner, finds that the precedent laws of Sunderbhai Ambalal Desai & Ors. Vs. State of Gujarat (supra) and Adhikshak Rashtriya Chambal Abhyaran Vs. Narottam Singh (supra), as laid down by the Hon'ble Supreme Court, shall govern the field, and thus, the vehicles seized under the mining law and the forest law, shall be released, upon charging the compensation/compounding fee or without charging the compensation/compounding fee, only and only, if the confiscation proceedings in regard thereto have not been initiated by the State authorities. It is to be noted that both mining and the forest laws have the provisions for confiscation proceedings.(Downloaded on 26/07/2024 at 08:52:24 PM)
[2024:RJ-JD:26630] (4 of 7) [CRLMP-6304/2021]
26. It is also observed that until the confiscation proceedings are initiated, the Magistrate concerned shall have the power to release the vehicle(s) with or without condition of deposition of compensation/compounding fee, but the Magistrate concerned shall be required to impose a condition of furnishing of a bank guarantee, so as to secure the compensation/compounding fee, if required to be levied in future, after completion of the proceedings.
27. It is made clear that once the confiscation proceedings are initiated, the possession, delivery, disposal or distribution of the property cannot be made, in view of the law laid down in Adhikshak Rashtriya Chambal Abhyaran Vs. Narottam Singh (supra).
28. Thus, while parting with the present controversy, it is directed that all the police stations shall release the vehicles in question, may it be tractor, trolley, truck, dumper to the registered owners of the said vehicles, after confirming from the respective Department that there is no confiscation proceeding, under the mining or forest laws, going on in regard to the vehicles in question.
29. To ensure that after undergoing the proceedings, the concerned parties i.e. registered owners of the vehicles in question shall be paying the requisite compensation/compounding fee, it is directed that the active bank guarantee, equivalent to the compensation/compounding fee, shall be deposited by the registered owners before the trial court before release of the vehicles in question.
30. It is also directed that after such bank guarantee equivalent to the compensation/compounding fee is deposited before the trial court concerned, to which the concerned police station is attached, the trial court concerned shall be required to keep such bank guarantees intact, until the final conclusion of the proceedings; and until the final conclusion of such proceedings is done by the competent courts, the bank guarantee shall remain subject to it and the orders passed at the end of the proceedings by the concerned trial court shall govern disposal of the bank guarantee.
31. It is further made clear that the petitioners shall be required to furnish photographs of their respective vehicles, showing their numbers, colours etc. Furthermore, at the time of release of the vehicles in question, the petitioners shall give an undertaking before the concerned learned trial court alongwith bank guarantee, as directed, that they shall not use such vehicles for any illegal and unlawful purpose, and in case any second offence, by means of the vehicles, is made out, then the same shall not be released, on any condition, until the confiscation proceedings come to an end." (emphasis supplied) (Downloaded on 26/07/2024 at 08:52:24 PM) [2024:RJ-JD:26630] (5 of 7) [CRLMP-6304/2021]
8. Vide the judgment, ibid, the issue involved herein has thus already been dealt with effectively in the light of Apex Court judgments referred therein. The controversy, being res integra, thus has to be necessarily dealt with, in accordance with the parameters, as enunciated therein.
9. Reference may also be had to the views expressed by a Division Bench of this Court in judgment rendered in Laxman Vs. State of Rajasthan : (2018) 0 Supreme (Raj.) 420, wherein Mohammad Rafiq, J. (as His Lordship then was in this Court), author of the judgment opined on behalf of Division Bench as under :-
"20. X-X-X-X-X The obvious purpose for this deviation is that a vehicle should not remain under the control of the seizing officer/the officers of the Mining Department for an unduly long period of time. This clearly indicates intention of the rule making authority that the officer of the mining department would have power to release the vehicle on conditions enumerated therein, however, if no one approaches him within seventy two hours, he "shall make a report of such seizure" to "his superior officer and to the Magistrate having jurisdiction". In other words, he would retain the power to release the vehicle himself until the expiry of seventy two hours, where after he is mandatorily required to report the matter to his superior officer as also to the Magistrate having jurisdiction. In that event, only the Magistrate having jurisdiction to try the offence shall have power to release the vehicle. Sub-rule (7) of Rule 54 of the Rules of 2017 in this behalf provides that all property seized under this Rule shall be liable to be confiscated by an order of Magistrate if the amount equal to ten times of royalty in lieu of cost of mineral, rent, royalty, compensation for environmental degradation and tax chargeable on the land occupied without lawful authority, etc. is not paid by the trespasser within a period of three months from the date of commission of such offence or when the recoveries are not affected by that time. But proviso to Rule 54(5) stipulates that on payment of these dues within the said period of three months, all properties seized shall be ordered to be released and shall be handed over to the trespasser or the owner of the property.(Downloaded on 26/07/2024 at 08:52:24 PM)
[2024:RJ-JD:26630] (6 of 7) [CRLMP-6304/2021]
21. Most of the judgments cited by learned counsel appearing from the side of the petitioners have ruled in favour of the jurisdiction of the Magistrate to release the vehicles under the provisions of Section 451 and/or 457 of the Cr.P.C.
X-X-X-X-X-X-
in a case in which offence has already been compounded by the competent authority and an amount has been imposed as compounding fees and the same has not been paid or deposited by the person concerned, for the purpose of recovery or realization of the same, a condition can be imposed by the Court while ordering release of the vehicle to pay or deposit the same and the Court can refuse to release the seized vehicle even temporarily under Section 457 Cr.P.C., if such deposit is not made.
22. In view of the above discussion, the referred questions are answered in the terms that once the Officer of the Mining Department, who seized the vehicle, has reported such seizure to his Superior Officer and to the Magistrate having jurisdiction, he shall cease to have the power to release the vehicle, and in that event, the Magistrate having jurisdiction would be empowered to release such vehicle, with or without the condition of deposit of compounding fee."
Aforesaid DB judgement in Laxman has been duly noted and discussed in the later SB judgment in Kishore Singh, supra, by the learned Single Judge.
10. From the record of the case file herein, it is not clear if in the present case confiscation proceedings have been initiated under Rule 54(6) of the Rajasthan Minor Mineral Concession Rules, 2017. In the premise, guided by the aforesaid two judgments rendered by Single Bench and Division Bench of this Court and, taking a harmonious view thereof, the petition in hand is disposed of with a direction to the respondents to verify if the confiscation proceedings have indeed been initiated qua the offending vehicle and if the answer is in affirmative, convey the status thereof in writing to the petitioner.
(Downloaded on 26/07/2024 at 08:52:25 PM)
[2024:RJ-JD:26630] (7 of 7) [CRLMP-6304/2021]
11. In case, the confiscation proceedings have been initiated, the vehicle shall then be released only on payment of penalty and compounding fee, in terms of ratio rendered in Kishore Singh. However, if it is found that no confiscation proceedings have yet commenced and it is merely an appeal is pendency against the penalty/compounding order passed by mining officer, liberty in that case is granted to the petitioner to approach the competent Court by filing a fresh application for release of vehicle on Superdari. Upon doing so, the same shall be released on furnishing a bank guarantee of an amount equivalent to the current value of impounded vehicle. Current value shall be as per the satisfaction of the learned competent Court dealing with the fresh application, if and when filed. Other conditions shall also be imposed by the learned Court as per Single Bench Judgment rendered in Kishore Singh.
12. Pending application(s), if any, also stand disposed of.
(ARUN MONGA),J
155-Jitender/Anil
Whether fit for reporting- Yes / No
(Downloaded on 26/07/2024 at 08:52:25 PM)
Powered by TCPDF (www.tcpdf.org)