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Madhya Pradesh High Court

Manish Kumar Jain vs The State Of Madhya Pradesh Thr. on 17 May, 2017

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                          MCRC.1902/2016

                           Manish Kumar Jain
                                    v.
                           State of M.P. & Ors.
17/05/2017
      Shri Arun Katare, counsel for the applicant.
      Shri Girdhari Singh Chauhan, Public Prosecutor for
the respondents/State.

This application under Section 482 of CrPC has been filed against the order dated 02/02/2016 by First Additional Sessions Judge, Dabra, District Gwalior in Criminal Revision No.28/2016 by which, the order dated 11/12/2015 passed by the Magistrate was affirmed.

The necessary facts for the disposal of the present application in short are that the dumper of the applicant was seized by the Mining Officer on 03/12/2015 on the ground of illegal transportation of minerals and, accordingly, a notice under Rule 18 of Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006 was issued proposing the maximum penalty of Rs.4,00,000/- as the market price of the mineral was assessed as Rs.40,000/-. Subsequently, it is alleged that the final order under Rule 18(5) of Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006 was passed and the market value of the seized mineral was assessed at Rs.20,000/- and as per the provisions of Rule 18 of Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006, a penalty of Rs.2,00,000/- was imposed. Being aggrieved by the said order, the applicant has filed an appeal which is still pending.

It is submitted by the counsel for the applicant that the applicant, in the meanwhile, filed an application under Sections 451,457 of CrPC for release of the vehicle. The said application was rejected by the Magistrate on the ground that as the matter has not been referred to the Magistrate and the authority has decided to proceed with the matter under Rule 18(5) of the Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006, therefore, the Magistrate has no jurisdiction to release the vehicle.

Being aggrieved by the order of the Magistrate, the applicant filed a revision which too suffered dismissal by order dated 02/02/2016.

It is submitted by the counsel for the applicant that his dumper is standing idol from 18/11/2015 and more than 1½ years have passed and the applicant has already suffered substantially because of the fact that his dumper is lying idol for the last 1½ years. It is further submitted by the counsel for the applicant that as the competent authority has assessed the market value of the mineral at Rs.20,000/- and a penalty of Rs.2,00,000/- has been imposed which is subject matter of an appeal, therefore, it is submitted that the State Government is at the most entitled to recover Rs.2,00,000/-. It is further submitted that although as per the provisions of Section 18(6) of Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006, the vehicle can be confiscated in 3 MCRC.1902/2016 case of non-payment of the penalty amount but since the appeal is pending, therefore, he has the hope of winning the case. The counsel for the applicant further submitted that the applicant is ready and willing to furnish the bank guarantee of Rs.2,00,000/- subject to the outcome of the appeal and, therefore, the vehicle may be released on furnishing the bank guarantee of Rs.2,00,000/-.

Per contra, the application is opposed by the counsel for the State. However, it is submitted by the counsel for the State that in case the applicant deposits the amount of the penalty so imposed by the competent authority under Rule 18(5) of Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006, then the vehicle can be released.

Heard the learned counsel for the parties. So far as the submission made by the counsel for the applicant that as the State Government is at the most entitled to recover the penalty so assessed by the competent authority under Rule 18(5) of Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006 and, therefore, he is ready to furnish the bank guarantee to the extent of penalty so imposed by the competent authority is concerned, the submissions made by the counsel for the applicant appears to be bonafide and justified. Once the penalty has been assessed by the competent authority, then it can be said that at the most the State is entitled to recover the said penalty from the applicant.

Under these circumstances, it is directed that in 4 MCRC.1902/2016 case the applicant deposits the amount of penalty so assessed by the competent authority under Rule 18(5) of Madhya Pradesh Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006 before the appellate authority, then without any prejudice to his right to challenge the findings recorded by the competent authority in the appeal which, according to the counsel for the applicant, is still pending, it is directed that the appellate authority shall release the vehicle on supardaginama in favor of the applicant. The amount so deposited by the applicant shall be subject to the final outcome of the appeal.

With the aforesaid observations, the application is disposed off.

                                           (G.S.Ahluwalia)
AKS                                             Judge