Delhi District Court
Anil Kumar vs State (Govt. Of Nct Of Delhi) on 7 October, 2017
Page 1 of 14
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADDL. SESSIONS
JUDGE 04, WEST DISTRICT, TIS HAZARI COURTS, DELHI
CRIMINAL REVISION No.449/17
Anil Kumar
S/o Sh. Kapoor Singh
R/o Village Sunderhati, P.O. Sasroli,
Tehsil & Distt. Jhajjar, Haryana
............Revisionist
Vs.
State (Govt. of NCT of Delhi)
New Delhi
........Respondent
Date of Filing : 26.09.2017
Date of Arguments : 06.10.2017
Date of Order : 07.10.2017
Criminal Revision Petition U/Sec.397 r.w. Sec.399 Cr.P.C. against the order dated 22.09.2017 passed by Sh. Santosh Kumar Rai, SDM, Punjabi Bagh, Delhi U/Sec.133 Cr.P.C. in the matter of vehicle bearing no.HR63B8333 P.S. Mundka O R D E R
1. In this revision petition the revisionist has challenged the conditional order U/Sec.133 Cr.P.C. dated 22.09.2017 and Showcause Notice dated 23.09.2017 passed/issued by Sh. Santosh Kumar Rai, Ld. Sub Divisional Magistrate (SDM), Punjabi Bagh, Main Rohtak Road, Nangloi, CR No.449/17 Anil Kumar Vs. State Page 2 of 14 Delhi, with respect to revisionist's vehicle bearing no.HR63B8333.
2. The brief facts necessary for disposal of the present petition are that on 20.09.2017 at 12.30 a.m., a heavily overloaded Truck with Rodee bearing no.HR63B8333, registered in the name of revisionist, was found plying from Tikri Border to Mundka near Ghevra Mor under the jurisdiction of P.S. Mundka and the said vehicle was virtually carrying goods approximately two times more than its capacity and the said vehicle was impounded on 20.09.2017. Vide impugned order, the Ld. SDM held that the excessive overloading of trucks was not only unlawful obstruction on public road, health hazard to larger population, large public nuisance but also a potential threat to the lives of many innocent people on the road. Vide said order, the Ld. SDM directed the revisionist to do the following:
(i) To stop the practice of plying the overloaded trucks with immediate effect;
(ii) To appear on 03.10.2017 before him (SDM) to submit the list of all the trucks owned or plied by him;
(iii) To enter into a personal bond of ₹1 Lakh with two sureties of CR No.449/17 Anil Kumar Vs. State Page 3 of 14 ₹25,000/ each for complying with the said order;
(iv) To deposit Environmental compensation fine of ₹50,000/;
(v) Or, to show cause why the permit of the said truck be not suspended for 15 days and why the said conditional order be not made absolute.
3. The present revision petition has been filed by the revisionist for setting aside the impugned order dated 22.09.2017 and Showcause Notice dated 23.09.2017 on the following main grounds:
(i) That the impugned order has been passed in mechanical manner without applying mind.
(ii) That the Ld. SDM was wrong in taking cognizance U/Sec.133 Cr.P.C. by completely bypassing the provisions of Motor Vehicles Act as Sec.113 of Motor Vehicles Act, 1988 provides that only officers of the Enforcement Branch of the State Transport Department are authorised to initiate proceedings for overloading of transport vehicles.
(iii) That the Ld. SDM has erred in taking cognizance U/Sec.133 Cr.P.C. by completely bypassing the provisions of Motor Vehicles CR No.449/17 Anil Kumar Vs. State Page 4 of 14 Act as Sec.114 of Motor Vehicles Act, 1988 provides that only officers of the Motor Vehicle Department, authorised by State Government in this behalf, are to weigh the vehicle through a weighing device.
(iv) That the Ld. SDM has erred in taking cognizance U/Sec.133 Cr.P.C. against the revisionist as he did not appreciate the fact that the revisionist has a valid national permit to ply the vehicle in question throughout India and any violation is subject to Motor Vehicle Act, 1988 which is a complete code for regulation of all types of motor vehicles in India.
(v) That the Ld. SDM has issued Show Cause Notice to the revisionist without any violation of the Mines and Minerals (Development & Regulation) Act, 1957 by him and despite his having Authorised Certificate of National Permit (Goods) duly issued by the Transport Department.
4. Notice of the present revision petition was given to the respondent and the revision petition has been contested by the respondent through Addl. P.P.
5. I have heard the arguments from counsel Sh. Inder Chand for the CR No.449/17 Anil Kumar Vs. State Page 5 of 14 revisionist and Sh. Ateeq Ahmed, Substitute Addl. P.P. for respondent/State and carefully perused the record including the Trial Court record in the light of submissions made before me.
6. The Counsel for the revisionist has vehemently argued that the impugned order is liable to be set aside as it is not legal whereas the Substitute Addl. P.P. has argued that the said order has been passed after considering all the relevant facts and circumstances and there is no need to interfere in the same.
7. Under Sec.133 Cr.P.C. the SDM can pass order to prevent the following public nuisances:
(a) Any unlawful obstruction or nuisance to any public place or any way, river or channel which is or may be lawfully used by public;
(b) The conduct of any trade or occupation or the keeping of any goods or merchandise which is injurious to the health or physical comfort of the community;
(c) The construction of any building or the disposal of any substance which is likely to occasion conflagration or explosion;
(d) Any building, tent or structure being in such a condition that it is CR No.449/17 Anil Kumar Vs. State Page 6 of 14 likely to fall and cause injury to persons living or carrying on business in the neighbourhood or passing by;
(e) Any tank, well or excavation adjacent to any public way or public place remaining unfenced;
(f) Any dangerous animal requiring destruction, confinement or disposal.
8. The impugned order has been passed by the Ld. SDM while invoking the provision of Sec.133 Cr.P.C. The Sec.133 Cr.P.C comes under Chapter X of Cr.P.C. which deals with maintenance of public order and tranquility and appears in Part B of said chapter which deals with "Public nuisances". There are two types of nuisances: (i) public and (ii) private. A private nuisance is a civil wrong whereas public nuisance is a criminal wrong. Private Nuisance is unreasonable, unwarranted or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, without an actual trespass or physical invasion to the land. The Public Nuisance has been defined in Sec.268 IPC as per which a person is guilty of public nuisance who commits an act or illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell CR No.449/17 Anil Kumar Vs. State Page 7 of 14 or occupy property in the vicinity, or causes injury, obstruction, danger or annoyance to the persons who may have occasion to use any public right. The provision of Sec.133 Cr.P.C. could be invoked by the SDM only if there is existence of any 'public nuisance'. Mere apprehension or future likelihood of public nuisance is not sufficient to invoke the said provision which is meant only for urgent situations of imminent danger. It has been held by the Hon'ble Supreme Court in Vasant Manga Nikumba Vs. Baburao Bhikanna Naidu, 1996 SCC (Cri) 27 that the condition precedent to exercise the power under Sec.133 is the imminent danger to the property and consequential nuisance to the public. Even the Hon'ble Supreme Court of India has held in Suhelkhan Khudyarkhan Vs. State of Maharashtra, AIR 2009 SC 1868, as follows:
"The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later CR No.449/17 Anil Kumar Vs. State Page 8 of 14 point of time. It does not deal with all potential nuisance, and on the other hand applies when the nuisance is in existence."
9. Similar view was expressed by the Hon'ble Supreme Court in Kachrulal Bhagirath Agrawal Vs. State of Maharashtra, AIR 2004 SC 4818. Thus, for the purposes of Sec.133 Cr.P.C., the public nuisance must be in existence. In the presence case, the impugned order has been passed merely on the assumption that the plying of overloaded truck might cause public nuisance. But as per the aforesaid caselaws, Sec.133 Cr.P.C. does not deal with the potential nuisance. Moreover, the provision of Sec.133 Cr.P.C. could be invoked only in cases of 'public' nuisance, but there is nothing on Trial Court record from which it could be inferred that any public person has ever made any complaint pertaining to the vehicle in question. Hence, in the absence of aforesaid, no action under Sec.133 Cr.P.C. was warranted.
10. It will not be out of place to mention here that the Motor Vehicles Act, 1988 deals with the offence of plying overloaded vehicles. Sec.113 and Sec.114 of Motor Vehicles Act, 1988 deal with the limits of weight and limitations on use and the violation of said provisions has been made punishable U/Sec.194 of Motor Vehicles Act, 1988. In the present case, CR No.449/17 Anil Kumar Vs. State Page 9 of 14 there might be violation of Sec.113 and 114 of Motor Vehicles Act if the revisionist's vehicle was carrying the excess weight than permissible, but certainly no action lies for the same U/Sec.133 Cr.P.C.
11. In view of the aforesaid discussion, it is clear that the impugned order dated 22.09.2017 is contrary to law and is accordingly setaside.
12. The revisionist, in the present revision petition, has also challenged the Showcause Notice bearing no.F.SDM/PB/M.M.Act/2017/4924 dated 23.09.2017 issued by Ld. SDM, Punjabi Bagh vide which he asked the revisionist to appear on 03.10.2017 and show cause as to why action as per various provisions of Sec.21 of Mines and Minerals (Development & Regulation) Act, 1957 for transporting Rodee (without any valid permission) be not initiated against him. In the said Showcause Notice, after mentioning the provisions of Sec.4(1A) and Sec.21(1) of Mines and Minerals (Development & Regulation) Act, 1957, the Ld. SDM has stated that the revisionist's truck bearing no.HR63B8333 has been seized by him U/Sec.21(4) of the said Act. But on perusal of Trial Court record, no seizure memo in this regard is found on record. Sec.4(1A) of the Mines and Minerals (Development & Regulation) Act, 1957 prohibits the transportation, storage or cause to be transported or stored any mineral CR No.449/17 Anil Kumar Vs. State Page 10 of 14 otherwise than in accordance with the provisions of the said Act and the rules framed thereunder and Sec.21 of the said Act makes the contravention of the provision of Sec.4(1A) as 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 area. The Sec.21(4) & (4A) of Mines and Minerals (Development & Regulation) Act, 1957 deals with the seizure of mineral, vehicle, etc. The relevant subsections of Sec.21 are reproduced hereinbelow:
"Sec.21 Penalties (1) Whoever contravenes the provisions of sub section (1) or subsection (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) Xxxxxxxxxxx
(3) Xxxxxxxxxxx
(4) Whenever any person raises, transports or
causes to be raised or transported, without any lawful authority, any mineral from any land, and, CR No.449/17 Anil Kumar Vs. State Page 11 of 14 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 of authority specially empowered in this behalf.
(4A) Any mineral, tool, equipment, vehicle or any other thing seized under subsection (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under subsection (1) and shall be disposed of in accordance with the directions of such court.
(5) Xxxxxxxxxxxxxxx
(6) Xxxxxxxxxxxxxxxx"
13. And as per Sec.30B of Mines and Minerals (Development & Regulation) Act, 1957 the trial of offences for contravention of Sec.4(1) and Sec.4(1A) of the said Act would be conducted by the Special Courts constituted by State Government and the qualification of a person for being appointed as Judge of said Special Court is that he is or has been a District & Sessions Judge and as per Sec.30C of the said Act the said CR No.449/17 Anil Kumar Vs. State Page 12 of 14 Special Court is deemed to be a Court of Sessions and shall have all the powers of Sessions Court. Thus as per the provisions of Mines and Minerals (Development & Regulation) Act, 1957, the mineral or the transporting vehicle could be seized by an officer specially empowered in this behalf and the trial of offences for contravention of in Sec.4(1) and (1A) would be conducted by the Special Court which will be having the power to give direction for the disposal of seized property. Even the Hon'ble Allahabad High Court has also held in Rajendra Singh Vs. State of U.P., AIR 2015 Allahabad 93, "The procedure contemplated in respect of minerals, tool, vehicles involved in an offence under Section 21(4) and Section 21(4A) is:
(a) the mineral, tool, vehicle etc., have to be seized by the officer/authority empowered for the purpose;
(b) The mineral, tool, vehicle etc., have to be confiscated under an order of the Court, competent to take cognizance of the offence under Subsection (1) of Section 21;
(c) The mineral, tool, vehicle etc., have to be disposed of in accordance with the direction of such Court." CR No.449/17
Anil Kumar Vs. State Page 13 of 14
14. Though in the present case, in the Show Cause Notice the Ld. SDM has stated that he has seized the vehicle of the revisionist under Sec.21(4) of the Mines and Minerals (Development & Regulation) Act, 1957, but nowhere he has mentioned as to from where he is drawing the authority to do so. There is no mention of any order/notification vide which he has been authorised to seize the minerals, vehicle, etc. under the aforesaid Act. Now even if it is presumed for a moment that the SDM has been authorised to seize the minerals, etc. under the said Act, it is stated again at the cost of repetition that there is no seizure memo on record vide which the vehicle of the revisionist was seized by him. I fail to understand that how the vehicle could be retained by the SDM without legally seizing it !
15. As stated above it is the Special Court which has to conduct the trial and pass verdict for the contravention of Sec.4(1) & (1A) of Mines and Minerals (Development & Regulation) Act, 1957. The SDM is certainly not the said "Special Court" constituted under Sec.30B of the said Act. In the case of Rajendra Singh (supra), the Hon'ble High Court has held that the District Magistrate has no power whatsoever to deal with the seized minerals, tool, vehicle, plant and machinery etc. used in illegal activities as per the Act of 1957. Thus the SDM neither has any power to CR No.449/17 Anil Kumar Vs. State Page 14 of 14 deal with the seized minerals, etc. nor having any jurisdiction to impose punishment of five year and fine for contravention of Sec.4(1) & (1A) of the said Act. Meaning thereby that the SDM has no power to impose punishment mentioned in the Show Cause Notice dated 23.09.2017. Hence, for the aforesaid reasons the said Showcause Notice is liable to quashed and accordingly the same is quashed.
16. The vehicle in question i.e. Truck bearing no.HR63B8333 be released immediately to the registered owner after getting the same weighed as per the norms and subject to furnishing undertaking by the registered owner before the Ld. SDM that he shall not ply the same in contravention to the provisions of Motor Vehicles Act, 1988 pertaining to overloading the same in excess to the prescribed laden weight.
17. TCR be sent back alongwith copy of this Order.
18. File of the revision petition be consigned to Record Room.
(Announced in open
Court on 07.10.2017) (Navita Kumari Bagha)
ASJ04, West District,
Tis Hazari Court, Delhi
CR No.449/17
Anil Kumar Vs. State