Jharkhand High Court
Kishore Kaustav @ Kishore Kostao @ ... vs The State Of Jharkhand on 15 April, 2024
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No.716 of 2023
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1. Kishore Kaustav @ Kishore Kostao @ Kishore Kustuv
2. Arvind Raj
3. Devika Tandia
4. M/s. Kiyansh Logistics, a HUF Firm, located at Rivak Niwas, Jay Prakash Nagar, Near Railway Line, Sakrogarh, Nayatola, Sahibganj, P.O. & P.S. Nayatola, District Sahibganj through its, Karta Kishore Kaustav @ Kishore Kostao @ Kishore Kustuv .... .... Petitioners
-Versus-
1. The State of Jharkhand
2. Deputy Commissioner-cum-District Magistrate, Sahibganj
3. Superintendent of Police, Sahibganj
4. Sub Inspector of Police, Jirawabdi P.S, Sahibganj
5. District Mining Officer, Sahibganj .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioners : Mr. Nilesh Kumar, Adv.
For the Respondents : Mr. Sanjay Kumar Tiwari, S.C.I
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th
04/Dated: 15 April, 2024
I.A No.11699 of 2023
1. The present interlocutory application has been filed for amending the paragraph No.1 and prayer portion of the present criminal writ petition.
2. Considering the reasons assigned in the present interlocutory application, the present interlocutory application is hereby, allowed.
3. The learned counsel for the petitioner is directed to make out necessary correction in the present criminal writ petition during course of the day.
W.P. (Cr.) No.716 of 20231. Heard the parties.
2. The present criminal writ petition has been filed for following reliefs:-
"(i) That by virtue of the present writ petition, the petitioners intend to move this Hon'ble Court for issuance of appropriate writ/order/ direction or a writ in the nature of certiorari for quashing of order dated 23.08.2023 passed by Chief Judicial Magistrate, Sahibganj in connection with Borio (J) P.S Case No. 302/2022 by which prayer for release of vehicles by the petitioners has been rejected only on the ground that confiscation proceeding has been initiated and because of which, release of vehicles would not be proper. However, the said order is arbitrary and without application of judicial mind.
And That, the petitioners further pray for issuance of appropriate writ/order/direction upon concerned respondents to discontinue/withhold the entire confiscation proceeding which has been initiated vide order dated 20.3.23 (Annexure-4) passed by learned Deputy Commissioner-cum-District Magistrate, Sahibganj passed in Confiscation Case No.112/2022-23 in connection with Borio (J) P.S. Case No.302/22 lodged for the offences under Sections 175, 379, 414, IPC, 4 and 54 JMMC Rule 2004, 21 (A)/ 21 (6)/22 MMDR 1997 and 7/09 Jharkhand Minerals (Prevention of Illegal Mining) Transportation and Storage Rule 2017, by which notice was ordered to be issued for the confiscation of petitioners' vehicles, though under the Central Act only competent court is authorised or competent to initiate confiscation proceedings as such initiation of the confiscation of vehicle by Deputy commissioner against the Central Act is itself without jurisdiction and illegal.
And For issuance of further writ/order or direction, directing the concerned respondents to release the petitioners' vehicles and machines bearing registration numbers/chassis numbers- JH-04M-8212, JH-05-CP-8753, JH-10-AQ-1770, JH-04-N-5274, JH-10-BZ- 2578, JH10-BZ-8234, RJ-27EA-4605, 4H3204/1820015, 107/78/2200, which sitting idle since last 9/10months.
And During the pendency of this petition, all further proceedings of Confiscation Case No.112/2022-23, pending in the court of Deputy Commissioner-cum-District Magistrate, Sahibganj, may be ordered to be stayed.
Your Lordship may graciously be pleased to quash the entire confiscation proceeding initiated by the DC-cum-District Magistrate, Sahibganj vide Conf. Case No.112-2022-23 dated 20.03.2023 initiated on recommendation of S.P. Sahibganj in connection with Borio (J) P.S. Case No.302/2022. Further, pray for a direction upon concerned respondents to consider application for release of vehicles ignoring the Conf. Proceeding initiated by the D.C as the same has been initiated absolutely against Central Act."
3. It appears that a criminal case has been lodged being Borio (J) P.S. Case No.302 of 2022 registered under Sections 175, 379 & 414 of the Indian Penal Code, Sections 21(A), 21(6) & 22 of the Mines and Minerals (Development & Regulation) Act, 1957, Rules 4/54 of the Jharkhand Minor Minerals Concessions Rules, 2004 and Rules 7/9 of Jharkhand Minerals (Prevention of Illegal Mining, Transportation & Storage) Rules, 2017.
4. It has been submitted by the learned counsel for the petitioners that the petitioners are the registered owner of the Hywa and Poclain Machines, in question, bearing registration Nos. JH-04M-8212, JH-05-CP-8753, JH-10-AQ-1770, JH-04-N-5274, JH- 10-BZ-2578, JH10-BZ-8234, RJ-27EA-4605, JCB-4H3204/1820015, Poclain Chasis No.107/78/2200 respectively, which have been seized by the District Mining Officer, Sahibganj and sent for lodging the F.I.R. The order of confiscation has been passed by the Page | 2 W.P. (Cr.) No.716 of 2023 respondent No.02, i.e., the Deputy Commissioner -cum-Deputy Magistrate, Sahibganj, in Confiscation Case No.112 of 2022-23 vide order dated 20.03.2023, which is not as per the law and no such power is vested to the Deputy Commissioner.
5. Learned counsel for the petitioners has also submitted that as per the mandate of Section 21(4-A) of the Mines and Minerals (Development & Regulations) Act, 1957, only the criminal court taking cognizance of the offence is competent to pass the order of confiscation and the Deputy Commissioner has no such power. In support of his contention, learned counsel for the petitioners has relied upon the judgment dated 08.01.2024, passed in W.P(Cr.) No.751 of 2023, by this Court and has submitted that the said issue has already been settled by this Court.
6. Considering the fact that the Deputy Commissioner is not a competent authority to pass the order of confiscation. Accordingly, the order dated 20.03.2023, passed by the District Magistrate-cum-Deputy Commissioner, Sahibganj in Confiscation Case No.112/2022-23 in connection with Borio (J) P.S. Case No.302 of 2022 is, hereby, quashed and set-aside.
7. Consequently, the order dated 23.08.2023 passed by the court of learned Chief Judicial Magistrate, Sahibganj in connection with Borio (J) P.S. Case No.302 of 2022, is also hereby, set-aside. The matter is remitted to the court below for passing fresh order in accordance with law. If any such application is filed, the court below is directed to consider the same as per the mandate of Section 21(4-A) of the Mines and Minerals (Development & Regulations) Act, 1957 and shall take a decision as early as possible.
8. With the above observation and direction, the present criminal writ petition stands disposed of.
(Rajesh Kumar, J.) Raja/-
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