Allahabad High Court
Ramraj Singh vs State Of U.P. on 8 September, 2020
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- CRIMINAL REVISION No. - 1173 of 2020 Revisionist :- Ramraj Singh Opposite Party :- State of U.P. Counsel for Revisionist :- Birendra Singh Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Learned A.G.A. filed counter affidavit, today, in the court, is taken on record.
Heard Mr. Birendra Singh learned counsel for the revisionist and the learned A.G.A. for the State. Perused the record.
This criminal revision has been filed challenging the order dated 28.2.2020 passed by Chief Judicial Magistrate, Kaushambi, in Complaint Case No. 3899 of 2019 (Khan Adhikari Kaushambi Vs. Ramraj Singh) under sections 21 of Mines and Minerals (Regulation and Development) Act, 1957, Rules 3, 57, 70 of U.P. Minor Mineral (Concession) Rules 1963 and U.P. Minor Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, P.S. Paschim Sarira, District Kaushambi.
From the record, it appears that the revisionist had stored certain amount of mooram, although he did not possess the licence for storage of such minor mineral. It is the case of the revisionist that the revisionist has transported 3000 cubic meter sand through valid transportation Form MM-II and made full payment of sale consideration but only allegation against the revisionist is that he has not obtained the storage license.
However, upon perusal of the record, the Court finds that the Mines Officer, Kaushambi filed a complaint dated 20.9.2019 in the Court of the C.J.M., Kaushambi, in terms of section 4/21 of the Mines and Minerals (Regulation and Development) Act, 1957, Rules 3, 57, 70 of the U.P. Minor Minerals (Concession) Rules 1963 and U.P. Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules 2002 on the ground that the revisionist has stored 3000 cubic sand even when there is no licence in favour of the revisionist legally authorizing him to store the minor mineral namely mooram. This complaint was registered as Complaint Case No. 3899 of 2019 (Khan Adhikari Kaushambi Vs. Ramraj Singh) under sections 21 of Mines and Minerals (Regulation and Development) Act, 1957, Rules 3, 57, 70 of U.P. Minor Mineral (Concession) Rules 1963 and U.P. Minor Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules.
During the pendency of the complaint, the revisionist filed a release application dated 3.10.2019 before the C.J.M., Kaushambi, praying therein that the seized mineral mooram measuring about 3000 cubic metres may be released in his favour. On this application, the C.J.M. Kaushambi, passed an order dated 28.2.2020 and rejected the release application dated 3.10.2019 filed by the revisionist.
Feeling aggrieved by the order dated 28.2.2020 passed by the C.J.M. Kaushambi, the revisionist has now come before this Court by means of the present criminal revision.
Learned counsel for the revisionist submitted that the disputed mineral i.e. mooram was seized in the month of September, 2019. On the aforesaid premise, it is submitted that in view of the law laid down by the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in 2003 (46) ACC, 223, the C.J.M., Kaushambi, ought to have released the seized minor mineral in favour of the revisionist after taking recourse to any of the safeguards as mentioned in the aforesaid judgement itself. Reliance was placed upon paragraphs 6, 7 and 14 of the aforesaid judgement which are reproduced herein below:-
"6. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.
7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and another, [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under:-
"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance."
The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property.
To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest Valuable Articles and Currency Notes
14.In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles."
Learned counsel for the revisionist next invited the attention of the court to the Division Bench Judgment of this Court in the case of Rajendra Singh Vs. State of U.P. reported in Laws (ALL) 2015-3-105, wherein the Division Bench has categorically held that the District Magistrate has no power whatsoever to deal with the seized minerals, vehicle, plant and machinery etc. used in illegal activities as per the Mines and Minerals (Regulation and Development) Act, 1957. Paragraphs 15, 16, 23, 24 and 25 of the aforesaid judgement which are relevant for the issue in hand are extracted herein under:-
"15. The Act contemplates compounding of an offence by authorized officer only, which in the facts of the case, would be the District Magistrate. But so far as the confiscation and disposal of the minerals, tool, vehicle etc. is concerned, the same is controlled by Section 21 (4) read with Section 21 (4A) of the Act 1957.
16. 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 Sub Section (1) of Section 21;
(c) The mineral, tool, vehicle etc. have to be disposed of in accordance with the direction of such Court;
23. We also find that under the Act 1957 no power has been conferred upon the District Magistrate or for that purpose on any other authority to dispose of the seized good except upon the Court under Section 21 (4A).
We may record that in the facts of the case there is no finding by the District Magistrate that the mooram was raised and transported by a person legally entitles to do so. There can be no storage of minor-mineral at a place different from the mine without it being raised and thereafter being transported to the place where it is stored. Therefore, in respect of stored minor-minerals unless it is specifically established by material evidence that the minor-mineral was raised and thereafter transported by a person legally entitles to do so to the place where it is stored, the same, i.e., mooram has to be seized under Section 21 (4) and, thereafter confiscated and disposed of as per Section 21 (4A) of the Act 1957.
24. The judgment in the case of Chandar Bhushan Misra is on the facts of that case. The facts of the case in hand are much different to those of Chandar Bhushan Misra. It has been repeatedly held by the Hon'ble Supreme Court that a little difference in the facts or additional facts may make a lot of difference in the precedential value of a judgment (Reference Bhavnagar University Vs. Palitna Sugar Mills (P) Ltd. Ors., 2003 2 SCC 111, which has recently been followed in the case of Rajveer Singh Vs. Chaudhary Devi Lal, 2008 AIR (SCW) 5817.
25. Accordingly, we hold that the release of the mineral (sand) in the facts of the case as directed by the District Magistrate, itself is without authority. The seized minerals have to be placed before the court concerned for confiscation and disposal in view of Section (4A) of the Act 1957. "
Consequently, it is urged by learned counsel for the revisionist that the power regarding the compounding of the offence is with the District Magistrate, but the power to release the seized minor mineral is with the Court, i.e. the C.J.M., Kaushambi, where the complaint has been filed. In view of the conclusion drawn by the Division Bench of this Court in the case of Rajendra Singh (supra), learned counsel for the revisionist is right in making the aforesaid submission.
In the light of the aforesaid, it is next submitted by the learned counsel for the revisionist that the impugned order passed by the Chief Judicial Magistrate, Kaushambi, is, therefore, manifestly illegal and has resulted in miscarriage of justice. Elaborating his submission, the counsel for the revisionist submits that the C.J.M., Kaushambi has not adverted himself to the directions issued by the Apex Court in the case of Sunderbhai Ambalal Desai (supra) nor has he adverted to the fact that the offence complained of against the revisionist is compoundable in terms of Section 23 A of the Mines and Minerals (Regulation and Development) Act, 1957. For ready reference the Section 23 A of the aforesaid Act is quoted herein below:-
"Compounding of offences.--
(1) Any offence punishable under this Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under Section 22 to make a complaint, to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify:
Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence.
(2) Where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, in custody, shall be released forthwith."
He has further invited the attention of the Court to the provisions of Rules 75 of the U.P. Minor Minerals (Concession) Rules 1963 which are as under:-
"75. Compounding of offence-(1) Any offence punishable under these rules may, either before or after this impution of the prosecution, be compounded by the District Officer or by such officer as the State Government may by general or special order authorise in this behalf on payment to the State Government of such sum as such officer may specify:
Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine, which may be imposed for that offence.
(2) Where an offence is compounded under sub-rule (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded and the offender if in custody, shall be released forthwith.
(3) The officer compounding the offence under sub-rule (1) shall maintain a register showing the following details--
(a) Serial number (by financial year).
(b) Name and address of the offender.
(c) Date and details of offence.
(d) Sum of compounding amount and date of its payment.
(e) Signature of the officer with date and seal."
On the basis of the aforesaid provisions, it is urged that once the offence complained of against the revisionist is compoundable, the C.J.M. Kaushambi ought to have considered the release application filed by the revisionist in the light of the aforesaid as well as the judgements referred to herein above. Thus, it is submitted that the impugned order passed by the C.J.M., Kaushambi, is liable to be set aside by this Court.
Learned A.G.A. appearing for the State could not dispute the submissions raised by the learned counsel for the revisionist. However, referring to the averments made in the counter affidavit filed on behalf of the opposite parties today, he submits that there is nothing on the record to establish that the revisionist was having a licence for storage of minerals as contemplated under Rule 8 of U.P. Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules 2002. He further submits that even in the criminal revision filed by the revisionist, no such document has been appended on the basis of which it can be reasonably presumed that the revisionist has even applied for the grant of licence as contemplated under Rule 8 of the 2002 Rules. He, therefore, submits that as the revisionist did not have the requisite licence for storage of mooram, the action of the revisionist in storing the mooram is manifestly illegal. Therefore, it is urged that the impugned order dated 28.2.2020 passed by the C.J.M., Kaushambi refusing to release the seized mooram in favour of the revisionist is perfectly just and legal.
Having considered the rival submissions raised by the parties as well as the law on the subject as crystallized in the above quoted judgements, this Court is of the considered opinion that the Magistrate has erred in refusing to entertain the release application on the grounds as mentioned in the order dated 28.2.2020. From the discussions made herein above, it is clear that the offence alleged against the revisionist is compoundable and such power is with the District Magistrate. In spite of the time having been granted to the learned A.G.A., nothing has been brought on record to show the action taken by the D.M. Kaushambi in this regard. However, it may be noted that the Court does not find any legal impediment in compounding the offence complained against the revisionist. Secondly, the power to release the seized mineral, tool, vehicle etc., is with the Court as settled by the Division Bench judgement of this Court in the case of Rajendra Singh (supra). Lastly, the Apex Court in the case of Sunderbhai Ambalal Desai (supra) had already issued a general mandamus that the seized items should not be retained unnecessarily. In the light of the settled legal position, the Court finds that the C.J.M., Kaushambi has dealt with the matter in a very casual manner. He has not at all adverted to the proposition laid down by the Apex Court in the case of Sunderbhjai Ambalal Desai (supra) nor has he recorded a finding as to why it is not congenial in the facts and circumstances of the case to deny the release of the seized mooram.
For all the reasons given herein above, the present criminal revision succeeds and is allowed. The impugned order dated 28.2.2020 passed by the Chief Judicial Magistrate, Kaushambi, is hereby quashed. The matter is remanded to the C.J.M., Kaushambi, with a direction to decide the release application filed by the revisionist afresh within a period of one month from the date of presentation of a certified copy of this Order in the light of the observations made herein above.
Order Date :- 8.9.2020 Vibha Singh