Allahabad High Court
Navi Ahmad vs State Of U.P. And 2 Others on 18 May, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:109239
Reserved On:- 10.05.2023
Delivered On:- 18.05.2023
Case :- MATTERS UNDER ARTICLE 227 No. - 3859 of 2023
Petitioner :- Navi Ahmad
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Ghanshyam Das Mishra,Sunil Kumar Shukla
Counsel for Respondent :- G.A.
Hon'ble Siddharth, J.
1. Heard Sri G.S.D. Mishra, learned counsel for the petitioner and Learned AGA for State perused the material placed on record.
2. This application under Article 227 of the Constitution of India has been filed by the petitioner praying for quashing of the order dated 33 of 2023 passed by Chief Judicial Magistrate, Pilibhit in Misc. Case No. 322 of 2023 and praying for direction to the Chief Judicial Magistrate, Pilibhit to release the JCB No. 26T/4988 in favour of petitioner on for passing any other order within this Court may deem fit and proper under the facts and circumstances of the case.
3. The brief facts of the case are that on 17.01.2023, JCB of petitioner was seized by Station House Officer, Police Station- Sugarhi, District- Pilibhit, under Section 3 of the U.P. Minor Minerals (Concessions) Rules, 1963 read with Section 4 / 21 of the Mines and Minerals (Regulation and Development) Act, 1957. On 17.01.2023 the Mining Officer, Pilibhit has handed over the JCB in dispute to the District Magistrate / District Mines Officer, Pilibhit. On 20.01.2023 the Assistant Regional Transport Officer, Pilibhit, has sent its report to the Authorized Officer (Minerals), Pilibhit that Rs. 31,750/- has been received as compounding fee under Motor Vehicles Act and Rs. 8,000/- as road tax from the petitioner. On 20.01.2023, the petitioner moved an application before C.J.M., Pilibhit for release of the aforesaid JCB. Undisputedly, the petitioner is owner of the JCB and duly registered as such in Transport Office, Pilibhit. The Station House Officer of Police Station- Songarhi, District- Pilibhit has sent a report to the Court of C.J.M, Pilibhit in Case No. 322 M / 2023, State vs. Sher Singh stating that the aforesaid JCB is standing in the premises of the police station. Mining Officer has sent a report to the C.J.M., Pilibhit on 02.03.2023 that as per the order of District Magistrate dated 23.01.2023 Rs. 5,00,000/- has been imposed as fine on JCB and Rs. 25,000/- on tractor. It has further been stated in the report that as per the judgment of this Courtt in Criminal Revision No. 1629 of 2021, Vidhya Nand Yadav vs. State of U.P., the vehicle found involved in illegal transportation of minor minerals can only been released by the District Magistrate and the C.J.M has not power to release the same. It has further been stated in the report that the petitioner has not deposited the compounding fee which is payable to the mining department.
4. Learned counsel for the petitioner has submitted that there is allegation against the petitioner that he was involved in illegal digging of soil from the land of Pyarelal, Devi Ram and Bhoop Singh. When in the land of the aforesaid tenure holders, there is sugar-cane crop standing. He has submitted that royalty of earth soil has been declared zero as per item no. 8 of Government Order dated 28.03.2018. He has also submitted that where the vehicle is seized by the police, the authority to release the same is C.J.M as per Section 457 Cr.P.C., but where the vehicle is seized by the Mining Inspector, the authority to release the same lies with the District Magistrate. The C.J.M had failed to exercise jurisdiction vested in him by law while passing the impugned order.
5. Learned counsel for the petitioner has reiterated that where the vehicle is seized by police officer that authority to release the same and lies with the Judicial Magistrate only as upheld by this Court in Criminal Misc. Writ Petition No. 4253 of 2010, 2011 of 2015 and 237 of 2017 and also in Criminal Misc. Application under 482 Cr.P.C No. 37580 of 2022 and 377 of 2022 clearly holding that such vehicle has to be released as per Section 451 Cr.P.C. He has also placed before this Court a judgment of the Apex Court in the case of Sunder Bhai Ambalal Desai vs. State of Gujarat, 2003(46)(SC) 223 ACC wherein the Apex Court has held that no commercial vehicle can be seized by police or any other authority. He has submitted that Section 21 (4-A) of the Mining and Minerals (Development) and Regulation Act, 1957 deals only with the power of Court to release the vehicle.
6. He has further submitted that the petitioner never applied for compounding of the offence nor the Mining Officer has filed criminal complaint before the Court as per rule 77 of the U.P. Minor Minerals (Concession) Rules, 2021 within three days of the seizure of the vehicle and therefore the vehicle of the petitioner ought to have been released by C.J.M.
7. Learned A.G.A has vehemently opposed the submissions and has relied upon the judgment of this Court in Criminal Revision No. 1629 of 2021, Vidhya Nand Yadav vs. State of U.P., wherein this Court upheld the power of District Magistrate to release the vehicle found involved in illegal mining and held that powers under Section- 457 Cr.P.C., cannot be exercised where the vehicle was seized by the Mines Inspector.
8. In order to appreciate the rival contentions on the aforesaid legal issue, the relevant statutory provisions under the MMDR Act, which is an Act to provide for the development and regulation of mines and minerals under the control of the Union, may be referred to.
" Section 4 - Prospecting or mining operations to be under licence or lease.-- "(1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder" ;
Provided that nothing in the sub-section shall effect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement:
Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Explorations and Research of the Department of Atomic Energy of the Central Government, the Directorate of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government company within the meaning of Clause (45) of Section 2 of the Companies Act, 2013 (18 of 2013), and any such entity that may be notified for this purpose by the Central Government.
(1-A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.
(2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder.
(3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made under Section 18, undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease.
Section 21. Penalties.-- (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1-A) 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) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention.
(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of Section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.
(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land and 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 or authority specially empowered in this behalf.
(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.
(5) Whenever any person raise, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or where such mineral has already been disposed of, the price thereof, and may also recover from such person rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable.
Section 22. Cognizance of offences.-- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or State Government.
Section 23-A. 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."
9. Section 4 of the MMDR Act, and in particular, sub-section (1-A) thereof, puts a total restriction on the transportation or storage of any mineral, otherwise than in accordance with the provisions of the Act and the Rules made thereunder. Section 21 provides for penalties in respect of contravention of the provisions of sub-section (1-A) of Section 4. As per terms of sub-section (4) of Section 21, whenever any person raises, without any lawful authority, any mineral from any land and for that purpose, uses any mineral, 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 or authority especially empowered in this behalf. Sub-section (4-A) provides that the things seized under sub-section (4) shall be liable to be confiscated by an order of the Court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such Court.
10. Section 22 relates to cognizance of offence and in terms thereof no court shall take cognizance of any offence punishable under the MMDR Act or any rules made thereunder except upon complaint in writing by a person authorised in this behalf by the Central Government or the State Government.
11. Section 23-A is in respect of compounding of offences wherein any offence punishable under the Act or any rules made thereunder, may, either before or after the institution of the prosecution, be compounded by the person authorised to make a complaint, on payment to that person for credit to the Government of such sum as that person may specify. As per terms of sub-section (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 offence so compounded and the offender, in custody, shall be released forthwith.
12. Under the Concession Rules, the subject matter relating to contraventions, offences and penalties are dealt with under Chapter VII, and Chapter VIII contains miscellaneous provisions. The provisions of the Concession Rules, which are relevant for the purpose of the controversy at hand, may be adverted to.
"74. Cognizance of offences.--(i) No court shall take cognizance of any offence punishable under these rules except on a complaint in writing of the facts constituting such offences by the District Officer or by any officer authorised by him in this behalf.
(ii) No court inferior to that of a Magistrate of the first class, shall try any offence under these rules.
75. Compounding of offence.-- (1) Any offence punishable under these rules may, either before or after the institution 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.
77. Appeal.-- An appeal against an order passed under these rules by the District Officer or the Committee shall lie to the Divisional Commissioner within a period of sixty days from the date of communication of such order to the party aggrieved.
78. Revision.-- The State Government may, either suo moto at any time or on an application made within ninety days from the date of communication of the order, call for an examination of the record relating to any order passed or proceeding taken by the District Officer Committee, Director or the Divisional Commissioner under these rules and pass such orders as it may think fit."
13. Rule 74 relates to cognizance of offence and as per terms thereof, no court shall take cognizance of any offence punishable under the rules except on a complaint in writing of the facts constituting such offence by the District Officer or by any officer authorised by him in this behalf.
14. Rule 75 is in respect of compounding of offence which provides that any offence punishable under the rules made before or after institution of the prosecution, be compounded by the District Officer or by any such officer as the State Government may authorise in this behalf on payment to the State Government of such sum as such officer may specify. Sub-rule (2) mandates that where an offence is compounded under sub-rule (1), no proceeding or further proceeding shall be taken against the offender in respect of offence so compounded.
15. Rule 77 provides for an appeal to a Divisional Commissioner against an order passed under the rules by the District Officer or the Committee and Rule 78 contains the revisional powers of the State Government.
16. Section 457, which falls under Chapter XXXIV of the Code and pertains to disposal of property, may also be referred to, and the same reads as follows :-
"457. Procedure by police upon seizure of property.--(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
17. In the present case, the clear facts are that the vehicle in dispute was seized by the S.H.O., Police Station- Sungarhi, District- Pilibhit, respondent no. 3. In case of Vidhya Nand Yadav (supra) passed by this Court, the minor mineral was seized by Mining Inspector, hence, this Court held that the C.J.M., had no jurisdiction to release the same since only when the vehicle loaded illegally with minor minerals seized by police officer it can be released by the C.J.M.
18. Section 21 (4a) is specific on the point that the competent court i.e., Magistrate is competent to confiscate the vehicle and is also competent to dispose it of in accordance with directions given by it. The District Magistrate or the Collector or any other authority has not been given power to confiscate the vehicle either under the act, or in the rules. This power is reserved for the Court, which is a competent to try the case after a complaint in respect of which same has been filed by the District Magistrate/ Mining Authority.
19. In this view of the matter, it cannot be said that the Magistrate has no jurisdiction to release the vehicle pending trial or even before the trial, when the complaint has not yet been filed by the competent authority. The District Magistrate or Judicial Magistrate cannot compel the petitioner to compound the case against her will. If the petitioner is not ready to compound the case, she cannot be compelled to do so. Since the complaint has not yet been filed even after a period of nine months from the incident, a vehicle lying at the police station is likely to become junk, and it was desirable for the Magistrate to pass an order for release in favour of its registered owner subject to certain conditions, which he might impose. Even under Section 457 Cr.P.C. Magistrate had the jurisdiction to release the truck in favour of its registered owner since there is no other provisions in either the act or the rules for release of the vehicle.
20. In view of the aforesaid, the order passed by the C.J.M., Pilibhit cannot be sustained. He has failed to exercise the jurisdiction vested in it by law. Chief Judicial Magistrate has ample authority to release the vehicle under Section 21 (4a) of the Act as well as Section 457 Cr.P.C.
21. The petition is allowed.
22. Impugned order dated 03.03.2023 is quashed.
23. Chief Judicial Magistrate, Pilibhit is directed to pass appropriate order on the release application of petitioner afresh releasing the JCB in dispute within a period of one week from the date on which a certified copy of this order is produced before him on such terms and conditions as he deems fit and proper as per the law.
Order Date :- 18.05.2023 Rohit