Meghalaya High Court
Arising Out Of Nongstoin Ps vs . State Of Meghalaya & Anr. on 12 July, 2019
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
Serial No.1
Supplementary List-I HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.Ref. No. 1 of 2019 with
Crl.Rev.P.No. 17 of 2019
Crl.Rev.P. No. 18 of 2019
Crl.Petn. No. 19 of 2019
Crl.Rev.P. No. 21 of 2019
Crl.Rev.P. No. 22 of 2019
Crl.Rev.P. No. 23 of 2019
Crl.Rev.P. No. 24 of 2019
Crl.Rev.P. No. 25 of 2019
Crl.Rev.P. No. 27 of 2019
Date of order: 12.07.2019
In Re Reference US 395 Cr.PC
arising out of Nongstoin PS Vs. State of Meghalaya & Anr.
Case No. 30(3)2019
Shri Jimmy Sympli Vs. State of Meghalaya
Shri Marjan Lytan & Ors. Vs. State of Meghalaya
Shri Pramod Sharma Vs. State of Meghalaya
Shri Raju Singh Vs. State of Meghalaya
Smt. Dropadi Saraf Agarwal Vs. State of Meghalaya
Balateilang L. Nonglait Vs. State of Meghalaya & anr
Shri Bishit Suchiang Vs. State of Meghalaya
Shri Sudip Paul Vs. State of Meghalaya
Smti Sangita Agarwala Vs. State of Meghalaya
Coram:
Hon'ble Mr. Justice Ajay Kumar Mittal, Chief Justice
Appearance in Crl.Ref. No. 1 of 2019:
For the Petitioner/Appellant(s) : None
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. H. Kharmih, Addl.PP Appearance in Crl.Rev.P. No. 17 & 18 of 2019:
For the Petitioner/Appellant(s) : Mr. K. Paul, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. H. Kharmih, Addl.PP
Appearance in Crl.Petn. No. 19 of 2019:
For the Petitioner/Appellant(s) : Mr. S.A. Sheikh, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. H. Kharmih, Addl.PP
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Appearance in Crl.Rev.P. No. 21 of 2019:
For the Petitioner/Appellant(s) : Mr. S.A. Sheikh, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. H. Kharmih, Addl.PP
Appearance in Crl.Rev.P. No. 22 of 2019:
For the Petitioner/Appellant(s) : Mr. S.A. Sheikh, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. H. Kharmih, Addl.PP
Appearance in Crl.Rev.P. No. 23 of 2019:
For the Petitioner/Appellant(s) : Mr. P. Yobin, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. H. Kharmih, Addl.PP
Appearance in Crl.Rev.P. No. 24 of 2019:
For the Petitioner/Appellant(s) : Mr. K. Paul, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. H. Kharmih, Addl.PP
Appearance in Crl.Rev.P. No. 25 of 2019:
For the Petitioner/Appellant(s) : Mr. K. Paul, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. H. Kharmih, Addl.PP
Appearance in Crl.Rev.P. No. 27 of 2019:
For the Petitioner/Appellant(s) : Mr. SA Sheikh, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. H. Kharmih, Addl.PP
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
1. This order shall dispose of Crl.Ref.No.1 of 2019 and
Crl.Revn.Petn.Nos.17, 18, 19, 21, 22, 23, 24, 25 and 27 of 2019 as according to the learned counsel for the parties, the legal issues involved therein are identical. However, facts are being extracted from Crl.Rev.P.No.17 of 2019.2
2. In Crl.Rev.Petn.No.17 of 2019, the petitioner has filed the petition under Section 397 read with Section 401 of the Code of Criminal Procedure (in short CrPC) impugning the order dated 13.02.2019 passed by the learned Chief Judicial Magistrate, Ri-Bhoi District, Nongpoh, Meghalaya in Zimma Application No.91 of 2019 arising out of Nongpoh P.S. Case No.40(2) 2019, under Sections 188/420/120 B/109 IPC.
3. Briefly, the relevant facts as narrated in the petition may be noticed. The petitioner is the owner of the heavy goods vehicle bearing registration No.ML-04 C 5666 which is a public transport. On 06.02.2019, on the basis of some source information, the police detained the said vehicle of the petitioner bearing registration No.ML-04 C 5666 on the highway proceeding from Umde-Ronghona at Ronghona which was loaded with coal. FIR Nongpoh P.S. Case No.40(2) 2019, under Sections 188/420/120 B/109 IPC had been registered and the vehicle was seized in connection with this case. The police claimed that the vehicle was loaded with coal without any valid documents and it was transporting the coal illegally. Further, the driver of the truck, namely, Shri Thapskhem Dkhar had avoided the integrated check post of the Transport Department at Shangbangla with the intention to evade payment of royalty and tax.
4. The petitioner moved an application before the Chief Judicial Magistrate, Ri-Bhoi District, Nongpoh praying for Zimma of the said vehicle. The Chief Judicial Magistrate, Ri-Bhoi District, Nongpoh vide impugned order dated 13.02.2019 rejected the said application.
5. Learned counsel for the petitioner inter alia submitted that the Chief Judicial Magistrate had erred in declining to release the vehicle bearing registration ML-04 C 5666 on Zimma. According to the learned counsel, FIR was registered on 06.02.2019, therefore, release of vehicle would be governed by Section 451 CrPC. Support was drawn from the pronouncement of the Apex Court in AIR 2003 SC 638: Sunderbhai Ambalal Desai v State Of Gujarat.
6. It was next submitted that the vehicles are subject to speedy and natural decay as non-operation of the vehicle would lead to deterioration of not only its condition but shall also affect the user. The emphasis of the 3 learned counsel was on compliance of Section 451 CrPC to urge that retention of the vehicle besides creating additional burden on the local police to keep the seized article in proper useable condition, would result in undue financial loss to the owner of the vehicle who had no role in the commission of the crime.
7. The order of the Chief Judicial Magistrate was assailed by contending that the genesis of the impugned order has been the order passed by the National Green Tribunal (in short the Tribunal) dated 04.01.2019, whereby, the Tribunal had made a recommendation to the Committee to consider that any cranes and trucks found involved in illegal mining or transportation shall also be seized and the same be released by the concerned District Magistrates only after recovering damages to the extent of 50% of the showroom price of the vehicle or equipment. It was submitted that the advice given by the Tribunal for the consideration of the Committee and the report of the Committee dated 11.01.2019 in its seventh meeting adopting the suggestions could not have been construed adverse by the trial Magistrate. The petitioner ought to have been provided with an opportunity to prima facie establish his claim that the transporter had no role in the commission of the crime and that he was not associated with the owner of the coal in any manner. It was asserted that in such circumstances the condition contained in the order of the Tribunal dated 04.01.2019 and the report of the Committee dated 11.01.2019 was very onerous and harsh to be imposed on the petitioner for release of truck under Section 451 CrPC.
8. Learned Advocate General supported the order of the trial Magistrate declining the Zimma application filed by the petitioner. Elaborating his submission, learned Advocate General pressed that in certain impugned orders passed by the Chief Judicial Magistrate, Nongpoh Court, it has been noticed that after the order dated 04.01.2019 was passed by the Tribunal, the Committee held its seventh sitting on 11.01.2019 and has given a clear direction at point 27 of its report to all Deputy Commissioners and Superintendents of Police to seize any cranes, trucks and other vehicles found involved in illegal mining transportation of coal 4 which had not been seized and to submit the report to the Committee containing the details of release or otherwise of the cranes and trucks if already seized, and if they have been released, the conditions imposed thereon. It was further directed that the equipments and vehicles shall be released by the District Magistrate after recovering damages to the extent of 50% of the showroom price of such vehicles or equipments and the amount recovered to be credited to MEPRF, which is in consonance with the order of the Tribunal dated 04.01.2019.
9. According to him, the impugned order is as per mandate contained in the order of the Tribunal dated 04.01.2019 and the minutes of the seventh meeting of the Committee held on 11.01.2019. It was contended that the Circular dated 31.01.2019 issued by the office of the Principal Chief Conservator of Forest, Meghalaya and Head of Forest Force restricting the release of vehicles is in compliance with the order of the Tribunal and the mandate of the Committee constituted by the Tribunal.
10. I have heard learned counsel for the parties.
11. The core issue that arises in these petitions is whether the trial Magistrate/Criminal Court was legally within jurisdiction to decline Zimma application filed by the petitioners for release of the seized vehicles.
12. It would be expedient to reproduce Section 451 CrPC which reads thus:-
"451. Order for custody and disposal of property pending trial in certain cases.- When any property is produced before any criminal court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Explanation.- For the purpose of this section, "property" includes-
(a) property of any kind or document which is produced before the court or which is in its custody.5
(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."
13. Section 451 CrPC enables the court to pass an order in appropriate case for interim custody of the property pending conclusion of enquiry or trial. A Criminal Court while making an order of interim custody is empowered to prima facie examine the material produced before it by the claimant to controvert that the seized property was not in any way associated/involved in the commission of the crime. The Magistrate has to exercise proper judicial discretion at the time of passing order under Section 451 CrPC for interim custody of the seized property which is not to be made arbitrarily but in accordance with the sound principles founded on reason and justice.
14. The object of Section 451 CrPC clearly appears to be that where any property which is subject matter of an offence is seized by the police, it should not be retained in the custody of the Court or of the police for unduly long time. The Criminal Court is to pass appropriate orders with regard to the seized property, such as:
(1) for the proper custody pending conclusion of the inquiry or trial;
(2) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary;
(3) if the property is subject to speedy and natural decay, to dispose of the same.
15. The Supreme Court delving into the issue of scope and procedure for custody and disposal of valuable articles under Section 451 CrPC in Sunderbhai Ambalal Desai's (supra) held that the Criminal Court/Magistrate ought to exercise power expeditiously and judiciously as 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 panchnama before handing over possession of the 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 6
4. the jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."
16. I now proceed to refer and examine the order of the Tribunal dated 04.01.2019 on the basis of which the learned Trial Court has rejected the Zimma application as the learned Advocate General has also placed strong reliance on it. The Tribunal was dealing with the issue of threat to life arising out of coal mining in South Garo Hills on the subject of restoration of environment and rehabilitation of victims on account of illegal and unscientific Rat Hole mining in the State of Meghalaya. On the subject of restoration, the Tribunal had directed the constitution of Committee headed by former Judge of the Gauhati High Court, along with the representatives from the Central Pollution Control Board (CPCB) and Indian School of Mines, Dhanbad. By a last order, it was clarified that Additional Chief Secretary, to the Government of Meghalaya will be the member Secretary/Coordinator for proper functioning of the Committee. The said Committee had submitted its report to the Tribunal on 02.01.2019. The Committee had formulated various issues and expressed its opinion thereon. The Tribunal after recording its appreciation for the commendable work done by the Committee, expressed that the Committee may proceed further with the execution of its task. Before concluding the order, it was recorded in para 36 that the Committee may consider the following:-
"36. The Committee may also consider the following:-
1. Any cranes and trucks found to be involved in illegal mining or transportation which have not yet been seized may also be seized. The seized vehicles or equipments be released by the concerned District Magistrates only after recovering damages to the extent of 50% of the showroom price of the vehicles or equipments. The said amount may also be credited to the restoration fund.
2. Efforts may be expedited to identify victims who have suffered at least since 01.07.2012 and to assess loss to the environment and the manner of restoration.
3. Disaster Management Plan for the whole of the area „on site‟ as well as „off site‟ needs to be prepared and put into operation.
4. Appropriate technology to replace rat hole mining.7
5. Resource (coal) audit of Meghalaya Power Limited and Star Cement Limited to ascertain the legitimate procurement of coal and its source.
6. The committee may take services of NEERI Nagpur, Indian School of Mine, Dhanbad, FRI Dehradun, CPCB apart from any other agency for making assessment of the damages.
7. Survey of health of the habitants may also be considered.
8. Skill Development Programme to provide alternative means of employment to the workers involved in rat hole mining may also be considered.
9. Mitigation/restoration of impacted areas due to AMD."
17. The order of Tribunal made a recommendation to the Committee to consider that any cranes and trucks found to be involved in illegal mining or transportation which have not yet been seized may also be seized. The seized vehicles or equipments be released by the concerned District Magistrate only after recovering damages to the extent of 50% of the showroom price of the vehicles or equipments. Thereafter, the Committee on the recommendation made by the Tribunal in its seventh sitting held on 11.01.2019 adopted the said suggestions of the Tribunal in its report.
18. The order of the Tribunal dated 04.01.2019 and the report of the Committee in its seventh meeting held on 11.01.2019 nowhere carried any directions that the Judicial Magistrates/Criminal Courts shall not release the vehicles where they have been seized carrying illegal coal. In other words, the order of the Tribunal dated 04.01.2019 and the proceedings of the Committee dated 11.01.2019 would not take away the power and jurisdiction of the Magistrate/Criminal Court to adjudicate on the issue of release of seized vehicles under Section 451 CrPC. Reference is also made to the decision of the Supreme Court in (2008) 14 SCC 624: State of Madhya Pradesh & ors v. Madhukar Rao.
19. The Supreme Court in Madhukar Rao's case (supra) was considering the question whether a vehicle or vessel etc. seized under Section 50(1)(c) of the Wild Life (Protection) Act, 1972 (in short the Act) is put beyond the power of the Magistrate to direct its release during the pendency of trial in exercise of powers under Section 451 CrPC. In that case, the vehicle which was seized was used in commission of an offence 8 under the Act. The application for claiming interim possession (Zimma) was filed before the Judicial Magistrate under Section 451 CrPC. After considering the provisions of Section 50(1)(c) of the Act and Section 451 CrPC, it was concluded that there would be no impediment on the power for interim release of the seized vehicles under Section 451 CrPC by the Judicial Magistrate. It was concluded as under:-
"22. We have, therefore, no doubt that the provisions of Section 50 of the Act and the amendments made thereunder do not in any way affect the Magistrate‟s power to make an order of interim release of the vehicle under Section 451 of the Code."
20. The petitioner has claimed that he is only the carrier of the seized coal and that he had no role in the commission of the crime and that the alleged offence committed by the owner of the coal was without any knowledge of the transporter-petitioner. Accordingly, the petitioner was entitled to adduce material/evidence to prima facie establish his claim at the stage of deciding the application for interim custody of the seized vehicle under Section 451 CrPC. It is, thus, concluded that the Judicial Magistrate/Criminal Court has failed to exercise the jurisdiction vested under Section 451 CrPC.
21. It may also be noticed that in Criminal Reference No.1 of 2019, the Judicial Magistrate has referred to the Circular dated 31.01.2019 issued by the office of the Principal Chief Conservator of Forest, Meghalaya and Head of Forest Force keeping in view the observations made by the Tribunal in its order dated 04.01.2019 and the report of the Committee in its seventh sitting held on 11.01.2019 who has sought the opinion of this Court for release of the seized vehicles under Section 451 CrPC.
22. In view of the discussion above and conclusion arrived at, the said Circular dated 31.01.2019 shall be ineffective while adjudicating petition under Section 451 CrPC by the Judicial Magistrate/Criminal Court where the trial Magistrate shall afford an opportunity to the claimant-petitioner to prima facie establish his claim of innocence and non-involvement in the commission of the offence/crime.
23. Consequently, the petitions are allowed and the impugned orders declining Zimma applications are set aside. The matters are remanded back 9 to the trial Magistrate/Criminal Court to pass fresh order keeping in view the principles and guidelines enunciated above in accordance with law.
24. Criminal Reference No.1 of 2019 also stand answered in the above terms. In Crl.Petn.No.19 of 2019, the petitioner has not filed any application under Section 451 CrPC for release of vehicle on Zimma. The revision petition is disposed of by permitting the petitioner to approach the trial Magistrate for release of vehicle under Section 451 CrPC, who shall pass appropriate order thereon keeping in view the legal proposition noticed hereinbefore in accordance with law.
(Ajay Kumar Mittal) Chief Justice Meghalaya 12.07.2019 "Lam AR-PS"
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