…. Sushil Agarwal @ Sushil Kumar Agarwal … v. PRESENT
Case Details
-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 795 of 2020 …. Sushil Agarwal @ Sushil Kumar Agarwal …… Petitioner The State of Jharkhand Versus ----- PRESENT …… Opp. Party HON'BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the State ----- : Mr. Ajit Kumar, Senior Advocate Mrs. Richa Sanchita, Advocate : Mr. Rajiv Ranjan, learned Advocate General Mr. Deepankar, AC to learned Advocate General Mr. Prabir Kumar Chatterjee, Spl. P. P. …… ORDER C.A.V. on 28/02/2023 Pronounced on 12/12/2023 …. This Criminal Revision No. 795 of 2020 has been filed on behalf of the petitioner challenging the order dated 12.03.2020 passed by Sri Taufique Ahmed, learned Chief Judicial Magistrate, Latehar in Miscellaneous Criminal Application No. 1517 of 2019 arising out of Balumath P. S. Case No. 141 of 2019 by which learned Chief Judicial Magistrate, Latehar has rejected the application preferred for release of seized 13000 Tons of Coal. 2. The prosecution case, in brief, is that one Krishna Kumar Kisku, District Mining Officer, Latehar had lodged a First Information Report alleging therein that on 21.06.2019 during the course of raid while the informant along with the other officials and police personnel reached at Kusmahi Railway Siding Gate no. 1 and 02 and found 21000 Metric Tons coal was being illegally stored by 5 different companies namely JBK & Godawari Commodities Ltd., JVTS Ltd., Kasmahi Shramik Sahyog Samiti, M/s Sangita Sales Pvt. Ltd. and M.B. Power Ltd. and in course of the enquiry, some villagers who were present there, stated that the -2- aforesaid companies after purchase of coal from the Amrapali coal project of C.C.L by way of e-auction/linkage, had illegally dumped the said coal at Samarsot and Hempur and after getting the rack for coal railment from Railways, transport the same illegally, and also caused pollution in the area. 3. Heard learned Senior Counsel for the petitioner and learned Advocate General for the State. 4. It is submitted by the learned Senior Counsel for the petitioner that the impugned order dated 12.03.2020 passed by the learned CJM is illegal, arbitrary and not sustainable in the eyes of law. It is submitted that the impugned order is bad in law as well as on facts. It is submitted that no offence u/s 379/414/420 of IPC is made out. It is submitted that the petitioner is the Manager of M/s Janki Cokes Traders Pvt. Ltd. and who has been authorized by ACC Ltd to transport the coal purchased by ACC Ltd. from CCL, Amarapali and CCL Magadh Mines to ACC Ltd. Chaibasa Cements Works, Jinkpani and as per the terms of transport agreement, the petitioner’s company is the holder in due course with respect to the coal till it reaches its destination at Jinkpani. It is submitted that on 03.04.2019, a consignment of the railway has been booked by the petitioner’s company for the purpose of transportation of coal which has been legally purchased from CCL and has been brought to Railway siding at Kusmahi which was to be transported to Jinkpani. It is submitted that the petitioner has got a valid document of the seized coal in question and there is no illegality regarding the purchase of the coal. It is submitted in the supplementary affidavit dated 22.06.2021 the State has taken plea that the petitioner and his company have been conducting work of transportation of coal since long for the ACC Cement. It is -3- submitted that the petitioner had brought coal to the Railway siding Kusmahi in light of the order of the Railway Movement (Ministry of Railways), Kolkata by which (ACC) M/S ACC Associated Cement Company) Ltd. has been granted permission to load the coal from the booking station, Kusmahi and unloading point is shown at Jinkpani and the petitioner is Transporter of the said ACC Company, which will appear from Annexure-2. It is submitted that even the authorities had found difficulty that from April, 2019 to June, 2019, there were not in a position to allot and allow new storage of coal and this created impediment for the petitioner to carry of the transportation work and due to which coal was kept laying and even after passage of time of the permit. It is submitted in the 1st counter affidavit filed by the State on 26.07.2021 that the State Authorities has merely taken plea that the investigation is
Legal Reasoning
going on and the FIR was lodged by the Competent Authority. It is further submitted in the 2nd counter affidavit filed by the State through S. P., Latehar on 20.09.2021, the State has again taken a plea that investigation is going on for the allegation under Section 379/414/420 of the Indian Penal Code. However, FIR has been lodged by the District Mining Officer, who is not authorized to lodge the FIR under Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act, 1974 and as such, IO has been directed to sent written information to the State Pollution Control Board for getting advice and opinion in this matter and I.O has sought information from the State Pollution Control Board vide Memo No. 499 dated 16.09.2021. It is submitted that even the police authorities have admitted that the police has not taken any action against the accused persons for violation of the Air and Water -4- Pollution Act. It is further submitted in the 3rd counter affidavit filed on behalf of the State through SDPO, Balumath, Latehar in light of the order dated 27.09.2022 passed by this Court, the State Authorities have taken a plea for the first time that the Trucks had deviated from the routes and the coal involved and seized in this case does not have CTO/CTE certificate. It is submitted that last and 4th counter affidavit has been filed on 23.11.2022 and in the said counter affidavit also, the State has taken the stand that the District Mining Officer has requested the Deputy Commissioner, Latehar to pass the order and confiscate and seize the alleged Coal as per the Rule 11 (V) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage), Rules, 2017 vide order dated 15.10.2022. It is submitted that more than five years have been passed and the Coal is still lying in open sky. It is submitted that in view of the judgment reported in Sunderbhai Ambalal Desai Versus State of Gujarat reported in (2002) 10 SCC 283, the Court may be directed to release the coal in question in favour of the petitioner. It is submitted that the judgment reported in the case of Jayant and Ors. Versus State of Madhya Pradesh and in the case of State of Madhya Pradesh Versus Jayant reported in (2021) 2 SCC 670, the judgment is not applicable in the case of the petitioner as it relates to on the point of investigation and power of Court to take cognizance. It is submitted that Rule 11 (v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage), Rules, 2017 is not applicable in the facts and circumstances as meaning of the Court has not been properly explained, rather the Court of Deputy Commissioner has been shown instead of the Court of Judicial Magistrate or the Civil Court and as such, the impugned order may be set aside in the -5- interest of justice and the Coal may be released in favour of the petitioner. 5. On the other hand, learned Advocate General has submitted that this Criminal Revision Application is devoid of merit. It is submitted that no illegality has been committed by the learned Court below while passing the impugned order dated 12.03.2020. It is submitted that the petitioner is not the real owner of the Coal in question and the petitioner is merely a Transporter and as such, the Coal cannot be released in favour of the petitioner. It is submitted that FIR has been lodged by the District Mining Officer and who is competent and authorized to lodge the FIR in view of the violation of Section 4 (1-A) of the MMDR Act, 1957. It is submitted that as per the provision of Section 4 (1-A) of the MMDR Act, 1957, no person can transport or search any mineral without the previous permission of the authority concerned and as such, dumping of the coal by the petitioner at the Railway siding on the Government land is illegal and as such, the District Mining Officer has rightly lodged the FIR. It is submitted that investigation remained pending in view of the fact that the Authorized Officer under Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act, 1974, had not accompanied with the Informant and as such, it has led to investigation pending and the State Government Authorities are obtaining permission from the Pollution Control Board. It is submitted that it is evident from the FIR that the petitioner was carrying the Coal without a certificate of CTE and CTO and the petitioner had dumped the coal in the Raiyati/Government Land without prior permission of the District Administration without -6- CTE and CTO Certificate, which is clear from para-17 of the case diary. It is further submitted that FIR has been lodged by the District Mining Officer under the Provision of Section 22 of the MMDR Act and District Mining Authority is duly authorized person to lodge the FIR if he finds complaint to carrying and dumping the Coal on Government Land without permission. It is submitted that Superintendent of Police, Latehar and I.O. have made communication with the Pollution Control Board, Ranchi, Jharkhand Vide Memo No. 499 dated 16.09.2021 (which is enclosed as Annexure-A/1 in the 2nd Counter Affidavit filed on behalf of the State) that necessary opinion may be given for instituting the case under Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act, 1974. It is further submitted that Trucks of the petitioner’s company have deviated from the routes and they were not authorized to ply from Trucks on the routes. It is submitted that during investigation it was found that 21000 MT of Coal was dumped near Kusmari Railway Siding Gate No. 1. It is submitted that during investigation, it was found that the Coal was purchased by power company in question from E- challan no. C51902053/1335 dated 18.06.2019 and E- Challan No. C51902053/1522 dated 20.06.2019 and the coal was purchased from Amarpali Project of CCL to Prayagraj Power Generation Company Ltd., Lohgara, Bara, Allahabad through Kusmahi Railway Siding Gate Nos. 1 and 2, Mauza-Semarsot and Hempur through transportation of Truck/Hyva and challan was issued and it was mentioned in the challan i.e. place of delivery material is at Lohgara, Bara, Allahabad, UP. and therefore Trucks/Hyvas were used for transportation of coal at different -7- places instead of place of delivery mentioned in the challan, which resulting in violation of Rule 8(3) of the Jharkhand Mines Mineral Dealers Rules, 2007. It is submitted that land was being used by the petitioner without permission from the District Administration and without getting registered as dealer and further without getting CTE and CTO from the Pollution Control Board and thus, illegal activity was being carried out and as such, FIR was lodged against the accused persons and the company. It is submitted that during investigation, witness namely Ravi Kumar, who is Circle Officer at Balumath, has supported the case of the informant and has stated that the coal was found at Kushmahi Railway Siding Gate Nos. 1 and 2 and earned 5000 MT Coal and 16000 MT Coal respectively
Legal Reasoning
was found and one Ajay Singh, Supervisor of Ms. Sangeeta Sales Pvt. Ltd. for storing Coal and has stated coal as five companies, which are serial no. 1 JBK and Godawari Commodities Ltd. through its operator Sudesh Kedia, Vishwajit Kumar Yadav @ Lakhu Yadav, Bablu Yadav, Nepal Yadav and 02, JVTS Ltd. through its Manager and 03, Kusmahi Sharmik Sahyog Samiti, Balumath Reg. No. 19/18 and 04. Ms. Sangeeta Sales Pvt. Ltd. through its Manager and 05. M. B. Power Ltd. through its Manager and others were storing their coal mentioned in Para-4 of the case diary. Witnesses namely Subash Kumar Paswan, Officer In-charge of Balumath Police Station, Ajay Tana Bhagat, SIS Security Guard, Pramod Kumar Ganjhu, SIS Security Guard, Kusmahi Siding whose statements have been recorded in para-5, 9 and 10 of the case diary, have also stated that the accused persons have dumped their coal without CTE and CTO. It is submitted that witness Narendra Yadav, whose statement was recorded in para-17 of the case diary, has stated that Trucks were found at the deviated place. -8- It is submitted that SDPO, Balumath and S. P., Latehar have also found evidences true, which is mentioned at para-25 and 58 of the case diary. It is submitted that Section 41 (A) notices have been issued to one Jitram Ganjhu and Indra Raj Bhadoria, which are mentioned at para-86 and 117 of the case diary. It is submitted that para-139 of the case diary contains report of Finance Transport Inspector and document and details sought from Project Officer, Amarpali Project CCL by IO, which is mentioned at para-188 of
Decision
the case diary and hence in view of the above prayer for release of coal may be rejected. It is further submitted that judgment rendered in the case of Sunderbhai Ambalal Desai Versus State of Gujarat reported in (2002) 10 SCC 283 is not applicable of the case of the petitioner. It is submitted that as per the judgment rendered in the case of Jayant and Ors. Versus State of Madhya Pradesh and in the case of State of Madhya Pradesh Versus Jayant reported in (2021) (2) SCC 670, FIR has been validly lodged by the District Mining Officer and even the Magistrate can take cognizance regardless of the complaint that may be filed of Authorized Officer in respect of MMDR Act/ Rules Offences and even proper authority of Pollution Control board has not lodged complaint Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act, the Court is authorized to take cognizance and Criminal Revision 795 of 2021 may be dismissed. 6. It is further submitted that as per Rule 11(i)(vi) of Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, District Mining Officer is authorized to stop, check, search and verify at any place/truck/Other Vehicle carrying the minerals/ore from the mine or other source or storage -9- and seize and if found dumped without permission of District Administration and Rule 11(v) of Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 any minerals, tool, equipment, vehicle or anything seized shall be liable to be confiscated by an order of the court of the Deputy Commissioner of the concerned district and shall be disposed of in accordance with direction of such court. It is submitted that any steps have been for the Confiscation Proceeding for confiscating of seized coal in question and as such this Criminal Revision Application has become infructuous and the petitioner may be directed to appear before the Confiscation Authority and who may decide the case of the parties as expeditiously as possible within a period of six weeks from the date of receipt of a copy of this order and this Criminal Revision Application has become infructuous and may be dismissed. 7. Perused the Records and the impugned order passed by the learned Court below and supplementary affidavit dated 22.06.2021 filed by the petitioner and counter affidavit dated 26.07.2021 and 20.09.2021 and 18.10.2022 and 23.11.2022 filed by the State and considered the submissions of learned counsel for both the sides. 8. It appears that the District Mining Officer has lodged FIR u/s 379/414/420 of IPC and section 21 (4) (A) of MMDR Act and Section 37 of Air (Prevention and Control of Pollution) Act and Section 44 of Water (Prevention and Control of Pollution) Act on 21.06.2019 against the five companies namely (1) JBK and Godawari Commodities Ltd. through its operator Sudesh Kedia, Vishwajit Kumar Yadav @ Lakhu Yadav, Bablu Yadav, Nepal Yadav and (02) JVTS Ltd. through its Manager and (03) Kusmahi -10- Sharmik Sahyog Samiti, Balumath Reg. No. 19/18 and (04) Ms. Sangeeta Sales Pvt. Ltd. through its Manager and (05) M. B. Power Ltd. through its Manager and others for illegal storing of coal to the extent of 5000 MT and 16000 MT total 21000 MT Coal at Kusmahi Railway Siding Gate No. 1 Mouza Samarsot and Mouza- Haimpur during surprised check by the informant- Krishna Kumar Kisku, District Mining Officer along with Jai Prakash Jha, SDO Latehar and Sri Ravi Kumar, Circle Officer at Balumath and Sri Subhash Kumar Paswan, Officer In-charge, Balumate and also with armed police force. 9. It has been alleged that during investigation and enquiry, it has been informed by one Ajay Kumar, M/S Sangeeta Private Sales Ltd that the above five companies, as named in the FIR, are storing coal at Railway Siding Gate Nos. 1 and 2 illegally. 10. It is stated that at both the place approx 21,000/- MT Coal and one E Challan and one register have been seized with respect to illegal coal. On enquiry from the villagers near the place of search, it was informed that total eight acres i.e. plot 895 Mauza- Semarsot measuring 2.00 acre, Mauza Hempur Plot No. 902 area approx. 2.00 acre and Mouza Hempur Plot Nos. 1068, 1069, 1070, 1071, 1072, 1073, 924, part of 930 and part of 931 area approx four (04) acres and there have been 5000 MT and 16000 MT of coal have been stored and they are being sent through the Railway by Coal Railment on being available of racks, but they are transporting the same without e-mining permit challan, which is illegal and pollution is being caused at large scale. It has also been alleged that above five companies are storing coal without having permission of CTE Certificate and CTO Certificate and without taking permission from local administration. -11- 11. It transpires that though the FIR was lodged on 21.06.2019 under Section 379/414/420 of the Indian Penal Code and Section 21/4 (1A) of the MMDR Act and under Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act, 1974, but the investigation is still pending, though the State Authorities has stated that District Mining Officer is authorized to lodge the FIR under Section 21 of the MMDR Act. 12. It further appears that so far as the purchase of coal in question, the same have not been disputed by both the sides and even the State Authorities have stated that the coals were purchased by all the five (05) companies including the petitioner –company in question. However, the State has mainly disputed the storage of coal and for causing pollution by dumping the ‘Coal’ and for storing ‘Coal’ without prior permission of the District Administration on the Government land measuring area eight (08) acres of land as mentioned in the above FIR and for the sake of repetition, the same is not being repeated here. 13. Before entering into the merit of the case, it would be relevant to quote Section 4(1-A), Section 4-A, Section 8 and Section 21(1) and Section 21(4), and Section 22 of the MMDR Act reads as follows:- “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, a mining lease, granted under this Act and the rules made thereunder]: Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in -12- accordance with 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 Exploration and Research] of the Department of Atomic Energy of the Central Government, the Directorates 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]:] [Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease mining concession or by any other name) in force immediately before the commencement of this Act in the Union territory of Goa, Daman and Diu.] [(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 [mineral concession] [4A.Termination of prospecting licences or mining leases.―(1) Where the Central Government, after consultation with the State Government, is of opinion that it is expedient in the interest of -13- regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution, or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for conservation of mineral resources or for maintaining safety in the mines or for such other purposes, as the Central Government may deem fit, it may request the State Government to make a premature termination of a prospecting licence or mining lease in respect of any mineral other than a minor mineral in any area or part thereof, and, on receipt of such request, the State Government shall make an order making a premature termination of such prospecting licence or mining lease with respect to the area or any part thereof. (2) Where the State Government [ ***] is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for such other purposes, as the State Government may deem fit, it may, by an order, in respect of any minor mineral, make premature termination of prospecting licence or mining lease with respect to the area or any part thereof covered by such licence or lease. [ * * *] (3) No order making a premature termination of a prospecting licence or mining lease shall be, made except after giving the holder of the licence or lease a reasonable opportunity of being heard. (4) Where the holder of a mining lease fails to undertake [ production and dispatch] for a period of [two years] after the date of execution of the lease or having commenced [ production and dispatch], has discontinued the same for a period of [two years], the lease shall lapse on the expiry of the period of [two years] from the date of execution of the lease or, as the case may be, discontinuance of the [ production and dispatch]: -14- [Provided that the State Government may, on an application made by the holder of such lease before it lapses and on being satisfied that it shall not be possible for the holder of the lease to undertake production and dispatch or to continue such operations for reasons beyond his control, make an order, within a period of three months from the date of receipt of such application, to extend the period of two years by a further period not exceeding one year and such extension shall not granted for more than once during the entire period of lease: Provided further that such lease shall lapse on failure to undertake production and dispatch or having commenced the production and dispatch fails to continue the same before the end of such extended period] Section 8. Periods for which mining leases may be granted or renewed.―(1) The provisions of this section shall apply to minerals specified in Part A of the First Schedule. (2) The maximum period for which a mining lease may be granted shall not exceed thirty years: Provided that the minimum period for which any such mining lease may be granted shall not be less than twenty years. (3) A mining lease may be renewed for a period not exceeding twenty years with the previous approval of the Central Government.] [(4) Notwithstanding anything contained in this section, in case of Government companies or corporations, the period of mining leases including the existing mining leases, shall be such as may be prescribed by the Central Government: Provided that the period of mining leases, other than the mining leases granted through auction, shall be extended on payment of such additional amount as specified in the Fifth Schedule: Provided further that the Central Government may, by notification in the Official Gazette and for reasons to be recorded in writing, amend the Fifth Schedule so as to modify the entries -15- mentioned therein in the said Schedule with effect from such date as may be specified in the said notification. (5) Any lessee may, where coal or lignite is used for captive purpose, sell such coal or lignite up to fifty per cent. of the total coal or lignite produced in a year after meeting the requirement of the end use plant linked with the mine in such manner as may be prescribed by the Central Government and on payment of such additional amount as specified in the Sixth Schedule: Provided that the Central Government may, by notification in the Official Gazette and for the reasons to be recorded in writing, increase the said percentage of coal or lignite that may be sold by a Government company or corporation: Provided further that the sale of coal shall not be allowed from the coal mines allotted to a company or corporation that has been awarded a power project on the basis of competitive bid for tariff (including Ultra Mega Power Projects): Provided also that the Central Government may, by notification in the Official Gazette and for reasons to be recorded in writing, amend the Sixth Schedule so as to modify the entries mentioned therein with effect from such date as may be specified in the said notification.] Section 21. Penalties.―[(1) Whoever contravenes the provisions of sub-section (1) or sub-section (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. ………………………….. Section 21 (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. Section 22. Cognizance of offences.―No court shall take -16- 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 the State Government” 14. It is further relevant to refer Section 11 (I) and (II) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage), Rules, 2017 and Rule 11 (V) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage), Rules, 2017, which reads as follows:- “Rule- 11:-Search, Seizure and Confiscation:- i. The following officers are authorized to stop, check, search and verify at any place/truck/Other Vehicle carrying the minerals/ore from the mine or other source or storage and seize the same as required within the jurisdiction as specified below: (i) Additional Chief In the entire State. Secretary/ Principal Secretary/Secretary /Commissioner, Mines (ii) (iii) Director of mines In the entire State Additional Director of -do- mine (iv) Deputy Director of Within their respective mine jurisdictions. (v) District Within their respective Collector/Deputy jurisdictions. Commissioner (vi) District/Assistant Within their respective Mining Officer jurisdictions. (vii) Sub Divisional Within their respective Magistrate/Any other jurisdictions/Jurisdicti officer authorized by on authorized by the the Collector collector in the District (viii) Mining Inspector. -do- -17- (ix) In –charge Check-gate -do- It shall be the responsibility of the mining lessee/dealers to ensure that their carriers afford all assistance and co-operation for such inspection. (ii) The dealer/lessee shall allow any competent authority/competent officer or any such officer authorized by competent authority to inspect the place where mining, storage and processing unit exists to verify the stocks of ore and minerals and take sample or the abstract from the records maintained by him. (v) Any minerals, tool, equipment, vehicle or anything seized shall be liable to be confiscated by an order of the court of the Deputy Commissioner of the concerned district and shall be disposed of in accordance with direction of such court” 15. It appears from the averment made in the different counter affidavit that the petitioner has put storage of coal on the Government land without prior permission of the State Administration. From going through the provision of Section 4(1-A) and 24 (1) of the MMDR Act, it is evident that no person, transporter, owner or any companies is liable to store coal without prior permission or license granted by the State Government and as such, dumping of coal or storing coal at Kusmahi Railway Siding Gate No. and 2 Mauza-Semarsot and Hempur measuring Approx eight acres mentioned in the FIR is not proper and can be treated as irregular, but at the same time, it cannot be relied that they were waiting or making available without railway wagons by the Railways Authorities. It is further evident that real owners of the coal have not come before this Court, rather it is transporter i.e. the petitioner’s company has come before this Court for seeking -18- release of the coal in question. 16. From perusal of the agreement between M/s Janki Cokes Traders P. Ltd. and ACC Ltd. dated 09.05.2019, it is evident that Agency has to ensure lifting and delivery of the same through RCR from CCL Amarapali and Magadh Mines to ACC Limited, Chaibasa Cement Works, Jinkpani, District- West Singhbhum, Jharkhand which was purchased by ACC Limited. They have mainly stated that dumping of coal at railway site and they are valid transporters, but they had failed to explain as to why the petitioner’s company had not taken prior permission either from railway for dumping the coal in question at Railway Siding. 17. It further transpires that at the same time approach of the State is not satisfactory as they are keeping the investigation pending for more than 3 and ½ years and they have not yet obtained required permission from the Pollution Control Board under Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act till date. Although the coal has been given in Jimenama by the District Administration to ACC Ltd. in question. 18. It transpires that the coal is a national assets and it stores or dumped at any place or even before the company cannot be considered as a healthy practice. 19. The impugned order passed by the learned Court below suggests that the coal was carried without CTO/CTE certificate and investigation is going on and has rejected the plea for release of coal. The stand of the State that coal is the subject to confiscation by the Court of the Deputy Commissioner, but after lapse of more -19- than 3 and ½ years, it does not appear to be satisfactory and the investigation is still pending. 20. However, steps for confiscation is taken when the matter is sub judice before this Court for around 2-3 years. This Court does not appreciate the conduct of the authorities of the State for taking steps for confiscation of the coal once the matter is in seisin before this Court and also earlier before the Co-ordinate Bench of this Court and hence, the authorities ought not to have taken steps for confiscation of coal in question, when the same is already handed over to Amarapali and Magadh in Jimenama by the Circle Officer. 21. So far as the judgment reported in Sunderbhai Ambalal Desai Versus State of Gujarat reported in (2002) 10 SCC 283 is concerned, it does not give any direction for release of coal in question as the case was mainly related to custody of golden or silver ornaments or articles studded with precious stones and for various other articles, but no coal in question was decided. 22. It has been held in the case of Sunderbhai Ambala Desai vrs. State of Gujarat reported in 2002 (10) SCC 283 at paragraphs Nos.10, 11, 12, 13, 14, 15, 16 and 17 as follows:- “Para-10:- To avoid such a situation, in our view, powers under Section 451 Cr.PC should be exercised promptly and at the earliest. Valuable articles and currency notes Para-11:- With regard to valuable articles, such as, golden or silver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, the Magistrate should pass appropriate orders as contemplated under Section 451 CrPC at the earliest. Para-12:- For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after: (1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. -20- Para-13:- For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition. Para-14:- In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the court may direct that such articles be kept in bank lockers. Similarly, if articles are required to be kept in police custody, it would be open to the SHO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the court may direct that such articles be handed back to the investigating officer for further investigation and identification. However, in no set of circumstances, the investigating officer should keep such articles in custody for a longer period for the purposes of investigation and identification. For currency notes, similar procedure can be followed. Vehicles Para-15:- Learned Senior Counsel Mr Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, a number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to their owners or to the person from whom the said vehicles are seized by taking appropriate bond and guarantee for the return of the said vehicles if required by the court at any point of time. Para-16:- However, the learned counsel appearing for the petitioners submitted that this question of handing over the vehicle to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the persons concerned. Para-17:- 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.” 23. The judgment reported in the case of Jayant and Ors. Versus State of Madhya Pradesh and in the case of State of Madhya Pradesh Versus Jayant reported in (2021) 2 SCC 670, has held at para 21, 21.1, 21.2, 21.4 as follows:- “Para-21:- After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-à-vis the Code of -21- Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under: Para-21.1:- That the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In charge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted; Para-21.2:- The bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder; Para-21.4:- That in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In-charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.” -22- 24. In the above judgment, it has been held that the learned Magistrate u/s 156(3) of CrPC can direct the Officer In-charge /SHO of the Police Station considered to lodge/register crime case/ FIR even for the offences under MMDR Act and Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted. The Hon’ble Supreme Court has further held that the Magistrate can take cognizance under Section 22 of the MMDR Act and even after the police officer has submitted the report after the investigation and Magistrate can issue of process/summons in respect of violation of various provisions of MMDR Act. Therefore, contention the learned counsel for the petitioner is not tenable that learned Magistrate cannot take cognizance, if FIR has not been lodged by the Competent Authority. 25. So far as the judgment reported in the case of Jayant and Ors. Versus State of Madhya Pradesh reported in (2021) 2 SCC 670 is concerned, the same has been passed in different context as in the above cases, the learned CJM has suo moto directed the police to lodge the FIR against Mining companies/persons on the basis of Newspaper cutting, which was challenged before the Madhya Pradesh High Court under Section 482 of the Cr. P. C. and which was dismissed by the Madhya Pradesh High Court and the Hon’ble Supreme Court has partly allowed the appeal on behalf of the said petitioners with the observation that the learned Magistrate has power under Section 156(3) of the Cr.P.C. to lodge the FIR even for the offence under the Provisions of MMDR Act and at this stage bar under Section 22 of the MMDR Act shall not be attracted. However bar under Section 22 of the MMDR Act shall be attracted when the Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and -23- orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder. 26. In the present case, the District Mining Officer has submitted written application before even the Officer In-charge for lodging the FIR and as such, the FIR has been instituted on the basis of complaint of the competent authority and as such bar under Section 22 of the MMDR Act shall not be attracted. 27. Section 4 (1-A) and 4(A) of the MMDR Act prescribes that no person shall undertake mining operation in any area except in accordance with the terms and conditions of no reconnaissance permit or of a mining lease where Section 4(A) of the MMDR Act relates to termination of prospecting licence or mining leases. Thus, this provisions of MMDR Act will not be attracted in the case of the petitioner because the petitioner is mainly the Transporter and they were carrying coal under the sale order ( road mode) on account of agreement between different mining companies when the Permit is issued by the competent authority and as such, the provisions of Section 21/4(A) of M. M. D. R. Act and Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act will be a question mark. The State has laid emphasis by filing counter affidavit regarding storage of coal near Railway Track without obtaining e-mining permit, challan and hence transportation of coal was illegal. 28. The State has himself admitted in its counter affidavit at para-10(a) that coal from Amrapali Project of CCL was issued by Prayag Raj Power Generation Co. Ltd., Lohgara, Bara, Allahabad through Kusmahi Railway Siding Gate Nos. 1 and 2 Sarso and Himpuri Mouza the Truck/hyva the challan was issued. Hence -24- delivery by Truck/hyva at different places other than the place of delivery mentioned in the challan has resulted in violation Rule 8 (3) of the Jharkhand Mineral Dealers Rules, 2007. This assertion is also misconceived in view of the fact that after issuance of the sale order, the petitioners being transporters were carrying the coal to its destination through the Railway Siding and the coal was to be suppled at Lohgara, Bara, Allahabad through Kusmahi Railway Siding Gate Nos. 1 and 2 i.e. the State of Uttar Pradesh. However, in the present case the coal was carried out from Amrapali at Chatra to the Railway Siding in the State of Jharkhand and the coal was to be carried at Allahabad Railway Siding by means of railway transportation. Hence the petitioner being one of the Transporters had carried the coal from the mining area to the destination to the nearest railway siding in the State of Jharkhand to transporting it to Allahabad. The petitioner at best can be subjected to violation of Air (Prevention and Control of Pollution) Act, 1981, but that too is compoundable in view of the judgment reported in (2021) 2 SCC 670 and the Hon’ble Supreme Court has held that offence can be compounded on payment of penalty under Sub-Section (1) of Section 23-A of the MMDR Act read with Sub- Section (2) of Section 23-A of the MMDR Act and even the Hon’ble Supreme Court has quashed the proceeding for the offence under Sections 4/21 of the MMDR Act against the concerned petitioners and had allowed the proceeding under Sections 379 and 414 of the Indian Penal Code to continue. 29. However, in the present case provision of Sections 379 and 414 of the Indian Penal Code cannot be attracted, when the Transporters were carrying the coal in question from the Government Mining Companies under the valid sale order -25- 10.04.2019 vide Annexure-4. Therefore, in view of the above, it is apparently clear that State cannot take contradictory stand as on the one hand if had instituted the case for the offence under Sections 379/414/420 of the Indian Penal Code when there is apparently it is the case of carrying coal by the petitioner being the Transport Companies under the agreement for its for valid/bonafide purchasers and it appears to be a complete non application of mind on the part of the Authority concerned before instituting such FIR. 30. So far as provisions of Section 4(21) of the MMDR Act and Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act are concerned, the same also appear to be misconceived as till date the police officials/ State Authority have failed to obtain necessary sanction from the Competent Authority for violation of Air (Prevention and Control of Pollution) Act as the petitioner has obtained valid permission from the Railway Siding with an agreement to store the Coal vide Sale Order dated 10.04.2019 Annexure-4 and the Railway Authority has not lodged any complaint against the petitioner. 31. From perusal of the counter affidavit dated 22.09.2021 filed by the then Superintendent of Police, Latehar, it would appear that District Mining Officer, Latehar is authorized person to lodge the complaint, however, the District Mining Officer is not authorized to lodge the FIR under Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act and Investigating Officer (i.e IO) has been directed to proceed further only after getting advice from the State Pollution Control Board and IO has -26- made communication with the State Pollution Control Board, Ranchi vide Memo No. 499 dated 16.09.2021 marked as Annexure-A/1 to the counter affidavit. Superintendent of Police, Latehar has further stated that during police investigation the case under Sections 21/4(1A) of the MMDR Act has been found true against the concerned companies/persons and but the investigation is going on for the allegation under Sections 379/414/420 of the Indian Penal Code. 32. Thus, from the first counter affidavit dated 22.09.2021, it is evident that after lodging the FIR on 21.06.2019, the police officials were not able to verify the allegations against the petitioners for the offences under Sections 379/414/420 of the Indian Penal Code for around 2 and 1/2 years. Even though he had admitted that thus Informant was not authorized to institute the complaint for the offences under Section 4 and 21 (4-A) of the MMDR Act and Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act, 1974. 33. During pendency of this case, the respondent-State has filed 2nd counter affidavit on 20.10.2022 through SDPO, Balumath, Latehar and again stated that the matter is under investigation and alleged coal involved in the offence does not have CTO/CTE Certificate and Trucks have deviated from the route. It is further stated and admitted that upon investigation and search around 21000 MT of coal was found near Kushmahi Railway Siding Gate No. 1 and during investigation e- Transportation Challan and record of store coal was seized. However, the SDPO has further admitted that during investigation it was found that coal was purchased from the -27- Amarapali Coal Project of CCL, but it was stored without valid permission from the Mining Department. However, he further admitted in para-10 (a) of the 2nd counter affidavit dated 20.10.2022 that e-challan no. C51902053/1335 dated 18.06.19 and e-challan no. C51902053/1522 dated 20.06.19 relating to seized coal of Amarapali Coal Project of CCL, but yet they justified its stand for seizing coal of the petitioner-company as it was stored without valid permission of District Mining Officer/ Government Officials. 34. Therefore, from the stand taken on behalf of the State firstly by the Superintendent of Police, Latehar in his counter affidavit dated 22.09.2021 and by the 2nd counter affidavit dated 20.10.2022 filed by the State through SDPO, Balumath, Latehar, it is evident that they are still searching the allegation for the offences under Sections 379/414/420 of the Indian Penal Code on the one hand and they had found the allegation true for the offence Section 21/4(A) of M. M. D. R. Act and Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act, 1974, although they have himself admitted in their respective counter affidavits that the District Mining Officer was not authorized to institute the FIR for the offence under Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act, 1974 against the petitioner without valid permission of S. I., Latehar. 35. Therefore, the State is making its contradictory statement time and again and it is apparent that their action relates to justify their own illegalities and lapses committed by them. 36. It is well settled from a catena of decisions that reasons -28- cannot be assigned for doing an act by filing the counter affidavit. 37. It has been held in the case of Mohinder Singh Gill and Anr. Versus The Chief Election Commissioner reported in 1978 AIR SC 851 that reason cannot be assigned by filing counter affidavit and this has already been followed in several judgments by the Hon’ble Supreme Court and High Court. 38. Learned counsel for the petitioner has relied upon the order dated 09.04.2015 passed Cr. M. P. No. 2601 of 2013 in the case of Mahendra Singh Vs. The State of Jharkhand by the Co- ordinate Bench of this Court and the order dated 10.12.2014 passed Cr. M. P. No. 242 of 2014 in the case of Ayub Raza Vs. The State of Jharkhand by the Co-ordinate Bench of this Court. However, in the above cases the cognizance was taken by the learned Magistrate on the complaint filed by the Sub-Inspector of Police under Section 4(1) of the Mines and Minerals (Development and Regulation) Act and Section 21 of Air (Prevention and Control of Pollution) Act, 1981 i.e. by the police officials has lodged the FIR , but in the instant case, FIR has been lodged by the Authorized Person i.e. District Mining Officer, thus, the above judgments are not applicable on the facts and in the circumstances of the present case. 39. In view of the discussion made above, this Court is of the view that the impugned order dated 12.03.2020 passed by Sri Taufique Ahmed, learned Chief Judicial Magistrate, Latehar is not sustainable in the eyes of law. 40. It is well settled from the catena of decisions that reasons cannot be assigned for doing an act by filing counter affidavit. 41. It has been held in the case of Mohinder Singh Gill and Anr. Versus The Chief Election Commissioner reported in 1978 -29- AIR SC 851 that reason cannot be assigned by filing counter affidavit and this has already been followed in several judgments by the Hon’ble Supreme Court and High Court. 42. Learned counsel for the petitioner has relied upon the order dated 09.04.2015 passed Cr. M. P. No. 2601 of 2013 in the case of Mahendra Singh Vs. The State of Jharkhand by the Co- ordinate Bench of this Court and the order dated 10.12.2014 passed Cr. M. P. No. 242 of 2014 in the case of Ayub Raza Vs. The State of Jharkhand by the Co-ordinate Bench of this Court. However, in the above cases the cognizance was taken by the Magistrate on the complaint filed by the Sub-Inspector of Police under Section 4(i) of the Mines and Minerals (Development and Regulation) Act and Section 21 of Air (Prevention and Control of Pollution) Act, 1981 i.e. by the police officials has lodged the FIR , but in the instant case, FIR has been lodged by the Authorized Person i.e. District Mining Officer, thus, the above judgments are not applicable in the facts and circumstances of the present case. 43. It appears that the purchaser of the coal is not in dispute and identity of the Owner and Transporter are also not in dispute and even the documents of the purchase of the coal by the owner of the petitioner’s company has not been disputed by the State Authorities by filing the four different counter affidavit. 44. It also appears that till date the police has failed to submit the charge sheet under Section 37 of Air (Prevention and Control of Pollution) Act, 1981 and Section 44 of Water (Prevention and Control of Pollution) Act. 45. So far as release of coal is concerned, this Court is of the view that even when the investigation is pending for more than 3 and ½ years and authorities have taken steps for confiscation of -30- coal in question, although the same has been handed over to Amarapali and Magadh in Jimenama, the act of the authorities and the order passed by the learned Court below is not proper and as such, the impugned order dated 12.03.2020 passed by Sri Taufique Ahmed, learned Chief Judicial Magistrate, Latehar in connection with Balumath P. S. Case No. 141 of 2019 is set aside in the interest of justice and the case is remitted back to the learned Court below to pass a fresh order in accordance with law with the condition that Real owner, who claims the ownership of coal in question and not by the transporter –petitioner, files such an application for release of the coal. 46. It transpires that the petitioner is the Transporter of the company- ACC Ltd. and hence, under the circumstances, the company may be directed to take necessary steps before the learned Court below for release of coal in question and if such a petition by the Owner of the coal alongwith this petitioner is filed before the learned Court below, the same may be decided by the learned Court below in accordance with law within a period of six weeks from the date of receipt/production of a copy of this order, without being prejudiced by the order passed by this Court. 47. This Criminal Revision No. 795 of 2020 is allowed and remitted back with the observation mentioned above. 48. Let the Lower Court Record be sent to the learned Court below at once. Kamlesh/A.F.R. (Sanjay Prasad, J.)