Jamal Shekh … v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 857 of 2023 Jamal Shekh …. …Petitioner Versus The State of Jharkhand …. ...Opp. Party CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND -------- For the Petitioner For the State : Md. Yasir Arafat, Advocate : Mr. Anup Pawan Topno, A.P.P. -------- Order No. 04/ dated 29.08.2023 Learned Counsel Md. Yasir Arafat on behalf of the petitioner and on behalf of State, learned A.P.P. are present. 2. This Cr. Revision has been preferred against the order dated 20.06.2023 passed by the S.D.J.M., Pakur in Misc. Cri.
Facts
Application No. 1019 of 2023, arising out of Pakur (M) P.S. Case No. 26 of 2023, registered under Sections 4/54 of Jharkhand Minor Mineral Concession Rules, 2004 and under Section 4 (1) (A), 21 of Mines and Minerals (Development and Regulation) Act, 1957 and under Rule 9/11/13 of Jharkhand Mineral (Prevention of Illegal Mining, Transportation and Storage) Rule- 2017 whereby the court-below has rejected the release application of the petitioner for release of the Truck having registration No. WB59C/9196. 3.
Legal Reasoning
Para 5. Section 451 clearly empowers the court to pass appropriate orders with regard to such 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. 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 orders Magistrate 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. Para 7. In our view, the powers under Section 451 CrPC should be exercised expeditiously and judiciously. It would serve various purposes, namely: 1. owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. court or the police would not be required to keep the article in safe custody; 3. if the proper 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 4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. 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 lost, altered or prevent the evidence being destroyed. The court should see that photographs 5 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 impose any other appropriate 451 CrPC to condition. 13. From this document adduced on behalf of the petitioner has prima facie shown that he is the registered owner of the vehicle and if the vehicle is allowed to detain in the Police Station concerned its utility would be diminished. 14. The court-below has rejected the release application of the petitioner on the ground that confiscation proceeding of the minerals was going on. Since the confiscation proceeding was going on so the power of court was barred to release the vehicle. This finding recorded by the court-below is perverse and against the provisions of law. So far as the confiscation is concerned, the same can alone of the minerals seized under Rule 11(V) of the Jharkhand Minerals (Prevention of Illegal Mining, Transport and Storage) Rules, 2017. The confiscation process cannot be done of the vehicle by which the minerals were being carried. 15. In view of the above, the impugned order passed by the court below needs interference and this Cr. Revision deserves to be allowed. The impugned order passed by the court-below is hereby quashed and set aside. 16. The matter is remitted back to the court-below to decide the release application of the petitioner for the vehicle in view of the finding recorded by this court and also the guidelines as laid 6 down by the Hon’ble Apex Court in Sunder Bhai Ambala Desai vrs. State of Gujrat (supra). P.K.S..A.F.R. (Subhash Chand, J.)
Arguments
The learned Counsel for the petitioner has submitted that by way of impugned order, the court-below has rejected the release application of the vehicle of the petitioner on the ground that after initiation of confiscation process under Rule 11 (V) of the Jharkhand Minerals (Prevention of Illegal Mining, Transport 2 and Storage) Rules, 2017 the court was barred to release the vehicle in favour of the owner of the vehicle. 4. It is also further submitted that the petitioner is the registered owner of the vehicle. The Registration Certificate of the vehicle, photo copy of the Insurance and photo copy of the driving licence of the driver are also being annexed with this petition. 5. The report which was received from the Police Station concerned on calling by the court concerned is also annexed. If the vehicle is detained in the Police Station concerned its utility would be diminished and the petitioner would be deprived of his valuable right to use the vehicle. 6. It is also further submitted so far as the confiscation proceedings are concerned, the same are of minerals which were being carried by the vehicle. Therefore on that ground the vehicle cannot be detained. 7. The learned A.P.P. opposed the contentions made by the learned Counsel for the petitioner and contended that in view of Rule 11 (V) of Jharkhand Mines and Mineral Rules, 2017, during the confiscation process the vehicle cannot be released. 8. From the perusal of the F.I.R., it is found that written information was given to the Police Station concerned by the informant Pintu Kumar with these allegations that on 28.01.2023 at 12 hours 5 minutes a.m. in the night vehicle No. WB59C/9196 loaded with stones was parked near the Moulana Chowk within periphery of Muffasil Police Station. The challan 3 and documents of the mineral could not be shown. About 700 cubic fit stones chips was loaded. The vehicle loaded with stone chips was seized and the F.I.R. was lodged with the Police Station, Pakur Muffasil under Section 4/54 J.M.M.R.C Act, 2004 & 4(1) (A)/21 Mines & Mineral (Development & Regulation) Act, 1957 and 9/11/13 of Jharkhand Mineral (Prevention of Illegal Transportation & Storage) Rule 2017 against the driver and owner of the Truck No.WB59C/9196 and also against the crusher owner situated in Sunder Pahari Mouza. 9. From the seizure memo, which is at page 19 of this paper book, 700 cubic fit stone chips was loaded in vehicle No. WB59C/9196 which was seized at Moulana Chowk near Pakur on 28.01.2022. 10. The court-below has also called the report from the I.O. of Police Station concerned which is at page 22. In this report it has been admitted that in Pakur Muffasil P.S. Case No. 26 of 2023 vehicle No.WB59C/9196 was seized of which registered owner was Jamal Shekh. It is also mentioned that there was no need of M.V.I. of the vehicle. It is also stated that the vehicle was not needed in the investigation as well. 11. Annexure-3 series is the Adhar Card of the petitioner Jamal Shekh son of Abdul Hannan and the driving licence of Sahajad Shekh. Certificate of the registration of the vehicle No.WB59C/9196 of which registered owner is M/s Himatsingka next LLP, Deoghar Road, Maharo Jamal Sheikh. The chassis number and Engine number is also mentioned. This certificate 4 is valid from 21st July, 2022 to 20th July, 2037. The insurance of the vehicle is at page 26. 12. The Hon’ble Apex Court held in Sunder Bhai Ambala Desai vrs. State of Gujrat 2002 (10) SCC 283: to pass appropriate