The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND, RANCHI W.P.(Cr.) No. 326 of 2022 ---- Yunus Khan, son of Sadik Khan, aged about 40 years, resident of village Senha, P.O. and P.S. Chandwa, District –Latehar, Jharkhand – 829 203 ….. Petitioner -- Versus -- 1.The State of Jharkhand 2.Superintendent of Police, Latehar 3.Investigating Officer in Balumath P.S.Case No.92/2019, P.S.Chandwa, District –Latehar …... Respondents ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ---
Legal Reasoning
For the Petitioner :- Mr. Vishnu Prabhakar Pathak, Advocate Mr. Anuj Trivedi, Advocate For the State :- Mr. Shahabuddin, Advocate Mr. Suraj Prakash, Advocate ---- 6/26.04.2023 This petition has been filed for quashing the order dated 18.01.2022 passed in M.C.A No.1006/2020 whereby prayer for release of the vehicle bearing registration no.JH-01-AP-4424 of the petitioner has been rejected by learned Chief Judicial Magistrate, Latehar, pending in the same learned court. The case of the prosecution is that some persons were loading illegal coal in village Bhagia Siriya upon receipt of such information when the police authorities reached jungle three k.m. east of the village they found a vehicle truck bearing registration no.JH-01-AP-4424 was being loaded with illegal coal approximate amount of 7 tons of coal was found being loaded in the said truck and upon seeing the light of vehicles of police persons loading illegal coal fled and accordingly police seized the said vehicle truck and accordingly FIR was lodged against driver of truck and petitioner under sections 37/414 of IPC, section 21 of MMRD Act, section 30(2) of Coal Mines Act and section 33 of Forest Act.” 2. Mr. Trivedi, the learned counsel appearing on behalf of the petitioner submits that the petitioner is owner of the vehicle bearing registration no.JH-01-AP-4424 which is a goods carrying public carrier and the petitioner was having valid registration card and the vehicle is duly insured. The registration card and insurance document are brought as Annexure-1. He submits that Balumath P.S.Case No.92/2019 was lodged against the petitioner alleging that the said truck was being used for transportation of illegal coal. He submits that the said vehicle was being driven by the driver and the coal is not of the petitioner and the vehicle was used for commercial purpose. He submits that prayer for 2 release of the vehicle was dismissed on the ground that driver has not appeared before the learned court. He further submits that there is provision of confiscation of the seized article in terms of section 21(4-A) of the Mines and Minerals (Development and Regulation) Act, 1957. He further submits that confiscation is required to be done once the trial is concluded and if the petitioner is found to be guilty in the trial. He further submits that in view of amendment in Rule 54(5) of the Jharkhand Minor Mineral Concession Rules, 2004 which was incorporated in Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. By virtue Rule 54(5) of the Jharkhand Minor Mineral Concession Rules, 2004, the one is required to pay the double amount of the minerals and the goods in question can be released. 3. Mr. Shahabuddin, the learned counsel appearing on behalf of the respondent State submits that in light of Rule 54(5) of Jharkhand Minor Mineral Concession Rules, 2004, if the petitioner is the owner of the minerals and he is required to pay the double amount of minerals and the arrangement has been granted in the said Rule how to deposit. He further submits that for release of the vehicle, the petitioner is required to follow the procedure as an interim measure. 4. Since the petitioner is not claiming the coal as he has submitted that he is not the owner and only the transporter, there is no need to deposit the double amount if the coal in question is not being claimed by the petitioner. For the sake of convenience, section 21(4-A) of the Mines and Minerals (Development and Regulation) Act, 1957) is quoted hereinbelow:
Decision
“21.(4-A) Any mineral, took, 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. On plain reading of this provision, it is clear that the word used “vehicle or anything seized”, literally the use of word, in the section that any vehicle or anything seized shall be liable to be confiscated by an order of the court competent to take cognizance, and at the stage it is found, the section connotes that a finding has to be arrived that the vehicle was used for transportation of coal or mineral in contravention of the provisions of the Act. Such finding can only be arrived if it is brought on record during the enquiry or trial meaning thereby that the charges /allegations have to be proved that the vehicle was used in contravention of the provisions of the Act whereafter the vehicle will be forfeited by the 3 State Government by order of the court. It is not disputed in the instant case that no proceeding has been initiated for confiscation neither does the Act provides for initiation of confiscation proceeding and, moreover, the vehicle is lying at the police station without any use in an uncared manner. On plain reading of the above provision, it is crystal clear from (whenever a vehicle is found to have been used ........”) and it further says that the vehicle should be forfeited to the State Government by order of the court, meaning thereby once the trial is concluded and the conviction is held by the trial court then only the forfeiture of the vehicle will come in to effect. The vehicle in question is commercial as indicated and this aspect of the matter has been decided by the Hon’ble Supreme Court in the case of “Sunderbhai Ambalal Desai v. State of Gujarat” reported in (2002) 10 SCC 283. Paragraph nos.5 and 17 of the said judgment are quoted hereinbelow: "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 said or otherwise disposed of, after recording such (3) If the property is subject to speedy and natural decay, the dispose of the same. 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." 6. In view of the above facts and settled law, the detention of the vehicle is of no use as it will not only lead to damage and loss of utility of the vehicle but will also cause a loss of revenue to the Government due to non-pliance of the commercial vehicle. 7. The trial court is directed to grant interim custody of the vehicle bearing Registration No. JH-01-AP-4424 by ordering it to be released in favour of the petitioner on his giving an undertaking on the following terms and conditions: (i) Petitioner shall furnish an indemnity bond to the tune of rupees as disclosed in the Insurance paper assessing the value of the vehicle in question with two sureties. 4 (ii) One of the surety must be a resident and owner of a commercial vehicle of District-Latehar. (iii) That the petitioner shall not sale, mortgage or transfer the ownership of the vehicle on hire purchase agreement in any manner. (iv) He shall not change or tamper with the identification of the vehicle in any manner, and (v) He shall produce the vehicle as and when directed by the trial court. 8. The trial court is at liberty to impose any other term and condition as the trial court may deem it fit and proper. 9. With above direction, impugned order dated 18.01.2022 passed in M.C.A No.1006/2020 is, hereby, set-aside. 10. W.P.(Cr.) No.326 of 2022 is allowed and disposed of. ( Sanjay Kumar Dwivedi, J) SI/,