The High Court
Case Details
1 W.P. (Cr.) No. 553 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No. 553 of 2022 Ispak Ansari 1. 2. Masooque Ansari 3. Srikant Mahto -Versus- 1. The State of Jharkhand 2. Deputy Commissioner, Ranchi ----- … Petitioners … Respondents CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- For the Petitioners For the State : Mr. Nilesh Kumar, Advocate Ms. Sonal Sodhani, Advocate : Mr. Ashok Kumar Yadav, Sr. S.C.-I Mr. Ranjan Kumar, A.C. to Sr. S.C.-I ----- 04/12.09.2023
Legal Reasoning
Heard Mr. Nilesh Kumar, learned counsel for the petitioners and Mr. Ashok Kumar Yadav, learned counsel for the respondent-State. 2. This petition has been filed for setting aside the order dated 12.09.2022 passed in connection with Confiscation Case No.11R28/2021-22, whereby, the tractors of the petitioners bearing registration Nos. JH-01DD- 5064, JH-01CW-2414, JH01AN-5924 and JH-02BE-2683 have been directed to be confiscated by the Deputy Commissioner, Ranchi in connection with Silli (Muri) P.S. Case No.37/2021, corresponding to G.R. Case No.3322/2021, pending in the court of the learned S.D.J.M., Ranchi. 3. Mr. Nilesh Kumar, learned counsel for the petitioners submits that the petitioners have purchased the tractors for their farming. He submits that on 31.03.2021, the In-charge Circle Officer cum Revenue Officer seized the vehicles of the petitioners bearing registration Nos. JH-01DD-5064, JH-01CW-2414, JH01AN-5924 and JH-02BE-2683, which were allegedly loaded with sand. He further submits that seizure list was prepared and the case was instituted under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957, under Section 54 of the Jharkhand 2 W.P. (Cr.) No. 553 of 2022 Minor Mineral Concession Rules, 2004 and under Sections 7, 3, 9 and 13 of the Jharkhand Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. He also submits that the police has submitted charge- sheet and the learned S.D.J.M., Ranchi has been pleased to take cognizance against the petitioners vide order dated 16.11.2021 under Sections 414/34 of the Indian Penal Code. He submits that in the order taking cognizance, the learned court has observed that no competent authority had conducted search and seizure under the Mining Act and, as such, no cognizance was taken under the Mining Act and Rules. An application was moved by the Superintendent of Police (Rural), Ranchi before the Deputy Commissioner, Ranchi vide letter dated 22.09.2021 to initiate confiscation proceedings against the seized vehicles. He submits that the cognizance has not been taken under the Mining Act and Rules by the learned court. The Deputy Commissioner has got no jurisdiction to pass such order against particular Act in which the cognizance has not been taken. He refers to Sub-section (4-A) of Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and submits that seized vehicle shall be liable to be confiscated by an order of the competent court to take cognizance. He further refers Section 22 of the said Act, 1957 and submits that in view of that, the cognizance can be taken on a complaint in writing made by a person authorised in this behalf. He submits that all this is lacking in the case in hand. He further submits that if the said Act is involved, only special court can proceed with the matter. He further refers to Section 30-B of the said Act, 1957 and submits that the constitution of Special Courts are provided therein. He submits that Section 30-C of the said Act, 1957 speaks of Special Courts' power. He further submits that in view of the amendment in 3 W.P. (Cr.) No. 553 of 2022 Rule 54(5) of the Jharkhand Minor Mineral Concession Rules, 2004, the same was incorporated in Jharkhand Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 by virtue of Rule-13 thereof and, therefore, an appropriate order can be passed by this court. He submits that there is no bar in the Mines and Minerals (Development and Regulation) Act, 1957 and Jharkhand Minor Mineral Concession Rules, 2004 for releasing the vehicles and the minerals in the Statute, however, in the other Statute i.e. the Indian Forest Act, there is direct bar under Section 52(c) of the said Act. On these grounds, he submits that the impugned order by which the tractors of the petitioners have been directed to be confiscated by the Deputy Commissioner, Ranchi is without jurisdiction and this Court sitting under Article 226 of the Constitution of India can pass an order even the alternative remedy is there. 4. Per contra, Mr. Ashok Kumar Yadav, learned counsel for the respondent-State submits that the petitioners are having alternative remedy. He submits that in view of Rule 11 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, the officers are authorised to stop, check, search and verify at any vehicles carrying the minerals from the mine. He submits that the competent authority has seized the vehicles in question under Rule 11 of the said Rules, 2017. He submits that there is provision of an appeal in view of Rule 14 of the said Rules, 2017 and Rule 15 of the said Rules speaks of revision. He submits that if the Deputy Commissioner has passed the order, the petitioners can prefer revision before the competent authority in view of Rule 15 of the said Rules, 2017. On these grounds, he submits that there is no illegality in the impugned order and the learned court has rightly passed the order. 4 W.P. (Cr.) No. 553 of 2022 5. In view of the above submissions of the learned counsel for the parties, the court has gone through the materials on record including the impugned order and finds that admittedly Silli (Muri) P.S. Case No.37/2021 was registered against the petitioners under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957, under Section 54 of the Jharkhand Minor Mineral Concession Rules, 2004 and under Sections 7, 3, 9 and 13 of the Jharkhand Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. The learned court has not taken cognizance under the Mining Act and Rules, however he has taken cognizance only under Section 414/34 of the Indian Penal Code vide order dated 16.11.2021. The learned court has found that appropriate authority has not conducted search and seizure under the Mining Act and in view of that, no cognizance was taken under the Mining Act and Rules. In view of said Act, 1957, only complaint can be entertained, whereas, an FIR was registered. The said cognizance order is not under challenge in this petition and the petitioners are ready to face the trial in view of non-challenge of the proceeding before the learned court. The State has also not challenged the said order taking cognizance as the cognizance has not been taken under the Mining Act and Rules. 6. Sub-section (4-A) of Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 is quoted hereinbelow:
Decision
“21. (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.] “ 7. Looking into the above provision, it is crystal clear that any mineral, tool, equipment, vehicle can be confiscated by an order of the court 5 W.P. (Cr.) No. 553 of 2022 competent to take cognizance. 8. Section 22 of the said Act speaks of cognizance of offence, which is quoted hereinbelow: “22. 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 the State Government.” 9. Looking into the above provision, it appears that the cognizance can be taken only on the complaint. 10. Seeing the above two provisions, this court finds that the learned court has rightly not taken cognizance under the Mining Act and Rules. 11. Further, Section 30-B of the said Act, 1957 speaks of constitution of Special Courts and Section 30-C of the said Act, 1957 speaks of Special Courts' power. 12. Rule 54(5) of the Jharkhand Minor Mineral Concession Rules, 2004 is amended by Jharkhand Minor Mineral Concession Amendment Rules, 2017, which is quoted hereinbelow: ”;fn fdlh okgu dk dksbZ pkyd y?kq [kfut dks ifjogu djrs le; l{ke inkf/kdkjh vFkok funs'kd] [kku vFkok vij funs'kd] [kku vFkok mi funs'kd] [kku vFkok ftyk@lgk;d [kuu inkf/kdkjh vFkok lekgrkZ vFkok lekgrkZ ;k jkT; ljdkj n~okjk izkf/kd`r fdlh inkf/kdkjh dks izi= ^,e* vFkok >kj[k.M [kfut leuqnku fu;ekoyh] 2004 ds vUrxZr QkeZ Mh esa ifjogu pkyku fn[kkus esa vlQy jgrk gS vFkok fujh{k.k ls bUdkj djrk gS] rks mls vf/kdre 01 o’kZ dh dSn vFkok [kfut e~Y; dh nksxquh jkf'k ds cjkcj n.M vFkok nksuksa ,d lkFk n.M fn;k tk ldrk gS rFkk nwljh ,oa rhljh ckj oS/k ifjogu pkyku izLrqr ugha fd, tkus ij mijksDr ds vfrfjDr n.M dh jkf'k Øe'k% 50]000-00 ¼ipkl gtkj :i;s ,oa 1]00]000@ ¼,d yk[k½ :i;s gksxhA tk¡p djus okys inkf/kdkjh n~okjk voS/k ifjogu djrs ik;s tkus ij okgu dks [kfut lfgr tIr fd;k tk,xk rFkk ftls fdlh ljdkjh izfr"Bku esa vFkok LFkkfu; Fkkuk izkax.k esa lqjf{kr j[kk tk,xkA l{ke inkf/kdkjh n~okjk voS/k ifjogudrkZ ds mijksDr n.M 'kqYd ,oa bl vk'k; dk ca/k i= ¼Bond Paper½ lefiZr fd, tkus ij fd U;k;ky; n~okjk uksfVl fn, tkus ij mifLFkr gksaxs] okgu dks [kfut lfgr NksM+k tk ldrk gS] ijUrq voS/k ifjogudrkZ ij fu;ekuqdwy dkjZokbZ gsrq bldh lwpuk U;k;kf;d n.Mkf/kdkjh dks nh tk,xhA ca/k i= dk izi= funs'kd] [kku n~okjk vyx ls ifjpkfyr fd;k tk,xkA” 13. In view of the above facts, it is clear that in absence of any order taking cognizance under the Mining Act and Rules, the Deputy 6 W.P. (Cr.) No. 553 of 2022 Commissioner, Ranchi has passed the order of confiscation of the proceeding, which is not in accordance with law. If a particular Act is there and certain procedure are prescribed therein, the same is required to be followed, which is lacking in the case in hand. 14. In view of the above facts, the order dated 12.09.2022 passed in connection with Confiscation Case No.11R28/2021-22 arising out of Silli (Muri) P.S. Case No.37/2021, corresponding to G.R. Case No. 3322/2021, pending in the court of the learned S.D.J.M., Ranchi is set aside. 15. On perusal of Rule 54(5) of the Jharkhand Minor Mineral Concession Amendment Rules, 2017, it transpires that the minerals can be released on payment of double amount of the cost of the minerals, to be deposited before the competent authority. However in the case in hand, the petitioners are not claiming the seized minerals. 16. So far as the release of the vehicles is concerned, the same shall be released in favour of the petitioners on their undertakings on the following terms and conditions:- (i) The petitioners shall furnish indemnity bonds to the satisfaction of the learned court. (ii) One of the surety must be a resident and owner of a commercial vehicle of District Ranchi (Jharkhand). (iii) The petitioners shall not sale, mortgage or transfer the ownership of the vehicles on hire purchase agreement or mortgage or in any manner. (iv) They shall not change or tamper with the identification of the vehicles in any manner. 7 W.P. (Cr.) No. 553 of 2022 (v) They shall produce the vehicles as and when directed by the learned trial court. 17. The aforesaid conditions are the subject to the final result of the criminal proceeding, which is pending before the learned S.D.J.M., Ranchi in connection with Silli (Muri) P.S. Case No.37/2021, corresponding to G.R. Case No.3322/2021. 18. Accordingly, this petition is allowed in above terms and disposed of. Ajay/ A.F.R. (Sanjay Kumar Dwivedi, J.)