Dhananjay Singh, aged about 50 years, son of Rajendra Prasad Singh, resident of Village v. 1. State of Jharkhand 2. The Deputy Commissioner, Dumka P.O. & P.S.- Dumka, Dist
Case Details
1 W.P. (Cr.) No.960 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No. 960 of 2023 Dhananjay Singh, aged about 50 years, son of Rajendra Prasad Singh, resident of Village- Shikaripara, P.O. & P.S.- Shikaripara, Dist.- Dumka .... Petitioner Versus 1. State of Jharkhand 2. The Deputy Commissioner, Dumka P.O. & P.S.- Dumka, Dist.- Dumka 3. District Mining Officer, Dumka P.O. & P.S.- Dumka, Dist.- Dumka …. Respondents P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State : Mr. R.S. Mazumdar, Sr. Advocate : Mr. Ashutosh Anand, AAG-III : Mr. Binit Chandra AC to AAG-III ….. By the Court:- 1. 2.
Facts
Heard the parties. This writ petition has been filed under Article 226 of the Constitution of India with a prayer to quash the order dated 11.08.2023, passed by the learned Deputy Commissioner, Dumka in Confiscation Case No. 18/2022-23 whereby and where under, the respondent no.2- Deputy Commissioner, Dumka has confiscated two Poclain machines one being of yellow colour Komatsu Poclain Machine with Model No. PC210-8MO, Serial No. 2 W.P. (Cr.) No.960 of 2023 N723202 and the other of Red Colour Tata Hitachi Poclain Machine with Model No. EX210LC, Super Serial No. SP21-60411. 3. The brief fact of the case is that on 08.11.2022 a team of District Mining Task Force comprising of District Mining Officer, Dumka and other officers of police personnel conducted a raid on a private plot where illegal stone mining activity was going on. The said two Poclain machines as already indicated above along with other machines were allegedly indulged in illegal mining. The District Mining Officer, Dumka requested the Deputy Commissioner, Dumka for confiscation of the seized vehicles including the two Poclain machines as already indicated above and issued direction for disposal of the said vehicles under Rule 11(v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 read with Section 21 (4-A) of the Mines and Minerals (Development and Regulation) Act, 1957. 4. The Deputy Commissioner, Dumka observed that there was illegal mining and attempt for transportation of illegally mined minerals establishes the illegality beyond doubt hence, he has observed that the vehicle seized has violated the Section 21 (4-A) of the Mines and Minerals (Development and Regulation) Act, 1957. The Deputy Commissioner, Dumka inter alia referred to the Judgment of this Court in the case of Sukhdeo Murmu vs. The State in Cr.M.P. No. 233 of 2022 wherein, it was observed that release of the vehicle is subject to the final result of the confiscation proceeding. The Deputy Commissioner, Dumka also 3 W.P. (Cr.) No.960 of 2023 referred to a judgment apparently passed in Md. Zahid Alam vs. The State of Jharkhand on 11.05.2022 wherein, it was observed that Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 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 Mines and Minerals (Development and Regulation) Act, 1957. The Deputy Commissioner, Dumka further observed that Section 21 (4-A) of the Mines and Minerals (Development and Regulation) Act, 1957 provides for initiation of a confiscation proceeding and the finding as to illegal mining have already been established in the matter and as such there does not seem to be impediment in proceeding with the confiscation application. The Deputy Commissioner, Dumka further referred to a judgment of this Court in the case of Manoj Kumar Sah vs. The State of Jharkhand in Cr.M.P. No. 2060 of 2022. The Deputy Commissioner, Dumka then referred to the judgment of Hon’ble Supreme Court of India in the case of State of Tamil Nadu vs. Hind Stone & Ors. reported in 1981 (2) SCC 205 as well as the judgment of T.N. Godavarman Thirumulpad vs. Union of India & Ors. reported in (2006) 1 SCC 1. 5. Learned Senior Advocate appearing for the petitioner submits that initiation of the confiscation proceeding is bad in law as the Deputy Commissioner was not having the jurisdiction to exercise the power under Rule 11(v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. In this 4 W.P. (Cr.) No.960 of 2023 respect, learned Senior Advocate appearing for the petitioner
Legal Reasoning
relied upon the judgment of this Court in the case of Manoranjan Rooj vs. The State of Jharkhand in W.P. (Cr.) No. 941 of 2023 dated 28.11.2023 and Rajendra Prasad vs. The State of Jharkhand in W.P. (Cr.) No. 808 of 2023 dated 29.11.2023. It is further submitted by the learned Senior Advocate appearing for the petitioner that the law is well settled that any mineral, tool, equipment, vehicle or any other thing seized under Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under Section 21(1) of the said Act. Hence, in the absence of any order of the court competent to take cognizance of the offence, the Deputy Commissioner, Dumka has committed gross illegality by passing the impugned confiscation order. Therefore, the said order passed by the Deputy Commissioner, Dumka be quashed. Learned counsel for the State submits that the prayer of the petitioner is covered by the Judgment of this Court. Hence, the State has no objection for quashing the confiscation order. Having heard the submissions made at the Bar and after going through the materials available in the record, so far as the judgment of State of Tamil Nadu vs. Hind Stone & Ors. (supra) is concerned, in that case inter alia the validity of Rule 8-C of Tamil Nadu Minor and Mineral Concession Rules, 1959 was challenged and the Hon’ble Supreme Court of India upheld the validity of the said Rule. The judgment has got nothing to do with the purported 6. 7. 5 W.P. (Cr.) No.960 of 2023 exercise of the power of confiscation by the Deputy Commissioner, Dumka in Confiscation Case No. 18 of 2022-23. 8. So far as the judgment of Hon’ble Supreme Court of India in the case of T.N. Godavarman Thirumulpad vs. Union of India & Ors. (supra) is concerned, in that case, it was inter alia observed by the Hon’ble Supreme Court of India that constitution enjoins upon the Supreme Court the duty to protect the environment and the same has got nothing to do with the purported exercise of the power under Rule 11(v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017; by the Deputy Commissioner, concerned. 9. A plain reading of Section 21(4-A) of the Mines and Minerals (Development and Regulation) Act, 1957 which reads as under :-
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” (emphasis supplied) makes it abundantly clear that inter-alia any vehicle seized under Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 can only be confiscated by an order of the court competent to take cognizance and the Act envisages that the same shall be disposed of in accordance with the direction of such court. 10. Now coming to the facts of the case, it is apparent that the Deputy Commissioner, Dumka was under the impression that he is the court competent to take cognizance of the offence under Section 21(1) of the Mines and Minerals (Development and 6 W.P. (Cr.) No.960 of 2023 Regulation) Act, 1957 which is needless to mention an erroneous impression of the Deputy Commissioner, Dumka because Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 envisages punishment with imprisonment of the person who contravenes the provisions of Sub-Section (1) or Sub-Section (1A) of Section 4 for a term which may extend to five years with fine which may extend to Rs.5,00,000/- per hectare of the area in respect of which the offence is committed. The Deputy Commissioner, Dumka while erroneously assuming that he is the court competent to take cognizance should have posed a question to himself whether he is competent to impose such punishment upon the offenders. Since obviously, the answer is no, in view of the First Schedule of the Code of Criminal Procedure, wherein it has been mentioned as to which court can try which offence, which obviously means that the court that can try an offence, can only take cognizance of the offence; hence certainly, the Deputy Commissioner, Dumka is not the court competent to take cognizance of the offence punishable under Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957. 11. Once, the Deputy Commissioner, Dumka is not the court competent to take cognizance under Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 that “finding has to be arrived that the vehicle was used for transportation of coal or mineral in contravention of the provision of the Act” as referred to in the case of Md. Zahid Alam vs. The State of Jharkhand (supra) does not means the finding to be 7 W.P. (Cr.) No.960 of 2023 recorded by a Deputy Commissioner and thus the Deputy Commissioner, Dumka has committed a grave error being under mistaken notion that the Deputy Commissioner is competent to record such finding. 12. Now coming to the facts of the case, undisputedly, there is no material to suggest that the court competent to take cognizance of the offence punishable under Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 passed any order for confiscation of the said two machines the description of which has been mentioned in the foregoing paragraphs. 13. The Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 has been framed in exercise of the power vested in Section 23 of Mines and Minerals (Development and Regulation) Act, 1957. 14. It is a settled principle of law that if there is a conflict between the parent statute and the rules made by the exercise of the provisions in the parent statute then the parent statute which in this is case Mines and Minerals (Development and Regulation) Act, 1957; will prevail. 15. Section 21 (4-A) of the Mines and Minerals (Development and Regulation) Act, 1957 has in no uncertain manner envisages inter alia the equipment seized under Section 21 (4) of the Mines and Minerals (Development and Regulation) Act, 1957 shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under Section 21 (1) of the Mines and Minerals (Development and Regulation) Act, 1957 and the Deputy 8 W.P. (Cr.) No.960 of 2023 Commissioner, Dumka is not the court competent to take cognizance of such offence. So the natural corollary is that the Deputy Commissioner, Dumka cannot exercise the power under Rule 11(v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 without the order passed by the court competent to take cognizance of the offence punishable under Section 21 (1) of the Mines and Minerals (Development and Regulation) Act, 1957. Perusal of the record reveals that there is no such order hence, this Court is of the considered view that the Deputy Commissioner, Dumka has exercised the jurisdiction which was not vested upon it in confiscating the Poclain machines, the description of which has already been given above. 16. In view of the discussions made above, the order dated 11.08.2023, passed by the learned Deputy Commissioner, Dumka in Confiscation Case No. 18/2022-23 in connection with Shikaripara P.S. Case No. 146 of 2022 registered for the offences punishable under Section 379/411 of Indian Penal Code, Section 4/54 of Jharkhand Mine & Minerals Concession Rule, 2004, Section 4/21 Mines and Minerals (Development and Regulation) Act, 1957, Section 9 (b) of Explosive Act, 1884 and Section 3/4 of Explosive Substances Act, 1908 so far as it relates to the release of the said two machines being yellow colour Komatsu Poclain Machine with Model No. PC210-8MO, Serial No. N723202 and Red Colour Tata Hitachi Poclain Machine with Model No. EX210LC, Super Serial No. SP21-60411 is quashed and set aside. 9 W.P. (Cr.) No.960 of 2023 17. 18. 19. Accordingly, issue a writ of certiorari for quashing the order dated order dated 11.08.2023, passed by the learned Deputy Commissioner, Dumka in Confiscation Case No. 18/2022-23. Order accordingly. In the result, this writ petition is allowed in the above terms. High Court of Jharkhand, Ranchi Dated the 18th December, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)