Md. Shahrukh Ansari …. … v. …. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No.1155 of 2023 ---- Md. Shahrukh Ansari …. …. Petitioner 1. The State of Jharkhand 2. Deputy Commissioner, Sahebganj Versus …. …. Respondents
Legal Reasoning
---- CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR ---- For the Petitioner For the Respondents : Mr. Vikash Kumar, Adv. : Mr. Manoj Kumar, Adv. 03/Dated: 15th January, 2024 ---- 1. 2. Heard the parties. The present writ application has been filed for following reliefs:- “i. For quashing the order dated 23.05.2023 (Annexure-3) passed by Deputy Commissioner, Sahebganj in Confiscation Case No. 85/2022-23 whereby respondent and whereunder, the respondent no.2 (Deputy Commissioner, Sahebganj), has been pleased to confiscate the tractor being model no. JRD42PLUS POWER TRACK ESCORTS LIMITED, Model No. EURO 42 El, Chassis No. T05361653FL, Engine No. E3697381 (bearing registration no. JH-16G-9781) belonging to petitioner and further directed to initiate the auction of the confiscated vehicle and minerals under Rule 11 (v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation of Storage) Rule 2017 as the same suffers from patent illegality; ii. For issuance of appropriate writ/order/direction during pendency of this case, Your Lordships may graciously be pleased to stay the operation and execution of order dated 23.05.2023 (Annexure-3) passed in Confiscation Case No. 85/2022-23; iii. For issuance of appropriate writ/order/direction to release the vehicle bearing registration no. JH-16G-9781 forthwith to the petitioner by directing the Learned Sub-Divisional Judicial Magistrate, Sahibganj as such on such terms and conditions as the Learned Court of S.D.J.M, Sahebganj may deem fit and proper;” 3. It appears that an F.I.R. has been lodged being Mirzachowki P.S. Case No.97 of 2022, registered under Sections 175, 379 and 414 of the Indian Penal Code, under Rules 4/54 of the Jharkhand Minor Minerals Concessions Rules, under Rules 7 & 9 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation & Storage) Rules, 2017. 4. It has been submitted by the learned counsel for the petitioner that the tractor (bearing registration No.JH-16G-9781) in question has been seized by the police. The order of confiscation has been passed by the Deputy Commissioner-cum-District Magistrate, Sahibganj in Confiscation Case 2 W.P.(Cr.) No.1155 of 2023 No.85 of 2022-23 vide order dated 23.05.2023 (order is impugned in the present criminal writ petition) which is not as per the law and no such power is vested to the Deputy Commissioner. 5. Learned counsel for the petitioner has relied upon the judgment dated 13.09.2023 passed in W.P.(Cr.) No.502 of 2023 by the co-ordinate Bench of this Court and has submitted that only the criminal court taking cognizance of the offence is competent to pass the order of confiscation and the Deputy Commissioner has no such power. For that purpose, paragraph Nos.7 to 13 of the said judgment are quoted herein below:- “7. 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.” 8. Looking into the above provision, it is crystal clear that any mineral, tool, equipment, vehicle can be confiscated by an order of the court competent to take cognizance. 9. 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.” 10. Looking into the above provision, it appears that the cognizance can be taken only on the complaint. 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 the impugned orders passed by the Deputy Commissioner, Simdega is not in accordance with law. If a 3 W.P.(Cr.) No.1155 of 2023 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.” 6. In view of the law declared by the Co-ordinate Bench of this Court that the Deputy Commissioner-cum-District Magistrate is not a competent authority to pass the order of confiscation. Accordingly, the order dated 23.05.2023 (Annexure-3) passed by the Deputy Commissioner-cum-District Magistrate, Sahebganj in Confiscation Case No. 85/2022-23 is, hereby, quashed and set-aside and the matter is remitted back to the learned court below who has taken cognizance, to pass an appropriate order in accordance with law. 7. 8. Accordingly, this criminal writ petition stands disposed of. However, the petitioner is at liberty to approach the court below who has taken cognizance of the offence. (Rajesh Kumar, J.) Amar/- Uploaded