P. SRINIVAS v. DISTRICT – 577 501

(BY SRI. JAGADEESHA B. N., ADDL. SPP FOR R1) …RESPONDENTS - 2 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024 THIS CRL.P IS FILED U/S.482 OF THE CR.P.C. PRAYING TO SET ASIDE THE ORDER PASSED BY THE PRL.DISTRICT AND SESSIONS JUDGE AT CHITRADURGA IN CRL.RP.NO.15/2024 DATED 18.03.2024 AND ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND J.M.F.C AT CHALLAKERE IN C.C.NO.1133/2023 DATED 29.01.2024 AND ALLOW THE APPLICATION FILED BY THE PETITIONER. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court calling in question an order dated 29.01.2024, passed in C.C.No.1133/2023, by the Senior Civil Judge and JMFC, Challakere and the order dated

18.03.2024, passed in Crl.R.P.No.15/2024, by the Principal District and Sessions Judge at Chitradurga, for the offences under Sections 21(1) and 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957 and Rules 42(3), 43 and 44 of the Karnataka Minor Mineral Concessions Rules.

2. Heard Sri R. Shashidhara, learned counsel for the petitioner and Sri B.N.Jagadeesh, learned Additional State Public Prosecutor for respondent No.1.

3. Facts in brief, germane, are as follows: - 3 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024 The case of the prosecution is that, it is alleged that the petitioner being the owner of the vehicle – TATA Hitachi Model EX130 Super Plus Engine bearing No.KYX105974 was engaged in unauthorized mining work, on the revenue land situated at Parashurampura Hoblic, Challakere Taluk. Respondent No.2 filed a private complaint under Section 200 of the Cr.P.C. against the petitioner and others. On the basis of the complaint, raid was conducted and seized the said vehicle on

07.12.2023.

4. Since the vehicle has been seized, the petitioner prefers an application under Section 457 of Cr.P.C., before the learned Magistrate, in C.C.No.1133/2023, which comes to be dismissed by an order dated 29.01.2024, which is also confirmed by the Sessions Court in Crl.R.P.No.15/2024, by its order dated 18.03.2024. It is these orders, that has driven the petitioner to this Court in the subject petition.

5. Learned counsel appearing for the petitioner would submit that the reasons rendered for rejection by the learned Magistrate and the Sessions Judge in their respective orders, on the face of them are erroneous. The learned Magistrate has - 4 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024 gone into the issue of jurisdiction, whereas the Sessions Court has affirmed the same, without considering the present legal position of law. It is his submission that if the vehicle is kept in open yard, the value of the vehicle gets deteriorated and the value gets depreciated.

6. The learned Additional State Public Prosecutor would refute the submission and contends that the vehicle should not be released.

7. I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.

8. The afore-narrated facts are not in dispute. The vehicle being seized and registration of a criminal case in C.C.No.1133/2023 being registered are all a matter of record. The issue in the lis need not detain this Court for long or delve deep into the matter as this Court in an identical matter in Crl.P.No.1933/2024 disposed on 27.06.2024, has held as follows: “A perusal at the order passed by the learned Magistrate rejecting the application, reads as follows: "REASONS - 5 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024 “6. Point No.1: The Abbinahole Police have registered a case against accused in Cr. No.178/2023 for the offences punishable U/Sec.4-(1A), 21(4) of MINES AND MINERALS (DEVELOPMENT AND REGULATION) ACT, 1957 and r/w sec.379 of IPC and seized the tractor and trailer.

7. In the present case, the applicant claimed to be the owner lorry under release application has filed this application for release of same stating that he is in need of the said vehicle for his daily work and in order to eke his livelihood. The said vehicle is placed in the open yard of the Police Station, it becomes rusted and in future it will not work properly and the applicant would suffer irreparable loss. The applicant is ready to abide any conditions imposed by this court.

8. The applicant along with the application has produced the bunch of documents like digital Tax receipt, permit, certificate of fitness, copy of insurance pertaining to lorry bearing Reg.No.KA-35-B-9325 and copy of Aadhaar card

9. Now, this court has to see whether this court has jurisdiction to pass an order for release of vehicles which is seized under Special Act i.e.. Karnataka Minor Mineral Concession Amendment Act 1994 where the alleged offences are triable by Special Court.

10. The Karnataka Minor Mineral Concession Amendment Rules 1994 Act, does not provide a clear provision with respect to which court is empowered to release of vehicles. Therefore, in Vivek V/s. State of Karnataka, dated 15.07.2016 by the Hon'ble High Court held that, the committal court may release the vehicle. On 16.11.2017, there are major amendments to the Karnataka Minor Mineral Concession Amendment Rules 1994 wherein the power of release of vehicle was vested with Special Court which is having jurisdiction to try the offence. The provisions read as follows:

11. Amendment of Rule 43:In Rule 43 of the said rules, for sub-rules(5), (6). (7) and (8), the following shall be substituted namely, "(5)……… (6)……… - 6 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024 (7) Upon seizure as provided under sub rule (6) it shall be necessary for the officer sub-rule(6) to make a report within a reasonable period of such seizure to the competent Court having jurisdiction to try the offence on account of which seizure has been made. Under Section 30(b) of the Act Special Court is made as competent Court in order to deal with the release of vehicle and report has to be submitted to the Court having jurisdiction to try the offence and the Special Court only to exercise the powers of release the vehicle in terms of Rule 43(7). (8) Provided that where a report has been made to the Competent Court under sub-rule(7) the seized vehicle shall not be released except under the orders of such court. 12) Herein this case, the seized vehicles under release application is involved in commission of the offences attracted with the provisions of MINES AND MINERAL (DEVELOPMENT AND REGULATION) ACT, 1957. Under the light of power to release the vehicle was vested with the special court established having jurisdiction to try the offences. Adhering to the same, the point no.1 is answered Negative.” In the considered view of the Court, the reason so rendered to reject the application is blatantly contrary to law. The issue in the lis need not detain this Court for long or delve deep into the matter as a co-ordinate bench of this Court considering the issue of jurisdiction in the identical matter in Crl.P.No.137/2018, disposed on 27.02.2018 has held as follows: that when “5. Learned counsel appearing for the applicant – petitioner made the submission application was made before the JMFC 1st Court, Davangere, the trial Court referring to Section 6E of the Essential Commodities Act opined that the Court is not having any jurisdiction to allow the petition and to release the vehicle to the applicant. Hence the said application filed under Section 457 Cr.P.C. seeking interim custody of the vehicle came to be rejected. - 7 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024

6. Learned counsel appearing for the applicant – petitioner herein also made the submission that the observation made by the Court below that the Court is not having jurisdiction to release the vehicle in view of Section 6E of the amended provisions of the Essential Commodities Act, is not correct and it is not in accordance with law. In this connection, learned counsel relied upon the decision of the Hon’ble Supreme Court reported in AIR 1990 SC 1849 rendered in the case of STATE OF M.P. AND OTHERS Appellants v. RAMESHWAR RATHOD Respondent. Learned counsel for the petitioner draws the attention of the Court to paragraph No.6 of the said decision. Hence submitted to allow the petition by setting aside the order of the JMFC Court.

7. Learned High Court Pleader opposed the petition contending that the food stuffs which were loaded in the said vehicle were under confiscation and the Deputy Commissioner has to consider those aspects. Therefore at this stage, it is not proper for releasing the vehicle into the custody of the applicant. Hence learned High Court Government Pleader made the submission to reject the petition.

8. I have perused the grounds urged in the petition and also the order of the learned JMFC Court so also the decision of the Hon’ble Supreme Court relied upon by the learned counsel for the petitioner herein. In the decision of the Hon’ble Supreme Court, it is observed that the Court having jurisdiction in respect of criminal matters can invoke the jurisdiction for the release of the said vehicle and the power cannot be taken away. Therefore in view of the said decision and the principle enunciated in the said decision, the order of the learned JMFC Court is not correct and it is not in accordance with law.” This Court following the judgments of the coordinate benches rendered earlier, in Crl.P.No.4492/2022 disposed on 17.06.2022, has held as follows: “Learned counsel appearing for the petitioner submits that the issue in the lis stands covered by the judgment rendered by the Co-ordinate Bench of - 8 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024 this Court 21.03.2022, wherein this Court, has held as follows: in Crl.P.No.100628/2022 "3. The learned High Court Government Pleader appearing for the respondent-State submits that the petitoiner is not entitled for release of the vehicle in view of the bar contained in Section 6E of the Act. Hence, the learned Magistrate has rightly passed the impugned order and the same does not warrant any interference.

4. I have considered the submissions made by the learned counsel for the parties.

5. It is not disputed that the vehicle belonging to the petitioner was seized when the rice meant for public distribution was being transported unauthorisedly which contravention of the provisions contained in the Act. The co-ordinate Bench of this Court in Criminal Petition No.137/2018 following the decision of the Hon'ble Apex Court in the case of State of M.P. and Others Vs. Rameshwar Rathod reported in AIR 1990 SC 1849, has held that the criminal court having jurisdiction can exercise the power for release of the vehicle which was involved in commission of the offence under the provisions of the Act. In view of the same, the impugned order passed by the learned Magistrate requires to be set aside."

2. Learned counsel would also take this Court Crl.P.No.671/2010 dated 21.10.2013, wherein the Co-ordinate Bench of this Court, holds as follows: through passed "4. The ownership of the vehicle is not in dispute. The only ground urged by the State is that the vehicle seized under the provisions of Essential Commodities Act is to be released only by the District Commissioner who is authorized officer and not the jurisdictional Magistrate. came up This - 9 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024 consideration before the Apex Court in AIR 1990 SC 1849, wherein, it is held as under:- “Normally the Criminal Procedure Code, the Criminal Courts of the country have the jurisdiction and the ouster of the ordinary criminal court in respect of a crime can only be inferred if that is the irresistible conclusion flowing from necessary implication of the new Act. In view of the language used in Ss.6A and 7 of the Essential Commodities Act and in the context in which this language has been used, the inference that arises is that the criminal Court retains jurisdiction and its jurisdiction is not completely ousted”

5. Both the Courts below by following the law declared by the Apex Court have passed the impugned orders. I find no justifiable ground impugned orders. Accordingly, the petition is hereby dismissed." interfere with

3. In the light of the orders so passed by the Co-ordinate Bench of this Court as quoted supra, the petitioner is entitled to succeed.” In the light of the issue standing answered by the coordinate bench of this Court which is subsequently followed by this Court, the reason so rendered by the concerned Court to reject the application is blatantly contrary to law. In the light the facts obtaining in the case at hand and the afore-quoted order, which covers the issue on all its fours, the petition deserve to succeed. - 10 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024

9. For the aforesaid reasons, the following: ORDER a. The criminal petition is allowed. b. The order dated 29.01.2024 passed by the Senior Civil Judge and JMFC, Challakere, in C.C. No.1133/2023 and the order dated 18.03.2024, passed by the Principal District and Sessions Judge at Chitradurga, in Crl.R.P.No.15/2024, stand quashed. c. The application filed under Section 457 of the Cr.P.C. seeking release of TATA Hitachi Model EX130 Super Plus Engine bearing No.KYX105974, is allowed. Only the said vehicle be released the petitioner herein on proper identification and not the materials that was filled in the vehicle, subject to the following conditions: a. Petitioner shall execute an indemnity bond for a sum of Rs.4,00,000/- (Rupees Four Lakhs only) i.e., the value estimated under the PF so also furnish one surety for the said amount to the satisfaction of the concerned Magistrate Court. - 11 - NC: 2024:KHC:30021 CRL.P No. 4802 of 2024 b. Petitioner shall not change colour and number of the said vehicle. c. The colour photograph of the said vehicle is to be taken from different angles and they should be produced before the concerned JMFC Court. d. The applicant-petitioner shall not transfer the vehicle in any manner in favour of anybody till conclusion of the proceedings. e. The petitioner shall produce the vehicle before the confiscation authority or before the JMFC Court as and when directed. f. The petitioner shall not repeat the offences that he is now embroiled in. g. The release of the subject vehicle shall be done, within one week from the date of receipt of a certified copy of the order. Ordered accordingly. Sd/- (M.NAGAPRASANNA) JUDGE