High Court
Case Details
Court No. - 89 Case :- MATTERS UNDER ARTICLE 227 No. - 9386 of 2022 Petitioner :- Nilesh Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kamal Dev Rai Counsel for Respondent :- G.A. Hon'ble Sameer Jain,J.
Legal Reasoning
Heard Sri Kamal Dev Rai, learned counsel for the petitioner and Sri Tanay Kumar, learned AGA for the State-respondent. The instant petition has been filed on behalf the petitioner with following prayers:- "(i) Issue a direction to setting aside the order dated 27.5.2022 passed by Chief Judicial Magistrate, Etawah and Judgement and order dated 7.7.2022 passed by Session Judge, Etawah in Criminal Revision No. 74 of 2022. (ii) To issue a direction to the mines department to release the petitioner's vehicle JCB No. UP83AT/8868. (iii) To issue any other suitable, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case. (iv) To award the cost of petition in favour of petitioner." Learned counsel for the petitioner submitted that the petitioner is the owner of JCB machine in question and his JCB machine has wrongly been seized by the concerned authorities on the false allegation that his machine was being used for illegal mining and in fact, his machine was broken down on the way and he left over the same and went to call a mechanic but in the meantime mining officers arrived at spot and seized the vehicle of the petitioner. He further submitted that in the seizure memo dated 8.4.2022, it has been wrongly mentioned that his vehicle was found to do illegal mining and seizure memo which has been annexed as annexure-2 to the affidavit filed in support of the present application shows that it is in printed proforma and it is mentioned in it that driver of the JCB machine flew away and this fact strengthen the defence taken by the petitioner that at the time of seizure, his vehicle was standing at the place of incident and petitioner was not present there. He further submitted that as petitioner is the owner of the JCB machine, therefore, he moved a release application before CJM concerned but his release application was dismissed by the CJM concerned on 27.5.2022 and when he preferred a criminal revision before the sessions court then his revision was also dismissed by Sessions Judge,Etawah on 7.7.2022 and both the orders passed by courts below are illegal as they failed to analyze the facts of the case and both the courts below also failed to consider the fact that the petitioner is the registered owner of the JCB machine in question. Learned counsel further submitted that from the perusal of the order passed by CJM dated 27.5.2022, it appears that he dismissed the application of release moved by petitioner mainly on the ground that there is a provision in Rule 58 of The Uttar Pradesh Minor Minerals (Concession) Rules, 2021 (in short, The Rule) but the Rule 58 is not applicable in the present case as it is applicable after conviction and till date, petitioner is neither convicted nor he is even facing any criminal prosecution in this regard and therefore, the order dated 27.5.2022 passed by the CJM, concerned is illegal. He further submitted that in the order passed by CJM concerned it is also mentioned that petitioner moved an application under Rule 58 of The Rule but this fact is totally false as petitioner never moved any such application before any authority and therefore, order passed by the learned CJM dated 27.5.2022 is illegal. He further submitted that lower revisional court also failed to consider the provision of Rule 58 of The Rule and approved the order passed by the CJM concerned and similar illegality has been committed by the lower revisional court, therefore, order dated 7.7.2022 passed by the lower revisional court is also illegal. He further submitted that as the applicant is the registered owner of the JCB Machine in question and provisions of Rule 58 of The Rule is not applicable, therefore, in view of the judgement of the Apex Court in the case of Sunder Bhai Ambalal Desai Vs. State of Gujrat reported in [2003 (46) ACC 223], the vehicle in question should be released in favour of the petitioner. Per contra, learned AGA opposed the prayer and submitted that as vehicle of the petitioner was used in illegal mining and there is a provision under Rule 58 of the Rule that after conviction a penalty upto Rs. Five lacs can be imposed for violation of the provision of Mines and Minerals Act and its Rule, therefore, it would not be proper for this Court to interfere into the matter and there is no illegality in the orders passed by both the courts below as both the courts below after considering the entire facts of the case arrived at the conclusion that it is not a fit case in which vehicle in question should be released in favour of the petitioner although learned AGA could not dispute the fact that the provisions of Section 58 of the Rule will only be applicable after conviction and further, petitioner is the registered owner of JCB Machine in question. I have heard learned counsel for both the parties and perused the record of the case. From the perusal of the record, it appears that on 8.4.2022 JCB machine of the petitioner was seized by Mines and Minerals Officer, Etawah and from the perusal of the seizure memo dated 8.4.2022, it appears that vehicle of the petitioner was seized on the ground that it was being used for illegal mining/illegal transportation. Therefore, from the perusal of the seizure memo dated 8.4.2022 it appears that it has not been specifically stated by the mining officer that for what offence or violation the vehicle of the petitioner was seized either it was seized for illegal mining or for illegal transportation and this fact clearly suggest that in very casual and perfunctory manner the vehicle of the petitioner was seized. Further from perusal of the impugned order passed by both the courts below dated 27.5.2021 and 7.7.2022 it appears that both the courts below relied upon the provisions of section 58 of the Rule. Rule 58 of The Uttar Pradesh Minor Minerals (Concession) Rule, 2001 is quoted here as under:- "58. Penalty for unauthorised mining- Whoever contravenes the provisions of Rule 3 shall on conviction be punishable with imprisonment of either description for a term, which may extend up to five years or with fine which shall not be less than 2 lacs Rupees per hectare and which may extend to five Lacs rupees per hectare of the area, or with both." Therefore, from the perusal of the above Rule 58 it is apparent that it will only applicable after conviction and before conviction on the basis of Rule 58, the vehicle which was seized cannot be refused to release in favour of its registered owner. As indisputably petitioner is the registered owner of the vehicle and in view of the case of Sunder Bhai Ambalal Desai (supra) the vehicle in question should be released in favour of its registered owner. Therefore, from the above discussion, I find that both the courts below failed to properly interpret the provision of law and Rule of Mines and Minerals and further both the courts below also failed to properly even analyze the facts of the case and they also did not even consider the seizure memo dated 8.4.2022 that it was prepared in most perfunctory and casual manner. Accordingly, both the impugned orders dated 27.5.2022 and 7.7.2022 passed by CJM concerned and sessions judge concerned are hereby quashed. The vehicle in question is hereby released in favour of the petitioner as he is admittedly registered owner of the vehicle on furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) petitioner shall not change or alter the vehicle in any manner except for necessary repairing work. (ii) he shall not transfer the vehicle in question to any other person till disposal of the trial. (iii) whenever vehicle will be required by the trial court then he without fail will produce it before the trial court. Accordingly, the instant petition stands allowed. Order Date :- 1.12.2022 Ankita Digitally signed by ANKITA SRIVASTAVA Date: 2022.12.16 18:54:54 IST Reason: Location: High Court of Judicature at Allahabad