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2008 DIGILAW 1321 (JHR)

Shyam Sundar Yadav v. State of Jharkhand

2008-11-21

D.K.SINHA

body2008
Order The petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India with a limited prayer for release of his dumper bearing registration No. JH-02F-8939 as it was refused to be released by the Chief Judicial Magistrate, Chaibasa in connection with Nuamundi P.S. Case No. 13/07 for the alleged offence against the accusedunder Sections 414/1208 of the Indian Penal Code as also under Section 21 of the Mines and Mineral (Development and Regulation) Act, 1957 (hereinafter referred as MMDR Act). The petitioner further prayed for quashing of the order dated 18.1.2008 passed by the Sessions Judge, Chaibasa in Cr. Revision No. 1 of 2008 upholding the order of the Chief Judicial Magistrate aforesaid. 2. Though the petitioner has prayed in the petition also for the quashment of the entire investigation but the same has not been pressed and, it is rejected as not pressed. 3. The prosecution story in short was that the Officer Incharge of Nuamundi police station on secret information intercepted the aforesaid Dumper of the petitioner on 13.3.2007 which was carrying about 8 tons of Iron Ore and was seized in presence of the independent witnesses to which seizure list was prepared. It was further alleged that the driver and cleaner of the dumper escaped at the sight of the police raiding party. However, it was gathered from the witnesses that the other persons, who had escaped from the Dumper, were Sudhendu Singh and one Parbez both of village Nuamundi doing smuggling of Iron Ores illegally and accordingly, after seizure of the dumper with the iron ores in question F.I.R. was instituted against the driver and the owner of the dumper and Sudhendu Singh and Parbez for the offence under Sections 414/ 1208 IPC as also under Section 21 of the MM(DR) Act. 4. Heard the learned counsel on behalf of the petitioner as well as Mr. R.R. Mishra, G.P.-II on behalf of the Respondent-State. 5. 4. Heard the learned counsel on behalf of the petitioner as well as Mr. R.R. Mishra, G.P.-II on behalf of the Respondent-State. 5. The learned counsel by raising a short question as to the competence of the informant, a Sub-Inspector of Police, submitted that Section 21(4) of M.M.(D.R.) Act, 1957 provides that vehicles, tools or any other things are liable to be seized by any authority specially empowered under the Act but in the instant case the Dumper of the petitioner was seized by the police officer/informant who was not empowered as such the seizure of the vehicle in question was without jurisdiction. Similarly, Section 22 of M.M.(D.R.) Act provides that no court shall take cognizance of any offence under the Act or any rules made there under except upon a complaint in writing made by a person authorized in this behalf by the Central Government or State Government and in the instant case the F.I.R. was lodged by a police officer who was not authorized under the Act and therefore, in that manner also the case instituted against the accused persons was also beyond jurisdiction. 6. The learned counsel urged that Bihar Mineral (Prevention of Illegal Mining Transportation and Storage) Rules, 2003 was framed under the power conferred by Section 23(C) of M.M.(D.R.) Act and Rule 2(iii) provides that Assistant Mining Officer/District Mining Officer/Geologist posted as Mining Officer in District and other officers authorized by the appropriate Government would be the competent officer in this regard and therefore, neither the FIR drawn nor the seizure list prepared of the alleged seizure of the dumper of the petitioner is maintainable in the eyes of law. 7. Advancing his argument the learned counsel pointed out that the confiscation proceeding if at all initiated in respect of confiscation of the dumper in question is bad in law on the face that seizure was itself illegal and that the prayer of the petitioner was rejected only on the ground that the confiscation proceeding of the dumper was going on and therefore the confiscation proceeding should not continue. Finally, the learned counsel submitted that the petitioner is ready to furnish sufficient amount of guarantee on release of his Dumper with the conditions, if any, imposed by this Court. 8. Mr. Finally, the learned counsel submitted that the petitioner is ready to furnish sufficient amount of guarantee on release of his Dumper with the conditions, if any, imposed by this Court. 8. Mr. R.R Mishra, the learned G.P.II has fairly conceded on the point of law raised but at the same time he suggested that the vehicle may be released on the bank guarantee of sufficient amount by the petitioner with sureties, if the court inclines to release it. 9. It is relevant to mention that the petitioner has filed interlocutory application No. 1833 of 2008 requesting therein for the quashment of the confiscation proceeding vide Confiscation Case No. Misc. (C.P.) No. 18 of 2007 initiated on 12.4.2007 on the ground that confiscation case as initiated under Section 21 (4A) of the M.M.(D.R.) Act is itself illegal as barred by jurisdiction which was based upon the seizure of the vehicle by a police officer who was not a competent officer to make certain seizure of the vehicle. The seizure was made without authority and equally there was no ingredient to attract offence alleged under Section 414 IPC against the owner of the dumper as no report of theft of Iron Ores was communicated to the police station. As a matter of fact the petitioner, who is admittedly the owner of the dumper, had no knowledge that his dumper, which was hired by one Parbez, was allegedly found carrying Iron Ores. The prayer of the petitioner was refused by the Chief Judicial Magistrate, Chaibasa simply on the ground that the confiscation proceeding of the dumper was going on in his court in which notices were issued. Admittedly, the dumper is a commercial vehicle and it was found allegedly carrying Iron Ores without valid papers to which a criminal case is going on in the Court of CJM. There is no hard and fast rule or law or even proposition of law that the commercial vehicle seized in connection with the alleged offence under the provision of MM(DR) Act cannot be released. There is no hard and fast rule or law or even proposition of law that the commercial vehicle seized in connection with the alleged offence under the provision of MM(DR) Act cannot be released. In the instant case the petitioner has offered the bank guarantee of sufficient amount with sureties securing release of his vehicle on the grounds that the FIR was instituted on the instance of the police officer/informant who was not authorized under the law nor the seizure of the dumper by him with Iron Ores loaded thereon was permissible under the MM(DR) Act. The confiscation on illegally seizure by the officer not competent to do so is bad in law. 10. In the circumstances I find and hold that the confiscation proceeding of dumper while Confiscation Case No. Misc. (CP) No. 18 of 2007 pending in the Court of CJM, Chaibasa is not maintainable and therefore, such proceeding is quashed, accordingly, the dumper bearing Registration No. JH-02F-8939 is directed to be released in favour of the petitioner on his executing bank guarantee of Rs. 7,00,000/- (Rupees Seven lakhs) with two sureties of the like amount each on production of relevant documents of dumper to the satisfaction of the Chief Judicial Magistrate, Chaibasa in Nuamundi P.S. Case No. 13/07 with the condition that dumper in question shall not be alienated or disposed of without prior permission of the court concerned. 11. This writ petition is allowed in part with the aforesaid observation and accordingly, I.A. No. 1833 of 2008 stands disposed of.