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2010 DIGILAW 470 (ORI)

BASANTA KUMAR SAHU v. STATE OF ORISSA

2010-07-14

I.MAHANTY, V.GOPALA GOWDA

body2010
JUDGMENT : 1. Heard Mr. P.K. Rath, learned Counsel for the Petitioner and Mr. D. Panda, learned Additional Government Advocate on behalf of the State. 2. Learned Additional Government Advocate submits that the direction issued by this Court dated 30.6.2010, could not be complied with by the State since the Director of Mines who has issued the impugned order under Annexure-7 dated 11.2.2010 has retired in the meantime. 3. In view of the aforementioned fact we are of the view that while an opportunity was afforded to the State to correct the mistake made in the impugned order under Annexure-7, has not been availed and hence, it is necessary to give the following directions: 4. The case of the Petitioner is that he is the owner of a Tipper (Truck) bearing registration No. OR09G-7154 and had given the said truck under higher purchase agreement to one Md. Hussain. It appears that the vehicle in question was involved in theft of iron ore and the same was seized by the Mining Officer, Joda on 25.12.2009. The Petitioner upon being noticed appeared before the Deputy Director of Mines and filed a petition for compounding the offence as provided under Rule 16 of the Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation Rules, 2007 (in short "the rules, 2007). The same is quoted herein below for convenience: 16. Compounding of Offences: (1) On receipt of written application from the accused person, the Competent Authority may, in exercise of its powers conferred under Sub-section (1) of Section 23A of the Act, compound the offence either before or after the institution of prosecution, on payment of such sum, as the Competent Authority may specify with prior approval of the Director of Mines/any officer authorized by the Director. The amount so collected shall be credited to the Government under the head of account specified under Sub-rule (2) of Rule 4. (2) After the offence is compounded and the accused person is not interested to pay for the property seized or the Competent Authority is of the opinion that such property shall not be released in favour of the accused, he shall not compound the offence and take charge of the seized property and dispose it of by public auction or as per the directions of the Government. (3) Where an offence is compounded under Sub-rule (1), no proceeding or further proceedings, as the case may be, shall be taken against the offender in respect of the offence so compounded and the offender, if in custody, shall be released forthwith. (4) The competent Authority shall maintain a register in Form O mentioning therein the details of every offence compounded by him under these rules and submit a monthly return to the Director of Mines. 5. The Deputy Director of Mines accepted the plea of the Petitioner and proposed to compound the offence on the payment of Rs. 1,00,000/- for release of the vehicle and forfeiture of the seized iron ore found in the vehicle and sent his proposal for the approval of the Director of Mines. The Director of Mines while according his approval to the recommendation of the Deputy Director of Mines, directed to compound the offence by depositing a sum of Rs. 2,00,000/-. 6. The Petitioner being aggrieved by the same approached this Court in W.P.(C). No. 5266 of 2009 and by order dated 6.4.2010, this Court was pleased to direct the Petitioner to move the Director of Mines once again since there clearly appeared to be an error in the impugned order, which appeared to be a typographical or clerical error. It is further stated that pursuant to the aforesaid direction, the Petitioner made the necessary representation and the same came to be disposed of vide order dated 11.2.2010 under Annexure-7, once again, reiterating his earlier direction to compound the offence at Rs. 2,00,000/-. Hence the present challenge. 7. On perusing the Section 16 of the Rules, 2007, it is clear therefrom that the Deputy Director of Mines is vested his authority to compound the offence thereunder and the Director of Mines having in fact, approved the recommendation of the Deputy Director of Mines had no authority in law to enhance the amount by compounding the offence from Rs. 1,00,000/- to Rs. 2,00,000/-. 8. We are of the considered view that this enhancement by the Director of Mines is wholly without jurisdiction. 1,00,000/- to Rs. 2,00,000/-. 8. We are of the considered view that this enhancement by the Director of Mines is wholly without jurisdiction. In spite of the opportunities having been granted to the Director of Mines to correct the error in his order, the said Director of Mines has in the mean time retired, we quash the order dated 11.2.2010 passed by the Director of Mines, Orissa under Annexure-7 enhancing the compounding fee and confirm the order of the Deputy Director, Joda levying Rs. 1,00,000/- as compounding fee on the Petitioner. With the above directions as noted hereinabove and the deposit of Rs. 1,00,000/- (Rupees one lakh) as compounding fee to be complied with within a period of ten days from the date of receipt of the certified copy of this order by the Deputy Director of Mines, Joda (O.P. No. 3) and vehicle be released immediately thereafter. 9. The writ petition is allowed in terms of the directions noted hereinabove. Final Result : Allowed