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2012 DIGILAW 2144 (RAJ)

Muknaram v. State of Rajasthan

2012-10-26

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—Heard learned counsel for the parties. 2. The petitioner has preferred this criminal misc. petition under Sec. 482 Cr.P.C. against the order dt. 7.9.2012 passed by the Additional Sessions Judge (Fast Track), Sawai Madhopur in Criminal Revision Petition No.174/2012 whereby the learned Revisional Court by dismissing the revision petition filed by the petitioner has upheld and affirmed the order dt.25.8.2012 passed by the Chief Judicial Magistrate, Sawai Madhopur in Criminal Misc. Case No.109/ 2012 whereby the learned Magistrate dismissed the application u/Sec. 457 Cr.P.C. filed by the petitioner for releasing the seized vehicle in his 'Supurdginama'. 3. The brief relevant facts for the disposal of this petition are that Tehsildar, Sawai Madhopur lodged a written report before Police Station, Surwal (District Sawai Madhopur) to the effect that on 17.8.2012, a JCB (excavator) bearing Chesis No.1263832-J-207 was found illegally digging 'Bajri' in Khasra No.301 'Siway Chak Banjar'. It was further averred in the written report that the driver of the aforesaid JCB fled away from the place of incident and the machine has been seized by him. On the basis of aforesaid written report, an FIR No.3/2012 for the offences under Sections 447 & 379 IPC was registered and investigation commenced. It is to be noted that during investigation offence under Sec. 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as “the Act”) was also added. It is not in dispute that SDM, Sawai Madhpur imposed Rs.2 lacs as compound fees on the aforesaid JCB machine and the same has not been deposited by the petitioner. The petitioner filed an application under Sec. 457 Cr.P.C. for interim release of the aforesaid machine on his 'Supurdginama' and the same was opposed by the respondent. The learned Chief Judicial Magistrate, Sawai Madhopur after hearing both the parties dismissed the application vide order dated 25.8.2012 mainly on the ground that unless the aforesaid compound fees imposed upon the petitioner is paid or deposited, the seized machine cannot be released by the Court. Feeling aggrieved, the petitioner filed revision petition before the Revisional Court and the same was also dismissed vide order dated 7.9.2012. The Revisional Court also held that until the order of imposing compound fees is in existence and the amount is not paid by the petitioner, the seized JCB cannot be released on his 'Supurdginama'. Feeling aggrieved, the petitioner filed revision petition before the Revisional Court and the same was also dismissed vide order dated 7.9.2012. The Revisional Court also held that until the order of imposing compound fees is in existence and the amount is not paid by the petitioner, the seized JCB cannot be released on his 'Supurdginama'. Still dissatisfied, the petitioner is before this Court by way of this petition. 4. Assailing the aforesaid orders, learned counsel for the petitioner submitted that there is no provision in the Act or the Rajasthan Minor Mineral Concession Rules, 1986 (hereinafter referred to as “the Rules”) providing that any vehicle seized under the provisions of the Act or Rules cannot be released even temporarily by the Court unless the compound amount is paid or deposited. It was further submitted that if the amount so imposed is not paid at the most the seized vehicle can be confiscated, but there is no prohibition to release the vehicle temporarily and in the present case as confiscation proceedings have not been taken against the petitioner and, therefore, illegality has been committed by the Courts below refusing to release the seized vehicle under Section 457 Cr.P.C. 5. On the other hand, it was submitted by the learned Public Prosecutor that in the present petition the validity of the order of compounding of the offence and imposing of compounding amount cannot be considered and, therefore, unless the compounding amount imposed upon the seized vehicle is paid or deposited by the petitioner the same cannot be released even temporarily. 6. I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as the relevant legal provisions. 7. According to Section 4 of the Act, no person shall undertake any mining operations in any area except under and in accordance with the terms and conditions of a mining lease granted under the Act and the Rules made therein. Section 15 of the Act empowers State Government to make rules for regulating the grant of mining leases in respect to minor mineral and for the purposes connected therewith. It cannot be disputed that in exercise of the powers conferred by Section 15 of the Act, the State of Rajasthan has made the Rules. Section 15 of the Act empowers State Government to make rules for regulating the grant of mining leases in respect to minor mineral and for the purposes connected therewith. It cannot be disputed that in exercise of the powers conferred by Section 15 of the Act, the State of Rajasthan has made the Rules. According to sub-section (1) of Section 23A of the Act, an offence punishable under the Act or any rules made thereunder may either before or after the institution of the prosecution, be compounded by the person authorised under Section 22 to make a complaint to the Court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify. Sub-section (2) of Section 23-A of the Act provides that where an offence is compounded under sub-section (1), no proceeding or further proceeding, 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. 8. For the disposal of the present petition, Rule 48 of the Rules is also relevant which is as under : “48. Unauthorised working - (1) No person shall undertake any mining operations except in accordance with the terms and conditions of the mining lease, quarry licence, short term permit or any other permission granted under these rules. (2) The lessee or any other person shall not remove or despatch mineral from the mines and quarries without rawanna for the lease hold area in Form No. 12 and duly sealed by the department. (3) Any contravention of sub rule (1) shall be punishable with imprisonment which may extend to one year or with fine which may extend up to Rs. 5000/- or with both, and in case of a continuing contravention, with an additional fine which may extend to Rs. 500/- for everyday during which such contravention continues after conviction for the first such contravention; Provided that the Superintending Mining Engineer/ Superintending Mining Engineer (Vigilance)/Mining Engineer/Mining Engineer (vigilance) / Assistant Mining Engineer may either before or after the institution of the prosecution, compound the offence committed in contravention of the sub-rule (1) on payment of such sum as he may specify; Provided further that the amount specified under the above proviso shall not be less than Rs. 500/- and shall be in addition to the cost of mineral if recoverable. (4) Where any person trespasses on any land on contravention of the provisions of sub-rule (1) such trespasser may be served with an order of eviction by the Director, Superintending Mining Engineer, Superintending Mining Engineer (Vigilance), Mining Engineer, Mining Engineer (Vigilance) or Assistant Mining Engineer concerned or any other officer/ official authorised by the Director in this behalf. (5) Whenever any person without a lawful authority or in contravention of the terms and conditions of the mining lease/ quarry licence, short term permit or any other permit raises any mineral from any land and for that purpose bring on the land any tool, equipment, vehicle or other thing such mineral, tool, equipment vehicle or other thing may be seized by the authorities mentioned in sub-rule (4): Provided that where mineral so raised has already been despatched or consumed, the authorities mentioned in sub-rule (4) may recover cost of the mineral along with rent, royalty or the tax chargeable on land occupied or mineral excavated which will be computed as 10 times the royalty payable at the prevalent rates; Provided further that every officer seizing any property or mineral under this rule shall give a receipt of the property so seized and make a report of such seizure to his superior officer and to the Magistrate having jurisdiction over the area to try offence. (6) The property other than the mineral seized under sub-rule (5) may be released by the officer who seized the property in the execution of a bond by the trespasser or the owner of the property or any other person to the satisfaction of such officer that the property so released shall be produced at the time and at the place when such production is required by such officer: Provided that where a report has been made to the Magistrate under sub-rule (5) the property shall be released only under the orders of the Magistrate. (7) All property seized under this rule shall be liable to be confiscated by an order of Magistrate tring the offence if the rent, royalty or tax or/ and cost of the mineral as mentioned above are not paid by the trespasser within a period of 3 months from the date of commission of such offence or when the recoveries are not effected by that time; Provided that on payment of these dues within the said period of 3 months all properties seized shall be ordered to be released and shall be handed over to the trespasser or the owner of the property. 9. Proviso to Sub-rule (3) of Rule 48 of the Rules provides that the authorities referred therein are entitled to compound the offence on payment of such sum as they may specify. In the present case, it is the case of the respondent that in exercise of his power under the Proviso, the competent authority has imposed an amount of Rs.2 lacs as compounding sum to compound the offence committed by the petitioner. Although, the petitioner challenges the validity of that order, but I am of the view that the validity of the same cannot be considered and decided in this petition and the remedy lies elsewhere. Sub-rule (5) of Rule 48 further empowers the authorities referred therein to seize the vehicle etc if the same is brought illegally to raise some mineral from any land. In the present case the aforesaid vehicle has been seized on the ground that it was used to illegally digging 'Bajri' in Khasra No.301. According to sub-section (2) of Section 23-A of the Act where an offence is compounded, no proceeding or further proceeding can be taken against the offender in respect of the offence so compounded and if the offender is in custody he shall be released forthwith. It clearly means that if the offence has been compounded and the competent authority has imposed compounding amount and the same has been deposited, no proceedings including confiscation proceeding for the vehicle seized, can be taken or if any proceedings have already been taken the same shall stand abated and have to be dropped and the seized vehicle shall be released forthwith. But a question may arise what will be the position if the amount so imposed is not paid by the person concerned. But a question may arise what will be the position if the amount so imposed is not paid by the person concerned. Whether in such a situation the seized vehicle can be released without payment or deposit of such amount or whether a condition can be imposed by the Court while ordering release of the vehicle that the amount so imposed is to be paid by the applicant. I am of the considered view that there is no impediment in imposing such condition by the Court. Although, the compounding amount so imposed may be recovered in accordance with the procedure provided in Section 25 of the Act readwith Rule 66 of the Rules as an arrear of land revenue, but at the same time the amount can also be recovered by any other legally permissible mode including payment of the same as a condition precedent while ordering release of the seized vehicle. Thus, where no more proceedings or further proceedings are required to be taken against the person concerned, it is not unreasonable to impose such condition while ordering release of the seized vehicle so as to realise or facilitate realization of compounding amount. In the present case, as the offence has already been compounded, no further proceedings including proceedings for confiscation of the aforesaid vehicle can legally be taken against the petitioner and if in such a situation the seized vehicle is released without imposing some reasonable condition the petitioner will be unreasonably benefited as he will get the possession of the vehicle without paying the compounding amount and no proceedings including proceedings for confiscation of the vehicle can be taken against him. Although, according to sub-rule (6) of Rule 48 of the Rules the vehicle can be released on the execution of the bond, but that can be done only when offence is not compounded and proceedings or further proceedings in regard to the offence and confiscation proceedings are required to be taken and production of the released vehicle is required during such proceedings but if the offence has already been compounded it will of no use to take such bond, as the property would not be required to be produced. It is to be noted that according to sub-rule (7) of Rule 48 of the Rules all property seized under the rule is liable to be confiscated by an order of the Magistrate trying the offence if the amount mentioned therein is not paid by the tresspasser within a period of three months from the date of commission of such offence or when the recoveries are not effected by that time. It is clear that confiscation proceedings can be taken under this provision when amount referred thereunder is not paid. 10. The net result of all this discussion is that in a case in which offence has already been compounded by the competent authority and an amount has been imposed as compounding fees and the same has not been paid or deposited by the person concerned, for the purpose of recovery or realization of the same, a condition can be imposed by the Court while ordering release of the vehicle to pay or deposit the same and the Court can refuse to release the seized vehicle even temporarily under Section 457 Cr.P.C. In view of the above, no illegality or perversity can be said to have been committed by the Courts below in dismissing the application filed by the petitioner. 11. Consequently, the misc. petition being meritless is, hereby, dismissed. In view of the order aforesaid, the stay application does not survive and the same is also dismissed.