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2015 DIGILAW 1599 (RAJ)

Ramswaroop v. State of Rajasthan

2015-08-28

PRASHANT KUMAR AGARWAL

body2015
Hon'ble AGARWAL, J.—Heard learned counsel for the parties. 2. The petitioner has filed this criminal misc. petition under Section 482 Cr.P.C. against the order dated 6.1.2015 passed by the Additional Sessions Judge, Kotputali, District Jaipur in Criminal Revision Petition No.1/2015 whereby the learned Revisional Court while dismissing the revision petition filed by the petitioner upheld and affirmed the order dated 17.12.2014 passed by Additional Chief Judicial Magistrate, Kotputali in respect of FIR No.502/2014 registered at Police Station Pragpura whereby the learned trial Court dismissed the application under Sections 451 & 457 Cr.P.C. filed by the petitioner with a prayer to temporarily release the seized JCB bearing Registration No.RJ.32-EA-0376 (Chasis No.183207962011) on 'Superdginama'. 3. Brief relevant facts for the disposal of this petition are that aforesaid FIR came to be registered on 1.11.2014 for the offence under Section 379 IPC and for the offence under Section 21/4 of M.M.R.D Act, 1957 and Rules 48 & 68 of the Rajasthan M.M.C.R. Rules, 1986 on the premise that the aforesaid JCB was found engaged in the work of illegal mining. Petitioner claiming to be registered owner of the aforesaid JCB filed application under Section 451 & 457 Cr.P.C. before the trial Court but the same was dismissed mainly on the ground that National Green Tribunal (Central Zone) Bench Bhopal (hereinafter referred to as the 'Tribunal') vide order dated 13.10.2014 passed in Application No.116/2013 has ordered that each and every vehicle found engaged in illegal mining is liable to be impounded. It was further held by the learned trial Court that as the power to impound a seized vehicle now vests in the Tribunal, trial Court has no jurisdiction to release a seized vehicle. The order dated 17.12.2014 was challenged by the petitioner by way of the aforesaid revision petition, but without any success. The learned Revisional Court also observed that in view of the order passed by the Tribunal, Criminal Court has no jurisdiction to release such vehicle under Section 451 & 457 Cr.P.C. 4. It was submitted by the learned counsel for the petitioner that the seized JCB was not found in transportation of any mineral obtained as a result of illegal mining and, therefore, the order of Tribunal is not applicable to the facts and circumstances of the case. It was submitted by the learned counsel for the petitioner that the seized JCB was not found in transportation of any mineral obtained as a result of illegal mining and, therefore, the order of Tribunal is not applicable to the facts and circumstances of the case. It was further submitted that there is no provision in the National Green Tribunal Act, 2010 barring jurisdiction of a Criminal Court and, therefore, illegality and perversity has been committed by the learned Courts below by refusing to release the aforesaid vehicle merely on the basis of order dated 13.10.2014 passed by the Tribunal. It was also submitted that proper conditions can be imposed by the Court before releasing the seized vehicle in favour of the petitioner. 5. On the other hand, it was submitted by the learned Public Prosecutor that when a general order has been passed by the Tribunal to the effect that each and every vehicle found engaged in illegal mining is liable to be impounded, no illegality or perversity has been committed by the learned Courts below. 6. I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions. 7. Sub-section (1) of Section 4 of the Mines & Minerals (Development & Regulation) Act, 1957 (hereinafter referred to as the 'Act') provides that no person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder. It is thus clear that mining operations cannot be undertaken by a person in any area unless a valid and proper licence is obtained by him. It is not the case of the petitioner that he had a valid and proper licence to undertake mining operations in the area where the aforesaid JCB was found allegedly to be engaged in mining. It is not the case of the petitioner that he had a valid and proper licence to undertake mining operations in the area where the aforesaid JCB was found allegedly to be engaged in mining. Sub-section (4) of Section 21 of the Act of 1957 prescribes that whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf. Thus, according to this provision a vehicle found engaged not only in transportation of illegally mined mineral, but also if such vehicle is found engaged in raising such mineral, it is liable to be seized by a competent officer or authority and, therefore, in the present case even if the JCB was not found in transportation by any mineral even then it was liable to be seized as it was allegedly found engaged in raising some mineral illegally. Sub-section (4-A) of Section 21 of the Act provides that any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court. Thus, as per this provisions it is further clear that a vehicle which has been seized is liable to be confiscated by an order of the Court competent to take cognizance for the offence. Sub-rule (7) of Rule 48 of the Rajasthan Minor Mineral Concession Rules, 1986 also provides for confiscation of such vehicle by an order of the Magistrate. It is thus clear that if a vehicle is found engaged in illegal mining it is not only liable to be seized but also to confiscation. In my view confiscation proceedings are separate and independent proceedings which can be initiated by the Court concerned irrespective of the fact whether proceedings for prosecution of the accused are initiated or not and order of confiscation can be passed by the Court without waiting for the result of the criminal proceedings. In my view confiscation proceedings are separate and independent proceedings which can be initiated by the Court concerned irrespective of the fact whether proceedings for prosecution of the accused are initiated or not and order of confiscation can be passed by the Court without waiting for the result of the criminal proceedings. There is nothing in the provisions of the Act or the Rules showing that order for confiscation can be made only when accused is convicted. The vehicles which are found involved in the commission of offence under the provisions of the Act and the Rules are liable to be confiscated to the State so as to determine the owners thereof, as far as possible, to involve their vehicles so as to facilitate the commission of such offence. Confiscation means to officially take something away from somebody especially as a punishment. As a result of confiscation the vehicle vests absolutely in the State and all rights of the owner are lost in it. Thus, when according to the provisions of the Act and the Rules the vehicle so seized is subjected to confiscation, there is no question of its being released even temporarily in favour of the owner. 8. Consequently, the misc. petition is dismissed. In view of the above order, the stay application is also dismissed.