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2018 DIGILAW 348 (RAJ)

Rajendra Singh Rajput v. State of Rajasthan

2018-01-25

DEEPAK MAHESHWARI

body2018
JUDGMENT Deepak Maheshwari, J. - Heard learned Counsel for the accused-petitioner and learned Public Prosecutor for the State. 2. This criminal misc. petition has been preferred by accused-petitioner against the order dated 3.1.2018 passed by learned Additional District and Sessions Judge No. 3, Kota in Criminal Revision Petition No. 50/2017 (CIS No. 555/2017), whereby the learned Revisional Court while dismissing the revision petition filed by the petitioner confirmed the order dated 5.12.2017 passed by the Judicial Magistrate, Etawa in respect of F.I.R. No. 213/2017 registered at P.S. Khatoli, District Kota, whereby the learned Trial Court dismissed the application filed under Section 457 Cr.P.C., 1973 by the petitioner with a prayer to temporarily release the seized vehicle (Tractor) bearing Registration No. RJ-20-RA-6996 alongwith trolley on 'Supurdginama'. 3. Brief relevant facts for the disposal of this petition are that aforesaid F.I.R. came to be registered on 22.11.2017 of the offence under Section 379 I.P.C. and under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 ('MMDR Act') on the premise that the aforesaid Tractor alongwith trolley was found engaged in the work of illegal mining. Petitioner claiming to be registered owner of the aforesaid Tractor alongwith trolley filed application under Section 457 Cr.P.C., 1973 before the Trial Court but the same was dismissed while relying on a decision of this Court, in S.B. Criminal Misc. Petition No. 1441/2015 (Ramswaroop vs. State of Rajasthan) decided on 28.8.2015 and S.B. Criminal Misc. Petition No. 759/2017 (Mala Ram vs. State of Rajasthan) decided on 10.3.2017 that the power to release a seized and impounded vehicle, vests in the authority seizing the vehicle and it has no power to release the same. The order dated 5.12.2017 was challenged by the petitioner by way of the aforesaid revision petition, but without any success. The learned Revisional Court affirmed the decision of Trial Court and came to the conclusion that the decision of Trial Court has no jurisdiction to release such vehicle under Section 457 Cr.P.C., 1973 4. Learned Counsel for the petitioner submits that the petitioner is the registered owner of the seized vehicle. If the vehicle is kept in custody for long, its condition will certainly deteriorate and it will cause a national loss. Learned Counsel for the petitioner submits that the petitioner is the registered owner of the seized vehicle. If the vehicle is kept in custody for long, its condition will certainly deteriorate and it will cause a national loss. Relying upon Sunderbhai Ambalal Desai vs. State of Gujarat, reported in (2002) 10 SCC 283, he prays that the vehicle may be released while setting aside the orders passed by the Courts below. 5. Learned Counsel for the petitioner has also placed reliance on the following judgments passed by Co-ordinate Benched of this Court:- (I)- Phool Singh vs. State of Rajasthan - S.B. Cr. Misc. Petition No. 2682/2012 - decided on 14.8.2012. (II) - Jagraj Singh vs. State of Rajasthan - S.B. Cr. Misc. Petition No. 2802/2015 - decided on 19.5.2017. (III) - Mahendra vs. State of Rajasthan - S.B. Cr. Misc. Petition No. 4554/2016- decided on 26.4.2017. 6. Learned Public Prosecutor has opposed the prayer stating that the orders passed by both the Courts below are perfectly justified and in accordance with relevant legal provisions. There is no occasion for this Court to intervene in the matter under Section 482 Cr.P.C., 1973 He has placed reliance on following judgments rendered by Coordinate Benches of this Court:- (I) - Ramswaroop vs. State of Rajasthan, reported in (2016) 1 RLW 490 (Raj.). (II) - Mala Ram vs. State of Rajasthan - S.B. Criminal Misc. Petition No. 759/2017 - decided on 10.3.2017. 7. I have given thoughtful consideration to the contentions submitted by rival sided. Tractor alongwith trolley has been seized on the allegation of being involved in illegal mining. F.I.R. No. 213/2017 was filed for the offence under Section 4/21 of the MMDR Act alongwith other offences under I.P.C. Relevant provision of the MMDR Act and Ruled made thereunder require consideration. Specifically Sections 4(1) & (1A) and 21(1), (4) & (4A) of the MMDR Act and Rule 48(5),(6) & (7) of the Rajasthan Minor Mineral Concession Rules, 1986 have relevance to the issue under consideration 8. Specifically Sections 4(1) & (1A) and 21(1), (4) & (4A) of the MMDR Act and Rule 48(5),(6) & (7) of the Rajasthan Minor Mineral Concession Rules, 1986 have relevance to the issue under consideration 8. While dealing with pari materia provisions of Delhi Excise Act, 2009, specifically Section 61 of the Act of 2009, which bars the Criminal Courts to make any order with regard to property used in committing offence and seized under the Act of 2009, their Lordships of Hon'ble Supreme Court, in the case of State (NCT of Delhi) vs. Narender, reported in JT 2014 (1) SC 274 held as under:- "11.........In our opinion, the general provision of Section 451 of the Code with regard to the custody and disposal of the property of for that matter by destruction, confiscation or delivery to any person entitled to possession thereof under Section 452 of the Code or that of Section 457 authorising a Magistrate to make an order for disposal of property, if seized by an officer and not produced before a Criminal Court during an inquiry or trial, however, has to yield where a statute makes a special provision with regard to its confiscation and disposal. We have referred to the scheme of the Act and from that it is evident that the vehicle seized has to be produced before the Deputy Commissioner, who in turn has been conferred with the power of tits confiscation or released to its rightful owner. The requirement of production of seized property before the Deputy Commission under Section 59 (1) of the Act is, notwithstanding anything contained in any other law, and, so also is the power of confiscation. The requirement of production of seized property before the Deputy Commission under Section 59 (1) of the Act is, notwithstanding anything contained in any other law, and, so also is the power of confiscation. Not only this, notwithstanding anything to the contrary contained in any other law for the time being in force, no Court, in terms of Section 61 of the Act, has jurisdiction to make any order with regard to the property used in commission of any offence under the Act, In the present case, the Legislature has used a non-obstante clause is a legislative device to give effect to the enacting part of section in case of conflict over the provisions mentioned in the non-obstante clause, Hence, Sections 451, 452 and 457 of the Code must yield to the provisions of the Act and there is no escape from the conclusion that the Magistrate or for that matter the High Court, while dealing with the case of seizure of vehicle under the Act, has any power to pass an order dealing with the interim custody of the vehicle on security or its release thereof. The view which we have taken finds support from a judgment of this Court in the case of State of Karnataka vs. K.A. Kunchinddammed, (2002) 9 SCC 90 . 9. In my view, the aforesaid judgment in Narender's case (supra) can be of guidance in the matter under consideration. However, looking to the contrary views expressed by the Co-ordinate Benches of this Court in Phool Singh's case, Jagraj Singh's case and Mahendra's case referred above as opposed to the view expressed in Ramswaroop's case and Mala Ram's case referred above, I think that an authentic adjudication is required to be made by a Larger Bench to decided the controversy. 10. The Larger Bench may be requested to answer the following questions:- (I) - Whether view expressed by Co-ordinate Bench of this Court in Ramswaroop's case and Mala Ram's case is correct? (II) - Whether the Criminal Court has jurisdiction to release the vehicles seized under the provisions of Mines and Minerals (Development and Regulation) Act, 1957 and Rajasthan Minor Mineral Concession Rules, 1986? If yes, at what stage and in which circumstances? 11. Accordingly, the matter may be placed before the Hon'ble Chief Justice for seeking necessary directions.