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2020 DIGILAW 680 (RAJ)

Bhonri Devi v. State of Rajasthan

2020-10-22

MAHENDAR KUMAR GOYAL

body2020
ORDER : Mahendar Kumar Goyal, J. 1. All these petitions have been filed seeking release of vehicles seized allegedly carrying 'bajri' without any permit/permission. Since, the controversy involved in all these petitions is similar, the are being heard together and decided vide this common order. 2. Under challenge, in these petitions, are the orders passed by the learned Courts below either rejecting petitioners prayer for release of their vehicles namely tractor/trolleys or trucks, or directing release of the vehicles in question on such terms and conditions which are not acceptable to the petitioners. All these vehicles have been seized on account of being used for allegedly committing offences under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 (for brevity "the Act of 1957") and under Section 379 of IPC for illegal transportation of 'bajri'. 3. It is contended by the learned counsels for the petitioners that the petitions deserves to be allowed inasmuch as the controversy involved in all these petitions is squarely covered by the judgment dated 03.02.2020 passed by a Coordinate Bench of this Court in SB Criminal Miscellaneous (Petition) No. 2723/2019, Asharam versus State of Rajasthan and other connected matters. 4. In Criminal Miscellaneous Petition Nos. 4095/2020, 4645/2020 & 4655/2020 in which prayer for release of vehicles has been rejected for want of jurisdiction observing that the vehicles have been seized under Section 38 of the Rajasthan Police Act, 2007 (for brevity "the Act of 2007"), it is additionally contended by the learned counsels for the petitioners that provisions of Section 38 of the Act of 2007 are not attracted in these cases inasmuch as the property in question is not unclaimed property. They submitted that as per the report submitted by the Mining Department, the vehicles in question were seized under the provisions of the Act of 1957 & the Rajasthan Minor and Mineral Concession Rules, 2017 (for brevity "the Act of 2017") and thereafter were handed over to the Police Station. 5. They submitted that as per the report submitted by the Mining Department, the vehicles in question were seized under the provisions of the Act of 1957 & the Rajasthan Minor and Mineral Concession Rules, 2017 (for brevity "the Act of 2017") and thereafter were handed over to the Police Station. 5. Learned Public Prosecutor opposing the prayer made in these petitions submitted that a Coordinate Bench of this Court has, vide its order dated 03.09.2020 passed in S.B. Criminal Miscellaneous (Petition) No. 2670/2020, Naval Singh versus State of Rajasthan and in another connected matter, directed release of the vehicles on payment of compound fee only and hence, the prayer made by the learned counsels for the petitioners to release their respective vehicles without payment of compound fee, cannot be accepted. 6. Learned counsels for the petitioners submitted, in rejoinder that a Coordinate Bench of this Court has, vide its order dated 01.10.2020 in SB Criminal Miscellaneous (Petition) No. 2755/2020, Nathulal versus State of Rajasthan, held the dictum laid down in the case of Naval Singh (supra) to be per-incuriam having been passed in ignorance of the judgment passed in case of Asharam (supra). They further submitted that in any case to avoid any controversy, they are ready and willing to furnish a bank guarantee of Rs. 25,000/- in case of release of tractor and trolley and bank guarantee in the sum of Rs. 50,000/- in case of release of truck with the learned trial Court towards compounding fee which can be made subject to decision of their cases as directed by a Coordinate Bench of this Court vide its judgment dated 08.06.2020 in S.B. Criminal Miscellaneous (Petition) No. 1191/2020, Jagdish versus State. 7. Heard learned counsels for the parties and perused the record. 8. The controversy involved in all these matters appears to be covered by a Coordinate Bench of this Court in the case of Asharam (supra). However, the bone of contention remains with regard to release of vehicles without payment of compounding fee. In this regard, the statutory provisions are as under: Section 23-A of the Act of 1957:- "23A. 8. The controversy involved in all these matters appears to be covered by a Coordinate Bench of this Court in the case of Asharam (supra). However, the bone of contention remains with regard to release of vehicles without payment of compounding fee. In this regard, the statutory provisions are as under: Section 23-A of the Act of 1957:- "23A. Compounding of offences.--(1) Any offence punishable under this Act or any rule 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: Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) 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." Rule 54(3), (5) & (6) of the Rules of 2017:- "54. Illegal mining, transportation and storage of minerals.- (3) Whoever contravenes the provisions of sub-rule (1) and (2) shall be punished with imprisonment for a term which may extend to five years or with fine which may extend to five lacs rupees, or with both: Provided that the Additional Director Mines, Superintending Mining Engineer, Superintending Mining Engineer (vigilance), Mining Engineer, Mining Engineer (vigilance), Assistant Mining Engineer, Assistant Mining Engineer (vigilance), Mines Foreman, Surveyor or any other officer or official authorised by the Government, Director or Additional Director Mines may either before or after the institution of the prosecution, compound the offence committed in contravention of the sub-rule (1) and (2) on payment of cost of mineral and compound fee as mentioned below:- (5) Whenever any person, without a lawful authority, raises any mineral from any land other than under any mineral concession or any other permission and for that purpose bring on the land any tool, equipment, vehicle or other thing, such tool, equipment, vehicle etc. along with mineral, if any, may be seized by the authorities mentioned in sub-rule (4) who shall give a receipt to the person from whose possession the property or mineral is seized: Provided that every officer seizing any property or mineral under this rule may handover the property or mineral so seized to the nearest police station or police chauki. Provided further that the seized vehicle, equipment or mineral may be released after deposition of cost of mineral along with the compound fees as specified in sub-rule (3). Provided also that where mineral so raised has already been dispatched or consumed, the authorities mentioned in sub-rule (3) shall recover cost of mineral along with the compound fees as specified in sub-rule (3). Provided also that where vehicle, equipment or mineral so seized is not released, the officer seizing the property or mineral shall make a report of such seizure within seventy two hours to his superior officer and to the Magistrate having jurisdiction. (6) All property seized under this rule shall be liable to be confiscated by an order of Magistrate if the amount equal to ten times of royalty in lieu of cost of mineral, rent, royalty, compensation for environmental degradation and tax chargeable on the land occupied without lawful authority, etc. is not paid by the trespasser within a period of three months from the date of commission of such offence or when the recoveries are not affected by that time: Provided that on payment of these dues within the said period of three 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. Thus, as per provisions of Section 23 A and proviso to Rule 54(3), compounding fee is leviable only when an accused does not want trial and prays for compounding the offence. This Court is prima facie of the view that compounding fee is leviable only when an accused prays for compounding the offence. In these cases, none of the petitioners has expressed his desire to get the offence compounded. This Court is prima facie of the view that compounding fee is leviable only when an accused prays for compounding the offence. In these cases, none of the petitioners has expressed his desire to get the offence compounded. A co-ordinate Bench of this Court has, in case of Laxman versus State of Rajasthan, S.B. Criminal Miscellaneous (Petition) No. 60/2018 and other connected matters vide it judgment dated 16.04.2018, directed release of the vehicles without payment of compounding fee recording the contentions of the learned counsels for the petitioners therein that they were not willing to get the offence compounded and intended to contest the case. Insofar as the payment of compound fee under Rule 54(5) is concerned, the record does not reveal that the vehicles were seized under this provision. However, in view of the solemn undertaking given the counsels for the petitioners to submit bank guarantee in lieu of compounding fee as provided under Rule 54(3) of the Rules of 2017 and direction of a Coordinate Bench of this Court, in the case of Jagdish (supra), to release the vehicles on furnishing a bank guarantee to the tune of Rs. 25,000/- in case of release of tractor and trolley, this Court refrains itself from venturing into the issue further. 10. Insofar rejection of prayer by the petitioners for release of their vehicles in three of the matters for want of jurisdiction, the seizure being under Section 38 of the Act of 2007, is concerned, suffice it to say that from the material on record, it is apparent that the vehicles have been seized by the Mining Department and thereafter, handed over to the police. In these circumstances, the seizure cannot be held to be under Section 38 of the Act of 2007 so as to oust jurisdiction of the Magistrate to release the vehicles. Consequently, all these petitions are allowed with following directions:- (a) The tractor/trolleys in favour of the petitioners shall be released provided each furnishes a bank guarantee of Rs. 25,000/- with the learned trial Court which shall remain subject to decision of their respective cases. In case of release of truck, the bank guarantee shall be in the sum of Rs. 50,000/-. (b) The concerned Police Station shall release the tractor and trolley or truck to the person, who is the registered owner of the vehicle alone. 25,000/- with the learned trial Court which shall remain subject to decision of their respective cases. In case of release of truck, the bank guarantee shall be in the sum of Rs. 50,000/-. (b) The concerned Police Station shall release the tractor and trolley or truck to the person, who is the registered owner of the vehicle alone. (c) The release of the tractor and trolley or truck shall be subject to the condition that the concerned owner shall get both the tractor and the trolley or truck registered with the transport authorities and also obtain due permit within a period of one month from the date of release and deposit the copy with the concerned Police Station. (d) A personal security of an amount of Rs. 1,00,000/- to the satisfaction of the concerned Court to which the concerned Police Station is attached, shall be submitted for the purpose of release of the vehicle. (e) The petitioners shall keep the vehicle so released intact and shall not change its identification. The petitioners shall produce the vehicle as and when trial Court requires the same for proposed identification of the case property. (f) The petitioners shall furnish the photographs of the vehicle showing its number and colour etc. (g) At the time of release, the petitioners shall also give an undertaking to the effect that vehicle shall not be used for any illegal purpose and if so found, the concerned owner shall be personally liable. 11. The orders passed by the learned Courts below stand quashed/modified in the light of aforesaid directions. All the petitions stand allowed accordingly. 12. All the pending applications also stand disposed of. 13. A copy of this order be placed in each of the file.