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Madhya Pradesh High Court · body

2020 DIGILAW 696 (MP)

Pratap v. State Of M. P.

2020-06-27

VIVEK RUSIA

body2020
JUDGMENT Vivek Rusia, J. - The applicant has filed the present petition u/s. 482 of the Cr.P.C. against the order dated 20.12.2019 passed by Judicial Chief Judicial Magistrate, (in short 'CJM'), Barwani, rejecting the application 451 & 457 of Cr.P.C. and also against the order dated 23.1.2020 passed by 1st Addl. Sessions Judge, Barwani dismissing the criminal revision. 2. Facts of the case, in short, are as under : (i) The applicant is the owner of Mahindra & Mahindra Tractor bearing Registration No.MP-46-A-3400. As per the prosecution story, Sub Inspector Lakhansingh Baghel received discrete information about the transportation of sand illegally by red colour tractor without a permit. On the basis of such information, he reached Pati Naka, Bomya Road with the police force and found a red colour tractor attached with trolley coming towards check post. After seeing the police force, the driver of the tractor Mithun S/o. Lalsingh Nigwal ran away from the spot. During checking, black sand was found in the trolley attached to the tractor. The FIR under Crime No. 795/2019 was registered for the so-called commission of offence u/s. 379 of the I.P.C. and u/s. 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the MMDR Act of 1957" for short) for illegally transporting the minor mineral against the driver Mithun Nigwal. Later on driver was arrested and sent to jail. The police have seized the vehicle involved in illegal transportation of mineral. (ii) The applicant being the owner of the tractor and trolley applied u/s. 451 and 457 of the Cr.P.C. before the CJM, Barwani for release of the vehicle on 'Supurdiginama'. Vide order dated 20.12.2019 learned CJM has rejected the application for want of jurisdiction because the Superintendent of Police, Barwani has sent the report to the District Magistrate, Barwani for the confiscation of the tractor and the collector is the competent authority to deal with the application. (iii) Being aggrieved by the aforesaid order passed by the learned CJM, the applicant preferred a criminal revision before the Sessions Judge, Barwani. Vide order dated 23.11.2020, learned Addl. Sessions Judge has dismissed the revision, hence the present petition u/s. 482 of Cr.P.C. before this Court. 3. (iii) Being aggrieved by the aforesaid order passed by the learned CJM, the applicant preferred a criminal revision before the Sessions Judge, Barwani. Vide order dated 23.11.2020, learned Addl. Sessions Judge has dismissed the revision, hence the present petition u/s. 482 of Cr.P.C. before this Court. 3. Shri Nilesh Sharma, learned counsel appearing for the applicant, submits that once an offence u/s. 379 of IPC has been registered and Final Report has been filed before the court of Magistrate by the police therefore, learned CJM is competent court to release the vehicle on 'Supurdiginama'. Learned courts below have wrongly rejected the application as well as the revision. 4. On the other hand, learned Panel Advocate appearing for respondent/State submits that in view of amended Rule 53 of M.P. Minor Mineral Rules , the applicant is not entitled to the release of the vehicle on 'Supurdiginama' till the penalty imposed is not paid off. As per rule 53, the Collector/ Additional Collector/ Dy. Collector, as the case may be, is the competent authorities to pass an order of discharge of the vehicle found involved in illegal mining or transportation of the mineral. Hence, no interference is called for and this petition u/s. 482 of Cr.P.C. is liable to be dismissed. 5. The police have found the tractor in question involving the transportation of the mineral (black sand) hence registered the criminal case u/s. 379 of IPC and u/s. 21 of the MMDR Act of 1957 against the driver Mithun Nigwal. The applicant being the owner of the tractor applied for release of the vehicle on 'Supurdiginama' before the CJM before whom the police have filed the final report. According to the applicant, he gave the tractor on lease to the driver Mithun Nigwal and he was not aware of the transportation of the mineral without any permit and licence from said tractor. 6. Section 21 of the MMDR Act of 1957 provides a penalty of imprisonment or fine or both on those who contravenes the provisions of sub-section (1) or sub-section (1A) of section 4. As per sub-section (4) of Section 21, the tool, equipment, vehicle, or any other thing found used in the transportation of any mineral without any lawful authority shall be liable to be seized by an officer or authority specially empowered in this behalf. As per sub-section (4) of Section 21, the tool, equipment, vehicle, or any other thing found used in the transportation of any mineral without any lawful authority shall be liable to be seized by an officer or authority specially empowered in this behalf. Under sub-section (4A), 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 subsection (1) and shall be disposed of in accordance with the directions of such court. Sub-section (4) and (4A) of Section 21 of the MMDR Act of 1957 are reproduced below : "(4) 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. (4A) 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 subsection (1) and shall be disposed of in accordance with the directions of such court." Section 15 of the MMDR Act of 1957 gives authority to the State Government to make rules in respect of minor minerals for regulating the grant of quarry leases, mining leases or other mineral concessions in respect of minor minerals. In exercise of aforesaid powers conferred u/s. 15, the Government of M.P. has framed the Rules called "M.P. Minor Mineral Rules, 1996". As per rule 2(viii), "Competent Authority" means a competent authority appointed by the State Government to carry out the provisions of these rules. Rule 53 of Chapter X of the "M.P. Minor Mineral Rules, 1996" provides penalties for unauthorised extraction and transportation. For ready reference, entire rule 53 is reproduced below : "53. Penalty for un-authorised extraction and transportation. As per rule 2(viii), "Competent Authority" means a competent authority appointed by the State Government to carry out the provisions of these rules. Rule 53 of Chapter X of the "M.P. Minor Mineral Rules, 1996" provides penalties for unauthorised extraction and transportation. For ready reference, entire rule 53 is reproduced below : "53. Penalty for un-authorised extraction and transportation. - Whenever any person is found extracting or transporting minerals or on whose behalf such extraction or transportation is being made otherwise then in accordance with these rules, shall be presumed to be a party to the illegal mining/transportation, then the Collector or any officer authorized by him not below the rank of Deputy Collector shall after giving an opportunity of being heard determines that such person has extracted/transported the minerals in contravention of the provisions of these rules, then he shall impose the penalty in the following manner, namely :- (a) on first time contravention, a penalty of minimum 30 times of the royalty of illegally extracted/ transported minerals, shall be imposed but it shall not be less than ten thousand rupees. (b) on second time contravention a penalty of minimum 40 times of the royalty of illegally extracted/transported minerals, shall be imposed but it shall not be less than twenty thousand rupees. (c) on third time contravention, a penalty of minimum 50 times of the royalty of illegally extracted/transported minerals shall be imposed but it shall not be less than thirty thousand rupees. (d) on third time or subsequent contravention, a penalty of minimum 70 times of the royalty of illegally extracted/transported minerals, shall be imposed but it shall not be less than fifty thousand rupees. (2) Forfeiture of minerals in cases of illegal extraction and transportation. - In respect of the forfeiture/discharge of the mineral extracted/transported illegally the Collector or any other officer authorized by him not below the rank of the Deputy Collector shall take an appropriate decision. Provided that seized minerals shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture', the seized mineral shall be disposed of through a transparent auction/ tender procedure as prescribed by the State Government, (3) Forfeiture/Discharge of the seized tools, machines and vehicles etc. and disposal of forfeited material through Auction/Tender. Provided that seized minerals shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture', the seized mineral shall be disposed of through a transparent auction/ tender procedure as prescribed by the State Government, (3) Forfeiture/Discharge of the seized tools, machines and vehicles etc. and disposal of forfeited material through Auction/Tender. - (a) In case of illegal extraction, the Collector or any other officer not below the rank of a Deputy Collator, authorized by him shall take an appropriate decision in respect of forfeiture/discharge of tools, machines and vehicles used. Provided that the tools, machines, vehicles and other material so seized shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture, the seized materials shall be disposed of through a transparent auction/tender procedure as prescribed by the State Government. (b) In respect of Forfeiture/Discharge of vehicle carrying mineral extracted/transported without any transit pass the Collector or any other officer not below the rank of Deputy Collector authorised by him shall take an appropriate decision. Provided that tools, machines, vehicles and other materials shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture the seized material shall be disposed off through a transparent auction/tender procedure as prescribed by the State Government: Provided that the vehicle carrying minerals in excess as mentioned in transit pass, shall not be forfeited on doing so for first three times but the vehicle shall only be discharged on payment of penalty as imposed above. On repetition for the fourth time vehicle shall be liable to be forfeited. (4) Action and compounding cases of un-authorized extraction/transportation. On repetition for the fourth time vehicle shall be liable to be forfeited. (4) Action and compounding cases of un-authorized extraction/transportation. - Whenever any person is found involved extracting/transporting of the minerals in contravention of provisions of these rules, the Collector/ Additional Collector/Deputy Collector /Chief Executive Officer of Zilla Panchayat/Chief Executive Officer of Janpad Panchayat/Deputy Director (Mineral Administration)/Officer in charge (Mining section)/Assistant Mining Officer/Mining Inspector/officer in charge (Flying Squad)/Sub Divisional Officer (Revenue)/Tehsildar/Naib Tehsildar and any other officer not below the rank of Class-III executive authorized by the Collector from time to time shall proceed to act in the following manner:- (a) to initiate case of unauthorized extraction/transportation by preparing Panchnama on spot; (b) to collect necessary evidences (including video-graphy) relevant to un-authorized extraction/transportation; (c) to seize all tools, devices, vehicles and other materials used in excavation of miner mineral in such contravention and to handover all material so seized to the persons or lessee or any other person from whose possession, such material was seized on executing an undertaking up to the satisfaction of the officer seizing such material, to this effect that he shall forthwith produce such material as and when may be required to do so : Provided that where the report is submitted under sub-rule (3) above to the Collector or any other officer not below the rank of a Deputy Collector authorized by him, the seized property shall only be discharged by the order of the Collector or the officer authorized by him. (d) officer as mentioned above shall inform the Collector or any other officer not below the rank of Deputy Collector, authorised by him about the incident within 48 hours of coming in to notice of the same. (e) officers as mentioned above shall make a request in writing to the concerning police station/seeking police assistance, if necessary and police officer shall provide such assistance as may toe necessary to prevent unlawful excavation/transportation of tine mineral (5) Rights and powers of the investigating officer. (e) officers as mentioned above shall make a request in writing to the concerning police station/seeking police assistance, if necessary and police officer shall provide such assistance as may toe necessary to prevent unlawful excavation/transportation of tine mineral (5) Rights and powers of the investigating officer. - During the investigation of the cases of illegal extraction/transportation of the minerals, in contravention of these rules, the investigation officer shall have the following rights and powers, namely :- (a) to call for person concern to record statements; (b) to seize record and other material related to the case; (c) to enter into place concern and to inspect the same; (d) all powers as are vested in an in-charge of a police station while investigation any cognizable offence under Code of Criminal Procedure; and (e) all other powers as are vested under Code of Civil Procedure to compel any person to appear or to be examined on oath or to produce any document. (6) Submitting application by illegal extractor/transporter to compound and its disposal. - Before initiating or during the operation of the case, if the extractor/transporter is agree to compound the case, he shall have to submit an application of his intention to do so before the Collector/Additional Collector/Deputy Collector/Sub Divisional Officer (Revenue)/Deputy Director (Mineral Administration)/Mining Officer/Officer-in-charge (Mining section)/Assistant Mining Officer/Officer in charge (Flying Squad) and he shall proceed to compound in the case. Provided that to avail the benefit of compounding the violator shall have to deposit the amount as determined here under as fine, namely :- (a) For the first time violation 25 time of royalty of unlawfully excavated/transported minerals or rupees 10,000/- (Ten Thousand) whichever is more. (b) For the Second time violation 35 time of royalty of unlawfully excavated/transported minerals or rupees 20,000/- (Twenty thousand) whichever is more. (c) For the third time violation 45 time of royalty of unlawfully excavated/transported minerals or rupees 30,000/- (Thirty Thousand) whichever is more, and (d) for the fourth time or subsequent violation minimum 65 time of royalty of unlawfully extracted/transported. Provided that it should not be less than rupees 50,000/- (Fifty thousand). On being compounded, the seized mineral, tools machinery/ and other materials shall be discharged. (7) Action against contravention of conditions of extract trade quarry/quarry lease/permit or the provisions of this rule. Provided that it should not be less than rupees 50,000/- (Fifty thousand). On being compounded, the seized mineral, tools machinery/ and other materials shall be discharged. (7) Action against contravention of conditions of extract trade quarry/quarry lease/permit or the provisions of this rule. - If during the enquiry of any illegal extraction/transportation a fact comes into the knowledge that any lease holder/contractor/permit holder, in order to evade the royalty from any sanctioned quarry lease/trade quarry/permit, area is involved in dispatching/selling of minerals in excess quantity by showing less quantity of minerals in transit pass/defective transit permit/blank transit permit, then the Collector of the concerned district may suspend the quarrying operation in such quarry lease/trade quarry permit by issuing show cause notice for violating the conditions of the agreement and after providing an opportunity of being heard may cancel the such lease/ trade quarry/permit. The additional royalty may 'be recovered after making the assessment of the quantity dispatched or sold in order to evade the royalty : Provided that during the inspection if it is found that illegal minerals transporter by securing the transit pass from the lease holder in order to evade the royalty has made overwriting or tempered the pass then the officer of the minerals department/Mineral Inspector may registered a case against the person concerned." 7. Rule 53 of "M.P. Minor Mineral Rules, 1996" empowers the Collector or any other officer authorised by him, not below the rank of the Dy. Collector to determine that any such person has extracted or transported the minerals in contravention of the provisions of these rules, then he shall impose the penalty in the manner prescribed in sub-rule (1) of rule 53. Sub-rule (2) provides for forfeiture of minerals in case of illegal extraction and transportation and as per proviso, the seized mineral shall not be discharged till the penalty imposed is not paid. Sub-rule (3) provides forfeiture/discharge of the seized tools, machines, and vehicles, etc. and disposal of forfeited material through auction and according to which, the Collector or any other officer authorised by him shall take appropriate decision in respect of forfeiture/discharge of tools, machines, and vehicles used and as per proviso, the tools, machines, vehicles and other material so seized shall not be discharged till the penalty imposed is not paid. and disposal of forfeited material through auction and according to which, the Collector or any other officer authorised by him shall take appropriate decision in respect of forfeiture/discharge of tools, machines, and vehicles used and as per proviso, the tools, machines, vehicles and other material so seized shall not be discharged till the penalty imposed is not paid. As per sub-rule 3(b) of rule 53, in case of forfeiture/discharge of vehicle carrying mineral extracted/transported without any transit pass, the Collector or any other officer not below the rank of Dy. Collector authorised by him shall take an appropriate decision and as per proviso, the same shall not be discharged till the penalty imposed is not paid. Sub-rule 4 of rule 53 provides for compounding of offence in case of unauthorised extraction/transportation. Sub-rule 6 of rule 53 gives an authority to the extractor/transporter to apply for compounding before initiating or during the operation of the case and on being compounded, the seized mineral, tools, machinery, and any other material shall be discharged. Thus, it is clear from the aforesaid provisions that when the vehicle is found illegally transporting the mineral without transit pass, the Collector or any other officer authorised by him shall take an appropriate decision for forfeiture/discharge of the vehicle, tool, machinery, etc. and the vehicle or machinery shall not be discharged till the penalty as imposed under sub-rule (2) of rule 53 is not paid. 8. Learned Addl. Sessions Judge in para 10 of the impugned judgment dated 3.1.2020 has observed that vide letter dated 17.12.2019, the Superintendent of Police, Barwani has sent Crime No.795/2019 to the District Magistrate for confiscation/forfeiture of the tractor with trolley. But, nothing is on record to show as to whether the Collector or any other officer authorised by him has initiated the proceedings against the applicant under rule 53 of "M.P. Minor Mineral Rules, 1996" for the imposition of penalty. The Collector or any other officer authorised by him gets the jurisdiction to release/discharge the vehicle only after the imposition of penalty and payment of the same. In rule 53, the words "forfeiture" and "discharge" have been used. Either the vehicle is liable to be forfeited or discharged after the penalty imposed by the officer is paid. 9. The Collector or any other officer authorised by him gets the jurisdiction to release/discharge the vehicle only after the imposition of penalty and payment of the same. In rule 53, the words "forfeiture" and "discharge" have been used. Either the vehicle is liable to be forfeited or discharged after the penalty imposed by the officer is paid. 9. In the present case, the FIR has been registered against the driver Mithun Nigwal for commission of offence u/s. 379 of the IPC and Section 21 of the MMDR Act of 1957 and Final Report (Challan) has been filed before the CJM . Under sub-section (4A) of Section 21 of MMDR Act of 1957, 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 subsection (1) and shall be disposed of in accordance with the directions of such court. Once the final report has been filed by the police before the CJM, then the CJM would also be the competent authority to decide such a criminal case and also in regard to the confiscation of the vehicle. Therefore, the CJM alone is competent to decide for the temporary release of the vehicle u/s. 451 & 457 of the IPC. 10. So far as proceedings under rule 53 of the "M.P. Minor Mineral Rules, 1996" are concerned, it is for the forfeiture/discharge of the vehicle after payment of fine/penalty. Such proceedings are independent proceedings in which the Collector any other officer authorised by him is competent to impose the penalty for the use of vehicle for illegal transportation/extraction of the mineral without any transit pass. The constitutional validity of rule 53 was under challenge before this court in the case of Naresh Rathore & Ors Vs. State of Madhya Pradesh, (2018) 4 MPLJ 193 . The constitutional validity of rule 53 was under challenge before this court in the case of Naresh Rathore & Ors Vs. State of Madhya Pradesh, (2018) 4 MPLJ 193 . Hon'ble FB of this court has upheld the validity of rule 53 of "M.P. Minor Mineral Rules, 1996", did not find in conflict with and is in addition to the provisions of the Act or any other provisions of the Indian Penal Code, validly framed by the State in exercise of powers conferred under Section 15 read with Section 23C of the MMDR Act of 1957 .It has also been held that that powers of forfeiture under Rule 53 (2) and 53(3) of "M.P. Minor Mineral Rules, 1996" can be exercised only in those cases were a penalty in terms of Rule 53(1) is not paid and that the benefit of default on the first three occasions which is provided to those transporting mineral in excess of the quantity mentioned in the transit pass under Rule 53(3)(b) is also available even to those who are transporting mineral without any transit pass. 11. A writ petition filed by Rajkumar Vs State of M.P. (WRIT PETITION No. 20831/2018) was referred to Special Bench (Five Judges) to reconsider the law laid down in case of Naresh Rathore (supra). That in the case of Rajkumar Vs. State of M.P., (2019) 2 MPLJ 438 Special Bench did not touch the validity of rule 53 already been upheld but overruled the full bench judgment passed in Naresh Rathore (supra). Hon'ble Special Bench has held that the proceedings for imposition of penalty and confiscation contained in Rule 53 of the "M.P. Minor Mineral Rules, 1996", have been validly enacted and are not in conflict with and are in addition to and apart from the provisions of criminal prosecution and punishment of the offender indulging in illegal extraction or transportation of mineral as contemplated and provided under the Indian Penal Code, the Indian Forest Act, the Wild Life Protection Act, the M.P. Van Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969, the M.P. Land Revenue Code, 1959 or any other statutory provisions that provide for penalty and forfeiture in such cases. It has been further held that orders of forfeiture can be passed independently or in isolation in all cases of illegal extraction or transportation of mineral irrespective of and apart from proceedings of penalty and orders of forfeiture can be passed even in cases where no penalty order is passed or imposed and the power of forfeiture/confiscation can be exercised by the competent authority as and when it takes an appropriate decision in this regard under Rule 53(2) or 53(3) of the "M.P. Minor Mineral Rules, 1996" irrespective of the fact that the contravention is made by the defaulter for the first time. However, the issue of temporary release of the vehicle found involved in the transportation of minerals by the Magistrate or by the competent authority under the rules of 1996 was not under consideration either before the full bench of the special bench. 12. Undisputedly there is no provision for the temporary release of the vehicle to the registered owner either in the MMDR Act of 1957 by the Magistrate or in the "M.P. Minor Mineral Rules, 1996",. The MMDR Act of 1957 and rules ("M.P. Minor Mineral Rules, 1996") made thereunder nowhere bars or put an embargo on the jurisdiction of the trial court/ Magistrate to entertain an application filed under section 451 of the Cr.P.C. In the case, in hand, the vehicle belonging to the petitioner has been seized by police in crime no. 795/2019 and must have produced before the learned Magistrate, therefore, the magistrate alone has jurisdiction to release the vehicle under section 451 of the Cr.P.C. in absence of any provision in "M.P. Minor Mineral Rules, 1996". That the FIR has been registered for the offence u/s. 379 of the I.P.C. and u/s. 21 of the MMDR of 1957, and being tried under the provisions of the Code of Criminal Procedure particularly the offence under the Indian Penal Code. The doctrine of exclusion of jurisdiction of the regular courts to deal with a matter and to pass appropriate orders in such criminal proceedings is founded in the maxim 'Generalia Specialibus Non Derogant' (special law overrides general law). The doctrine of exclusion of jurisdiction of the regular courts to deal with a matter and to pass appropriate orders in such criminal proceedings is founded in the maxim 'Generalia Specialibus Non Derogant' (special law overrides general law). In other words, jurisdiction over the Courts to deal with the matter and pass orders under the provisions of the Code of Criminal Procedure should be presumed and to hold the contrary, there must be a specific bar in any special law concerning certain matters under the Criminal Procedure Code and by necessary implication by making such similar provisions to deal with a matter in the special enactments. 13. The Full Bench of this court in the case of State of Madhya Pradesh Vs Rakesh Kumar Gupta, (1998) CriLJ 4264 while dealing the issue of release of the vehicle under section 451 of Cr.P.C. by the Magistrate, which was confiscated due to non-payment of tax under MP Motoryan Karadhan Adhiniyam 1991, has held that section 451 of the Code gets attracted only when the property is produced before any criminal court during any enquiry or trial and sec 457 of Cr.P.C comes into play when the seizure is by the police officer who reports to the Magistrate under the Code. 14. Needless to say that even after the temporary release of the vehicle to the applicant, the competent authority under the "M.P. Minor Mineral Rules, 1996" would be competent to pass the order under the provisions of rule 53. The ouster of jurisdiction of the criminal court would only occur if the proceeding of forfeiture is completed under Rule 53 of the "M.P. Minor Mineral Rules, 1996" after which, only an appeal would lie under rule 57. Besides, the "M.P. Minor Mineral Rules, 1996" does not contemplate physical custody over the vehicle for an order of forfeiture to be passed and that even if the vehicle is released under 451 Cr.P.C by the Magistrate Court, the Collector could proceed under rule 53 for forfeiture and once the order of forfeiture is passed, it would be incumbent on the owner to hand over possession of the Vehicle to the concerned department unless the appellate authority (u/r 57) stays the order of the Collector or finally sets it aside. 15. 15. In view of the above discussion the impugned order dated 20.12.2019 passed by Chief Judicial Magistrate, (CJM), Barwani, rejecting the application 451 & 457 of Cr.P.C. and also against the order dated 23.1.2020 passed by 1st Addl. Sessions Judge, Barwani dismissing the criminal revision are hereby quashed with the direction to the Chief Judicial Magistrate, (CJM), Barwani to decide the application filed under section 451 of Cr.P.C. in accordance with the law. It is important to mention here that if meanwhile, the competent authority has already passed the order under rule 53 of the "M.P. Minor Mineral Rules, 1996" then learned CJM would not have jurisdiction to decide the application because the petitioner shall have the remedy of appeal/ revision in "M.P. Minor Mineral Rules, 1996" or the vehicle is liable to be released upon payment of fine as per the order of the competent authority. No order as to cost.