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2023 DIGILAW 1391 (JHR)

Rajendra Prasad v. State of Jharkhand

2023-11-29

ANIL KUMAR CHOUDHARY

body2023
JUDGMENT : Heard the parties. 2. This Writ Petition has been filed under Article 226 of the Constitution of India with a prayer for grant of an appropriate writ/order/direction for quashing the seizure of vehicle bearing registration No. JH 02AQ 4220 seized in connection with Balumath P.S. Case No.169 of 2022, registered for the offences punishable under Section 30 of the Coal Mines (Nationalization) Act, 1973 read with Section 21 of Mines and Minerals (Development and Regulation) Act, 1957 and Rule 13 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, to quash the order dated 04.05.2023 passed by the Deputy Commissioner-cum-District Magistrate, Latehar passed in Confiscation Case No.108 of 2022; under Rule 11 (v) of Jharkhand Minerals Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, whereby the Deputy Commissioner, Latehar confiscated the vehicle bearing registration No. JH 02AQ 4220 and directed the District Mining Officer, Latehar to get the vehicle auctioned and deposit the collected amount in the State treasury and also for release of the vehicle bearing registration No. JH 02AQ 4220 in favour of the petitioner by directing the learned Chief Judicial Magistrate, Latehar on such terms and conditions as the learned Chief Judicial Magistrate, Latehar, may deem fit and proper. 3. The brief facts of the case is that the said Hywa vehicle bearing registration No. JH 02AQ 4220 was seized by the Sub-Inspector of Police vide seizure list, the copy of which has been kept at page-31 of the brief for having committed the offence punishable under Section 30 of the Coal Mines (Nationalization) Act, 1973 and Section 21 of the MMDR Act as well as Rule 13 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. In connection with the said occurrence, Balumath P.S. Case No.169 of 2022 was registered for the offence punishable under Section 379, 411 of the Indian Penal Code, Section 30 of the Coal Mines (Nationalization) Act, 1973, Section 21 of the MMDR Act, 1957 and Rule 13 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. The petitioner filed an application for release of the vehicle in the court of Chief Judicial Magistrate, Latehar and vide order dated 16.05.2023, the learned Chief Judicial Magistrate, Latehar dismissed the prayer for release of the vehicle. Thereafter, the petitioner filed W.P. (Cr.) No.319 of 2023. The petitioner filed an application for release of the vehicle in the court of Chief Judicial Magistrate, Latehar and vide order dated 16.05.2023, the learned Chief Judicial Magistrate, Latehar dismissed the prayer for release of the vehicle. Thereafter, the petitioner filed W.P. (Cr.) No.319 of 2023. The Deputy Commissioner, Latehar, initiated the proceeding under Rule 11 (v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 vide Confiscation Case No.108 of 2022 and confiscated the said vehicle bearing registration No. JH 02AQ 4220. 4. Learned counsel for the petitioner submits that the confiscation proceeding has been initiated by the Deputy Commissioner being under Rule 11 (v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. So, obviously the seizure of the said Hywa vehicle was under Rule 11 (i) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 which reads as under:- 11. Search, Seizure and Confiscation:- (i) The following officers are authorized to stop, check, search and verify at any place/truck/Other Vehicle carrying the minerals/ore from the mine or other source or storage and seize the same as required within the jurisdiction as specified below: (i) Additional Chief Secretary/Principal Secretary/Secretary/Commissioner, Mines In the entire State. (ii) Director of Mines In the entire State. (iii) Additional Director of Mine -do- (iv) Deputy Director of Mine Within their respective jurisdictions. (v) District Collector/Deputy Commissioner Within their respective jurisdictions. (vi) District/Assistant Mining Officer Within their respective jurisdictions. (vii) Sub Divisional Magistrate/Any other officer authorized by the Collector Within their respective jurisdictions/Jurisdiction authorized by the collector in the District (viii) Mining Inspector -do- (ix) In- charge Check-gate -do- It shall be the responsibility of the mining lessee/dealers to ensure that their carriers afford all assistance and co-operation for such inspection. and it is submitted that under the said rules, the Sub-Inspector of Police is not authorized to seize any vehicle and in the absence of a valid seizure, there cannot be a valid confiscation proceeding. 5. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Kailash Prasad Yadav & Another vs. State of Jharkhand & Another reported in (2007) 5 SCC 769 paragraph-7 of which reads as under:- “7. 5. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Kailash Prasad Yadav & Another vs. State of Jharkhand & Another reported in (2007) 5 SCC 769 paragraph-7 of which reads as under:- “7. A valid seizure, as is well known, is a sine qua non for passing an order of confiscation of property.” and submits that the order dated 04.05.2023 passed by the Deputy Commissioner-cum-District Magistrate, Latehar passed in Confiscation Case No.108 of 2022 in confiscating the vehicle in question is not sustainable in law and is liable to be quashed; on the ground that in the absence of a valid seizure the order of the confiscation of the vehicle could not have been passed. 6. Learned counsel for the petitioner draws the attention of this Court towards Section 21 (4A) of the Mines and Minerals (Development and Regulation) Act, 1957 which reads as under:- “21. (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 sub-section (1) and shall be disposed of in accordance with the directions of such court” (emphasis supplied) and submits that Section 21 (4A) of the Mines and Minerals (Development and Regulation) Act, 1957 envisages that the vehicle seized under 21 (1) of the Mines and Minerals (Development and Regulation) Act, 1957 can be confiscated and disposed of only by the order of a court competent to take cognizance of the offence and in this case the Deputy Commissioner, Latehar, was not the competent court for taking cognizance nor any order has been passed by any court of competent jurisdiction for disposal of the vehicle in question. 7. Learned counsel for the petitioner next draws the attention of this Court towards Rule 11 (v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 11. 7. Learned counsel for the petitioner next draws the attention of this Court towards Rule 11 (v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 11. Search, Seizure and Confiscation:- (i) xxxx (ii) xxxx (iii) xxxx (iv) xxxx (v) Any minerals, tool, equipment, vehicle or anything seized shall be liable to be confiscated by an order of the court of the Deputy Commissioner of the concerned district and shall be disposed of in accordance with direction of such court.” (Emphasis supplied) and submits that the said rule also envisages that the Deputy Commissioner of the concerned District shall dispose of the confiscated vehicle in accordance with the direction of such court and the words “of such court” obviously means the court referred to in Section 21 (4A) of the Mines and Minerals, (Development & Regulation) Act, 1957; which means a court competent to take cognizance of the offence i.e., in this case the Judicial Magistrate-1st Class concerned and without the direction of the concerned Judicial Magistrate-1st Class, the Deputy Commissioner having passed the order for disposal of the said vehicle by way of auction through the District Mining Officer concerned; the same is not sustainable in law and thus is liable to be quashed. 8. Learned counsel for the petitioner further relies upon the judgment of the Hon’ble Supreme Court of India in the case of Avtar Singh & Another vs. State of Punjab reported in 2023 SCC OnLine SC 319 wherein in the facts of that case where in a matter relating to the prosecution under the penal provisions of Section 7 of the Essential Commodities Act, 1955; where the Sub-Inspector of Police had no authority or power to take action as per the orders of the Essential Commodities Act, the proceeding initiated by him, was held to be totally unauthorized and had to be struck down by the Hon’ble Supreme Court of India and the conviction and sentence of the appellants concerned was set aside. Hence, it is submitted that an appropriate writ/order/direction be passed for quashing the order of seizure of vehicle bearing registration No. JH 02AQ 4220 seized for in connection with Balumath P.S. Case No.169 of 2022, vide order dated 04.05.2023; passed by the Deputy Commissioner-cum-District Magistrate, Latehar in Confiscation Case No.108 of 2022 whereby the Deputy Commissioner, Latehar confiscated the vehicle bearing registration No. JH 02AQ 4220 and directed the District Mining Officer, Latehar to get the vehicle auctioned and deposit the collected amount in the State treasury and the said vehicle bearing registration No. JH 02AQ 4220 be released in favour of the petitioner by the learned Chief Judicial Magistrate, Latehar on such terms and conditions as the learned Chief Judicial Magistrate, Latehar, may deem fit and proper. 9. Learned G.A.-III submits that the issues involved in this writ petition are sub judice in W.P. (C). No.3441 of 2023 in a Division Bench of this Court. Hence, this Court should not pass any order. Learned G.A.-III next submits that since there is a provision for appeal under Rule 14 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, hence, the writ petition will not lie. Hence, it is submitted that this Writ Petition, being without any merit, be dismissed. 10. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that by now it is a settled principle of law that when the facts of a case is undisputed and only legal issues are to be decided merely because there is an alternative remedy, Writ Petition shall not be barred by the self-imposed restriction of the courts, to exercise the jurisdiction under Section 226 of the Constitution of India. 11. In this case, undisputedly, the Deputy Commissioner, Latehar has exercised the power under Rule 11 (v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 which obviously means that the seizure of the vehicle in question was made under Rule 11 (i) of the said Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. As already indicated above, the Sub-Inspector of Police is not competent to make out a seizure under Rule 11 (i) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. As already indicated above, the Sub-Inspector of Police is not competent to make out a seizure under Rule 11 (i) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. Hence, obviously there was not a valid seizure of the vehicle in question and in view of the settled principle of law in the case of Kailash Prasad Yadav & Another vs. State of Jharkhand & Another (supra) that in the absence of a valid seizure, the confiscation of the property is also not in accordance with law; in the instant case also, in the absence of a valid seizure of the vehicle in question its confiscation as made by the Deputy Commissioner, concerned is illegal and thus is liable to be quahsed. 12. Otherwise also as under Section 21 (4A) of the Mines and Minerals (Development and Regulation) Act, 1957, the property seized under Section 21 (4A) of the Mines and Minerals (Development and Regulation) Act, 1957 is liable to be confiscated by an order of the court competent to take cognizance and as undisputedly there is no order passed by the competent court to take cognizance for such confiscation and as no order has been passed by the court concerned for disposal of the confiscated property and without any order of the court, the Deputy Commissioner has ordered disposal of the property by way of auction of the same by the District Mining Officer concern, hence, this Court has no hesitation in holding that the order dated 04.05.2023 passed by the Deputy Commissioner-cum-District Magistrate, Latehar passed in Confiscation Case No.108 of 2022 whereby the Deputy Commissioner, Latehar confiscated the vehicle bearing registration No. JH 02AQ 4220 and directed the District Mining Officer, Latehar to get the vehicle auctioned and deposit the collected amount in the State treasury, is not sustainable in law and is liable to be struck down. 13. 13. Accordingly, this is a fit case where appropriate writ/order/direction is to be passed for quashing the order dated 04.05.2023 passed by the Deputy Commissioner-cum-District Magistrate, Latehar passed in Confiscation Case No.108 of 2022 whereby the Deputy Commissioner, Latehar has confiscated the vehicle bearing registration No. JH 02AQ 4220 and directed the District Mining Officer, Latehar to get the vehicle auctioned and deposit the collected amount in the State treasury and the said vehicle bearing registration No. JH 02AQ 4220 is to be released in favour of the petitioner by directing the Chief Judicial Magistrate, Latehar. 14. Hence, it is ordered that a writ of certiorari be issued quashing the order dated 04.05.2023 passed by the Deputy Commissioner-cum-District Magistrate, Latehar passed in Confiscation Case No.108 of 2022 and a writ of mandamus be issued directing the Chief judicial Magistrate, Latehar to release the said Hywa Truck bearing registration No.JH 02AQ 4220 in favour of the petitioner with the following conditions:- (i) The petitioner shall furnish an indemnity bond for Rs.5,00,000/- with 2 solvents sureties, undertaking to produce the vehicle bearing registration No.JH 02AQ 4220 as and when directed by the learned Chief Judicial Magistrate, Latehar in connection with Balumath P.S. Case No.169 of 2022. (ii) The petitioner shall not sell, mortgage, transfer and alienate the ownership of the vehicle bearing registration No.JH 02AQ 4220; in any manner during the pendency of the said Balumath P.S. Case No.169 of 2022. (iii) The petitioner shall not change or tamper with the identity of the Hywa Truck bearing registration No.JH 02AQ 4220. (iv) The learned Chief Judicial Magistrate, Latehar will pass appropriate orders regarding the seized Hywa Truck bearing registration No.JH 02AQ 4220 at the time of conclusion of Balumath P.S. Case No.169 of 2022. 15. This writ petition is allowed in the above terms. Order accordingly.