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2024 DIGILAW 399 (JHR)

Nikku Kumar Yadav v. State of Jharkhand

2024-04-12

SUBHASH CHAND

body2024
JUDGMENT : Subhash Chand, J. Learned counsel for the petitioner and learned A.P.P. for the State are present. 2. The instant criminal revision has been directed on behalf of the petitioner against the order dated 7th October, 2023 passed by the learned Sub-Divisional Judicial Magistrate, Sahibganj in Misc. Criminal Application No.1536 of 2023 arising out of Mrizachowki P.S. Case No.39 of 2023, whereby and whereunder the application for release of the Tractor bearing registration no.BR-10 JC 3071 and trolley has been rejected. 3. The brief facts leading to this criminal revision are that the informant District Mining Officer, Sahebganj on 18th April, 2023 in the night at 01.00 a.m. conducted raid and at mouza Guttibera found four vehicles loaded with 150 cft. stone chips in one vehicle and 100 Cft. Stones chips in other vehicle. Hence, this F.I.R. was lodged. 4. The learned counsel for the petitioner has submitted that a application was moved on behalf of the petitioner who was owner of the tractor bearing no. BR 10 JC 3071 and trolley which was being used in alleged theft and transportation of the stone chips. The release application was moved on the ground that he was the owner of the tractor and trolley and the same is lying in open place in the police station concerned and its utility would be diminished if remained there. From the impugned order, it is evident that confiscation proceeding relating to Mirzachowki P.S. Case No.39 of 2023 is going on against the said vehicle. The learned trial Court rejected the release application of the said vehicle on the very ground that since the confiscation proceeding was going. The learned trial court has not taken into consideration that the retention of vehicle in the police station concerned for an indefinite period would damage the same. 5. The learned A.P.P. for the State has defended the impugned order on the ground that the impugned order bears no infirmity and the learned trial Court has rightly rejected the release application. 6. I have heard the learned counsel for the petitioner and learned A.P.P. for the State and perused the materials available on record. 7. Herein the Rule 11 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 becomes relevant to reproduce as under: “11. 6. I have heard the learned counsel for the petitioner and learned A.P.P. for the State and perused the materials available on record. 7. Herein the Rule 11 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 becomes relevant to reproduce 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 jurisdiction (v) District Collector/Deputy Commissioner Within their respective jurisdiction (vi) District/Assistant Mining Officer Within their respective jurisdiction (vii) Sub Divisional Magistrate/Any other o icer 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. (ii) The dealer/lessee shall allow any competent authority/competent officer or any such officer authorized by competent authority to inspect the place where mining, storage and processing unit exists to verify the stocks of ore and minerals and take sample or the abstract from the records maintained by him. (iii) Every dealer shall allow competent authority competent officer or any officer authorized by the director, Mines/Commissioner, Mines or Secretary, Department of Industries, Mines and Geology, Jharkhand to enter and inspect the premises, where the mineral is kept or stored. Inspection of such documents as desired in writing and furnishing of information as directed in writing shall be obligatory for such dealer. (iv) Every officer making a seizure, under these rules shall prepare a list of minerals, tools equipment, vehicles or any other article, so seized and deliver a copy thereof signed by him to the person found in possession of such minerals, Such officer shall keep such seized property under proper custody with proper official seal and with detailed information. (iv) Every officer making a seizure, under these rules shall prepare a list of minerals, tools equipment, vehicles or any other article, so seized and deliver a copy thereof signed by him to the person found in possession of such minerals, Such officer shall keep such seized property under proper custody with proper official seal and with detailed information. (v) Any minerals, tool, equipment, vehicle or any thing 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.” 8. From the bare perusal of Rule 11(v) of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, it is evident that though the court of Deputy Commissioner of the district concerned is empowered to conduct the confiscation proceeding in regard to the minerals, tool, equipment, vehicle or anything seized shall dispose of the same; yet this jurisdiction of the court of Deputy Commissioner of the district concerned is not exclusive jurisdiction. Neither in the Rule 11 of the Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 nor in any other rule of the said Rules, the jurisdiction of the Criminal Court is barred to release the vehicle by exercising power under Chapter 34 of the Code of Criminal Procedure, 1973. Consequently, the Criminal Court was empowered to entertain the application for release of the vehicle, because in the Rules, the jurisdiction of the Court is not ousted. Mere pendency of confiscation proceeding is not bar to dispose of application for release of vehicle. 9. Since there is no bar in this very provision, the learned Court below was empowered to release the vehicle in view of Section 451 of the Code of Criminal Procedure after having verified the title of the said vehicle and it was also incumbent upon the learned trial Court to impose the condition in regard not to transfer the said vehicle to anyone during pendency of the case and also to take undertaking from the registered owner of the vehicle to produce the same when and where the said vehicle was required during trial inter alia along with other just and proper condition. 10. 10. The Hon'ble Apex Court in “Sunderbhai Ambalal Desai v. State of Gujarat” (2002) 10 SCC 283 has laid down following guidelines in regard to release of vehicle: “Para 5. Section 451 clearly empowers the court to pass appropriate orders with regard to such property, such as: (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it thinks necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same. Para 7. In our view, the powers under Section 451 CrPC should be exercised expeditiously and judiciously. It would serve various purposes, namely: 1. owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. court or the police would not be required to keep the article in safe custody; 3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. Para 13. For this purpose, the court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 CrPC. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the court under Section 451 CrPC to impose any other appropriate condition. Para 17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.” 11. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.” 11. From perusal of record, it is also found that the learned trial court prior disposal of the release application has called for the report from the police station concerned. The same is on record in which it is stated that there is no need of the said vehicle in investigation. 12. In view of the above discussions, the impugned order passed by the learned trial Court needs interference. 13. Accordingly, this Criminal Revision is, hereby, allowed and the impugned order passed by the learned trial court is, hereby, set aside. The matter is remitted back to the learned court below to dispose of the release application of the petitioner afresh in view of the observations made by this Court and also taking into consideration the guidelines as laid down by the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai (supra).