Awadhesh Tripathi Vs State of U.P

Allahabad High Court (Single Judge)

CRIMINAL MISC. CASE, 1265 of 2015, Judgment Date: Apr 17, 2015

Crl. Revision No. - 1265 of 2015
Revisionist :- Awadhesh Tripathi
Opposite Party :- State of U.P.
Counsel for Revisionist :- Jitendra Prasad Mishra
Counsel for Opposite Party :- Govt.Advocate
Hon'ble Pankaj Naqvi,J.
Heard Sri Jitendra Prasad Mishra, learned counsel for
revisionist and learned A.G.A.
This criminal revision is preferred against the order dated
31.3.2015, passed by A.C.J.M.-I, Banda in Criminal Misc. Case
No.580/XII/2015 (State v. Raj Kumar), under Section 207 M.V. Act and
4/21 of Mines and Minerals (Development and Regulation) Act, P.S.
Atarra, Banda, rejecting an application for release of the vehicle.
1. The revisionist claims to be the registered owner of Tata Truck-
1613, bearing registration no. UP-78-AT 0427, which was alleged to
be carrying sand more than the prescribed limit on 26.2.2015. The
truck was seized and given in the custody of S.H.O., P.S. Atarra. The
revisionist filed an application for release of the vehicle before the
Magistrate concerned on 2.3.2015. The Mines Department on
4.3.2015 reported to the Magistrate that the truck was involved in an
offence under Section 4/21 of the Mines and Minerals (Development
and Regulation) Act, 1957 (fort short “the M.M.D.R. Act”) and Rule
70(2) of the U.P. Minor Minerals (Concession) Rules, 1963 (for short
“the Rules”) and after realizing Rs.27,700/- as royalty, value of mineral
/ penalty, it be released. The learned Magistrate refused the release of
the truck on the ground of absence of any complaint pending under
Section 22 of the Act.
2. The M.M.D.R. Act and 1963 Rules framed thereunder are
special enactments relating to development and regulation of mines
and minerals. The first endeavour of the court should be to trace the
power of release, if any, of a thing/article including a vehicle involved
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in the commission of offence under the Act/Rules and only in absence
thereof, recourse be taken to the provisions contained in the Cr.P.C.
3. Section 21 (4) of the Act provides that whenever any person
raises, transports or caused 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. Sub-section
4(A) provides that anything 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. Similarly, Section
22 relates to cognizance of offences, which provides that no court
shall take cognizance of any offence punishable under this Act or any
Rules made thereunder except upon a complaint in writing made by a
person authorized in this behalf by the Central Government or the
State Government.
4. A conjoint reading of sub-sections (4) and (4A) of Section 21 of
the Act, would manifest that an officer or authority, especially
empowered under the Act, is conferred with a power to seize any
mineral, tool, equipment, vehicle or any other thing, if the same is
being transported or causes to be raised without any lawful authority
and upon a seizure by such an officer or an authority, as indicated
above, the Court competent to take cognizance of the offence under
sub-ection (1) of Section 21, is also competent to confiscate the
aforesaid articles/things and thereafter the said article or thing shall be
disposed of in accordance with the directions of such court.
5. Analyzing sub-sections (4) and (4A) of Section 21 of the Act,
position which emerges is that upon a seizure of a tool, equipment,
vehicle, etc. being reported by an officer or an authority empowered
under the Act, the tool, equipment, vehicle, etc. are not only liable to
be confiscated by an order of the court which is competent to take
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cognizance of the offence, but the same (articles/things) shall also be
disposed of in accordance with the directions of such courts.
6. Thus, once a seizure was reported by the mining officer to the
Magistrate on 2.3.2015, it was incumbent on the learned Magistrate to
have proceeded to pass appropriate orders on the release of the
vehicle in accordance with law. Mere absence of any complaint at the
stage of the release, could not be an impediment to pass appropriate
orders on the release as power to release and power to take
cognizance are two different facets and the former is not dependent
on the latter. In this view of the matter, the order dated 31.3.2015
cannot be sustainerd.
7. The Apex Court in the case of Sunderbhai Ambalal Desai vs.
State of Gujarat, 2002 (10) SCC 283, has held that the courts
seizing the articles/vehicles, etc shall pass appropriate orders of
release in favour of the registered owners inter alia by obtaining a
bond / guarantee, for the return of the vehicle whenever directed by
the court as seizure/ retention thereof would diminish the utility and
the value of the vehicle, which would not serve any purpose.
8. In view of aforesaid discussion, the order of learned Magistrate
dated 31.3.2015, refusing to release on the ground that no complaint
under Section 22 of the Act was pending, cannot be sustained and is
liable to be set aside.
9. The revision is allowed. The order dated 31.3.2015 is quashed.
The Trial Court is directed to decide the application for release afresh,
in the light of observations made hereinabove and in the light of
Judgment of the Apex Court in the case of Sunderbhai Ambalal
Desai (supra), in accordance with law, as expeditiously as possible,
preferably within 6 weeks from the date of production of certified copy
of the order.
Order Date:17.4.2015/
Chandra
(Pankaj Naqvi,J)