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2024 Supreme(Guj) 1616
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
AJAYBHAI KANUBHAI VANJHARA – Appellant
Versus
STATE OF GUJARAT – Respondent
Criminal Revision Application (For Muddamal) No. 645 of 2024
Decided On : 13-06-2024
Advocate Appeared:
For the Appellant : MUKUNDKUMAR A. THAKKAR.
For the Respondent: KRINA CALLA.
IMPORTANT POINT
The court established that proper cognizance must be taken under the Mines and Minerals Act for seizure, and ownership alone can justify the release of property under Section 451 of the Cr.P.C.
Headnote:
Criminal - Excavator Release - Cr.P.C. Sections 397, 401, 451 - IPC Sections 379, 114 - Mines and Minerals Act Sections 4, 21 - Gujarat Rules 3, 21 - The court interpreted the provisions of the Cr.P.C. and the Mines and Minerals Act, emphasizing the need for proper cognizance and the legality of seizure, ultimately allowing the release of the excavator under specific conditions.
Fact of the Case:
The applicant challenged the rejection of their application for the release of an excavator seized in connection with an FIR alleging illegal sand extraction. The applicant claimed ownership and lack of knowledge regarding the illegal use of the machine.
Finding of the Court:
The court found that the FIR did not indicate that cognizance was taken by the Magistrate, and the seizure of the excavator was deemed illegal. The evidence supported the applicant's ownership, and the court emphasized the need for the machine to be available during the trial.
Issues: Whether the seizure of the excavator was legal and if the applicant was entitled to its release under Section 451 of the Cr.P.C.
Ratio Decidendi: The court held that the seizure was improper as proper procedures under the Mines and Minerals Act were not followed, and the applicant's ownership and lack of involvement in illegal activities warranted the release of the excavator.
Result: The application for the release of the excavator was allowed with conditions.
ORDER :
1. RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent-State.
2. The present application filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’) challenges the order of rejection dated 29.03.2024 passed by the learned 6th Additional District and Sessions Judge, Ahmedabad [Rural] at Navrangpura in Criminal Miscellaneous Application No. 4251 of 2023 whereby the applicant had preferred the application under Section 451 of the Cr.P.C. for release of the Excavator Machine being SANY company’s bearing Model No. SY210C-9, Serial No. (22SY210C000349) with Standard Machine and Tools in connection with First Information Report bearing No. 11192064230236 of 2023 registered with Dholka Rural Police Station, Ahmedabad Rural.
3. The FIR being No. 11192064230236 of 2023 registered with Dholka Rural Police Station, Ahmedabad Rural is under Sections 379 and 114 of the Indian Penal Code (IPC), under Sections 4 and 21 of the Mines and Minerals [Development and Regulation] Act, 1957 (Amended 2015) and under Rule No. 3 and 21 of the Gujarat Mineral [Prevention of Illegal Mining Transportation and Storage] Rules, 2017.
4. The case of the prosecution is that on 21.06.2023, the office of the complainant received a letter with an information from the Additional Director, Appeal and Flying Squad that the Excavator Machine was used for illegal extraction of sand from Survey No. 878 of Moje Saroda, Taluka Dholka, District Ahmedabad and the machine has extracted minerals to the tune of 4,57,440.83 metric tonnes worth Rs.15,47,97,977/-. The alleged extraction in connivance was without any permission.
5. Learned Advocate for the applicant Mr. Mukundkumar A. Thakkar submitted that the muddamal Excavator Machine as per the panchnama suggests that the same was given to one Tejabhai Shankarbhai Vanjara who in turn had given it to Ramjibhai Thobanbhai Rabari. The present applicant is merely the owner of the machine who had only rented it and the co-accused had hired the said Machine. It is further submitted that the present applicant was not having any knowledge of the illegal use of the vehicle much less carrying out any excavation of sand which becomes an offence under the Mines and Minerals Act. It is further submitted that the FIR which could be registered before the learned Judicial Magistrate would only be under IPC, while a private complaint has to be lodged before the learned Sessions Court. As per Section 22 of the Mines and Minerals Act, 1957, the cognizance of the offence can be taken only on a complaint in writing by a person authorized on behalf of the Central or State Government and such cognizance could be taken only by the said Court which is a designated Court of Sessions. It is further submitted that under the Mines and Minerals Act, if a person authorized under Section 22 comes to a decision of compounding the offence, it becomes tenable in terms of the provision of Section 23(A) and then that proceedings would come to an end.
6. It is further submitted that the FIR directly cannot be registered before the Police in view of the decision of the Hon’ble Apex Court in the case of Jayant vs. State of Madhya Pradesh, 2021 (2) SCC 670. It is also submitted that the seizure of the Excavator Machine thus becomes illegal. Referring to the Tax Invoice dated 17.12.2021, it is submitted that the same was purchased by the present applicant at the cost of Rs.59,90,354/- which was SANY Hydraulic Excavation Model. It is further submitted that the FIR and charge-sheet also suggests that the applicant himself was not involved in the excavation of sand.
7. It is also submitted that the offences under the MMRD Act would only be attracted at the stage of cognizance of offences and not prior and submitted that the decision in the case of Jayant (supra) does not need consideration and therefore, urged this Court to consider the application.
8. Learned Add
