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IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Sanjeev Prakash Sharma, J.
Ghanshyam Jaat - Appellants
Vs.
State of Rajasthan - Respondent
S.B. Criminal Miscellaneous (Petition) No. 3794/2020
Decided On : 19-11-2020
CRIMINAL - SEIZURE OF TRACTORS AND TROLLEYS - ILLEGAL MINING - RELEASE OF VEHICLES - CONDITIONS - LAW LAID DOWN BY SUPREME COURT - INTERPRETATION AND APPLICATION - PER-INCURIAM JUDGMENTS - JUDICIAL DISCIPLINE AND DECORUM - CUSTODY AND DISPOSAL OF PROPERTY PENDING TRIAL - SECTION 451 & 457 CR.P.C. - RAJASTHAN MINOR MINERAL CONCESSION RULES, 2017 - RULE 54(5) & (6) - POWER OF MAGISTRATE TO RELEASE SEIZED VEHICLES - CONDITIONS FOR RELEASE - CONFISCATION PROCEEDINGS - COMPOUNDING FEE - JURISDICTION OF MAGISTRATE - JUDICIAL REVIEW.
Fact of the Case:
Numerous petitions were filed challenging the orders passed by the concerned Magistrate rejecting applications for the release of tractors and trolleys seized by the Police Authorities/Mining Authorities/Forest Officials for various reasons, including carrying "bazri" through illegal mining in Rajasthan and selling the same.
Finding of the Court:
1. The court relied on the judgments passed in S.B. Criminal Misc. Petition No. 2723/2019 (Asharam & Ors. Vs. State of Rajasthan & connected misc. petitions), S.B. Criminal Misc. (Petition) NO. 2687/2020 (Nandlal Vs. State of Rajasthan), and Nathulal Vs. State of Rajasthan (S.B. Criminal Misc. Petition No. 2755/2020) to hold that vehicles should be released subject to certain conditions. 2. The court found that the judgment in S.B. Criminal Misc. Petition No. 1363/2020 (Ganga Ram Vs. State) did not consider the relevant judgments and provisions of law, and was therefore per-incuriam. 3. The court examined the provisions of the Rajasthan Minor Mineral Concession Rules, 2017, Rule 54(5) & (6), and found that the Mining Engineer had the power to seize the vehicle but had not initiated confiscation proceedings or imposed any penalty. 4. The court relied on the Supreme Court judgment in Sunderbhai Ambalal Desai & Ors. Vs. State of Gujrat to hold that the Magistrate has the power to release seized vehicles under Sections 451 & 457 Cr.P.C., and that such release should be prompt and subject to appropriate conditions. 5. The court held that the tractors and trolleys should be released to the registered owners subject to certain conditions, including obtaining registration and permits, submitting personal security, and not using the vehicles for illegal purposes.
Issues: 1. Whether the vehicles should be released considering the judgments passed in Asharam & Ors. Vs. State of Rajasthan, Nandlal Vs. State of Rajasthan, and Nathulal Vs. State of Rajasthan. 2. Whether the judgment in Ganga Ram Vs. State was per-incuriam. 3. Whether the Mining Engineer had the power to seize the vehicle and initiate confiscation proceedings. 4. Whether the Magistrate had the power to release the seized vehicles under Sections 451 & 457 Cr.P.C. 5. What conditions should be imposed for the release of the vehicles.
Ratio Decidendi: 1. The court held that the vehicles should be released subject to certain conditions, relying on the judgments in Asharam & Ors. Vs. State of Rajasthan, Nandlal Vs. State of Rajasthan, and Nathulal Vs. State of Rajasthan. 2. The court found that the judgment in Ganga Ram Vs. State was per-incuriam as it did not consider the relevant judgments and provisions of law. 3. The court held that the Mining Engineer had the power to seize the vehicle but had not initiated confiscation proceedings or imposed any penalty. 4. The court held that the Magistrate had the power to release the seized vehicles under Sections 451 & 457 Cr.P.C., and that such release should be prompt and subject to appropriate conditions. 5. The court held that the tractors and trolleys should be released to the registered owners subject to certain conditions, including obtaining registration and permits, submitting personal security, and not using the vehicles for illegal purposes.
Final Decision: The petitions were allowed, and the orders passed by the Court below were quashed and set aside. The tractors and trolleys were ordered to be released to the registered owners subject to certain conditions.
ORDER :
Sanjeev Prakash Sharma, J.
1. All these petitions relate to the prayer for release of tractors and trolleys, which have been seized by the Police Authorities/Mining Authorities/Forest Officials for various reasons including carrying "bazri", by way of illegal mining in Rajasthan and selling out the same etc.
2. All these petitions have been filed against the order passed by the concerned Magistrate whereby application under Section 451 & 457 Cr.P.C. for releasing of tractor and trolley was rejected and therefore, the same are being heard together.
3. Learned counsel for the petitioners have relied upon the judgment passed by this court in S.B. Criminal Misc. Petition No. 2723/2019 (Asharam & Ors. Vs. State of Rajasthan & connected misc. petitions) decided by common order dated 3.2.2020.
4. Learned counsel for the petitioners relied upon the order passed subsequently by this court in S.B. Criminal Misc. (Petition) NO. 2687/2020 (Nandlal Vs. State of Rajasthan) decided on 1.10.2020 to submit that vehicle should be released.
5. Learned counsel for the petitioners also rely upon the judgment passed in the case of Nathulal Vs. State of Rajasthan (S.B. Criminal Misc. Petition No. 2755/2020) decided on 1.10.2020, which also took into consideration the interim order passed in PIL "Khem Singh Vs. State of Rajasthan", (D.B. Civil Writ Petition NO. 4239/2019) as well as judgment passed by the Supreme Court in the case of Sunderbhai Ambalal Desai & Ors. Vs. State of Gujrat: (2002) 10 SCC 283.
6. The Mining Officer of the rank of Mining Engineer (Writ), Jaipur, who is present in court, opposed these petitions and submitted that decision has been taken by Mining Department to challenge the order passed in Asharam (supra) before the Supreme Court by filing of SLP. It is also stated that the Mining Department on the basis of judgment passed by Coordinate Bench in the case of Ganga Ram Vs. State (S.B. Criminal Misc.(Petition) No. 1363/2020) at Principal Seat, Jodhpur decided on 2.9.2020 has received opinion from the Additional Government Counsel at Jodhpur to cite the said judgment before the concerned lower Court for denial of release of the vehicle.
7. I have considered the submissions and have gone through the judgments which have been cited at bar.
8. At the outset, this court finds that in Ganga Ram Vs. State (S.B. Criminal Misc. Petition No. 1363/2020), decided by Principal Seat of this Court at Jodhpur on 2.9.2020, the judgment of Asharam (supra) was not cited and was not considered. The judgment passed by the Supreme Court in Sunderbhai Ambalal Desai & Ors. (supra) was also not considered and the judgments passed in Harun Versus State of Rajasthan (D.B. Criminal Misc. Petition No. 76/2014), decided on 23rd July, 2015 and Laxman Versus State of Rajasthan (D.B. Criminal Misc. Petition No. 60/2018) were also not brought to the notice of the Court.
9. This court further finds that the interim order passed in the case of Khem Singh (supra) and the order passed by NGT have been considered in Gangaram (supra) and directions have been issued that the petitioners therein would be required to deposit the amount determined by Mining Engineer and after the said amount being determined, the vehicle has been directed to be released.
10. In Asharam's case judgment (authored by me), I had an occasion to examine the dispute and consider the law laid down by the Supreme Court with regard to release of vehicle under Sections 451 & 457 Cr.P.C. The provisions of Motor Vehicle Act with regard to permits as well as the conditions for carriage permit were also examined.
11. This court also examined the power of suspension of permits. That apart, the judgment passed in Harun (supra) was considered by this court which took into consideration the offence committed by the vehicle relating to the Rajasthan Forest Act. In another case of Laxman (supra), the Division Bench considered the aspect regarding confiscation by the Mining Department where the reference was made
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