Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Raj) 139

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR
PUSHPENDRA SINGH BHATI, J.
Kishore Singh s/o Sh. Bheru Singh - Petitioner
Versus
State Of Rajasthan through Public Prosecutor - Respondent
S.B. Criminal Misc(Pet.) No. 3595/2021, 3139/2020, S.B. Criminal Writ Petition No. 94/2021, 828/2021, 1017/2021, 1028/2021, 1047/2021, 1793/2021, 2689/2021, 2775/2021, 2776/2021, 2780/2021, 3223/2021, 3224/2021, 3225/2021 3428/2021, 3453/2021, 3454/2021, 3455/2021, 3510/2021, 3618/2021, 3706/2021, 3956/2021, 4173/2021, 4566/2021, S.B. Criminal Misc. (Pet.) No.2651/2020, 4550/2021, 4554/2021
Decided on : 15-09-2021

Advocates:
Advocate Appeared:
For the Petitioner: Mr. D.S. Udawat, Mr. S.P. Sharma, Mr. Radheshyam Mankad, Mr. Rakesh Matoria, Mr. H.S. Rajpurohit, Mr. Trilok Joshi, Mr. Naresh Singh for Mr. Rakesh Arora, Mr. Abhishek Mehta, Mr. Bhawani Singh Mertia, Mr. Rohitash Singh Rathore, Mr. Shrey Gaharan (on VC), Mr. Mohan Ram Choudhary, Ms. Manjula Choudhary, Mr. Akash Goyal, Mr. Ramdeen Choudhary, Mr. Ashok Kumar for Mr.Vineet Jain, Mr. Devki Nandan Vyas (on VC), Mr. Jayant Joshi,Mr. Ripudaman Singh,
For the Respondent: Mr. Digvijay Singh Jasol, Mr. Mahipal Bishnoi

Point of Law: once the confiscation proceedings are initiated, the possession, delivery, disposal or distribution of the property cannot be made

Headnote:
Criminal Procedure Code, 1973 - Sections 451 & 457 - Rajasthan Forest Act, 1953 - Section 52, 52(2) 52A, 52B, 52C, 53, 55, 56, 57, 59, 60, 62 & 68 – Delhi Excise Act, 2009 – Section 33, 58, 59(1), 61 - Mines and Minerals (Development and Regulation) Act, 1957 - Section 4, 15, 15-A, 15-B, 15-C, 15-D, 21, 21(4A) – Indian Penal Code, 1860 - Section 323, 353 and 379 - Madhya Pradesh Van Upaj (Vyapar Viniyam) Adhiniyam, 1969 - Rajasthan Minor Mineral Concession Rules, 2017 - Chapter X - sub-rules (3), (4), (5), (6), (7) & 8 of Rule 54 - Rajasthan Minor Mineral Concession Rules, 1986 - Chapter-VI - Rule 48 - MP Minor Mineral Rules 1996 - Rule 53 - Illegal mining, transportation and storage of minerals - Seizure of property liable to confiscation - Power to release property seized under Section 52 - Property when to vest in State Government - Power to compound offence - Bar of jurisdiction in confiscation – Whether petitioners shall be required to furnish photographs of their respective vehicles – Whether petitioners shall give an undertaking before concerned learned trial court along with bank guarantee
Findings of the Court:
It is further made clear that petitioners shall be required to furnish photographs of their respective vehicles, showing their numbers, colors etc - At time of release of vehicles in question, petitioners shall give an undertaking before concerned learned trial court along with bank guarantee, as directed, that they shall not use such vehicles for any illegal and unlawful purpose, and in case any second offence, by means of vehicles, is made out, then same shall not be released, on any condition, until confiscation proceedings come to an end - MMDR Act has been enacted with a view to provide for development and regulation of mines and minerals - Section 4 of MMDR Act ordains that no person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with terms and conditions of a reconnaissance permit or of a prospecting licence or, as case may be, of a mining lease, granted under this Act and rules made - Section 4(1A) provides that no person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with provisions of this Act and rules made - Section 21 of MMDR Act deals with penalties - Section 21(1) of MMDR Act provides that whoever contravenes provisions of subsection (1) or Section 4(1A) shall be punished with imprisonment for a term which may extend to five years, or with fine, which may extend to five thousand rupees per hectare of mined area, or with both - Section 21(4) further provides that whenever any person raises, transports or causes 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, same shall be liable to be seized by an officer or authority specially empowered in this behalf - Section 21(4A) provides that any mineral, tool, equipment, vehicle or any other thing seized under subsection (4), shall be liable to be confiscated by an order of court competent to take cognizance of offence under subsection (1) and shall be disposed of in accordance with directions of such court.
Result: Petitions disposed of

Judgement Key Points

Based on the legal document provided, here are the key points regarding the release of vehicles seized during illegal mining and forest offenses:

Jurisdictional Shift upon Reporting: Once the officer who seized the vehicle reports the seizure to their superior officer and the Magistrate having jurisdiction (within 72 hours), the seizing officer loses the power to release the vehicle. The power to release then vests solely with the Magistrate (!) .
Condition for Release: Vehicles seized under mining laws (MMDR Act, RMMC Rules) and forest laws (Rajasthan Forest Act) can be released by the Magistrate under Sections 451 and 457 of the Cr.P.C., either with or without the condition of depositing a compounding fee (!) (!) .
Requirement of Bank Guarantee: To ensure future payment of compounding fees, the Magistrate must direct the registered owner to deposit an active bank guarantee equivalent to the estimated compensation/compounding fee before releasing the vehicle (!) (!) .
Security of Bank Guarantee: The bank guarantee must remain intact with the trial court until the conclusion of all confiscation proceedings. The disposal of the guarantee is governed by the final orders of the competent court after the proceedings end (!) .
Undertaking and Vehicle Verification: Petitioners must furnish photographs of their vehicles (showing number, color, etc.) and provide an undertaking before the trial court that they will not use the vehicle for any illegal purpose. If a second offense is committed using the same vehicle, it will not be released until confiscation proceedings conclude (!) .
Bar on Release if Confiscation Initiated: If the State authorities have already initiated formal confiscation proceedings under the relevant Acts (e.g., Section 21(4A) of MMDR Act or Section 52/55 of Rajasthan Forest Act), the possession, delivery, disposal, or distribution of the property cannot be made (!) .
Specific Rules on Seizure and Release:
- Mining Rules (2017): Officers can release vehicles upon payment of mineral cost and compounding fees. If not released, a report must be made to the superior and Magistrate within 72 hours; thereafter, only the Magistrate can order release (!) (!) (!) .
- Forest Act: Property seized under Section 52 may be released by a Forest Officer (Rank not inferior to Ranger) on the execution of a bond for production of the property, or upon payment of the estimated value (!) (!) .
Precedent Law: The judgment relies on the Supreme Court's decision in Adhikshak Rashtriya Chambal Abhyaran Vs. Narottam Singh, which holds that once confiscation proceedings are initiated, no orders for possession or delivery of the property should be passed (!) (!) . It also cites Sunderbhai Ambalal Desai regarding the practical difficulties of holding vehicles and the need for their release upon appropriate security (!) .

JUDGMENT :

1. In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.

2. All these petitions have been preferred against the orders passed by the learned courts below, whereby the applications under Sections 451 & 457 Cr.P.C. filed by the petitioners seeking release of vehicles of different categories were rejected or allowed on condition of paying compounding fee, and therefore, looking to commonality of the issue involved herein, the present petitions have been heard together and are being decided by this common judgment.

3. The present petitions pertain to release of the vehicles of different categories, which have been seized by the respondents (State authorities), in various cases under the Mining Laws, namely, The Mines and Minerals (Development and Regulation) Act, 1957 and Rajasthan Minor Mineral Concession Rules, 2017; Forest Law, namely, the Rajasthan Forest Act, 1953; and the Indian Penal Code, in connection with illegal mining and unlawful transportation of mineral, like bajri/sand, coupled with unlawful possession of forest produce, and illegal transportation thereof.

4. The exercise of power under Sections 451 and 457 Cr.P.C. is under judicial scrutiny in these petitions, and the extraordinary strictness in the mining and forest laws to deal with the subject, are the core issues of the present adjudication.

5. Mr. Radheshyam Mankad, Mr. Rakesh Matoria, Mr. H.S. Rajpurohit, Mr. Trilok Joshi, Mr. Rakesh Arora, Mr. Abhishek Mehta, Mr. Bhawani Singh Mertia, Mr. Rohitash Singh Rathore, Mr. Shrey Gaharan (on VC), Mr. Mohan Ram Choudhary, Ms. Manjula Choudhary, Mr. Akash Goyal, Mr. Ramdeen Choudhary, Mr. D.S. Udawat, Mr. S.P. Sharma, Mr. Devki Nandan Vyas (on VC) and Mr. Jayant Joshi, Mr. Ripudaman Singh, learned counsels for the petitioners relied upon the judgments rendered by this Hon’ble Court at Jaipur Bench in Julfi Singh Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.397/2020) alongwith other connected petitions, decided on 23.10.2020; Irfan Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.742/2021) alongwith other connected petitions, decided on 16.02.2021.

6. Learned counsels for the petitioners further relied upon the judgment rendered by this Hon’ble Court at Jaipur Bench in Asharam & Ors. Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.2723/2019), alongwith other connected petitions, decided on 03.02.2020; and Nandlal Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.2687/2020, decided on 01.10.2020).

7. Learned counsels for the petitioners have also relied upon the precedent law laid down by the Hon’ble Supreme Court in Sunderbhai Ambalal Desai & Ors. Vs. State of Gujarat, reported in (2002) 10 SCC 283, and the judgment rendered by a Division Bench of this Hon’ble Court at Jaipur Bench in Harun Vs. State of Rajasthan (D.B. Criminal Misc. Petition No.76/2014), alongwith other connected petitions, decided on 23.07.2015.

8. The core provisions relevant for the present adjudication are sub-rules (3), (4), (5), (6), (7) & 8 of Rule 54 of the Rajasthan Minor Mineral Concession Rules, 2017; Section 52 to 56, 60 & 68 of the Rajasthan Forest Act, 1953. The said provisions are reproduced as hereunder:

Sub-rules (3), (4), (5), (6), (7) & 8 of Rule 54 of the Rajasthan Minor Mineral Concession Rules, 2017:

“54. Illegal mining, transportation and storage of minerals. –

(1) . . . . . . .

(2) . . . . .

(3) Whoever contravenes the provisions of sub-rule (1) and (2) shall be punished with imprisonment for a term which may extend to five years or with fine which may extend to five lacs rupees, or with both:

Provided that the Additional Director Mines, Superintending Mining Engineer, Superintending Mining Engineer(vigilance), Mining Engineer, Mining Engineer (vigilance), Assistant Mining Engineer, Assistant Mining

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2021 Supreme(Raj) 139

Point of Law: once the confiscation proceedings are initiated, the possession, delivery, disposal or distribution of the property cannot be made

Cases Referred (4)