Point of law: Necessary ingredients for invocation of the powers under Section 457 of the Code having thus not been fulfilled, the provisions of the section cannot be said to be attracted.

JUDGMENT :

1. Heard Sri Shivam Yadav, learned counsel for the revisionist and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing along with Ms. Sushma Soni, learned Additional Government Advocate for the State-opposite party.

2. Present criminal revision has been preferred seeking to set-aside the order dated 7.7.2021, passed by the Chief Judicial Magistrate, Kushinagar at Padrauna, whereby the application filed by revisionist under Section 457 of the Code of Criminal Procedure, 1973, [The Code], for release of truck seized under Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957, [MMDR Act], has been rejected.

3. Pleadings of the case indicate that the vehicle owned by the revisionist, a truck carrying gitti (a minor mineral), was seized by the Mines Inspector, Kushinagar on 19.4.2021, and a report was forwarded to the District Officer for further proceedings under Rule 74 of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963, [The Concession Rules]. The revisionist claims to have approached the District Officer and thereafter he filed an application under Section 457 of the Code before the Chief Judicial Magistrate, Kushinagar at Padrauna, on 3.6.2021, seeking release of the vehicle. The Chief Judicial Magistrate, after calling for a report from the Mines Inspector, passed an order on 7.7.2021, rejecting the application filed under Section 457 of the Code.

4. Learned counsel for revisionist has sought to assail the aforesaid order dated 7.7.2021, passed by the Chief Judicial Magistrate, by seeking to contend that since the vehicle of the revisionist had been seized, learned Magistrate has committed an error in rejecting the application seeking release of the vehicle, despite the necessary powers in regard to the same being available under Section 457 of the Code. It is submitted that order passed by the Magistrate is based on non-application of mind and is illegal and unsustainable. Learned counsel further submits that the vehicle, which is lying with the authorities, is liable to be released. In support of his submissions, learned counsel has placed reliance upon the decisions in the case of Sunderbhai Ambalal Desai vs. State of Gujarat, 2005 (46) ACC 223, Rajendra Singh vs. State of U.P. and Others, AIR 2015 Allahabad 93, Smt. Sudha Kesarwani vs. State of U.P. and Another, 2011 (1) ADJ 498, and Smt. Manu Devi vs. State of U.P. and Others, Criminal Misc. Writ Petition No. 20111 of 2020; dt. 18.8.2015.

5. Learned Additional Government Advocate-I has controverted the aforesaid contention by submitting that the vehicle/truck in question, of which the revisionist claims ownership, was intercepted while illegally transporting gitti (a minor mineral) and was seized by the Mines Inspector on 19.4.2021, in exercise of powers under Section 21(4) of the MMDR Act and a report was forwarded to the District Officer for initiation of proceedings under Rule 74 of the Concession Rules. In the meantime, the revisionist submitted an application dated 23.4.2021 to the District Magistrate, seeking compounding of the offence, and an order dated 28.05.2021 was passed directing the revisionist to deposit the requisite amount towards compounding fee as per the relevant Government Order, whereupon the compounding was to be made and the release of the vehicle would have followed. It has been pointed out that the revisionist did not deposit the requisite compounding fee and moved an application under Section 457 of the Code, before the Chief Judicial Magistrate, which has been rightly rejected as being not entertainable.

6. Learned Additional Government Advocate-I points out that the revisionist having applied for compounding and an order having also been passed thereon by the District Magistrate, in case he was aggrieved, it was open to him to avail the statutory remedy of filing an appeal under Rule 77 and thereafter a revision under Rule 78 of the Concession Rules. It is submitted that the necessary