Ghanshyam Jaat vs State Of Rajasthan

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.

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.

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.

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.

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.

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.

I have considered the submissions and have gone through the judgments which have been cited at bar.

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.

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.

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.

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 to the Division Bench as to in

what circumstances the vehicle should not be released and it was held that where the confiscation proceedings have already been conducted, the

power would not lie with the Magistrate to release the vehicle. The court thereafter passed direction for releasing of the tractor with trolley laying

down certain conditions.

The Rajasthan Minor Mineral Concession Rules, 2017 laid down the provisions relating to offenses, penalties and prosecution under Chapter 10.

Rule 54(5) & (6) of the Rules, deserve to be quoted, which read as under:

Illegal mining, transportation and storage of minerals:-

(1) ....

(2) ....

(3) ......

(4) .....

(5) Whenever any person, without a lawful authority, raises any mineral from any land other than under any mineral concession or any other

permission and for that purpose bring on the land any tool, equipment, vehicle or other thing, such tool, equipment, vehicle etc. mineral, if any, may be

seized by the authorities mentioned in sub-rule (4) who shall give a receipt to the person from whose possession the property or mineral is seized:

Provided that every officer seizing any property or mineral under this rule may handover the property or mineral so seized to the nearest police station

or police chauki. Provided further that the seized vehicle, equipment or mineral may be released after deposition of cost of mineral along with the

compound fees as specified in sub-rule (3). Provided also that where mineral so raised has already been dispatched or consumed, the authorities

mentioned in sub- rule (3) shall recover cost of mineral along with the compound fees as specified in sub-rule (3). Provided also that where vehicle,

equipment or mineral so seized is not released, the officer seizing the property or mineral shall make a report of such seizure within seventy two hours

to his superior officer and to the Magistrate having jurisdiction.

(6) All property seized under this rule shall be liable to be confiscated by an order of Magistrate if the amount equal to ten times of royalty in lieu of

cost of mineral, rent, royalty, compensation for environmental degradation and tax chargeable on the land occupied without lawful authority, etc. is not

paid by the trespasser within a period of three months from the date of commission of such offence or when the recoveries are not affected by that

time: Provided that on payment of these dues within the said period of three months, all properties seized shall be ordered to be released and shall be

handed over to the trespasser or the owner of the property.

On the basis of aforesaid provisions, the Officer i.e. the Mining Engineer (Writ) submits that the power lies with the Mining Engineer to seize the

vehicle.

Per contra, learned counsel appearing for the petitioner has specifically submitted that in none of the case, the Mining Department has passed

order either under Rule 54(5) or under Rule 54(6) of the Rules, 2017 that is to say that neither any penalty has been imposed nor the confiscation

proceedings have been undertaken.

The Mining Engineer (Writ), who is present in person in court, does not dispute with regard to the said fact of the vehicle having not been

confiscation as yet.

In the case of Nathulal (supra), this court had occasion to again examine this aspect and in the case of Sunderbhai Ambalal Desai & Ors. (supra),

this court while relying upon the judgment in Sunderbhai Ambalal Desai & Ors. (supra) directed for release of the vehicle.

This court also notices that different view had been taken by the Coordinate Bench in Naval Singh Vs. State of Rajasthan (S.B. Criminal Misc.

Petition No.2670/2020), decided on 3.9.2020, which did not notice the law laid down by this court in Asharam (supra) as well as by the Supreme Court

supra and therefore, judgment in Naval Singh (supra) was treated as per-incuriam in Nathulal Vs. State of Rajasthan (supra).

This court finds that the observations made in Khem Singh (supra) were of interregnum in nature and the law laid down by Supreme Court earlier

was not brought to its notice. The provisions for compounding is also after confiscation. In none of the cases herein, the provisions under Rule 54 of

the Rajasthan Minor Mineral Concession Rules, 2017 have been pressed by the Mining Department. Till date, neither penalty has been imposed nor

confiscation has been done.

The Supreme Court in the case of Sunderbhai Ambalal Desai & Ors. (supra) has examined the law laid down and the conditions with regard to

release of different goods/vehicle in different circumstances as under:-

The question of proper custody of the seized article is raised in number of matters. In Basavva Kom Dyamangouda Patil v. State of Mysore:

(1977) 4 SCC 358 this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the

recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those

articles. In that context, the Court observed as under:-

The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an

offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely

necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the

property should be restored to the original owner after the necessity to retain its ceases. It is manifest that there may be two stages when the property

may be returned to the owner. In the first place it may be returned during any inquire or trial. This may particularly be necessary where the property

concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the

owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements

of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any

property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be

passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from

it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every

case where it has taken cognizance.

The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its

officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order

payment of the value of the property.

To avoid a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest.

In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to

pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any

point of time. This can be done pending hearing of applications for return of such vehicles.

However, these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate

action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police

station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the

concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly.

In Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd.: (2001) 6 SCC 356, the Supreme Court has held as under:-

In Mamleshwar Prasad and Another vs. Kanhaiya Lal reflecting on the principle of judgment per incuriam, in paras 7 & 8, this Court had stated

thus:-

Certainty of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision

once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or

oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not

have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark

on the principle of judgment per incuriam.

Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here

we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind.

20.This Court in A.R.Antulay vs. R.S. Nayak & Another (1998 (2) SCC 602), in para 42 has quoted the observations of Lord Goddard in Moore vs.

Hewwit (1947) 2 All.ER 270 and Penny vs. Nicholas (1950) 2 All.ER 89 to the following effect:-

Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court

concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be

demonstrably wrong...

21.This Court in State of U.P. & Another vs. Synthetics & Chemicals Ltd. & Another MANU/SC/0616/1991:1993(41)ECC326 : 1993 (41) ECC3 26

in para 40 has observed thus :-

'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in

relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'.

(Young v. Bristol aeroplane co. Ltd)...

The two judgments (1) Punjab Land Development and Reclamation Corporation Ltd., Chandigarh vs. President Officer, Labour Court, Chandigarh

and Others MANU/SC/0479/1990 : (1990)IILLJ70SC : (1990)IILLJ70SC and (2) State of U.P. and Another vs. Synthetics and chemicals Ltd. and

Another MANU/SC/0616/1991 : 1993(41)ECC326 : 1993(41)ECC326 were cited in support of the argument. Attention was drawn to paras 40, 41 and

43 in the first judgment and paras 39 and 40 in the second judgment. In these two judgments no view contrary to the views expressed in the aforesaid

judgments touching the principle of judgment per incuriam is taken.

A prior decision of this court on identical facts and law binds the Court on the same points of law in a latter case. This is not an exceptional case

by inadvertence or oversight of any judgment or statutory provisions running counter to the reason and result reached. Unless it is a glaring case of

obtrusive omission, it is not desirable to depend on the principle of judgment 'per incuriam'. It is also not shown that some part of the decision based on

a reasoning which was demonstrably wrong, hence the principle of per incuriam cannot be applied.

In Jai Singh & Ors. Vs. Municipal Corporation of Delhi: (2010) 9 SCC 385, the Supreme Court has held as under:-

It must be remembered that in these proceedings, the pleas raised by the DTC and MCD before the ARC as well as the ARCT were identical.

The order passed by the ARCT has been upheld by a coordinate bench of the High Court. The RCSA No: 17/2001 filed by MCD on identical grounds

was thus dismissed by a subsequent coordinate bench. That was indeed in conformity with the high traditions, procedures and practices established by

the courts to maintain judicial discipline and decorum. The underlying principle being, to avoid conflicting views taken by coordinate benches of the

same court. Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam , in that it is passed in

ignorance of an earlier binding precedent/statutory or constitutional provision, the subsequent bench would follow the earlier coordinate bench.

According to Blacks' Law Dictionary (Edition) per-incuriam means through inadvertence. The doctrine of per-incuriam is that a decision is to be

treated as given per-incuriam when it is given in ignorance of the terms of statute or of a rule having statutory force or a binding precedent.

Lord Goddard, in Huddersfield Police Authority Vs. Watson: 27 (1947) 2 All ER 193 observed ""where a case or statute has not been brought to

the Court's attention and the Court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision

rendered in per-incuriam"".

In the opinion of this court, the view taken by the Supreme Court requires to be considered and followed and any judgment, which did not notice

the law laid down by the Supreme Court or the provisions of law, has to be treated as per-incuriam. The provision of Section 451 & 457 Cr.P.C. are

unambiguous and clear and it would be useful to quote them as under:-

Order for custody and disposal of property pending trial in certain cases.

When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper

custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise

expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For

the purposes of this section,"" property"" includes-

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

Procedure by police upon seizure of property.

(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not

produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such

property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the

custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks

fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such

property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the

date of such proclamation.

Unless the respondents namely; Mining Authorities or the State have confiscated the goods/vehicle etc. till that stage, the vehicle can be released

by the concerned Magistrate laying down the conditions under Sections 457 Cr.P.C. The prime reason is that goods or vehicle, which have been

seized should not go waste or rusted. Of course, the condition of bond can always be imposed as one of the conditions as directed by this court in the

case of Asharam (supra) for the purpose.

Keeping in view the law as noticed above and in view of the fact that there is no confiscation having done for illegal mining as on the date and the

imposition of fine or penalty would be on the person (owner) and not on the vehicle, this court is inclined to follow its earlier view taken in Asharam's

case, which reads as under:-

In the aforesaid background, this Court finds that while it is true that a vehicle should not be allowed to get rusted in Police Station and the same

ought to be released for its better maintenance and proper use. Several suggestions were given out by the Officers of the Transport Department as

well as by the Mining Department for laying down the conditions before release of the seized tractors, trolleys and vehicles being used for illegal

mining activities.

In Harun Versus State of Rajasthan: D.B. Criminal Misc. Petition No.76/2014 decided on 23.7.2015 along with connected matters by the Division

Bench of this Court wherein it has been held that if a vehicle is found to be involved in committing violation of the Rajasthan Forest Act, 1953 and

carrying forest produce, the same cannot be released during the pendency of trial on supurdgi to the registered owner of the vehicle, if proceedings of

confiscation have already been initiated. Relying upon the law laid down in Harun (supra), a Coordinate Bench of this Court in Shoukat Khan Versus

State of Rajasthan: S.B. Criminal Misc. (Petition) No.6307/2016, decided on 22.2.2017 has held that supurdginama can be given, if proceedings for

confiscation have been initiated. In Laxman Versus State of Rajasthan: D.B. Criminal Misc. Petition No.60/2018 decided on 6.4.2018 along with

connected matters by the Division Bench where a reference was made to the Division Bench on account of different opinion relating to the power of

release of vehicles wherein the Division Bench has held as under:

Most of the judgments cited by learned counsel appearing from the side of the petitioners have ruled in favour of the jurisdiction of the Magistrate to

release the vehicles under the provisions of Section 451 and/or 457 of the Cr.P.C. A discordant note has however been sounded by Single Bench

judgment in Ramswaroop's case, which was later followed in Mala Ram's, supra. These judgments, in view of the analysis of law which we have

made herein-above, do not lay down correct law. In fact, the same Single Judge, who delivered the judgment in Ramswaroop's case on 28.08.2015, in

his earlier judgment dated 26.10.2012 in Muknaram Vs. State of Rajasthan - S.B. Criminal Misc. Petition No.3285/2012, had held that in a case in

which offence has already been compounded by the competent authority and an amount has been imposed as compounding fees and the same has not

been paid or deposited by the person concerned, for the purpose of recovery or realization of the same, a condition can be imposed by the Court while

ordering release of the vehicle to pay or deposit the same and the Court can refuse to release the seized vehicle even temporarily under Section 457

Cr.P.C., if such deposit is not made. In view of the above discussion, the referred questions are answered in the terms that once the Officer of the

Mining Department, who seized the vehicle, has reported such seizure to his Superior Officer and to the Magistrate having jurisdiction, he shall cease

to have the power to release the vehicle, and in that event, the Magistrate having jurisdiction would be empowered to release such vehicle, with or

without the condition of deposit of compounding fee.

In view thereof, the power is vested with the concerned Magistrate for release of seized vehicle.

Keeping in view the above, as this Court notices that in none of the cases, the Mining Department has not initiated the confiscation proceedings, it

was submitted that compounding fee must be charged from the petitioners before release of the vehicle. However, this Court is of the view that the

compounding fee can only be charged, if it is adjudicated that the concerned vehicle was involved in the illegal activities, which can only be when trial

is completed. A presumption in this regard cannot be taken at the present stage.

In view thereof, the impugned orders passed by the Courts below dated 30.3.2019, 21.10.2019, 3.10.2019, 10.10.2019, 8.11.2019, 25.4.2019 and

8.4.2019 in each of the case shall stand set aside and this Court directs as under:

a) The concerned Police Station shall release the tractor and trolley to the person, who is the registered owner of the vehicle alone.

b) The release of the tractor and trolley shall be subject to the condition that the concerned owner shall get both the tractor and the trolley registered

with the transport authorities and also obtain due permit within a period of one month from the date of release and deposit the copy with the concerned

Police Station.

c) A personal security of an amount of Rs.1,00,000/- each to the satisfaction of the concerned Court to which the concerned Police Station is

attached, shall be submitted for the purpose of release of the vehicle.

d) The petitioners shall keep the vehicle so released intact and shall not change its identification. The petitioners shall produce the vehicle as and when

trial Court requires the same for proposed identification of the case property.

e) The petitioners shall furnish the photographs of the vehicle showing its number and colour etc.

f). At the time of release, the petitioners shall also give an undertaking to the effect that vehicle shall not be used for any illegal purpose and if so

found, the concerned owner shall be personally liable.

It is noticed that the on coming ""Rabi"" crop season is approaching and the farmers would require their tractors and trolleys for the said purpose,

therefore taking into consideration the above, keeping the vehicles at Police Station would render them go waste.

Accordingly, these petitions are allowed and the orders passed by the Court below are quashed and set aside. The tractor and trolley as mentioned

in these petitions as per Schedule-A annexed to this order shall be released as per aforesaid conditions laid down herein-above in Para 14(a) to (f) of

Asharam's case (supra).

However, it is made clear that if vehicle(s) has been confiscated under the relevant provisions of the Act, then said vehicle(s) shall not be released

by the concerned Magistrate. Keeping in view of law laid down in the case of Laxman Versus State of Rajasthan: DB Criminal Misc. Petition

No.60/2018 decided on 6.4.2018.

All pending applications also stand disposed off.