Vineet Singh Baghel vs State Of Madhya Pradesh

This petition under Section 482 of Cr.P.C. has been filed by the petitioner being aggrieved by the order dated 10.12.2019 in Criminal Revision No.92/2019 passed by learned II Additional Sessions Judge, Sidhi, affirming the order dated 13.8.2019 passed by JMFC, Sidhi in connection with Crime No.457/2019 registered at Police Station-Rampur Naikin for the offence punishable under Section 379 and 414 of IPC as well as Section 21/4 of Mines and Minerals Act, 1957 (hereinafter referred as Act 1957) and also Section 53(1.3.5) M.P. Minor Mineral Rules, 1996 (hereinafter Rules of 1996 for short). The learned JMFC has rejected the application under Section 451/457 of Cr.P.C. filed by the petitioner for releasing the vehicle bearing registration No.MP-53-M-1080 on supurdginama.

Facts of the case are that the petitioner is registered owner of tractor bearing registration No.MP-53-M-1080. The said vehicle has been seized by police in violation of provision of aforesaid Acts. The seized vehicle was found loaded with sand without having valid documents. The petitioner moved an application under Section 457 of Cr.P.C. before JMFC Sidhi for getting interim custody of said vehicle on supurdginama but same was rejected by the learned JMFC. Being aggrieved, petitioner approached the Revisional Court by way of filing revision petition but same was also dismissed.

Learned counsel for the petitioner submits that both the Courts below erred in rejecting the prayer of petitioner for releasing the said vehicle. It is submitted by the petitioner's counsel that learned trial Court has failed to see that the vehicles in question owned by the petitioner has not been used for commission of any offence and rather a false case has been orchestrated by the police merely to harass the petitioner. The rejection order is not based on any justified reason and material available on record. Learned Court below ought to have appreciated the fact that the petitioner is also involved in the trade of transportation of the minerals and that he has the registration of the same from the department of Commercial Tax and furthermore the confiscated vehicle had been duly registered for the purpose of Mineral Transportation with the office of Collector Sidhi, therefore rejection of the application is on the wrong ground. He further submits that the petitioner is owner of the said tractor having valid documents in this regard. Further he relied on the judgment passed by Ho'ble Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujrat reported in (2002) 10 SCC 290. With the aforesaid submission he prays for allowing the petition.

On the other hand, learned P.L. for the respondent/State opposes t h e prayer  submitting that vehicle  was  very well  involved  in the aforesaid offences  and  if it releases  on interim custody,  there  is possibility of it being misused in another crime. Under Act 1957, no provision is prescribed for releasing the vehicle in supurdginama. He further submits that  as  per  Rules  53 of Rules  of  1996,  the Collector/Additional Collector/Deputy Collector, as the case may be, is the competent authority to pass an order of discharge of the vehicle found in illegal mining or transportation of the minerals. He further submits that there is every possibility to commence the proceedings under Rule 53 of Rules of 1996. The offences committed in the case are dangerous for natural environment. With the aforesaid, he prays for dismissal of the petition. He admits that no proceeding is pending under Rule 53 of Rules of 1996.

Heard both the parties and perused the case diary.

On perusal of case diary, it is found that the aforesaid tractor was seized on account of transportation of sand without having valid documents. According to petitioner's counsel, seized vehicle is duly registered for the purpose of mineral transportation with the office of Collector, Sidhi. He produced certificate in this regard.

Rule 53 of Rules of 1996 provides penalties for unauthorized extraction and transportation. It empowers the Collector or any other officer authorized by him not below the rank of the Deputy Collector to determine that any such person has extracted or transported the minerals in contravention of the provisions made thereunder. Sub-rule (2) of Rule 53 of Rules of 1996 provides for forfeiture of minerals in case of illegal extraction and transportation. Further Sub-rule (3) provides forfeiture or discharge of seized tools, machine and vehicle etc. It is provided that such articles shall not be discharged till the penalty imposed is not paid.

Admittedly, there is no provision for giving interim custody of vehicle under the Act 1957 or Rules 1996. In the present case, the FIR has been registered under the offences of IPC and same are triable by JMFC. Under Cr.P.C. Section 451 provides the provision of release of seized property if the Court thinks fit for the proper custody for such property and if the property is subject to speedy and natural decay. There is no bar under Act 1957 and Rules 1996 on the jurisdiction of Criminal Code under Section 451 of Cr.P.C. In this regard in the case of Pratap Verma Vs. State of M.P. in M.Cr.C.No. 5316/2020 passed by Co-ordinate Bench of this Court dealt with similar issues and held as under :-

"12. Undisputedly there is no provision for the temporary release of the vehicle to the registered owner either in the MMDR Act of 1957 by the Magistrate or in the " Minor Mineral Rules,

1996, ". The MMDR Act of 1957 and rules ('' M.P. Minor Mineral Rules, 1996'' ) made thereunder nowhere bars or put an embargo on the jurisdiction of the trial court/ Magistrate to entertain an application filed under section 451 of the Cr.P.C. In the case, in hand, the vehicle belonging to the petitioner has been seized by police in crime no. 795/2019 and must have produced before the learned Magistrate, therefore, the magistrate alone has jurisdiction to release the vehicle under section 451 of the Cr.P.C. in absence of any provision in œM.P. Minor Mineral Rules, 1996ÂÂ. That the FIR has been registered for the offence u/s. 379 of the I.P.C. and u/s. 21 of the MMDR of 1957, and being tried under the provisions of the Code of Criminal Procedure particularly the offence under the Indian Penal Code. The doctrine of exclusion of jurisdiction of the regular courts to deal with a matter and to pass appropriate orders in such criminal proceedings is founded in the maxim 'Generalia Specialibus Non Derogant' (special law overrides general law). In other words, jurisdiction over the Courts to deal with the matter and pass orders under the provisions of the Code of Criminal Procedure should be presumed and to hold the contrary, there must be a specific bar in any special law concerning certain matters under the Criminal Procedure Code and by necessary implication by making such similar provisions to deal with a matter in the special enactments.

13 . The Full Bench of this court in the case of State of Madhya Pradesh Vs Rakesh Kumar Gupta reported in 1998 Cr.L.J.4264 while dealing the issue of release of the vehicle under section 451 of Cr.P.C. by the Magistrate, which was confiscated due to non-payment of tax under MP Motoryan Karadhan Adhiniyam 1991, has held that section 451 of the Code gets attracted only when the property is produced before any criminal court during any enquiry or trial and sec 457 of Cr.P.C comes into play when the seizure is by the police officer who reports to the Magistrate under the Code.

Needless to say that even after the temporary release of the vehicle to the applicant, the competent authority under the M.P. Minor Mineral Rules, 1996 would be competent to pass the order under the provisions of rule 53. The ouster of jurisdiction of the criminal court would only occur if the proceeding of forfeiture is completed under Rule 53 of the œM.P. Minor Mineral Rules, 1996 after which, only an appeal would lie under rule 57. Besides, the M.P. Minor Mineral Rules, 1996, does not contemplate physical custody over the vehicle for an order of forfeiture to be passed and that even if the vehicle is released under 451 Cr.P.C by the Magistrate Court, the Collector could proceed under rule 53 for forfeiture and once the order of forfeiture is passed, it would be incumbent on the owner to hand over possession of the Vehicle to the concerned department unless the appellate authority (u/r 57) stays the order of the Collector or finally sets it aside."

Here in the case, the seized property is tractor and kept in open place, get deteriorating. Petitioner is registered owner of tractor bearing registration No. MP-53-M-1080. No proceeding is pending under Rule 53 of Rules of 1996. In the case of Sundarbhai Ambalal Desai (supra), it has been held that in case of vehicles seized during investigation, same should not be allowed to deteriorate by being kept unused and unattended in the premises of police station. It is further held that the Magistrate concerned would take immediate action for seeing the power under Section 451 of Cr.P.C. are properly and promptly exercised and article are not kept for a long time at the police station.

Keeping in view the law laid down by the Hon'ble Apex Court in the case of Sunderbhai Ambalal Desai (supra), the impugned orders are hereby set aside. It is directed that the vehicle (truck) bearing registration No . MP-53-M-1080 be delivered to the petitioner on Supurdginama subject to verification regarding ownership of petitioner and following conditions thereof:-

(i) That, the petitioner shall produce the necessary documents like original registration, insurance, sale-letter etc before the trial Court.

(ii) That, the petitioner shall furnish a personal bond in the sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) with one solvent surety in the like amount to the satisfaction of the trial Court on an undertaking to produce the said vehicle before the trial Court as and when required.

(iii) That, the petitioner shall get the vehicle photographs showing the registration number as well as the chassis number of the vehicle. Such photographs shall be taken in the presence of the responsible officer, who will be deputed by the trial Court and to be kept in the file of the case.

(iv) That, the photographs of the petitioner as well as surety must have been placed in the personal bond and bond of surety. Further, the photograph of person identifying him before the Court must also have been placed in the personal bond. The petitioner, surety and person identifying him shall carry their full residential proof.

(v) The petitioner shall undertake not to transfer the ownership of the vehicle and shall not lease it to anyone and not make or allow any changes in it to be made so as to make unidentifiable.

(vi) The petitioner will not allow the vehicle to be used in any anti-social activities.

(vii) In the event of confiscation order by the Court competent, the petitioner shall keep the vehicle present positively for confiscation.

With the aforesaid directions, this M.Cr.C. stands disposed of.

A copy of this order be sent to the learned trial Court concerned for necessary compliance.

Certified copy as per rules.