Allowed

Pushpendra Singh v. State of U.P. and 2 Others

Allahabad HC12 Nov 2021A482/6786/2021

Case brief

AI extract

What is this about?

The High Court exercised jurisdiction under Section 482 Cr.P.C. to quash lower court orders rejecting a release application for a vehicle seized for transporting unpermitted minor minerals. The court held that despite procedural violations, the vehicle must be considered for release as the offence was compoundable but no final compounding order had been passed after 8 months of detention.

What did the court decide?

The impugned orders dated 19.1.2021 and 5.2.2021 were quashed. The Additional Chief Judicial Magistrate was directed to pass a fresh order on the release application within one month.

Pushpendra Singh Vs State of U.P. and 2 Others — Writ and Judicial Review | Allahabad HC (2021)

¶1

¶2

Court No. - 59

¶3

Case :- APPLICATION U/S 482 No. - 6786 of 2021

¶4

Applicant :- Pushpendra Singh Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ashok Kumar Yadav Counsel for Opposite Party :- G.A.

¶5

Hon'ble Rajeev Misra,J.

¶6

Heard Mr. Ashok Kumar Yadav, learned counsel for applicant and learned A.G.A. for State.

¶7

This application under section 482 Cr.P.C. has been filed challenging order dated 19.1.2021, passed by Additional Chief Judicial Magistrate, Court No. 17 Allahabad in Complaint Case No. 1658 of 2020 (State Vs. Pushpendra Singh), Police Station- Ghoorpur, District Prayagraj as well as judgement and order dated 5.2.2021 passed by Additional Sessions Judge, Court No.3, Allahabad in Criminal Revision No. 11 of 2021 (Pushpendra Singh Vs. State) whereby aforesaid criminal revision arising out of order dated 19.1.2021 has been dismissed.

¶8

Record shows that Vehicle No. UP 96T- 3191 was intercepted by mobile squad of Mines Department on 7.12.2020. It was found that aforesaid vehicle was carrying minor mineral 'mooram' contrary to the provisions of U.P. Minor Minerals (Concession) Rules 1963) as well as Mines and Minerals (Regulation and Development) Act 1957. Accordingly, aforesaid vehicle was detained at Police StationGhoorpur, District- Prayagraj. Subsequently, opposite party-2/Mines Officer, District Prayagraj filed a complaint as contemplated under section 22 of Mines and Minerals (Regulation and Development) Act 1957 read with Rule 70 of U.P. Minor Minerals (Concession) Rules 1963, which came to be registered as Complaint Case No. 1658 of 2020 (State Vs. Pushpendra Singh), under section 4/21 The Mines and Minerals Regulation and Development Act 1957 as amended in 2015, Rules 3, 57 and 70 of U.P. Minor Mineral Concession Rules, 1963, Police Station- Ghoorpur, District Prayagraj.

¶9

During pendency of above mentioned compliant case, applicant who is owner of Vehicle No. UP 96T- 3191 filed a release application in terms of section 451 Cr.P.C seeking release of disputed vehicle. Upon filing of aforesaid release application, concerned Magistrate,

¶10

¶11

summoned reports from Mines Department as well as from concerned Police Station. Same were accordingly submitted. Concerned Magistrate, upon consideration of same concluded that since there is violation of Rule 70 of U.P. Minor Minerals (Concession) Rules 1963 as well as Section 21 of Mines and Minerals (Regulation and Development) Act 1957, the disputed vehicle cannot be released. Ultimately, Additional Chief Judicial Magistrate, Court No. 17 by his order dated 19.1.2021, rejected the release application filed by applicant.

¶12

Against order dated 19.1.2021, applicant filed a criminal revision before District and Sessions Judge, Allahabad. Same was registered as Criminal Revision No. 11 of 2021 (Pushpendra Singh Vs. State). Aforesaid revision also came to be dismissed vide order dated 5.2.2021, passed by Additional Sessions Judge Court No., 3, Allahabad. Revisional Court concurred with the view taken by concerned Magistrate. Revisional Court also observed that since Form-M.M-11 was not shown by driver at the time of interception of disputed vehicle, therefore, Rule 70 (6) of U.P. Minor Minerals (Concession) Rules 1963 stood violated.

¶13

Feeling aggrieved by orders dated 19.1.2021 and 5.2.2021, applicant has now approached this court by means of present application under section 482 Cr.P.C.

¶14

Learned counsel for applicant contends that applicant is registered owner of disputed vehicle i.e. UP 96T- 3191 as is clearly evident from documents pertaining to disputed vehicle, photo copies of which have been filed as Annexure-1 to the affidavit. It is next contended that disputed vehicle was being used for transporting minor mineral pursuant to Form M.M-11 duly issued in respect of minor mineral that was being transported. Photo copy of same has been brought on record as Annexure-2 to the affidavit. On the aforesaid premise, it is sought to be contended that it cannot be said that there was violation of Rules 70 and 70 (6) of U.P. Minor Minerals (Concession) Rules 1963 or Section 21 of Mines and Minerals (Regulation and Development) Act 1957. Courts below have failed to exercise their jurisdiction with due diligence. In addition to above, it is also submitted by learned counsel for applicant that disputed vehicle is lying unattended at Police StationGhoorpur, District-Allahabad along with minor mineral. Same is resulting in degradation of vehicle of applicant. No useful purpose shall be served by keeping the disputed vehicle under detention at above noted Police Station. On date a period of more than eight months have already elapsed, since the date disputed vehicle was seized.

¶15

Learned counsel for revisionist then contends that the issue with regard to release of minor minerals vehicle, goods, plants and

¶16

¶17

machinery, which have been seized pursuant to proceedings under the Mines and Minerals (Regulation and Development) Act 1957 as amended in 1963 and U.P. Minor Mineral (Concession) Rules 1963 has now been settled by a Division Bench of this Court in Rajendra Singh Vs. State of U.P. and others AIR 2015 Alld. 93 , wherein Court has held as follows in paragraphs 15, 16, 17, 18 and 19:-

¶18

" 15.In our opinion, the Act of 1957 contains a complete procedure for dealing with the commission of the offences; penalty to be imposed, compounding of the offences and disposal of the seized goods.

¶19

16.The Act contemplates compounding of an offence by authorized officer only, which in the facts of the case, would be the District Magistrate. But so far as the confiscation and disposal of the minerals, tool, vehicle etc. is concerned, the same is controlled by Section 21 (4) read with Section 21 (4A) of the Act 1957.

¶20

17.The procedure contemplated in respect of minerals,tool, vehicles involved in an offence under Section 21 (4) and Section 21 (4A) is :-

¶21

(a) the mineral, tool, vehicle etc. have to be seized by the officer/authority empowered for the purpose;

¶22

(b) The mineral, tool, vehicle etc. have to be confiscated under an order of the Court, Competent to take cognizance of the offence under Sub-Section (1) of Section 21;

¶23

(c) The mineral, tool, vehicle etc. have to be disposed of in accordance with the direction of such Court;

¶24

18.It is the competent court only, which can direct the disposal of the seized goods including the mineral plant and machinery etc.

¶25

19.In our opinion, the District Magistrate has no power whatsoever to deal with the seized minerals, tool, vehicle, plant and machinery etc. used in illegal activities as per the Act of 1957. The District Magistrate is not competent to release seized minerals, plant, machinery, vehicles etc. used offence under Section 21 of the Act 1957.

¶26

It is further submitted by learned counsel for applicant that in case any future liability is fixed upon applicant, same can be recovered from applicant as he is registered owner of disputed vehicle. The vehicle was seized in the month of December, 2020 and on date a period of more than 8 months have rolled by but no final orders have been passed by District Magistrate in exercise of powers under Rule 70 of U.P. Minor Minerals concession) Rules, 1963.

¶27

With regard to release of disputed vehicle reference is made to the judgement of Apex Court in Sunderbhai Ambalal Desai Vs. State of Gujarat, (2002) 10 SCC 283 where court has concluded that seized goods should normally be released unless the circumstances are exceptiional. Reliance is placed upon paragraphs 6,7 and 14 of the

¶28

¶29

judgement which read as under;

¶30

"6. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-

¶31

1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;

¶32

2. Court or the police would not be required to keep the article in safe custody;

¶33

3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

¶34

4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.

¶35

7. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and another, [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:-

¶36

"4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subjectmatter 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 it 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 inquiry 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

¶37

¶38

exercises an overall control on the actions of the police officers in every case where it has taken cognizance."

¶39

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.

¶40

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

¶41

Valuable Articles and Currency Notes

¶42

14.In our view, whatever be the situation, it is of no use to keep suchseized 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."

¶43

In the light of aforesaid, it is thus urged by learned counsel for applicant that impugned orders passed by Courts below, are, manifestly illegal. Same have resulted in miscarriage of justice. Elaborating his submission, learned counsel for applicant submits that Courts below have not adverted to the directions issued by the Apex Court in Sunderbhai Ambalal Desai (supra) nor have they adverted to the fact that the offence complained of against applicant is compoundable in terms of Section 23 A of the Mines and Minerals (Regulation and Development) Act, 1957 as well as Rule 70 of U.P. Minor Minerals (Concession) Rules 1963.

¶44

On the basis of aforesaid, it is urged by learned counsel for petitioner that once the offence complained of against applicant is compoundable, then in that eventuality the release application filed by applicant ought to have been allowed in view of aforesaid as well as the judgements referred to herein above. Thus, It is thus submitted that impugned orders passed by Courts below are therefore liable to be set quashed by this Court.

¶45

Per contra, learned A.G.A. has opposed this application. He contends that Courts below have not committed any illegality in passing the impugned orders. Orders impugned in present application have been passed on account of violation of mandatory provisions of U.P. Minor Minerals (Concession) Rules 1963. It is also submitted that since no final order has been passed by District Magistrate, regarding compounding of offences, no occasion arose before Court below to direct release of disputed vehicle. As such, present application is liable to be dismissed.

¶46

¶47

Before proceeding to consider the rival submissions urged by counsel for the parties, it is desirable to notice the provisions of Sections 21 and 23A of The Mines and Minerals (Regulation and Development) Act 1957 as well as Rule 70 of U.P. Minor Minerals (Concession) Rules 1963. For ready reference, same are reproduced herein under:

¶48

"Section 21 The Mines and Minerals (Development and Regulation) Act, 1957

¶49

Penalties.—(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punishable with imprisonment for a term which may extend to five years, and with fine which may extend to five lakh rupees per hectare of the area. (2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five lakh rupees], or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention.

¶50

(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.

¶51

(4) 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 shall be liable to be seized by an officer or authority specially empowered in this behalf.

¶52

(4-A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under subsection (1) and shall be disposed of in accordance with the directions of such court.]

¶53

(5) Whenever any person raise, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable."

¶54

Section 23A of the Mines and Minerals (Regulation and Development) Act, 1957, deals with compounding of offences. For ready reference same is reproduced herein under:

¶55

"Compounding of offences.--

¶56

(1) Any offence punishable under this Act or any rule made thereunder

¶57

¶58

may, either before or after the institution of the prosecution, be compounded by the person authorised under Section 22 to make a complaint, to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify:

¶59

Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine which may be imposed for that offence.

¶60

(2) Where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, in custody, shall be released forthwith." He has further invited the attention of the Court to the provisions of Rules 75 of the U.P. Minor Minerals (Concession) Rules 1963 which are as under:-

¶61

"75. Compounding of offence-(1) Any offence punishable under these rules may, either before or after this impution of the prosecution, be compounded by the District Officer or by such officer as the State Government may by general or special order authorise in this behalf on payment to the State Government of such sum as such officer may specify:

¶62

Provided that in the case of an offence punishable with fine only, no such sum shall exceed the maximum amount of fine, which may be imposed for that offence.

¶63

(2) Where an offence is compounded under sub-rule (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded and the offender if in custody, shall be released forthwith.

¶64

(3) The officer compounding the offence under sub-rule (1) shall maintain a register showing the following

¶65

details--

¶66

(a) Serial number (by financial year).

¶67

(b) Name and address of the offender.

¶68

(c) Date and details of offence.

¶69

(d) Sum of compounding amount and date of its payment.

¶70

(e) Signature of the officer with date and seal.

¶71

Rule 70 of U.P. Minor Minerals (Concession) Rules, 1963

¶72

70. Restriction on transport of the Minerals. - (1) The holder of a mining lease or permit or a person authorised by him in this behalf shall issue a pass in Form MM-11 to every person carrying, a

¶73

¶74

consignment of minor mineral by a vehicle, animal or any other mode of transport, the State Government may. through the District Officer, make arrangements for the supply of printed MM-11 Form books on payment basis.

¶75

(2) No person shall carry, within the State a minor mineral by a vehicle, animal or any other mode of transport, excepting Railway, without carrying a pass in Form MM-11/ Form e-MM-11 issued under sub-rule (1), Form-C issued under Rule 5 (2) of the Uttar Pradesh Mineral (Prevention of Illegal Mining, Transportation and storage) Rules, 2002 or similar valid transit pass issued by any other State:

¶76

Provided that if the State Government enters into an agreement to collect the Royalty through contractor, receipt of royalty or zero receipt as the case may be shall be issued by such contractor and in such cases carrying out such receipt with Form MM-11/form e-MM11 will be mandatory for transportation:

¶77

(3) Every person carrying any minor mineral shall, on demand by any officer authorised under Rule 66 or such officer as may be authorised by the State Government in this behalf, so the said pass to such officer and allow him verify the correctness of the particulars of the pass with references to the quantity of the Minor Mineral.

¶78

(4) The State Government may establish a check post for any area included in any mining lease or permit and when a check post is so established public notice shall be given to this fact by publication in the Gazette and in such other manner as may be considered suitable by the State Government.

¶79

(5) No person shall transport a minor mineral for which these rules apply from such area without first presenting the minor mineral at the check post established for that area for verification of the weight or measurement of the mineral.

¶80

(6) Any person found to have contravened any provision of this rule shall on, conviction, be punishable with imprisonment of either description for a term which may extend to six months or with fine which may extend to Twenty Fiver Thousand rupees of with both.

¶81

Learned counsel for revisionist submitted that the disputed vehicle was seized in the month of August, 2017. On the aforesaid premise, it is submitted that in view of the law laid down by the Apex Court in the case of Sunderbhai Ambalal Desai Vs. State of Gujarat, reported in 2003 (46) ACC, 223, the C.J.M., Kaushambi, ought to have released the seized vehicle in favour of the revisionist after taking recourse to any of the safeguards as mentioned in aforesaid judgement itself.

¶82

It is thus apparent that power regarding compounding of offence is with the District Magistrate, but the power to release the seized minor mineral and goods is with the Court, In the present case, the A.C.J.M., Allahabad, where the complaint has been filed.

¶83

¶84

In the case in hand, no material has been brought on record to show that final adjudication has been made by District Magistrate Kaushambi against applicant in exercise of powers under section 23 of Mines and Minerals (Regulation and Development) Act, 1957 nor under Rule 70 of U.P. Minor Minerals (Concession) Rules, 1963. Vehicle of applicant was seized in December 2020. On date a period of more than 8 months has rolled by from the date of seizure of the disputed vehicle.

¶85

Case in hand is not such a case where exceptional circumstances exists on the basis of which release of disputed vehicle prayed for by applicant could be denied. The disputed vehicle is lying parked at Police Station Ghoorpur. Allowing the disputed vehicle to remain seized, will not serve any purpose.

¶86

Learned A.G.A. could not dispute the Form MM 11 relied upon by applicant, copy of which has been appended as Annexure-2 to the affidavit. Furthermore, learned A.G.A. could not place any such material or fact so as to deny the benefit of the judgement of Apex Court in Sunderbhai Ambalal Desai (supra) to applicant.

¶87

For the facts and reasons noted above, present application succeeds and is liable to be allowed. Accordingly, impugned orders dated 19.1.2021, passed by Additional Chief Judicial Magistrate, Court No. 17 Allahabad in Complaint Case No. 1658 of 2020 (State Vs. Pushpendra Singh), Police Station- Ghoorpur, District Prayagraj as well as judgement and dated 5.2.2021 passed by Additional Sessions Judge, Court No.3, Allahabad in Criminal Revision No. 11 of 2021 (Pushpendra Singh Vs. State) are liable to be quashed.

¶88

Application is allowed. Impugned order dated 19.1.2021, passed by Additional Chief Judicial Magistrate, Court No. 17 Allahabad in Complaint Case No. 1658 of 2020 (State Vs. Pushpendra Singh), Police Station- Ghoorpur, District Prayagraj as well as judgement and order dated 5.2.2021 passed by Additional Sessions Judge, Court No.3, Allahabad in Criminal Revision No. 11 of 2021 (Pushpendra Singh Vs. State) are quashed. Additional Chief Judicial Magistrate, Court No.17, Allahabad shall pass a fresh order on the release application filed by applicant keeping in view the observation made above, within a period of one month from the date of presentation of a certified copy/computerized copy of this order, which shall be filed by applicant before court concerned by means of a Notary Affidavit.

¶89

Order Date :- 12.11.2021 Arshad

Pushpendra Singh v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Pushpendra Singh v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shiv Prasad and Another Vs Board of Revenue and 7 Ors.

Ramesh Mishra Vs State of U.P. and 6 Others

Smt. Geeta Devi Vs District Magistrate and 2 Others

Sanjay Kumar Verma Vs State of U.P. and 8 Others

Sarvjeet Singh Kushwaha Vs State of U.P. and 5 Others

Vishwajeet Pathak Vs State of U.P. and 6 Others