Disposed

Hitesh Kumar v. State of Rajasthan

Rajasthan HC20 Sept 2021CRLMP/4874/2021

Case brief

AI extract

What is this about?

The seized-vehicle release dispute was disposed of by applying Kalu. The incorporated directions permit release only where confiscation proceedings have not begun, subject to a bank guarantee securing compensation or compounding fee and prescribed safeguards.

What did the court decide?

Conditional vehicle release in terms of Kalu, subject to verification that confiscation proceedings are not pending, a bank guarantee and prescribed safeguards.

Hitesh Kumar Vs State of Rajasthan — Mining and Natural Resources | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc(Pet.) No. 4874/2021

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Hitesh Kumar S/o Sh. Mohan Lal, Aged About 30 Years, Bera Daliya, Teh. And Dist. Jalore.

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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----Respondent

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For Petitioner(s)	: Mr. Girish Sankhla
For Respondent(s)	: Mr. DigvijaySingh Jasol,AGC

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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20/09/2021

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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.

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Counsel for the parties agree that the controversy involved in this petition is covered by judgment passed by this Court in Kalu Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.4975/2021, decided on 18.09.2021), which reads as follows :-

¶14

“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. This criminal misc. petition under Section 482 Cr.P.C. has been preferred claiming the following reliefs:

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“It is, therefore, humbly and respectfully prayed that this Criminal misc. petition of the Petitioner may kindly be allowed and the order dated 23.04.2021 in Criminal misc. application u/s 457 Cr.P.C. by which learned Additional Chief Judicial Magistrate Jahajpur, District Bhilwara, imposed the conditions and ordered to deposit the compounding fee within 15 days and rejected the prayer of the applicant/petitioner under section 457 of Cr.P.C. for releasing the seized vehicle, and against the order dated 13.08.2021 passed by the learned Additional

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(2 of 30)

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Sessions Judge Shahpura camp Jahajpur, District Bhilwara (Raj.) in criminal revision no.28/2021 Kalu versus State, by which revision petition of the petitioner was rejected and affirmed the order passed by the A.C.J.M. Jahajpur, may kindly be quashed and set aside to the extent that order to the petitioner, for depositing the amount as pre condition and directions may kindly be issued to the respondents to release the vehicle trailor no. RJ 06 GB 8112, chassis number MBIUPDHDXGRTR6190, of the petitioner on supurdginama without insisting for payment of compounding/penalty amount.”

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3. While taking into consideration the contextual facts of this case and upon a perusal of the record, this Court finds that the present case is covered by the judgment rendered by this Court in Kishore Singh Vs. State of Rajasthan (S.B. Criminal Misc(Pet.) No. 3595/2021, decided alongwith other connected petitions, on 15.09.2021) . The said judgment dated 15.09.2021 reads as under:

¶20

“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.

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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.

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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.

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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.

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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.

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(3 of 30)

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Criminal Misc. Petition No.742/2021) alongwith other connected petitions, decided on 16.02.2021.

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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) .

¶29

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.

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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:

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

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

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(1) . . . . . . .

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(2) . . . . .

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(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:

¶36

Provided that the Additional Director Mines, Superintending Mining Engineer, Superintending Mining Engineer(vigilance), Mining Engineer, Mining Engineer (vigilance), Assistant Mining Engineer, Assistant Mining Engineer (vigilance), Mines Foreman, Surveyor or any other officer or official authorised by the Government, Director or Additional Director Mines may either before or after the institution of the prosecution, compound the offence committed in contravention of the sub-rule (1) and (2) on payment of cost of mineral and compound fee as mentioned below: -

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*S.N*	*Vehicle/Equipment*	*Compound fee (in* *Rs.) per unit*
1	2	3
1.	Tractor trolley	Twenty five
		thousand
2.	Half Body Truck	Fifty thousand

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3.	Full Body	Truck, Dumpers,	One lacs
	Trolla, Wi	re saw, crane,
	excavator,	loader, power
	hammer, co	mpressor, drilling
	machine etc.

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Note: - Cost of the mineral shall be taken as ten times of royalty in lieu of rent, royalty, compensation for environmental degradation and tax chargeable on the land occupied without lawful authority, etc..

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Provided that the amount of compound fee in cases other than specified as above shall not be less than rupees twenty thousand and shall be in addition to the cost of mineral.

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(4) Where any person trespasses on any land in contravention of the provisions of sub-rule (1), such trespasser may be served with an order of eviction by the Additional Director Mines, Superintending Mining Engineer, Superintending Mining Engineer (vigilance), Mining Engineer, Mining Engineer (vigilance), Assistant Mining Engineer, Assistant Mining Engineer (vigilance), District Collector, Sub-Divisional Officer, Tehsildar, Deputy Conservator of Forest (in forest land), Assistant Conservator of Forest (in forest land), Regional Forest Officer (in forest land), Revenue Intelligence Officer of State Directorate of Revenue Intelligence (SDRI), Mines Foreman, Surveyor or any other officer or official authorised by the Government, Director or Additional Director Mines in this behalf.

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(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. along with 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:

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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.

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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).

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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).

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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.

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(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:

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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.

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(7) Where the person committing an offence under these rules is a company registered under Companies Act, every person who at the time when the offence was committed, was incharge and was responsible to the company for conduct of the business of the company, shall be deemed to be guilty of the offence and shall be liable to be prosecuted and punished accordingly:

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(8) The mines, revenue, police and transport department shall made coordinated efforts to vigil illegal mining or transportation of the mineral.”

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Sections 52 to 56, 60 & 68 of the Rajasthan Forest Act, 1953 :

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“52. Seizure of property liable to confiscation. - (1) When there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, boats, carts, trucks, or any other vehicle, or cattle used in committing any such offence, may be seized by any Forest Officer or a Police Officer not below the rank of a head constable.

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(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made or to his official Superior whoever may be nearer.

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Provided that, when the forest produce with respect to which such offence is believed to have been committed is the property of State Government and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.

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53. Power to release property seized under Section 52. - Any forest officer of a rank not inferior to that of a Ranger who, or whose subordinate, has seized any tools, boats, carts, trucks, or cattle under Section 52, may release the same on the execution by the owner thereof of (a bond for the production of the property so released when and where required to produce the same.

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54.Subsequent procedure. - (1) When a report is made by any officer under subSection (2) of Section 52 to his official superior, such official superior shall, with all convenient despatch, make a report of the seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

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(2) The Magistrate shall, upon receipt of a report under sub-Section (2) of Section 52 or under sub-Section (1) of this section, take such measures including arrest as may be necessary for the attendance and trial of the offender and the disposal according to law of the property seized.

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55. Forest produce, tools etc. when liable to confiscation. -(1) All timber or forest produce which is not the property of State Government and in respect of which a forest offence has been committed, and all tools, boats, carts, trucks and cattle used in committing any forest offence, shall, subject to the provisions of Section 52, 52A, 52B and 52C be liable to confiscation upon conviction of the offender for such forest offence.

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(2) Such confiscation may be in addition to any other punishment prescribed for such offence.

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56. Disposal on conclusion of trial for forest offence, of produce in respect of which it was committed. - When the trial of any forest offence is concluded, any forest produce in respect of which such offence has been committed shall, if it is the property of State Government or has been confiscated, be taken charge of by a Forest Officer, and in other case, may be disposed of in such manner, as the Court may direct.

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60. Property when to vest in State Government. - When an order for the confiscation of any property has been passed under Section 55 or section 57, as the case may be, and the period limited by section 59 for an appeal from such order has elapsed, and no such appeal has been preferred, or when, on such an appeal being preferred, the Appellate Court confirms such order in respect of the whole or a portion of such property, such property or such portion thereof, as the case may be, shall vest in the State Government free from all encrumbrances. 68. Power to compound offence. - (1) The State Government may by notification in the Official Gazette empower a Forest Officer-

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(a) to accept from any person against whom a reasonable suspicion exists that he has committed any forest offence other than an offence specified in Section 62 or Section 53 a sum of money by way of compensation for the offence which such person is suspected to have committed, and

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(b) when any property has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer.

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(2) On the payment of such sum of money or such value or both as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any seized shall be released and no further proceeding shall be taken against such person or property.

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(3) A Forest Officer shall not be empowered under this section unless he is a Forest Officer of a rank not inferior to that of a Ranger and is in receipt of a monthly salary amounting to at least one hundred rupees.”

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9. Learned counsels for the petitioners further submitted that the core law with regard to release of different goods/vehicles in different circumstances, as involved herein, has already been laid down by the Hon’ble Supreme Court in Sunderbhai Ambalal Desai (supra) , relevant portion of which reads as under:

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“8. 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 orna	ments 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,

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the Court observed as under:-

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"4. 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 ab	solutely
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

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(8 of 30)

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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 c	ompelling
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
proceede	d 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

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case where it has taken cognizance."

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9.	The	Court	further obser	ved	that
where	the	property	is stolen,	lost	or
destroyed	and	there	is no p	rima	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

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value of the property.

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10. To avoid a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. 17. 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. 21. 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

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High Court in seeing that the rules framed by the High Court with regard to such

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articles are implemented properly.”

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10. Learned counsels for the petitioners have also emphasized upon the judgment rendered by a Division Bench of this Hon’ble Court at Jaipur Bench in Laxman Vs. State of Rajasthan, reported in (2018) 0 Supreme (Raj.) 420 , in which the Hon’ble Division Bench of this Court has dealt with the issue at large. The relevant portion of the said judgment reads as under:

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“13. We have given our anxious and thoughtful consideration to rival submissions and carefully studied the precedents cited at the bar.

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14. Learned Single Judge in making present reference has, apart from taking note of the conflict between two set of judgments by different Single Benches of this Court, also referred to the judgment in State (NCT of Delhi) v. Narender - (2014) 13 SCC 100 , by observing that the Supreme Court, while dealing with the pari materia provision of Delhi Excise Act, 2009, especially Section 61 thereof, held that that provision bars a criminal court to make order with regard to release of the property used in committing the offence under the Act. A careful reading of the MMDR Act

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shows that there is no provision therein which is in pari materia with or similar to Section 61 of the Delhi Excise Act, that was considered by the Supreme Court in State (NCT of Delhi) v. Narender, supra. Section 33 of the Delhi Excise Act provides penalty for unlawful import, export, transport, manufacture, possession, sale, etc. of any intoxicant and Section 58 of the said Act which provides for confiscation of certain things used for carrying such intoxicants. Latter of this provision may be, to some extent, said to be similar to Section 21 of the MMDR Act. Apart from this, Section 59(1) of the Delhi Excise Act provides that notwithstanding anything contained in any other law where anything liable for confiscation under Section 58 is seized or detained, the officer seizing and detaining such thing shall produce the same before the Deputy Commissioner. On production of the seized property, the Deputy Commissioner, if satisfied that the offence under the Act has been committed, may order confiscation of such property. It is upon consideration of the said scheme of the Delhi Excise Act, and especially owing to consideration of bar contained in Section 61, that the Supreme Court in para 11 of the report, held thus:-

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"11. Section 61 of the Act puts an embargo on jurisdiction of courts, the same reads as follows:

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"61. Bar of jurisdiction in confiscation.- Whenever any intoxicant, material, still, utensil, implement, apparatus or any receptacle, package, vessel, animal, cart, or other conveyance used in committing any offence, is seized or detained under this Act, no court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, have jurisdiction to make any order with regard to such property."

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According to this section, notwithstanding anything contrary contained in any other law for the time being in force, no court shall have jurisdiction to make any order with regard to the property used in committing any offence and seized under the Act."

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15. In taking that view, the Supreme Court also relied on its earlier judgment in State of Karnataka v. K.A. Kunchindammed - (2002) 9 SCC 90, in which the Supreme Court in para 23 of the judgment held as under:-

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"23..........The position is made clear by the non obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorized Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under CrPC has to give way. The Magistrate while dealing with a case of

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any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorized Officer under the Act and if he finds that such power is vested in the Authorized Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.

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24. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorized Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis."

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16. However, there is no pari materia or similar provision in the whole of the MMDR Act giving overriding effect to its provision over those of the Cr.P.C. or otherwise creating any embargo on the powers of the Magistrate/the Court under the Code of Criminal Procedure to deal with the application under Section 451/457 for release of the vehicle etc.

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17. MMDR Act has been enacted with a view to provide for development and regulation of mines and minerals. Section 4 of the MMDR Act ordains that no person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder. Sub-section (1A) of Section 4 provides that no person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. Section 21 of the MMDR Act deals with penalties. Sub-section (1) of Section 21 of the MMDR Act provides that whoever contravenes the provisions of sub-section (1) or sub-section (1A) of Section 4 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 the mined area, or with both. Sub-section (4) of Section 21 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, the same shall be liable to be seized by an officer or authority specially

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empowered in this behalf. Sub-section (4A) of Section 21 provides that 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.

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18. The legislative policy, as seen from the aforesaid provisions is that if the vehicle without any lawful authority is found to be carrying any mineral, the same shall not only be liable to be seized but also confiscated. While the power of seizure has been conferred on an officer and authority specially empowered in this behalf, the power to make confiscation has been vested in the court competent to take cognizance of the offence under subsection (1) of Section 21. Section 15 of the MMDR Act refers to the power of the State Government to make Rules, for regulating the grant of quarry. It is in exercise of this power that the State Government promulgated the RMMC Rules of 1986. Chapter-VI of the RMMC Rules, 1986 (amended up to May 16, 2016) deals with offences, penalties and prosecutions. The first proviso to subrule (5) of Rule 48 of the Rules of 1986 empowers the authorities mentioned in subrule (4) to seize the vehicle etc if found involved in unlawful mining activities in contravention of the terms and conditions of granting lease/quarry license, short term permit or any other permit. Where, however, mineral has been dispatched or consumed, the authorities mentioned in sub-rule (4) have been empowered to recover the costs of such rent, royalty on the land occupied or mineral excavated, which will be computed as royalty payable at prevalent rates. Second proviso to sub-rule (5) of Rule 48 stipulates that every officer seizing any property or mineral under this rule shall give a receipt thereof and shall make a report of such seizure to his superior officer or Magistrate having jurisdiction over the area to try offence. Sub-rule (6) of the Rule 48, however, confers power on the officer, who seizes the property in execution of a bond by the trespasser or the owner of the property or any other person to the satisfaction of such officer that the property so released shall be produced at the time and at the place when such production is required by such officer. This is, however, subject to a rider contained in proviso thereto that where a report has been made to the Magistrate under sub-rule (5), the property shall be released only under the orders of the Magistrate. Sub-rule (7) of Rule 48 further provides that all property seized under this rule shall be liable to be confiscated by an order of Magistrate trying the offence if the rent, royalty or tax or/and cost of the mineral as mentioned above, are 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 effected by the time. The proviso to sub-rule (7) of Rule 48, however, stipulates 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/owner of the property.

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19. The RMMC Rules of 1986 were substituted by the Rajasthan Minor Mineral Concession Rules, 2017 (for short, the Rules of 2017), which were promulgated on 28.02.2017. Chapter X of the Rules of 2017 deals with the offences, penalties and prosecution. Rule 54 of the Rules of 2017 contains provisions substantially similar to those of Rule 48 of the RMMC Rules of 1986 but this Rule has now apparently made certain changes. Sub-rule (3) of Rule 54 provides that whoever contravenes the provisions of subrule (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. However, a power has been conferred on the named authorities in the proviso thereto that anyone of them may either before or after institution of the prosecution, compound the offence committed in contravention of the sub-rule (1) and (2) on payment of cost of mineral and compound fee, as mentioned therein. But the note there below provides that cost of the mineral shall be taken as ten times of royalty in lieu of rent, royalty, compensation for environmental degradation and tax chargeable on the land occupied without lawful authority etc. Sub-rule (5) of Rule 54 further provides that whenever any person, without a lawful authority, apart from other things, bring on the land any tool, equipment, vehicle or other thing, the same along with 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. First proviso to sub-rules (5) and (6) of Rule 54 of the RMMC Rules of 2017, however, made a substantial deviation from the earlier position.

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20. First proviso to sub-rule (5) of Rule 54 provides 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. The first proviso to sub-rule (6) provides 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. There is thus deviation from the earlier position obtaining in Rule 48 of the RMMC Rules of 1986, by stipulating in the first proviso to Rule 54(5), supra, that the officer concerned may handover the property or mineral so seized to the nearest police station or police chauki. Second proviso to Rule 54(5) is to the effect that the seized property may be released after deposition of cost of mineral along with the compound fees as specified in sub-rule (3). Third proviso to Rule 54(5) provides that if the mineral 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 therein. Fourth proviso to Rule 54(5) provides 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. Therefore a discretion has been conferred on the seizing officer to handover the vehicle, which is what we are concerned in the present case, to the nearest police

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station or police chauki or otherwise release the same on deposition of the cost of mineral along-with compounding fee referred to therein as per prescription made in sub-rule (3) of Rule 54 and if the vehicle is not released by him, then to simultaneously make a report thereof within seventy two hours to his superior officer and to the Magistrate having jurisdiction, which provision was also therein proviso to sub-rule (6) of Rule 48 of the RMMC Rules of 1986. The difference which is now found in the fourth proviso to sub-rule (5) of Rule 54 of the RMMC Rules of 2017 is that such report shall be made to superior officer and also to the Magistrate having jurisdiction within seventy two hours. The obvious purpose for this deviation is that a vehicle should not remain under the control of the seizing officer/the officers of the Mining Department for an unduly long period of time. This clearly indicates intention of the rule making authority that the officer of the mining department would have power to release the vehicle on conditions enumerated therein, however, if no one approaches him within seventy two hours, he "shall make a report of such seizure" to "his superior officer and to the Magistrate having jurisdiction". In other words, he would retain the power to release the vehicle himself until the expiry of seventy two hours, where after he is mandatorily required to report the matter to his superior officer as also to the Magistrate having jurisdiction. In that event, only the Magistrate having jurisdiction to try the offence shall have power to release the vehicle. Sub-rule (7) of Rule 54 of the Rules of 2017 in this behalf provides that 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. But proviso to Rule 54(5) stipulates 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.

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21. 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 Ramswaroops case, which was later followed in Mala Rams, 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 Ramswaroops case on 28.08.2015, in his earlier judgment dated 26.10.2012 in Muknaram v. 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 realisation of the

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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.

¶121

22. 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.

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23. We accordingly answer the reference.

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24. Office to place a copy of this judgment in all connected files.

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25. Matters may now be placed before the concerned Bench for appropriate

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orders.”

¶126

11. On the other hand, Mr. Digvijay Singh Jasol, learned Additional Government Counsel for the respondent has vehemently submitted that the core law is against the present petitioners, and the legislature has consciously framed the mining laws and forest laws to make it more harsh for the vehicle(s) to be released, so as to ensure that in case of release of such vehicle(s), it must not enhance the prospects of illegal mining, as the vehicle(s) is the basic tool and means used for the said purpose, followed by unlawful and illegal transportation of the mineral and the forest produce.

¶127

He has submitted reply to some of the petitions, which for ready reference, as summarized by him, reads as under:

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*Sr. No. in* *Cause List*	*Mines /* *Forest*	*Vehicle* *Release /* *Quashing of* *FIR*	*Facts of the case in brief*	*Judgment /* *Order* *Applicable*
12	Mines,	Release of	Police detained the tractor	Order dated
Kishore Singh	Udaipur	Vehicle	while it was in the catchment area of Jasamand Lake with bajri, approx. 4 tons; which the driver emptied on seeing the police. The NGT has imposed a blanket ban on excavation from the catchment area of Jaisamand lake.	06.10.20 passed by NGT in Nanga Ram Dangi matter. Khem Singh Order.
14 Ram Singh	Mines, Sojat	Release of Vehicle	The vehicle (Tractor) of the petitioner was seized by the police when found to be transporting bajri without valid e-rewana and such	Khem Singh Order.

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15 Narendra Singh 16 Avtar Singh	(16 Mines, Amet Release of Vehicle Mines, Bhilwara Release of Vehicle	of 30) [CRLMP-4 transportation of mineral comes under illegal mining and therefore the petitioner was asked to pay the compounding fee and the penalty for release of vehicle. The penalty amount raised by the department has been upheld by the learned court below. It is pertinent to mention here that along with the present vehicle in question there were 2 other tractors that were caught by the Police and as per the police report the drivers of the vehicles had emptied the trolly of the bajri that they were carrying. Out of the three tractors and trollies, 2 have already paid the penalty amount and only the petitioner’s vehicle is left. The facts of the case are that the vehicle (Tractor) of the petitioner was seized when found to be transporting bajri without valid e-rewana on 30.04.2020 and hence such transportation of mineral comes under illegal mining. Therefore the petitioner was asked to pay the compounding fee and the penalty amount of Rs 1,26,400/- for release of vehicle. The vehicle of the petitioner was seized by the SDM when found to be transporting bajri without valid e-rewana and such transportation of mineral comes under illegal mining and therefore the petitioner was asked to pay the compounding fee and the penalty amount of	874/2021] Khem Singh Order Khem Singh Order

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			Rs 1,26,400/- for release of vehicle
17 Gordhan @ Goverdhan	Mines, Chittorgarh	Release of Vehicle	The vehicle (Tractor) of the petitioner was seized by the police on 06.03.2020 from river Banas along with 5 other tractors and 2 JCB’s and were found to be engaged in excavation and transportation of bajri.	Khem Singh Order
18 Rampal	Mines, Gotan	Release of Vehicle	The facts of the case are that the police seized the vehicle in question for transportation of bajri without valid permission. Thereafter the police informed the mining department of the seizure and on 31.07.2021 the official of the mining department inspected the vehicle and found the trolley full of bajri. Upon enquiry it was found that there was no valid e-ravana issued to transport the bajri and therefore as per the rules and NGT order a penalty of Rs 1,	Khem Singh Order
			26,750 has been imposed
19 Bhupendra	Mines, Bhilwara	Release of Vehicle	*Reply needs to be filed*
Singh
20 Prabhulal Gurjar	Mines, Bhilwara	Release of Vehicle	Vehicle is detained for misuse of e-ravana no.0UBS1035823538 issued in his favour from ML No.8/2020 and soon after the issuance it is confirmed after 1 minute of its issuance at Sojat city. Annex.R/ 1 is the report of the Jalore ME.(*Pg37* ) *Additional Affidavit filed* *showing the ravana issued at* *Samdari is confirmed within 1* *minute at Sojat City* .	Amounts to illegal mining and is covered by Khem Singh and Ganga Ram order.

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21	Mines,	Release of	Tractor found to be	Khem Singh
Dinesh	Bhilwara	Vehicle	transporting Bajri without valid e-ravana. Violation of	order.
			Rule 54 & 60
22	Forest,	Release Of	Petitioner’s vehicle was	State of
Ganeshdas Vairagi	Udaipur	Confiscated Vehicle	apprehended while transporting Kher wood weighing 10 tons illegally with valid transit permit issued by the forest department. It is submitted that the Kher Wood is a very expensive wood used in making of katha and is banned in Rajasthan. The wood was confiscate along with the vehicle after granting opportunity of hearing to the petitioner. After hearing the petitioner the vehicle of the petitioner came to be confiscated. Since the wood itself is banned in Rajasthan there can be no question of issuance of permit by the forest department. The petitioner preferred an appeal under the Rajasthan Forest Act, 1965 which came to be dismissed and the confiscation of vehicle was confirmed. Therefore the learned Magistrate Court’s jurisdiction is barred by law for release of vehicle.Section 56 deals with the disposal of the forest produce or the confiscated property after conclusion of trial, which may be disposed of in such manner	Madhya Pradesh Vs. Uday Singh (Criminal Appeal No.524 of 2019) decided on 26.03.2019 by the Hon’ble Supreme Court.
			as the court ma direct
23 Devi Lal	Mines, Bhilwara	Release of Vehicle	y . Tractor found to be transporting Bajri without valid e-ravana. Violation of Rule 54 & 60	Khem Singh order.

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24 Daya Ram	Forest, Churu Release Of Confiscated Vehicle	Petitioner’s vehicle was stopped by the police while khejri and kekar wood was being transported illegally with valid transit permit issued by the forest department. The wood was freshly cut. The wood was confiscate along with the vehicle after granting opportunity of hearing to the petitioner. The petitioner failed to present valid permit issued by the forest department and therefore the vehicle was confiscate. The petitioner preferred an appeal under the Rajasthan Forest Act, 1965 which came to be dismissed and the confiscation of vehicle was confirmed. Therefore the learned Magistrate Court’s jurisdiction is barred by law for release of vehicle.Section 56 deals with the disposal of the forest produce or the confiscated property after conclusion of trial, which may be disposed of in such manner	State of Madhya Pradesh Vs. Uday Singh (Criminal Appeal No.524 of 2019) decided on 26.03.2019 by the Hon’ble Supreme Court.
		as the court may direct
25	Forest, Release Of	. Petitioner’s vehicle was	State of
Dharmveer	Churu Confiscated Vehicle	stopped by the police while khejri and kekar wood was being transported illegally with valid transit permit issued by the forest department. The wood was freshly cut. The wood was confiscate along with the vehicle after granting opportunity of hearing to the petitioner. The petitioner failed to present valid permit issued by the forest department and	Madhya Pradesh Vs. Uday Singh (Criminal Appeal No.524 of 2019) decided on 26.03.2019 by the Hon’ble Supreme Court.

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(20	of 30) [CRLMP-4 therefore the vehicle was confiscate. The petitioner preferred an appeal under the Rajasthan Forest Act, 1965 which came to be dismissed and the confiscation of vehicle was confirmed. Therefore the learned Magistrate Court’s jurisdiction is barred by law for release of vehicle.Section 56 deals with the disposal of the forest produce or the confiscated property after conclusion of trial, which may be disposed of in such manner as the court may direct .	874/2021]
26 Forest, Release of	Petitioner’s vehicle was	State of
Devi Lal Churu Confiscated Vehicle	stopped by the police while khejri and kekar wood was being transported illegally with valid transit permit issued by the forest department. The wood was freshly cut. The wood was confiscate along with the vehicle after granting opportunity of hearing to the petitioner. The petitioner failed to present valid permit issued by the forest department and therefore the vehicle was confiscate. The petitioner preferred an appeal under the Rajasthan Forest Act, 1965 which came to be dismissed and the confiscation of vehicle was confirmed. Therefore the learned Magistrate Court’s jurisdiction is barred by law for release of vehicle.Section 56 deals with the disposal of the forest produce or the confiscated property after	Madhya Pradesh Vs. Uday Singh (Criminal Appeal No.524 of 2019) decided on 26.03.2019 by the Hon’ble Supreme Court.

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		(21	of 30) [CRLMP-4 conclusion of trial, which may be disposed of in such manner as the court may direct .	874/2021]
27	Mines,	Release of	Tractor found to be	Khem Singh
Shaitan Singh	Bhilwara	Vehicle	transporting Bajri without valid e-ravana. Violation of Rule 54 & 60	Order.
28	Mines,	Release of	Tractor found to be	Khem Singh
Kalu Lal	Bhilwara	Vehicle	transporting Bajri without valid e-ravana. Violation of Rule 54 & 60	Order.
29	Mines,	Release of	Tractor found to be	Khem Singh
Barda Lal	Bhilwara	Vehicle	transporting Bajri without valid e-ravana. Violation of Rule 54 & 60	Order.
30	Mines,	Release of	Tractor found to be	Khem Singh
Barda Lal	Bhilwara	Vehicle	transporting Bajri without valid e-ravana. Violation of Rule 54 & 60	order.
31 Prakash Ram	Mines, Nagaur	Release of Vehicle	Police found the dumper to be transporting bajri without valid e-ravana or E-TP. The Driver then tried to flee the area and while doing so he emptied the bajri while on the move. Finally he was nabbed and vehicle was seized by the police	Khem Singh Order.
32 Ganga Ram	Mines, Udaipur	Release of Vehicle	. A team was constituted for inspection the catchment area of Jaisamand Lake and the two Home Guards on duty found that the petitioner’s vehicle (Tractor) was engaged in illegal mining. When the two guards tried to stop the excavation abuses were hurled at the guards and persons present tried to snatch the arms of the guards. When the guards tried to video graph their mobiles were snatched.	Order dated 06.10.20 passed by NGT in Nanga Ram Dangi matter. Khem Singh order.
33 Nema Ram	Mines, Sojat City	Release of Vehicle	The vehicle (Tractor) of the petitioner was seized found to	Khem Singh Order.

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	(22	of 30) [CRLMP-4 be transporting bajri without valid e-rewana and such transportation of mineral comes under illegal mining and therefore the petitioner was asked to pay the compounding fee and the penalty amount of Rs 1,27,100/- for release of vehicle. The petitioner claimed that he was carrying the bajri which he has stocked at his place which he arranges from ML No.72/19 near Rohet which is in the name of Shobha Ram. Samples were collected from the stock pile as well as from the mining lease area and it was found that the bajri that the petitioner was found to be transporting is different and therefore the petitioner cannot lawfully prove valid	874/2021]
		transportation of mineral bajri
34 Kishan @ Krishna	Mines, Jodhpur Release of Vehicle	. The petitioner has come before this Hon’ble Court with a case that the vehicle of the petitioner was seized by the authorities from an agricultural field whereas the fact of the matter is that the excavator of the petitioner was found excavating bajri along with other 2 vehicles. Upon careful examination of the site it was found that fresh excavated pits of 35mt x 27mt x 1.5mt was there and3,189.375 tons of bajri was excavated. As per the Rules of 2017 excavating without valid permission attracts 10 times penalty of the royalty value of	Khem Singh Order.

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35 Megh Singh	(23 Mines, Sojat Release of Vehicle	of 30) [CRLMP-4 the mineral and in the present case it is 3189.375 x 350 = 1116281.25/- and 1 Lakh is the compounding fee for the release of the vehicle The facts of the case are that in pursuance of order dated 16.11.2017 passed by the Hon’ble Supreme Court in SLP No.34134/2013 the Office of the Mining Engineer, Sojat City, Mr Pradhuman Singh along with Home Guards went on to do the rounds of the river area on 23.05.2021 at 11pm near village Panchuda Kala, Tehsil Sojat, District Pali. When the team reached on a surprise inspection of the river area it was found that a tractor and trolley was filling bajri in the trolley. Upon seeing the officials of the mining department and their official vehicle the driver tried to empty the trolley with the help of hydraulic lift but was timely stopped. It was enquired from the driver Laxman Singh (Son of Petitioner Megh Singh) who the owner of the vehicle is and it was revealed that the petitioner is the owner. At this point the driver in order to escape tried to run over the vehicle on Mr. Pradhuman Singh with intent to kill or cause bodily inquiry. Mr. Pradhuman Singh saved himself by jumping aside and hurt himself. In this mele the driver succeeded in taking	874/2021] Khem Singh Order

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	(24	of 30) [CRLMP-4 away the tractor. The Mining Officials chased the tractor and it was found that the tractor was left at a abandoned location in the village. This incident was reported to the police and FIR No.53/2021 came to be registered against the petitioner under section 323, 353 and 379 I.P.C	874/2021]
244 Ram Lal		Copy of Petition not provided. Reply needs to be filed.
321	Mines, Quashing of	Upon receiving an information	Kanwar Pal
Krishan Kumar	Jodhpur FIR	of illegal mining, the Mining Officials in order to put a stop to illegal mining from River Luni in Bilara area conducted a surprise inspection and found that 2 dumpers and a hydrolic excavator were engaged in excavation and the drivers of the vehicle and petitioner engaged in scuffling with the inspection team including home guards. It was found that a pit of 35mt x 27mt x 1.5mt was freshly excavated amounting to 3189.375 ton of bajri. The excavator was seized but because it wa not possible for the respondent authorities to take it from the place if incident it was handed over to the petitioner. It is pertinent to mention here that the petitioner has also preferred a 482 petition for release of the hydrolic excavator, S.B. Criminal Misc. Petition No.3956/2021 (Kishan @ Krishna Vs. State of Rajasthan & Ors) which is also pending	Singh Vs State of UP & Anr. (Criminal Appeal No.1920/2019 decided on 18.12.2019 & S.B. Crl Misc. Petition No.1839/2020 Gopal Singh Vs. State of Rajasthan.

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consideration before this
Hon’ble Court. A huge
recovery of Rs 11,16,281.25 is
pending against the petitioner
for theft of mineral Bajari.

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12. Learned Additional Government Counsel has referred to the order dated 19.09.2018 passed by the Hon’ble National Green Tribunal, Principal Bench, New Delhi in Nanga Ram Dangi Vs. Secretary, Department of Environment & Forests & Ors. [Original Application No.140/2014 (M.A. No.198/2017)] , whereby the Hon’ble Tribunal had taken a strict view regarding recovery of compensation amount of Rs.1,00,000/- each from the persons, who, at the relevant time, were currently found to have been involved in illegal mining in the catchment of the Jaisamand Lake.

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13. Learned Additional Government Counsel further pointed out the order dated 19.02.2020 passed by the Hon’ble National Green Tribunal, Principal Bench, New Delhi in Mushtakeem Vs. MoEF & CC & Ors. (M.A. No.16/2020 in Original Application No.44/2016) , whereby the Hon’ble Tribunal has toned down the compensation vis-a-vis a previous order, as the police Stations in the State were not having sufficient space for custody of 699 vehicles, that were seized, while some of them remained to be seized, as the quantum of compensation did not permit the concerned parties to get such vehicles released.

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14. Learned Additional Government Counsel has also pointed out an order dated 03.09.2019 passed by a Division Bench of this Hon’ble Court in Khem Singh Vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition No.4239/2019) , whereby the Hon’ble Division Bench had directed that the compounding fee has to be levied and the orders passed by the Hon’ble National Green Tribunal have to be followed, and a transport policy has to be framed with regard to illegal mining of bajri or sand, which should have a uniform object of dealing with such illegalities strictly.

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15. Learned Additional Government Counsel has also relied upon the order passed by this Hon’ble Court in Ganga Ram Vs. State & Ors. (S.B. Criminal Misc. Petition No.1363/2020, decided on 02.09.2020) .

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16. Learned Additional Government Counsel has further drawn the attention of this Court towards an interim order dated 10.02.2021 passed by the Hon’ble Supreme Court in The State of Rajasthan Vs. Julfi Singh (Special Leave to Appeal (Crl.) No1042/2021) , whereby the judgment dated 23.10.2020, impugned therein, rendered by this Hon’ble Court at Jaipur Bench in Julfi Singh Vs. State of Rajasthan (S.B. Criminal Misc. Petition No.397/2020)(supra) has been stayed.

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17. Learned Additional Government Counsel has also placed reliance upon the precedent law laid down by the Hon’ble Supreme Court in Adhikshak

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Rashtriya Chambal Abhyaran Vs. Narottam Singh (Criminal Appeal Nos.13621363 of 2012, decided on 26.03.2019) , relevant portion of which reads as under:

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“22. In 2017, similar view has been taken by another two judge Bench of this Court in Kallo Bai (supra) while construing the provisions of the Madhya Pradesh Van Upaj (Vyapar Viniyam) Adhiniyam, 1969. By virtue of the amendments made to the Adhiniyam, Sections 15-A to 15-D were introduced to provide for confiscation proceedings in line with the provisions contained in the Forest Act as amended in relation to the State of Madhya Pradesh. Relying on the earlier decisions of this Court including GV Sudhakar Rao (supra), Justice NV Ramana, speaking for the two judge Bench held:

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“23. Criminal prosecution is distinct from confiscation proceedings. The two proceedings are different and parallel, each having a distinct purpose. The object of confiscation proceedings is to enable speedy and effective adjudication with regard to confiscation of the produce and the means used for committing the offence while the object of the prosecution is to punish the offender. The scheme of the Adhiniuyam prescribes an independent procedure for confiscation. The intention of prescribing separate proceedings is to provide a deterrent mechanism and to stop further misuse of the vehicle.”

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24. In Kailash Chand v State of MP, (1995) AIR (MP) , a Division Bench of the Madhya Pradesh High Court considered a challenge to the constitutional validity of the state amendments to the Forest Act through MP Act 25 of 1983. Noticing that a criminal prosecution and a proceeding for confiscation are distinct, each with its own purpose and object, the High Court held:

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“…..Criminal prosecution is not an alternative to confiscation proceedings. The two proceedings are parallel proceedings each having a distinct purpose and object. The object of confiscation proceeding is to enable speedy and effective adjudication with regard to confiscation produce and the means used for committing the offence. The object of the prosecution is to punish the offender

¶158

…...”

¶159

Explaining the underlying purpose and object of the state amendment, the Division Bench noted:

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“…..The scheme of the Central Act contemplating successful prosecution of the offender leading to confiscation has been drastically modified by the 1983 Act to provide for an additional procedure for confiscation, a procedure which is less cumbersome and more expeditious than the procedure of prosecution and at the same time, assuring necessary safeguards to the affected persons. The scheme of the Central Act provides for prosecution incidentally leading to confiscation of property. The scheme of the amendments introduced by the 1983 Act prescribes an independent procedure for confiscation. The intention is to ensure that the vehicle used in the transaction is no longer available for such misuse and to act

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as deterrent for the other offender and others. These objects can be well served by confiscating the vehicle…….”

¶164

25. In a judgment rendered by one of us (Brother Justice Hemant Gupta as Chief Justice of the Madhya Pradesh High Court) in Ramkumar Sahoo v State of Madhya Pradesh (Writ Petition No.18818 of 2017 decided on 15.02.2018), these principles were followed while construing the provisions of Rule 53 of the MP Minor Mineral Rules 1996.”

¶165

18. Learned Additional Government Counsel has further placed reliance on the precedent law laid down by the Hon’ble Supreme Court in Jayant Etc. Vs. The State of Madhya Pradesh (Criminal Appeal Nos.824-825 of 2020, decided on 03.12.2020) and Kanwar Pal Singh Vs. The State of Uttar Pradesh & Anr. (Criminal Appeal No.1920 of 2019, decided on 18.12.2019) .

¶166

19. Learned Additional Government Counsel thus, vehemently made his submissions stating that the very legislative intention of strictly dealing with the vehicles involved in the transportation of illegal mineral, particularly, bajri/sand as well as the unlawful possession and transportation of forest produce, will be defeated if such vehicles are released, and the same shall also burden the State officers, as they would face more illegalities with the involvement of the released vehicles.

¶167

20. In some of the petitions, including the matters pertaining to forest law, wherein the reply is not filed, learned Additional Government Counsel submitted that he may be given some time to file a response on behalf of the State, but the said request was declined by this Court, on the ground that all these petitions are being decided on a pure question of law, and not on factual matrix. Moreover, the precedent laws on the issue, as laid down by the Hon’ble Supreme Court, are being followed in their strict sense, and that does not require any active assistance on behalf of the State, in the form of reply in every individual matter; this is more so when the broader points in regard to the present controversy have been argued by both sides, and most of the petitions are complete in pleadings.

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21. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedents laws cited by learned counsel the parties, this Court finds that the core law has already been substantially explained in the judgment of Sunderbhai Ambalal Desai & Ors. (supra), as the Hon’ble Supreme Court, has while delivering the said judgment, kept into consideration the practical difficulties of holding the vehicles, and has also considered that the same ought to be released, while imposing or without imposing appropriate compensation/compounding fee, to be paid by the registered owner of the respective vehicle.

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22. In the precedent law of Adhikshak Rashtriya Chambal Abhyaran Vs. Narottam Singh (supra), as cited by learned Additional Government Counsel for

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the State, the Hon’ble Supreme Court has categorically dealt with the issues of the law pertaining to release of vehicles, and has clearly observed that once the confiscation proceedings have been initiated, any orders for possession, delivery, disposal or distribution of the property ought not to be passed. Thus, the confiscation proceedings have been taken at a different pedestal, as per the precedent law laid down by the Hon’ble Supreme Court in the said judgment, which is now law of the land.

¶173

23. It is needless to say that the second important reliance upon the judgment rendered by a Division Bench of this Hon’ble Court at Jaipur Bench Laxman Vs. State of Rajasthan (supra) , in which the Hon’ble Division Bench has categorically laid down that the jurisdiction of the magistrate to release the vehicles under Sections 451 & 457 Cr.P.C. is alive with or without imposition of compensation/compounding fee.

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24. The judgment rendered by this Hon’ble Court at Jaipur Bench in Irfan Vs. State of Rajasthan has reiterated most of the laws pertaining to release of vehicles, at length.

¶175

25. This Court, on a careful examination of the precedent laws in an intricate manner, finds that the precedent laws of Sunderbhai Ambalal Desai & Ors. Vs. State of Gujarat (supra) and Adhikshak Rashtriya Chambal Abhyaran Vs. Narottam Singh (supra) , as laid down by the Hon’ble Supreme Court, shall govern the field, and thus, the vehicles seized under the mining law and the forest law, shall be released, upon charging the compensation/compounding fee or without charging the compensation/compounding fee, only and only, if the confiscation proceedings in regard thereto have not been initiated by the State authorities. It is to be noted that both mining and the forest laws have the provisions for confiscation proceedings.

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26. It is also observed that until the confiscation proceedings are initiated, the Magistrate concerned shall have the power to release the vehicle(s) with or without condition of deposition of compensation/compounding fee, but the Magistrate concerned shall be required to impose a condition of furnishing of a bank guarantee, so as to secure the compensation/compounding fee, if required to be levied in future, after completion of the proceedings.

¶177

27. It is made clear that once the confiscation proceedings are initiated, the possession, delivery, disposal or distribution of the property cannot be made, in view of the law laid down in Adhikshak Rashtriya Chambal Abhyaran Vs. Narottam Singh (supra) .

¶178

28. Thus, while parting with the present controversy, it is directed that all the police stations shall release the vehicles in question, may it be tractor, trolley, truck, dumper to the registered owners of the said vehicles, after confirming from the respective Department that there is no confiscation proceeding, under the mining or forest laws, going on in regard to the vehicles in question.

¶179

(29 of 30)

¶180

[CRLMP-4874/2021]

¶181

29. To ensure that after undergoing the proceedings, the concerned parties i.e. registered owners of the vehicles in question shall be paying the requisite compensation/compounding fee, it is directed that the active bank guarantee, equivalent to the compensation/compounding fee, shall be deposited by the registered owners before the trial court before release of the vehicles in question.

¶182

30. It is also directed that after such bank guarantee equivalent to the compensation/compounding fee is deposited before the trial court concerned, to which the concerned police station is attached, the trial court concerned shall be required to keep such bank guarantees intact, until the final conclusion of the proceedings; and until the final conclusion of such proceedings is done by the competent courts, the bank guarantee shall remain subject to it and the orders passed at the end of the proceedings by the concerned trial court shall govern disposal of the bank guarantee.

¶183

31. It is further made clear that the petitioners shall be required to furnish photographs of their respective vehicles, showing their numbers, colours etc. Furthermore, at the time of release of the vehicles in question, the petitioners shall give an undertaking before the concerned learned trial court alongwith 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 the vehicles, is made out, then the same shall not be released, on any condition, until the confiscation proceedings come to an end.

¶184

32. In view of the above, the impugned orders dated 12.02.2021 & 09.07.2021 (CRLMP No.3595/2021), 18.08.2020 & 16.09.2020 (CRLMP No.3139/2020), 26.11.2019 & 19.02.2020 (CRLW No.94/2021), 09.12.2020 & 24.12.2020 (CRLMP No.828/2021), 13.01.2021 & 25.01.2021 (CRLMP No.1017/2021), 24.09.2020 & 16.01.2021 (CRLMP No.1028/2021), 07.09.2020 & 23.12.2020 (CRLMP No.1047/2021), 14.07.2020 (CRLMP No.1793/2021), 23.04.2021 & 11.05.2021 (CRLMP No.2689/2021), 16.04.2021 & 18.05.2021 (CRLMP No.2775/2021), 24.07.2020, 01.03.2021 & 11.05.2021 (CRLMP No.2776/2021), 20.04.2021 & 18.05.2021 (CRLMP No.2780/2021), 03.03.2021 (CRLMP No.3223/2021), 03.03.2021 (CRLMP No.3224/2021), 03.03.2021 (CRLMP No.3225/2021), 03.12.2020 (CRLMP No.3428/2021), 01.07.2021 (CRLMP No.3453/2021), 01.07.2021 (CRLMP No.3454/2021), 01.07.2021 (CRLMP No.3455/2021), 05.07.2021 (CRLMP No.3510/2021), 12.02.2021 & 09.07.2021 (CRLMP No.3618/2021), 20.07.2021 (CRLMP No.3706/2021), 23.06.2021 & 19.07.2021 (CRLMP No.3956/2021), 06.07.2021 & 12.07.2021 (CRLMP No.4173/2021), 30.06.2021 & 06.08.2021 (CRLMP No.4566/2021), 07.12.2019 & 15.01.2020 (CRLMP No.2651/2020), 07.05.2021 & 07.08.2021 (CRLMP No.4550/2021) and 06.07.2021 & 03.08.2021 (CRLMP No.4554/2021) are quashed and set aside, only to the extent, they are not conformity with this judgment.

¶185

(30 of 30)

¶186

[CRLMP-4874/2021]

¶187

33. With the aforesaid observations and directions, the present petitions stand disposed of. All pending applications also stand disposed of.

¶188

4. In light of the aforequoted judgment, the impugned orders dated 23.04.2021 & 13.08.2021 passed by the learned courts below are quashed and set aside. It is needless to say that the observations made and the directions given in the aforequoted judgment shall operate in the present case also.

¶189

5. The present petition stands disposed of in the above terms. All pending applications also stand disposed of.”

¶190

In the result, this misc. petition is disposed of in terms of judgment rendered by this Court in the case of Kalu Vs. State of Rajasthan (supra).

¶191

(DR.PUSHPENDRA SINGH BHATI),J.

¶192

251-nirmala/-

Hitesh Kumar v. State of Rajasthan

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Hitesh Kumar v. State of Rajasthan

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