***

G.S. SANDHAWALIA, J. –

1. The present petition has been filed under Section 482 Cr.P.C. for quashing of order dated 13.03.2020 (Annexure P-6) passed by the Additional Sessions Judge, Yamuna Nagar at Jagadhari. Vide the said order, the revision petition filed by respondent no. 2, the Mining Officer has been allowed and the order dated 04.03.2020 (Annexure P-4) whereby, vehicle bearing No. HR46 D 5925 which had been ordered to be released in favour of the petitioner being registered owner on superdari to the tune of Rs.20,00,000/- and one surety in the like amount was set aside.

2. The reasoning which prevailed with the Revisional Court was that under Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (in short 'the Act'), no proceedings were pending under the Act and neither any complaint had been filed nor any FIR had been registered. Reliance was placed upon Rule 104 of the Haryana Minor Mineral Concession, Stocking, Transportation of Minerals and Prevention of Illegal Mining Rules, 2012 (in short 'the 2012 Rules) to hold that the mineral was liable to be seized alongwith the impounding of the vehicle used for such unauthorized operation and could be released only on realisation of the payment of the price of the mineral and the applicable royalty for the mineral being transported in addition of fine which should not be less than Rs.10,000/-. Reference was also made to the orders of the National Green Tribunal (in short 'NGT) dated 09.02.2019, which were modified on 05.04.2019 and 26.07.2019 and that the amount of compensation for damages so caused were to be charged as per the table. Reliance was placed upon the orders of the Apex Court in Crl. Appeal No. 524 of 2019, State of Madhya Pradesh vs. Uday Singh dated 26.03.2019 and that the Tribunal had also referred to the said order and the principle laid down in State of West Bengal and others vs. Sujit Kumar Rana vs. 2004 (4) SCC 129 was followed which admittedly pertains to confiscation proceedings under the Wild Life Act, 1972. The judgments of the Rajasthan High Court were distinguished on the ground that the said Rules provided that the report of seizure of such vehicle had to be made to the Magistrate having jurisdiction within 72 hours and there was no such corresponding provisions in the 2012 Rules.

3. Resultantly, it was held that the Magistrate could not exercise his powers under Section 451/457 in the absence of any complaint or any FIR by the police as the property would only be produced before the criminal Court during the inquiry or trial. Reliance was also placed on Rule 109 of the 2012 Rules that an appeal was provided and since there was proper efficacious remedy available, the Illaqa Magistrate could not be approached for release of the vehicle on superdari. The judgment of the Apex Court in Sunderbhai Ambalal Desai vs. State of Gujarat, 2002 (10) SCC 283 was, thus, distinguished in the absence of any criminal proceedings before the Magistrate. The receipt CRU85000103, upon which the petitioner was relying, was being disputed to be a fabricated document which was to be verified by respondent no. 2 and necessary action was to be taken as per law and resultantly, keeping in view the fact that it was a case pertaining to preserving the environment, the order was set aside.

4. Counsel for the petitioner has accordingly argued that in the absence of any confiscation order being passed under Section 21(4A) of the Act and the said order could have only been passed by the Court competent to take cognizance of the offence and the vehicle could only be disposed of in accordance with the directions of such Court. Thus, it is submitted that the confiscation order now passed during the pendency of the proceedings on 21.08.2020 (Annexure R-5) was, thus, also liable to be quashed. Reliance was placed upon Rule 106 of the 2012 Rules that offences were cognizable only on written complaint and there is a limitation provided of 3 months. The seizure was made on 15.01.2020 and no such complaint had been filed and the vehicle could not be detained without any proceedings as such under the Act. Reliance was also placed upon the provisions of Rule 109(3) of the 2012 Rules that a show cause notice had to be issued before any order could be passed by the competent authority and a reasonable opportunity had to be given to make a representation. It is, thus, submitted that the impugned order's reasoning as such was no longer sustainable in view of the lodging of the FIR on 05.10.2020 (Annexure R-5) on the request dated 14.07.2020 (Annexure R-4) and, thus, the vehicle was liable to be released during the pendency of the criminal proceedings.

5. Counsel for the State, on the other hand, submitted that the order was well justified and the Magistrate had no powers to release the vehicle in the absence of any proceedings before it and the custody of the vehicle had only been given on account of the seizure done by the respondent-Authorities. It is submitted that similar vehicles seized had been released on account of the deposit of the fine, royalty and price of minerals. The e-ravana slip (Annexure P-7) which was being relied upon which is a transit pass bearing No. 85 000 103 was a fabricated document and had been issued to a different vehicle on 28.01.2020 (Annexure R-1). It is submitted that in view of the alternate remedy of an appeal under the provisions of Rules 109, the present petition was not maintainable. The orders of the NGT were relied upon that compensation was liable to be realized. Reliance was also placed upon the recommendation dated 14.07.2020 (Annexure R-4) for lodging of an FIR under Section 379 IPC for transporting illegal mining material and the confiscation order in accordance with the orders dated 19.02.2019 of the NGT.

6. The factual matrix of the case would go on to show that as many as 15 vehicles were seized on 15.01.2020 by respondent no. 2 on the ground of illegal mining/transportation under sub-Rule 104 read with Section 21(4) of the Act. As per the communications addressed to the SHO (Annexure P-1), the respondent had to recover fine, royalty and price of material loaded in the vehicle apart from recovery of at least 50% of the show room value of the vehicle. Therefore, the vehicle alongwith the mineral was placed in the custody of the police authorities and was not to be released till further orders. In the communication, it was further held that it is not an FIR case and it is a compoundable case and superdari was not to be allowed in view of the orders of the NGT.

7. The petitioner who is stated to be the registered owner of the vehicle, filed an application that the truck was loaded with bajri and having bill dated 15.01.2020 of M/s. Himgiri Enterprises and was loaded from M/s. Ramgiri Enterprises, village Kanalsi District Yamunanagar. The applicant wanted to contest the challan and the vehicle was no more required and, thus, release was sought subject to the disposal of the challan. An undertaking was also sought to be given that the said vehicle would not be sold or alienated till the disposal of the challan. The application was contested by respondent no. 2. Reliance was placed upon the order of the NGT dated 23.04.2019 in C.A. No. 668 of 2018, Surinder vs. State of Haryana that 50% of the showroom value of the vehicle was to be deposited. It is stated that the driver had failed to produce any bill of the mineral and, therefore, it had been seized under sub-Rule 98 read with Section 104 of the Act. The alternate remedy of appeal was pleaded that the same had not been filed and neither fine deposited in the Government treasury.

8. The Magistrate as such came to the conclusion that the genuineness of the bill was to be adjudicated upon filing of the complaint by the Mining Department and the proceedings and the Court had power as such to release the vehicle under Section 21(4A) in view of the directions issued on 07.02.2014 in Crl. Misc. M-40375 of 2013, Harjit Singh @ Rana vs. State of Punjab. It was held that permission had been granted vide order dated 10.02.2020 to contest the challan and the original challan had to be produced by the Mining Department and it was open to them to file a complaint if the accused was found involved in illegal mining.

9. In the opinion of this Court, the argument raised by counsel for the petitioner has merits since admittedly under Section 21 of the Act, any person transporting any mineral from land using a vehicle and contravening the provisions of Section 4 of the Act was liable to be punished with imprisonment for term which may extend to 5 years. Under sub-section 4A, the vehicle was liable to be confiscated by an order of a Court competent to take cognizance of the offence under sub-section (1) and it is to be disposed of in accordance with the directions of such Court. Section 22 of the Act further provides that a complaint had to be made in writing by the Central Government or the State Government. The provisions of Section 21 and 22 of the Act read thus:-

“21. Penalties.?1[(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.

(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.

[(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.

(4A) 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 sub-section (1) and shall be disposed of in accordance with the directions of such court.]

(5) Whenever any person raises, 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.]

22. Cognizance of offences.?No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.”

10. Section 23 of the Act further provides that an offence punishable under the Act can be compounded by the person authorized under Section 22 of the Act, who is to make a complaint to the Court with respect to that offence. Section 23A reads thus:-

“23A. Compounding of offences.?(1) Any offence punishable under this Act or any rule made thereunder 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:

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.

(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, if in custody, shall be released forthwith.]

11. Section 30B provides for the constitution of the Special Courts, which is to be a Court consisting of a Judge and a person who shall not be qualified for appointment unless he is or has been a District and Sessions Judge. Section 30C further provides the powers of the Special Court and the applicability of the Code of Criminal Procedure, 1973. Sections 30B and 30C of the Act read thus:-

“[30B. Constitution of Special Courts.?(1) The State Government may, for the purposes of providing speedy trial of offences for contravention of the provisions of sub-section (1) or sub-section (1A) of section 4, constitute, by notification, as many Special Courts as may be necessary for such area or areas, as may be specified in the notification.

(2) A Special Court shall consist of a Judge who shall be appointed by the State Government with the concurrence of the High Court.

(3) A person shall not be qualified for appointment as a judge of a Special Court unless he is or has been a District and Sessions Judge.

(4) Any person aggrieved by the order of the Special Court may prefer an appeal to the High Court within a period of sixty days from the date of such order.

30C. Special Courts to have powers of Court of Session.?Save as otherwise provided in this Act, the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to the proceedings before the Special Court and for the purpose of the provisions of this Act, the Special Court shall be deemed to be a Court of Session and shall have all powers of a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a public prosecutor.]

12. It is, thus, apparent that in the absence of any proceedings pending before the Court regarding a complaint filed or FIR lodged by the respondents that the vehicle had been seized. As per the seizure notice dated 15.01.2020, the demand had been raised which was being contested by producing the necessary documents of transit, which were being contested. The Magistrate had also given permission on 10.02.2020 to contest the challan and it was, thus, during the pendency of the challan proceedings as such the vehicle had been ordered to be released conditionally on superdiginama of Rs.20,00,000/-. As per the provisions of Section 21(4) of the Act, the confiscation order is to be passed by the competent Court and in the absence of any such confiscation order, the respondents could not as such detain the vehicle during the proceedings which were pending and neither any request as such was made to the Court. It is also to be noticed that now during the pendency of the present petition which was filed on 13.07.2020, recommendations for lodging an FIR were issued on 14.07.2020 (Annexure R-4) for transporting illegally mined mineral. The FIR has resultantly been lodged on 05.10.2020 and the same has been taken on record as Annexure R-5. The confiscation order dated 21.08.2020 (Annexure R-5) also has, thus, been passed by the Mining Officer on the strength of the NGT orders without referring to any provision of the Act on the ground that the owner had not come forward to deposit the amount of compensation apart from the fine, royalty and price of mineral. Counsel for the State was not able to demonstrate as to under which provision of the Act the order had been passed by the said authority.

13. In Harjit Singh Rana's case (supra), in similar situations, an application for release of the vehicle on superdari was dismissed by the Magistrate and was upheld by the Additional Sessions Judge, Amritsar. This Court noticed that an FIR had been lodged under Section 21 of the Act and a challan had been also presented in the Court. It was, thus, held that the application declining the superdari was not sustainable and power of the Court to exercise jurisdiction could not be limited. Reference was made to the orders of the Division Bench in CWP No. 18886 of 2012, which were relied upon by the State to hold that compounding was to be discouraged and meticulous compliance under Section 21(4A) of the Act had to be done. Similar issue also arose before the High Court of Meghalaya at Shillong in a reference arising out of Nongstoin PS vs. State of Mehgalya decided on 12.07.2019. In the said case, the vehicle loaded with coal had been seized and the application for zimma of the said vehicle had been rejected by the Chief Judicial Magistrate. The Chief Judicial Magistrate had also relied upon the order of the NGT dated 04.01.2019. Accordingly, the issue arose whether the Trial Magistrate/Criminal Court was legally within its jurisdiction to decline the zimma application filed by the petitioners for release of the seized vehicles. Reliance was placed upon Section 451 Cr.P.C. and the judgment in Sunderbhai Ambalal Desai's case (supra) and it was held that the power and jurisdiction of the Magistrate/Criminal Court to adjudicate on the issue of release of the vehicles could not be taken away. An opportunity had to be provided to the claimant to establish his innocence and non-involvement in the commission of the offence or the crime. Consequently, the reference was allowed and the impugned orders were set aside and directions were issued to pass fresh orders keeping in view the principles and guidelines. The Apex Court in Sunderbhai Ambalal Desai 's case (supra) has held as under:-

“15. Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time.

16. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons.

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.

18. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared.

xxx                                  xxx                               xxx

20. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same.

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 High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly. Adjourned for three weeks.

Order accordingly.”

14. Similarly, the Division Bench of this Court in Gurbinder Singh @ Shinder Vs. State of Punjab', 2016 (4) RCR (Criminal) 492 answered the reference in favour of the owners of the vehicles, which were to be released during the pendency of the trial. The view that the vehicle could not be released under NDPS Act on Sapurdari was set aside, while keeping in mind the provisions of Sections 451, 452 and 457 of Cr.P.C. It was also held that there was no such bar, once the provisions of Cr.P.C., are applicable. The Division Bench thus noticed that the independent decision on the confiscation has to be taken and nobody can be benefited out of the idle parking of the vehicle unattended in the premises of the police station. Relevant portion of the said judgment reads as under:-

“11. The question that arises for determination is whether Section 451 Cr.P.C. can be applied while considering the plea for interim custody of the vehicle seized under the NDPS Act. Section 51 of the NDPS Act which has a bearing on this issue reads as follows:-

"51. Provisions of the code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and Seizures. The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act."

As regards the seizure of any article or thing, the provisions of Cr.P.C. shall apply if it is not inconsistent with the provisions of NDPS Act.

12. On a thorough perusal of the various provisions under the NDPS Act, we find that there is no specific provision debarring the release of the vehicle seized under the Act. When the provision under Section 451 Cr.P.C. is not inconsistent with any specific provision under NDPS Act, the same will have to be applied as mandated under Section 51 of the said Act.

13. A vehicle used for committing rape and murder is being released in the garb of Section 451 Cr.P.C. as interpreted by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai's case (supra). When the vehicles seized in such heinous crimes are released for interim custody, there is no logic in denying interim custody of the vehicle seized under the NDPS Act. Neither the State nor the owner of the vehicle is going to be benefited if the vehicle in the premises of the police station occupies a larger space posing inconvenience to the Police Department. Further, it is an open secret that when a vehicle is parked unattended, the valuable parts of the vehicle are casually taken away or stolen. Finally, when the Court comes to a conclusion that the vehicle was used for committing the crime, the vehicle which was kept in the open would have substantially deteriorated. Likewise, if the Courts take a final decision that the vehicle For Subsequent orders see CRM-23019-2016 8 of 14 was not at all used for commission of the crime or the vehicle was used without the knowledge of the owner thereof, the owner will have to collect only the scrap of the vehicle. In other words, nobody is going to be benefited out of idle parking of vehicle totally unattended in the premises of the police station.

xxx                          xxx                               xxx

15. A conveyance seized under the NDPS Act shall be liable to confiscation only when the owner of the conveyance who was given an For Subsequent orders see CRM-23019-2016 10 of 14 opportunity by the Court could not prove that the conveyance was used without his knowledge or connivance. The Court will have to decide whether a vehicle seized under the NDPS Act is liable to confiscation only on conclusion of trial. The trial Court has to take independent decision on the question of confiscation irrespective of the conviction or acquittal or discharge recorded by it. But, at any rate, the trial Court is not supposed to pass any order of confiscation before expiry of one month from the date of seizure or without affording opportunity to the claimant.

16. On a perusal of the above provisions under the NDPS Act, we find that the trial Court has to take a decision as to whether a vehicle is liable to confiscation only on conclusion of the trial. A vehicle seized under the NDPS Act cannot be kept idle to the disadvantage of everyone concerned till the order of confiscation is passed on conclusion of trial.”

15. Reference to Rule 104 of the Rules is also important in the facts and circumstances, which provide for seizure of the minerals and the vehicles for the first time violation and it provides for impounding of the same for the second time violation and for registration of an FIR for the third time violation which would further entail confiscation. Rule 104 of the 2012 Rules reads thus:-

“104. Consequences of illegal or unauthorised mining.- Any act of illegal or unauthorised mining shall be liable to the following:

(i) for a first time violation, the said mineral shall be liable to be seized along with the impounding of all such tools, equipment, vehicles or any other things used for such unauthorised operation, which may be released only upon realisation of the payment of price of the mineral and the applicable royalty for the mineral extracted and, in addition, a fine which shall not be less than Ten Thousand rupees;

(ii) for a second time violation, the said mineral shall be liable to be seized along with the impounding of all such tools, equipment, vehicles or any other things used for such unauthorised operation for a minimum period of seven days, which may released only upon realisation of the payment of price of the mineral and the applicable royalty for the mineral extracted and, in addition, a fine which shall not be less than fifteen thousand rupees;

(iii) wherever a person is found to be indulging in such offence for the third time or more, the officer concerned shall register an FIR and handover all such tools, equipment, vehicles or any other things used for such unauthorised operation to the Police. Any such offence shall entail (a) confiscation of all such tools, equipment, vehicles or any other thing used for such unauthorised operation for a period of minimum thirty days or more, and (b) pecuniary penalty and punishment for the offence as provided under Section 21 of the Mines & Minerals (Development & Regulation) Act, 1957.”

16. Thus, once the Act itself provides that confiscation is only to be done at the third stage and nothing has been brought to the notice of this Court that the vehicle had been seized earlier, thus, the provisions of Rule 104 would also come to the help of the petitioner. The issue of alternate remedy, thus, would not come into play under Rule 109 once the FIR has been lodged and the criminal Court would, thus, be seized of the matter and would have necessary jurisdiction. The same reads as under:-

“109. Appeals.- (1) Unless otherwise provided, an appeal against an order passed by the officer-incharge [District Level Environmental Committee] shall lie with the Director;

(2) An appeal against the order passed by the Director shall lie before the Administrative Secretary of the Department;

(3) No order under these rules shall be passed by the competent authority against any person unless he has been issued a show cause and given a reasonable opportunity to make a representation.

17. The said Rule also goes on to show that before any order is passed, a show cause notice is to be issued and apparently the order of confiscation dated 21.08.2020 (Annexure R-5) has been passed in blatant violation of the said proceedings. The orders of the NGT, no doubt, have to be followed by the State but only after following the due procedure prescribed by law as per the provisions of the 1957 Act, as duly amended.

18. Thus, in the present facts and circumstances when the matter was pending before the revisional authority, there was no criminal proceedings initiated by respondent no. 2 against the petitioner and, therefore, the Court came to the conclusion that in the absence of the same, Section 451 Cr.P.C. was not invokable. Respondent no. 2 has now lodged the FIR dated 05.10.2020 under Section 379 IPC and, therefore, now it cannot be said that the Trial Court is not seized of any criminal proceedings initiated apart from the validity of the transit pass, which the respondent is also contesting and to the extent of the fine payable as per the guidelines issued by the NGT. Thus, a reasonable opportunity has to be given to the petitioner to prove his case before the Court below and during the pendency of such proceedings, the vehicle cannot remain unattended in the police station.

19. Resultantly, it is directed that the vehicle shall be released on the terms of the superdiginama as ordered by the JMIC. The petition is, thus, allowed and the order of the Additional Sessions Judge dated 13.03.2020 is set aside restoring the order of the Judicial Magistrate Ist Class dated 04.03.2020. The order of confiscation dated 21.08.2020 (Annexure R-5) is quashed in the interest of justice having been imposed without any jurisdiction by respondent no. 2 during the pendency of the proceedings. However, it is open to the respondents to approach the Court of competent jurisdiction in accordance with the provisions of the Act.

Petition allowed.

********