Sanjeev Prakash Sharma,J. - (1.) Learned counsel for the petitioner has relied on the judgment passed by this court in the case of Asharam v. State of Rajasthan: S.B. Criminal Misc. (Petition) No.2723/2019 and other connected matters, decided on 3.2.2020 wherein this court after taking into consideration all the aspects relating to law laid down by the Supreme Court as well as by taking into consideration the law as considered by Division Bench in the case of Harun v. State of Rajasthan: D.B. Criminal Misc. Petition No.76/2014, Shoukat Khan v. State of Rajasthan: S.B. Criminal Misc. (Petition) No.6307/2016 and Laxman v. State of Rajasthan: D.B. Criminal Misc. Petition No.60/2018 as well as the order passed in reference, has taken the following view: "14. In view thereof, the impugned orders passed by the Courts below dated 30.3.2019, 21.10.2019, 3.10.2019, 10.10.2019, 8.11.2019, 25.4.2019 and 8.4.2019 in each of the case shall stand set aside and this Court directs as under: a) The concerned Police Station shall release the tractor and trolley to the person, who is the registered owner of the vehicle alone. b) The release of the tractor and trolley shall be subject to the condition that the concerned owner shall get both the tractor and the trolley registered with the transport authorities and also obtain due permit within a period of one month from the date of release and deposit the copy with the concerned Police Station. c) A personal security of an amount of Rs.1,00,000/- to the satisfaction of the concerned Court to which the concerned Police Station is attached, shall be submitted for the purpose of release of the vehicle. d) The petitioners shall keep the vehicle so released intact and shall not change its identification. The petitioners shall produce the vehicle as and when trial Court requires the same for proposed identification of the case property. e) The petitioners shall furnish the photographs of the vehicle showing its number and colour etc. f). At the time of release, the petitioners shall also give an undertaking to the effect that vehicle shall not be used for any illegal purpose and if so found, the concerned owner shall be personally liable."
(2.) In the case of Asharam, this Court has held as under: "11. In the aforesaid background, this Court finds that while it is true that a vehicle should not be allowed to get rusted in Police Station and the same ought to be released for its better maintenance and proper use. Several suggestions were given out by the Officers of the Transport Department as well as by the Mining Department for laying down the conditions before release of the seized tractors, trolleys and vehicles being used for illegal mining activities. 12. In Harun v. State of Rajasthan: D.B. Criminal Misc. Petition No.76/2014 decided on 23.7.2015 along with connected matters by the Division Bench of this Court wherein it has been held that if a vehicle is found to be involved in committing violation of the Rajasthan Forest Act, 1953 and carrying forest produce, the same cannot be released during the pendency of trial on supurdgi to the registered owner of the vehicle, if proceedings of confiscation have already been initiated. Relying upon the law laid down in Harun (supra), a Coordinate Bench of this Court in Shoukat Khan v. State of Rajasthan: S.B. Criminal Misc. (Petition) No.6307/2016, decided on 22.2.2017 has held that supurdginama can be given, if proceedings for confiscation have been initiated. In Laxman v. State of Rajasthan: D.B. Criminal Misc. Petition No.60/2018 decided on 6.4.2018 along with connected matters by the Division Bench where a reference was made to the Division Bench on account of different opinion relating to the power of release of vehicles wherein the Division Bench has held as under: "Most of the judgments cited by learned counsel appearing from the side of the petitioners have ruled in favour of the jurisdiction of the Magistrate to release the vehicles under the provisions of Section 451 and/or 457 of the Cr.P.C. A discordant note has however been sounded by Single Bench judgment in Ramswaroop's case, which was later followed in Mala Ram's, supra. These judgments, in view of the analysis of law which we have made herein-above, do not lay down correct law. In fact, the same Single Judge, who delivered the judgment in Ramswaroop's case on 28.08.2015, in his earlier judgment dated 26.10.2012 in Muknaram 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 realization of the same, a condition can be imposed by the Court while ordering release of the vehicle to pay or deposit the same and the Court can refuse to release the seized vehicle even temporarily under Section 457 Cr.P.C., if such deposit is not made. In view of the above discussion, the referred questions are answered in the terms that once the Officer of the Mining Department, who seized the vehicle, has reported such seizure to his Superior Officer and to the Magistrate having jurisdiction, he shall cease to have the power to release the vehicle, and in that event, the Magistrate having jurisdiction would be empowered to release such vehicle, with or without the condition of deposit of compounding fee." In view thereof, the power is vested with the concerned Magistrate for release of seized vehicle. 13. Keeping in view the above, as this Court notices that in none of the cases, the Mining Department has not initiated the confiscation proceedings, it was submitted that compounding fee must be charged from the petitioners before release of the vehicle. However, this Court is of the view that the compounding fee can only be charged, if it is adjudicated that the concerned vehicle was involved in the illegal activities, which can only be when trial is completed. A presumption in this regard cannot be taken at the present stage. 14. In view thereof, the impugned orders passed by the Courts below dated 30.3.2019, 21.10.2019, 3.10.2019, 10.10.2019, 8.11.2019, 25.4.2019 and 8.4.2019 in each of the case shall stand set aside and this Court directs as under: a) The concerned Police Station shall release the tractor and trolley to the person, who is the registered owner of the vehicle alone. b) The release of the tractor and trolley shall be subject to the condition that the concerned owner shall get both the tractor and the trolley registered with the transport authorities and also obtain due permit within a period of one month from the date of release and deposit the copy with the concerned Police Station. c) A personal security of an amount of Rs.1,00,000/- to the satisfaction of the concerned Court to which the concerned Police Station is attached, shall be submitted for the purpose of release of the vehicle. d) The petitioners shall keep the vehicle so released intact and shall not change its identification. The petitioners shall produce the vehicle as and when trial Court requires the same for proposed identification of the case property. e) The petitioners shall furnish the photographs of the vehicle showing its number and colour etc. f). At the time of release, the petitioners shall also give an undertaking to the effect that vehicle shall not be used for any illegal purpose and if so found, the concerned owner shall be personally liable."
(3.) Learned Public Prosecutor submits that in another Criminal Misc. Petition NO. 2670/2020 "Naval Singh v. State of Rajasthan " has taken a following view:- ....[VERNACULAR TEXT OMITTED].... 4. Coordinate Bench of this Court has taken notice of the observations made in the judgment passed in D.B. Writ Petition (PIL) No.4239/2019: Khem Singh v. State of Raj. dated 3.9.2019 and distinguished Asharam's case and others. 5. Learned counsel appearing for the petitioner as well as Learned Public Prosecutor submitted that the observations made in the case of Khem Singh (supra) cannot be said to be a settled law in view of the fact that the issue was not involved before the Division Bench. It was PIL and in the case of Khem Singh (supra) did not take into consideration the judgments passed by the Division Bench as well as by the Supreme Court, as noticed above.Learned counsel for the petitioner has also pointed out that the case of Khem Singh (supra) is still pending for final adjudication. 6. Keeping in view the final adjudication given in the three judgments of the Division Bench as noticed above in Asharam (supra) and also taking into consideration the law laid down in Asharam (supra), has also been followed by other Coordinate Bench and also law laid down in the case of Sunderbhai Ambalal Desai and Ors. v. State of Gujarat: (2002) 10 SCC 283. The view taken by Coordinate Bench in Naval Singh Vrsus State of Rajasthan: S.B. Criminal Misc. Petition No.2670/2020 on 3.9.2020 is found to be the per-incuriam as it does not take into consideration the other judgments of this court as well as the Supreme Court. 7. In view of law laid down in Asharam (supra), as noticed above, this Criminal Misc. Petition is allowed with directions as under: a) The concerned Police Station shall release the offending vehicle - Tractor with trolley bearing Registration No.RJ- 26-RB-5691 to the person, who is the registered owner of the vehicle alone. b) A personal security of an amount of Rs.2,00,000/- to the satisfaction of the concerned Court to which the concerned Police Station is attached, shall be submitted for the purpose of release of the vehicle. c) The petitioner shall furnish the photographs of the vehicle showing its number and colour etc. d). At the time of release, the petitioner shall also give an undertaking to the effect that vehicle shall not be used for any illegal purpose and if so found, the concerned owner shall be personally liable. The concerned vehicle shall be released subject to fulfilling such conditions. ;