SANJEEV PRAKASH SHARMA,J. - (1.) All these petitions relate to the prayer for release of tractors and trolleys/trucks/dumper/trailer, which have been seized by the Police Authorities/Mining Authorities/Forest Officials for various reasons including carrying "bazri", by way of illegal mining in Rajasthan and selling out the same etc.
(2.) All these petitions have been filed against the order passed by the concerned Magistrate whereby application under Sections 451 and 457 Cr.P.C for releasing of tractor and trolley/Truck/Trailer/Dumper were rejected and therefore, the same are being heard together.
(3.) The question regarding grant of release of vehicles has been examined at length by this Court in S.B. Criminal Misc. Petition No.2723/2019, Asharam and Ors. Vs. State of Rajasthan and connected misc. petitions decided by common order dated 3.2.2020 wherein this Court has held as under:- "1. Since the controversy involved in this batch of criminal misc. petitions is similar, therefore, the same cases, the illegal transportation is being found of other minerals without obtaining are being heard together and decided by this common order. 2. The petitioners, in these criminal misc. petitions, have prayed for release of their vehicles, namely, tractors and trolleys, which have been seized by the concerned Police Station. The Registration Certificates of their vehicles have also been seized. The seizure has been effected on account of the tractor along with trolley being found to be used for allegedly committing offences under Section 4/21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the Act of 1957") and under Section 379 I PC for illegal transportation of "Bajri". In other royalty receipt, ravanas, transit pass etc. The details of the vehicles are as under:- JUDGEMENT_124_LAWS(RAJ)2_2021_1.html 3. The trial Court has rejected the applications moved under Section 457 Cr.P.C. by the petitioners observing that there is a great loss of revenue caused by illegal transportation of minerals by the tractors along with trolleys and are likely to be used for recurrence of the illegal activity. It has also been noticed that the amount of penalty for compounding the offence under the Act of 1957 has also not been deposited and some of the trolleys are found to be unregistered. 4. Taking into consideration, the flurry of cases coming to this Court with regard to the aforesaid aspect, this Court vide order dated 15.1.2020 observed as under: , "In M/s. Natwar Parikh and Co. Ltd. Versus State of Karnataka and Others, AIR 2005 SC 3428 after examining the Motor Vehicles Act, 1988 held as under:- "22. The question still remains as to whether the taxation authority was right in categorizing tractor-trailer as a separate assessable entity and whether that authority was right in calling upon the appellant to obtain permit under Section 66 of the M.V. Act, 1988." Thus, a tractor alongwith the trolley (trailer) would constitute goods carriage and would thus require the permit under Section 66 of the Motor Vehicles Act, 1988 (hereinafter 'the Act of 1988'). However, it is noticed that the tractors which are being seized alongwith the trolleys carrying Bajri, do not have permit under Section 66 of the Act of 1988 and the Transport Department is not carrying out regular vigil and are not seizing such goods carriage plying on roads. Let the Commissioner, Transport Department alongwith the Regional Transport Officer, Jaipur be present in the court detailing their proposed plan to curve such activity as above. The Director, Mines shall also appear to explain as to what steps have been taken for stopping Bajri mining in the State of Rajasthan. It would also be informed to the court as to what conditions have been laid down for issuing commercial licenses to these vehicles. Notice in this regard be sent to the aforesaid officers. List this case again on 27.1.2020." 5. Upon notice, this Court again on 27.1.2020 passed the following order: "Mr. Rajesh Yadav, Principal Secretary and Transport Commissioner, Mr. Gaurav Goyal, Director, Mines and Geology, Mr. Rajendra Verma, RTO and Mr. Satyaveer, Additional Transport Commissioner, Jaipur are present in person and submitted their suggestions which have been found to be very useful. It has also been informed that there is a PIL (Khem Singh Vs. State of Raj.) pending before the Principal Seat at Jodhpur wherein the Government is in the process of submitting its detailed recommendations with regard to illegal mining activities being conducted and transportation of illegal "Bajri" and other minerals." 6. The Motor Vehicle Act, 1988 (hereinafter referred to as "the Act of 1988") provides for necessity of permits for transport vehicle as per Section 66, and conditions for grant of goods carriage permit under Section 79 commonly known as "commercial permit", which read as under: "66. Necessity for permits-(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used: Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage: Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. 2[Provided also that where a transport vehicle has been issued any permit or permits, as well as a licence under this Act, such vehicle may be used either under the permit, or permits, so issued to it, or under such licence, at the discretion of the vehicle owner.] (2) The holder of a goods carriage permit may use the vehicle, for the drawing of any public or semi trailer not owned by him, subject to such conditions as may be prescribed. 1 [Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor.] (3) The provisions of sub-section (1) shall not apply- (a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise; (b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes; (c) to any transport vehicle used solely for police, fire brigade or ambulance purposes; (d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses; (e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety; (f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf; (g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf; (h) [*****] (i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms; (j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods; (k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle; (l) [*****] (m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination; (n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify; (o) to any transport vehicle which is subject to a hire-purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of, the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or (p) to any transport vehicle while proceeding empty to any place for purpose of repair. l[(q) to any transport vehicle having been issued a licence under a scheme, under sub-section (3) of section 67 or sub-section (1) of section 88A, or plying under such orders as may be issued by the Central Government or by the State Government] (4) Subject to the provisions of sub-section (3), subsection (1) shall if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver. 79. Grant of goods carriage permit: 1) A Regional Transport Authority may, on an application made to it under section 77, grant a goods carriage permit to be valid throughout the State or in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: Provided that no such permit shall be granted in respect of any area or route not specified in the application. (2) The Regional Transport Authority, if it decides to grant a goods carriage permit, may grant the permit and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:- (i) that the vehicle shall be used only in a specified area or on a specified route or routes; (ii) that the gross vehicle weight of any vehicle used shall not exceed a specified maximum; (iii) that goods of a specified nature shall not be carried; (iv) that goods shall be carried at specified rates; (v) that specified arrangement shall be made for the housing, maintenance and repair of the vehicle and the storage and safe custody of the goods carried; (vi) that the holder of the permit shall furnish to the Regional Transport Authority such periodical returns, statistics and other information as the State Government may, from time to time, prescribe; (vii) that the Regional Transport Authority may, after giving notice of not less than one month,- (a) vary the conditions of the permit; (b) attach to the permit further conditions; (viii) that the conditions of the permit shall not be departed from, save with the approval of the Regional Transport Authority; (ix) any other conditions which may be prescribed. (3) The conditions referred to in sub-section (2) may include conditions relating to the packaging and carriage of goods of dangerous or hazardous nature to human life." 7. The provisions of Section 86 of the Act of 1988 empower the Transport Authority for cancellation and suspension of permits, which read as under: "86. Cancellation and suspension of permits.-(1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit- (a) on the breach of any condition specified in section 84 or of any condition contained in the permit, or (b) if the holder of the permit uses or causes or allows a vehicle to be used in any manner not authorised by the permit, or (c) if the holder of the permit ceases to own the vehicle covered by the permit, or (d) if the holder of the permit has obtained the permit by fraud or misrepresentation, or (e) if the holder of the goods carriage permit, fails without reasonable cause, to use the vehicle for the purposes for which the permit was granted, or (f) if the holder of the permit acquires the citizenship of any foreign country: Provided that no permit shall be suspended or cancelled unless an opportunity has been given to the holder of the permit to furnish his explanation. (2) The transport authority may exercise the powers conferred on it under sub-section (1) in relation to a permit granted by any authority or person to whom power in this behalf has been delegated under subsection (5) of section 68 as if the said permit was a permit granted by the transport authority. (3) Where a transport authority cancels or suspends a permit, it shall give to the holder in writing its reasons for the action taken. (4) The powers exercisable under sub-section (1) (other than the power to cancel a permit) by the transport authority which granted the permit may be exercised by any authority or person to whom such powers have been delegated under sub-section (5) of section 68. (5) Where a permit is liable to be cancelled or suspended under clause (a) or clause (b) or clause (e) of sub-section (1) and the transport authority is of opinion that having regard to the circumstances of the case, it would not be necessary or expedient so to cancel or suspend the permit if the holder of the permit agrees to pay a certain sum of money, then, notwithstanding anything contained in sub-section (1), the transport authority may, instead of cancelling or suspending the permit, as the case may be, recover from the holder of the permit the sum of money agreed upon. (6) The powers exercisable by the transport authority under sub-section (5) may, where an appeal has been preferred under section 89, be exercised also by the appellate authority. (7) In relation to a permit referred to in sub-section (9) of section 88, the powers exercisable under subsection (1) (other than the power to cancel a permit) by the transport authority which granted the permit, may be exercised by any transport authority and any authority or persons to whom power in this behalf has been delegated under sub-section (5) of section 68, as if the said permit was a permit granted by any such authority or persons." 8. From the perusal of the aforesaid provisions, it is apparent that a power has been given to the Transport Authority for grant of goods carriage permit and if the vehicle is found to be carrying goods illegally, the said permit is required to be cancelled or a fine can be imposed instead of cancellation as has been informed by the Transport Commissioner. The question is being examined at length in the PIL pending before the Principal Seat at Jodhpur, therefore, in the present cases, I need not to go into the said aspect. 9. For the Transport Commissioner has handed over the circulars, which were issued from time to time by the State Government, laying down guidelines, which are to be followed with regard to the registration of the trolley for commercial purposes and action to be taken where there is a violation. A chart was handed over, which mentions about the action taken as against illegal transportation of "Bajri reads as under: 10. Total number of registrations, which have been done upto January, 2020, are 382471 out of which number of tractors are 373342 for commercial purpose while commercial tractors upto 2020 are only 298 and commercial trolleys are 9101. Thus, it is apparent that the trolleys are being used with tractors, which do not have commercial permit. Similarly, there would be trolleys, which do not have commercial permit, but are being used for commercial purpose. 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 Versus 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 Versus 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 Versus 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 Vs. 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. 15. With the aforesaid directions, all these criminal misc. petitions are allowed. 16. All the pending applications also stand disposed of. 17. A copy of this order be placed in each of the file." ;