PUSHPENDRA SINGH BHATI, J. - (1.) The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. seeking the following relief :- "It is, therefore, most humbly and respectfully prayed that this misc. petition may kindly be allowed and condition imposed vide order impugned order dated 05.02.2019 by the learned Addl. Chief Judicial Magistrate, Jaitaran District Pali in Criminal Case No. 48/2019 for depositing the penalty/ outstanding amount may kindly be quashed and set aside and the vehicle of the petitioner Dumper No.RJ-07-GB-8051 may kindly be ordered to be released on Superdginama."
(2.) The learned counsel for the petitioner has submitted that in bunch of petitions, lead case being D.B. Cr. Misc. Petition No. 60/2018, titled as Laxman vs. State of Rajasthan, a Division Bench of this Court on 6.4.2018, has held that if a vehicle has been seized under the Provisions of Mines and Minerals (Development and Regulation) Act, 1957 (for short 'MMDR Act'), for 72 hours competent Officer can retain the vehicle and thereafter, he is mandatorily required to report the matter to his superior officer as also to the Magistrate having jurisdiction. The Division Bench has held as under:- 2.1 "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." 2.2 The learned counsel for the petitioner has stated at Bar that no confiscation proceedings are pending qua the vehicle in question and the same is case property. The learned counsel for the petitioner has relied upon Sunderbhai Ambalal Desai vs. State of Gujarat, (2002) 10 SCC 283, to contend that the Supreme court has held that the vehicle should not be permitted to remain parked in the police station as same shall gather rust and shall not remain useful. 2.3. Learned counsel for the petitioner has also relied upon the judgment of this Court in S.B. Crl. Misc. Petition No.2958/2018 (Lekhraj vs. State of Rajasthan) decided on 20.11.2018, wherein this Court passed the following order :- "The petitioner has preferred this petition making a prayer as under:- "It is therefore, most respectfully prayed that this misc. petition may kindly be allowed, impugned order dated 30.8.2018 passed by the learned Judicial magistrate, First Class, Pachpadara, District Barmer to the extent of imposing impugned conditions of depositing the compounding fee in cash or in the alternative, of furnishing bank guarantee of Rs. 42 lacs may kindly be quashed and set aside and the vehicle JCB No. RJ 39-EA 0492 may kindly be ordered to be released on 'supardginama' in favour of the humble petitioner" The vehicle of the petitioner has been ordered to be released vide impugned order dated 30.8.2018. Counsel for the petitioner has relied upon the Division Bench judgment of Laxman Mehrat Vs. State of Rajasathan thro P.P.. The relevant paras are as under:- 20. 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 sub-rule (5) of Rule 48 of the Rules of 1986 empowers the authorities mentioned in sub-rule (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. 21. 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 therebelow 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. 22 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 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. 23 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. 24. 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. We accordingly answer the reference. Office to place a copy of this judgment in all connected files. Matters may now be placed before the concerned Bench for appropriate orders. The Single Bench judgment in Lakshman vs. State of Rajasthan Through P.P. has held as under: - "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." Learned counsel for the petitioner submits that since the notice itself has been issued under Rule 54 of the Rules of Rajasthan Minor and Mining Concessions Rules, 2017, therefore, the compounding fee level could best be as per the Rule 54 of the Rules of 2017. The learned Government Counsel was directed to show the record of the case, upon which she has shown Annexure/R/3 which is a notice dated 5.7.2018 given to the petitioner under Sections 54, 55 and 58 of the Rules of 2017. Since the notice itself is for illegal mining transportation, therefore, the compounding fee at best can be as per the schedule provided under the Rule 54. After hearing learned counsel for the parties and perusing the judgments given, this Court finds that the court below was right in imposing bank guarantee as it has been provided by Hon'ble Division Bench of this Court in the matter of Laxman Mehrat where it has been held that the court below shall have jurisdiction to release the vehicle with or without condition with a compounding fee. This Court finds that the maximum compounding fee imposable in accordance with Rule 54 for a truck is Rs. 1 lac. Since the compounding fee itself is Rs. 1 Lac therefore, the bank guarantee cannot travel beyond the amount stipulated under Rule 54 of the Rules of 2017. Hence, in light of the aforesaid observation, the petition is allowed. Imposition of bank guarantee vide judgment dated 30.8.2018 to the tune of Rs. 42 lacs is substituted by the sum of Rs. 1 lac. However, the other conditions shall remain as under - (a) The petitioner shall furnish a personal bond in the sum of Rs. 42 lacs with two sureties of Rs. 21 lacs each to the satisfaction of the trial court undertaking to produce the truck in the Court as and when required to do so. (b) the petitioner shall get the vehiicle photographed showing the registration number as well as the chassis number. Such photograph shall be taken in the presence of the Investigating Officer, to be kept on the file of the case. (c) the personal bonds of the petitioner and bonds of sureties shall carry the photographs of the petitioner and his sureties and the bond of sureties shall further carry the phtograph of perhaps identifying them before the Court which is with full residential particulars of the sureties and the persons identifying them. (d) the petitioner shall undertake not to transfer the ownership of the vehicle and not to lease it to anyone and not to make or allow any changes in it to be made so as to make unidentifiable. (e) the petitioner will not allow the vehicle JCB No. RJ 39-EA 0492 to be used for any antisocial activities including for the purpose of carrying narcotics which may constitute offence under the NDPS Act."
(3.) Learned counsel for the respondent is not in a position to refute the above position.;