# Rakesh Kumar v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-23
- **Case number:** Application U/S 482 No. 7071 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-v-state-of-u-p-anr-51415
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 451 & 482 - Mines and
Minerals (Development and Regulation) Act,
1957- Sections 4(1-A), 15, 15(1), 21 & 21(4A) - U.P.Minor Minerals (Concession) Rules,
2021 - Rules 72 & 72(6) - Application
u/section 482 Cr.P.C. -assailing the validity of
order, whereby application for release of a vehicle is
rejected - as well as the order passed in Criminal
Revision - Applicant's JCB machine was hired for
digging of a pond - seized - on the ground that
digging was without any permit -- trial - application
for releasing JCB was rejected - instant application -
applicant argued that permission was granted by the
SDM - and trial court wrongly deferred authority to
District Magistrate per Rule 72(6) of UP Minor
Minerals Rules, 2021 - court finds that - JCB was
seized for alleged unauthorized excavation, though
applicant claimed valid permission via Sub Divisional
Magistrate; revision petition was also dismissed -
held - Rule 72 governs transportation of minerals, not
excavation machinery - hence, inapplicable to the
seized JCB - Section 4(1-A) of the Act, 1957
reinforces lawful transport/storage - further court
clarified that, Section 21(4-A) of the Act, 1957 vests
confiscation and disposal powers with the competent
Court, not the District Magistrate-hence, impugned
orders quashed, Magistrate directed to reconsider
release within 30 days.
(Para - 13, 14, 15, 18, 19)

Application Disposed of. (E-11)

## Text

238 INDIAN LAW REPORTS ALLAHABAD SERIES
process of criminal law and the same are
liable to be quashed.

37. Accordingly, the application is
allowed. The Charge Sheet No. 1 of 2022
dated 30.09.2022 for offences under
Sections 420, 467, 468, 471, 406 & 506
I.P.C. submitted in furtherance of F.I.R. No.
440 of 2022, Police Station Sushant Golf
City, Lucknow, the summoning order dated
02.12.2022 as well as the entire criminal
proceedings of Criminal Case No. 117643
of 2022, State v. Ajay Baghel, pending
before
the
Judicial
Magistrate-III,
Lucknow, are hereby quashed.
---------
(2024) 2 ILRA 238
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 7071 of 2022

Rakesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Alok Kr. Misra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 451 & 482 - Mines and
Minerals (Development and Regulation) Act,
1957- Sections 4(1-A), 15, 15(1), 21 & 21(4A) - U.P.Minor Minerals (Concession) Rules,
2021 - Rules 72 & 72(6) - Application
u/section 482 Cr.P.C. -assailing the validity of
order, whereby application for release of a vehicle is
rejected - as well as the order passed in Criminal
Revision - Applicant's JCB machine was hired for
digging of a pond - seized - on the ground that
digging was without any permit -- trial - application
for releasing JCB was rejected - instant application -
applicant argued that permission was granted by the
SDM - and trial court wrongly deferred authority to
District Magistrate per Rule 72(6) of UP Minor
Minerals Rules, 2021 - court finds that - JCB was
seized for alleged unauthorized excavation, though
applicant claimed valid permission via Sub Divisional
Magistrate; revision petition was also dismissed -
held - Rule 72 governs transportation of minerals, not
excavation machinery - hence, inapplicable to the
seized JCB - Section 4(1-A) of the Act, 1957
reinforces lawful transport/storage - further court
clarified that, Section 21(4-A) of the Act, 1957 vests
confiscation and disposal powers with the competent
Court, not the District Magistrate-hence, impugned
orders quashed, Magistrate directed to reconsider
release within 30 days.
(Para - 13, 14, 15, 18, 19)

Application Disposed of. (E-11)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Ajeet Kumar Mishra holding
brief of Sri Alok Kr. Misra, learned counsel
appearing for the applicant and Ms Charu
Singh,
learned
Additional
Government
Advocate and perused the record.

2. By means of the instant application
filed under Section 482 Cr.P.C., the applicant
has assailed validity of the order dated
20.07.2022 passed by Judicial Magistrate-I,
Gonda whereby an application for release
of a vehicle has been rejected by the trial
court on the ground that as per the
provisions contained in Section 72(6) of the
Uttar Pradesh Minor Minerals (Concession)
Rules, 2021 (hereinafter referred to 'the
Rules, 2021'), the District Magistrate is
authorized to pass an order for release of
vehicle.

The applicant had filed Criminal
revision No.273 of 2022 challenging the
aforesaid order dated 20.07.2022 and the
revision has been dismissed by means of
2 All. Rakesh Kumar Vs. State of U.P. & Anr.
239
the
the
judgment
and
order
dated
19.06.2022 passed by the Additional
Sessions Judge, Gonda and the applicant
has challenged the validity of that order
also.

3. Briefly stated facts of the case are
that the applicant owns a JCB brand
excavation machinery, which was seized on
06.07.2022 on the allegation that it was
found engaged in digging a pond without
any permit.

4. Contention of the learned counsel
for the applicant is that the applicant's
excavation machine was hired by one
Awadhest Kumar for digging of a pond in
furtherance of permission granted to him
by
the
Sub
Divisional
Magistrate
Colonelganj, Gonda, a copy whereof has
been annexed with the application.

5. The trial court has rejected the
application on the ground that he has no
power to release the vehicle under Section
72(6) of the Rules, 2021.

6. Rule 72 aforesaid provides as
follows:-..

"72. Restriction on transport of
the Minerals-

(1 )The holder of a mining lease
or permit or a person authorised by him in
this behalf shall issue a pass in Form MM1 I or Form e-MM-11 prepared through
electronic process to every person carrying,
a consignment of minor mineral by a
vehicle, animal or any other mode of
transpo11, the State Government may,
through
the
District
Officer,
make
arrangements for the supply of printed
MM-1 1 Form books on payment basis.

(2) No person shall carry, within
the State a minor mineral by a vehicle,
animal or any other mode of transport,
without can-ying a pass in Form MM-11/
Form e-MM-11 issued under sub rule (I),
valid transit pass issued under rule 7(3) of
Uttar Pradesh Mineral (Prevention of
Illegal Mining, Transportation and storage)
Rules, 2018 or similar valid transit pass
issued by any other State:

Provided
that
if
the
State
Government enters into an agreement to
collect the Royalty through contractor,
receipt of royalty or zero receipt as the case
may be shall be issued by such contractor
and in such cases carrying out such receipt
with Form MM-11/ form e-MM-11 will be
mandatory for transportation.

Provided
further
that
the
transportation of the mineral will be valid
only after the State Government has
determined the regulation fees imposed
from time to time on the mineral coming
from other State.

(3)Every person carrying any
minor mineral shall, on demand by any
officer authorised under Rule 67 or such
officer as may be authorised by the State
Government in this behalf, show the said
pass to such officer and allow him verify
the correctness of the particulars ofthe pass
with references to the quantity ofthe Minor
Mineral.

(4)The State Government may
establish a check post for any area included
in any mining lease or permit and when a
check post is so established public notice
shall be given to this fact by publication in
the Gazette and in such other manner as
may be considered suitable by the State
Government.

(5) No person shall transport a
minor mineral for which these rules apply
from such area without first presenting the
mineral at the check post established for
that area for verification of the weight or
measurement of the mineral.
240 INDIAN LAW REPORTS ALLAHABAD SERIES

(6)Any person found to have
contravened any provision of this rule then
the District Magistrate will recover penalty
of Rs. 25, 000/-(twenty five thousands)
alongwith the price of such minor mineral
including royalty and any such penalty for
violation of environmental norms, as
prescribed by the State Government from
time to time. After deposit of the entire
amount mentioned above the vehicle etc
including minor mineral will be released."

7. A bare perusal of the aforesaid
provisions
indicates
that
it
imposes
restriction on 'transportation of minerals'.
Rule 72(5) provides that no person shall
transport a minor mineral for which these
rules apply, from which area without first
presenting the mineral at the check post
established for that area for verification of
the weight or measurement of the mineral.

8. Rule 72(6) provides that any person
found to have contravened any provision of
this rule will be inflicted with penalty and
the District Magistrate may order release of
the vehicle after deposit of penalty.

9. Rule 72 imposes restrictions on
'transportation of minerals' whereas the
applicant's vehicle which has been seized is
not a vehicle used for transportation and it
is a vehicle used as an excavation
machinery. Therefore, it appears that the
provisions of Rule 72 of the the Rules,
2021 will not be applicable to the vehicle
of the applicant as it is not a transportation
vehicle.

10. The Uttar Pradesh Minor Minerals
(Concession) Rules, 2021 have been
framed in exercise of powers conferred by
Sub-section 1 of Section 15 of the Mines
and
Minerals
(Development
and
Regulation) Act, 1957 (hereinafter referred
to as 'the Act, 1957').

11. Section 4(1-A) of the the Act,
1957 provides that 'no person shall
transport or store or cause to be transported
or stored any mineral otherwise than in
accordance with provisions of this Act and
the Rules made thereunder.

12. Section 21 of the Act, 1957 reads
as under:-

"21. Penalties.-254[(1) Whoever
contravenes the provisions of sub-section
(1) or sub-section (1-A) 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.]

255[(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.

256[(4) Whenever any person
raises, transports or causes to be raised or
transported, without any lawful authority,
2 All. Rakesh Kumar Vs. State of U.P. & Anr.
241
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.

(4-A)
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.]

257[(6) Notwithstanding anything
contained in the Code of Criminal Procedure,
1973, an offence under sub-section (1) shall
be cognizable.]

258[Explanation.?On and from the
date of commencement of the Mines and
Minerals (Development and Regulation)
Amendment Act, 2021, the expression
?raising, transporting or causing to raise or
transport any mineral without any lawful
authority? occurring in this section, shall
mean raising, transporting or causing to
raise or transport any mineral by a person
without prospecting licence, mining lease or
composite licence259[, exploration licence]
or in contravention of the rules made under
Section 23-C.]"

13. Section 21 (4-A) of the Act, 1957
provides that 'any mineral tool, equipment,
vehicle or any other thing seized under subsection (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.

14. Section 72 of the Rules, 2021 has
been framed under the Act, 1957 and the
provisions of the Act will obviously have
precedents over the provisions of the Rules
in case of any conflict.

15. Although Section 72 (6) of the
Rules, 2021 based on certain restrictions on
transportation
of
the
minerals
and
empowers the District Magistrate to impose
penalty in case of violation of those
restrictions, the provisions of Rule 72(6)
will not override the provisions contained
in Section 21(4-A) of the Act, 1957.
Therefore, I am of the considered view that
the statute vests power of dealing with the
confiscated tool, equipment or vehicle in
the Court.

16. The Mining Inspector has
entrusted the JCB excavation vehicle of the
revisionist to the police and the entrustment
letter dated 06.07.2022 states that the JCB
was being used in digging of the pond and
no document could be shown on the spot in
this regard. Accordingly, the custody of the
JCB was handed over to the police and the
police has taken the same in its custody and
it is recorded in the general diary on
06.07.2022.

17. Chapter XXXIV of Cr.P.C. deals
with 'disposal of property' and Section 451
falling in this Chapter provides as follows:-

"Section 451-Order for custody
and disposal of property pending trial in
certain cases
242 INDIAN LAW REPORTS ALLAHABAD SERIES

When any property is produced
before any Criminal Court during an
inquiry or trial, the Court may make such
order as it thinks fit for the proper custody
of such property pending the conclusion of the
inquiry or trial, and, if the property is subject to
speedy and natural decay, or if it is otherwise
expedient so to do, the Court may, after
recording such evidence as it thinks necessary,
order it to be sold or otherwise disposed of."

18. From the aforesaid statutory
provisions, it appears that undoubtedly the
Court has power to dispose of the seized vehicle
of the revisionist, which is used in excavation of
earth. The learned Judicial Magistrate has
committed a manifest error in rejecting the
application for release of the JCB vehicle on the
ground that it has no jurisdiction.

19. Accordingly, impugned orders dated
20.07.2022 passed by Judicial Magistrate-I,
Gonda and 19.06.2022 passed by the Additional
Sessions Judge, Gonda are hereby quashed and
the learned Judicial Magistrate-I, Gonda is
directed to pass a fresh order on the application
for release of the vehicle, in accordance with
law, in the light of the observations made in this
order, within a period of 30 days from the date
of receipt of certified copy of this order.
---------
(2024) 2 ILRA 242
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 7529 of 2022

Mehrab Logistics & Aviation Ltd. & Anr.
 ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties
Counsel for the Applicants:
Abhishek Singh

Counsel for the Opposite Parties:
G.A., Amandeep Singh, Praveen Tripathi,
Shakti Krishna Chaube

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202 & 482 - Indian
Penal Code, 1860 - Sections 406 & 420 -
Negotiable
Instruments
Act,
1881
-
Sections 68, 138, 138(2), 145(1), 14-A,
18 & 18-A - Application U/s 482 Cr.P.C. - for
quashing the summoning order and the entire
criminal proceedings - arising out of dishonour
of two cheques - Complaint Case - offence
under Section 138 of the NI Act - applicant
plead that, the complaint is based upon an
invalid MoU and a time-restricted authorization
letter0 - further, cheques alleged to be forged,
stolen, and not supported by any legally
enforceable liability - and serious procedural
lapses attributed to both the bank and the trial
court - the complainant argued that the
cheques were issued as security for unpaid
service fees related to a hotel sale - court finds
that - Forensic analysis confirms discrepancies in
signatures, - no cogent evidence of a
subsisting legal debt or liability - transaction
appears to be civil in nature and does not
attract penal consequences under Section 138
of the N.I. Act - trial court failed to conduct
proper judicial scrutiny and misapplied settled
legal principles - Applying Supreme Court
guidelines under Section 482 Cr.P.C. - court
held that - the case lacked the essential
ingredients of a criminal offence under Section
138 of the N.I. Act and appeared to be civil in
nature - hence, the impugned summoning order
and entire proceedings are against the spirit and
directions issued by the Hon'ble Apex Court and
are liable to be set aside - and the matter is
remanded back to the trial court for fresh
consideration within four months, in accordance
with legal standards and Supreme Court
precedents
-
Application
stands
allowed
accordingly.
(Para - 22, 23, 24, 26, 27, 28, 38, 39, 40)

Application Allowed. (E-11)

List
of
referred
Cases:
-