# Vidya Nand Yadav Revisionist v. State of U.P

- **Citation:** (2021) 10 ILRA 615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-05
- **Case number:** Criminal Revision No. 1629 of 2021
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidya-nand-yadav-revisionist-v-state-of-u-p-46381
- **Pages:** 16

## Headnote

Law
-
Code
of
Criminal
Procedure,
1973
-
Section
457
-
Application filed by Revisionist for release
of truck seized transporting certain minor
minerals--rejected -truck seized by Mines
Inspector-approached the District Officer
for
compounding-he
passed
order
directing
release
of
vehicle
upon
depositing
requisite
amount-did
not
deposited
the
amount-nor
filed
any
Appeal-thereafter moved application u/s
457 Cr.P.C. before CJM-Application rightly
rejected-to attract provision of section
457 Cr.P.C. seizure of property has to be
made by a police officer-not by Mine
Inspector.

Revision dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,688 of 52,647. This is a partial read: ask again with offset=39688 for what follows._

10 All. Vidya Nand Yadav Vs. State of U.P.
615
witnesses, prospective accused could be
summoned or not.

50. The same procedure as adopted by
Court in judgements referred to above in
preceding paragraph has been applied in
present case. Court has not come across
any such material to conclude that Court
below has not exercised its jurisdiction
"diligently" and revisionist has been
summoned by Court below in a "casual and
caviliar manner". Deposition of P.W.1 and
P.W.2 falls in the realm of "strong and
cogent evidence" and satisfies the twin test
laid down by Constitution Bench in
paragraph 105 of the judgement in
Hardeep
Singh
(Supra).
It
clearly
establishes complicity of revisionist in the
crime in question.

51. For the facts and reasons noted
above, this Court does not find any good
ground to interfere in this revision.
Revision lacks merit. Same is, therefore,
liable to be dismissed.

52. It is, accordingly, dismissed.
----------
(2021)10ILR A615
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J

Criminal Revision No. 1629 of 2021

Vidya Nand Yadav ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Sri Akhilesh Singh, Sri Shivam Yadav

Counsel for the Opposite Party:
A.G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-
Section
457
-
Application filed by Revisionist for release
of truck seized transporting certain minor
minerals--rejected -truck seized by Mines
Inspector-approached the District Officer
for
compounding-he
passed
order
directing
release
of
vehicle
upon
depositing
requisite
amount-did
not
deposited
the
amount-nor
filed
any
Appeal-thereafter moved application u/s
457 Cr.P.C. before CJM-Application rightly
rejected-to attract provision of section
457 Cr.P.C. seizure of property has to be
made by a police officer-not by Mine
Inspector.

Revision dismissed. (E-9)

List of Cases cited:

1. Sunderbhai Ambalal Desai Vs St. of Guj.,
2005 (46) ACC 223

2. Rajendra Singh Vs St. of U.P. & ors., AIR 2015
Allahabad 93

3. Smt. Sudha Kesarwani Vs St. of U.P. & anr.,
2011 (1) ADJ 498

4. Smt. Manu Devi Vs St.of U.P. & ors., Criminal
Misc. Writ Petition No. 20111 of 2020; dt.
18.8.2015

5. Jayant & ors. Vs St. of M.P., (2021) 2 SCC 670

6. The St.of Punj. Vs Barkat Ram, AIR 1962 SC
276

7. Badaku Joti Svant Vs St. of Mysore, AIR 1966
SC 1746

8. Haru v St. of M.P., 1980 Cr LJ 762

9. The St. of Punj. v Barkat Ram, AIR 1962 SC
276

10. Jagabandhu Mahanta Vs Bijay Kumar Kar &
anr., 2003 CrLJ 2679 (Ori)
616 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Assistant Collector of Customs v Smt. Maria
Rege & anr., 1991 Cri LJ 229 (Bom)

12. Babulal Lodhi v St. of M.P. & anr., 1987 Cri
LJ 1709 (MP, D.B.)

13. Balkishan A. Devidayal Vs St.of Mah., (1980)
4 SCC 600

14. Rajendra Singh Vs St. of U.P., AIR 2015
Allahabad 93

15. Awadhesh Tripathi Vs St. of U.P., 2016 130
RD 343

16. Smt. Sudha Kesarwani Vs St. of U.P. & anr.,
2011 (1) ADJ 498

17. Smt. Manu Devi Vs St. of U.P. & ors.,
Criminal Misc. Writ Petition No. 20111 of 2020;
dt. 18.8.2015

18. Mohammad Raza Vs St. of U.P. & anr., 2017
(2) ALJ 9

(Delivered by Hon'ble Dr.
Yogendra Kumar Srivastava, J.)

1. Heard Sri Shivam Yadav, learned
counsel for the revisionist and Sri Pankaj
Saxena, learned Additional Government
Advocate-I
appearing
along
with
Ms.
Sushma
Soni,
learned
Additional
Government Advocate for the State-opposite
party.

2. Present criminal revision has been
preferred seeking to set-aside the order dated
7.7.2021, passed by the Chief Judicial
Magistrate, Kushinagar at Padrauna, whereby
the application filed by revisionist under
Section 457 of the Code of Criminal
Procedure, 19731, for release of truck seized
under Section 21(4) of the Mines and
Minerals (Development and Regulation) Act,
19572, has been rejected.

3. Pleadings of the case indicate that the
vehicle owned by the revisionist, a truck
carrying gitti (a minor mineral), was seized
by the Mines Inspector, Kushinagar on
19.4.2021, and a report was forwarded to the
District Officer for further proceedings under
Rule 74 of the Uttar Pradesh Minor Minerals
(Concession) Rules, 19633. The revisionist
claims to have approached the District
Officer and thereafter he filed an application
under Section 457 of the Code before the
Chief Judicial Magistrate, Kushinagar at
Padrauna, on 3.6.2021, seeking release of the
vehicle. The Chief Judicial Magistrate, after
calling for a report from the Mines Inspector,
passed an order on 7.7.2021, rejecting the
application filed under Section 457 of the
Code.

4. Learned counsel for revisionist has
sought to assail the aforesaid order dated
7.7.2021, passed by the Chief Judicial
Magistrate, by seeking to contend that since
the vehicle of the revisionist had been
seized, learned Magistrate has committed
an error in rejecting the application seeking
release of the vehicle, despite the necessary
powers in regard to the same being
available under Section 457 of the Code. It
is submitted that order passed by the
Magistrate is based on non-application of
mind and is illegal and unsustainable.
Learned counsel further submits that the
vehicle, which is lying with the authorities,
is liable to be released. In support of his
submissions, learned counsel has placed
reliance upon the decisions in the case of
Sunderbhai Ambalal Desai vs. State of
Gujarat4, Rajendra Singh vs. State of
U.P.
and
Others5,
Smt.
Sudha
Kesarwani
vs.
State
of
U.P.
and
Another6, and Smt. Manu Devi vs. State
of U.P. and Others7.
10 All. Vidya Nand Yadav Vs. State of U.P.
617

5. Learned Additional Government
Advocate-I has controverted the aforesaid
contention
by
submitting
that
the
vehicle/truck in question, of which the
revisionist claims ownership, was intercepted
while illegally transporting gitti (a minor
mineral) and was seized by the Mines
Inspector on 19.4.2021, in exercise of powers
under Section 21(4) of the MMDR Act and a
report was forwarded to the District Officer
for initiation of proceedings under Rule 74 of
the Concession Rules. In the meantime, the
revisionist submitted an application dated
23.4.2021 to the District Magistrate, seeking
compounding of the offence, and an order
dated 28.05.2021 was passed directing the
revisionist to deposit the requisite amount
towards compounding fee as per the relevant
Government
Order,
whereupon
the
compounding was to be made and the release
of the vehicle would have followed. It has
been pointed out that the revisionist did not
deposit the requisite compounding fee and
moved an application under Section 457 of
the
Code,
before
the
Chief
Judicial
Magistrate, which has been rightly rejected as
being not entertainable.

6. Learned Additional Government
Advocate-I points out that the revisionist
having applied for compounding and an order
having also been passed thereon by the
District Magistrate, in case he was aggrieved,
it was open to him to avail the statutory
remedy of filing an appeal under Rule 77 and
thereafter a revision under Rule 78 of the
Concession Rules. It is submitted that the
necessary ingredients for invocation of
powers under Section 457 of the Code having
not been made out, the Magistrate has rightly
refused to entertain the said application.

7. The question, thus, falls for
consideration is as to whether at the stage
where the vehicle has been seized in
exercise of powers under Section 21(4) of
the MMDR Act with an order having been
passed
upon
an
application
seeking
compounding of the offence, and no
complaint having been made by the person
authorised
before
the
jurisdictional
Magistrate, the provisions under Section
457 of the Code, seeking release of the
vehicle, could have been invoked.

8. In order to appreciate the rival
contentions on the aforesaid legal issue, the
relevant statutory provisions under the
MMDR Act, which is an Act to provide for
the development and regulation of mines
and minerals under the control of the
Union, may be referred to.

"4.
Prospecting
or
mining
operations to be under licence or lease.--
"(1) No person shall undertake any
reconnaissance, prospecting or mining
operations in any area, except under and in
accordance with the terms and conditions
of a reconnaissance permit or of a
prospecting licence or, as the case may be,
of a mining lease, granted under this Act
and the rules made thereunder" ;

Provided that nothing in the subsection shall effect any prospecting or
mining operations undertaken in any area
in
accordance
with
the
terms
and
conditions of a prospecting licence or
mining
lease
granted
before
the
commencement of this Act which is in
force at such commencement:

Provided further that nothing in
this
sub-section
shall
apply
to
any
prospecting operations undertaken by the
Geological Survey of India, the Indian
Bureau of Mines, the Atomic Minerals
Directorate for Explorations and Research
of the Department of Atomic Energy of the
Central Government, the Directorate of
Mining
and
Geology
of
any
State
618 INDIAN LAW REPORTS ALLAHABAD SERIES
Government (by whatever name called),
and the Mineral Exploration Corporation
Limited, a Government company within the
meaning of Clause (45) of Section 2 of the
Companies Act, 2013 (18 of 2013), and any
such entity that may be notified for this
purpose by the Central Government.

(1-A) No person shall transport or
store or cause to be transported or stored
any mineral otherwise than in accordance
with the provisions of this Act and the rules
made thereunder.

(2) No reconnaissance permit,
prospecting licence or mining lease shall be
granted otherwise than in accordance with
the provisions of this Act and the rules
made thereunder.

(3) Any State Government may,
after prior consultation with the Central
Government and in accordance with the
rules made under Section 18, undertake
reconnaissance, prospecting or mining
operations with respect to any mineral
specified in the First Schedule in any area
within that State which is not already held
under
any
reconnaissance
permit,
prospecting licence or mining lease.

21. Penalties.-- (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.

(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.

(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 raise,
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
10 All. Vidya Nand Yadav Vs. State of U.P.
619
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 State
Government.

23-A.
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, in custody,
shall be released forthwith."

9. Section 4 of the MMDR Act, and
in particular, sub-section (1-A) thereof,
puts a total restriction on the transportation
or storage of any mineral, otherwise than in
accordance with the provisions of the Act
and the Rules made thereunder. Section 21
provides for penalties in respect of
contravention of the provisions of subsection (1-A) of Section 4. As per terms of
sub-section (4) of Section 21, whenever
any person raises, without any lawful
authority, any mineral from any land and
for that purpose, uses any mineral, 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
especially
empowered in this behalf. Sub-section (4A) provides that the things 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.

10. Section 22 relates to cognizance
of offence and in terms thereof no court
shall take cognizance of any offence
punishable under the MMDR Act or any
rules
made
thereunder
except
upon
complaint in writing by a person authorised
in this behalf by the Central Government or
the State Government.

11. Section 23-A is in respect of
compounding of offences wherein any
offence punishable under the Act or any
rules made thereunder, may, either before
or after the institution of the prosecution,
be compounded by the person authorised to
make a complaint, on payment to that
person for credit to the Government of such
sum as that person may specify. As per
terms of sub-section (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
offence
so
compounded and the offender, in custody,
shall be released forthwith.

12. Under the Concession Rules, the
subject matter relating to contraventions,
offences and penalties are dealt with under
Chapter VII, and Chapter VIII contains
miscellaneous provisions. The provisions
of the Concession Rules, which are relevant
620 INDIAN LAW REPORTS ALLAHABAD SERIES
for the purpose of the controversy at hand,
may be adverted to.

"74. Cognizance of offences.--(i)
No court shall take cognizance of any
offence punishable under these rules except
on a complaint in writing of the facts
constituting such offences by the District
Officer or by any officer authorised by him
in this behalf.

(ii) No court inferior to that of a
Magistrate of the first class, shall try any
offence under these rules.

75. Compounding of offence.--
(1) Any offence punishable under these
rules may, either before or after the
institution
of
the
prosecution
be
compounded by the District Officer or by
such officer as the State Government may
by general or special order authorise in this
behalf on payment to the State Government
of such sum as such officer 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-rule
(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.

(3) The officer compounding the
offence under sub-rule (1) shall maintain a
register showing the following details:

(a) Serial number (by financial year).

(b) Name and address of the
offender.

(c) Date and details of offence.

(d) Sum of compounding amount
and date of its payment.

(e) Signature of the officer with
date and seal.

77. Appeal.-- An appeal against
an order passed under these rules by the
District Officer or the Committee shall lie
to the Divisional Commissioner within a
period of sixty days from the date of
communication of such order to the party
aggrieved.

78.
Revision.--
The
State
Government may, either suo moto at any
time or on an application made within
ninety
days
from
the
date
of
communication of the order, call for an
examination of the record relating to any
order passed or proceeding taken by the
District Officer Committee, Director or the
Divisional Commissioner under these rules
and pass such orders as it may think fit."

13. Rule 74 relates to cognizance of
offence and as per terms thereof, no court
shall take cognizance of any offence
punishable under the rules except on a
complaint
in
writing
of
the
facts
constituting such offence by the District
Officer or by any officer authorised by him
in this behalf.

14. Rule 75 is in respect of
compounding of offence which provides
that any offence punishable under the rules
made before or after institution of the
prosecution, be compounded by the District
Officer or by any such officer as the State
Government may authorise in this behalf
on payment to the State Government of
such sum as such officer may specify. Subrule (2) mandates that where an offence is
compounded
under
sub-rule
(1),
no
proceeding or further proceeding shall be
taken against the offender in respect of
offence so compounded.

15. Rule 77 provides for an appeal to
a Divisional Commissioner against an order
passed under the rules by the District
10 All. Vidya Nand Yadav Vs. State of U.P.
621
Officer or the Committee and Rule 78
contains the revisional powers of the State
Government.

16. Section 457, which falls under
Chapter XXXIV of the Code and pertains
to disposal of property, may also be
referred to, and the same reads as follows :-

"457. Procedure by police upon
seizure of property.--(1) Whenever the
seizure of property by any police officer is
reported
to
a
Magistrate
under
the
provisions of this Code, and such property
is not produced before a Criminal Court
during an inquiry or trial, the Magistrate
may make such order as he thinks fit
respecting the disposal of such property or
the delivery of such property to the person
entitled to the possession thereof, or if such
person cannot be ascertained, respecting
the custody and production of such
property.

(2) If the person so entitled is
known, the Magistrate may order the
property to be delivered to him on such
conditions (if any) as the Magistrate thinks
fit and if such person is unknown, the
Magistrate may detain it and shall, in such
case, issue a proclamation specifying the
articles of which such property consists,
and requiring any person who may have a
claim thereto, to appear before him and
establish his claim within six months from
the date of such proclamation."

17. In the case at hand, the truck
stated to be owned by the revisionist was
intercepted for illegally transporting certain
minor minerals in contravention with the
provisions of the MMDR Act and was
accordingly, seized by the Mines Inspector
on 19.4.2021, and a report in regard to
same was forwarded to the District Officer
for initiation of prosecution under Rule 74
of the Concession Rules. The revisionist at
this stage moved an application dated
23.4.2021 for compounding, on which the
District Magistrate passed an order dated
28.5.2021 directing release of the vehicle
upon deposit of the requisite amount
towards compounding as per the relevant
government order.

18. It appears that since the revisionist
had sought compounding of the offence,
proceedings for prosecution by filing a
complaint under Section 22/Rule 75 were
not initiated and also no order for
confiscation under sub-section (4-A) of
Section 21 of the MMDR Act was made.

19. The revisionist did not make the
requisite deposit pursuant to the order
passed by the District Officer on his
application seeking compounding of the
offence, nor did he seek the statutory
remedy of an appeal under Rule 77, in case
he was aggrieved with the order passed by
the
District
Officer.
The
revisionist,
instead, moved an application before the
Chief Judicial Magistrate, seeking to
invoke the provisions under Section 457 of
the Code and it was turned down as not
being entertainable.

20. As already noted above, the
vehicle owned by the revisionist had been
intercepted for illegally transporting certain
minor minerals in contravention with the
provisions
of
the
MMDR
Act
and
accordingly, the same was seized by the
Mines Inspector in exercise of powers
referable to sub-section (4) of Section 21 of
the Act. Upon seizure of the vehicle under
sub-section (4), the same was liable to be
confiscated as per terms of sub-section (4A), by an order of the court competent to
take cognizance of the offence under subsection (1) and was to be disposed of in
622 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the directions to be passed
by such court. The cognizance of the
offence punishable under the Act or the
rules
thereunder,
in
respect
of
contraventions made, could be taken by the
court concerned upon complaint by the
District Officer or any officer authorised by
him in this behalf.

21. As per the provisions relating to
compounding of offence under Section 23A read with Rule 75, any offence
punishable under the Act/Rules, could be
compounded, before or after the institution
of
prosecution,
by
the
District
Officer/officer authorised. Further, as per
the provisions contained under sub-section
(2) of Section 23-A read with sub-rule (2)
of Rule 75 upon the offence being
compounded
no
proceedings/further
proceedings are to be taken against the
offender
in
respect
of
offences
so
compounded.

22. In the instant case, consequent to
the vehicle having been seized under subsection (4) of Section 21, and before a
complaint could be moved by the officer
authorised before the Magistrare concerned
whereupon an order of cognizance or
confiscation
could
be
passed,
the
revisionist sought compounding of the
offence by moving an application before
the District Officer which was allowed and
an order was passed directing him to
deposit the requisite sum whereupon the
compounding was to be made and the
vehicle was to be released.

23. The revisionist neither deposited
the requisite compounding fee to get the
offence compounded and the vehicle
released, nor availed the statutory remedy
of appeal under Rule 77 and a revision
under Rule 78 of the Concession Rules, in
case he was aggrieved with the order
passed by the District Officer upon the
application seeking compounding. The
revisionist, instead moved an application
before
the
Chief
Judicial
Magistrate
seeking to invoke the provisions under
Section 457 of the Code.

24. The facts as noticed above would
go to show that upon the vehicle having
been seized and before any complaint could
be filed by the authorised officer for
cognizance of the offence whereupon the
competent court could have passed an order
of confiscation, the revisionist moved an
application
seeking
compounding
of
offence and in view of the bar contained
under
sub-section
(2),
no
proceeding/further proceeding could be
taken against him in respect of offence of
which compounding had been sought.

25. It may be apposite to refer to the
decision in the case of Jayant and Others
vs. State of Madhya Pradesh8, for the
proposition that in a case where the violator
is permitted to compound the offences on
payment of penalty as per sub-section (1)
of Section 23-A of the MMDR Act, in view
of sub-section (2) thereof, there shall not be
any proceedings or further proceedings
against the offender in respect of the
offences punishable under the MMDR Act
or any rules made thereunder. The
observations made in the judgement, in the
context of Section 23-A, are being
extracted below:

"5.4. Section 23-A of the MMDR
Act contemplates the compounding of
offence under the MMDR Act. Therefore,
the Rules made under the MMDR Act
contain provisions for compounding of
offence. Sub-section (2) of Section 23-A
places a bar on proceedings or further
10 All. Vidya Nand Yadav Vs. State of U.P.
623
proceedings, when the offences have been
compounded
under
sub-section
(1).
Therefore, once the proceedings have been
compounded under the Act or Rules made
thereunder, no further proceedings can lie.
...

17.1. Section 23-A as it stands
today has been brought on the statute in the
year 1972 on the recommendations of the
Mineral Advisory Board which provides
that any offence punishable under the
MMDR Act or any Rules 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
they person may specify. Sub-section (2) of
Section 23-A further provides that where
an offence is compounded under subsection (1), no proceeding or further
proceeding, as the case may be, shall be
taken against the officer in respect of the
offence so compounded, and the offender,
if in custody, shall be released forthwith.
Thus, the bar under sub-section (2) of
Section 23-A shall be applicable with
respect to the offences under the MMDR
Act or any Rules made thereunder.

21.5. In a case where the violator
is permitted to compound the offences on
payment of penalty as per sub-section (1)
of Section 23-A, considering sub-section
(2) of Section 23-A of the MMDR Act,
there shall not be any proceedings or
further proceedings against the offender in
respect of the offences punishable under
the MMDR Act or any Rules made
thereunder so compounded. ..."

26. It would be in the backdrop of the
aforestated fact situation that the question
with
regard
to
maintainability/
entertainability of the application filed by
the revisionist before the Magistrate under
Section 457 of the Code, would be required
to be considered.

27. As noted above, the power of the
Magistrate seeking release of the vehicle
under Section 457 of the Code was sought
to be invoked at a stage, where no
complaint had yet been moved by the
authorised officer before the competent
court and neither any cognizance had been
taken, nor the court had passed any order of
confiscation.

28. Section 457 of the Code
empowers the Magistrate to pass orders for
disposal of property which is seized by the
police and not produced in court during
inquiry or trial whenever the seizure of
property by the police has to be reported to
a Magistrate under the provisions of the
Code. The section would be applicable only
if the following two conditions are
satisfied: (i) the seizure of property by a
police officer is reported to a Magistrate
under the provisions of the Code; and (ii)
such property is not produced before a
criminal court during an enquiry or trial.

29. It is therefore, seen that in order to
attract the provisions of Section 457, it is
essential that the seizure of property is by a
''police officer', and the same is reported to
a Magistrate under the provisions of the
Code.

30. The question which therefore
arises would be as to whether seizure of the
vehicle by a Mines Inspector exercising
powers under the MMDR Act can be held
to be ''seizure of property by a police
officer'.

31. The Police Act, 1861 (Act V of
1861), which is an Act for the regulation of
624 INDIAN LAW REPORTS ALLAHABAD SERIES
police, would be required to be looked into
so as to understand as to the kind of
officers who would come within the
meaning
of
the
word
''police'.
The
Preamble of the Act indicates that the
enactment was made considering that it
was expedient to reorganise the police and
to make it a more efficient instrument for
prevention and detection of crime. Section
1 of the Police Act, which is the
interpretation clause, defines the word
''police' as including all persons who shall
be enrolled under the Act. Looking to the
object of the Act, the police force would
primarily be seen to have been organised as
an instrument for the prevention and
detection of crime and in view thereof the
term ''police officer' would refer to those
officers who are conferred with the powers
for the effective prevention and detection
of crime in order to maintain law and order.

32. It can, therefore, be said that a
person who is a member of the police force
can be said to be a ''police officer', and a
person can be held to be a member of the
police force only when he holds his office
under any of the enactments dealing with
the police. There being no statutory
definition of the expression ''police officer',
it can be stated that a police officer is a
person whom any statute or other provison
of law calls such, or, on whom it confers
all, or, substantially all the powers and
imposes the duties of a police officer.

33. The meaning of the expression
''police officer' in the context of Section 25
of the Evidence Act and the question as to
whether a customs officer can be held to be
a police officer were subject matter of
consideration in The State of Punjab v.
Barkat Ram9, and it was held that though
the expression ''police officer' is not to be
construed in a narrow way; however, the
same cannot be given such a wide meaning
as to include such other persons who may
have been conferred with certain powers. It
was held that merely because some powers
with regard to detection of infractions of
customs laws have been conferred on
officers of the customs department, the
same would not be a sufficient ground for
holding them to be ''police officer' within
the meaning of the term. The observations
made in the judgment, relevant to the
controversy at hand, are as follows:

"8. The Police Act, 1861 (Act V
of 1861), is described as an Act for the
regulation of police, and is thus an Act for
the regulation of that group of officers who
come within the word 'police' whatever
meaning be given to that word. The
preamble of the Act further says: 'whereas
it is expedient to re-organise the police and
to make it a more efficient instrument for
the prevention and detection of crime, it is
enacted as follows'. This indicates that the
police is the instrument for the prevention
and detection of crime which can be said to
be the main object and purpose of having
the police. Sections 23 and 25 lay down the
duties of the police officers and S. 20 deals
with the authority they can exercise. They
can exercise such authority as is provided
for a police officer under the Police Act
and any Act for regulating criminal
procedure. The authority given to police
officers must naturally be to enable them to
discharge their duties efficiently. Of the
various duties mentioned in S. 23, the more
important
duties
are
to
collect
and
communicate intelligence affecting the
public peace, to prevent the commission of
offences and public nuisances and to detect
and bring offenders to justice and to
apprehend all persons whom the police
officer is legally authorised to apprehend. It
is clear, therefore, in view of the nature of
10 All. Vidya Nand Yadav Vs. State of U.P.
625
the duties imposed on the police officers,
the nature of the authority conferred and
the purpose of the police Act, that the
powers which the police officers enjoy are
powers for the effective prevention and
detection of crime in order to maintain law
and order.

9. The powers of customs officers
are really not for such purpose. Their
powers are for the purpose of checking the
smuggling of goods and the due realisation
of customs duties and to determine the
action to be taken in the interests of the
revenues of the country by way of
confiscation of goods on which no duty had
been paid and by imposing penalties and
fines

12. ... the duties of the Customs
Officers are very much different from those
of the police officers and that their
possessing certain powers, which may have
similarity with those of police officers, for
the purpose of detecting the smuggling of
goods and the persons responsible for it,
would not make them police officers.

13. There seems to be no dispute
that a person who is a member of the police
force is a police officer. A person is a
member of the police force when he holds
his office under any of the Acts dealing
with the police. ..."

34. A similar qustion came up for
consideration
before
a
Constitution
Bench of the Supreme Court in Badaku
Joti Svant v. State of Mysore10, and
while considering the powers conferred
upon a Central Excise Officer in matters
relating to investigating a cognizable
case, it was held that a Central Excise
Officer can only make a complaint under
clause (a) of Section 190(1) of the Code,
and his report is not a report made by a
police officer. It was held that even if a
broad view is taken mere conferment of
powers of investigation into a criminal
offence under Section 9 would not make
the Central Excise Officer a ''police
officer'. The observations made in the
judgment, in this regard, are as follows:

"6. There has been difference of
opinion among the High Courts in India
as to the meaning of the words "police
officer" used in S. 25 of the Evidence
Act. One view has been that those words
must be construed in a broad way and all
officers whether they are police officers
properly so-called or not would be police
officers within the meaning of those
words if they have all the powers of a
police
officer
with
respect
to
investigation of offences with which they
are concerned. The leading case in
support of this view is Nanoo Sheikh
Ahmed v. Emperor, AIR 1927 Bom 4
(FB). The other view which may be
called the narrow view is that the words
"police officer" in S. 25 of the Evidence
Act mean a police officer properly socalled and do not include officers of other
departments of government who may be
charged with the duty to investigate under
special Acts special crimes thereunder
like excise offences or customs offences,
and so on. The leading case in support of
this view is Radha Kishun Marwari v.
Emperor, AIR 1932 Pat 293 (SB). The
other High Courts have followed one
view or the other, the majority being in
favour of the view taken by the Bombay
High Court.

7. ... We shall proceed on the
assumption that the broad view may be
accepted and that requires an examination
of the various provisions of the Act...

10. ... we are of the opinion that
mere conferment of powers of investigation
into criminal offences under S. 9 of the Act
does not make the Central Excise Officer a
626 INDIAN LAW REPORTS ALLAHABAD SERIES
police
officer
in
the
broader
view
mentioned above. Otherwise any person
entrusted with investigation under S. 202 of
the Cr.P.C. would become a police officer.

11. ... in these circumstances we
are of opinion that even though the Central
Excise Officer may have when making
enquiries for purposes of the Act powers
which an officer-in-charge of a police
station has when investigating a cognizable
offence, he does not thereby become a
police officer even if we give the broader
meaning to those words in S. 25 of the
Evidence Act."

35. The expression ''police officer' as
held in various judicial authorities, does not
include officers of other department on
whom certain powers of a police officer are
conferred under a particular enactment for
certain specific purposes. (See Haru v
State of MP11, The State of Punjab v
Barkat Ram9)

36. In a case where confiscation
proceeding under Section 52 of the Indian
Forest Act, 1927 in respect of a vehicle
seized for a forest offence had been
initiated, it was held that the Magistrate
exercising powers under the Code would
have no jurisdiction to order for delivery of
the vehicle or to entertain an application for
release of the vehicle. (See Jagabandhu
Mahanta v. Bijay Kumar Kar and
Another12)

37. Considering the applicability of the
provisions of Section 457 to a seizure by a
customs officer, in the case of Assistant
Collector of Customs v Smt. Maria Rege
and another13, it was held that unless the
property in question had been seized by a
police officer during inquiry or trial, the
criminal court would not get jurisdiction
under the section to deal with such seizure
and that the customs officer being not a
''police officer' the seizure of property
effected by him and disposal thereof, cannot
be taken cognizance of by a criminal court
under the section.

38. The seizure by a Forest Range
Officer under the Wild Life (Protection) Act,
1972 was also held not to attract the
provisions of Section 457 of the Code as such
officer is not a police officer. (See Babulal
Lodhi v State of Madhya Pradesh and
another14)

39. The question as to whether an
officer of the Railway Protection Force
making inquiry under the Railway Property
(Unlawful Possession) Act, 1966, could be
covered within the meaning of the expression
''police officer' under Section 25 of the
Evidence Act or Section 162 of the Code was
subject matter of consideration in Balkishan
A. Devidayal v. State of Maharashtra15,
and it was held that an officer of the Railway
Protection Force would not be a police
officer, so also would be the position of a
Customs or Excise Officer. In this regard, the
test evolved in Badaku Joti Svant (supra)
by the Constitution Bench was referred to,
which is : whether the officer concerned
under the special Act, has been invested with
all the powers exercisable by the officer- incharge of a Police Station under Chapter XIV
of the Code, qua investigation of offences
under that Act, including the power to initiate
prosecution by submitting a report (charge
sheet) under Section 173 of the Code and it
would not be enough to show that he
exercises some or even many of the powers
of a police officer conducting an investigation
under the Code. It was stated thus:-

"54. It may be recalled that the
primary test evolved in Badku Joti Savant
case by the Constitution Bench, is: Whether
10 All. Vidya Nand Yadav Vs.