Law Web: What conditions magistrate can impose for the release of a vehicle on supratnama seized for carrying sand?

The learned counsel for the petitioner also relied on the

ratio laid down by the Division Bench of this Court in Writ Petition

No. 7873 of 2019 dated 01st July, 2019, it is held that

“4. Considering that vehicles would be lying idle and it

will not be in anybodies interest to keep the vehicles

idle, we would allow the release of the vehicles on

following conditions :

(i) The petitioners in each of these petitions

shall deposit an amount of Rs. 1,00,000/- for

release of vehicles.

5. Upon deposit of this amount, the Authority shall

release the vehicles after identifying its legitimate owner,

after verifying the documents and on petitioners’

submitting the bond, so also after complying with all

terms and conditions put forth by the J.M.F.C. while

directing release of vehicles.

6. The deposit of Rs. 1,00,000/- each with Revenue

Authority by petitioners would be without prejudice to

the rights and contentions of either parties.”

10. In view of the above observations of the Division Bench of

this Court the condition of payment of fine amount cannot be faulted

or cannot be held as illegal, but at the same time the condition of

indemnity bond appears to be stringent, which is required to be set

aside. With this, I proceed to pass following order :

ORDER

1. The petition is partly allowed.

2. The Vehicle bearing No. MH-16-CC-9397 be

returned to its owner on a bond of Rs. 15,00,000/- (Rs.

Fifteen Lakhs).

3. The petitioner is directed to deposit Rs.

1,50,000/- (Rs. One Lakh and Fifty Thousand) towards

fine amount without prejudice to the rights and

contentions of either parties before the Revenue

Authority.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.947 OF 2021

Vikas Uttam Shinde, Vs State of Maharashtra

CORAM : SURENDRA P.TAVADE , J.

DATE : 2nd September, 2021.

1. Rule. Rule made returnable forthwith. By consent of

learned counsel for both the parties, heard finally at the admission

stage.

2. The petitioner is owner of Tata Tipper bearing No. MH-16-

CC-9397. It is alleged that on 24.07.2021 the crime No. 170 of 2021

was registered with Chakalamba Police Station, Tq. Georai, Dist Beed

for the offences punishable under Sections 379 and 511 of the Indian

Penal Code (for short ‘IPC’) read with Section 48 of the Maharashtra

Land Revenue Code (for short “MLR” Code) against seven unknown

persons and in all seventeen vehicles were seized including the

vehicle of the petitioner. It is contended that the petitioner has filed

an application for return of the vehicle under Section 457 of the Code

of Criminal Procedure (for short ‘Cr.P.C.’) before the learned Judicial

Magistrate First Class (for short “JMFC”) Georai, Tq. Georai, District

Beed. The said application was heard and decided on 13.08.2021.

3. Trial Court has allowed the application but imposed the

condition to execute an indemnity bond of Rs.20,00,000/- for the

release of the vehicle. Similarly the trial Court also directed the

petitioner to deposit Rs. 1,50,000/- with Tahsildar, Georai towards

the penalty amount. Both the conditions are challenged in this

petition.

4. It is contended that in all 17 vehicles were seized by

police and there is charge under Section 511 of the IPC against the

drivers and owners of the seized vehicles. It is contended that no

contraband sand was found in the seized vehicles, therefore, there is

no question of imposing any penalty. It is also contended that the

condition of execution of indemnity bond is very stringent as no

offence was committed by the drivers of the vehicles. It is contended

that in similar cases this Court has released the vehicles on bond.

Therefore, the impugned condition be set aside.

5. On the other hand, learned APP submits that the vehicles

were seized from the bed of river. The drivers and owners of the

vehicle were trying to excavate the sand from the bed of river and

after intervention of police the offence was averted. It is contended

that the revenue authority has power to impose penalty for the illegal

excavation of sand which is being transported, therefore, the order of

the trial Court is correct and proper and there is no need to interfere

with.

6. Perused the impugned order. It appears that the trial

Court has considered the order passed by the Tahsildar, whereby,

fine was imposed on petitioner to the tune of Rs. 2,38, 320/-. Out of

the said fine amount, the learned Magistrate directed the petitioner to

deposit Rs. 1,50,000/-. On this point, learned counsel for the

petitioner relied on the ratio laid down by this Court in the case of

Madhav Sahebrao Shinde Vs. the State of Maharashtra,- Criminal

Application No. 2341 of 2020 dated 12.01.2021. wherein, the learned

Magistrate allowed the application subject to several conditions which

reads as under :

“3) The Investigating Officer through Revenue Authority

shall produce the truck before the Deputy Collector on

or before 09.11.2020 and on completion of necessary

formalities as observed by Hon’ble Bombay High Court

in Case of Dhannu Phapal (supra), the vehicle shall be

released.

8) The instant order shall be without prejudice to the

powers of Collector, Deputy Collector and Executive

Magistrate to proceed pursuant to the provision of

Section 48 of the Maharashtra Land Revenue Code and

truck shall not be returned until he exhausts powers in

that regard.”

7. This Court has further held that :

“true it is that though the offence has been registered and

it would take its own course and would reach its logical

course. The revenue authority has power under Section 48

of the MLR Code in which they are entitled to exercise, the

last portion of condition No. 8 prevents operation of the

order passed by the Magistrate under Section 457 of the

Cr.P.C. till the revenue authorities exhaust the remedies

and powers under Section 48 of the Maharashtra Land

Revenue Code. It clearly undermines the former’s

jurisdiction and is not sustainable in law.”

8. In the present case the trial Court held that the revenue

authority has imposed fine of Rs. 2,38,320/-, therefore, the condition

of payment of fine amount is not contingent upon the decision of the

revenue authority.

9. The learned counsel for the petitioner also relied on the