Gujarat High Court
Bhavsangji Balaji Jagani Proprietor Of … vs State Of Gujarat on 20 April, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/1052/2026 ORDER DATED: 20/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (FOR MUDDAMAL) NO. 1052 of
2026
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BHAVSANGJI BALAJI JAGANI PROPRIETOR OF CHAMUNDA TRADERS
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JAY R SHAH(8428) for the Applicant(s) No. 1
MR NIRAV K PADHIYAR(5678) for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/04/2026
ORDER
1. The challenge is given to the order dated 11.03.2026
passed in Cr.MA No.1056 of 2026 by the learned 2 nd Additional
Sessions Judge, Banaskantha at Palanpur, whereby the prayer
releasing the Muddamal vehicle being ASHOK LEYLAND
DUMPER bearing registration no. GJ-08-AW-9752, Chassis no.
MB1JJDHD9PPMV2572 and Engine No. PMPZ104765, came to
be rejected, ordering confiscation.
2. Learned Advocate Mr. Jay R Shah submitted that the
order of the 2nd Additional Sessions Judge, Banaskantha at
Palanpur is prima-facie bad in law. The learned Judge was
required to deal with the application as per the provision of
Section 451 and 457 of the Code of Criminal Procedure, 1973
(for short, ‘Cr.PC‘), which are analogous provisions to Section
497 and 503 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(for short, the ‘BNSS Act’).
3. Referring to the judgment of the Hon’ble Supreme Court
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in Pradeep S. Wodeyar vs. State of Karnataka, reported in
2021 (19) SCC 62, advocate Mr. Shah submitted that here in
the present matter, the registration of the FIR was invoking
Sections 221 and 281 of the Bharatiya Nyaya Sanhita, 2023
(for short, the ‘BNS Act’) and submitted that the filing of the
charge-sheet by the police under the Mines and Minerals
(Development and Regulation) Act, 1957 (for short, ‘MMDR
Act‘) would be bad in law since no private complaint has been
filed by the geologist for the invocation of the Sections of
MMDR Act before the learned Judicial Magistrate First Class.
3.1 It is submitted by advocate Mr. Shah that the FIR
No.11195051250354 dated 15.05.2025 before the Thara
Police Station, Banaskantha has made a reference of Section
221 which refers to obstructing the public servant in discharge
of public function and Section 281 for rash driving or riding on
a public way and the charge-sheet ought to have been filed
only in connection with these both invoked sections.
3.2 Advocate Mr. Shah stated that thus, the order of the
learned 2nd Additional Sessions Judge, Banaskantha at
Palanpur allowing the application Exh.6 by the geological
department for confiscation of the vehicle would be bad in law
in absence of private complaint by the geological department
under MMDR Act.
3.3 Advocate Mr. Shah has also referred to the provisions of
Section 33 of the Protection of Children from Sexual Offences
(POCSO) Act, 2012, Section 14 of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (PoA
Act) and Section 30C of the MMDR Act, 1957, to deal with the
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initial jurisdiction of taking cognizance and committal of the
cases.
3.4 While interpreting the observations in Pradeep S.
Wodeyar (supra), advocate Mr. Shah submitted that the
Special Court has no authority to take direct cognizance of the
matter and therefore, stated that the order passed by the
learned Sessions Judge allowing the confiscation of the
Muddamal vehicle is contrary to the provision of law. Advocate
Mr. Shah submitted that it is only the Judicial Magistrate First
Class before whom the FIR had been filed would have the
jurisdiction to deal with the Muddamal vehicle and has to pass
the order as per Section 497 of the BNSS Act.
4. Countering the arguments, learned APP Ms. Asmita Patel
stated that the FIR was filed by the officer of the geology
department. It was during the course of the search when the
complainant found that there was an illegal transport of the
sand and when the officer was trying to restrain the vehicle,
the applicant had tried to run away with the Muddamal vehicle,
hence, the FIR came to be filed and during the course when
the offences under the MMDR Act were found and therefore,
those sections were invoked in the charge-sheet.
5. The operative part of the order of the learned Judge is as
under:
ORDER
1. Present Muddamal application filed by the
applicant u/s.497 of BNSS, 2023 is hereby
rejected.
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2. The application for confiscation filed at
Exh.6 by the Department is hereby allowed.
3. The Geological Department, Banaskantha
is hereby permitted to confiscate the Muddamal
Ashok Leyland Dumper bearing Engine No.
PMPZ104765 and Chasis No.
MB1JJDHD9PPMV2572 in their custody which is
lying in Thara Police Station as per rules and
regulation and submit the compliance report
within 30 days from today.
4. A copy of this order shall be sent to the
Geologist, At- Office of Geologist, Geology and
Mining Department, 2nd Floor, Jilla Seva Sadan,
Palanpur, Banaskantha, Phone: 02742-252296,
Email: [email protected]. For
necessary action at their end.
5. Copy of this order be put in the Sessions
Case No.116/2025.
6. No order as to costs.
6. While distinguishing the judgment of Jayant Etc. vs.
State of Madhya Pradesh, the Hon’ble Supreme Court in
Pradeep S. Wodeyar (supra) had made the following
conclusion:
“108.1. The Special Court does not have, in the
absence of a specific provision to that effect, the
power to take cognizance of an offence under the
MMDR Act without the case being committed to it by
the Magistrate under Section 209CrPC. The order of
the Special Judge dated 30-12-2015 taking
cognizance is therefore irregular.
108.2. The objective of Section 465 is to prevent the
delay in the commencement and completion of trial.
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such as an order taking cognizance and summons
order as well. Therefore, even if the order taking
cognizance is irregular, it would not vitiate the
proceedings in view of Section 465CrPC.
108.3. The decision in Gangula Ashok [Gangula
Ashok v. State of A.P., (2000) 2 SCC 504 : 2000
SCC (Cri) 488] was distinguished in Rattiram
[Rattiram v. State of M.P., (2012) 4 SCC 516 :
(2012) 2 SCC (Cri) 481] based on the stage of trial.
This differentiation based on the stage of trial must
be read with reference to Section 465(2)CrPC.
Section 465(2) does not indicate that it only covers
challenges to pre-trial orders after the conclusion of
the trial. The cardinal principle that guides Section
465(2)CrPC is that the challenge to an irregular
order must be urged at the earliest. While
determining if there was a failure of justice, the
courts ought to address it with reference to the
stage of challenge, the seriousness of the offence
and the apparent intention to prolong proceedings,
among others.
108.4. In the instant case, the cognizance order was
challenged by the appellant two years after
cognizance was taken. No reason was given to
explain the inordinate delay. Moreover, in view of
the diminished role of the committal court under
Section 209 of the Code of 1973 as compared to the
role of the committal court under the erstwhile Code
of 1898, the gradation of irregularity in a cognizance
order made in Sections 460 and 461 and the
seriousness of the offence, no failure of justice has
been demonstrated.
108.5. It is a settled principle of law that cognizance
is taken of the offence and not the offender.
However, the cognizance order indicates that the
Special Judge has perused all the relevant material
relating to the case before cognizance was taken.
The change in the form of the order would not alter
its effect. Therefore, no “failure of justice” under
Section 465CrPC is proved. This irregularity would
thus not vitiate the proceedings in view of Section
465CrPC.
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108.6. The Special Court has the power to take
cognizance of offences under the MMDR Act and
conduct a joint trial with other offences if
permissible under Section 220CrPC. There is no
express provision in the MMDR Act which indicates
that Section 220CrPC does not apply to proceedings
under the MMDR Act.
108.7. Section 30-B of the MMDR Act does not
impliedly repeal Section 220CrPC. Both the
provisions can be read harmoniously and such an
interpretation furthers justice and prevents hardship
since it prevents a multiplicity of proceedings.
108.8. Since cognizance was taken by the Special
Judge based on a police report and not a private
complaint, it is not obligatory for the Special Judge
to issue a fully reasoned order if it otherwise
appears that the Special Judge has applied his mind
to the material.
108.9. A combined reading of the Notifications dated
29-5-2014 and 21-1-2014 indicate that the Sub-
Inspector of Lokayukta is an authorised person for
the purpose of Section 22 of the MMDR Act. The FIR
that was filed to overcome the bar under Section 22
has been signed by the Sub-Inspector of Lokayukta
Police and the information was given by the SIT.
Therefore, the respondent has complied with Section
22CrPC.
108.10. The question of whether A-1 was in charge
of and responsible for the affairs of the company
during the commission of the alleged offence as
required under the proviso to Section 23(1) of the
MMDR Act is a matter for trial. There appears to be
a prima facie case against A-1, which is sufficient to
arraign him as an accused at this stage.”
7. In the case of Pradeep S. Wodeyar (supra), it has been
noted that the Special Court does not have in absence of
specific provision to the effect the power to take cognizance of
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the offence under the MMDR Act which requries the case being
committed to it by the Magistrate under Section 209 of Cr.PC.
It has been noted by observing the cardinal principles that
guides Section 465(2) of Cr.PC, that the irregular orders have
to be challenged at the earliest. While elaborating on the
principle of law that cognizance has taken on the offence and
not the offender, it has been reflected in the judgment that the
Special Court has the power to take cognizance of the offence
under MMDR Act and conduct a joint trial with the other
offences if permissible under Section 220 of Cr.PC observing
that there is no expressed provision in the MMDR Act which
indicates that Section 220 of Cr.PC does not comply to the
proceedings under the MMDR Act.
7.1 The Fact was also taken notice with the cognizance taken
by the Special Judge on the police report and not on private
complaint.
8. Here, in this present matter, it is required to be noted
that the FIR is under Section 221 and 281 of the BNS Act. The
application moved by the geology department Exh.6 is in
connection with the FIR which has been filed. The noticeable
fact is that no private complaint has been lodged by the
geologist before the Judicial Magistrate First Class under the
MMDR Act and the matter has not been committed to the
Special Court as laid down in the case of Pradeep S. Wodeyar
(supra). The private complaint was required to be filed by the
geology department for the cognizance to be taken under the
act. The appellate Court has failed to deal with this issue. The
vehicle has not been confiscated by the department after
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following the provision under Section 23B of the MMDR Act.
8.1 Section 21(4) of the MMDR Act and Section 21(4A) are
reproduced here-in-below:
“…S.21(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.
S.21(4A) 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.]8.2 Section 22 of the MMDR Act is also reproduced here-in-
under:
“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 the State
Government.”
8.3 It is also to be noted that Section 23A makes provision
for compounding the offence.
9. The application Exh.6 had been moved referring to the
Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining,
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Transportation and Storage) Rules 2017 which is as under:
“12. Seizure of property liable to confiscation.-
(1) 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
other thing (hereinafter referred to as “property”)
shall be liable to be seized by the Government in the
manner specified in sub-rule (2) of this rule.
(2) [Every Authorised Officer seizing any property
under these rules shall photograph the property and
place on such property a mark in such manner as
may be determined, indicating that the same has
been so seized and shall:
(a) issue a notice in Form J informing the person from
whom the property is seized of the property so seized,
and release the property so seized upon receipt of a
bank guarantee for an amount equal to-
(i) the penalty payable under rule 21, in case of
transportation of, or causing to transport, mineral
without lawful authority; or
(ii) the written down value of the property, in case of
illegal mining or illegal storage of mineral:
Provided that, release under clause (a) of sub-rule
(2) shall be without prejudice to and shall not in
any manner affect the conduct of investigations
and other actions contemplated under clause (b) of
sub- rule (2).
Explanation: Under these rules property is seized as a
security against the amount of penalty due to the
Government and to ensure the presence of the
alleged offender before the Government if the case is
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at notice stage.]
(b)[conduct,
(i) an investigation and if he is satisfied that a
compoundable offence has been committed in respect
of the property, he may, subject to receipt of a
compounding application, order payment of such
amount for compounding the offence as may be
deemed appropriate, which amount, if not paid within
thirty days, may be recovered by invocation of the
bank guarantee furnished under clause (a) of sub-rule
(2); or
(ii) a preliminary investigation, and if compounding is
not permissible under rule 22 or if he is satisfied that
the offence committed in respect of the property is
not compoundable, upon the expiry of forty-five days
from the date of seizure or upon completion of the
investigation, whichever is earlier, shall approach by
way of making a written complaint, before the Court
of Sessions.
Explanation: Any offence under these rules shall be
tried by the Court of Sessions in accordance with the
Procedure laid down under the Code of Criminal
Procedure, 1973;]
(3) [Where the court is satisfied that an offence has
been committed and is punishable under these
rules, the court may order for,-
(a) penalty in accordance with rule 21,
(b) confiscation of the property under sub-section
(4A) of section 21 of the Act, where the property
seized under sub-rule (1) above is produced before
a court under sub-clause (ii) of clause (b) of sub-
rule (2).]”
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9.1 Under Rule 12, the authorized officer who seizes the
property is required to issue notice in Form J informing the
person from whom the property is seized that it would release
the property so seized upon receipt of bank guarantee for an
amount equal to the penalty payable under Rule 21 in case of
transportation or causing to transport mineral without lawful
authority or the written down value of the property in case of
illegal mining or in case of storage of minerals. The application
Exh.6 does not refer to any issuance of Form J informing the
applicant regarding the invocation of Gujarat Mineral
(Prevention of Illegal Mining, Transportation and Storage)
Rules 2017, Rule 12. Further confiscation of vehicle can be
ordered only after the procedure under Section 21 of MMDR
Act.
10. The inherent irregularity which has led to illegality in the
matter would be that the FIR is under the BNS Act and the
charge-sheet which was required to be under BNS Act, has
been filed under MMDR Act without a private complaint being
filed for the Magistrate to take the cognizance and to commit
the case to the Special Court.
11. The vehicle has been seized in connection with the FIR
while the applicant was not informed by way of Form J of
MMDR Act which could have given him the opportunity to
exercise the option as per Rule 12. Without following the
procedure, the application Exh.6 has been allowed permitting
the geological department to confiscate the Muddamal vehicle,
the custody which is lying in Thara Police Station.
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12. The order of the learned 2nd Additional Sessions Judge,
Banaskantha at Palanpur prima-facie is bad in law.
13. Since the seizure is in connection with the FIR under
Sections 221 and 281 of the BNS Act and having perused the
judgment of Bapalsinh Dolatsinh Jadeja vs. State of Gujarat,
reported in 2017 (0) GUJHC 38883, the present revision
application is allowed.
14. In the case of Sundarbhai Ambalal Desai v. State of Gujarat
reported in 2002 (10) SCC 283, the Hon’ble Apex Court dealt with
the provision of Section 451 of Cr.P.C. and has stated in Paragraphs
5 and 7 as under:-
“5. Section 451 clearly empowers the Court to
pass appropriate orders with regard to such
property, such as-
(1) for the proper custody pending conclusion
of the inquiry or trial;
(2) to order it to be sold or otherwise disposed
of, after recording such evidence as it think
necessary;
(3) if the property is subject to speedy and
natural decay, to dispose of the same.
14.1 In our view, the powers under Section 451 Cr.P.C. should
be exercised expeditiously and judiciously. It would serve
various purposes, namely:-
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“1. Owner of the article would not suffer
because of its remaining unused or by its
misappropriation;
2. Court or the police would not be
required to keep the article in safe custody;
3. If the proper panchanama before
handing over possession of article is
prepared, that can be used in evidence
instead of its production before the Court
during the trial. If necessary, evidence
could also be recorded describing the
nature of the properly in detail; and
4. This jurisdiction of the Court to
record evidence should be exercised
promptly so that there may not be further
chance of tampering with the articles.”
15. In view of the above, the authority concerned is directed to
release the Muddamal vehicle being ASHOK LEYLAND DUMPER
bearing registration no. GJ-08-AW-9752, Chassis no.
MB1JJDHD9PPMV2572 and Engine No. PMPZ104765 in favour
of the applicant on the terms and conditions that the applicant:-
(i) shall execute a bond of Rs.5,00,000/-,
(Rupees Five Lacs Only);
(ii) shall file an undertaking on oath before
the concerned Trial Court that prior to
alienation or transfer of the vehicle in any
mode or manner, prior permission of the
concerned Trial Court shall be taken;
(iii) shall also file an undertaking on oath to
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the Trial Court.
16. In view of the above, the present application is allowed in the
above terms. Direct Service is permitted.
(GITA GOPI,J)
PARMAR KRISH/60
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