Kartik Welswami Yesne vs State Of Maharashtra & Ors.

(PER URMILA JOSHI PHALKE, J.) :

Heard. Rule. Rule made returnable forthwith. Taken up for final disposal with the consent of learned counsel for the parties.

By the present petition, the petitioner is seeking directions to the Police Station Officer, Police Station Parseoni to hand over the custody of seized vehicle Ashok Lay Land Tipper/Dumper bearing registration No.MH-37-T-1976 having Chassis No.MB1HTDHD5KRGB8896 and Engine No.KGHZ401227 to the petitioner.

As per the contention of the petitioner, Crime No.253/2026 was registered on 17.03.2026 under Sections 303(2), 49 and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short, ‘BNS, 2023’) and under Sections 48 (7) and 48 (8) of the Maharashtra Land Revenue Code 1966 (for short, ‘MLR Code’), Sections 21 and 4 of Mining and Minerals Act, 1957 and Section 3 of the Public Property Destruction Act, 1984 as the vehicle was involved in the illegal, unauthorized transportation of sand. As per the allegations in the First Information Report that Police Officer Gyanedra Shyamsunder Tiwari received the information when he was on patrolling duty that Tipper Truck is transporting the sand illegally on Dorli to Tamsawadi road. He immediately with other police staff intercepted the truck. Truck driver was asked to take the truck at the side of the road. But truck driver though stopped the vehicle but eloped from the spot of incident. The said truck was followed by one person to whom he enquired and he has disclosed the name as Kartik Welswami Yesne i.e. the present petitioner. He was enquired about the 5 brass of sand and he disclosed that he is not having any permit. Therefore, the offence was registered against him. On the basis of the FIR lodged by the Police Officer, above said crime was registered and during investigation, the truck bearing No.MH-37/T-1976 was seized and the petitioner was arrested. The petitioner was produced before the Court. He applied for the bail and bail was granted to him. He also filed an application bearing No.28/2026 for release of the vehicle. The said application was strongly opposed by the State on the ground that if the vehicle was handed over to the petitioner, he would again misuse the same. Learned Magistrate after hearing both the sides allowed the application and directed Parseoni, Police Station to hand over the custody of seized vehicle by passing the order on 09.06.2026.

As per the contention of the petitioner despite the order of Magistrate Police Officer Mr. Kishor A. Sherki intentionally detained his vehicle. Though, he prepared the various documents and taken entry in the general diary but physical possession of the truck was not handed over to the petitioner and thereby restrained the petitioner from taking the possession of the said vehicle. Therefore, petitioner approached to this Court.

The said application is strongly opposed by the State on the ground that the police have already handed over the vehicle to the present petitioner on 10.06.2026 itself. Accordingly, the panchanama was drawn. The supratnama executed by the petitioner is also obtained on 10.06.2026. The panchanama drawn on 10.06.2026 shows that physical possession of the vehicle was handed over to the present petitioner. The general diary entry No.24 dated 10.06.2026 taken at 3.57 p.m. also discloses that the vehicle was handed over to the petitioner. The entry in the extract wherein the petitioner has signed and disclosed that he has received the possession of the vehicle. The photograph obtained at the time of handing over the key also shows that the possession of the vehicle is already handed over to the present petitioner. Thus, nothing is on record to show that Police Officer of Parseoni Police Station have detained the vehicle despite the order passed by the Magistrate.

Heard learned counsel for the petitioner who reiterated the contention and taken us through the various documents and submitted that despite the order was passed by the Judicial Magistrate, First Class, the Police Officer Kishor A. Sherki shown that vehicle was handed over to the present petitioner. However, he snatched the key of the vehicle on 10.06.2026 and physical possession was not handed over. Thus, she submitted that the conduct of the Police Station Officer Mr. Kishor A. Sherki is illegal and he un-authorizedly retained the vehicle and disobeyed the order of Judicial Magistrate First Class, Parseoni. Therefore, direction be issued to him to hand over the possession of the said vehicle.

Learned APP Mr. N.R.Patil assisted by learned APP Mr. Amit Chutke strongly opposed the said contention and submitted that the documents on record shows that physical possession of the vehicle was already handed over. It was the Revenue Authority who has obtained the possession of the said vehicle and kept at the police station. The Police Officer Mr. Kishor Sherki is not at all responsible for detention of the said vehicle. In view of that, allegation levelled against the present Police Officer is false.

The concerned Police Officer Mr. Kishor A. Sherki has also given his explanation. He tendered his sincere and unconditional apology to this Court in respect of the show cause notice in suo motu contempt proceeding issued by this Court against him. He submitted that he never intended to interfere in the process of law and with the administration of justice. He did not interfere in the process of law as he has already complied with the order of learned Judicial Magistrate First Class, Parseoni dated 09.06.2026 and already handed over the possession of the said truck on 10.06.2026 to the petitioner which was acknowledged by the petitioner at 3.57 hours and the keys of the said truck was already received by the petitioner. At the relevant time, the Revenue Department seized the said truck from the petitioner. Thus, thereafter the said truck has been in the possession of Revenue Department. He asked the Revenue Department to remove the same from the police station. Learned Judicial Magistrate, First Class Parseoni in paragraph No. 10 of the said order dated 09.06.2026 has observed that the penalty amount in respect of seized vehicle is due towards the applicant, for the recovery of said amount, the concern authority may initiate separate action against the applicant. Therefore, for the recovery of due penalty amount, this application cannot be rejected.” He submitted that the petitioner is a habitual offender and has suppressed material facts from this Court and he has not approached to this Court with clean hand. For all above these reasons, he submitted that the order directing the initiation of disciplinary action against him by the Superintendent of Police, Nagpur may be recalled by this Court.

After hearing both the sides and on perusal of the documents it reveals that Crime No.253/2026 was registered on 29.04.2026 against the present petitioner on an allegation that he was found transporting the sand illegally without having any permit to transport the same. On 29.04.2026 Police Officer Gyanedra Shyamsunder Tiwari received the information and on the basis of the said information, he intercepted the truck. The driver was found transporting 5 brass sand without having permit. On interception of the said truck, the driver eloped from the place. The truck was followed by the present petitioner who is owner of the said truck. On enquiry with the present petitioner, name of the truck driver was revealed. Accordingly, Police Officer Gyanedra Shyamsunder Tiwary has drawn the panchanama of the said truck and said truck was handed over to the Parseoni Police Station.

The investigation papers further revealed that on 29.04.2026 itself the notice under Section 35(1)(B) of the BNSS, 2023 was issued to the present petitioner giving the reasons for his arrest. The said notice was received by him and thereafter he was arrested. On 30.04.2026 he was produced before Judicial Magistrate First Class, Parseoni/Ramtek. The remand report was accompanied by FIR, arrest form and notice of arrest. On enquiry by the Magistrate, this petitioner has not made any complaint about the Police Officer Gyanedra Shyamsundar Tiwari or any complaint as to the physically harassment to him. Therefore, he was remanded to the Magistrate custody. On the same day, he preferred an application for grant of bail. Accordingly, he was released on bail on 30.04.2026 itself. Thereafter on 01.05.2026 the petitioner made complaint against Police Officer Gyanedra Shyamsundar Tiwari and Umesh Pal alleging that they have demanded gratification amount from him for not taking action against him. Similar complaint was made by him on 02.05.2026 to the various Senior Police Officers. Thereafter he preferred an application on 01.05.2026 for release of the vehicle. In the meantime on 06.05.2026 Tahsildar Parseoni issued him a notice asking him to show cause why action should not be taken against him under Section 48 (7) and (8) of the MLR Code dated 06.05.2026. The application of the present petitioner for release of the vehicle was opposed by the State. After filing of the application for release of the vehicle, the petitioner again made complaint to Home Secretary against Gyanedra Tiwari, Umesh Pal and Harsh Potdar, S.P Gramin. The communication was given by the Tahsildar, Parseoni to the Police Officer, Police Station Parseoni for not to release the vehicle unless penalty is deposited by the present petitioner. On 09.06.2026 itself the Magistrate passed an order observing that the penalty amount in respect of seized vehicle is due towards the applicant, for the recovery of said amount, the concern authority may initiate separate action against the applicant. Therefore, for the recovery of due penalty amount, this application cannot be rejected and allowed the application by imposing some conditions. It further reveals from the record that the concerned Police Station received communication for release of the vehicle on 09.06.2026 itself. On 10.06.2026 petitioner executed a supratnama. Accordingly, the panchanama was drawn by the concerned Police Station showing that physical custody of the vehicle was handed over to the petitioner. The general diary entry also discloses that vehicle was handed over to the present petitioner. The entry in the concerned registered dated 10.06.2026 wherein the petitioner mentioned that he has received the key of his vehicle. The photograph dated 10.06.2026 also shows that key of the vehicle was handed over to the petitioner.

It is alleged by the petitioner that though the documents were prepared by the concerned Police Station Officer showing that the vehicle was handed over. However, physically it was not handed over and keys were snatched from him. Whether this allegation is substantiated by any material is required to be seen. The communication of Talathi Mouja Parseoni dated 10.06.2026 addressed to the Police Inspector, Police Station Parseoni received at the Police Station at about 4.49 p.m. shows that Talathi has made a request to the Police Officer that as the petitioner has not deposited the amount of penalty, the vehicle should not be handed over to the petitioner. The panchanama dated 10.06.2026 further shows that the petitioner has not deposited the said amount and therefore, the vehicle is kept at Police Station, Parseoni. It is further mention in the said mauka panchanama that the petitioner shall deposit the penalty amount and thereafter shall take his vehicle. The general diary entry dated 10.06.2026 of 4.49 p.m. also discloses that on the request of the Talathi, Parseoni the vehicle was kept at Police Station itself.

Admittedly, the Tahsildar has passed an order imposing a fine or penalty on the petitioner on 15.06.2026. Thus, it reveals that on 10.06.2026 no order as to the penalty was imposed. Though Police Officer Kishor Sherki has mentioned in his affidavit that he has handed over the vehicle to the petitioner on 10.06.2026. However, general diary entry dated 10.06.2026 is contrary to that. The said general diary entry itself shows that on the request of Talathi, Parseoni the vehicle was not handed over to the petitioner and it was kept at Police Station.

Learned APP placed reliance on the judgment of Hon’ble Apex Court in the case of K.D. Sharma vs. Steel Authority of India Limited and ors. reported in (2008) 12 SCC 481 wherein it is held that where the petitioner makes false statement or concealing material facts and mislead the Court, the Court may dismiss the petition at the threshold. This judgment is not applicable in the present case as the facts on record shows that it was Police Officer who has not followed the order of Judicial Magistrate. Therefore, the contention of the learned APP that the petitioner has made false statement is not acceptable.

Admittedly, the notice was given by the Tahsildar to the petitioner why the penalty should not be imposed by invoking provision under sub-section 7 of Section 48 of the MLR Code. The provisions of sub-section 7 and 8 of Section 48 of the MLR Code come into operation only when seized sand is found to be illegal excavated or illegally transported thereby showing that the State Government continues to have a right in respect of the sand. What can be imposed by way of penalty by the Tahsildar by invoking his power under sub-section (7) of Section 48 of MLR Code is only that penalty which is for illegal transportation of sand is only to the extent of five times of the market value of the minerals transported in addition to the amount of royalty and nothing more. On reading of Sub-section (8)(1) of Section 48 of the Code, it is noticed that the Collector or any revenue officer, not below the rank of Tahsildar, authorised by the Collector in this behalf, may seize and confiscate any mineral extracted, removed, collected, replaced, picked up or disposed of from any mine, quarry or other place referred to in Sub-section (7) of Section 48. The right to which vests in, and has not been assigned by the State Government and may also seize and confiscate any machinery and equipment used for unauthorised extraction, removal, collection, replacement, picking up or disposal of minor minerals and any means of transport deployed to transport the same. Sub-section (2) obligates the authority to produce the vehicle before the Collector or such other officer not below the rank of Deputy Collector within forty-eight hours, who may release the machinery on payment by the owner, such penalty as may be prescribed and also on executing personal bond specified in Sub-section (2). The penalty in respect of vehicle has not been provided in Section 48(8)(2), but as a precondition for release of the vehicle, a personal bond and undertaking of the owner is required. Whereas, rule 9 provides for penalty in respect of machinery and equipment used for unauthorized extraction, removal, collection, replacement, picking up or disposal of minor minerals and the means of transportation. The imposition of penalty in respect of vehicle and equipment is distinct than the condition imposed in respect of release of seized machinery or vehicle or equipment on production of the same before the Deputy Collector/Sub-Divisional Officer. The condition in respect of execution of a bond as a precondition for release of the vehicle cannot be equated with the imposition of penalty for violation, as provided under Rule 9. It cannot be contended that the rule, that has been framed, is beyond the rule making power of the State Government or that the same is contrary to any substantive provision of law.

The above provision of Section 48 sub-section (7) and 8(1) and (2) of the MLR Code, 1966 makes it abundantly clear that the revenue authorities are empowered to impose penalty on a person for illegal excavation of sand similarly, Section 48(8)(1) of MLR Code, 1966 prescribes the procedure for seizure of the vehicle involved in alleged illegal excavation. Likewise, provision of Section 48(8)(2) of the MLR Code, 1966 deals with a procedure for release of a seized vehicle. The said provision contemplates production of seized vehicle before the Deputy Collector within a period of 48 hours. Upon such production of the seized vehicle, the Deputy Collector is empowered to release the said vehicle on payment of penalty and also by executing a bond not exceeding the market value of the seized vehicle.

We thus find that in the present case, the procedure prescribed under Section 48(8) (1) and (2) has not at all been adhered to as except bare words there is nothing on record to show the respondent/authorities have complied with the said procedure. On the contrary, the respondents are relying merely on the averments in the FIR to contend that the respondents have seized the said vehicle on 10.06.2026. We therefore, are of the view that the seizure of the vehicle by the revenue authorities is not in consonance with Section 48(1) and (2) of the MLR Code.

When a statue require certain things to be done in a particular manner, the same is required to be done in that manner alone and not otherwise. The Hon’ble Apex Court in the case of Babaji Kondaji Garad and Ors. vs. Nasik Merchants Co-operative Bank Ltd. Nasik and ors. reported in AIR 1994 SC 192 in paragraph No.13 observed as under:-

In the case of Chandra Kishor Jha vs. Mahavir Prasad and Ors. reported in AIR 1999 SC 3558 wherein also the Hon’ble Apex Court held as under:-

We, therefore, find that the action of respondents in retaining the said vehicle without complying with the statutory provision of Section 48(8)(1) and (2) of MLR Code despite there being an order passed by the learned Judicial Magistrate First Class for handing over possession of the said vehicle is erroneous and therefore, we are inclined to exercise our jurisdiction under Article 226 of the Constitution of India.

Even otherwise the vehicle should not be kept idle in the premises of the police station and an arrangement is required to be made till the remedy of the appeal is exhausted by the petitioner. We therefore, are of the view that the said vehicle of the petitioner cannot be allowed to remain idle.

We are also found that in the affidavit Police Officer Mr. Kishor A. Sherki submitted that he has not interfered in the process of law and with the administration of justice and he had already complied with the order of learned Judicial Magistrate First Class dated 09.06.2026 and already handed over the possession of the said truck on 10.06.2026 to the petitioner and the petitioner has duly acknowledged the same at 3.57 hours and the keys of the said truck was already received by the petitioner on that day. Thereafter the Revenue Department seized the same from the petitioner. Thus, thereafter the said truck has been in possession of the Revenue Department. He asked the Revenue Department to remove the same, instead of police station to Revenue Department. He further submitted in his affidavit that the communication dated 29.06.2026 on his part to the Tahsildar, Parseoni and same may be considered on record by this Court as his explanation.

In view of the contention raised in the affidavit, we have perused the communication dated 29.06.2026. Admittedly, the order was passed by the Judicial Magistrate on 09.06.2026. As per record of the Police Station. Suprutnama was executed by the petitioner on 10.06.2026. The panchanama handing over possession of the vehicle was also drawn by Parseoni Police Station on 10.06.2026. The general diary entry was taken on 10.06.2026. The entry in the register also shows that the acknowledgement was obtained from the petitioner regarding receipt of the key of the vehicle on 10.06.2026. The photograph showing handing over the keys is also of 10.06.2026. However, the general diary entry on 10.06.2026 on the basis of communication issued by Talathi dated 10.06.2026 shows that the vehicle was not handed over to the petitioner on 10.06.2026 but it was retained in the police station on the request of the said Talathi Amit Gaikwad. From the said general diary entry, it is crystal clear that, though the document showing possession of handing over but in fact possession of the vehicle was not handed over to the petitioner and it was retained in the police station. It was completely disobedience of the order of learned Judicial Magistrate, First Class, which is interference in the administration of justice. Therefore, we are not inclined to accept the request of concerned Police Officer Kishor A. Sherki. The Co-ordinate Bench while passing an order on 30.06.2026 observed that the conduct of Mr. Kishor A. Sherki clearly amounts to interference in the process of law and the administration of justice. When this Court was ceased with the matter and the Tahsildar was called upon to remain present in the Court, Mr. Kishor A. Sherki directed the Tahsildar to carry away the Truck and therefore, this Court directed the Superintendent of Police, Nagpur (Rural) to initiate proper disciplinary action against Mr. Kishor A. Sherki by following the due procedure laid down in the law for his above conduct.

From the record, it is crystal clear that Police Officer Mr. Kishor A. Sherki despite the order of Judicial Magistrate First Class, Ramtek directing to release the vehicle acted upon the communication issued by Talathi and not handed over the vehicle to the petitioner. Station diary entry supports that there was no compliance of the order of the learned Magistrate and vehicle was kept in the police station despite the petitioner has complied with the direction of the Judicial Magistrate First Class as to execute of suprutanama and therefore, the action and directed by this Court by order dated 30.06.2026 requires to be maintained.

Before parting, we deem it appropriate that considering the order passed by the Tahsildar on 15.06.2026 it would be appropriate to put the petitioner to certain conditions for directing the respondents to release the said vehicle. The order passed by the Tahsildar dated 15.06.2026 shows that the petitioner was found excavating the sand and transported the same illegally and therefore, penalty of Rs.1,45,380/- was imposed upon him under Section 48(7) of the MLR Code. We therefore, deem it appropriate to direct the petitioner to deposit the amount of Rs.1,45,380/-(Rs. One Lakh Forty Five Thousand Three Hundred and Eighty Only) with the Sub Divisional Officer, Ramtek within a period of four weeks from today which would be a condition precedent for release of the said vehicle of the petitioner.

In view of that, we proceed to pass the following order:-

With the above, Writ Petition is disposed of. Rule is made absolute in the aforesaid terms. No order as to costs. Pending applications if any stands disposed of.