Judgment:
G. B. Patnaik, J.
1. A common question of law is involved in these writ applications and, therefore, they were heard together and are being disposed of by this common judgment.
2. Levy of penalty by the Officer-in-Charge of the Police Station in exercise of powers under the provisions of the Mines & Minerals (Regulation & Development Act, 1957 (hereinafter referred to as the 'Act') is under challange in these writ applications on the ground that the Officer-in-Charge has no power to levy fine or penalty and the truck having been seized and the amount having been collected forcibly, the said order of levy must be quashed and the amount may be refunded to the petitioner. It is alleged in the writ application that while the vehicle was transporting coal on the relevant date, the same was seized by the Officer-in-Charge of the Police Station alleging that an offence under Section 21 of the Act has been committed and then the impunged levy of penalty was passed forcing the petitioner to deposit the same as a condition precedent for release of the truck. The petitioner thereafter ' filed some representations to the higher authorities, but not having received any reply from any of them ultimately approached this Court.
3. Though the petitioner asserts that it was a levy of fine, but Annexure-2 that has been annexed to the writ petition clearly indicates that the amount in question was in respect of compounding the offence which is permissible under Section 23A of the Act. Section 23A of the Act may be extracted herein below in extenso :-
23A. 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, on 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, if in custody, shall be released forthwith.
Therefore, in respect of an offence committed by a person under the Act or the Rules made thereunder, the person authorised to make a complaint under Section 22 is entitled to compound the same. But such a compounding is permissible only when the accused agrees for compounding. Where at the time of seizure, the person concerned challenges the set of seizure itself on the ground that no offence has been committed, the authority to compound under Section 23A cannot clothe himself with the power to determine the amount and collect the same as a condition precedent for releasing the truck in question. In the absence of any counter affidavit on behalf of the State, we have no other option than to come to the conclusion that the Officer-in Charge unilaterally exercised his power of compounding under Section 23A of the Act and determined the amount and collected the same from the petitioner on the pretext that an offence under Section 21 of the Act had been committed and even though the petitioner never agreed for such compounding and notwithstanding the protest by the petitioner, the amount was collected for releasing the truck in question. Such a unilateral act on the part of the concerned authority must be held to be without jurisdiction, though we have no hesitation to come to the conclusion that in the case where the accused agrees power of compounding has been provided under Section 23A of the Act. In this view of the matter, the impugned order under Annexure- 1 must be held to be invalid and inoperative and we accordingly quash the same. The amount realised may be refunded to the petitioner within four weeks from the date of receipt of our order. Needless to mention that if the authorities so choose they may proceed against the petitioner in criminal action.
Each of the writ applications is accordingly allowed. There will, however, be no order as to costs.
R. K. Patra, J.
4. I agree.