CRL RC/742/2020 of SELVARANGAM Vs STATE REP. BY on 31 December 2020

THE HIGH COURT OF JUDICATURE AT MADRAS

CORAM

THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

Selvarangam ... Petitioner/Owner of the VehicleS/o.RamakrishnanVs.

State rep.by ... Respondent/ComplainantThe Inspector of Police,Vedaranyam Police Station,Nagapattinam District.(Crime No.1001/2020)

Criminal Revision Petition filed under Sections 397 r/w.401 of Criminal Procedure Code to call for the records and setaside the common order dated 19.08.2020 passed by the learnedDistrict and Sessions Judge, Nagapattinam, in Crl.M.P.No.2149of 2020 in Crime NO.1001 of 2020 and to return the Tractorwith tipper bearing registration No.TN-51-J-4489, ChassisNo.IPY5042DACA001089 and Engine No.PY3029D304055 to thecustody of the petitioner.

For Petitioner : Mr.N.PalanivelFor Respondent : Mr.C.Iyyappa Raj Additional Public Prosecutor In continuation and conjunction to the order passed bythis Court dated 18.11.2020, this Court is inclined to passthe following order.

2. It is seen that in majority of the cases, either thecase has been registered by the respondent Police based on thecomplaint given by the Revenue Authorities or by the officialsof the Mines and Minerals Department, the caseproperties/vehicles are taken into custody. Afterregistration of FIR, despite specific order of the DivisionBench of the Madurai Bench of Madras High Court in ReviewApplications (MD) Nos.80 to 82 of 2019 in W.P(MD).No.19936 of2017, 7595 and 21485 of 2018 that the Police as well theauthorized officers are directed to inform the registration ofhttps://hcservices.ecourts.gov.in/hcservices/the case to each other within a week, the same is followed in breach. Due to which, there have been no complaint filed asper Section 22 of the Mines and Minerals (Development andRegulation) Act, 1957. The prosecution under the Indian PenalCode and the Mines and Minerals (Development and Regulation)Act, 1957 are distinct as held by the Hon'ble Apex Court in the case of “State (NCT of Delhi) Versus Sanjay reported in(2014) 9 Supreme Court Cases 772”, which has been reiteratedby the Division Bench of this Court and gave variousguidelines that the complaint by the authorized person to bemade immediately not later than one week from the date ofseizure. Both the complaint registered by the Police and thecomplaint of the authorized person to be tried by the sameCourt. As per Section 30 (B), the Special Courts have come inplace.

3. In most of the cases, FIR's are filed before theMagistrate Court in which charge sheet are yet to be filed andcommitted to the Special Court. The authorized person havenot initiated any complaint. It is seen that the authorizedpersons, who lodged complaint to the jurisdictional Policehave not filed any complaint under Mines and Minerals Act.This is in clear violation of the directions of this Court.

4. The learned Additional Public Prosecutor produced G.O.(Ms).No.170 (Industries (MMC.2) Department), dated 05.08.2020and submitted that the guidelines have been issued to all theofficers concerned, including the authorized officer to followthe directions of the Division Bench of the Madurai Bench ofMadras High court. Despite the same, the anomaly stillexists. He further submitted that in the Government Order, inaddition to the authorised authorities, jurisdictionalInspector of Police arealso authorised to make a complaint inwriting by way of affidavit under Section 22 of the Mines andMinerals (Development and Regulation) Act, 1957. As perSection 2(d) of Cr.P.C., the complaint does not include thepolice report. No doubt the cases under the Mines andMinerals (Development and Regulation) Act, 1957 are cognizableoffence. The inclusion of Police personnels viz., theInspector of Police as authorized, had created a grey area.The Division Bench of the Madurai Bench of Madras High Court,had clearly held revenue official/officer authorized is onlyto seize and not confiscate or dispose the mineral, tool,equipment, vehicle etc., and the same to be dealt only by theSpecial Court. It is seen that despite issuance of G.O.(Ms).No.170 (Industries (MMC.2) Department), dated 05.08.2020, thesituation has not improved. Further, the Madurai Bench ofthis Court, as early in the year 2012, in the case of “Sengol& others Versus State reported in 2012 Crl.J 1705” had clearlyheld that the ingredients under Section 378 IPC and offencepunishable under Section 21 of the Mines and Minerals(Development and Regulation) Act, 1957 are distinct and thereis no quarrel about it. The Apex Court in the case of “State(NCT of Delhi) Versus Sanjay” (cited supra), issued guidelineshttps://hcservices.ecourts.gov.in/hcservices/in this regard and highlighted the importance of curbing illicit sand mining and plundering of natural wealth and itwould be beneficial to extract relevant paragraphs:- “69.Considering the principles of interpretation and thewordings used in Section 22, in our considered opinion, theprovision is not a complete and absolute bar for taking actionby the police for illegal and dishonestly committing theft ofminerals including sand from the riverbed. The Court shalltake judicial notice of the fact that over the years rivers inIndia have been affected by the alarming rate of unrestrictedsand mining which is damaging the ecosystem of the rivers andsafety of bridges. It also weakens riverbeds, fish breedingand destroys the natural habitat of many organisms. If theseillegal activities are not stopped by the State and the policeauthorities of the State, it will cause serious repercussionsas mentioned hereinabove. It will not only change the riverhydrology but also will deplete the groundwater levels.

70. There cannot be any dispute with regard torestrictions imposed under the MMDR Act and remedy providedtherein. In any case, where there is a mining activity by anyperson in contravention of the provisions of Section 4 andother sections of the Act, the officer empowered andauthorised under the Act shall exercise all the powersincluding making a complaint before the JurisdictionalMagistrate. It is also not in dispute that the Magistrateshall in such cases take cognizance on the basis of thecomplaint filed before it by a duly authorised officer. Incase of breach and violation of Section 4 and other provisionsof the Act, the police officer cannot insist the Magistratefor taking cognizance under the Act on the basis of the recordsubmitted by the police alleging contravention of the saidAct. In other words, the prohibition contained in Section 22of the Act against prosecution of a person except on acomplaint made by the officer is attracted only when suchperson is sought to be prosecuted for contravention of Section4 of the Act and not for any act or omission which constitutesan offence under the Penal Code.

71. However, there may be a situation where a personwithout any lease or licence or any authority enters intoriver and extracts sand, gravel and other minerals and removeor transport those minerals in a clandestine manner with anintent to remove dishonestly those minerals from thepossession of the State, is liable to be punished forcommitting such offence under Sections 378 and 379 of thePenal Code.

72. From a close reading of the provisions of the MMDR Actand the offence defined under Section 378 IPC, it is manifestthat the ingredients constituting the offence are different.The contravention of terms and conditions of mining lease orhttps://hcservices.ecourts.gov.in/hcservices/doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act,whereas dishonestly removing sand, gravel and other mineralsfrom the river, which is the property of the State, out of theState's possession without the consent, constitute an offenceof theft. Hence, merely because initiation of proceeding forcommission of an offence under the MMDR Act on the basis ofcomplaint cannot and shall not debar the police from takingaction against persons for committing theft of sand andminerals in the manner mentioned above by exercising powerunder the Code of Criminal Procedure and submit a reportbefore the Magistrate for taking cognizance against suchpersons. In other words, in a case where there is a theft ofsand and gravel from the government land, the police canregister a case, investigate the same and submit a finalreport under Section 173 CrPC before a Magistrate havingjurisdiction for the purpose of taking cognizance as providedin Section 190(1)(d) of the Code of Criminal Procedure.

73. After giving our thoughtful consideration in thematter, in the light of the relevant provisions of the Actvis-à-vis the Code of Criminal Procedure and the Penal Code,we are of the definite opinion that the ingredientsconstituting the offence under the MMDR Act and theingredients of dishonestly removing sand and gravel from theriverbeds without consent, which is the property of the State,is a distinct offence under IPC. Hence, for the commission ofoffence under Section 378 IPC, on receipt of the policereport, the Magistrate having jurisdiction can take cognizanceof the said offence without awaiting the receipt of complaintthat may be filed by the authorised officer for takingcognizance in respect of violation of various provisions ofthe MMDR Act. Consequently, the contrary view taken by thedifferent High Courts cannot be sustained in law and,therefore, overruled. Consequently, these criminal appeals aredisposed of with a direction to the Magistrates concerned toproceed accordingly.”

5. It is clearly held that compounding the offence undersection 23(A) of the Mines and Minerals (Development andRegulation) Act, 1957, would no way absolve the offender.Further despite this Court's specific direction to theconcerned authorities, the authorities failed to getsensitized and become aware of seriousness of the offence.Hence, the issuance of G.O.(Ms).No.170 (Industries (MMC.2)Department), dated 05.08.2020, appears to be only in paper,not in action.

6. It is submitted by the learned Additional PublicProsecutor that in view of Section 23(A) of Mines and Minerals(Development and Regulation) Act, 1957, after compounding theoffence, it would be difficult for the authorities to file acomplaint. Further, authorizing the Police personnel to filea complaint would be against Section 2(d) of Cr.P.C. Thehttps://hcservices.ecourts.gov.in/hcservices/inclusion of Police Officials to file a complaint may be a abrasion. The Police personnel referred in G.O.(Ms).No.170(Industries (MMC.2) Department), dated 05.08.2020, are only inaddition to the Revenue Authorities, the officials of theMines and Minerals and authorised officers. The addition ofPolice Officials as authorised officers would no way take awaythe right and be an obstacle to the other authorised officersto file a complaint as contemplated. Further, compounding ofoffence under Section 23(A) of the Mines and Minerals(Development and Regulation) Act is only with regard to theloss of revenue to the State and not the offence. Theanomaly, if any felt, in issuance of Government Order, thesame can be rectified. The Act is clear on these aspects,which is further clarified by the Division Bench of MaduraiBench of Madras High Court in its order.

7. The learned Additional Public Prosecutor relied on thejudgment of the Apex Court in the case of “Jayant Etc., VersusThe State of Madhya Pradesh in Criminal Appeal Nos.824-825 of2020”, for the preposition that once the case under MM DR Actis compounded, whether a complaint can be filed under Section22 of MM DR Act.

8. The view of this Court is that the grey area pointedout found in G.O.(Ms).No.170 (Industries (MMC.2) Department),dated 05.08.2020, will no way absolve the rights and duties ofthe authorized officers in filling the complaint before thedesignated Special Court. The case property if already handedover to the Police and the Police investigation is pending,the seizure report, panchnama, Form-95 or other documents, acertified copy can be annexed in the complaint of theauthorized officer, the Special Court to accept the same asproof of seizure.

9. The answer to the contention of the learned Additional Public Prosecutor is available in the case of “Jayant Etc.,Versus The State of Madhya Pradesh in Criminal Appeal Nos.824-825 of 2020” and the relevant portion is extracted hereunder:-

“However, our above conclusions are considering theprovisions of Section 23A of the MMDR Act, as it stands today.It might be true that by permitting the violators to compoundthe offences under the MMDR Act or the rules made thereunder,the State may get the revenue and the same shall be on theprinciple of person who causes the damage shall have tocompensate the damage and shall have to pay the penalty likethe principle of polluters to pay in case of damage to theenvironment. However, in view of the large scale damages beingcaused to the nature and as observed and held by this Court inthe case of Sanjay (supra), the policy and object of MMDR Actand Rules are the result of an increasing awareness of thecompelling need to restore the serious ecological imbalanceand to stop the damages being caused to the nature andhttps://hcservices.ecourts.gov.in/hcservices/considering the observations made by this Court in the aforesaid decision, reproduced hereinabove, and when theviolations like this are increasing and the serious damage iscaused to the nature and the earth and it also affects theground water levels etc. and it causes severe damage asobserved by this Court in the case of Sanjay (supra),reproduced hereinabove, we are of the opinion that theviolators cannot be permitted to go scot free on payment ofpenalty only. There must be some stringent provisions whichmay have deterrent effect so that the violators may thinktwice before committing such offences and before causingdamage to the earth and the nature.

It is the duty cast upon the State to restore theecological imbalanceand to stop damages being caused to thenature. As observed by this Court in the case of Sanjay(supra), excessive in stream sand and gravel mining from riverbeds and like resources causes the degradation of rivers. Itis further observed that apart from threatening bridges, sandmining transforms the riverbeds into large and deep pits, as aresult, the groundwater table drops leaving the drinking waterwells on the embankments of these rivers dry. Even otherwise,sand/mines is a public property and the State is the custodianof the said public property and therefore the State should bemore sensitive to protect the environment and ecologicalbalance and to protect the public property the State shouldalways be in favour of taking very stern action against theviolators who are creating serious ecological imbalance andcausing damages to the nature in any form. As the provisionsof Section 23A are not under challenge and Section 23A of theMMDR Act so long as it stands, we leave the matter there andleave it to the wisdom of the legislatures and the concernedStates.”

Conclusion

10. In view of the above, the directions of Division Benchof Madurai Bench of Madras High Court has to be followedwithout any deviation. This Court following the case of“Sunderbhai Ambalal Desai Vs. State of Gujarat reported inMANU/SC/1110/2002 and AIR 2003 638”, is inclined to return thevehicle to the petitioner. Hence, the interim custody of thevehicle viz.,(Tractor) bearing Registration No.TN-51-J-4489already granted by this Court, by order, dated 18.11.2020shall be continuedwith the same conditions.

11. This Court hereby directs the authorized Officers tofile complaint before the Special Court and the Special Courtto take the same on file, try it along with the Police caseand to dispose both the cases. The Special Court is alsodirected to initiate and conclude the confiscationproceedings.

12. In the result, the order dated 19.08.2020 passed bythe learned District and Sessions Judge, Nagapattinam, inCrl.M.P.No.2149 of 2020 is set-aside and the revision is,accordingly, allowed.

-Sd/- Assistant Registrar (CS III) // True Copy //

Sub Assistant Registrar

ssbTo1.The Inspector of Police, Vedaranyam Police Station, Nagapattinam District.2.The District and Sessions Judge, Nagapattinam.Crl.R.C.No742 of 2020 RGN (CO)UMY (19.01.2021)