CRL RC/1065/2020 of ELAVARASAN Vs STATE BY on 31 December 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 23.12.2020PRONOUNCED ON: 31.12.2020

CORAM

THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

Crl.R.C.No.1065 of 2020

Elavarasan S/o.Anbalagan

.. Petitioner /versus/

The Inspector of Police, Sembanarkoil Police Station, Nagapattinam District.

.. Respondent

PRAYER: Criminal Revision Petition filed under Sections 397 r/w.401 of Criminal Procedure Code to call for the records inCrl.M.P.No.2242 of 2020 on the file of the District and SessionsJudge, Nagapattinam dated 31.08.2020 and set aside the samesubsequently grant interim custody of vehicle Tractor with TipperNumber TN-49-S-2864.

For Petitioner : Mr.T.Elumalai For Respondent: Mr.C.Iyyappa RajAdditional Public Prosecutor *****

ORDERIn continuation and conjunction to the order passed by thisCourt dated 16.12.2020, this Court is inclined to pass thefollowing order.

2. It is seen that in majority of the cases, either the casehas been registered by the respondent Police based on thecomplaint given by the Revenue Authorities or by the officials ofthe Mines and Minerals Department, the case properties/vehiclesare taken into custody. After registration of FIR, despitespecific order of the Division Bench of the Madurai Bench ofMadras High Court in Review Applications (MD) Nos.80 to 82 of2019 in W.P(MD).No.19936 of 2017, 7595 and 21485 of 2018 that thePolice as well the authorized officers are directed to inform theregistration of the case to each other within a week, the same isfollowed in breach. Due to which, there have been no complainthttps://hcservices.ecourts.gov.in/hcservices/filed as per Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957. The prosecution under the IndianPenal Code and the Mines and Minerals (Development andRegulation) Act, 1957 are distinct as held by the Hon'ble ApexCourt in the case of “State (NCT of Delhi) Versus Sanjay reportedin (2014) 9 Supreme Court Cases 772”, which has been reiteratedby the Division Bench of this Court and gave various guidelinesthat the complaint by the authorized person to be madeimmediately not later than one week from the date of seizure.Both the complaint registered by the Police and the complaint ofthe authorized person to be tried by the same Court. As perSection 30 (B), the Special Courts have come in place.

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 have notinitiated any complaint. It is seen that the authorized persons,who lodged complaint to the jurisdictional Police have not filedany complaint under Mines and Minerals Act. This is in clearviolation of the directions of this Court.

4. The learned Additional Public Prosecutor produced G.O.(Ms).No.170 (Industries (MMC.2) Department), dated 05.08.2020 andsubmitted 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 still exists.He further submitted that in the Government Order, in addition tothe authorised authorities, jurisdictional Inspector of Policeare also authorised to make a complaint in writing by way ofaffidavit under Section 22 of the Mines and Minerals (Developmentand Regulation) Act, 1957. As per Section 2(d) of Cr.P.C., thecomplaint does not include the police report. No doubt the casesunder the Mines and Minerals (Development and Regulation) Act,1957 are cognizable offence. The inclusion of Police personnelsviz., the Inspector of Police as authorized, had created a greyarea. The Division Bench of the Madurai Bench of Madras HighCourt, had clearly held revenue official/officer authorized isonly to 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 of thisCourt, as early in the year 2012, in the case of “Sengol & othersVersus State reported in 2012 Crl.J 1705” had clearly held thatthe ingredients under Section 378 IPC and offence punishableunder Section 21 of the Mines and Minerals (Development andRegulation) Act, 1957 are distinct and there is no quarrel aboutit. The Apex Court in the case of “State (NCT of Delhi) VersusSanjay” (cited supra), issued guidelines in this regard andhighlighted the importance of curbing illicit sand mining andplundering of natural wealth and it would be beneficial tohttps://hcservices.ecourts.gov.in/hcservices/extract relevant paragraphs:- “69.Considering the principles of interpretationand the wordings used in Section 22, in our consideredopinion, the provision is not a complete and absolutebar for taking action by the police for illegal anddishonestly committing theft of minerals including sandfrom the riverbed. The Court shall take judicial noticeof the fact that over the years rivers in India havebeen affected by the alarming rate of unrestricted sandmining which is damaging the ecosystem of the riversand safety of bridges. It also weakens riverbeds, fishbreeding and destroys the natural habitat of manyorganisms. If these illegal activities are not stoppedby the State and the police authorities of the State,it will cause serious repercussions as mentionedhereinabove. 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 remedyprovided therein. In any case, where there is a miningactivity by any person in contravention of theprovisions of Section 4 and other sections of the Act,the officer empowered and authorised under the Actshall exercise all the powers including making acomplaint before the Jurisdictional Magistrate. It isalso not in dispute that the Magistrate shall in suchcases take cognizance on the basis of the complaintfiled before it by a duly authorised officer. In caseof breach and violation of Section 4 and otherprovisions of the Act, the police officer cannot insistthe Magistrate for taking cognizance under the Act onthe basis of the record submitted by the policealleging contravention of the said Act. In other words,the prohibition contained in Section 22 of the Actagainst prosecution of a person except on a complaintmade by the officer is attracted only when such personis sought to be prosecuted for contravention of Section4 of the Act and not for any act or omission whichconstitutes an offence under the Penal Code.

71. However, there may be a situation where aperson without any lease or licence or any authorityenters into river and extracts sand, gravel and otherminerals and remove or transport those minerals in aclandestine manner with an intent to remove dishonestlythose minerals from the possession of the State, isliable to be punished for committing such offence underSections 378 and 379 of the Penal Code.

72. From a close reading of the provisions of theMMDR Act and the offence defined under Section 378 IPC,it is manifest that the ingredients constituting theoffence are different. The contravention of terms andconditions of mining lease or doing mining activity inviolation of Section 4 of the Act is an offencepunishable under Section 21 of the MMDR Act, whereasdishonestly removing sand, gravel and other mineralsfrom the river, which is the property of the State, outof the State's possession without the consent,constitute an offence of theft. Hence, merely becauseinitiation of proceeding for commission of an offenceunder the MMDR Act on the basis of complaint cannot andshall not debar the police from taking action againstpersons for committing theft of sand and minerals inthe manner mentioned above by exercising power underthe Code of Criminal Procedure and submit a reportbefore the Magistrate for taking cognizance againstsuch persons. In other words, in a case where there isa theft of sand and gravel from the government land,the police can register a case, investigate the sameand submit a final report under Section 173 CrPC beforea Magistrate having jurisdiction for the purpose oftaking cognizance as provided in Section 190(1)(d) ofthe Code of Criminal Procedure.

73. After giving our thoughtful consideration inthe matter, in the light of the relevant provisions ofthe Act vis-à-vis the Code of Criminal Procedure andthe Penal Code, we are of the definite opinion that theingredients constituting the offence under the MMDR Actand the ingredients of dishonestly removing sand andgravel from the riverbeds without consent, which is theproperty of the State, is a distinct offence under IPC.Hence, for the commission of offence under Section 378IPC, on receipt of the police report, the Magistratehaving jurisdiction can take cognizance of the saidoffence without awaiting the receipt of complaint thatmay be filed by the authorised officer for takingcognizance in respect of violation of variousprovisions of the MMDR Act. Consequently, the contraryview taken by the different High Courts cannot besustained in law and, therefore, overruled.Consequently, these criminal appeals are disposed ofwith 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. Furtherhttps://hcservices.ecourts.gov.in/hcservices/despite this Court's specific direction to the concerned authorities, the authorities failed to get sensitized and becomeaware 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 file acomplaint would be against Section 2(d) of Cr.P.C. The inclusionof Police Officials to file a complaint may be a abrasion. ThePolice personnel referred in G.O.(Ms).No.170 (Industries (MMC.2)Department), dated 05.08.2020, are only in addition to theRevenue Authorities, the officials of the Mines and Minerals andauthorised officers. The addition of Police Officials asauthorised officers would no way take away the right and be anobstacle to the other authorised officers to file a complaint ascontemplated. Further, compounding of offence under Section 23(A) of the Mines and Minerals (Development and Regulation) Act isonly with regard to the loss of revenue to the State and not theoffence. The anomaly, if any felt, in issuance of GovernmentOrder, the same can be rectified. The Act is clear on theseaspects, which is further clarified by the Division Bench ofMadurai Bench 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 Act iscompounded, whether a complaint can be filed under Section 22 ofMM DR Act.

8. The view of this Court is that the grey area pointed outfound in G.O.(Ms).No.170 (Industries (MMC.2) Department), dated05.08.2020, will no way absolve the rights and duties of theauthorized officers in filling the complaint before thedesignated Special Court. The case property if already handedover to the Police and the Police investigation is pending, theseizure report, panchnama, Form-95 or other documents, acertified copy can be annexed in the complaint of the authorizedofficer, the Special Court to accept the same as proof ofseizure.

9. The answer to the contention of the learned AdditionalPublic Prosecutor is available in the case of “Jayant Etc.,Versus The State of Madhya Pradesh in Criminal Appeal Nos.824-825of 2020” and the relevant portion is extracted hereunder:- “However, our above conclusions are consideringthe provisions of Section 23A of the MMDR Act, as ithttps://hcservices.ecourts.gov.in/hcservices/stands today. It might be true that by permitting the

violators to compound the offences under the MMDR Actor the rules made thereunder, the State may get therevenue and the same shall be on the principle ofperson who causes the damage shall have to compensatethe damage and shall have to pay the penalty like theprinciple of polluters to pay in case of damage to theenvironment. However, in view of the large scaledamages being caused to the nature and as observed andheld by this Court in the case of Sanjay (supra), thepolicy and object of MMDR Act and Rules are the resultof an increasing awareness of the compelling need torestore the serious ecological imbalance and to stopthe damages being caused to the nature and consideringthe observations made by this Court in the aforesaiddecision, reproduced hereinabove, and when theviolations like this are increasing and the seriousdamage is caused to the nature and the earth and italso affects the ground water levels etc. and it causessevere damage as observed by this Court in the case ofSanjay (supra), reproduced hereinabove, we are of theopinion that the violators cannot be permitted to goscot free on payment of penalty only. There must besome stringent provisions which may have deterrenteffect so that the violators may think twice beforecommitting such offences and before causing damage tothe earth and the nature.

It is the duty cast upon the State to restore theecological imbalance and to stop damages being causedto the nature. As observed by this Court in the case ofSanjay (supra), excessive in stream sand and gravelmining from river beds and like resources causes thedegradation of rivers. It is further observed thatapart from threatening bridges, sand mining transformsthe riverbeds into large and deep pits, as a result,the groundwater table drops leaving the drinking waterwells on the embankments of these rivers dry. Evenotherwise, sand/mines is a public property and theState is the custodian of the said public property andtherefore the State should be more sensitive to protectthe environment and ecological balance and to protectthe public property the State should always be infavour of taking very stern action against theviolators who are creating serious ecological imbalanceand causing damages to the nature in any form. As theprovisions of Section 23A are not under challenge andSection 23A of the MMDR Act so long as it stands, weleave the matter there and leave it to the wisdom ofthe legislatures and the concerned States.”

10. In view of the above, the directions of Division Bench ofMadurai Bench of Madras High Court has to be followed without anydeviation. This Court following the case of “Sunderbhai AmbalalDesai Vs. State of Gujarat reported in MANU/SC/1110/2002 and AIR2003 638”, is inclined to return the vehicle to the petitioner.Hence, the interim custody of the vehicle viz., Tractor withTipper bearing Registration No. TN-49-S-2864 already granted bythis Court, by order, dated 16.12.2020 shall be continued withthe same conditions.

11. This Court hereby directs the authorized Officers to filecomplaint before the Special Court and the Special Court to takethe same on file, try it along with the Police case and todispose both the cases. The Special Court is also directed toinitiate and conclude the confiscation proceedings.

12. In the result, the order dated 31.08.2020 inCrl.M.P.No.2242 of 2020 passed by the District and SessionsJudge, Nagapattinam is set-aside and the revision is,accordingly, allowed.

-s/d-Assistant RegistrarTrue Copy

rst

Sub-Assistant Registrar

To1.The Secretary, Industries Department, Government of Tamil Nadu, Fort St.George, Chennai.

2. The Director of Geology and Minning,Chennai.Chennai.

3. The District and Sessions Judge, Nagapattinam. Nagapattinam.

4. The Inspector of Police, Sembanarkoil Police Station, Nagapattinam District.

5. The Public Prosecutor,High Court, Madras.High Court, Madras.

6 The District Mines & Minerals Foundation Trust, Nagappattinam.

7 The Tahsidhar Nagappattinam.

+1 CC to Mr.T.Elumalai , Advocate Sr.No.42065

Crl.R.C.No.1065 of 2020RSV(CO)KP(20/01/2021)