CRL RC/819/2020 of SUJATHA Vs STATE INSPECTOR OF POLICE on 31 December 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 21.12.2020

CORAM

THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

Sujatha ... Petitioner/Owner of the PropertyVs.

The State, Represented by, ... Respondent/ComplainantThe Inspector of Police,Manalmedu Police Station,Nagapattinam District.Crime No.874 of 2020.

Criminal Revision Petition filed under Sections 397 and 401 ofthe Code of Criminal Procedure, to set aside the order passed inCrl.M.P.No. 1919 of 2020 dated 23.07.2020 on the file of thelearned District and Sessions Judge, Nagapattinam and consequently,to return her vehicle MAHINDRA 475-BP TRACTOR AND TIPPER bearingReg.No.TN 51 F 8645 to the petitioner herein.

In continuation and conjunction to the order passed by thisCourt dated 11.12.2020, 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 the complaintgiven by the Revenue Authorities or by the officials of the Minesand Minerals Department, the case properties/vehicles are takeninto custody. After registration of FIR, despite specific order ofthe Division Bench of the Madurai Bench of Madras High Court inReview Applications (MD) Nos.80 to 82 of 2019 in W.P(MD).No.19936of 2017, 7595 and 21485 of 2018 that the Police as well theauthorized officers are directed to inform the registration of thecase to each other within a week, the same is followed in breach.Due to which, there have been no complaint filed as per Section 22of the Mines and Minerals (Development and Regulation) Act, 1957.The prosecution under the Indian Penal Code and the Mines andhttps://hcservices.ecourts.gov.in/hcservices/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”, whichhas been reiterated by the Division Bench of this Court and gavevarious guidelines that the complaint by the authorized person tobe made 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 same Court.As per Section 30 (B), the Special Courts have come in place.

3. In most of the cases, FIR's are filed before the MagistrateCourt in which charge sheet are yet to be filed and committed tothe Special Court. The authorized person have not initiated anycomplaint. It is seen that the authorized persons, who lodgedcomplaint to the jurisdictional Police have not filed any complaintunder Mines and Minerals Act. This is in clear violation of thedirections 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 the officersconcerned, including the authorized officer to follow thedirections of the Division Bench of the Madurai Bench of MadrasHigh court. Despite the same, the anomaly still exists. Hefurther submitted that in the Government Order, in addition to theauthorised authorities, jurisdictional Inspector of Police arealsoauthorised to make a complaint in writing by way of affidavit underSection 22 of the Mines and Minerals (Development and Regulation)Act, 1957. As per Section 2(d) of Cr.P.C., the complaint does notinclude the police report. No doubt the cases under the Mines andMinerals (Development and Regulation) Act, 1957 are cognizableoffence. The inclusion of Police personnels viz., the Inspector ofPolice as authorized, had created a grey area. The Division Benchof the Madurai Bench of Madras High Court, had clearly held revenueofficial/officer authorized is only to seize and not confiscate ordispose the mineral, tool, equipment, vehicle etc., and the sameto be dealt only by the Special Court. It is seen that despiteissuance of G.O.(Ms).No.170 (Industries (MMC.2) Department), dated05.08.2020, the situation has not improved. Further, the MaduraiBench of this Court, as early in the year 2012, in the case of“Sengol & others Versus State reported in 2012 Crl.J 1705” hadclearly held that the ingredients under Section 378 IPC and offencepunishable under Section 21 of the Mines and Minerals (Developmentand Regulation) Act, 1957 are distinct and there is no quarrelabout it. The Apex Court in the case of “State (NCT of Delhi)Versus Sanjay” (cited supra), issued guidelines in this regard andhighlighted the importance of curbing illicit sand mining andplundering of natural wealth and it would be beneficial to extractrelevant 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 action bythe police for illegal and dishonestly committing theft of mineralshttps://hcservices.ecourts.gov.in/hcservices/including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have beenaffected by the alarming rate of unrestricted sand mining which isdamaging the ecosystem of the rivers and safety of bridges. It alsoweakens riverbeds, fish breeding and destroys the natural habitatof many organisms. If these illegal activities are not stopped bythe State and the police authorities of the State, it will causeserious repercussions as mentioned hereinabove. It will not onlychange the river hydrology but also will deplete the groundwaterlevels.

70. There cannot be any dispute with regard to restrictionsimposed under the MMDR Act and remedy provided therein. In anycase, where there is a mining activity by any person incontravention of the provisions of Section 4 and other sections ofthe Act, the officer empowered and authorised under the Act shallexercise all the powers including making a complaint before theJurisdictional Magistrate. It is also not in dispute that theMagistrate shall in such cases take cognizance on the basis of thecomplaint filed before it by a duly authorised officer. In case ofbreach and violation of Section 4 and other provisions of the Act,the police officer cannot insist the Magistrate for takingcognizance under the Act on the basis of the record submitted bythe police alleging contravention of the said Act. In other words,the prohibition contained in Section 22 of the Act againstprosecution of a person except on a complaint made by the officeris attracted only when such person is sought to be prosecuted forcontravention of Section 4 of the Act and not for any act oromission which constitutes an offence under the Penal Code.

71. However, there may be a situation where a person withoutany lease or licence or any authority enters into river andextracts sand, gravel and other minerals and remove or transportthose minerals in a clandestine manner with an intent to removedishonestly those minerals from the possession of the State, isliable to be punished for committing such offence under Sections378 and 379 of the Penal Code.

72. From a close reading of the provisions of the MMDR Act andthe offence defined under Section 378 IPC, it is manifest that theingredients constituting the offence are different. Thecontravention of terms and conditions of mining lease or doingmining activity in violation of Section 4 of the Act is an offencepunishable under Section 21 of the MMDR Act, whereas dishonestlyremoving sand, gravel and other minerals from the river, which isthe property of the State, out of the State's possession withoutthe consent, constitute an offence of theft. Hence, merely becauseinitiation of proceeding for commission of an offence under theMMDR Act on the basis of complaint cannot and shall not debar thepolice from taking action against persons for committing theft ofsand and minerals in the manner mentioned above by exercising powerunder the Code of Criminal Procedure and submit a report before theMagistrate for taking cognizance against such persons. In otherwords, in a case where there is a theft of sand and gravel from thehttps://hcservices.ecourts.gov.in/hcservices/government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before aMagistrate having jurisdiction for the purpose of taking cognizanceas provided in Section 190(1)(d) of the Code of Criminal Procedure.

73. After giving our thoughtful consideration in the matter, inthe light of the relevant provisions of the Act vis-à-vis the Codeof Criminal Procedure and the Penal Code, we are of the definiteopinion that the ingredients constituting the offence under theMMDR Act and the ingredients of dishonestly removing sand andgravel from the riverbeds without consent, which is the property ofthe State, is a distinct offence under IPC. Hence, for thecommission of offence under Section 378 IPC, on receipt of thepolice report, the Magistrate having jurisdiction can takecognizance of the said offence without awaiting the receipt ofcomplaint that may be filed by the authorised officer for takingcognizance in respect of violation of various provisions of theMMDR Act. Consequently, the contrary view taken by the differentHigh Courts cannot be sustained in law and, therefore, overruled.Consequently, these criminal appeals are disposed of with adirection to the Magistrates concerned to proceed 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. Furtherdespite this Court's specific direction to the concernedauthorities, 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 Public Prosecutorthat in view of Section 23(A) of Mines and Minerals (Developmentand Regulation) Act, 1957, after compounding the offence, it wouldbe difficult for the authorities to file a complaint. Further,authorizing the Police personnel to file a complaint would beagainst Section 2(d) of Cr.P.C. The inclusion of Police Officialsto file a complaint may be a abrasion. The Police personnelreferred in G.O.(Ms).No.170 (Industries (MMC.2) Department), dated05.08.2020, are only in addition to the Revenue Authorities, theofficials of the Mines and Minerals and authorised officers. Theaddition of Police Officials as authorised officers would no waytake away the right and be an obstacle to the other authorisedofficers to file a complaint as contemplated. Further, compoundingof offence under Section 23(A) of the Mines and Minerals(Development and Regulation) Act is only with regard to the loss ofrevenue to the State and not the offence. The anomaly, if anyfelt, in issuance of Government Order, the same can be rectified.The Act is clear on these aspects, which is further clarified bythe Division Bench of Madurai Bench of Madras High Court in itsorder.

7. The learned Additional Public Prosecutor relied on thejudgment of the Apex Court in the case of “Jayant Etc., Versus Thehttps://hcservices.ecourts.gov.in/hcservices/State of Madhya Pradesh in Criminal Appeal Nos.824-825 of 2020”, for the preposition that once the case under MM DR Act iscompounded, whether a complaint can be filed under Section 22 of MMDR 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 the designatedSpecial Court. The case property if already handed over to thePolice and the Police investigation is pending, the seizure report,panchnama, Form-95 or other documents, a certified copy can beannexed in the complaint of the authorized officer, the SpecialCourt to accept the same as proof of seizure.

9. The answer to the contention of the learned AdditionalPublic Prosecutor is available in the case of “Jayant Etc., VersusThe 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 the provisionsof Section 23A of the MMDR Act, as it stands today. It might betrue that by permitting the violators to compound the offencesunder the MMDR Act or the rules made thereunder, the State may getthe revenue and the same shall be on the principle of person whocauses the damage shall have to compensate the damage and shallhave to pay the penalty like the principle of polluters to pay incase of damage to the environment. However, in view of the largescale damages being caused to the nature and as observed and heldby this Court in the case of Sanjay (supra), the policy and objectof MMDR Act and Rules are the result of an increasing awareness ofthe compelling need to restore the serious ecological imbalance andto stop the damages being caused to the nature and considering theobservations made by this Court in the aforesaid decision,reproduced hereinabove, and when the violations like this areincreasing and the serious damage is caused to the nature and theearth and it also affects the ground water levels etc. and itcauses severe damage as observed by this Court in the case ofSanjay (supra), reproduced hereinabove, we are of the opinion thatthe violators cannot be permitted to go scot free on payment ofpenalty only. There must be some stringent provisions which mayhave deterrent effect so that the violators may think twice beforecommitting such offences and before causing damage to the earth andthe nature.

It is the duty cast upon the State to restore the ecologicalimbalanceand to stop damages being caused to the nature. Asobserved by this Court in the case of Sanjay (supra), excessive instream sand and gravel mining from river beds and like resourcescauses the degradation of rivers. It is further observed that apartfrom threatening bridges, sand mining transforms the riverbeds intolarge and deep pits, as a result, the groundwater table dropshttps://hcservices.ecourts.gov.in/hcservices/leaving the drinking water wells on the embankments of these rivers dry. Even otherwise, sand/mines is a public property and the Stateis the custodian of the said public property and therefore theState should be more sensitive to protect the environment andecological balance and to protect the public property the Stateshould always be in favour of taking very stern action against theviolators who are creating serious ecological imbalance and causingdamages to the nature in any form. As the provisions of Section 23Aare not under challenge and Section 23A of the MMDR Act so long asit stands, we leave 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., MAHINDRA 475-BPTRACTOR AND TIPPER bearing Reg. No.TN 51 F 8645, already granted bythis Court, by order, dated 11.12.2020 shall be continuedwith thesame 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 to disposeboth the cases. The Special Court is also directed to initiate andconclude the confiscation proceedings. M.NIRMAL KUMAR, J.lbm/vv2

12. In the result, the order dated 23.07.2020 in Crl.M.P.No.1919 of 2020 passed by the learned District and SessionsJudge, Nagapattinam, is set-aside and the revision is, accordingly,allowed.

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

Sub Assistant Registrar lbm/vv2

To

1. The State, Represented by,The Inspector of Police,Manalmedu Police Station,Nagapattinam District.Crime No.874 of 2020.

2. The District and Sessions Judge, Nagapattinam. https://hcservices.ecourts.gov.in/hcservices/

3. The Public Prosecutor, High Court, Madras.

Crl.R.C.No.819 of 2020

VGII(CO)UMY (12.02.2021)