CRL RC/805/2020 of S.SUNDARAM Vs THE STATE REP BY on 31 December 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 21.12.2020PRONOUNCED ON : 31.12.2020

CORAM

THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

Crl.R.C.No.805 of 2020

S. Sundaram

... Petitioner/PeitionerVs.

The State, Represented by,The Inspector of Police,Tiruporur Police Station,Nagapattinam District.Crime No.999 of 2020. ... Respondent/Respondent PRAYER: Criminal Revision Petition filed under Sections 397 and 401of the Code of Criminal Procedure, to set aside the order passed inCrl.M.P.No. 3110 of 2020 dated 31.08.2020 on the file of thelearned Judicial Magistrate No.1 at Chengalpattu and consequentlyrelease the vehicle Reg. No.TN 19 J 1717 TATA Motors Limited HeavyGoods Carrier, WH Color, Chasis bearing No.MAT361098C2A01387 andEngine No.697TC66AXY101282 from the respondent.

In continuation and conjunction to the order passed by thisCourt dated 08.12.2020, 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 thehttps://hcservices.ecourts.gov.in/hcservices/case 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 andMinerals (Development and Regulation) Act, 1957 are distinct asheld 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 are alsoauthorised 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,the provision is not a complete and absolute bar fortaking action by the police for illegal and dishonestlycommitting theft of minerals including sand from theriverbed. The Court shall take judicial notice of thefact that over the years rivers in India have beenaffected by the alarming rate of unrestricted sand miningwhich is damaging the ecosystem of the rivers and safetyof bridges. It also weakens riverbeds, fish breeding anddestroys the natural habitat of many organisms. If theseillegal activities are not stopped by the State and thepolice authorities of the State, it will cause seriousrepercussions as mentioned hereinabove. It will not onlychange the river hydrology but also will deplete thegroundwater 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 the provisionsof Section 4 and other sections of the Act, the officerempowered and authorised under the Act shall exercise allthe powers including making a complaint before theJurisdictional Magistrate. It is also not in dispute thatthe Magistrate shall in such cases take cognizance on thebasis of the complaint filed before it by a dulyauthorised officer. In case of breach and violation ofSection 4 and other provisions of the Act, the policeofficer cannot insist the Magistrate for takingcognizance under the Act on the basis of the recordsubmitted by the police alleging contravention of thesaid Act. In other words, the prohibition contained inSection 22 of the Act against prosecution of a personexcept on a complaint made by the officer is attractedonly when such person is sought to be prosecuted forcontravention of Section 4 of the Act and not for any actor omission which constitutes an offence under the PenalCode.

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 andremove or transport those minerals in a clandestinemanner with an intent to remove dishonestly thoseminerals from the possession of the State, is liable tobe punished for committing such offence under Sections378 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 andhttps://hcservices.ecourts.gov.in/hcservices/conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offencepunishable under Section 21 of the MMDR Act, whereasdishonestly removing sand, gravel and other minerals fromthe river, which is the property of the State, out of theState's possession without the consent, constitute anoffence of theft. Hence, merely because initiation ofproceeding for commission of an offence under the MMDRAct on the basis of complaint cannot and shall not debarthe police from taking action against persons forcommitting theft of sand and minerals in the mannermentioned above by exercising power under the Code ofCriminal Procedure and submit a report before theMagistrate for taking cognizance against such persons. Inother words, in a case where there is a theft of sand andgravel from the government land, the police can registera case, investigate the same and submit a final reportunder Section 173 CrPC before a Magistrate havingjurisdiction for the purpose of taking cognizance asprovided in Section 190(1)(d) of the Code of CriminalProcedure.

73. After giving our thoughtful consideration in thematter, in the light of the relevant provisions of theAct vis-à-vis the Code of Criminal Procedure and thePenal 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 various provisionsof the MMDR Act. Consequently, the contrary view taken bythe different High Courts cannot be sustained in law and,therefore, overruled. Consequently, these criminalappeals are disposed of with a direction to theMagistrates 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,https://hcservices.ecourts.gov.in/hcservices/authorizing the Police personnel to file a complaint would be against 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 TheState 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 theprovisions of Section 23A of the MMDR Act, as it standstoday. It might be true that by permitting the violatorsto compound the offences under the MMDR Act or the rulesmade thereunder, the State may get the revenue and thesame shall be on the principle of person who causes thedamage shall have to compensate the damage and shall haveto pay the penalty like the principle of polluters to payin case of damage to the environment. However, in view ofthe large scale damages being caused to the nature and asobserved and held by this Court in the case of Sanjay(supra), the policy and object of MMDR Act and Rules arethe result of an increasing awareness of the compellingneed to restore the serious ecological imbalance and tostop the damages being caused to the nature andconsidering the observations made by this Court in thehttps://hcservices.ecourts.gov.in/hcservices/aforesaid decision, reproduced hereinabove, and when theprovisions of Section 23A of the MMDR Act, as it standstoday. It might be true that by permitting the violatorsto compound the offences under the MMDR Act or the rulesmade thereunder, the State may get the revenue and thesame shall be on the principle of person who causes thedamage shall have to compensate the damage and shall haveto pay the penalty like the principle of polluters to payin case of damage to the environment. However, in view ofthe large scale damages being caused to the nature and asobserved and held by this Court in the case of Sanjay(supra), the policy and object of MMDR Act and Rules arethe result of an increasing awareness of the compellingneed to restore the serious ecological imbalance and tostop the damages being caused to the nature andconsidering the observations made by this Court in thehttps://hcservices.ecourts.gov.in/hcservices/aforesaid decision, reproduced hereinabove, and when the violations like this are increasing and the seriousdamage is caused to the nature and the earth and it alsoaffects the ground water levels etc. and it causes severedamage as observed by this Court in the case of Sanjay(supra), reproduced hereinabove, we are of the opinionthat the violators cannot be permitted to go scot free onpayment of penalty only. There must be some stringentprovisions which may have deterrent effect so that theviolators may think twice before committing such offencesand before causing damage to the earth and the nature.

It is the duty cast upon the State to restore theecological imbalance and to stop damages being caused tothe 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 that apartfrom threatening bridges, sand mining transforms theriverbeds into large and deep pits, as a result, thegroundwater table drops leaving the drinking water wellson the embankments of these rivers dry. Even otherwise,sand/mines is a public property and the State is thecustodian of the said public property and therefore theState should be more sensitive to protect the environmentand ecological balance and to protect the public propertythe State should always be in favour of taking very sternaction against the violators who are creating seriousecological imbalance and causing damages to the nature inany form. As the provisions of Section 23A are not underchallenge and Section 23A of the MMDR Act so long as itstands, we leave the matter there and leave it to thewisdom of the legislatures and the concerned States.”

Conclusion

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 bearingregistration No.TN-51-F-9726, already granted by this Court, byorder, dated 18.11.2020 shall be continued with the sameconditions.

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.

12. In the result, the order dated 31.08.2020 in Crl. M.P.No.3110of 2020 passed by the learned learned Judicial Magistrate No.1 atChengalpattu, is set-aside and the revision is, accordingly,allowed.

-sd-

Assistant Registrar

//True copy//

Sub Assistant Registrar

To1. The Inspector of Police,Tiruporur Police Station,Nagapattinam District.Crime No.999 of 2020.

2. The District and Sessions Judge, Nagapattinam. 3.The Public Prosecutor,High Court, Madras.Crl.R.C.No.805 of 2020

4. The Chief Judicial Magistrate,Chengalpattu.

5. The Judicial Magistrate NO.1,Chengalpattu.

PP(CO)RRI 21/01/2021

Crl.R.C.NO.805 of 2020