CRL RC/880/2020 of RAJMOHAN Vs THE INSPECTOR OF POLICE on 31 December 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

Rajmohan... Petitioner/PetitionerVs.

The Inspector of Police,Poraiyar Police Station,Nagapattinam District.(Crime No.710 of 2020).... Respondent/Respondent PRAYER: Criminal Revision Petition filed under Section 397 r/w401 of the Code of Criminal Procedure, to call for the recordsand set aside the order passed in Cr.M.P.No.2336 of 2020 onthe file of the District and Sessions Judge, NagapattinamDistrict, dated 07.09.2020 to return Lorry Registration No.TN11 0180.

For Petitioner : M/s.K.M.Vijayan Associates For Respondent:Mr.C.Iyyappa RajAdditional Public ProsecutorORDER

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 ofthe case to each other within a week, the same is followed inbreach. 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 inhttps://hcservices.ecourts.gov.in/hcservices/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 are also 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 guidelinesin this regard and highlighted the importance of curbingillicit sand mining and plundering of natural wealth and itwould be beneficial to extract relevant paragraphs:- “69.Consideringtheprinciplesofinterpretation and the wordings used in Section 22,https://hcservices.ecourts.gov.in/hcservices/in our considered opinion, the provision is not a complete and absolute bar for taking action by thepolice for illegal and dishonestly committing theftof minerals including sand from the riverbed. TheCourt shall take judicial notice of the fact thatover the years rivers in India have been affected bythe alarming rate of unrestricted sand mining whichis damaging the ecosystem of the rivers and safetyof bridges. It also weakens riverbeds, fish breedingand destroys the natural habitat of many organisms.If these illegal activities are not stopped by theState and the police authorities of the State, itwill cause serious repercussions as mentionedhereinabove. It will not only change the riverhydrology but also will deplete the groundwaterlevels.

70. There cannot be any dispute with regard torestrictions imposed under the MMDR Act and remedyprovided therein. In any case, where there is amining activity by any person in contravention ofthe provisions of Section 4 and other sections ofthe Act, the officer empowered and authorised underthe Act shall exercise all the powers includingmaking a complaint before the JurisdictionalMagistrate. It is also not in dispute that theMagistrate shall in such cases take cognizance onthe basis of the complaint filed before it by a dulyauthorised officer. In case of breach and violationof Section 4 and other provisions of the Act, thepolice officer cannot insist the Magistrate fortaking cognizance under the Act on the basis of therecordsubmittedbythepoliceallegingcontravention of the said Act. In other words, theprohibition contained in Section 22 of the Actagainst prosecution of a person except on acomplaint made by the officer is attracted only whensuch person is sought to be prosecuted forcontravention of Section 4 of the Act and not forany act or omission which constitutes an offenceunder 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 andother minerals and remove or transport thoseminerals in a clandestine manner with an intent toremove dishonestly those minerals from thepossession of the State, is liable to be punishedfor committing such offence under Sections 378 and379 of the Penal Code.

72. From a close reading of the provisions ofthe MMDR Act and the offence defined under Sectionhttps://hcservices.ecourts.gov.in/hcservices/378 IPC, it is manifest that the ingredients

constituting the offence are different. Thecontravention of terms and conditions of mininglease or doing mining activity in violation ofSection 4 of the Act is an offence punishable underSection 21 of the MMDR Act, whereas dishonestlyremoving sand, gravel and other minerals from theriver, which is the property of the State, out ofthe State's possession without the consent,constitute an offence of theft. Hence, merelybecause initiation of proceeding for commission ofan offence under the MMDR Act on the basis ofcomplaint cannot and shall not debar the police fromtaking action against persons for committing theftof sand and minerals in the manner mentioned aboveby exercising power under the Code of CriminalProcedure and submit a report before the Magistratefor taking cognizance against such persons. In otherwords, in a case where there is a theft of sand andgravel from the government land, the police canregister a case, investigate the same and submit afinal report under Section 173 CrPC before aMagistrate having jurisdiction for the purpose oftaking cognizance as provided in Section 190(1)(d)of the Code of Criminal Procedure.73.After giving our thoughtful consideration inthe matter, in the light of the relevant provisionsof the Act vis-à-vis the Code of Criminal Procedureand the Penal Code, we are of the definite opinionthat the ingredients constituting the offence underthe MMDR Act and the ingredients of dishonestlyremoving sand and gravel from the riverbeds withoutconsent, which is the property of the State, is adistinct offence under IPC. Hence, for thecommission of offence under Section 378 IPC, onreceipt of the police report, the Magistrate havingjurisdiction can take cognizance of the said offencewithout awaiting the receipt of complaint that maybe filed by the authorised officer for takingcognizance in respect of violation of variousprovisions of the MMDR Act. Consequently, thecontrary view taken by the different High Courtscannot be sustained in law and, therefore,overruled. Consequently, these criminal appeals aredisposed of with a direction to the Magistratesconcerned 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.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)https://hcservices.ecourts.gov.in/hcservices/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. Theinclusion of Police Officials to file a complaint may be aabrasion. 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 AdditionalPublic 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 consideringthe provisions of Section 23A of the MMDR Act, as itstands today. It might be true that by permittingthe violators to compound the offences under theMMDR Act or the rules made thereunder, the State mayget the revenue and the same shall be on theprinciple of person who causes the damage shall havehttps://hcservices.ecourts.gov.in/hcservices/to compensate the damage and shall have to pay thePublic 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 consideringthe provisions of Section 23A of the MMDR Act, as itstands today. It might be true that by permittingthe violators to compound the offences under theMMDR Act or the rules made thereunder, the State mayget the revenue and the same shall be on theprinciple of person who causes the damage shall havehttps://hcservices.ecourts.gov.in/hcservices/to compensate the damage and shall have to pay the

penalty like the principle of polluters to pay incase of damage to the environment. However, in viewof the large scale damages being caused to thenature and as observed and held by this Court in thecase of Sanjay (supra), the policy and object ofMMDR Act and Rules are the result of an increasingawareness of the compelling need to restore theserious ecological imbalance and to stop the damagesbeing caused to the nature and considering theobservations 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 itcauses severe damage as observed by this Court inthe case of Sanjay (supra), reproduced hereinabove,we are of the opinion that the violators cannot bepermitted to go scot free on payment of penaltyonly. There must be some stringent provisions whichmay have deterrent effect so that the violators maythink twice before committing such offences andbefore causing damage to the earth and the nature.

It is the duty cast upon the State to restorethe ecological imbalance and to stop damages beingcaused to the nature. As observed by this Court inthe case of Sanjay (supra), excessive in stream sandand gravel mining from river beds and like resourcescauses the degradation of rivers. It is furtherobserved that apart from threatening bridges, sandmining transforms the riverbeds into large and deeppits, as a result, the groundwater table dropsleaving the drinking water wells on the embankmentsof these rivers dry. Even otherwise, sand/mines is apublic property and the State is the custodian ofthe said public property and therefore the Stateshould be more sensitive to protect the environmentand ecological balance and to protect the publicproperty the State should always be in favour oftaking very stern action against the violators whoare creating serious ecological imbalance andcausing damages to the nature in any form. As theprovisions of Section 23A are not under challengeand Section 23A of the MMDR Act so long as itstands, we leave the matter there and leave it tothe wisdom of the legislatures and the concernedStates.”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 thehttps://hcservices.ecourts.gov.in/hcservices/vehicle viz.,Lorry Registration No.TN-11-0180 already granted by this Court, by order, dated 18.11.2020 shall 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 07.09.2020 inCrl.M.P.No.2336 of 2020 passed by the District and SessionsJudge, Nagapattinam, is set-aside and the revision is,accordingly, allowed.

Sd/-

Assistant Registrar

//True Copy//

jas/vv2

Sub Assistant Registrar

To

1. The Inspector of Police,Poraiyar Police Station,Nagapattinam District.

2. The District and Sessions Judge, Nagapattinam District.

3. The Public Prosecutor,High Court, Madras.

Crl.R.C.No.880 of 2020

CA(CO)GN(03/02/2021)