CRL RC/847/2020 of G.SURENDAR Vs STATE BY on 31 December 2020

O R D E R

In continuation and conjunction to the order passed by thisCourt dated 18.11.2020, 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 ofhttps://hcservices.ecourts.gov.in/hcservices/

Madras High Court in Review Applications (MD) Nos.80 to 82 of 2019in 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 complaintfiled as per 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 SupremeCourt Cases 772”, which has been reiterated by the Division Benchof this Court and gave various guidelines that the complaint bythe authorized person to be made immediately not later than oneweek from the date of seizure. Both the complaint registered bythe Police and the complaint of the authorized person to be triedby the same Court. As per Section 30 (B), the Special Courts havecome 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 anycomplaint 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 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 arealso authorised to make a complaint in writing by way of affidavitunder Section 22 of the Mines and Minerals (Development andRegulation) 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 thathttps://hcservices.ecourts.gov.in/hcservices/

the ingredients under Section 378 IPC and offence punishable underSection 21 of the Mines and Minerals (Development and Regulation)Act, 1957 are distinct and there is no quarrel about it. The ApexCourt in the case of “State (NCT of Delhi) Versus Sanjay” (citedsupra), issued guidelines in this regard and highlighted theimportance of curbing illicit sand mining and plundering ofnatural wealth and it would be beneficial to extract relevantparagraphs:- “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 rivers andsafety 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, itwill cause serious repercussions as mentionedhereinabove. It will not only change the river hydrologybut 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 Act shallexercise all the powers including making a complaintbefore the Jurisdictional Magistrate. It is also not indispute that the Magistrate shall in such cases takecognizance on the basis of the complaint filed before itby a duly authorised officer. In case of breach andviolation of Section 4 and other provisions of the Act,the police officer cannot insist the Magistrate fortaking cognizance under the Act on the basis of therecord submitted by the police alleging contravention ofthe said Act. In other words, the prohibition containedin Section 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 anyact or omission which constitutes an offence under thePenal Code.

71. However, there may be a situation where a personwithout any lease or licence or any authority entersinto river and extracts sand, gravel and other mineralsand remove 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 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 in themanner mentioned above by exercising power under theCode of Criminal Procedure and submit a report beforethe Magistrate for taking cognizance against suchpersons. In other words, in a case where there is atheft of sand and gravel from the government land, thepolice can register a case, investigate the same andsubmit a final report under Section 173 CrPC before aMagistrate having jurisdiction for the purpose of takingcognizance as provided in Section 190(1)(d) of the Codeof Criminal Procedure.

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 takenhttps://hcservices.ecourts.gov.in/hcservices/

by the different High Courts cannot be sustained in lawand, 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,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,compounding of offence under Section 23(A) of the Mines andMinerals (Development and Regulation) Act is only with regard tothe loss of revenue to the State and not the offence. Theanomaly, if any felt, in issuance of Government Order, the samecan be rectified. The Act is clear on these aspects, which isfurther clarified by the Division Bench of Madurai Bench of MadrasHigh Court in its order.

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.847-825 of 2020”,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 the designatedSpecial Court. The case property if already handed over to thePolice and the Police investigation is pending, the seizurereport, panchnama, Form-95 or other documents, a certified copycan be annexed in the complaint of the authorized officer, thehttps://hcservices.ecourts.gov.in/hcservices/

Special Court 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.847-825 of2020” 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 shallhave to pay the penalty like the principle of pollutersto pay in case of damage to the environment. However, inview of 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 of MMDRAct and Rules are the result of an increasing awarenessof the compelling need to restore the serious ecologicalimbalance and to stop the damages being caused to thenature and considering the observations made by thisCourt in the aforesaid decision, reproduced hereinabove,and when the violations like this are increasing and theserious damage is caused to the nature and the earth andit also affects the ground water levels etc. and itcauses severe damage as observed by this Court in thecase of Sanjay (supra), reproduced hereinabove, we areof the opinion that the violators cannot be permitted togo scot 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 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 theenvironment and ecological balance and to protect thehttps://hcservices.ecourts.gov.in/hcservices/

public property the State should always be in favour oftaking very stern action against the violators who arecreating serious ecological imbalance and causingdamages to the nature in any form. As the provisions ofSection 23A are not under challenge and Section 23A ofthe MMDR Act so long as it stands, we leave the matterthere and leave it to the wisdom of the legislatures andthe 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., MB1HTDFC7ERAJ9114bearing Reg. No.TN 19 P 0016 , 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 initiateand conclude the confiscation proceedings.

12. In the result, the order dated 27.08.2020 in Crl.M.P.No.2230 of 2020 passed by the learned District and SessionsJudge, Nagapattinam, is set-aside and the revision is,accordingly, allowed.-s/d-Assistant RegistrarTrue Copy Sub-Assistant Registrar lbm/vv2

To1. The Inspector of Police,Law & Order,Kariyapattinam Police Station,Kariyapattinam, Vedaranyam T.K. Nagapattinam District.Crime No.658 of 2020.

2. The District and Sessions Judge, Nagapattinam.

3 The District Mines of Miners Foundation Trust Nagapattinam.

4 The Tahsildar

Naapattinam.

5. The Public Prosecutor,High Court, Madras.

Crl.R.C.No.847 of 2020PA(CO)KP(12/02/2021)