CRL RC/879/2020 of EDWARDRAJ Vs THE INSPECTOR OF POLICE on 31 December 2020

ORDER

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 officialsoftheMinesandMineralsDepartment,thecaseproperties/vehicles are taken into custody. After registrationof FIR, despite specific order of the Division Bench of theMadurai Bench of Madras High Court in Review Applications (MD)Nos.80 to 82 of 2019 in W.P(MD).No.19936 of 2017, 7595 and 21485of 2018 that the Police as well the authorized officers are

https://hcservices.ecourts.gov.in/hcservices/

directed to inform the registration of the case to each otherwithin a week, the same is followed in breach. Due to which,there have been no complaint filed as per Section 22 of theMines and Minerals (Development and Regulation) Act, 1957. Theprosecution 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 ofDelhi) Versus Sanjay reported in (2014) 9 Supreme Court Cases772”, which has been reiterated by the Division Bench of thisCourt and gave various guidelines that the complaint by theauthorized person to be made immediately not later than one weekfrom the date of seizure. Both the complaint registered by thePolice and the complaint of the authorized person to be tried bythe same Court. As per Section 30 (B), the Special Courts havecome 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 authorizedpersons, who lodged complaint to the jurisdictional Police havenot filed any complaint under Mines and Minerals Act. This isin 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 still exists.He further submitted that in the Government Order, in additionto the authorised authorities, jurisdictional Inspector ofPolice are also authorised to make a complaint in writing by wayof affidavit under Section 22 of the Mines and Minerals(Development and Regulation) Act, 1957. As per Section 2(d) ofCr.P.C., the complaint does not include the police report. Nodoubt the cases under the Mines and Minerals (Development andRegulation) Act, 1957 are cognizable offence. The inclusion ofPolice personnels viz., the Inspector of Police as authorized,had created a grey area. The Division Bench of the MaduraiBench of Madras High Court, had clearly held revenueofficial/officer authorized is only to seize and not confiscateor dispose the mineral, tool, equipment, vehicle etc., and thesame to be dealt only by the Special Court. It is seen thatdespite issuance of G.O.(Ms).No.170 (Industries (MMC.2)Department), dated 05.08.2020, the situation has not improved.Further, the Madurai Bench of this Court, as early in the year2012, in the case of “Sengol & others Versus State reported in2012 Crl.J 1705” had clearly held that the ingredients underSection 378 IPC and offence punishable under Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 aredistinct and there is no quarrel about it. The Apex Court inthe case of “State (NCT of Delhi) Versus Sanjay” (cited supra),issued guidelines in this regard and highlighted the importanceof curbing illicit sand mining and plundering of natural wealthand it would be beneficial to 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 includingsand from the riverbed. The Court shall take judicialnotice of the fact that over the years rivers in Indiahave been affected by the alarming rate ofunrestricted sand mining which is damaging theecosystem of the rivers and safety of bridges. It alsoweakens riverbeds, fish breeding and destroys thenatural habitat of many organisms. If these illegalactivities are not stopped by the State and the policeauthorities of the State, it will cause seriousrepercussions as mentioned hereinabove. It will notonly change the river hydrology but also will depletethe 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 cannotinsist the Magistrate for taking cognizance under theAct on the basis of the record submitted by the policealleging contravention of the said Act. In otherwords, the prohibition contained in Section 22 of theAct against 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 for anyact or omission which constitutes an offence under thePenal Code.

person 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 removedishonestly those minerals from the possession of theState, is liable to be punished for committing suchoffence under Sections 378 and 379 of the Penal Code.

72. From a close reading of the provisions of theMMDR Act and the offence defined under Section 378IPC, it is manifest that the ingredients constitutingthe offence are different. The contravention of termsand conditions of mining lease or doing miningactivity in violation of Section 4 of the Act is anoffence punishable under Section 21 of the MMDR Act,whereas dishonestly removing sand, gravel and otherminerals from the river, which is the property of theState, out of the State's possession without theconsent, constitute an offence of theft. Hence, merelybecause initiation of proceeding for commission of anoffence under the MMDR Act on the basis of complaintcannot and shall not debar the police from takingaction against persons for committing theft of sandand minerals in the manner mentioned above byexercising power under the Code of Criminal Procedureand submit a report before the Magistrate for takingcognizance against such persons. In other words, in acase where there is a theft of sand and gravel fromthe government land, the police can register a case,investigate the same and submit a final report underSection 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 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 thatthe ingredients constituting the offence under theMMDR Act and the ingredients of dishonestly removingsand and gravel from the riverbeds without consent,which is the property of the State, is a distinctoffence under IPC. Hence, for the commission ofoffence under Section 378 IPC, on receipt of thepolice report, the Magistrate having jurisdiction cantake cognizance of the said offence without awaitingthe receipt of complaint that may be filed by theauthorised officer for taking cognizance in respect ofviolation of various provisions of the MMDR Act.

Consequently, the contrary view taken by the differentHigh Courts cannot 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 the concernedauthorities, the authorities failed to get sensitized and becomeaware of seriousness of the offence. Hence, the issuance ofG.O.(Ms).No.170(Industries(MMC.2)Department),dated05.08.2020, 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. 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 the Minesand Minerals and authorised officers. The addition of PoliceOfficials as authorised officers would no way take away theright and be an obstacle to the other authorised officers tofile a complaint as contemplated. Further, compounding ofoffence under Section 23(A) of theMines and Minerals(Development and Regulation) Act is only with regard to the lossof revenue to the State and not the offence. The anomaly, ifany felt, in issuance of Government Order, the same can berectified. The Act is clear on these aspects, which is furtherclarified by the Division Bench of Madurai Bench of Madras HighCourt 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, the seizure 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.824-825 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 permitting theviolators 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 itcauses severe damage as observed by this Court in thecase of Sanjay (supra), reproduced hereinabove, we areof the opinion that the violators cannot be permittedto go scot free on payment of penalty only. There mustbe some 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 caseof Sanjay (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. Even otherwise, sand/mines is a public property and theState is the custodian of the said public property andtherefore the State should be more sensitive toprotect the environment and ecological balance and toprotect the public property the State should always bein favour of taking very stern action against theviolators who are creating serious ecologicalimbalance and causing damages to the nature in anyform. As the provisions of Section 23A are not underchallenge and Section 23A of the MMDR Act so long asit stands, 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 Bench ofMadurai Bench of Madras High Court has to be followed withoutany deviation. This Court following the case of “SunderbhaiAmbalal Desai Vs. State of Gujarat reported in MANU/SC/1110/2002and AIR 2003 638”, is inclined to return the vehicle to thepetitioner. Hence,the interim custody of the vehicleviz.,Lorry Registration No.TN-50-Q-7894 already granted by thisCourt, by order, dated 18.11.2020 shall be continued with 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 todispose both the cases. The Special Court is also directed toinitiate and conclude the confiscation proceedings.

12. In the result, the order dated 14.09.2020 inCrl.M.P.No.2354 of 2020 passed by the District and SessionsJudge, Nagapattinam, is set-aside and the revision is,accordingly, allowed. Sd/- Assistant Registrar(CS VI)

//True Copy//

jas/vv2

Sub Assistant Registrar

To

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

2. The Principal District and Sessions Judge,Special Court,Nagapattinam.Special Court,Nagapattinam.

3. The Inspector of Police,

Thittacherry Police Station,Nagapattinam District.Nagapattinam District.

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

Crl.R.C.No.879 of 2020

CO(BS)BDL/19/01/2021