Bombay High Court
Babu Ananda Gunjal And Others vs The State Of Maharashtra And Another on 8 October, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:24089-DB
(1) appln-588-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.588 OF 2023
1. Babu s/o Ananda Gunjal
Age 80 years, Occ: Agri
R/o Ghospuri, tq. Nagar
District Ahmednagar.
2. Sanjay s/o Appasaheb Dhamne
Age 56 years, Occ: Agri
3. Popat s/o Bhau Dhamne
Age 62 years, occ: Agri
4. Dnyandeo s/o Bhau Dhamne
Age 60 years, Occ: Agri
5. Vishal s/o Sukhdeo Dhamne
Age 36 years, Occ: Agri
6. Pramod s/o Sukhdeo Dhamne
Age 39 years, Occ: Agri
No. 2 to 6 are residence of Sarola Kasar,
Taluka Nagar, District: Ahmednagar. ..Applicants
(Orig. Accused)
Versus
1. The State of Maharashtra
Through Incharge, Nagar
Taluka Police Station,
District Ahmednagar.
2. Sachin s/o Sitaram Shinde,
Age 38 years, Occ: Service
R/o: Nimgaon Wagha, tq. Nagar
District: Ahmednagar. ..Respondents
...
Mr. D. R. Markad, Advocate for the Applicants.
Mr. A. V. Lavte, APP for Respondent No.1.
Respondent No.2 is served.
...
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
Reserved on : 19th SEPTEMBER, 2024.
Pronounced On : 08th OCTOBER, 2024.
(2) appln-588-2023.odt
JUDGMENT (Per S. G. Chapalgaonkar, J):
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1. The applicants have approached this Court under Section
482 of the Criminal Procedure Code thereby praying to quash and
set aside FIR in Crime No.618/2022 dated 02.09.2022 registered
with Ahmednagar Taluka Police Station, Dist. Ahmednagar for the
offence punishable under Section 379 of the Indian Penal Code and
consequential criminal proceeding in R.C.C. No.812/2023 pending
before Chief Judicial Magistrate, Ahmednagar.
2. The respondent no.2-Kamgar Talthi lodged report to police
station alleging that in pursuance to an application made by Mr.
Ram Suryabhan Khade, the Sub Divisional Officer constituted
Minor Mineral Squad headed by Shri. V. D. Pawar, Naib Tahsildar
and other employees. On 14.08.2022 the Squad inspected land Gut
No.588 at Ghospuri and noticed that 604 brass earth material and
stone metal has been excavated by Mr. Babu Ananda Gunjal, i.e
owner of land. Similarly, on inspection of Gut No.136 at Sarol
Kasar it was noticed that 9072 brass earth material and stone
metal has been excavated by land owner Sanjay Appasaheb
Dhamane. Similarly, on inspection land from Gut No.136, owned
by Popat Bhau Dhamane and Dnyandeo Bhau Dhamane, it was
noticed that 11,016 brass earth material and stone metal has been
excavated. On inspection of land Gut No.329 it was noticed that
47,154 brass earth material and stone metal has been excavated by
land owners namely Vishal Sukhdeo Dhamane and Pramod
Sukhdeo Dhamane. All those farmers were not holding requisite
authorization from competent authority for excavation of minor
mineral nor they had paid royalty for that purpose. Accordingly,
report of inspection was submitted to the Divisional Commissioner,
Nasik and Additional Collector Ahmednagar. In pursuance of their
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directions and authorization, complaint of theft of minor mineral
has been filed against accused persons.
3. Eventually, Crime No.618/2022 dated 02.09.2022 came to be
registered with Ahmednagar Taluka Police Station for offence
punishable under Section 379 of the Indian Penal Code against
applicants. The investigation progressed. The statements of
witnesses were recorded and finally charge-sheet has been filed
against all the applicants for aforesaid crime. Now Regular
Criminal Case No.812/2023 is pending trial before Chief Judicial
Magistrate at Ahmednagar.
4. Mr. Markad, learned Advocate appearing for the applicants
submits that applicants are farmers. The State of Maharashtra
had promulgated a scheme for construction of farming pond within
the fields of farmers and grants were made available for that
purpose. The applicants have availed benefit of scheme and
constructed farming pond. They had obtained necessary
permission for excavation. As such, they are not guilty of theft as
alleged in the FIR. Mr. Markad would invite attention of this
Court to the Government Resolution dated 17.02.2016 which
precribes aforesaid scheme, the 7/12 extracts of lands of respective
applicants, work order for construction of farming pond
admeasuring 30 mtr. x 30 mtr. x 3 mtr., the receipts under Minor
Minerals Extraction Rules in the name of persons, who have
actually extracted minor minerals and notices served upon
respective applicants under Sections 48(7) and (8) of the
Maharashtra Land Revenue Code by Tahsildar, Ahmednagar. Mr.
Markad would further submit that after excavation, minor mineral
was used for construction of side walls of farming pond and leveling
of the lands. He would submit that in such a situation prosecution
(4) appln-588-2023.odt
initiated against applicants for offence punishable under Section
379 of the Indian Penal Code would not be sustainable. As such, he
urges to quash and set aside FIR and consequential criminal
proceeding.
5. Per contra, Mr. Lavte, learned APP appearing for the
respondent-State vehemently opposes the prayer in the application.
He would submit that although applicants are owners of respective
lands, the minor mineral is property of the Government. The
excavation of minor minerals and its disposal by applicants was
unauthorized and without payment of royalty. He would further
submit that during the course of investigation, it is revealed that
huge quantity of minor mineral has been illegally excavated and
disposed of for commercial purpose. He would, therefore, submit
that there is triable material against each of the applicants and
urges to reject application.
6. We have considered submissions advanced on behalf of
learned Advocates appearing for respective parties. We have
minutely gone through the contents of the FIR and material in the
charge-sheet. Admittedly, the applicants are owners of respective
lands. However, use of such lands is subject to section 48 of
Maharashtra Land Revenue Code, which provides government title
to mines and minerals. Prima facie, there are documents to
indicate that applicants had participated in the scheme introduced
by the State of Maharashtra that promotes and aids construction of
farming ponds in the fields. They were expected to construct
farming ponds of size prescribed in the scheme. The document
suggests that all the applicants availed benefit for construction of
farming pond admeasuring 900 sq. mtr. (30 mtr. x 30 mtr. x 3
mtr.). The expected excavation of 2196 cubic meter has been
(5) appln-588-2023.odt
prescribed for pond size. The documentary evidence on record
suggests that royalty amount was paid by a contractor engaged in
construction of highway. He was permitted excavation of only 500
brass of earth material in Gut No.136. The some of the applicants
executed consent deed in favour of road contractor for excavation of
minor minerals required for construction of Ahmednagar-Vasunda
Phata Road. The statement of witnesses in the charge-sheet depict
that on inspection of land, huge excavation of minor mineral was
noticed in applicants lands. For brevity and convenience, it can be
referred in following chart:
Sr. Gut Nos. Names of Owners of lands Measurement of
No. excavation in brass
2 136 Sanjay Dhamane 9072
3 136 Popat Dhamane and Dnyandeo Dhamane 11,016
4 329 Vishal Dhamane and Pramod Dhamane 47,154
TOTAL 67,846
7. The aforesaid chart would depicts that about 67,846 brass
earth material has been removed from the fields of applicants. If
the applicants were permitted to construct farming pond
admeasuring 900 sq. mtr. (30 mtr. x 30 mtr. x 3 mtr.)
approximately 2196 cubic meter of earth material could have been
excavated. However, inspection by Revenue Authorities depicts
that huge excavation has been done as compare to the probable
excavation required for construction of farming pond. Therefore,
prima facie defence put forth on behalf of applicants that
excavation was made in pursuance of construction of farming pond
appears to be absolutely incorrect. Further, material in the charge-
sheet clearly depicts that some applicants had consented contractor
to excavate earth material, which has been used for construction of
Highway. Prima facie, applicants have involved in commercial
activities and gained profit from unauthorized sale of minor
(6) appln-588-2023.odt
minerals. In that view of the matter, we find that, prima facie,
there is triable material against the applicants. Hence no case is
made out to invoke inherent powers of this Court to accede with
the prayers in the application.
8. Hence, application stands rejected. We make it clear that
observations made herein above are on, prima facie, consideration
of the material in the charge-sheet and restricted only for the
purpose of disposal of this application.
(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI)
JUDGE JUDGE
Devendra/October-2024
