Gujarat High Court
Dineshbhai Dahyabhai Patel vs State Of Gujarat on 16 June, 2025
NEUTRAL CITATION
R/SCR.A/5228/2015 ORDER DATED: 16/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5228 of 2015
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DINESHBHAI DAHYABHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Applicant(s) No. 1,2,3
MR. TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 16/06/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code
of Criminal Procedure, 1973, the applicant has prayed to quash
and set aside the FIR being CR. I No.74 of 2015 registered
with Mansa Police Station for the offences under Sections
379, 114 of Indian Penal Code read with sections 3, 5, 8 & 13
of the Gujarat Mineral (Prevention of Illegal Mining,
Transportation & Storage) Rules, 2005 and under Section 4(1-
A) and 21 of the Mines and Minerals (Development and
Regulation) Act and all the consequential proceedings arising
therefrom.
2. Brief facts of the case is as under :-
2.1. The petitioners are engaged in the business of
transportation of minerals and are owners of trucks bearing
registration numbers GJ-18-AU-8719, GJ-18-AU-8713, and GJ-
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24-AV-3965 respectively. On 10.06.2015, their vehicles were
found transporting ordinary sand within the territorial limits of
Gandhinagar District. It is the case of the petitioners that, due
to internet connectivity issues at mining sites, royalty passes
are often issued after loading the mineral at a location where
internet is available, and this practice is a routine and well-
established one.
2.2. A raid was conducted by the Flying Squad of the Office of
the Additional Director, and the vehicles of the petitioners
were seized under the Gujarat Mineral (Prevention of Illegal
Mining, Transportation and Storage) Rules, 2005, alleging
illegal excavation and transportation. Despite petitioners'
willingness to execute bond and compound the offence as per
Rule 18 of the said Rules, their request was not considered for
a considerable time. After more than 40 days, an FIR came to
be lodged at Mansa Police Station on 22.07.2015, invoking
Sections 379 and 114 of the IPC, Rules 3, 5, 6, 8, and 13 of the
2005 Rules, and Sections 4(1-A) and 21 of the Mines and
Minerals (Development and Regulation) Act, 1957.
2.3. The petitioners contend that they were unaware of any
illegal excavation at the site, as the drivers were only
responsible for transporting the loaded mineral and were under
the bona fide belief that valid royalty passes would be issued
as per usual practice. They further contend that it is arbitrary
and unjust to hold them liable for transportation of 5668 metric
tonnes of sand, which would require around 300 trips, without
any detection by the authorities. It is their grievance that the
authorities are targeting vehicle owners rather than the actual
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culprits responsible for illegal excavation, and that the
impugned FIR is devoid of basic ingredients of the alleged
offences and hence deserves to be quashed.
3. Learned advocate Mr. D.N. Vora for learned advocate Mr.
Satyam Chhaya for the petitioners relying upon judgment of
Co-ordinate Bench in the case of Prahladbhai Jyantibhai
Raval v/s. State of Gujarat [2022 (0) Supreme (Guj)
1210] would submit that in the present case, accused is
charged with offence under Sections 379, 114 of Indian Penal
Coderead read with sections 3, 5, 8 & 13 of the Gujarat Mineral
(Prevention of Illegal Mining, Transportation & Storage) Rules,
2005 and under Section 4(1-A) and 21 of the Mines and
Minerals (Development and Regulation) Act .
3.1. Learned advocate Mr. Vora for the petitioner at the outset
would submit that he is not pressing present petition so far as
offence under section 379, 114 of IPC is concerned. He would
submit that in the present case, Investigating Officer after
investigating the offence has also filed charge-sheet under the
MMDR Act. He would further submit that in view of section 22
of the MMDR Act, the Court cannot take cognizance of offence
under the Act and Rules made thereunder except in case of
written complaint filed by Authorized Officer. He would further
submit that since authorized officer has not filed written
complaint as defined under section 2(d) of Cr.P.C.,
Investigating Officer cannot file charge-sheet for the offence
under the MMDR Act and the Court cannot take cognizance of
said Act. Therefore, he submits to quash the proceedings qua
the offence under the Act and Rules made therein.
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4. Learned APP for the respondent State would submit that
the petitioner cannot seek quashment of FIR on this ground
and therefore submitted not to exercise inherent power of this
Court to quash the complaint and submitted to dismiss the
petition.
5. Having heard learned advocates for the parties, what
could be notice that chief allegations against the petitioners is
in regard to illegal theft of minerals including sand without
taking license from authority under the MMRD Act. Property
indisputably is of the State Government. In view of that,
offence under section 379 of IPC is already registered.
However, whether offence under the MMDR Act can be taken
cognizance by learned Trial Court in absence of written
complaint is issue to be decided in the matter.
6. Section 22 of the Mines and Minerals (Development and
Regulation) Act reads as under :-
"22. No Court shall take cognizance of any offence
punishable under this Act or any Rules made thereunder
except upon complaint in writing made by a person
authorized in this behalf by the Central Government or
the State Government."
6.1. Specific bar has been raised that no Court shall take
cognizance of any offence under the Act or Rules made
thereunder except upon complaint in writing made by
authorized person.
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7. Complaint has been defined in section 2(d) of the Cr.P.C.
It reads as under :-
"(d)"complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not
include a police report."
7.1. The complaint means any allegation made orally or in
writing to Magistrate with a view to his taking action under the
Code or Cr.P.C.
8. At this juncture, I may refer to judgment of Hon'ble Apex
Court in the case of State of NCT of Delhi Vs. Sanjay
reported in AIR 2015 SC 75, wherein, the Hon'ble Apex Court
in identical issue observed as under:
"66. Considering the principles of interpretation and the
wordings used in Section 22, in our considered opinion,
the provision is not a complete and absolute bar for
taking action by the police for illegal and dishonestly
committing theft of minerals including sand from the
river bed.
67. The Court shall take judicial notice of the fact that
over the years rivers in India have been affected by the
alarming rate of unrestricted sand mining which is
damaging the eco-system of the rivers and safety of
bridges. It also weakens river beds, fish breeding and
destroys the natural habitat of many organisms. If these
illegal activities are not stopped by the State and the
police authorities of the State, it will cause serious
repercussions as mentioned hereinabove. It will not only
change the river hydrology but also will deplete the
ground water levels.
68. There cannot be any dispute with regard to
restrictions imposed under the MMDR Act and remedy
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provided therein. In any case, where there is a mining
activity by any person in contravention of the provisions
of Section 4 and other sections of the Act, the officer
empowered and authorized under the Act shall exercise
all the powers including making a complaint before the
jurisdictional magistrate. It is also not in dispute that the
Magistrate shall in such cases take cognizance on the
basis of the complaint filed before it by a duly authorized
officer. In case of breach and violation of Section 4 and
other provisions of the Act, the police officer cannot insist
Magistrate for taking cognizance under the Act on the
basis of the record submitted by the police alleging
contravention of the said Act. In other words, the
prohibition contained in Section 22 of the Act against
prosecution of a person except on a complaint made by
the officer is attracted only when such person sought to
be prosecuted for contravention of Section 4 of the Act
and not for any act or omission which constitute an
offence under Indian Penal Code.
71. Hence, merely because initiation of proceeding for
commission of an offence under the MMDR Act on the
basis of complaint cannot and shall not debar the police
from taking action against persons for committing theft
of sand and minerals in the manner mentioned above by
exercising power under the Code of Criminal Procedure
and submit a report before the Magistrate for taking
cognizance against such person. In other words, in a case
where there is a theft of sand and gravels from the
Government land, the police can register a case,
investigate the same and submit a final report under
Section 173, Cr.P.C. before a Magistrate having
jurisdiction for the purpose of taking cognizance as
provided in Section 190 (1)(d) of the Code of Criminal
Procedure.
72. After giving our thoughtful consideration in the
matter, in the light of relevant provisions of the Act vis-à-
vis the Code of Criminal Procedure and the Indian Penal
Code, we are of the definite opinion that the ingredients
constituting the offence under the MMDR Act and the
ingredients of dishonestly removing sand and gravel from
the river beds without consent, which is the property of
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the State, is a distinct offence under the IPC. Hence, for
the commission of offence under Section 378 Cr.P.C., on
receipt of the police report, the Magistrate having
jurisdiction can take cognizance of the said offence
without awaiting the receipt of complaint that may be
filed by the authorized officer for taking cognizance in
respect of violation of various provisions of the MMRD
Act. Consequently the contrary view taken by the
different High Courts cannot be sustained in law and,
therefore, overruled. Consequently, these criminal
appeals are disposed of with a direction to the concerned
Magistrates to proceed accordingly."
9. Applying ratio stated herein above, filing of charge-sheet
against the petitioner under the provisions of MMDR Act is not
maintainable in view of bar under section 22 of the MMDR Act.
Therefore, charge sheet qua said offence is required to be
quashed.
10. For the reasons stated herein above, I pass the following
order :-
10.1. The petition is partly allowed. Charge-sheet and
consequential proceedings filed in FIR being CR. I No.74 of
2015 registered with Mansa Police Station for the offences
under Sections 3, 5, 8 & 13 of the Gujarat Mineral (Prevention
of Illegal Mining, Transportation & Storage) Rules, 2005 and
under Section 4(1-A) and 21 of the Mines and Minerals
(Development and Regulation) Act is hereby quashed.
However, it is made clear that this Court has not examined
merits of the case. It would be open for the concerned
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authority to file written complaint subject to provision of law in
regard to investigation and material collected during
investigation of offence under Mines and Minerals
(Development and Regulation) Act and Rules made
thereunder. If such complaint is filed by officer as stated under
section 22 of Mines and Minerals (Development and
Regulation) Act, it shall be dealt with in accordance with law by
competent Court without being influenced by quashing of
offence.
10.2 The petition stands disposed of as not pressed for offence
under sections 379, 114 of Indian Penal Code.
10.3. The aforesaid observations and findings shall not
influence the learned trial Court in conducting the trial qua
offences under the provisions of IPC.
(J. C. DOSHI,J)
MANISH MISHRA
