Madras High Court

Udhayakumar vs State Rep.By Inspector Of Police on 7 June, 2021

                                                                                 Crl.RC.No.316 of 2021


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 07.06.2021

                                                        CORAM:

                                    THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                                 Crl.RC.No.316 of 2021


                     Udhayakumar
                     S/o.Nagarajan                                                  ... Petitioner

                                                            Versus

                     State Rep.by Inspector of Police
                     Vaitheeswarankovil Police Station,
                     Nagapattinam District.                                         ... Respondent


                     PRAYER: Criminal Original Petition has been filed under Sections 397 and
                     401 of Cr.P.C, to call for the records on the file of the learned District and
                     Sessions     Judge,      Nagapattinam,      Nagapattinam        District    in
                     Crl.MP.No.2491/2020 dated 25.09.2020 and set aside the order.


                                           For Petitioner       : Mr.E.Kannadasan

                                           For Respondent       : Mr.Damodharan
                                                                  Counsel for Government of
                                                                  Tamil Nadu (Crl side)




                     1/17


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                                                                                     Crl.RC.No.316 of 2021




                                                           ORDER

This Criminal Revision Petition had been filed against the order

dated 25.09.2020 passed by the learned District and Sessions Judge,

Nagapattinam, Nagapattinam District in Crl.MP.No.2491 of 2020 , by the

said order, the Trial Court dismissed the petition filed by the Revision

Petitioner seeking return of property.

2.It is seen that in majority of the cases, either the case has been

registered by the respondent Police based on the complaint given by the

Revenue Authorities or by the officials of the Mines and Minerals

Department, the case properties/vehicles are taken into custody. After

registration of FIR, despite specific order of the Division Bench of the

Madurai 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 21485 of 2018 that

the Police as well the authorized officers are directed to inform the

registration of the case to each other within a week, the same is followed in

breach. Due to which, there have been no complaint filed as per Section 22

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of the Mines and Minerals (Development and Regulation) Act, 1957. The

prosecution under the Indian Penal Code 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 Supreme Court Cases 772”, which has been reiterated by the

Division Bench of this Court and gave various guidelines that the complaint

by the authorized person to be made immediately not later than one week

from the date of seizure. Both the complaint registered by the Police and

the complaint of the authorized person to be tried by the same Court. As per

Section 30 (B), the Special Courts have come in place.

3.In most of the cases, FIR's are filed before the Magistrate Court

in which charge sheet are yet to be filed and committed to the Special Court.

The authorized person have not initiated any complaint. It is seen that the

authorized persons, who lodged complaint to the jurisdictional Police have

not filed any complaint under Mines and Minerals Act. This is in clear

violation of the directions of this Court.

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4.The learned Additional Public Prosecutor produced

G.O.(Ms).No.170 (Industries (MMC.2) Department), dated 05.08.2020 and

submitted that the guidelines have been issued to all the officers concerned,

including the authorized officer to follow the directions of the Division

Bench of the Madurai Bench of Madras High court. Despite the same, the

anomaly still exists. He further submitted that in the Government Order, in

addition to the authorised authorities, jurisdictional Inspector of Police are

also authorised to make a complaint in writing by way of affidavit under

Section 22 of the Mines and Minerals (Development and Regulation) Act,

1957. As per Section 2(d) of Cr.P.C., the complaint does not include the

police report. No doubt the cases under the Mines and Minerals

(Development and Regulation) Act, 1957 are cognizable offence. The

inclusion of Police personnels viz., the Inspector 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

only to seize and not confiscate or dispose the mineral, tool, equipment,

vehicle etc., and the same to be dealt only by the Special Court.

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It is seen that despite 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 year 2012, in the case of

“Sengol & others Versus State reported in 2012 Crl.J 1705” had clearly

held that the ingredients under Section 378 IPC and offence punishable

under Section 21 of the Mines and Minerals (Development and Regulation)

Act, 1957 are distinct and there is no quarrel about it. The Apex Court in

the case of “State (NCT of Delhi) Versus Sanjay” (cited supra), issued

guidelines in this regard and highlighted the importance of curbing illicit

sand mining and plundering of natural wealth and it would be beneficial to

extract relevant paragraphs:-

“69.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 riverbed. 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 ecosystem of the rivers and

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safety of bridges. It also weakens riverbeds, 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 groundwater levels.

70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy 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 authorised 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 authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the 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 is sought to be

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prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.

71.However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code.

72.From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. 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

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under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.

73.After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à- vis the Code of Criminal Procedure and the 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 riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 IPC, 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 authorised officer for taking cognizance in respect of violation of various provisions of the MMDR 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

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direction to the Magistrates concerned to proceed accordingly.”

5.It is clearly held that compounding the offence under section

23(A) of the Mines and Minerals (Development and Regulation) Act, 1957,

would no way absolve the offender. Further despite this Court's specific

direction to the concerned authorities, the authorities failed to get sensitized

and become aware 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 Prosecutor that

in view of Section 23(A) of Mines and Minerals (Development and

Regulation) Act, 1957, after compounding the offence, it would be difficult

for the authorities to file a complaint. Further, authorizing the Police

personnel to file a complaint would be against Section 2(d) of Cr.P.C. The

inclusion of Police Officials to file a complaint may be abrasion. The Police

personnel referred in G.O.(Ms).No.170 (Industries (MMC.2) Department),

dated 05.08.2020, are only in addition to the Revenue Authorities, the

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officials of the Mines and Minerals and authorised officers. The addition of

Police Officials as authorised officers would no way take away the right and

be an obstacle to the other authorised officers to file a complaint as

contemplated. Further, compounding of offence under Section 23(A) of the

Mines and Minerals (Development and Regulation) Act is only with regard

to the loss of revenue to the State and not the offence. The anomaly, if any

felt, in issuance of Government Order, the same can be rectified. The Act is

clear on these aspects, which is further clarified by the Division Bench of

Madurai Bench of Madras High Court in its order.

7.The learned counsel for Government of Tamil Nadu (Crl.Side)

relied on the judgment of the Apex Court in the case of “Jayant Etc., Versus

The State of Madhya Pradesh in Criminal Appeal Nos.824-825 of 2020”,

for the preposition that once the case under MM DR Act is compounded,

whether a complaint can be filed under Section 22 of MM DR Act.

8.The view of this Court is that the grey area pointed out found in

G.O.(Ms).No.170 (Industries (MMC.2) Department), dated 05.08.2020, will

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no way absolve the rights and duties of the authorized officers in filling the

complaint before the designated Special Court. The case property if already

handed over to the Police and the Police investigation is pending, the

seizure report, panchnama, Form-95 or other documents, a certified copy

can be annexed in the complaint of the authorized officer, the Special Court

to accept the same as proof of seizure.

9.The answer to the contention of the learned Additional Public

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 considering the provisions of Section 23A of the MMDR Act, as it stands today. It might be true that by permitting the violators to compound the offences under the MMDR Act or the rules made thereunder, the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage

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to the environment. However, in view of the large scale damages being caused to the nature and as observed and held by this Court in the case of Sanjay (supra), the policy and object of MMDR Act and Rules are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature and considering the observations made by this Court in the aforesaid decision, reproduced hereinabove, and when the violations like this are increasing and the serious damage is caused to the nature and the earth and it also affects the ground water levels etc. and it causes severe damage as observed by this Court in the case of Sanjay (supra), reproduced hereinabove, we are of the opinion that the violators cannot be permitted to go scot free on payment of penalty only. There must be some stringent provisions which may have deterrent effect so that the violators may think twice before committing such offences and before causing damage to the earth and the nature.

It is the duty cast upon the State to restore the ecological imbalance and to stop damages being caused to the nature. As observed by this Court in the case of Sanjay (supra), excessive in stream sand and gravel mining from river beds and like resources causes the degradation of rivers. It is

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further observed that apart from threatening bridges, sand mining transforms the riverbeds into large and deep pits, as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry. Even otherwise, sand/mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form. As the provisions of Section 23A are not under challenge and Section 23A of the MMDR Act so long as it stands, we leave the matter there and leave it to the wisdom of the legislatures and the concerned States.”

10.In view of the above, the directions of Division Bench of

Madurai Bench of Madras High Court has to be followed without any

deviation. This Court following the case of “Sunderbhai Ambalal Desai

Vs. State of Gujarat reported in MANU/SC/1110/2002 and AIR 2003 638”,

is inclined to return the vehicle to the petitioner.

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11.The respondent police is directed to grant custody of the said

vehicle (TATA ACE) bearing Registration No.TN 51 AZ 9685 to the

petitioner within a period of 7 days from the date of compliance of the

below mentioned condition Nos.(i) to (iii):-

(i) The petitioner shall deposit a sum of Rs.25,000/- before the jurisdictional Tahsildar as non-refundable deposit. After receipt of the above said amount, the same will have to be deposited by the Tahsildar, to the credit of the District Mines and Minerals Foundation Trust, Nagapattinam, Nagapattinam District as non- refundable deposit;

(ii) The petitioner shall execute a personal bond for a sum of Rs.25,000/- with two sureties each, for a like sum to the satisfaction of the the District and Sessions Judge, Nagapattinam,Nagapattinam District. The petitioner and the sureties shall affix their photographs and give the copies of their Aadhaar Card;

(iii) The petitioner shall give an undertaking before the respondent/ authority concerned stating that he will not use the vehicle in question for any illegal activities in future and shall produce the same as and when required by the respondent and also the trial Court, failing which the respondent/trial Court is at liberty to confiscate the vehicle;

(iv) The petitioner shall not alienate the vehicle in question till the disposal of the proceedings before the authority concerned;

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(v) The petitioner shall take photograph of the vehicle and submit the same along with Compact Disc duly certified under Section 65-B of the Indian Evidence Act, 1872;

(vi) The petitioner shall surrender the original R.C. book before the the District and Sessions Judge, Nagapattinam;

(vii) The petitioner is also directed to participate in the enquiry to be conducted by the respondent.

12.Petition relating to return of R.C. Book for any purpose in the

future, may be filed before the District and Sessions Judge, Nagapattinam,

Nagapattinam District who may consider the same on merits, though this

order has been passed by the High Court.

13.This Court hereby directs the authorized Officers to file

complaint before the Special Court and the Special Court to take the same

on file, try it along with the Police case and to dispose both the cases. The

Special Court is also directed to initiate and conclude the confiscation

proceedings.

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