Madras High Court
Ishwarya vs State Rep. By Its on 8 June, 2021
Crl.RC.No.355 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.06.2021
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.355 of 2021
Ishwarya ... Petitioner/Owner of the Vehicle
Vs.
State Rep. by its
Inspector of Police,
Vedaranyam Police Station
Nagapattinam District.
Cr.No.561/2020. ... Respondent/Complainant
PRAYER: Criminal Revision Petition filed under Sections 397 and 401 of
Criminal Procedure Code, to call for the records and set aside the order dated
11.01.2021 passed by the District and Sessions Judge, Nagapatinam, in
Crl.M.P.No. 119 of 2021 in Crime No. 561 of 2020 and to return the
powertrac tractor with tipper bearing registration number TN51/F 7409,
Chasis No. B 3141808 and Engine No. B 3156912 to the custody of the
petitioner.
***
For Petitioner : Mr. Palanivel
For Respondent : Mr. Damodharan
Counsel for Government (Crl. Side)
*****
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ORDER
This Criminal Revision Petition has been filed seeking to call for the
records and set aside the order dated 11.01.2021 passed by the District and
Sessions Judge, Nagapatinam, in Crl.M.P.No. 119 of 2021 in Crime No. 561
of 2020 and to return the powertrac tractor with tipper bearing registration
number TN51/F 7409, Chasis No. B 3141808 and Engine No. B 3156912 to
the custody of the petitioner.
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
of the Mines and Minerals (Development and Regulation) Act, 1957. The
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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.
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,
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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. 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
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Crl.RC.No.355 of 2021
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
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
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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 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
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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
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
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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 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
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Crl.RC.No.355 of 2021
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 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 Additional Public Prosecutor 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.
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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
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
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Crl.RC.No.355 of 2021
the principle of polluters to pay in case of damage 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 further
observed that apart from threatening bridges, sand mining
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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.
11.The respondent police is directed to grant custody of the said
vehicle (powertrac tractor with Tipper) bearing Registration No.TN 51 F
7409 to the petitioner within a period of 7 days from the date of compliance
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of the below mentioned condition Nos.(i) to (iii):-
(i) The petitioner shall deposit a sum of Rs.50,000/-
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 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. 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;
(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
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future, may be filed before the District and Sessions Judge, Nagapattinam,
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.
14.In the result, the order dated 11.01.2021 in Crl.M.P.No.119 of 2021
passed by the District and Sessions Judge, Nagapattinam is set-aside and the
Revision is, accordingly, allowed.
08.06.2021
vji/vsg
Index: Yes/No
Speaking Order/Non Speaking Order
To
1.The Secretary,
Industries Department,
Government of Tamil Nadu,
Fort St.George, Chennai.
2.All District Collectors,
State of Tamil Nadu.
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Crl.RC.No.355 of 2021
3.All Superintendent of Police,
State of Tamil Nadu,
4.The Director of Geology and Minning,
Chennai.
5.The District and Sessions Judge,
Nagapattinam.
6.Inspector of Police,
Vedaranyam Police Station
Nagapattinam District.
7.The Public Prosecutor,
High Court, Madras.
M.NIRMAL KUMAR, J.
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vji/vsg
Crl.R.C.No.355 of 2021
08.06.2021
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