State of NCT of Delhi Vs. Sanjay

[Criminal Appeal No. 499 of 2011]

Jaysukh Bavanji Shingalia Vs. State of Gujarat and Another

[Criminal Appeal No. 2105 of 2013]

Malabhai Shalabhai Rabari and Others Vs. State of Gujarat and Others

[Criminal Appeal Nos. 2108-2112 of 2013]

Kalubhai Dulabhai Khachar Vs. State of Gujarat and Another

[Criminal Appeal No.2107 of 2013]

Sondabhai Hanubhai Bharwad Vs. State of Gujarat and Another

[Criminal Appeal No.2106 of 2013]

M.Y.EQBAL, J.

1. The principal question which arises for consideration in these appeals is whether the provisions contained in Sections 21, 22 and other sections of Mines and Minerals (Development and Regulation) Act, 1957 operate as bar against prosecution of a person who has been charged with allegation which constitutes offences under Section 379/114 and other provisions of the Indian Penal Code. In other words, whether the provisions of Mines and Minerals Act explicitly or impliedly excludes the provisions of Indian Penal Code when the act of an accused is an offence both under the Indian Penal Code (in short, 'IPC') and under the provisions of Mines and Minerals (Development and Regulation) Act.

2. Criminal Appeal No.499 of 2011 arose out of an order passed by the Delhi High Court on an application under Section 482 Cr.P.C. seeking quashing of the FIR registered at Police Station Alipur under Sections 379/114/120B/34 IPC on the allegation that appellant was involved in illegal mining of sand from the Yamuna basin. An FIR was registered by the police suo motu having come to know that some persons were removing and selling sand from the Yamuna basin for the last so many days.

On receipt of such information, the police officers committed raid and visited the site where they found one dumper filled with sand. Because of non- production of any documents and valid papers, the digging equipments were seized and taken into possession and persons were arrested. An FIR was registered on the charges of illegal mining under Section 379/114 IPC besides being cognizable offence under Section 21 (4) of the Mines and Mineral (Development and Regulation) Act, 1957 (in short the MMDR Act).

3. The appellant challenged the registration of the case on the ground inter alia that offence if at all committed, cognizance would have been taken under the provisions of MMDR Act, that too on the basis of complaint to be filed under Section 22 of the Act by an authorized officer.

4. Criminal Appeal No.2105 of 2013 Similarly this case arose out of an order passed by the Gujarat High Court on an application filed by the appellant seeking quashing of the FIR on various grounds inter alia that Section 22 of the MMDR Act put a complete bar on the registration of FIR by the police. The allegation inter alia in the FIR was on illegal mining in those areas where mining lease was already revoked.

5. Criminal Appeal Nos. 2108-2112 of 2013 In these cases, appellants are the owners of Murlidhar Stone Industries and were granted quarry lease in the seam of Village Thoriwari for excavation of mines and minerals on payment of royalty. The appellants challenged the legality and validity of mining complaint lodged by the State geologist against them for offences under Section 379/114 of IPC and under Section 21 of the MMDR Act. The appellants sought an appropriate writ or direction to quash and set aside the criminal proceedings on the same ground that Section 22 of the Act prohibits registration of FIR with respect to offences punishable under the said MMDR Act.

6. Criminal Appeal No.2107 of 2013 This appeal also arose out of the order passed by the High Court of Gujarat on the application challenging the legality and validity of criminal complaint filed before Bhuj Taluka Police Station for the alleged illegal mining and transporting a dumper loaded with black trap stone. A complaint was made with the police for the commission of offence under Section 379 read with Section 114 of the IPC and under Section 21 of the MMDR Act.

7. Criminal Appeal No.2106 of 2013 This appeal also arose out of a complaint filed before Sayla Police Station by the Incharge Mines Supervisor, alleging offence punishable under Sections 4(1) and 21(1) of the MMDR Act. No charge sheet has been filed in this complaint so far.

8. Criminal Appeal No.499 of 2011, as stated above, arose out of the order passed by the Delhi High Court. The Delhi High Court formulated three issues for consideration:-

(1) Whether the police could have registered an FIR in the case;

(2) Whether a cognizance can be taken by the concerned Magistrate on the basis of police report; and

(3) Whether a case of theft was made out for permitting registration of an FIR under Section 379/411 of the Indian Penal Code.

The High Court after referring various provisions on the MMDR Act vis-Ã -vis Code of Criminal Procedure disposed of the application directing the respondent to amend the FIR, which was registered, by converting the offence mentioned therein under Section 379/411/120B/34 of IPC to Section 21 of the MMDR Act. The High Court in para 18 of the impugned order held as under:-

"18. In view of the aforesaid and taking into consideration the provisions contained under Section 21 (6) of the said Act I hold that:

(i) The offence under the said Act being cognizable offence, the Police could have registered an FIR in this case;

(ii) However, so far as taking cognizance of offence under the said Act is concerned, it can be taken by the Magistrate only on the basis of a complaint filed by an authorized officer, which may be filed along with the police report;

(iii) Since the offence of mining of sand without permission is punishable under Section 21 of the said Act, the question of said offence being an offence under Section 379 IPC does not arise because the said Act makes illegal mining as an offence only when there is no permit/licence for such extraction and a complaint in this regard is filed by an authorized officer."

9. On the other hand the Gujarat High Court formulated the following question for consideration:- Whether Section 22 of the Act would debar even lodging an FIR before the police with respect to the offences punishable under the said Act and Rules made there under? In Case such FIR's are not debarred and the police are permitted to investigate, can the concerned Magistrate take cognizance of the offences on a police report? What would be the effect on the offences punishable under the Indian Penal Code in view of the provisions contained in the Act?

10. The Gujarat High Court came to the following conclusion:-

(i) The offence under the said Act being cognizable offence, the Police could have registered an FIR in this case;

1. Section 22 of the Act does not prohibit registering an FIR by the police on information being given with respect to offences punishable under the said Act or the Rules made thereunder.

2. It is however, not open for the Magistrate to take cognizance of the offence punishable under the Act or the Rules made there under on a mere charge- sheet filed by the police. It would, however, be open for the officer authorized by the state or the Central Government in this behalf to file a complaint in writing before the Magistrate relying upon the investigating carried out by the police and the complaint may also include the papers of the police investigation.

3. With respect to offences punishable under the Indian Penal Code, no such bar as indicated in para (2) would apply.

xxxxxxx

22. In so far as the petitions where only FIRs have been registered by the police and no charge sheet is filed, they must fail. In so far as the cases where police investigation has been concluded and charge sheets have been filed, it would not be open for the Magistrate concerned to take cognizance of offences only on such police reports.

11. In the case of Sengol, Charles and K. Kannan, etc.etc. vs. State Rep. by Inspector of Police, 2012 Cri LJ 1705, 2012(2) CTC 369, a similar question also came for consideration before the Madras High Court where a batch of writ petitions were heard and disposed of. The allegation made against the writ petitioner in the FIR was that they committed theft of sand from rivers and river-bed belonging to the Government, which act also constitutes violation of the provisions of MMDR Act. Accordingly, they were prosecuted for the offence punishable under Section 21 of the MMDR Act and also under Section 379 IPC . The question that came for consideration before the Court was as to whether the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, will either explicitly or impliedly exclude the provisions of the Indian Penal Code when the act of an accused is an offence both under the Indian Penal Code and under the Provisions of the Mines and Minerals (Development and Regulation) Act, 1957?

12. After considering various provisions of the Act, the Division Bench observed:-

"35. A cursory comparison of these two provisions with Section 378 of IPC would go to show that the ingredients are totally different. The contravention of the terms and conditions of mining lease, etc. constitutes an offence punishable under Section 21 of the Mines and Minerals Act, whereas dishonestly taking any movable property out of the possession of a person without his consent constitutes theft. Thus, it is undoubtedly clear that the ingredients of an offence of theft as defined in Section 378 of IPC are totally different from the ingredients of an offence punishable under Section 21(1) r/w Section 4(1) and 4(1A) of the Mines and Minerals Act."

13. The Calcutta High Court in the case of Smt. Seema Sarkar vs. The State, (1995)1 CALLT 95(HC), has taken a different view. In this case the Block Land Reforms Officer lodged a complaint with the Police Station alleging inter alia that the accused persons unauthorisedly excavated the land of ordinary clay for manufacturing brick without an authorized licence and thereby violated Section 21(2) of the MMDR Act and Section 379 IPC .

The Bhatar police station registered the complaint treating it as an FIR and GR case was started before the sub-divisional judicial Magistrate, Faridabad. The order taking cognizance and also the complaint was challenged by the accused persons on the ground inter alia that no court is competent and empowered to take cognizance of an offence under the MMDR Act, 1957 unless the complaint is being lodged by an authorized person. Quashing the complaint, the Calcutta High Court held as under:-

"6. The learned Magistrate has taken cognizance of. the offence on the basis of the charge-sheet as submitted by the Police under Section 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957 and Section 379 of the Indian Penal Code. Cognizance can be taken under section 190 of the Code of Criminal Procedure , 1973. Cognizance is one and it cannot be divided. Splitting of cognizance is not permissible under the law. This is the admitted position that the complainant who lodged the complaint is not an authorized person to make such complaint.

So taking cognizance on the basis of the complaint by the learned Magistrate for violation of the provision under Section 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957 is bad. The only question that is left open is whether taking cognizance itself is bad or a partial cognizance can be taken? In the peculiarity of the facts and circumstances of the case if the offence as alleged under Section 379 I.P.C. against the accused is dissociated from the allegation of excavation of earth without license constituting an offence under Section 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957, then there is no ingredient for an offence under Section 379 I.P.C. against the accused.

Even if it is assumed that there is such an ingredient then the order of taking cognizance is bad because cognizance is one and it cannot be made a split. If it is found that taking cognizance of an offence is bad the other part of the offence for which cognizance has been taken cannot be sustained in law."

14. Since conflicting views have been taken by Gujarat High Court, Delhi High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court, and they are in different tones, it is necessary to settle the question involved in these appeals.

15. Mr. Nikhil Goel learned counsel appearing in Criminal Appeal Nos. 2105, 2106 and 2107 of 2013 assailed the impugned order of the High court on various grounds. Learned counsel firstly contended that Section 22 of MMDR Act per se puts a bar even on registration of the FIR and consequently on investigation unless a direction to that effect comes from the Magistrate and that too on a complaint in writing made by a person authorized in this behalf. Learned counsel contended that Section 21(6) of the Act makes the offence under sub-section 1 of Section 21 to be cognizable irrespective of anything contained to the contrary in the Code of Criminal Procedure.

Learned counsel contended that both Section 21(6) and Section 22 if read independently on each other would make the other provision otiose. As a result, the bar under Section 22 of the Act would not only prevail upon the provisions contained in Section 190, Cr.P.C. but would prevail over the chapter of the investigation, namely Chapter 12 Cr.P.C.

16. Learned counsel further submitted that in case the cognizability of the offence contained in sub-clause 6 of Section 21 is to be extended to include applicability of Chapter 12 of the Criminal Procedure Code , without complying with the provisions of Section 22, the same would present at least three difficulties. Firstly, there are several provisions after the stage of filing of charge-sheet which would be contrary to the provisions and the rules contained in the 1957 Act. These provisions in the act and the rules framed under the 1957 legislation inescapably indicate that almost everything relating to an offence under the provisions of Section 21 has to be done by the authorized officer.

Accordingly, if the provisions of Section 21(6) are to be extended to Chapter 12, while the police may register an FIR, the power to seize, the power to compound, the requirement of taking directions from the jurisdictional magistrate are examples of some things which the police cannot do in view of direct contrary to the provisions in the 1957 Act. Learned counsel submitted that this power of the police is equivalent to the same power/duty which arises pursuant to an order of the Magistrate under Section 156 [3]. There would definitely be cases where offences punishable under Section 20 were brought to the notice of persons who were neither authorized person under the Act nor the police.

Therefore in such a situation, if the police fails to act, the other option available to any person is to make an application under Section 156 [3]. However, in this case, the learned Magistrate has no jurisdiction to pass an order under this provision in view of paragraph 11. Therefore, it will be a completely incongruous situation if the provisions of sub-clause 6 of Section 21 are to be extended to Chapter 12 despite which several provisions in Chapter 12 cannot be invoked.

17. Learned counsel further submitted that the provisions of Chapter 12 to 14 leading up to the magistrate taking cognizance of an offence are a part of a common statutory duty. The investigation under Section 156 of the Code has to necessarily result in a report either under Section 170 or 173 of the Code. The appellant submits that the magistrate is duty bound to act on such report in one of the three manners suggested in para-6 of 1980 (4) SCC 631. It is submitted that there is no other option of preparation of final report and keep it in abeyance. For this reason as well, the provisions of sub-section (6) cannot be read into Chapter 12 of the code.

Learned counsel further submitted that the manner in which the various high courts have dealt with these provisions are conflicting. The appellant relies upon the decision of Kerala High Court reported in 2008 Cr.L.J. 2388, decision of Madras High Court in Sengol (supra), the judgments of this Court reported in (2009) 7 SCC 526 and (2011) 1 SCC 534 on the interpretation of similar clauses under different enactments. It was contended that if the intention of the Legislature was to make violation of the provisions of Section 4 of the MMDR Act as an offence of theft, there would have been an appropriate provision in the MMDR Act itself.

The counsel submits that there is a specific purpose for which powers have been given to the authorized person to take care of breaches under the Act and as such breaches are to be tried under the general penal law as it would take away the protection which an accused/suspect has been given under the MMDR Act. The appellant submits that all penal statutes have to be construed strictly and wherever there are two views possible, benefit to an accused has to be given.

18. Before answering the question, we shall first refer in brief the relevant provisions of Mines and Minerals (Development and Regulation) Act, 1957 and Code of Criminal Procedure. Section 4 of the Act puts a restriction on mining operation or prospecting mining operation by any person except under a lease or licence. Section 4 reads as under:-

"4. Prospecting or mining operations to be under licence or lease.

(1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting licence or, as the case may be, a mining lease, granted under this Act and the rules made thereunder: Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement.

Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government Company within the meaning of Section 617 of the Companies Act, 1956.

Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu. (1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.

(2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder.

(3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made under Section 18, undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease."

19. From a bare perusal of Section 4, particularly Section 4(1A) would show that there is a total restriction on transportation or search of minerals otherwise than in accordance with the provisions of the Act and the rules made thereunder. The next relevant provisions are Sections 21 and 22 of the Act. Section 21 reads as under :-

"Penalties 21.

(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty- five thousand rupees, or with both.

(2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both, and in the case of a continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.

(3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land.

(4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.

(4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court.

(5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority.

(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under sub-section (1) shall be cognizable."

20. Section 21 is a penalty provision in case of contravention of Section 4(1A) of the Act and is punishable with imprisonment for a term which may extend to two years. Sub-section 3 of Section 21 would show that the State Government or any other authority authorized by the State Government may obtain the help of police to evict the trespassers from the land who is doing mining activity in contravention of the provisions of the Act. Sub- section 4 further empowered the officer or an authority specially empowered in this behalf to seize any tool, equipment, vehicle or any other thing which are used by any person who illegally or without any lawful authority erases, transports any minerals from any land.

Those minerals, tools, equipment or vehicle or any other thing so seized shall be confiscated by the order of the court competent to take cognizance and shall be disposed of in accordance with the direction of such court as contemplated under sub- section 4(A) of Section 4 of the Act. Sub-section (6) of Section 21 has been inserted by an Amendment Act of 1986 whereby an offence under Sub- section (1) of this Section has been made cognizable. Section 22 which is very relevant for the instant case needs to be quoted herein below :-

"22. Cognizance of offences 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 authorised in this behalf by the Central Government or the State Government."

21. Reading the aforesaid provision would show that cognizance of any offence punishable under the Act or the Rules made thereunder shall be taken only upon a written complaint made by a person authorized in this behalf by the Central Government or the State Government.

22. Section 23(B) confers power to any gazetted officer of the Central or State Government authorized on that behalf to make search of minerals, documents or things in case there is a reason to believe that any mineral has been raised in contravention of the Act or the Rules made thereunder. While making search provisions of Section 100 of Code of Criminal Procedure has been made applicable to every search.

"23B. Power to search --. If any gazetted officer of the Central or a State Government authorised by the Central Government [or a State Government, as the case may be, in this behalf by general or special order has reason to believe that any mineral has been raised in contravention of the provisions of this Act or rules made thereunder or any document or thing in relation to such mineral is secreted in any place [or vehicle,] he may search for such mineral, document or thing and the provisions of section 100 of the Code of Criminal Procedure , 1973 shall apply to every such search."

23. In exercise of powers conferred by Section 23(C)(1) of the MMDR Act, the Government of Gujarat made rules called Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. The said Rules, inter alia, made provisions to search, seizure and confiscation of the property in the manner provided under the Act as and when a person violates the provisions of the Act and the Rules made thereunder in doing mining activities.

24. Looking into the provisions the Code of Criminal Procedure, 1973 the relevant provisions need to be referred hereunder. Section 2(c), 2(d) and 2(h) define cognizable offence, complaint and investigation which reads as under :- "2(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; 2(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. 2(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf;"

25. Section 4 provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the said Code. Sub-section (2) of Section 4 provides that all offences under any other law shall be inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment regulating the mining or place of investigation, inquiry or trial of such offences.

Coming to the provisions of Section 41 of the Code, it will show that a police officer without an order of Magistrate and warrant can arrest any person who commits a cognizable offence. The Court may also arrest any person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exist that he has committed a cognizable offence punishable with imprisonment for a term which made less than seven years. The relevant part of Section 41, Cr.P.C. is quoted herein below:-

"41. When police may arrest without warrant .-

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary-

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing.

.................."

26. Chapter 11 of the Code confers very important power and duty upon the police officer to take preventive action in certain cases. Sections 149, 150, 151 and 152 of the Code are worth to be referred to and quoted hereinbelow :-

"149. Police to prevent cognizable offences - Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence. 150. Information of design to commit cognizable offences - Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.

151. Arrest to prevent the commission of cognizable offences -

(1) A police officer, knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorized under any other provisions of this Code or any other law for the time being in force.

152. Prevention of injury to public property.- A police office may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark or buoy or other mark used for navigation."

27. Perusal of aforementioned provisions would show that a police officer of his own authority has the duty to prevent any injury attempted to be committed to any public property or national assets and to prosecute such person in accordance with law.

28. The policy and object of Mines and Minerals Act and Rules have a long history and 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.

29. The Court cannot lose sight of the fact that adverse and destructive environmental impact of sand mining has been discussed in the UNEP Global Environmental Alert Service report. As per the contents of the report, lack of proper scientific methodology for river sand mining has led to indiscriminate sand mining, while weak governance and corruption have led to widespread illegal mining. While referring to the proposition in India, it was stated that Sand trading is a lucrative business, and there is evidence of illegal trading such as the case of the influential mafias in our Country.

30. The mining of aggregates in rivers has led to severe damage to river, including pollution and changes in levels of pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from the Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 centimetres a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds.

31. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion.

32. The report also dealt with the astonishing impact of sand mining on the economy. It states that the tourism may be affected through beach erosion. Fishing, both traditional and commercial - can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structures for water supply.

33. Sand is often removed from beaches to build hotels, roads and other tourism-related infrastructure. In some locations, continued construction is likely to lead to an unsustainable situation and destruction of the main natural attraction for visitors - beaches themselves.

34. Mining from, within or near a riverbed has a direct impact on the stream's physical characteristics, such as channel geometry, bed elevation, substratum composition and stability, instream roughness of the bed, flow velocity, discharge capacity, sediment transportation capacity, turbidity, temperature, etc. Alteration or modification of the above attributes may cause hazardous impact on ecological equilibrium of riverine regime. This may also cause adverse impact on instream biota and riparian habitats. This disturbance may also cause changes in channel configuration and flow-paths.

35. In the case of M. Palanisamy vs. The State of Tamil Nadu, 2012 (4) CTC 1, the amended provisions of the Tamil Nadu Mines and Minerals Concession Rules, 1959 was challenged on the ground that the said Rules for the purpose of preventing and restricting illegal mining, transportation and storage of minerals are ultra vires constitutional provisions and the provisions of the Mine and Minerals (Development and Regulation) Act, 1957. Upholding the vires of the Rules, the Division Bench (one of us, Eqbal, J. as he then was) of the Madras High Court, elaborately discussed the object of restriction put in the illegal mining, transportation and storage of minerals including sand and after considering various reports observed thus:

"20. In order to appreciate the issue involved in these Writ Petitions, we may have to look at the larger picture - the impact of indiscriminate, uninterrupted sand quarrying on the already brittle ecological set up of ours. According to expert reports, for thousands of years, sand and gravel have been used in the construction of roads and buildings. Today, demand for sand and gravel continues to increase. Mining operators, instead of working in conjunction with cognizant resource agencies to ensure that sand mining is conducted in a responsible manner, are engaged in full-time profiteering. Excessive in-stream sand-and-gravel mining from river beds and like resources causes the degradation of rivers. In-stream mining lowers the stream bottom, which leads to bank erosion.

Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river mouths and coastal inlets. It also leads to saline-water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in- stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river.

Further, according to researches, in-stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the stream-bed, and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction of sand from river beds may also cause the entire stream-bed to degrade to the depth of excavation.

22. The most important effects of in-stream sand mining on aquatic habitats are bed degradation and sedimentation, which can have substantial negative effects on aquatic life. The stability of sand-bed and gravel-bed streams depends on a delicate balance between stream flow, the sediments supplied from the watershed and the channel form. Mining-induced changes in sediment supply and channel form disrupt the channel and the habitat development processes. Furthermore, movement of unstable substrates results in downstream sedimentation of habitats. The affected distance depends on the intensity of mining, particles sizes, stream flows, and channel morphology.

23. 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. Bed degradation from in-stream mining lowers the elevation of stream flow and the floodplain water table, which in turn, can eliminate water table- dependent woody vegetation in riparian areas and decrease wetted periods in riparian wetlands. So far as locations close to the sea are concerned, saline water may intrude into the fresh water body."

36. In the case of Centre for Public Interest Litigation vs. Union of India, (2012) 3 SCC 1, this Court, while observing that the natural resources are the public property and national assets, held as under:-

"75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc."[pic]

37. In the case of M.C. Mehta vs. Kamal Nath and others (1997) 1 SCC 388, this Court while considering the doctrine of public trust which extend to natural resources observed as under:-

"24. The ancient Roman Empire developed a legal theory known as the "Doctrine of the Public Trust". It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about "the environment" bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullious) or by every one in common (res communious).

Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan - proponent of the Modern Public Trust Doctrine - in an erudite article "Public Trust Doctrine in Natural Resource Law : Effective Judicial Intervention", Michigan Law Review, Vol. 68, Part 1 p. 473, has given the historical background of the Public Trust Doctrine as under:

"The source of modern public trust law is found in a concept that received much attention in Roman and English law - the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized.

First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties - such as the seashore, highways, and running water - 'perpetual use was dedicated to the public', it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government."

25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority: [pic]"Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses."

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34. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership."

38. In the case of Intellectuals Forum vs. State of A.P., (2006) 3 SCC 549, this Court while balancing the conservation of natural resources vis-Ã - vis urban development observed as under:-

"67. The responsibility of the State to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "State responsibility" for pollution emanating within one's own territories (Corfu Channel case). This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is para 2, which states: "The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate." Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area."

39. In the case of Manohar Lal Sharma vs. Principal Secretary, (2014) 2 SCC 532, this Court while considering the power of the police officer observed as under:-

"24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide.

In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power [pic]and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animosity, the court may intervene to protect the personal and/or property rights of the citizens."

40. In the case of State of M.P. vs. Ram Singh, (2000) 5 SCC 88, this Court was considering an order by which the High Court quashed the investigation and consequent proceedings conducted and concluded by the police under Section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 on the ground that the investigation had not been conducted by an authorized officer in terms of Section 17 of the Act. The Court held that the Act was intended to make effective provision for the prevention of bribery and corruption rampant amongst the public servants. It is a social legislation intended to curb illegal activities of the public servant and is designed to be liberally construed so as to advance its object. The Court observed:-

"9. The menace of corruption was found to have enormously increased by the First and Second World War conditions. Corruption, at the initial stages, was considered confined to the bureaucracy which had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities for corruption continued as large amounts of government surplus stores were required to be disposed of by the public servants.

As a consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them a wide discretion with the result of luring them to the glittering shine of wealth and property.

In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act 49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of the 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, not as understood in common parlance but specifically defined in the Act.

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14. It may be noticed at this stage that a three-Judge Bench of this Court in H.N. Rishbud v. State of Delhi, AIR 1955 SC 196, had held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. Referring to the provisions of Sections 190, 193, 195 to 199 and 537 of the Code of Criminal Procedure (1898) in the context of an offence under the Prevention of Corruption Act, 1947, the Court held: "A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Cr.PC as the material on which cognizance is [pic]taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance.

Section 190 Cr.PC is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 and 195 to 199. These latter sections regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial.

To such a situation Section 537 Cr.PC which is in the following terms is attracted: 'Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.'

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in - 'Parbhu v. Emperor, AIR 1944 PC 73, and - 'Lumbhardar Zutshi v. R., AIR 1950 PC 26 "

It further held: "In our opinion, therefore, when such a breach is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5- A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined."[pic]

41. In the case of Directorate of Enforcement vs. Deepak Mahajan, (1994) 3 SCC 440, the question came up for consideration before this Court was as to whether a Magistrate before whom a person arrested under Section 35 of the Foreign Exchange Regulation Act, 1973 is produced, has jurisdiction to authorize detention of that person under Section 167(2) of the Code of Criminal Procedure. Answering that question the Court observed:-

"23. Keeping in view the cardinal principle of law that every law is designed to further the ends of justice but not to frustrate on the mere technicalities, we shall deal with all those challenges in the background of the principles of statutory interpretations and of the purpose and the spirit of the concerned Acts as gathered from their intendment. 24. The concerned relevant provisions of the Acts with which we are concerned, no doubt, pose some difficulty in resolving the question with regard to the jurisdiction of the Magistrate authorising detention and subsequent extension of the same when the provisions of those Acts are narrowly and literally interpreted. Though the function of the courts is only to expound the law and not to legislate, nonetheless the legislature cannot be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law. In such circumstances, it is the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute.

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134. There are a series of decisions of various High Courts, of course with some exception, taking the view that a Magistrate before whom a person arrested by the competent authority under the FERA or Customs Act is produced, can authorise detention in exercise of his powers under Section 167. Otherwise the mandatory direction under the provision of Section 35(2) of FERA or Section 104(2) of the Customs Act, to take every person arrested before the Magistrate without unnecessary delay when the arrestee was not released on bail under sub-section (3) of those special Acts, will become purposeless and meaningless and to say that the courts even in the event of refusal of bail have no choice but to set the person arrested at liberty by folding their hands as a helpless spectator in the face of what is termed as "legislative casus omissus" or legal flaw or lacuna, it will become utterly illogical and absurd."

42. In the case of Maqbool Hussain vs. State of Bombay, AIR 1953 SC 325, the question that fell for consideration before the Constitution Bench of this Court was whether by reason of the proceedings taken by the Sea Customs authorities the appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the court of the Chief Presidency Magistrate, Bombay. In the said case, gold had been brought by the appellant from Jeddah in contravention of the provisions of Foreign Exchange Regulation Act, 1947. He was also liable to be prosecuted under the Sea Customs Act. The prosecution was challenged as being violative of Article 20(2) of the Constitution.

The Constitution Bench answering the question held as under: "...There is no doubt that the act which constitutes an offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same, viz., importing the gold in contravention of the notification of the Government of India dated the 25th August, 1948. The appellant could be proceeded against under section 167(8) of the Sea Customs Act as also under section 23 of the Foreign Exchange Regulation Act in respect of the said act.

Proceedings were in fact taken under section 167(8) of the Sea Customs Act which resulted in the confiscation of the gold. Further proceedings were taken under section 23 of the Foreign Exchange Regulation Act by way of filing the complaint aforesaid in the Court of the Chief Presidency Magistrate, Bombay, and the plea which was taken by the accused in bar of the prosecution in the Court of the Chief Presidency Magistrate, was that he had already been prosecuted and punished for the same offence and by virtue of the provisions of article 20(2) of the Constitution he could not be prosecuted and punished again."

43. This Court further observed that: "The fundamental right which is guaranteed in article 20(2) enunciates the principle of "autrefois convict" or "double jeopardy". The roots of that principle are to be found in the well established rule of the common law of England "that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence." (Per Charles J. in Reg. v. Miles 24, Q.B.D. 423. To the same effect is the ancient maxim "Nemo bis debet punire pro uno delicto", that is to say that no one ought to be twice punished for one offence or as it is sometimes written "pro eadem causa", that is, for the same cause."

44. In the case of State of Bombay vs. S.L. Apte, AIR 1961 SC 578, the question that fell for consideration was whether in view of an earlier conviction and sentence under Section 409, IPC , the subsequent prosecution for an offence under Section 105 of the Insurance Act was barred by Section 26 of the General Clauses Act and Article 20(2) of the Constitution. Answering the question, the Constitution Bench of this Court observed:

"14. To operate as a bar the second prosecution and the consequential punishment thereunder must be for "the same offence". The crucial requirement, therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.

It would be seen from a comparison of s. 105 of the Insurance Act and s. 405 of Indian Penal Code (s. 409 of the Indian Penal Code being only an aggravated form of the same offence) that though some of the necessary ingredients are common they differ in the following :

(1) Whereas under s. 405 of the Indian Penal Code the accused must be "entrusted" with property or with "dominion over that property", under s. 105 of the Insurance Act the entrustment or dominion over property is unnecessary; it is sufficient if the manager, director, etc. "obtains possession" of the property.

(2) The offence of criminal breach of trust (s. 405 of the Indian Penal Code) is not committed unless the act of misappropriation or conversion or "the disposition in violation of the law or contract", is done with a dishonest intention, but s. 105 of the Insurance Act postulates no intention and punishes as an offence the mere withholding of the property - whatever be the intent with which the same is done, and the act of application of the property of an insurer to purposes other than those authorised by the Act is similarly without reference to any intent with which such application or misapplication is made. In these circumstances it does not seem possible to say that the offence of criminal breach of trust under the Indian Penal Code is the "same offence" for which the respondents were prosecuted on the complaint of the company charging them with an offence under s. 105 of the Insurance Act.

15. This aspect of the matter based on the two offences being distinct in their ingredients, content and scope was not presented to the learned Judges of the High Court, possibly because the decisions of this Court construing and explaining the scope of Art. 20(2) were rendered later. In Om Prakash Gupta v. State of U.P. [1957] S.C.R. 423 the accused, a clerk of a municipality had been convicted of an offence under s. 409 of the Indian Penal Code for having misappropriated sums of money received by him in his capacity as a servant of the local authority and the conviction had been affirmed on appeal, by the Sessions Judge and in revision by the High Court. The plea raised by the accused before this Court, in which the matter was brought by an appeal with special leave, was that s. 409 of the Indian Penal Code had been repealed by implication by the enactment of sub- ss. (1)(c) and (2) of s. 5 of the Prevention of Corruption Act because the latter dealt with an offence of substantially the same type.

This court repelled that contention. It analysed the ingredients of the two offences and after pointing out the difference in the crucial elements which constituted the offences under the two provisions, held that there was no repeal of s. 409 of the Indian Penal Code implied by the constitution of a new offence under the terms of the Prevention of Corruption Act. It was the application of this decision and the ratio underlying it in the context of Art. 20(2) of the Constitution that is of relevance to the present appeal.

The occasion for this arose in State of Madhya Pradesh v. Veereshwar Rao Agnihotry [1957] S.C.R. 868 The respondent was a tax-collector under a municipality and was prosecuted for offences