Madhya Pradesh High Court
Ashish Singh vs The State Of Madhya Pradesh on 28 February, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C. No. 37375/2018
Ashish Singh
Vs
State of M.P.
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Shri Ashish Trivedi, learned counsel for the petitioner.
Shri Amit Pandey, learned G.A. for the
respondent/State.
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M.Cr.C. No. 37378/2018
Sanad Kumar
Vs
State of M.P.
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Shri Ashish Trivedi, learned counsel for the petitioner.
Shri Amit Pandey, learned G.A. for the
respondent/State.
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ORDER
(28.02.2019) These two petitions arise out from the same Crime No. 141/18 registered at Police Station Chandera District Teekamgarh. Petitioner has been filed these miscellaneous criminal case under Section 482 of Cr.P.C. being aggrieved with criminal proceeding in the offence under Sections 109, 379 of IPC and Section 53 of M.P. Minor 2 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 Mineral Rules, 1996 vide Crime No. 141/2018 registered at Police State Chandera District Teekamgarh. Looking to this fact that the similar issues are involved in these petition, therefore, this Court shall decide the same through passing a common order.
2. Facts of the case in short are that petitioner-accused Sanad Kumar is registered owner of vehicle (Dumper) No. UP93 AT 9349. Petitioner-accused Ashish Singh is the owner of vehicle (Dumper) No. UP 93 AT 9239 and UP 93 AT 7654. At the time of incident, Sub Inspector- Pradeep Saraf was posted at police station, Chandera. On 05.08.2018 in the night, he was searching the vehicle. At the time of checking four dumpers No. UP 93 AT 9349, UP 93 AT 9239, UP 93 AT 7654 and UP 93 BT 6129 were stopped, in which sand was filled. Sub Inspector-Pradeep Saraf inquired about the sand from the driver, but driver was unable to give any explanation about the said sand. They had no permit for transporting the sand then Dumpers were seized with the sand. First Information was lodged under Section 379 of IPC and Section 53 of MP Minor Mineral Act. Petitioners-accused are also implicated in these cases.
3. Learned counsel for the petitioner submits before this Court the criminal proceeding under Section 379 of IPC is illegal and clear violation of the provision of the Minor Mineral Rules. In Minor Mineral Rules there is specific procedure for the enquiry/investigation by the designated officer and after findings the 3 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 person guilty the provisions of the filing complaint case is provided and because the special penal provisions of this Act are non- cognizable, so police directly could not the register the offence. It will be quite apparent from the combined reading of Sections 4,5 and 26 of the Cr.P.C. that if there is special law prescribing the special procedure for investigation of the cases falling under that law, the provisions of the code of Criminal Procedure are not applicable, it is only in the absence of any provision regulating investigation inquiry and trial of non-IPC offence i.e. offence under any other law, investigation, inquiry or trial, shall be as per the Code of Criminal Procedure, Under Minor Mineral Rules specific provisions have been made for the investigation, inquiry and recording of statement of witnesses. Therefore, the provision of the Code of Criminal Procedure would not govern the investigation etc. in respect of the offence under Minor Mineral Rules. The effect of Section 5 of the Cr.P.C.is to render the provision of the code inapplicable in respect of matter covered by special law. This Section clearly excludes the applicability of code in respect of investigation under any special or local law. Therefore, only those officers who have been empowered to investigate under the special law i.e. Minor Mineral Rules can do so and that to in accordance with the special law. Police does out the picture. Code of Criminal procedure also cannot be invoked as on account of specific 4 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 provisions in the special law, and general provisions contained in the code do not apply. Section 5 of Cr.P.C. provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Cr.P.C. but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiry into, trial or otherwise dealing with such offences. The effect of Section 5 of the Cr.P.C. is to render the provisions of the Cr.P.C. inapplicable in respect of all matters covered by such special law. The principle expressed in the maxim generalia specialibus non-derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. Where an act is an offence under a specific law and such an offence can also be punished under that specific law that law then general law would not apply and this is the principle laid down in Section 5 Penal Code. So it is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form and In support of his contention, he has relied the judgment of Apex Court in the case of State of M.P. Vs. Sanjay in Cr.A. No. 499/2011 and he has also relied the Division Bench of this Court in the case of Ramkumar Sahu Vs. State of M.P. and others in W.P. No. 188818/2017. So, petitioner prays for quashing the 5 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 criminal proceeding for under Sections 109, 379 of IPC and Section 53 of M.P. Minor Mineral Rules, 1996 vide Crime No. 141/2018 registered in Police Sation Chandera.
4. Learned counsel for the State submits that Minor Mineral Rules being regulatory, Section 379 of IPC is an offence. Government is the owner of Mineral, Therefore, no person is allowed to transport the sand without permission of the Government, if any person takes the sand without permission, then the offence under Section 379 of IPC would be made out. Minor Mineral Rules provides niether penalty nor any sentence, so he prays for dismissal of petition.
5. Heard both the parties and perused the record.
6. It is alleged by the prosecution that sand was being transported without valid permit by the vehicle of petitioners- accused. It would be appropriate to read first the Rules 53 of Minor Mineral Rules:-
Rule 53 (before amendment) Rule 53 (after amendment w.e.f.
18.05.2017)
53. Penalty for un-authorised [53. Penalty for un-authorised extraction and transportation. - extraction and transportation. -
Whenever any person is found Whenever any person is found extracting or transporting extracting or transporting minerals or on whose behalf minerals or on whose behalf such such extraction or transportation extraction or transportation is is being made otherwise than in being made otherwise then in accordance with these rules, shall accordance with these rues, shall be presumed to be party to the be presumed to be a party to the illegal extraction of minerals and illegal mining/transportation, 6 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 every such person shall be then the Collector or any officer punishable with simple authorized by him not below the imprisonment for a maximum rank of Deputy Collector shall term of three months which may after giving an opportunity of extend to two years or with fine being heard determines that such which may extend to fifty person has extracted/transported thousand rupees or with both. the minerals in contravention of the provisions of these rules, then he shall impose the penalty in the following manner, namely :-
(a) on first time contravention, a penalty of minimum 30 times of the royalty of illegally extracted/ transported minerals, shall be imposed but it shall not be less than ten thousand rupees.
(b) on second time contravention a penalty of minimum 40 times of the royalty of illegally extracted/transported minerals, shall be imposed but it shall not be less than twenty thousand rupees.
(c) on third time contravention, a penalty of minimum 50 times of the royalty of illegally extracted/transported minerals shall be imposed but it shall not be less than thirty thousand rupees.
(d) on third time or subsequent contravention, a penalty of minimum 70 times of the royalty of illegally extracted/transported minerals, shall be imposed but it shall not be less than fifty thousand rupees.
(2) Forfeiture of minerals in cases of illegal extraction and transportation. - In respect of the forfeiture/discharge of the mineral extracted/transported illegally the Collector or any 7 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 other officer authorized by him not below the rank of the Deputy Collector shall take an appropriate decision. Provided that seized minerals shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture', the seized mineral shall be disposed of through a transparent auction/ tender procedure as prescribed by the State Government, (3) Forfeiture/Discharge of the seized tools, machines and vehicles etc. and disposal of forfeited material through Auction/Tender. -
(a) In case of illegal extraction, the Collector or any other officer not below the rank of a Deputy Collator, authorized by him shall take an appropriate decision in respect of forfeiture/discharge of tools, machines and vehicles used. Provided that the tools, machines, vehicles and other material so seized shall not be discharged till the penalty imposed as above is not paid. In case of forfeiture, the seized materials shall be disposed of through a transparent auction/tender procedure as prescribed by the State Government.
(b) In respect of Forfeiture/Discharge of vehicle carrying mineral extracted/ transported without any transit pass the Collector or any other officer not below the rank of Deputy Collector authorised by him shall take an appropriate decision. Provided that tools, 8 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 machines, vehicles and other materials shall not be discharged till the penalty imposed as above is not paid.
In case of forfeiture the seized material shall be disposed off through a transparent auction/tender procedure as prescribed by the State Government:
Provided that the vehicle carrying minerals in excess as mentioned in transit pass, shall not be forfeited on doing so for first three times but the vehicle shall only be discharged on payment of penalty as imposed above. On repetition for the fourth time vehicle shall be liable to be forfeited.
(4) Action and compounding cases of un-authorized extraction/transportation. - Whenever any person is found involved extracting/transporting of the minerals in contravention of provisions of these rules, the Collector/ Additional Collector/ Deputy Collector /Chief Executive Officer of Zilla Panchayat/Chief Executive Officer of Janpad Panchayat/Deputy Director (Mineral Administration) /Officer in charge (Mining section)/ Assistant Mining Officer/Mining Inspector/officer in charge (Flying Squad)/Sub Divisional Officer (Revenue)/Tehsildar/NaibTehsild ar and any other officer not below the rank of Class-III executive authorized by the Collector from time to time shall 9 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 proceed to act in the following manner:-
(a) to initiate case of unauthorized extraction/transportation by preparing Panchnama on spot;
(b) to collect necessary evidences (including video-graphy) relevant to un-authorized extraction/ transportation;
(c) to seize all tools, devices, vehicles and other materials used in excavation of miner mineral in such contravention and to handover all material so seized to the persons or lessee or any other person from whose possession, such material was seized on executing an undertaking up to the satisfaction of the officer seizing such material, to this effect that he shall forthwith produce such material as and when may be required to do so :
Provided that where the report is submitted under sub-rule (3) above to the Collector or any other officer not below the rank of a Deputy Collector authorized by him, the seized property shall only be discharged by the order of the Collector or the officer authorized by him.
(d) officer as mentioned above shall inform the Collector or any other officer not below the rank of Deputy Collector, authorized by him about the incident within 48 hours of coming in to notice of the same.
(e) officers as mentioned above shall make a request in writing to the concerning police station/ 10 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 seeking police assistance, if necessary and police officer shall provide such assistance as may be necessary to prevent unlawful excavation/transportation of tine mineral (5) Rights and powers of the investigating officer. -
During the investigation of the cases of illegal extraction/ transportation of the minerals, in contravention of these rules, the investigation officer shall have the following rights and powers, namely :-
(a) to call for person concern to record statements;
(b) to seize record and other material related to the case;
(c) to enter into place concern and to inspect the same;
(d) all powers as are vested in an in-charge of a police station while investigation any cognizable offence under Code of Criminal Procedure; and
(e) all other powers as are vested under Code of Civil Procedure to compel any person to appear or to be examined on oath or to produce any document.
(6) Submitting application by illegal extractor/transporter to compound and its disposal. -
Before initiating or during the operation of the case, if the extractor/transporter is agree to compound the case, he shall have to submit an application of his intention to do so before the Collector/Additional Collector/ Deputy Collector/Sub Divisional 11 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 Officer (Revenue)/Deputy Director (Mineral Administration)/Mining Officer/Officer-in-charge (Mining section)/Assistant Mining Officer/Officer in charge (Flying Squad) and he shall proceed to compound in the case.
Provided that to avail the benefit of compounding the violator shall have to deposit the amount as determined here under as fine, namely :-
(a) For the first time violation 25 time of royalty of unlawfully excavated/transported minerals or rupees 10,000/- (Ten Thousand) whichever is more.
(b) For the Second time violation 35 time of royalty of unlawfully excavated/transported minerals or rupees 20,000/- (Twenty thousand) whichever is more.
(c) For the third time violation 45 time of royalty of unlawfully excavated/transported minerals or rupees 30,000/- (Thirty Thousand) whichever is more, and
(d) for the fourth time or subsequent violation minimum 65 time of royalty of unlawfully extracted/transported. Provided that it should not be less than rupees 50,000/- (Fifty thousand).
On being compounded, the seized mineral, tools machinery/ and other materials shall be discharged.
(7) Action against contravention of conditions of extract trade quarry/quarry lease/permit or the provisions 12 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 of this rule. -
If during the enquiry of any illegal extraction/transportation a fact comes into the knowledge that any lease holder/contractor/permit holder, in order to evade the royalty from any sanctioned quarry lease/trade quarry/permit, area is involved in dispatching/selling of minerals in excess quantity by showing less quantity of minerals in transit pass/defective transit permit/blank transit permit, then the Collector of the concerned district may suspend the quarrying operation in such quarry lease/trade quarry permit by issuing show cause notice for violating the conditions of the agreement and after providing an opportunity of being heard may cancel the such lease/ trade quarry/permit. The additional royalty may `be recovered after making the assessment of the quantity dispatched or sold in order to evade the royalty :
Provided that during the inspection if it is found that illegal minerals transporter by securing the transit pass from the lease holder in order to evade the royalty has made overwriting or tempered the pass then the officer of the minerals department/ Mineral Inspector may registered a case against the person concerned.
7. Section 378 IPC which deals with the definition of theft is as follows:-13 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018
"378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which affects the severance may be a theft. Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
8. Before proceeding further, it would be appropriate to mention Section 57 of the Land Revenue Code which read as under:-
"57 State ownership in all lands- (1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government:
Provided that nothing in this section shall, save as other wise provided in this Code, be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property."
9. Thus from a bare perusal of both these provisions of Section 378 of IPC and rule 53 of MP minor mineral Rules, 1996 as amended, it is clear that both these offences are quite distinct. While Rule 53 deals with unauthorized extraction and transportation of minor minerals and provides for penalty imposed in a graded manner 14 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 as well as the seizure and confiscation of tools, machines and vehicles used, which powers have been conferred on the officers of the State instead of judicial Courts established and governed by Cr.P.C. whereas Section 378 deals with theft of sand without the consent of the owner that is the State.
10. A similar question arose before the Madras High Court in the case of Sengol, Charlesand K. Kannan etc. Vs. State Rep. By Inspector of police 2012 CriLJ 1705, where the accused were prosecuted for the offences punishable under Section 21 Mines and Minerals (Development and Regulation) Act, 1957 and also under Section 379 of IPC, that 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 ofence both under the Indian Penal Code and under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957? It was held by the Division Bench of the madras High Court in para 35 that:-
"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 ounishable under Section 21 of the Mines and Minerals Act, whereas dishonestly taking and 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(1)(A) of the Mines and minerals Act"15 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018
11. A similar question arose before the Hon'ble Supreme Court also in the case of State (NCT of Delhi) Vs. Sanjay, (2014) 9 SCC 772, where proceedings for illegal extraction of mining for an offence under Sections 379 and 114 of the Indian Penal Code was lodged against the offenders. The argument raised was that in view of the provisions contained in the MMDR Act, the accused can be prosecuted only under the Act and not under the Indian Penal Code. It was held by the Hon'ble Apex Court that Section 22 of the Act is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand and river bed. The Court held that.
"Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed. 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 river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned herein-above. It will not only change the river hydrology but also will deplete the ground water levels."
12. Then further, the Apex Court in paras 69 and 70 of the said judgment, categorically stated that:-
"69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and 16 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 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 Indian Penal Code. "70 From a close reading of the provisions of MMDR Act and the offence defined under Section 378, IPC, it is manifest that the ingredients constitution 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, gravels and other minerals from the river, which is the property of the State, out of State's possession without the consent, constitute an offence of theft."
13. Recently, the MP High Court in WP-18818/2017 & WP- 19320-2017 Ayush Namdeo Vs. The State of M.P. decided on 15 February, 2018 where the Court was dealing with the challenge to the Notification issued by the State Government in exercise of powers conferred by Sub-Section (1) of Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 substitution Rules 53 of Madhya Pradesh Minor Mineral Rules, 1996 (for short "the Rules") published on 18.05.2017 in Madhya Pradesh Gazette, in para 22 of the judgment has also held that "The provisions of the Rule 53 are to ensure that there is no un-authorised extraction and transportation of the minerals. Such confiscation is not a punishment, which is imposible in exercise of the powers conferred under Section 21 of the Act. The confiscation under Rule 53 is independent proceeding but does not affect the legality and validity of the 17 M.Cr.C. No. 37375/2018 M.Cr.C. No. 37378/2018 confiscation contemplated under Section 21 of the Act, which provides for imprisonment as well."
14. Thus, from the aforesaid discussion it is apparently clear that the ingredients of offence under Section 378 of IPC and under Rule 53 of MP Minor Mineral Rules, 1996 are different and even after the amendment in Rule 53, the Courts can still take cognizance u/s 379 IPC for theft of sand from the property owned by the Government.
15. The cited cases relied above by the learned counsel for the petitioner are not applicable in the instant case.
16. So the criminal proceeding under Section 379 of IPC is maintainable in the concerned Court, therefore, this is not appropriate case, in which to exercise the inherent power of this Court under Section 482 of the Cr.P.C.
17. Hence this petitions filed by the petitioners are hereby dismissed.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.03.06 22:29:27 -08'00'