CRIMINAL REVISIONAL JURISDICTION v. The State of West Bengal

L.R.O./Baraboni/92 dated 08.01.1992 directing the Firm to stop the stone mining over Plot No. 1070 within Mouza- Khoirbad and on the next day the B.L. & L.R.O., Baraboni with the help of the police discontinued the working of the stone quarry in respect of the said Plot No. stop work notice was served in respect of aforesaid Plot No. 1614, Mouza- Khoirbad. n) After issuance of the “stop work order” made, the said Firm challenged the same before this Hon’ble Court and several writ proceedings are pending before the Hon’ble Court relating to 7 Mining Operation in respect of the said Plot No. 1070. However in respect of Plot No. 1614, there is no bar and/or closure order and/or stop work order against the said Firm till date. o) The surviving partners of M/s. J. Das and Brothers, by execution of a Power of Attorney, authorized the present petitioner to conduct and supervise the mining operation of the said Firm in respect of Plot No. 1614, Mouza- Khoirbad and the other non-functioning members. As such, the petitioner had been conducting and supervising the mining operation in respect of the said plot for and on behalf of the said Firm as an authorized agent and on the basis of the mining right accrued in favour of M/s. J. Das and Brothers. The petitioner is not the quarry owner and/or the Lessee in respect of the said plot. p) The petitioner had been regularly paying royalty, cess and other lawful mining dues all along for the mining operation in respect of Plot No. 1614, Mouza- Khoirbad, District- Burdwan. q) Suddenly the petitioner came to know that the Block Land and Land Reforms Officer, Baraboni, had lodged complaint before the Officer-in-Charge, Baraboni Police Station on 12.10.2012 against the petitioner with explicit allegations of conducting mining operation in respect of Plot No. 1614 without approval of Government. On the basis of the said complaint, the Officer-in- Charge of Baraboni Police Station recorded First Information Report No.130/12 dated 13.10.2012 against the petitioner under 8 Rule 33(1) of the West Bengal Minor Minerals Rules 2002. Subsequently Proceeding was initiated being G.R. Case No. 2197 of 2012 in the Court of the Learned Additional Chief Judicial Magistrate- Asansol, District- Burdwan under the said Rule and Charge Sheet No. 103/12 dated 29.10.2012 was also submitted under the said Rule by the Investigating Officer and the Learned Additional Chief Judicial Magistrate was pleased cognizance. r) The Petitioner stated that the petitioner not being personally the quarry owner and/or lessee in respect of the plot in question and the entire mining operation having been done for and on behalf of “M/s. J. Das and Brothers”, any valid mining right accrued in favour of said firm entitled the petitioner to carry on mining operation for and on behalf of the said firm in respect of the plot in question and for such operation by the petitioner, no additional or separate lease/licence in the petitioner’s name is required and as such the First Information Report and the charge-sheet are misconceived, misleading, contrary to the actual state of affairs, violative of Mines and Minerals (Development & Regulation) Act, 1957 and are liable to be quashed. s) It was further contended that it was proved from the Explosive Licences as well as from the demand notice that the district mining authority had duly issued explosive licence and assessed Royalty for stones in respect of Plot No. 1614, Mouza- Khoirbad, District- 9 Burdwan and as such any further extraction in respect of the said plot by the petitioner and on behalf of the said Firm cannot be treated to have been without valid approval from the appropriate authority and both the First Information Report, the charge-sheet and the proceeding initiated there under are liable to be quashed. t) The petitioner contended that Rule 35 of the West Bengal Minor Minerals Rules, 2002 has no manner of application in respect of stone quarry which the petitioner continued for and on behalf of M/s. J. Das and Brothers under the aforesaid lease already recognized by the District Mining authority in the aforesaid licences and notices made therein, and no allegation of extraction without lease/licence can be raised against the petitioner and the First Information Report, the charge-sheet and the proceeding initiated there under are liable to be quashed. u) The petitioner further contended that under Entry 54, List-I, Seventh Schedule of the Constitution of India read with Section 2 of the Mines and Minerals (Development and Regulation) Act, 1957, Central Government being the absolute legislative authority in respect of all minor minerals, State Government, as a delegated Rule making authority under the said Act of 1957 has no legislative competence to prohibit the mining operation in an arbitrary manner and in the present case, the First Information Report having been lodged by the District Mining authority by complete misrepresentation of law and facts, the same 10 practically a mala-fide attempt to stop/close the lawful mining operation in respect of the plot in question, beyond legislative competence of the State Legislature and both the First Information Report and the charge-sheet are liable to be quashed.

3. The petitioner further contends that royalty on extraction of stone having been accepted by the State Government for the relevant period, the petitioner had accrued substantive mining right for extraction of stone under the Mines and Minerals (Development and Regulation) Act, 1957 as well as under the West Bengal Minor Minerals Rules, 2002 and after acceptance of such royalty, the district mining authority is precluded in law from treating petitioner’s extraction from the plot in question as unauthorized and such the First Information Report, the charge-sheet.

4. The petitioner further contends that the Learned Additional Chief Judicial Magistrate acted illegally and with material irregularity in the excise of jurisdiction in not holding that both the First Information Report and the charge-sheet are misleading, mala-fide, based on misrepresentation of law and fact and suffers from total non-application of mind and do not disclose any offence punishable under Rule 33(1) of the West Bengal Minor Minerals Rules 2002.

5. The Learned Advocate for the petitioner submitted that :- i. The petitioner not being personally quarry owner and/or lessee in respect of the plot in question and the entire mining operation having been done for and on behalf of “M/s. J. Das and Brothers”, any valid mining right accrued in favour of said firm entitled the 11 petitioner to carry on mining operation for and on behalf of the said firm in respect of the plot in question and for such operation by the petitioner, no additional or separate lease/licence in the petitioner’s name is required and as such the First Information Report and the Charge-sheet are misconceived, misleading, contrary to the actual state of affairs, violative of Mines and Minerals (Development and Regulation) Act, 1957 and are liable to be quashed. ii. It is proved from the Explosive Licences as well as from the Demand Notice that he District Mining Authority had duly issued explosive licence and made assessment of royalty for stone in respect of the Plot No. 1614, Mouza- Khoirbad, District- Burdwan and as such any further extraction in respect of the said plot by the petitioner for and on behalf of the said Firm cannot be treated to have been without valid approval from the appropriate authority and both the First Information Report, the charge-sheet and the proceeding initiated thereunder are liable to be quashed. iii. Rule 35 of the West Bengal Minor Minerals Rules, 2002 has no manner of application in respect of stone quarry and the stone quarry operation done by the petitioner having been carried on for and on behalf of “M/s. J. Das and Brothers” under the aforesaid lease already recognized by the District Mining Authority in the aforesaid licences and notices no allegation of extraction without lease/licence can be raised against the petitioner and the First 12 Information Report, the charge-sheet and the proceeding initiated thereunder are liable to be quashed. iv. Under Entry 54, List – I, seventh schedule of the Constitution of India, read with Section 2 of the Mines and Minerals (Development and Regulation) Act 1957, Central Government being the absolute legislative authority in respect of all minor minerals, State Government, as a delegated rule making authority under the said Act of 1957 has no legislative competence to prohibit the mining operation in an arbitrary manner and in the present case, the First Information Report having been lodged by the District Mining Authority by complete misrepresentation of law and facts, the same is practically a mala-fide attempt is stop/close the lawful mining operation in respect of the plot in question, beyond legislative competence of the State Legislature and both the First Information Report and the Charge-Sheet are liable to be quashed. v. Royalty on extraction of stone having been accepted by the State Government for the relevant period, the petitioner had accrued substantive mining right for extraction of stone under the Mines and Minerals (Development and Regulation) Act, 1957 as well as under the West Bengal Minor Mineral Rules, 2002 and after acceptance of such royalty, the district mining authority is stopped in law from treating petitioner’s extraction from the plot in question as unauthorized and as such the First Information 13 Report, the Charge-Sheet and the proceeding initiated thereunder are liable to be quashed. vi. The Learned Additional Chief Judicial Magistrate acted illegally and with material irregularity in the exercise of jurisdiction in not holding that both the First Information Report and the Charge- Sheet are misleading, mala-fide, based on misrepresentation of law and fact and suffers from total non-application of mind and do not disclose any offence punishable under Rule 33 (1) of the West Bengal Minor Minerals Rule, 2002 and as such the First Information Report, the Charge-Sheet and the Proceeding initiated thereunder are liable to be quashed. vii. The First Information Report and the Charge-Sheet were drawn as misrepresentation of facts and law with a clear mala-fide intention to harass the petitioner and thereby to stop the mining operation by the petitioner and as such both the same are violative of Section 18 of the Mines and Minerals (Development and Regulations) Act, 1957 and do not disclose any offence against the petitioner and the First Information Report, the Charge-Sheet and the Proceeding initiated thereunder are liable to be quashed.

6. The following documents of un-impeachable character are most necessary: i. 2nd January, 1977 letter of appointment as contractor and sole selling agent issued by Banerjee Brothers issued in favour of M/s. J. Das and Brothers. 14 ii. The explosive licence issued in favour of M/s. J. Das and Brothers by the Additional District Magistrate, Asansol. iii. The order dated 9th March, 1988 passed by the Hon’ble High Court in CO 2097 of 1988. The order clearly reflects that M/s. J. Das and Brothers was permitted to pay royalty for mining operation to the Additional District Magistrate, Asansol and directed renewal of licence on payment of royalty. iv. Pursuant to the aforesaid order, M/s. J. Das and Brothers deposited the royalty till date of the impugned complaint royalties were being regularly paid and accepted by the Government. v. The letters for payment of royalties were submitted by the petitioner. vi. Vide an order dated 27th August, 1990 passed by the Hon’ble High Court in CO No. 10359 of 1990 once again M/s. J. Das and Brothers was permitted to be issued licence by the Hon’ble High Court. a. Therefore, the petitioner as a constituted attorney of M/s. J. Das and Brothers as permitted by virtue of the orders passed by this Hon’ble Court as well as by acceptance of royalty by the concerned authority to conduct mining operation and there was no violation of statutory provision. 15

7. Even otherwise the West Bengal Minor Minerals Rules, 2002 which was enacted under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957 shall not apply or affect any mining operation undertaken when such mining is under taken in accordance with any mining lease granted before the commencement of the Act of 1957 and which is in force during such commencement. Admittedly the Mines and Minerals (Development and Regulation) Act, 1957 came into force on 28.12.1957 and by virtue of proviso to Section 4 of the Act, the Act and the Rules framed thereunder including the West Bengal Minor Minerals Rules, 2002 shall not apply to the mining lease granted by Maharaja of Burdwan in 1942 and the mining operation undertaken pursuant thereto much prior to the commencement of the Act and rules thereto.

8. In the instant case the prosecution alleges the violation of Rule 33 of the West Bengal Minor Minerals Rules, 2002. According to the said Rule, extraction of any minor mineral in contravention of lease and contravention of Rule 35 of the said Rule is punishable with term of imprisonment of 2 years or with fine which may extend upto rupees twenty five thousand. It is submitted that a notification dated 8th November, 2002 by virtue of which West Bengal Minor Minerals Rules, 2002 (hereinafter said rules) was brought into effect makes it clear that the said rules were enacted by the Government under Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. Therefore, any provision of the said rules must draw its power from the segments of rule making powers provide under Section 15 of the said Mines and Minerals (Development and 16 Regulation) Act, 1957. However, under Section 15(1)A of the Act of 1957 the State Government is not authorized to frame any rule having penal consequence/punishment clause. It is submitted that it is clear from the language of Section 15 that the Rule making power of the State Government is only for application for mining lease and licences and general maintenance of safety and does not empower the State Government to frame rules creating any positive right or imposing any penal liability.

9. Even Section 15 (1) A of the aforesaid Act of which is a generalized clause, any other matter which may be prescribed cannot be read in isolation and overreach the substantive provision. In this regard the petitioner relies upon the judgment of Kunj Behari Lal Butail and Ors. Vs. State of H.P. and Ors.1, where it has been clearly held that a general delegation and generalized language of rule making power couched under generalized language (similar to 15 1A of the Act of 1957) cannot be exercised so as to into existence substantive rights, obligations, disabilities not contemplated in the Act itself. The aforesaid submission is corroborated further by reading of Section 21(2) of 1957 Act (as it existed in the year 2012) makes it abundantly clear that violation of any rule under the Act is punishable by imprisonment of 1 year and fine extendable to Rs.5,000/- or with both. The relevant paragraph of Kunj Behari Lal Butail (Supra) is given below:- “13. It is very common for the legislature to provide for a general rule- making power to carry out the purpose of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall 1 (2000) 3 SCC 40 17 within the scope of such general power confirmed. If the rule-making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act. (See: Sant Saran Lal v. Parsuram Sahu [AIR 1966 SC 1852 : (1966) 1 SCR 335] , AIR para 19.) From the provisions of the Act we cannot spell out any legislative intent delegating expressly, or by necessary implication, the power to enact any prohibition on transfer of land. We are also in agreement with the submission of Shri Anil Divan that by placing complete prohibition on transfer of land subservient to tea estates no purpose sought to be achieved by the Act is advanced and so also such prohibition cannot be sustained. Land forming part of a tea estate including land subservient to a tea plantation have been placed beyond the ken of the Act. Such land is not to be taken in account either for calculating the area of surplus land or for calculating the area of land which a person may retain as falling within the ceiling limit. We fail to understand how a restriction on transfer of such land is going to carry out any purpose of the Act. We are fortified in taking such view by the Constitution Bench decision of this Court in Bhim Singhji v. Union of India [(1981) 1 SCC 166] whereby sub-section (1) of Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976 was struck down as invalid insofar as it imposed a restriction on transfer of any urban or urbanisable land with a building or a portion only of such building which was within the ceiling area. The provision impugned therein imposed a restriction on transactions by way of sale, mortgage, gift or lease of vacant land or buildings for a period exceeding ten years, or otherwise for a period of ten years from the date of the commencement of the Act even though such vacant land, with or without a building thereon, fell within the ceiling limits. The Constitution Bench held (by majority) that such property will be transferable without the constraints mentioned in sub-section (1) of Section 27 of the said Act. Their Lordships opined that the right to carry on a business guaranteed under Article 19(1)(g) of the Constitution carried with it the right not to carry on business. It logically followed, as a necessary corollary, that the right to acquire, hold and dispose of property guaranteed to citizens under Article 19(1)(f) carried with it the right not to hold any property. It is difficult to appreciate how a citizen could be compelled to own property against his will though he wanted to alienate it and the land being within the ceiling limits was outside the purview of Section 3 of the Act and that being so the person owning the land was not governed by any of the provisions of the Act. Reverting back to the case at hand, the learned counsel for the State of Himachal Pradesh has not been able to satisfy us as to how such a prohibition as is imposed by the impugned amendment in the Rules helps in achieving the object of the Act.

14. We are also of the opinion that a delegated power to legislate by making rules “for carrying out the purposes of the Act” is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.” 18

10. Therefore, the substantive provision laying down punishment is already incorporated under Section 21(2) of the Act and the said substantive provision of the statute could not have been overreached by framing of Rule 33 of 2002 Rules subsequently, where not only a disability and liability has been created but a penal consequence (two years imprisonment) contrary to the substantive provision was also created. Hence, Rule 33(1) of the said rules is ultra vires of Section 15 and Section 21 of the Act of 1957.

11. In this regard the petitioner relied upon a judgment rendered in the case of NCK Tourist Home Private Limited Vs. Kozhikode Nagar Sabha2, in the aforesaid case it was decided that when the substantive provision provided for a particular period the said period cannot be altered, lessened or enhanced by framing a rule. Rule is a piece of delegated legislation and cannot override the substantive statute. The relevant paragraphs are provided for below:- “3. As it is clear from the above, the notice for revising the property tax was given before the expiry of five years of the period. The appellant herein challenged this notice, taking shelter under Section 238 of the Kerala Municipalities Act, 1994 (hereinafter referred to as “the Act”), with the contention that it was not permissible for the respondent authorities to make any revision in the property tax before the expiry of five years. This contention is not accepted, notwithstanding the existence of a categorical stipulation to this effect in Section 238 of the Act inasmuch as the High Court has fallen back to Rule 2-A of the Taxation Rules which were made under the earlier enactments viz. the Kerala Municipalities Act, 1960 and the Municipal Corporations Act, 1961. For proper understanding of the matter, we reproduce hereinbelow Section 238 of the Municipalities Act, 1994 as well as Rule 2-A of the Taxation Rules: 2 (2016) 13 SCC 265 19 “238. Revision and time of payment of property tax.— Subject to the rules made by Government the property tax shall be assessed and the half-yearly tax determined once in every five years and the half-yearly tax shall be payable by the owner of the assessed property within thirty days of the commencement of the each half year: Provided that except in the case of substantial improvements or addition to an existing building since the last assessment, the annual value of any building shall not exceed the limit, if any, fixed by the Government from time to time: Provided that revision of tax after date of first April, 1998, shall come into force on the date fixed by the Government.” * * * “2-A. (i) If at any time it appears to the Standing Committee that any person or property has been inadequately assessed or inadvertently or improperly omitted from the assessment books relating to any tax, arithmetical error in the said books, it may direct the Commissioner to amend the said books in such manner as it deems just or necessary: Provided that such direction shall be given where it involved an increase in the assessment, unless the person concerned shall have been afforded a reasonable opportunity to show cause to the Standing Committee why the assessment books should not be amended as proposed. (ii) Such amendment shall be deemed to have taken effect on the earliest date, either in the current half year or in the two half years immediately preceding it, on which the circumstances justifying the agreement existed.”

4. As per the High Court, since the provisions of Section 238 are “subject to the Rules made by the Government”, and as Rule 2-A prescribes the period of two half years for revising the property tax, the show-cause notice issued was valid in law. It is difficult to countenance the aforesaid rationale given by the High Court. No doubt, Section 238 is subject to the Rules that can be made by the Government. However, those Rules contemplate the procedure that is to be followed while making assessment. In any case, when there is a substantive provision made in Section 238 to the effect that the tax shall be assessed once in every five years, Rule 2-A which lays down lesser period is clearly contrary to the aforesaid substantive provisions of Section 238 of the enactment and, therefore, it will have to be treated as ultra vires the provisions of Section 238 as 20 mentioned above. Rule 2-A was framed under the old Kerala Municipalities Act. After coming into force of the new Act i.e. the Kerala Municipalities Act, 1994 with the provisions of the kind mentioned above i.e. Section 238 of the Act, to the extent Rule 2-A is contrary to the aforesaid provisions, it has to be held as contrary to the substantive provisions and not effective at all.”

12. It is more pertinent to note that the West Bengal Minor Minerals Rules, 2002 has been repealed in the year 2016. It is also pertinent to note that under Section 28(3) of the Act of 1957 every Rule or notification under the said Act including the 2002 Rules must be laid as soon as after the same is made before the legislature of the State. Therefore it is only when a rule framed under the act of 1957 is placed before the State Legislature after being framed it would have sanction of law but before its repeal in the year 2016. During the whole period since 2002 when the West Bengal Minor Minerals Rules 2002 was brought into force, the Rules of 2002 was never placed before the Legislative Assembly and therefore in the year 2012 when the impugned prosecution was initiated invoking the said rule, it did not have sanction of law. Therefore the Rule apart from being ultra vires of the Act of 1957 is also otherwise inapplicable. Therefore rule 33(1) and its applicability is liable to be totally discarded in the eyes of law.

13. With regard to applicability of Section 379 of the Indian Penal Code it is submitted that charge against the Petitioner is not theft but according to the complainant is mining without approval from the competent authority which has already exhibited hereinabove by the Petitioner as palpably incorrect allegation. It is trite law that when a special statute provides for a penal consequence for a particular act or omission the general penal statute must 21 yield to the special statute. It is also trite that a latter enactment brought as a special law shall prevail over earlier general enactment. In this regard reliance was placed upon a judgment rendered in the case of Sharad Babu Digumarti Vs. Government (NCT of Delhi)3, the Hon’ble Supreme Court clearly held that Section 92 of the Indian Penal Code which provides for punishment for sale obscenity in books pamphlets papers, drawings etc shall not be applicable once Section 67 of Information and Technology Act came into force and made obscenity in electronic records punishable. “37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. 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, it covers the offence under Section 292 IPC. 38. In Jeewan Kumar Raut v. CBI [Jeewan Kumar Raut v. CBI, (2009) 7 SCC 526 : (2009) 3 SCC (Cri) 475] , in the context of the Transplantation of Human Organs Act, 1994 (TOHO) treating it as a special law, the Court held: (SCC p. 537, paras 22-23) “22. TOHO being a special statute, Section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time 3 (2017) 2 SCC 18 22 being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences.

23. TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code.” And again: (SCC p. 538, para 27) “27. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO.”

14. Reliance is also placed on the case of Jeewan Kumar Raut & Anr vs. Central Bureau Of Investigation4, where the Hon’ble Supreme Court considered the provisions of Transplantation of Human Organs Act 1994 (TOHO) vis a vis Section 4(2) of the Code of Criminal Procedure and held that TOHO. Being a special Act and the matter relating to dealing with offences there under having been regulated by the provision of the said Act. There cannot be any manner of doubt that the relatable penal provisions of the general code. The same principle applies to the provisions of the Act of 1957 vis a vis the general provision of Section 379 of the Indian Penal Code. Even otherwise unauthorised mining does not make out the ingredients of the Section 379 of Indian Penal Code. “22. TOHO being a special statute, Section 4 of the Code, which ordinarily would be applicable for investigation into a cognizable offence or the other provisions, may not be applicable. Section 4 provides for investigation, 4 2009 (7) SCC 526 23 inquiry, trial, etc. according to the provisions of the Code. Sub-section (2) of Section 4, however, specifically provides that offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, tried or otherwise dealing with such offences. 23. TOHO being a special Act and the matter relating to dealing with offences thereunder having been regulated by reason of the provisions thereof, there cannot be any manner of doubt whatsoever that the same shall prevail over the provisions of the Code. The investigation in terms of Section 13(3)(iv) of TOHO, thus, must be conducted by an authorised officer. Nobody else could do it. For the aforementioned reasons, the officer in charge of Gurgaon Police Station had no other option but to hand over the investigation to the appropriate authority. 27. The provisions of the Code, thus, for all intent and purport, would apply only to an extent till conflict arises between the provisions of the Code and TOHO and as soon as the area of conflict reaches, TOHO shall prevail over the Code. Ordinarily, thus, although in terms of the Code, the respondent upon completion of investigation and upon obtaining remand of the accused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO.”

15. The aforesaid reports are also relied upon to submit before this Hon’ble Court that when the special statute being Mines and Minerals (Development and Regulation) Act 1957 debars cognizance by any court except for a complaint directly laid before the court by an authorized person specially authorized in this regard by the Central Government or the State Government, then cognizance could not have been taken on basis of police report. Section 22 of the Act of 1957 shall have overriding effect. Therefore the order taking cognizance and the charge sheet is bad in law.

16. It is interesting to note that neither the Act of 1957 nor Rule of 2002 notify whether the offences are cognizable and non cognizable in nature. In such a 24 circumstances, the Schedule II of the Code of Criminal Procedure shall be applicable which prescribes classification in respect of offences against “other laws” except for Indian Penal Code, and under such schedule in respect of such offences punishable with imprisonment of less than three years, such offence is deemed to be non cognizable and bailable. In such circumstance both Section 21(2) of the Act of 1957 or Rule 33 of the said Rules are non cognizable in nature and since it is palpable that Section 379 of the Indian Penal Code is not applicable being overridden and otherwise the police authorities could not have assumed jurisdiction at all and charge sheet could not have been submitted. Therefore the First Information Report and charge sheet is bad are law and are liable to be quashed.

17. The petitioner relied upon judgment delivered in the case of Rukmini Narvekar vs. Vijaya Satardekar & Ors.5, which makes it abundantly clear that while exercising the powers under Section 482 of Code of Criminal Procedure the Hon’ble High Court is entitled to go through all documents relied upon by the defence.

18. In the facts and circumstances as stated above the petitioners prays for quashing of the impugned FIR and charge-sheet.

19. The Leaned Advocate for the State submits as follows:- It has been argued by the petitioner that offences under the Mines and Minerals Act are non-cognizable and hence the present proceeding was wrongly instituted. It was further argued that if offences under special 5 2009 1 SCC(Cri) 721 25 Statutes were not attracted consequently Penal Code offences could not continue.

20. Mining without license or permit attracted an offence of theft punishable under section 378 and 379 of the Indian Penal Code in addition to provisions of Mines and Minerals (Development and Regulation) Act, 1957. The ingredients of theft were distinct and different from ingredients of illegal mining. Hence provisions content under Section 22 Mines and Minerals (Development and Regulation) Act, 1957 against prosecution of the person except on a complaint made by officer authorized under the Act is attracted only when such a person sought to be prosecuted for contravention of the provisions of the Mines and Minerals (Development and Regulation) Act,

1957. Such provision does not apply for any act or omission which constitutes an offence under the Indian Penal Code like theft defined under Section 378 of the Indian Penal Code. Hence there is no merit in the contention that where there is a Special Act dealing with a special subject, resort cannot be taken under the General Act. The said submission by the petitioner has no force as in terms of Section 26 of the General Clauses Act, the offence under Section 4 read with Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 is different from the Section 379 of the Indian Penal Code. Thus they are two “different” and not the “same” offences.

21. It has been argued by the petitioner that police has no power to institute cases on the basis of an FIR and Magistrate has no power to take cognizance 26 of such offence upon police report without a complaint being registered from an authorized officer in accordance to the Section 22 of the Act.

22. In this regard reference may be made to Chapter XI of the Code of the Criminal Procedure especially from Section 149 to 152 which confers important powers and duty upon the police officer to take preventive actions in certain cases. A perusal of the 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 persons in accordance of law.

23. There is no complete and absolute bar in the Mines and Minerals (Development and Regulation) Act, 1957 in prosecuting persons under the Penal Code where the offences are committed by persons are Penal and Cognizable offences. It is pertinent to mention here sub Section 6 has been inserted in Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 by amendment on and from 20.12.1999 making the offence cognizable not withstanding anything in the Cr.P.C.

24. Section 22 of the Act puts a restriction on the court to take cognizance of the offence punishable under the Act or to Rule made there under except upon a complaint made by a person authorized in this behalf. It is very important to note that Section 22 does not being with a non-obstante clause. Instead of the words “Notwithstanding anything content in any law for the time being in force, no court shall take cognizance…”, the Section begins with words “No court shall take any cognizance of any offence.” 27

25. It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Absence of such non obstante clause in respect os Section 4(1-A), 21 and 22 clarifies the legislative intention that relevant provisions of the Code of the Criminal Procedure will apply and as such there is no bar in either institution of the criminal case by an FIR or cognizance of a court upon police report.

26. If we consider Section 2(c), 2(d), 2(h) which define “cognizable offence”, “complaint”, “investigation” respectively as well as Section 4(2) of the Code of Criminal Procedure which tell that all offences under any law other than Indian Penal Code, can be investigated, enquired into and tried under Code of the Criminal Procedure, subject to any enactment regulating the manner or place of investigation, trial etc of such offences. Further, Section 41 of the Code of Criminal Procedure states that police has the power to arrest without warrant in case of cognizable offence. Section 149 to 152 require the police to prevent cognizable offence either by arrest or otherwise. The aforesaid provision clearly casts a duty upon the police officer to prevent any injury attempted to be committed to any public property or National assets and also to prosecute such person in accordance with law.

27. In addition to the aforesaid argument it is submitted that Section 33 of the Rules which deals with the provisions of penalty in connection with the aforesaid offences :- 28 Section 33(1) reads as follows : Any person extracting any Minor Mineral without a proper lease or permit granted under this rules or in contravention of the provisions of rule 35 shall be punishable with a term of with imprisonment for a term which may extent to two years or with a fine which may extent to Rs. 25,000/- or both. Section 33(8) reads as follows :- Notwithstanding anything content in the Code of the Criminal Procedure, an offence under sub Section (1) shall be cognizable. In the instant case the F.I.R. was lodged by the concerned BL&LRO after the same was duly authorized by the competent authority, i.e., Additional District Magistrate and District Land and Land Reforms Officer. Hence it is crystal clear that there is no bar in taking cognizance when an offence under Minor Mineral Rules as well as the Penal Code is attracted

28. In the backdrop of the aforesaid discussion it may be concluded that ingredients constituting offence under Mines and Minerals (Development and Regulation) Act, 1957 and offences defined under Section 379 of the Indian Penal Code are absolutely different. The contravention of the terms and conditions of the mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957, whereas dishonestly removing stones and other minerals (which is the allegation in this present case) which is the property of the State, out of the State’s possession without the consent, constitute an offence of theft. Hence initiation of proceeding for commission of an offence under Mines and Minerals (Development and 29 Regulation) Act, 1957 on the basis of complaint cannot and shall not debar police from taking action against the persons for committing theft of stones exercising the power conferred under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. So in such cases the police can register a case, investigate the same and submit a final report under Section 173 of the Code of the Criminal Procedure before the Magistrate having the jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(D) of the Code of the Criminal Procedure.

29. In this regard reference may be made to the decisions made by Hon’ble Apex Court in i. State (NCT of Delhi) Vs. Sanjay reported in (2014) 9 Supreme Court Cases 772, relevant paras 27,30,31, 62-63, 69-73 and in

27. 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 30 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; 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. 31 (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.

31. 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.

62. Sub-section (1-A) of Section 4 of the MMDR Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the Act and the Rules made thereunder. In other words no person will do mining activity without a valid lease or licence. Section 21 is a penal provision according to which if a person contravenes the provisions of sub-section (1-A) of Section 4, he shall be prosecuted and punished in the manner and procedure provided in the Act. Sub-section (6) has been inserted in Section 4 by amendment making the offence cognizable notwithstanding anything contained in the Code of Criminal Procedure, 1973. Section 22 of the Act puts a restriction on the court to take cognizance of any offence punishable under the Act or any Rule made thereunder except upon a complaint made by a person authorised in this behalf. It is very important to note that Section 21 does not begin with a non obstante clause. Instead of the words “notwithstanding anything contained in any law for the time being in force no court shall take cognizance….”, the section begins with the words “no court shall take cognizance of any offence.”

63. It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same 32 enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.

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 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 lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, 33 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 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.” ii. Kanwar Pal Singh Vs. State of Uttar Pradesh & Anr. reported in (2020) 14 Supreme Court Cases 331, relevant paras 6, 7, 10, 11, 15, 16 which clearly distinguishes/overrides the legal points argued by the petitioner and the decisions cited in that regard.

6. After adverting to the provisions of CrPC, namely, Sections 2(c), 2(d) and 2(h) which define “cognizable offence”, “complaint” and “investigation” respectively, (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] had referred to Section 4 CrPC, which reads as under: in Sanjay [State this Court 34 to any enactment regulating “4. Trial of offences under the Indian Penal Code and other laws.—(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” As per sub-section (2) of Section 4, all offences under any law, other than IPC, can be investigated, inquired into and tried under CrPC, subject the manner or place of investigation, trial, etc. of such offences. 7. Section 21 of the MMDR Act, 1957, it was observed in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] , states that the offences specified thereunder are cognizable. Section 41 CrPC was referred to elucidate that the police has the power to arrest without warrant in case of cognizable offences. Sections 149 to 152 of Chapter XI CrPC that require the police to prevent cognizable offences either by arrest or otherwise, etc. were referred to hold that the aforementioned provisions 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 also to prosecute such persons in accordance with law. 10. Elucidating on the provisions of Section 4 read with Sections 21 and 22 of the MMDR Act, 1957 and the offence under Section 379 IPC, it was observed in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] : (SCC pp. 811-12, paras 69-72) “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. 35

70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code. 71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code. 72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power 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) CrPC.” 36 (emphasis supplied) 11. As noticed above, in the written submissions the appellant has relied upon Belsund Sugar Co. Ltd. [Belsund Sugar Co. Ltd. v. State of Bihar, (1999) 9 SCC 620] , Sharat Babu Digumarti [Sharat Babu Digumarti v. State (NCT of Delhi), (2017) 2 SCC 18 : (2017) 1 SCC (Cri) 628] and Suresh Nanda [Suresh Nanda v. CBI, (2008) 3 SCC 674 : (2008) 2 SCC (Cri) 121] to contend that where there is a special Act dealing with a special subject, resort cannot be taken to a general Act. The said submission has no force in view of the ratio in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] as quoted above which specifically refers to Section 26 of the General Clauses Act and states that the offence under Section 4 read with Section 21 of the MMDR Act, 1957 is different from the offence punishable under Section 379 IPC. Thus, they are two “different” and not the “same offence”. It would be relevant to state here that the Delhi High Court in its decision in Sanjay v. State [Sanjay v. State, 2009 SCC OnLine Del 525 : (2009) 109 DRJ 594] , which was impugned in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] , had accepted an identical argument to hold that once an offence is punishable under Section 21 of the MMDR Act, 1957, the offence would not be punishable under Section 379 IPC. This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before us, therefore, must be rejected. 15. We would again advert to the decision in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] , which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State [Seema Sarkar v. State, 1994 SCC OnLine Cal 277 : (1995) 1 Cal LT 95] wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the MMDR Act, 1957 and Section 379 IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the MMDR Act, 1957, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that FIR should not be treated as registered under Section 379 IPC but only under Section 21 of the MMDR Act, 1957. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] after referring to Section 26 of the General Clauses Act and the meaning of the expression “same offence”, 37 to observe that the offence under Section 21 read with Section 4 of the MMDR Act, 1957 and Section 379 IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the MMDR Act, 1957 and not under any other law. There is no bar on the court from taking cognizance of the offence under Section 379 IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the MMDR Act, 1957, unlike Section 13(3)(iv) of the TOHO Act. 16. In view of the aforesaid discussion, we would uphold the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate under Section 379 IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. We would, however, clarify that prosecution and cognizance under Section 21 read with Section 4 of the MMDR Act, 1957 will not be valid and justified in the absence of the authorisation. Further, our observations in deciding and answering the legal issue before us should not be treated as findings on the factual allegations made in the complaint. The trial court would independently apply its mind to the factual allegations and decide the charge in accordance with law. In light of the aforesaid observations, the appeal is partly allowed, as we have upheld the prosecution and cognizance of the offence under Section 379 IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. There would be no order as to costs.

30. The Learned Advocate for the Petitioner in reply to the contentions of the Learned Advocate for the State further submitted the following: i. During the course of argument, the Learned Advocate representing the State has raised a point pertaining to Rule 33 Sub Rule 8 of the West Bengal Minor Mineral Rules, 2002. According Rule 8, an offence under Rule 33(1) cognizable; hence, the Charge Sheet could have been submitted by the Investigating Agency in relation to the said Rules. However, Rule 33 Sub Rule 1 shall not be applicable in contradiction to Section 21 (2) of the 1957 Act (as it existed in the 38 year 2014), which makes it abundantly clear that violation of any rule under the Act is punishable by imprisonment of 1 year and fine extendable to Rs 5,000/- (Rupees Five Thousand) or with both. ii. The said Rule framed under the MMDR Act could not have enhanced the punishment to 2 (two) years by Rule 33 Sub Rule 1 of the Sub Rule 1 of the Minor Mineral Rules. Hence, if Rule 33 Sub Rule 1 is liable to be struck down and not given effect to, consequentially Sub Rule 8 of Rule 33 must be construed to have been not applicable in as much as Sub Rule 8 only makes Sub Rule 1 of Rule 33 cognizable. If Rule 33 (1) is inapplicable, Rule 33 (8) can also not be applied. iii. In the facts and circumstances as Section 21 of the MMDR Act makes it abundantly clear that violation of any rule under the Act is punishable by imprisonment of 1(one) year, the relevant schedule of the Code of Criminal Procedure will apply and will make Rule 33 of West Bengal Minor Mineral Rules, 2002 non cognizable. The said relevant schedule of the Code of Criminal Procedure is as follows : II Classification of offences against other Laws :- Cognizable or Bailable By what Offence non- or non- Court cognizable bailable triable 39 If punishable with death, imprisonment for life, or Cognizable imprisonment for more than 7 years, Non- Court of bailable Sessions If punishable with, imprisonment for 3, and Cognizable upwards but not more Non- bailable Magistrate of First Class than 7 years If punishable with, imprisonment for less Non Any Bailable than 3 years or with fine Cognizable Magistrate only. Furthermore, reference may be made to Section 22 of MMDR Act which provides that no court shall take cognizance of any offence punishable under the Act or any rules framed thereunder except upon complaint in writing made by a person authorized in this behalf by the Central or State Government. iv. Hence by necessary implication, the Charge Sheet submitted under Rule 33 Sub Section 1 is liable to be quashed. v. The Petitioner relies upon Chotelal Choudhury Vs. The State of West Bengal and Ors. (2008(3) CHN 1060) to substantiate that when the Special Statute being the MMDR Act covers the issue of illegal 40 excavation of minor minerals, usage of section 379 as an ancillary offence will be a misnomer and shall not be applicable. This is in addition to the submission of the petitioner made referring to Sharad Babu Digamarti Vs. Government NCT of Delhi (2017 (2) SCC 18) relevant paragraph 37 and 38.

31. At the outset, the following provisions are worth mentioning:-

32. Rule 33(1) of the West Bengal Minor Mineral Rules, 2002 states as follows: “Penalty- Any person extracting any minor mineral without a proper lease or permit granted under these rules or in contravention of the provisions of rule 35 shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to twenty five thousand rupees or both.”

33. Rule 35 of the West Bengal Minor Mineral Rules, 2002 states as follows : “Extraction of ordinary clay from own land- No lease will be required to be taken by a person, who extracts ordinary clay from his own land, either for use in any cottage industry owned by him, like potery, clay modelling or for any other industry specified in the notification issued by the State Government or for his personal use. Provided that such extraction shall be subject to the following conditions, as the State Government may impose from time to time:- (a) The mineral so extracted shall not be disposed of by sale or otherwise without the prior permission in writing of the District Magistrate or District Land and Land Reforms Officer of the district, or Sub-divisional Officer or Sub-divisional Land and Land Reforms officer of the sub-division and except on payment of fees at the rate of Re. I2/- (Rupees Twelve only) 41 per cubic metre or at such reduced rate as may be fixed by the officer concerned. (b) The mineral so extracted shall not be converted into bricks or tiles except where such bricks and tiles are required for his own use ; (c) No extraction shall be done at or from any place within 100 metres from any railway line, except with the previous written permission of the railway administration concerned or within 200 metres from any reservoir, public road, canal, bridge culvert or other public works or buildings or inhabitated site.”

34. Definition of “Owner” under Mines Act, 1952(35 of 1952) state as follows : “ (i) Owner when used, in relation to a mine, means any person who is the immediate proprietor or lessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by liquidator or receiver such liquidator or receiver but does not include a person who merely receives a royalty rent or fine from the mine, subject to any lease grant or licence for the working thereof or is merely or is merely the owner of the soil and not interested in the minerals of the mine; but (any contractor or sub-lessee for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability.”

35. Two separate police station cases were initiated against the present petitioner being Barabani P.S. Case No. 130/12 dated 13.10.2012 under Section 33(1) of the West Bengal Minor Minerals Rules, 2002 and another case being Barabani P.S. Case No. 9/2014 dated 11.01.2014 under Section 33(1) of the West Bengal Minor Minerals Rules, 2002 and under Section 379 of the Indian Penal Code. 42

36. Barabani Case No. 130 of 2012 was initiated on the basis of a written complaint lodged by Nazim Ali Mufti (The BL&LRO) who was duly authorized by the Additional District Magistrate and District Land and Land Reforms Officer, Burdwan as per his letter of instruction vide Memo No. 2162/MM/12 as the petitioner was involved in mining operation in Plot No. 1614 without any valid approval from the competent authority.

37. In connection with Barabani P.S. Case No. 130 of 2012, three statements of witnesses namely Shyamol Majhi, Laksmallal Tudu and Nazim Ali Mufti (BL&LRO) were recorded wherein it was alleged that the present petitioner is illegally carrying on mining activities in Plot No. 1614.

38. After completion of the investigation the charge-sheet under Section 33(1) of the West Bengal Minor Minerals Rules, 2002 was filed against the present petitioner.

39. Similarly Barabani P.S. Case No. 9/2014 was initiated on the basis of a written complaint lodged by Shyamol Mondol (The BL&LRO) who was duly authorized by the Additional District Magistrate and District Land and Land Reforms Officer, Burdwan as per his letter of instruction vide Memo No. 14(stone/1030/MM/13) as the petitioner was involved in mining operation in Plot No. 1614 without any valid approval from the competent authority.

40. In connection with Barabani P.S. Case No. 9/14 two statements of witnesses namely Md. Iiias (Amin, BL&LRO) and Pronob Kumar Mishra (Revenue Officer, BL&LRO) were recorded wherein it was alleged that the present petitioner is illegally carrying on mining activities and after committing theft is selling the same in the black-market. 43

41. After completion of the investigation the charge-sheet under Section 33(1) of the West Bengal Minor Minerals Rules, 2002 and under Section 379 of the Indian Penal Code was filed against the present petitioner.

42. The submission of the petitioner to have been authorized by virtue of power of attorney by the surviving partner M/S J Das and Brothers to have been legally entrusted to supervise and conduct mining operations in respect of 1614 within Mouza- Khoirbad is the first issue to be determined through proper evidence in court. The right of mining over the said plot through legal sanction has to be justified by the petitioner by adducing evidence before the court. The Learned Advocate for the petitioner has submitted that following documents to be of unimpeachable character. i. 2nd January, 1977 letter of appointment as contractor and sole selling agent issued by Banerjee Brothers issued in favor of M/s. J Das and Brothers. ii. The explosive license issued in favor of M/s. J. Das and Brothers by the Additional District Magistrate, Asansol. iii. The order dated 9th March, 1988 passed by the Hon’ble High Court in CO 2097 of 1988. The order clearly reflects that M/s. J. Das and Brothers was permitted to pay royalty for mining operations to the Additional District Magistrate, Asansol and directed renewal of license on payment of royalty. 44 iv. Pursuant to the aforesaid order, M/s. J. Das and Brothers deposited the royalty till date of the impugned complaint royalties were being regularly paid and accepted by the Government. v. The letters for payment of royalties were submitted by the petitioner. vi. Vide an order dated 27th August 1990 passed by the Hon’ble High Court in CO No. 10359 of 1990 once again M/s J. Das and Brothers was permitted to be issued license by the Hon’ble High Court

43. However the perusal of the ‘xerox copies’ of documents annexed to the instant revisional application revels the petitioner to have claimed his ownership complaint and materials in the case diary.

44. The veracity of the aforesaid documents cannot be decided without adducing evidence in court. There are several writ petitions before this Court concerning the right to quarry stones and minerals over several plots however it has been claimed that plot 1614 as aforesaid was unblemished. However, such a claim of the petitioner has to be established on adducing proper evidence. The mining of stones and minerals have been carried for a prolonged period within its inception prior to the independence. This Court while exercising its power under Section 482 of the Cr.P.C. is not in a position to conduct a mini trial; assessing facts beyond the limit and purview of the pleadings.

45. Further during the course of investigation the petitioner could not produce the initial document granting lease which was allegedly granted pre- independence as well as the latest renewal documents. Hence, whether or 45 not he actually had any valid permission to continue mining activities is a question of fact that has to be decided during the course of trial.

46. In the case of Central Bureau of Investigation VS. Aryan Singh etc.6, the Hon’ble Supreme Court held as follows:- “10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”.

11. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High 6 2023 SCC OnLine SC 379 46 Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.

12. In view of the above and for the reasons stated above, when the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings and applying the law laid down by this Court in catena of decisions on exercise of the powers at the stage of discharge and/or quashing the criminal proceedings, the impugned common judgment and order passed by the High Court quashing the criminal proceedings against the accused is unsustainable and the same deserves to be quashed and set aside.”

47. In the case of Amit Kapoor Vs. Ramesh Chander and Another7, the Hon’ble Supreme Court has observed as follows:- “22. In Dinesh Dutt Joshi v. State of Rajasthan8 the Court held that: “6. …[Section 482] does not confer any power but only declares that the High Court possesses inherent powers for the purposes specified in the Section. As lacunae are sometimes found in procedural law, the Section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are, however, required to be reserved as far as possible for extraordinary cases.