JUDGMENT :

B.A. Patil, J.

1. The present appeal is preferred by accused Nos. 1 and 2, being aggrieved by the judgment and order of conviction and sentence passed by the learned II Additional Sessions and Special Judge at Mysuru in Special Case No. 85/2018, dated 12/15.10.2018.

2. I have heard the learned counsel for appellant-accused Nos. 1 and 2 and the learned HCGP for the respondent-State.

3. The gist of the complaint is that on the intervening night of 6.4.2016 and 7.4.2016, accused No. 1 being the driver and accused No. 2 being the owner of tipper Lorry bearing Regn. No. KA-45-8889, were illegally transporting the sand of 5.50 cubic meters from Lakshmana Thirtha river near Cholenahalli Village. When the said tipper lorry was intercepted, no explanation was given by the accused persons and the said lorry was seized by drawing a mahazar and a complaint has been registered. After completion of investigation, the charge sheet was filed. Thereafter, the Special Court took cognizance and secured the presence of the accused. After hearing both the sides the charge was framed, accused pleaded not guilty and claimed to be tried. As such the case was fixed for trial.

4. In order to prove its case, the prosecution has got examined seven witnesses as PWs. 1 to 7 and got marked 15 documents as per Exs. P1 to P15. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C. But accused have not chosen to lead any defence evidence. After hearing the arguments on both sides, the impugned judgment of conviction and order of sentence came to be passed. Challenging the legality and correctness of the same, the appellants-accused Nos. 1 and 2 are before this Court.

5. It is the submission of the learned counsel for the appellants that the complaint is registered as per Ex. P8 by the PSI both for the offences punishable under Section 21 r/w Sections 4(1), 4(1A) of Mines and Mineral (Development and Regulation) Act (for short "MMDR Act") and Rules 42 and 44 of the Karnataka Minor Mineral Consistent Rules, 1994 ('Rules' for short) as well as Section 379 of IPC.

6. It is the submission of the learned counsel for the appellants is that in order to take cognizance as per Section 22 of the MMDR Act, the authorized person has to file a complaint and without such complaint no Court can take cognizance of the offence punishable under the MMDR Act. Without considering the said aspect, the trial Court has wrongly convicted the accused-appellants under the provisions of MMDR Act. It is his further submission that PWs. 1, 3 to 5 are the panchas to seizure mahazar, who have not supported the case of the prosecution and they have been treated as hostile. The only evidence which is available before the Court is that of PWs. 6 and 7 who are official witnesses and they are interested witnesses to prove the fact that the sand is a stolen property. In the absence of the said material the accused cannot even be convicted for the offence punishable under Section 379 of IPC. It is his further submission that the trial Court without considering the law on the point and without proper appreciation of the material on record, has come to a wrong conclusion and has wrongly convicted the accused. On these grounds, he prayed to allow the appeal by setting aside the impugned judgment and order and to acquit the accused.

7. Per contra, the learned HCGP vehemently argued and submitted that accused Nos. 1 and 2 have been caught red handed when they were transporting the sand in the tipper lorry. It is his further submission that the vehicle being laden is not in dispute and the said fact has also been supported by P.Ws. 2, 6 and 7. Even the photographs produced at Exs. P2 to P5 corroborate the evidence of P.Ws. 2 and 7. It is his further submission that when the prosecution has alleged the offence under Section 379 of IPC, then under such circumstances, police gets the jurisdiction to investigate and file the charge sheet. Accordingly, the charge sheet has been file