Aditya Multicom Pvt. Ltd. vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Pat) 787

IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD, J.
Cr. WJC Nos. 299, 5, 13, 290, 292, 295, 305, 311, 312, 320, 387, 388, 401, 413, 428, 436, 462, 465, 481, 494, 497, 500, 505, 508, 516, 545, 554, 634 of 2022 with 501 of 2021
(4.11.2022)
M/s. Aditya Multicom Pvt. Ltd.
(in 299, 5, 13, 290, 292, 295,
305, 311, 312, 320, 428, 436,
494, 554, 634)
Broad Son Commodities Pvt. Ltd.
(in 501, 387, 388, 401, 413,
462, 465, 481, 497, 500, 505,
508, 516, 545) ... Petitioners
vs.
State of Bihar & Ors. ... Respondents
(in all)

Advocates:
For the Petitioners: M/s P.K. Shahi, Sr. Adv., P.N. Shahi, Sr. Adv., Suraj Samdarshi, Avinash Shekhar (in all)
For the State : M/s G.P. Ojha, Saroj Kumar Sharma.
For the Dept. of Mines : M/s Naresh Dixit, Kalpana.

Headnote:
Indian Penal Code, 1860 – Section 379 – Bihar (Concessions, Prevention of illegal Mining, Transportation and Storage) Rules, 2019 – Rules 11, 29(c), 36(3), 56, 61, 64 and 65 – Minor and Minerals (Development and Regulation) Act, 1957 – Section 27 – Constitution of India – Article 226 – Illegal mining – FIR – Quashing applications – Basic contention on behalf of petitioners is that for offences alleged under MMDR Act and Rules of 2019 FIR under penal provisions of I.P.C. cannot be registered – Petitioners have not challenged any order taking cognizance – It is not their case that Magistrate has taken cognizance of offence under Rules of 2019 on the basis of a police report – Petitioners are aggrieved by and dissatisfied with registration of first information reports for offences alleged under some of provisions of Indian Penal Code together with provisions of Rules of 2019 – FIR alleges commission of theft, dishonest removal of sand from non-permitted areas and stealthily selling the same for unlawful gain causing unlawful loss to State – Test applied is that it is to be seen whether there is "dishonest intention" on part of petitioners in excavation of sand beyond E.C. Permitted area or in thievery selling sand without pre-paid e-challan and thereby causing "wrongful loss" to State and getting "wrongful gain" for themselves – Rule 56 is restricted to Act of extraction, removal or undertaking any mining operation in any area without holding any mineral concession, permit or any other permission granted or permitted under Rules of 2019 – Rule 56 does not cover a case of theft as defined under Section 378 IPC – A police officer on his own authority has 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 – Allegation that petitioners were indulged in stealthily selling sand without issuing prepaid challan and thereby caused huge revenue loss to State Exchequer, if substantiated in course of investigation, would attract definition of cheating – These are not cases of mere breach of terms of license and provisions of Rules of 2019 – To finally resolve issues involved in batch of these writ applications and to make diverse opinion of this Court consistent with law and judicial pronouncements of Supreme Court on the subject, matters referred to Division Bench. (Paras 33, 36, 43, 44, 51 and 71)

Rajeev Ranjan Prasad, J.—A batch of 28 writ petitions were taken up together on 28.09.2022 for consideration with the consent of learned counsel for the petitioners, State and the Department of Mines. Earlier, on 05.09.2022 Cr.W.J.C. No. 501 of 2021 was heard and judgment was reserved. Later on, considering that all the cases including Cr.W.J.C. No. 501 of 2021 are raising similar issues, this Court heard learned counsel for the parties in all the cases once again on 02.11.2022.

2.These writ petitions question the lodging of the FIRs under Section 379, and other provisions of the Indian Penal Code (hereinafter referred to as the ‘IPC’) as also for the alleged violation of Rule 11, 29(c), 36(3) and 56 and other Rules of the Bihar (Concessions, Prevention of illegal Mining, Transportation and Storage) Rules, 2019 (hereinafter referred to as the ‘Rules of 2019’) and Section 27 of the Minor Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the ‘MMDR Act, 1957’). The FIRs challenged in each of the writ petitions are mentioned hereinbelow in tabular chart with the allegations levelled in each of the FIRs:—

FIRs relating to the petitioner Aditya Multicom Private Limited

Case No.	FIR	Allegations
Cr.W.J.C. No. 299 of 2022	Barun P.S. Case No. 318 of 2021 registered under Sections 379, 411, 420 IPC read with Rule 11, 39, 56 of the Bihar Mineral (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules 2019	In course of Inspection of the Stock on the K-License place 18000 CFT sand was found whereas in PMU Report 2265700 CFT sand was mentioned. It was noticed that the license holder has sold sand without issuing prepaid E-Challan. It is alleged that the license holder has sold the sand stealthily and the Register in form -J were not found duly filled up. This has caused revenue loss of Rs. 11,72,50,032/- to the Government exchequer.
Cr.W.J.C. No. 05 of 2022	Dehri Town P.S. Case No. 406 of 2021 registered under Section 379, 409 IPC, Sections 39(2), 39(3), 56(2) of Bihar Mineral (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019	In course of Inspection of the Stock on the K-License places 162700 CFT sand was found whereas in P.M.U. report it was mentioned as 12377875 CFT. It was noticed that the license holder has sold sand without issuing prepaid E-Chalan. It is alleged that the license holder has sold the sand stealthily and the Register in form -J were not found duly filled up. This has caused revenue loss of Rs. 36,55,29,750/- to the Government exchequer.
Cr.W.J.C. No. 13 of 2022	Tilhautu P.S. Case No. 141 of 2021 registered under Sections 379, 411, 420 IPC, read with 11, and 56 of the Bihar Mineral (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019	In course of Inspection of the Stock on the K-License place 173000 CFT sand was found whereas in P.M.U. report it has been mentioned 619400 CFT. it was noticed that the license holder has sold sand without issuing prepaid E-Challan. It is alleged that the license holder has sold the sand stealthily and the Register in form -J were not found duly filled up. This has caused revenue loss of Rs. 01,51,77,600/- to the Government exchequer.
Cr.W.J.C. No. 290 of 2022	Rishiyup P.S. Case No. 82 of 2021 registered under Section 379,411, 420 IPC read with Rules 11, 39, 56 of the Bihar Mineral (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019	In course of Inspection of the Stock on the three K-License places total sand was zerp balance whereas in P.M.U. Report it has been mentioned as 183300 CFT Sand. It was noticed that the license holder has sold sand without issuing prepaid E-