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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Ansuman Banerjee & Ors. - Petitioners
Versus
The State of West Bengal & Anr. - Opposite Parties
CRR No. 353 of 2019
Decided On : 04-07-2023
SAND EXTRACTION - MINES AND MINERALS (DEVELOPMENT AND REGULATION) ACT - [SECTION 21, 22, 3(AA), 3(D), 3(E), 4(2A)] - WEST BENGAL MINOR MINERALS CONCESSION RULES - [RULE 2(N), 62] - WEST BENGAL LAND REFORMS ACT - [SECTION 4(2A), 4(2B)] - SUMMARY: The Court held that the petitioners could not be prosecuted under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, as sand is not a mineral as defined under the Act. The Court also held that the concerned Sub-Inspector was not the authorized person to lodge the complaint punishable under Section 21 of the Act, 1957 and Rule 50 of the West Bengal M.M. Concession Rules, 2016 and no cognizance can be taken on the basis of the complaint lodged by S.I. of Police.
Fact of the Case:
The petitioners were charged with offences under Sections 379, 410, and 120B of the Indian Penal Code, and Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957, for allegedly extracting sand from a riverbed without a valid permit. The petitioners challenged the charge sheet and the order of cognizance, arguing that the offences alleged were not cognizable under the Indian Penal Code, as they were covered by a special Act, and that the Sub-Inspector of Police who lodged the complaint was not the authorized officer under the Act.
Finding of the Court:
The Court held that the petitioners could not be prosecuted under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, as sand is not a mineral as defined under the Act. The Court also held that the concerned Sub-Inspector was not the authorized person to lodge the complaint punishable under Section 21 of the Act, 1957 and Rule 50 of the West Bengal M.M. Concession Rules, 2016 and no cognizance can be taken on the basis of the complaint lodged by S.I. of Police.
Issues: 1. Whether the petitioners could be prosecuted under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957, for extracting sand from a riverbed without a valid permit? 2. Whether the Sub-Inspector of Police who lodged the complaint was the authorized officer under the Act?
Ratio Decidendi: 1. The Court held that sand is not a mineral as defined under Section 3(aa) of the Mines and Minerals (Development and Regulation) Act, 1957, and therefore the petitioners could not be prosecuted under the provisions of the Act. 2. The Court held that the concerned Sub-Inspector was not the authorized person to lodge the complaint punishable under Section 21 of the Act, 1957 and Rule 50 of the West Bengal M.M. Concession Rules, 2016 and no cognizance can be taken on the basis of the complaint lodged by S.I. of Police.
Final Decision: The Court allowed the revisional application and quashed the charge sheet and the order of cognizance.
JUDGMENT :
Shampa Dutt (Paul), J.
1. The present revision has been preferred against an order of rejection of application for discharge passed on 19.12.2018 being Order No. 17 in connection with Murarai P.S. Case No. 252 of 2017 dated 19.07.2017 under Sections 379/410/120B of the Indian Penal Code and Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 wrongly recorded as Sections 21 and 33 of Mines and Minerals Act.
2. The petitioners' case is that the petitioner Nos. 1, 2 and 3 are the registered owners in respect of two motor vehicles being registration No. WB 53B 2662 and WB 53A 7700 respectively. For the purpose of livelihood the petitioners No. 1, 2 and 3 started a business of transport of different goods through their tractors. The petitioners regularly cleared the road tax and other charges and till date neither the petitioners nor the tractors have been entangled in any criminal offences. The petitioners usually use their motor vehicle in respect of cultivation and transportation of crops from the agricultural land to the farm house of the respective owners.
3. In the year 2000 the entire Birbhum and Murshidabad District were badly affected due to huge flood and as the petitioners' residence and their concerned agricultural land Mouza – Kalahapur, being Plot Nos. 1011, 129, 138, 1366, 206, 1446, 376, 488, 753, 1678, 1048, 209 etc. are adjacent to the flood affected river namely Balsoi River, the entire agricultural land were badly covered by the sand of the said river. Till the year 2000 the agricultural process has been stopped in the aforementioned plots of the some of petitioners and some of the cultivators of the locality have removed the sand from the said agricultural land. There is no such bank of Balsoi River and each and every year the aforementioned plots are being badly affected by the flood. The petitioners' residence is more than 300 meters away from the aforementioned plot.
4. All on a sudden on 19.07.2017 the concerned Police being the opposite party No. 2 suo motu started a Criminal Case being Murarai P.S. Case No. 252 of 2017 dated 19.07.2017 under Sections 379/411/120B of the Indian Penal Code read with Section 21 of the Mines and Minerals (Development & Regulations) Act, 1951 and Rules 33 of the West Bengal Mines and Minerals Rules 2002 against the petitioners.
5. After investigation, charge sheet has been submitted being charge sheet No. 283 of 2017 dated 21.12.2017 under Sections 379/411/414 of the Indian Penal Code and Section 21 of the M.M. Act and Section 33 of the M.M. Act, though there is no penal provision namely Rule 33 of the M.M. Act. The petitioners challenging the impugned charge sheet being no. 283 of 2017 dated 21.12.2017 and the order of cognizance dated 10.04.2018, passed by the Learned Judicial Magistrate, 3rd Court, Rampurhat, Birbhum, an application for discharge was filed and the same has been dismissed on 19.12.2018 which is under challenge in this revisional application.
6. That in terms of Rule 62 of the West Bengal Minor and Minerals Rules Concession Rules 2016, the West Bengal Minor and Minerals Rules 2002 has already been repealed with effect from 14th September, 2015. In spite of the fact that Minor and Minerals Rule 2002 has been repealed the concerned Sub-Inspector filed this instant case being Murarai Police Station Case No. 252 of 2017 dated 19.07.2017 under Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and West Bengal Minor and Mineral Rules 2002. In terms of the notification dated 24.01.1991 being notification No. 87-C1/GR (D) the concerned Block Land and Land Reforms Officer has been given such power to lodge FIR under sub Section 3 of Section 21 of the West Bengal Mines and Minerals (Development and Regulation) Act, 1957.
7. That in terms of Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 no Court shall take any cognizance of any offence punishable under the Act or any rules made thereunder
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