IMPORTANT POINT
In order to constitute the offence of theft, it is essential on the part of the prosecution to prove that the accused removed the sand out of the possession of the Government dishonestly and without the consent of the Government

ORDER :

The revision petitioner is the accused in C.C.No.282/2001 on the file of the Judicial First Class Magistrate Court, Wadakkanchery and the appellant in Crl. Appeal No.969/2005 on the file of the Additional Sessions Court, Fast Track-I, Thrissur. The offence alleged against the accused is punishable under Section 379 of the Indian Penal Code (hereinafter referred to as 'the IPC').

2. The prosecution case in brief is as hereunder :-

On 06.06.2001 in the morning, PW5-the Sub Inspector of Police, Cheruthuruthy Police Station received reliable information that river sand was being stolen from the Painkulam kadavu of Bharathapuzha river. Consequently, PW5 and his party immediately rushed to the said kadavu. On reaching the spot at 7.30 am., PW5 saw the accused removing sand from the kadavu and loading them on the board of a lorry bearing registration No.TN 51-2-0216. On seeing the police party, the accused attempted to run away from the scene of occurrence. PW5 caught hold of the accused and questioned him. The accused was not able to produce any document authorising him to remove sand from the kadavu which is vested in the Grama Panchayat. The Sub Inspector arrested the accused and seized the lorry as per Ext.P1 seizure mahazar and on reaching the police station, registered the case against the accused as Crime No.131/2002 of Cheruthuruthy Police Station for the offence punishable under Section 379 of the IPC. The accused, who was produced before the learned Magistrate, was remanded to judicial custody and later released on bail. The investigation in this case was handed over to the Assistant Sub-Inspector of Police, Cheruthuruthy Police Station and he prepared Ext.P2 scene mahazar. After completing investigation final report was filed under Section 379 of the IPC.

3. On the appearance of the accused before the trial court, after having heard both sides, charge under Section 379 of the IPC was framed and the charge was read over to the accused to which he pleaded not guilty.

4. When the case came up for evidence PWs.1 to 6 were examined and marked Exts.P1 to P4 on the prosecution side. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. However, no defence evidence was adduced.

5. On appreciation of the evidence, the accused was found guilty of the offence under Section 379 of the IPC and convicted and sentenced to undergo rigorous imprisonment for a period of one year. The accused preferred an appeal before the appellate court. The appeal was dismissed confirming the conviction and sentence rendered by the trial court. Hence the revision petitioner is before this Court.

6. Heard the learned counsel for the revision petitioner and the learned Senior Public Prosecutor for the respondents.

7. The learned counsel for the revision petitioner contended that the conviction under Section 379 of the IPC is not sustainable for unauthorised removal of sand which is exhaustively covered by the Kerala Minor Mineral Concession Rules, 1967. According to the learned counsel for the revision petitioner, the removal of sand was covered by the Central Act until the enactment of the State Rules in 1967 and the 1967 Rules was replaced by the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Elaborating on the submission, the learned counsel for the revision petitioner contended that, by virtue of Section 3(C) of the Central Act, 1957, sand is a minor mineral and Section 15(1) of the Central Act, 1957 gives power to the State to make rules to regulate the affairs regarding the minor mineral including sand. Thus, it was submitted that the Central Act would only prevail for a limited period with regard to minor minerals. According to the learned counsel, upon State legislation under Section 15(1), it shall be the exhaustive and exclusive law with regard to removal of sand. In short, it