Special laws may coexist with general laws; prosecutions under distinct statutes are permissible if offenses differ under their respective provisions.

ORDER :

[Bail Appl. Nos. 14647/2025, 567/2026, 757/2026, 14165/2025, 14273/2025, 14311/2025, 14315/2025, 14502/2025, 14503/2025]

1. The central issue in this batch of pre-arrest bail applications is whether an offence under Sections 303 (2) or 305(e) of Bharatiya Nyaya Sanhita, 2023, relating to theft, can be invoked for the illegal removal or transportation of river sand when the very same act is charged under Sections 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001.

2. The issue was, in fact, answered in the negative by three Single Benches of this Court [Mohammed Noufal v. State of Kerala, 2021 SCC OnLine Ker 5858, Mohammed Salih v. State of Kerala in BA No. 7522/2024 dated 1.10.2024 and Sirajudheen K.K. v. State of Kerala and Another in BA No. 6548/2025 dated 2.6.2025]. The first among the three orders (Mohammed Noufal) was rendered by me. It was held that when there is special law covering the question of theft of river sand, the offence under Section 379 of the IPC, which is non-bailable in nature, would not get attracted. It was followed in the subsequent two orders - Mohammed Salih (supra) and Sirajudheen K.K. (supra).

3. The learned Senior Public Prosecutor, Sri. M. C. Ashi, at the outset, submitted that all the above three orders are per incuriam, as they were rendered without noticing the relevant provisions in Section 22 of the Sand Act and the binding precedent of the Supreme Court on the point, and thus have no binding effect. In view of the said submission, I directed the learned counsel for the applicants as well as the learned Public Prosecutors who are appearing for the State to advance arguments in detail.

4. Heard the learned counsel for the applicants and the learned Senior Public Prosecutors in extenso.

5. The prosecution allegation in all the crimes against the applicants is that they transported river sand belonging to the Government without complying with the provisions of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short, 'the Sand Act'). Accordingly, they were prosecuted for the offences punishable under Sections 20 and 23 of the Sand Act, as well as under Section 303 (2)/305(e) of the Bharatiya Nyaya Sanhita, 2023 (for short, 'the BNS '). The learned counsel for the applicants argued that the applicants were wrongly charged for the offence under 303(2)/305(e) of , as at best there was a violation of Section 23 of the Sand Act, which is punishable under Section 20 thereof. The learned counsel further argued that the Sand Act, being a special statute regulating the removal of river sand, prosecution for an offence under Section 303 (2) or 305(e) of the is not maintainable. According to the learned counsel, where there is a special statute dealing with a special subject, resort cannot be taken to a general statute. Since the offence under r/w of the Sand Act is bailable in nature, and the offence under Section 303 (2)/305(e) of is not maintainable, the applicants are entitled to pre-arrest bail, submitted the counsel. Reliance was placed on Mohammed Noufal (supra), Mohammed Salih (supra) and Sirajudheen (supra). On the other hand, the learned Public Prosecutors argued that the offence under r/w of the Sand Act is different from the offence under Section 303 (2) or 305(e) of the , and hence initiation of prosecution for the offence under the in addition to the offence under the Sand Act is not barred. The learned Public Prosecutors further argued that Section 22 of the Sand Act specifically permits the prosecution under any other law for any act or omission made punishable under the Sand Act. On facts, the learned Public