The central legal point established in the judgment is that the nature of the explosives used in illegal mining would be determined in the trial, and the order taking cognizance was found to be legal.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Indrajit Sinha assisted by Mr. Ajay Kumar Sah, learned counsel for the petitioner and Mr. Shailesh Kumar Sinha, learned counsel for the State.

2. This petition has been filed for quashing the entire criminal proceedings in connection with Kasmar P.S. Case No. 83 of 2016 dated 04.11.2016, corresponding to G.R. No. 1046 of 2016, including the order dated 21.08.2019 whereby cognizance has been taken against the petitioner under Sections 3 and 4 of the Explosive Substances Act, 1908, pending in the court of the learned Sub Divisional Judicial Magistrate, Bermo at Tenughat.

3. On the written report of the informant, the FIR was registered alleging therein that vide letter no. 294 dated 20.10.2016 and vide memo no. 555 dated 20.10.2016, Jaridih Circle Officer and Forest Range Officer, Petarwar Forest Area, Petarwar directed the Kasmar Police Station to register Diary Entry No. 11 dated 17.10.2016 wherein Arun Kumar, Forest Range Officer, Petarwar and Sri Dilip Sao, Forest Guard, Forest Area, Petarwar had handed over gun powder 30 pieces and detonator 19 pieces and further directed to enquire into the matter. On receipt of the said information, report was registered on 01.10.2016. After registering the First Information Report, the local area was investigated, whereafter it came to the knowledge of the Investigating Officer that in Trinola Forest, stone is being illegally mined and that stone is being used in making explosive substance from which the informant is having wrongful loss of revenue and general public is also being disturbed. It was further alleged that explosive substance was used illegally in mining area, which is an offence. It was also alleged that as per up to date investigation, it has come to the knowledge of the Investigating Officer that the petitioner is running illegal stone mine in which one Sewa Lal Karmali, who is also the driver of the tractor of the petitioner, is assisting the petitioner. It was further alleged that in the illegal mining, there are much more persons involved other than these two persons. It was also alleged that the petitioner, Sewalal Mahto and other accused persons are illegally mining the stone by use of explosive substance and they are also transporting the same. It was further alleged that the accused persons are illegally mining the stone by use of explosive substance specifically gun powder of thirty pieces and detonator of 19 pieces recovered from the mines and the driver of the tractor-Sewalal Karmali was arrested by the officers of the Forest Department loaded with stone. The papers regarding arrest and seizure of tractor has been submitted before the Court by the forest officials.

4. Mr. Indrajit Sinha assisted by Mr. Ajay Kumar Sah, learned counsel for the petitioner submits that initially charge-sheet has been submitted under Sections 3 and 4 of the Explosive Substance Act, 1908. He refers to the contents of the FIR and submits that the nature of the explosives was not disclosed in the FIR and that is why only Explosive Act is attracted. He refers to Rule 97 of the Explosives Rules, 2008 and on this ground, he submits that the cognizance order is bad in law.

5. Mr. Shailesh Kumar Sinha, learned counsel for the State submits that the petitioner has earlier moved before this Court in Cr. M.P. No. 66 of 2017, which was dismissed by this Court vide order dated 08.11.2017 wherein it was held that prima facie case is made out against the petitioner and that is why the said case was dismissed. He further submits that the contention of the petitioner is the subject matter of trial and at this stage, it is difficult to come to the conclusion that which type of explosive was used in illegal mining.

6. The Court has perused the FIR and finds that there is allegation of use of explosives in the illegal mining by the petitioner and specific name of the petitioner has also been disclosed in the FIR. The charge-sheet has been submitted under Section