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2020 Supreme(Mad) 2271
IN THE HIGH COURT OF MADRAS
A.D. Jagadish Chandira, J.
Bala - Appellant
Versus
State - Respondent
Crl. O.P. Nos. 13334, 13339, 13340, 13354, 13357, 13380, 13395, 13408, 13413, 13416, 13425, 13428, 13441, 13461, 13472, 13484, 13498, 13504, 13507, 13511, 13514, 13544, 13546, 13554, 13572, 13573, 13610, 13617, 13624, 13632, 13640, 13644, 13647, 13540, 13567 and 13613 of 2020
Decided On : 03-09-2020
For the Appellant : K. Kannan
For the Respondent: M. Mohammed Riyaz, Additional Public Prosecutor
Headnote:
Criminal Procedure Code, 1973 - Section 438 - Indian Penal Code, 1908 - Sections 34 and 149 - He may be arrested on an accusation – Acts done by several person in furtherance of common intenstion - Mines and Minerals (Development and Regulation) Act, 1957 - Section 21 - Environment (Protection) Act, 1986 – Section 13 - Anticipatory Bail Appeal - Court while sitting in roster of Bail and Anticipatory Bail felt aghast with sudden surge of petitions filed seeking bail and anticipatory bail for offences relating to illegal quarrying/mining, theft and smuggling of sand and minerals - Amidst national lockdown declared and whole Country being under lockdown mode, there seems to be no lockdown for sand offenders - Surge of cases registered shows that business of illegal quarrying/mining, theft and smuggling of sand and minerals had happened rampantly in all Districts unabated without any control, resulting in grave damage and degradation to environment and also in depletion of natural resources - Whether accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence - Whether discretionary power under Section 438 of Cr.P.C. can be routinely exercised for cases of illegal quarrying/mining, theft and smuggling of sand and minerals - whether the extraction of sand causes environmental degradation, it was stated as follows - extraction of sand will cause environmental degradation such as - (a) will spoil normal gradient (slope) of river bed and thereby affect self-clearing velocity of river - (b) This will give chances to the accumulation of silt and dirts and affects water quality (c) Reduces ground water table during summer, and causes drinking water shortage.(d) Land slide on river banks - (e) Affects the water management structures, bridges, retaining walls etc - Despite offences being non-bail able and Court imposing stringent conditions, the police are not able to abate menace of illicit quarrying/mining, theft and smuggling of sand and minerals – Held, Court finds that discretionary power has been consciously and continuously misused by the offenders and the enforcers as well in an organised manner and Court is of firm opinion that the discretionary powers cannot be extended to persons indulging in illegal sand mining, smuggling and theft of sand and minerals - Every kind of judicial discretion, whatever may be nature of the matter regarding which it is required to be exercised, has to be used with due care and caution. Further anticipatory bails cannot be granted in cases of large magnitude affecting and impacting very large number of people - court is also saddened and feels that the routine exercise of discretionary power has allowed miscreants to indulge in illegal activities fully understanding the consequences and implications - Court finds that the sand and mineral offenders are unmindful of the fact that they are killing their mother nature and are continuing to indulge in illegal activities since there is hope for them, that they can get away by complying with stringent conditions imposed by courts while granting anticipatory bail/advance bail - petitions for anticipatory bails stand dismissed.
ORDER :
A.D. Jagadish Chandira, J.
(The cases have been heard through video conference)
"Preservation of the environment and keeping the ecological balance unaffected is a task which not only governments but also every citizen must undertake. It is a social obligation and let us remind every Indian Citizen that it is his fundamental duty as enshrined in Article 51-A(g) of the Constitution".-Ranganath Misra., J-in Rural Litigation and Entitlement Kendra v. State of U.P 1986 (supp) SCC 517, Para. 20.
1. Since the issues in the above criminal original petitions are one and the same (Mines & Mineral offences and for other IPC offences viz., illegal quarrying/mining, theft and smuggling of sand and minerals, all the criminal original petitions are taken up for final hearing and a common order is being passed.
2. This Court while sitting in the roster of Bail and Anticipatory Bail felt aghast with the sudden surge of petitions filed seeking bail and anticipatory bail for the offences relating to illegal quarrying/mining, theft and smuggling of sand and minerals. Amidst the national lockdown declared and the whole Country being under lockdown mode, there seems to be no lockdown for sand offenders. This Court took note that most of the industries and businesses in the country and especially the construction industry were under lockdown, whereas the illicit sand mining industry had worked overtime. The surge of cases registered shows that the business of illegal quarrying/mining, theft and smuggling of sand and minerals had happened rampantly in all Districts unabated without any control, resulting in grave damage and degradation to the environment and also in depletion of natural resources.
3. This Court asked itself a heart-searching question. In a society that has a well-established system of justice and law, should the courts restrict its role only to adjudication of issues and abdicate and shirk its responsibility and pass on the duty of controlling and preventing crime to the police and State authorities alone?
4. In previous occasions this court in the petitions for anticipatory bails in cases relating to illegal quarrying/mining, theft and smuggling of sand and minerals, had granted anticipatory bail by imposing stringent monetary and serious conditions directing payment of hefty amounts to The Honourable Chief Minister's Relief Fund, The District Mineral Trust Fund and to various other organisation involved in Social work with a fond hope that offences of illegal quarrying/mining, theft and smuggling of sand and minerals could be controlled by imposition of such conditions. But despite the imposition of stringent conditions, this Court can see that the offences of such nature have not come down and on the contrary, there seems to be a rising trend, in these cases, increasing day by day. Each day at least 10 to 15 cases are being listed seeking the relief of anticipatory bail in offences of illegal quarrying/mining, theft and smuggling of sand and minerals. Despite the offences being non-bailable and this Court imposing stringent conditions, the police are not able to abate the menace of illicit quarrying/mining, theft and smuggling of sand and minerals.
5. This court can see that due to the amount of money involved, the business of illegal quarrying/mining, theft and sand smuggling activities is increasing day by day and offenders are bold enough to involve in the offences with a fond belief that they will be able to get advance bail by accepting and undertaking to comply with any stringent conditions imposed by the courts. Orders of the courts are routinely taken more lightly and the industry is thriving by engaging men and materials on a large scale. Heavy and high-cost equipments and vehicles like excavators, earthmovers, JCB, Poclain, Hitachi are used to excavate and heavy lorries viz., Taurus and Tata Benz are being used in the illegal mining business flouting all rules which remain in paper only. It is also brought to the notice
