The prosecution must prove the absence of permits for alleged violations under the Mines and Minerals Act; mere assertions without evidence are insufficient for conviction.

O R D E R

The Sub Inspector of Police, Punalur, who was examined as PW4, in C.C.No.116/2001 on the file of the Judicial Magistrate of the First Class-III, Punalur prosecuted the revision petitioner accusing offence under Section 4 read with 21(1) of the Mines and Minerals (Regulation and Development) Act, 1957 (hear-in-aftrer referred to as 'the Act'), with an allegation that at 8.30 A.M. on 13/10/2000 the revision petitioners were found transporting sand, collected from a ghat from where the sand collection was prohibited, in a lorry bearing Reg.No.KL-10- A/349 while PW4 moving on petrol duty along Kayamkulam - Punallur public road at Nellippalli.

2. Revision petitioners pleaded not guilty.

Therefore, they were sent for trial. On the side of the prosecution PWs 1 to 4 were examined. Exhibits P1 and P2 were marked. After closing the evidence for the prosecution, revision petitioners were questioned under Section 313(1)(b) of the Code of Criminal Procedure. They denied the incriminating evidence and further advanced a case that they were falsely implicated. However, no defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a finding of guilty. Consequently, they were convicted and sentenced to rigorous imprisonment for three months.

3. Aggrieved by the above conviction and sentence, the revision petitioner preferred Crl.A.227/2003 before the Sessions Judge, Kollam, who, by the impugned judgment dated 5/1/2006, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.

4. I have heard Adv. Sri. B. Gopakumar, the learned counsel appearing for the revision petitioners and Smt. Sareena George, the learned Government Pleader. Perused the judgments of the courts below as well as the evidence on record.

5. By the allegations in the final report the only offending act is collection/mining of sand from a prohibited ghat. It is crucial to note that the name of the ghat is also not mentioned. There is no whisper in the final report that the sand was transported without any pass or permit. For a correct appraisal, a reading of the final report would be relevant. Report reads as follows:

“dÉÄßµZ ¥ÎßÄÞÆÞÏJßÈÞÏßGáU ©çgÖçJ޿ᢠµøáÄçÜ޿ᢠµâ¿ß ØVAÞV ÈßçøÞÇßAæMG µ¿ÕßW ÈßKᢠÎÃW ÕÞøß µ¿JáKÄßçÜAí 13.10.2000 øÞÕßæÜ 8.30 ÎÃßçÏÞ¿áµâ¿ß dÉÄßµZ KL 10/A349_ Þ¢ ÈOV çÜÞùßÏßW ÉáÈÜïâV ÕßçÜï¼ßW æÈÜïßMUß ®K ØíÅÜJí KIP çµbÞçGÝíØßÈí ¥WÉ¢ É¿ßEÞùí ÎÞùß µÏ¢µá{¢ ÉáÈÜïâV çùÁßW Õºîí µßÝAáÈßKᢠɿßEÞçùÞGí ¥ÈÇßµcÄÎÞÏß ÎÃW ÕÞøß Èßùºîí ÕßWÉÈAÏß µÏxßæAÞIí çÉÞµáKÄÞÏß 6_Þ¢ ØfßÎáÄWçÉøÞW µÞÃæMGí dÉÄßµZ çÎW ÕµáMí dɵÞøÎáU µáx¢ æºÏñßøßAáKá ®KáUÄí ”

There is no whisper in the final report that the revision petitioners had no valid pass or permit for transporting the sand. But in the Box, PW4 would depose that the revision petitioners had no valid permit or pass for transporting the sand. Going by the evidence of PW4, I find that the evidence of PW4 cannot be taken in its face value because, he, who is the detecting and investigating officer, had not made any investigation with the licensing or permit issuing authority as to whether any licence was issued in respect of the above lorry for transporting the sand and there is no such allegation in the final report. In a summons case, an accused is not answerable to the evidence regarding any offence unless there is no such allegation in the final report/complaint, the particulars of which were read over and explained. In a warrant case, the accused is not answerable to any evidence if there is no allegation in the charge.

6. PW1, the Village Officer, Punaloor was examined to bring on record that the sand was collected from a ghat from where the mining was prohibited by the District Collector. As mentioned above, the name of the ghat is not mentioned in the final report. The case of the prosecution, as it appears from evidence, is that the sand t