Judge's Bold Correction: Kerala HC Overrules Own Verdict on Sand Theft Charges

In a striking display of judicial self-reflection, the High Court of Kerala at Ernakulam has overturned its own prior ruling, declaring it per incuriam . Dr. Justice Kauser Edappagath, delivering a common order on March 9, 2026, in a batch of anticipatory bail applications (BA Nos. 14647/2025 and connected cases), held that illegal removal or transportation of government-owned river sand can attract theft charges under Sections 303(2) or 305(e) of the Bharatiya Nyaya Sanhita (BNS), 2023, in addition to violations under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Sand Act). This pivotal shift came while deciding pre-arrest bail pleas from multiple accused in Malappuram and Kozhikode districts, granting relief to six petitioners but denying it to three.

Sand lorries in the Spotlight: A Wave of Illegal Hauls

The cases stemmed from police seizures of lorries laden with river sand from Bharathapuzha and other rivers, without permits under the Sand Act. Petitioners like Vineesh (BA 14647/2025), Najad Mon. N (BA 14273/2025), and others—mostly lorry owners or escorts—faced charges under Sections 20 and 23 of the Sand Act (regulating sand removal and penalties), alongside non-bailable BNS theft provisions. Incidents unfolded between October 2025 and January 2026 across stations like Kuttipuram, Vazhakkad, and Mukkom. In some, drivers fled police signals; in others, vehicles were parked with sand nearby. Investigations neared completion in many, with vehicles already seized.

The core question: Does the Sand Act—a special environmental law—preclude general theft charges under BNS, making arrests unnecessary since Sand Act offences are bailable?

Defense: Sand Act Trumps All; Prosecution Barred

Petitioners' counsel argued that Sand Act Section 23 (banning unpermitted sand transport from kadavus or river points) exclusively governs, punishable under bailable Section 20. Invoking the special law over general penal provisions, they relied on Justice Edappagath's own 2021 order in Mohammed Noufal v. State of Kerala [2021 SCC OnLine Ker 5858], plus two later single-bench decisions ( Mohammed Salih , BA 7522/2024; Sirajudheen K.K. , BA 6548/2025), which barred IPC/BNS theft (equivalent to old Section 379 IPC) for river sand "theft."

Prosecution: Dual Charges Valid, No Bar Exists

Senior Public Prosecutors, led by Sri. M.C. Ashi and Sri. K.A. Noushad, countered that offences differ: Sand Act targets regulatory breaches for environmental protection, while BNS punishes dishonest removal of government property. They highlighted Sand Act Section 22, explicitly allowing prosecution under "any other law," and Section 26 of the General Clauses Act, permitting action under multiple statutes if ingredients vary—no double jeopardy for distinct offences. Supreme Court precedents like State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 (IPC alongside MMDR Act for illegal mining) and Kanwar Pal Singh v. State of Uttar Pradesh (2020) 14 SCC 331 were cited, emphasizing no implied exclusion of general laws.

Judicial U-Turn: Per Incuriam Label on Past Rulings

Justice Edappagath meticulously dissected the conflict. Noting the Sand Act's preamble focuses on regulation and ecology—not negating theft—he affirmed distinct ingredients: Sand Act contraventions versus BNS's "dishonest removal" from possession. Section 22 reinforces dual prosecution, as echoed in Kerala Division Bench's Sujith v. State of Kerala (2012 (2) KLT 547).

Crucially, the judge declared his Mohammed Noufal order (and followers) per incuriam —rendered ignoring Section 22, General Clauses Act Section 26, and binding SC rulings ( Sanjay , Sayyed Hassan Sayyed Subhan (2019) 18 SCC 145, Jayant v. State of Madhya Pradesh (2021) 2 SCC 670). "A decision is considered per incuriam if it is made in ignorance of a binding precedent or a relevant statutory provision that significantly affects the outcome," he wrote, invoking Joby v. District Collector (2017 (1) KLT 183).

In a poignant reflection: > "To persist with an error is not virtuous; correcting it is a duty of judicial integrity. The strength of a Judge lies not in the claim of infallibility, but in the courage to admit error and the humility to correct it when conscience and law reveal a truer course."

This self-correction, as highlighted in legal reports, underscores a judge's right to depart from erroneous prior views without Division Bench reference when key laws/precedents were overlooked.

Key Observations

"Section 22 [of Sand Act] specifically permits prosecution under any other law for any act or omission made punishable under the Act."

"The offences under the Sand Act and under Section 303(2)/305(e) of the BNS are not the same offence and the ingredients are totally different."

"The conclusion... is that the order in Mohammed Noufal (supra)... are per incuriam... and therefore need not be followed."

"A person can be prosecuted for illegal removal or transportation of river sand for the offence of theft under Section 303(2) or 305(e) of the BNS in addition to the offence under Section 23 r/w Section 20 of the Sand Act."

Mixed Bail Verdict: Relief with Strings Attached

Bail granted to six (e.g., Vineesh, lorry owners absent at seizures; investigations advanced, no antecedents): Rs.1 lakh bond, weekly reporting, no tampering, cooperation mandated. Dismissed three: Muhammed Hisham (BA 14502/2025, driver who fled, antecedents); Mohammed Thasneem and Mohamed Fazil (BA 14315/2025, 14311/2025)—serious allegations of endangering police, rash driving (BNS 132/110), early investigation stage.

This ruling fortifies crackdowns on sand mafia, blending environmental safeguards with theft deterrence. Future cases may see tougher non-bailable pursuits, balancing regulation with criminal liability— a clearer path for investigators amid Kerala's river protection drive.