Kerala High Court Judge Calls Own Judgment 'Per Incuriam'; Says Illegal Sand Mining Attracts Both Sand Act Offences And Theft Under BNS

Dr. Justice Kauser Edappagath remarked that his earlier decision in Mohammed Noufal v. State of Kerala was rendered without noticing the relevant provisions under the Sand Act and the General Clauses Act as well as the precedents rendered by the Apex Court and the Division Bench of the High Court.

“relevant provisions (Section 22 of the Sand Act and Section 26 of the General Clauses Act) and the binding precedent of the Supreme Court and of this Court on the point…were neither noticed nor considered by this Court, which permits this Court to differ from its earlier view…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. Therefore, when a Single Judge renders a judgment without recognising a binding precedent and relevant statutory provisions, the same Judge is justified in subsequently differing from that earlier view. For these reasons, I am persuaded by my judicial conscience to differ from my earlier view in Mohammed Noufal,” the Court remarked.

The Court was considering a batch of pre-arrest bail applications of persons who were accused of the offence of illegal removal or transportation of sand. A question was raised whether the offence under Sections 303(2) or 305(e) of the BNS can be invoked for illegal removal or transportation of river sand when the same act is charged under Sections 20 and 23 of the Sand Act.

The petitioners placed reliance on the afore Mohammed Noufal v. State of Kerala and two subsequent Single Bench decisions that relied upon the same to argue that resort cannot be taken to a general statute, i.e., the BNS when there is a special statute dealing with a special subject.

The prosecution that the three decisions are per incuriam since these were rendered without noticing the relevant statutory provisions and binding precedents. It was also contended that the offence under the Sand Act is different from the offence of theft under BNS and hence, initiation of prosecution for the BNS in addition to that under the Sand Act is not barred.

The prosecutor further pointed out that Section 22 of the Sand Act itself permit prosecution under any other law for any act or omission punishable under it.

The Court looked into various decisions of the Supreme Court wherein it was held that prosecution for the offences under the special statute and the penal code can be done simultaneously and it was also observed that prosecution under two Acts is permissible if the ingredients of the provisions are satisfied on the same facts.

Coming to the offences alleged in the present case, the Court noted that that under the Sand Act and the BNS are not the same. It remarked:

“A cursory comparison of Section 23 r/w Section 20 of the Sand Act with Section 303(2)/305(e) of the BNS also would show that they are not the same offence and the ingredients are totally different. Section 23 of the Sand Act puts a restriction in removing sand from any Kadavu or transporting sand therefrom without complying with the provisions of the Sand Act or the Rules made thereunder. Section 20 of the Sand Act is a penal provision according to which whoever contravenes any of the provisions of the Sand Act or Rules made thereunder shall be punished with imprisonment for a term or with fine. The contravention of Section 23 of the Sand Act or Rules made thereunder constitutes an offence punishable under Section 20 of the Sand Act, whereas dishonestly removing sand from the river, which is the property of the Government or local authority, out of their possession, without the consent constitute an offence of theft under Section 303(2) or 305(e) of the BNS.”

Thus, the Court held that a person can be simultaneously prosecuted under the Sand Act and the BNS for illegally removing or transporting river sand.

Considering each of the bail applications, the Court felt it appropriate to allow six of them and to dismiss three of them. It denied bail to the applicants, who had criminal antecedents, and where prima facie it was showed that there was premeditated acts on their part.

Case Nos: BA No.14647/2025 and connected cases

Case Title: Vineesh v. State of Kerala and Ors.

Citation: 2026 LiveLaw (Ker) 154

Counsel for the petitioners: M. Devesh, M. Anuroop, Murshid Ali M., Jyothis Mary, S.K. Sreelakshmy, P. Samsudin, Jasneed Jamal, Lira A.B., Devika E.D., Sadiqali M., Najiya Nazrin P.N., Sandranad C. S., Amisha Rajesh V., Mohamed Shafi M., Neeraj Krishna Kumar, Hasna Jabil, Navaneeth N. Nath, Abhirami S., Abdul Latheef P.M., P.M. Ziraj, Irfan Ziraj, Jamsheed Hafiz, T.S.Sreekutty, Fathima Nasreen S.

Counsel for the respondents: K.A. Noushad – Senior Public Prosecutor, M.C. Ashi – Senior Public Prosecutor

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