Due To Undesirable Human Interference With Forces Of Nature The Calamities Have Turned Into Harsh Realities: P&H HC Calls For Report On Illegal Sand Mining [Read Order]

A single bench of Justice Arun Kumar Tyagi also sought a report from the state within three months regarding the requisite steps taken to curb illegal sand mining in the state.

The background of the case

On 26.05.2020 a police team was present for patrolling duty at village Saidpur. Secret information was received about illegal mining of sand from the bed of river Satluj in the area of Shamashpur. Written information was sent to S.H.O. Police Station Rahon, S.B.S. Nagar based on which the above-said FIR was registered.

Information was also given to the Mining Officer, authorized by the Punjab Government to initiate legal action under Section 22 of the MMDR Act against the persons indulging in illegal mining who joined the police party at the time of the raid. Raid was accordingly conducted.

During the raid, 29 Tippers (out of which 8 Tippers were filled with sand), 2 Poclain machines, one tractor trolley and one motorcycle were seized on the spot. On seeing the police party, the owners/drivers of the above-said vehicles fled from the spot.

On receipt of information regarding the presence of two drivers and parking of two Canters filled with sand near Mehfil One Dhaba, Sheikhan Majara, the police arrested Harjit Singh @ Jeeta and Manmohan Singh and also seized two canters and arrested their drivers.

Harjit Singh @ Jeeta and Manmohan Singh disclosed names of the petitioners as being the drivers/owners respectively of the vehicles. Out of 55 accused nominated in the case, 33 have been arrested.

Arguments before the court

It was submitted by the counsel of the petitioner that in the presence of the MMDR Act which is a special enactment, no offence under Section 379 of the IPC is made out.

It was also submitted that an offence under Section 21 of the MMDR Act is also not made out. Even otherwise Cognizance thereof cannot be taken by the Court except on the written complaint of the person authorized by the Central/State Government as provided by Section 22 (Cognizance of offences) of the MMDR Act.

It was further argued that the police could not register FIR and cannot investigate the case and the FIR and subsequent proceedings are wholly illegal. The petitioners have joined the investigation. Nothing is to be recovered from them and their custodial interrogation is not required. Therefore, the petitioners may be ordered to be released on anticipatory bail.

To this, after going through the relevant provisions, the court concluded that the offence punishable under Section 21 (1) read with Section 4 (1) of the MMDR Act is cognizable under Section 21 (6) of the MMDR Act and the police could register FIR and investigate the case in accordance with the provisions of the Cr.P.C.

The court further noted that Section 22 of the MMDR Act mandates that no court shall take cognizance of any offence punishable under the MMDR Act, or any rules made thereunder except upon a complaint in writing made by a person authorized in this behalf by the Central Government or of the State Government but the question of the making of such complaint will arise only at the time of taking of cognizance by the Court and Section 22 of the MMDR Act does not bar registration of FIR and investigation of the case by the police.

The court also referred to the judgment delivered by the Supreme Court in the case of State of NCT of Delhi Vs. Sanjay: 2014(4) RCR (Criminal) 211, wherein it was held that Section 22 of the MMDR Act is not a complete and absolute bar for taking of the action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed and that the ingredients constituting an offence under Section 21(1) of the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds which is the property of the State, without its consent constituting theft under Section 378 punishable under Section 379 of the IPC are different and on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the offence of theft punishable under Section 379 of the IPC without awaiting the receipt of a complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMRD Act.

Thus, the court held that the challenge to the legality of the action of the police in the registration of FIR and investigation of the case was devoid of any merit.

The observation of the Court

Most importantly, the court remarked that,

"Due to undesirable human interference with forces of nature, the calamities, which were a few years back considered to be un-scientific fiction or remote possibilities have turned into harsh realities and become nightmares in many parts of the world endangering human life and even posing a threat to the very existence of mankind if remedial measures are not taken. Sustainable development with ecological balance is the only permissible way of life. There is an urgent need for creating widespread awareness and generating public commitment and support for the cause."

The court noted that the affidavit filed by the Director, Department of Mines and Geology, Punjab Chandigarh shows that several effective steps have been/are being taken by the Government/department for checking illegal mining in the State.

However, as the court observed, the economic offence of illegal mining, which thrives on unlawful enrichment can be prevented only with public cooperation, participation, commitment and support by not purchasing such other connected matters sand/minor minerals from illegal miners/unauthorized source and effective ground-level implementation of the steps taken by the Government/department.

In this context, the court suggested,

"It will be appropriate that a provision be also made for the making of complaints by the members of Public with photographs of the sites of illegal mining and the vehicles illegally transporting minerals on the portal of the Department and prompt action be taken on such complaints by concerned Police/Mining Officers in accordance with the law and in the case of gross neglect, unreasonable delay or culpable misconduct on the part of the Mining Officers or Police Officers in the filing of complaints, registration of FIRs and investigation of the cases, action for their prosecution in appropriate cases be also taken in accordance with the law, besides initiation of disciplinary proceedings against them. Appropriate instructions be also issued in this regard."

On the question of granting anticipatory bail to the applicants, the court noted,

"Illegal mining/theft of sand from river beds not only involves loss of public exchequer but also endangers the ecological balance resulting in inundating floods causing huge loss of lives and property and other devastating consequences."

Therefore, as the court observed, the persons involved have to be sternly dealt with and effective steps have also to be taken to deny the fruits of crime to them. Therefore, the courts cannot be liberal in the matter of grant of bail to persons allegedly involved in offence of illegal mining/theft of sand.

Given the above discussion, all the present petitions for grant of anticipatory bail to the petitioners were dismissed by the court and interim anticipatory bail orders were vacated.

Case Details:

Case Title: Balwinder Singh and 16 others v. State Of Punjab

Case No.: CRM-M-14956-2020 and other connected matters

Quorum: Justice Arun Kumar Tyagi

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