JUDGMENT 1. These two Rules are directed against the orders passed by the learned Sessions Judge of Hooghly whereby he has upheld the conviction and sentence imposed upon the petitioners by Sri M. M. Sinha Roy, Magistrate, First Class, Chandannagar, under Rule 25 of the West Bengal Minor Minerals Rules, 1959. The petitioners have been sentence to pay a fine of Rs. 200/- each, in default, to suffer simple imprisonment for three weeks. The prosecution story in both the cases are common. It was alleged that the accused petitioners along with others commenced extracting sand from C. S. Plot No. 301 of mouza Bagbari (Crl. Revn. 731/1961) and C. S. Plot No. 987 of mouza Baliagari (Crl. Revn. 730 of 1961), P. S. : Tarakeswar, without any licence or lease from the Government. The defence inter alia was that the petitioners were not guilty. It was alleged that the last recorded tenant dandiswami Hrishikesh Asram had leased out the lands in dispute to Sri bholanath Dutt, who in his turn leased them out to Jagin Bar for digging a tank. The petitioners were labour contractors and had merely supplied labourers for digging out the tank under orders of Jagin Bar and, as such they were not liable to be indicted for removal of sand as alleged. The co-accused Jamini and Toostu are the sons of the recorded tenant and they are in possession thereof upon payment of rent. The tank in dispute was being dug out for reclamation and the petitioners' contention further was that they were neither tenants of the land in dispute, nor the owners. They have also denied the allegations that they appropriated the sand extracted. Upon consideration of the evidence, the learned Magistrate convicted the petitioners in terms set forth above. 2. The principal question mooted by Mr. Talukdar on behalf of the petitioners is that the offence as contemplated under Rule 25 of the West Bengal Mines and Minerals Rules is not applicable to the present case. His reasons are that this Rule was not framed in respect of the land owned by private owners and that in any event there being no non-conformance to Rule 26, the petitioners ought to have been found not guilty of the charge brought against them. His reasons are that this Rule was not framed in respect of the land owned by private owners and that in any event there being no non-conformance to Rule 26, the petitioners ought to have been found not guilty of the charge brought against them. It runs as follows : any person extracting any minor minerals without a proper lease or licence granted under these rules or in contravention of the provisions of the rule 26 shall be punishable with imprisonment for a term which may extend to three months. . . . etc. " The learned Sessions Judge has interpreted this Rule to mean that it prohibits extraction of any Minor minerals without a proper lease or licence excepting by the owner and for his own purpose or use. The Rule 25, however does not make any provision for user of the Minor Minerals by a private owner but Rule 26 does. It is not disputed by Mr. Talukdar that the sand which is said to have been extracted by the digging of the land was a minor Mineral within the ambit of section 3 (e) of the Mines and Minerals (Regulations and Development) Act, 1957. 3. In view of the submissions made by Mr. Talukdar it has to be seen whether the penal provision made in Rule 25 applies to any person said to be the owner of a land, extracting any Minor Mineral without a proper lease or licence granted under this Rule. Mr. Talukdar contends that the expression "minor Minerals" as referred to in this Rule applies only to lands owned by the State, as the rules framed by the State Government namely, Rules 1 to 24 nowhere contemplates that a lease for Minor Minerals can be granted by the State in respect of lands owned by private persons. 4. Mr. Chatterjee appearing on behalf of the State has referred me to section 5 of the West Bengal Estates acquisition Act, 1953, which provides that upon due publication of a notification under section 4, on and from the date of vesting rights in sub-soil, including rights in mines and minerals shall vest in the State Government. On a reference to the Rules 1 to 24, it appears that they relate to leases in respect of State owned lands after the vesting of lands in the State by virtue of the provision of the Estates Acquisition Act. On a reference to the Rules 1 to 24, it appears that they relate to leases in respect of State owned lands after the vesting of lands in the State by virtue of the provision of the Estates Acquisition Act. The model form of Mining Lease for Minor Minerals as stated in the appendix B clearly shows that it contemplates granting of lease by and on behalf of the government in respect of the lands owned by the State. In the model application form as appended to Appendix A, it will appear from clause 8 that the following details should also be incorporated : (1) District ; (2) Revenue Thana ; (3) Village/mouza ; (4) J. L. Number ; (5) Plot Number; (6) Total Number. From this it may appear that lease in respect of private lands is also contemplated but if that was so the position would have been anomalous as without any right to upper soil, the grant of the lease in respect of the subsoil becomes an impossibility and this will clearly appear from Rule 17 which lays down the condition of the lease. Sub-rule (iv), provides that the lessee shall also pay for the surface area used by him for the purpose of the mine, surface rent at such rate and cesses assessable on the land, as may be specified by the State Government in the lease. Having regard to this provision, Mr. Chatterji appearing on behalf of the State argues that the Rules as framed by the state Government may operate in respect of mineral lands owned only by the State-both surface and underground. Accordingly, it appears to me that Rule 25 contemplates that any person who extracts any minor mineral without a lease or licence granted under the rules in respect of the State-owned lands, is punishable. Therefore, the next question for consideration will be whether the prosecution has been able to show that the lands belonged to the State for which the offence has been committed. The prosecution witnesses have themselves said that the land which is very small in area namely 2 cattahs was originally in possession of the Mohunt of tarakeswar and, thereafter, that was leased out to one Bholanath Dutta who, in his turn, asked one Jogin Bar to extract some sand from the plot in question without a lease from Bholanath Dutta. The prosecution witnesses have themselves said that the land which is very small in area namely 2 cattahs was originally in possession of the Mohunt of tarakeswar and, thereafter, that was leased out to one Bholanath Dutta who, in his turn, asked one Jogin Bar to extract some sand from the plot in question without a lease from Bholanath Dutta. It is not also disputed that the present petitioners were the labour contractors who were supervising the digging of the sands from the lands in dispute, and as such, it can at best be said that they were servants employed by the sub-lessee of the land for the said purpose. In the circumstances, it may conclusively be found that the lands in dispute are privately owned and the petitioners are merely the servants or agents of the actual owner engaged for the purpose of digging the same. 5. Now question would arise whether the private owners can also be penalised for digging up minor minerals by virtue of any of the provisions of the rules. Rule 26 clearly exempts some nature of excavation outside the ambit of licence or a lease. It runs as follows: - "no lease or licence will be required to be taken by a person who extracts any minor mineral from his own land either for use in any cottage industry owned by him viz. pottery clay modelling etc. or any other industry specified in a notification issued by the State Government or for his personal use for any other purpose provided that such extraction shall be subject to such conditions which the State Government may imposed by a general or special order. " 6. This Rule envisages some restrictive user on minor minerals by the owners of the soil and on proper interpretation of this Rule it will appear that Rule 25 which provides in the first instance : "any person extracting any minor mineral without a proper lease or licence" refers only to State-owned land and the disjunctive clause on the contravention of the provision of rule 26 refers to private owners of the land. I have already said that rule 26 envisages extraction of minor minerals by private owners subject to condition imposed by the State Government. I have already said that rule 26 envisages extraction of minor minerals by private owners subject to condition imposed by the State Government. There is no evidence on the side of the persecution in these cases, whether the sand extracted was being used for the purpose of trade or for gain by the private owners and it may also be presumed that the owner might have been raising these sands for any other purposes as contemplated in Rule 26. There is, however, some evidence in the record that this sand was sold, but as there is no finding by any of the courts below that the sand as extracted comes within the mischief of the Rule 25 as interpreted before, I am of opinion that conviction under this Rule was not justified. The petitioners cannot be said to be guilty under this Rule as the learned Advocate for the State has not been able to show that they are guilty of breach of any condition imposed by the State Government under Rule 26. The question is whether the State Government have passed any order, general or special in terms of the said provision, imposing conditions upon the private owners regarding extraction of minor minerals. An affidavit has been sworn on the side of the petitioners to the effect that no such order has been framed. No counter-affidavit has been filed by the State nor Mr. Chatterji has satisfied me that any such order under rule 26 has been passed. Accordingly, my conclusion is that so long as no specific orders, general or special are passed imposing the conditions as contemplated by Rule 26, the petitioners cannot be held to be guilty for breach thereof under Rule 25. It appears that the learned Sessions Judge referred only to Rule 25 and without consideration as to the implications of rule 26, upheld the conviction and sentence passed by the learned Magistrate. 7. Regard being had to the findings made by me above, I am of opinion that the present petitioners cannot be punished under Rule 25 of the West Bengal Minor Minerals Rules, 1959 with the result that the judgment of both the courts below must be set aside. Accordingly, these two rules are made absolute and the conviction and sentence of each of the petitioners are hereby set aside, and they are acquitted. 8. Fines if already paid shall be refunded.