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2002 DIGILAW 417 (KER)

State of Kerala v. P. V. Rajappan

2002-07-02

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, J. The State has come up in appeal challenging the acquittal granted in favour of the respondent herein with regard to the offence under Rule 58 of the Kerala Minor Mineral Concession Rules, 1967. 2. PW1, who was the Geologist in the Kerala Mineral Squad, filed the complaint before the Judicial First Class Magistrate’s Court-I, Kottayam, alleging that on an inspection made at Kumarakom on 11.3.1998 he found 60 metric tones of limeshell stocked on the western side of Kumarakom – Kavanattinkara road and that he ascertained from the owner of the land mentioned in Ext.P4 certificate that the limeshell was stocked by the accused. In reply to Ext.P5 memo issued to the accused requiring production of dealer’s licnece and other records authorizing possession of the said limeshell, the accused produced Ext.10 license, stock register and vouchers; but on perusal of Ext. P7 series and P8 series vouchers the complainant was convinced that 776 metric tones of limeshell was actually purchased from unauthorized sources. The complainant also noted from Ext. P11 certified issued by the Sales Tax authorities that the accused had sold worth Rs.3,29,030.60 in the year 1987 – 88. Further, though under the license the accused was supposed to stock limeshell in sy.No. 98/10/C of Kumarakom village, the stock of 60 metric tones of lime shell seized in the case was actually found in sy.no. 122/2. In view of the violation he prepared Ext.P9 mahazar and seized the 60 metric tonnes of lime shell. 3. DW1 was examined to show that the land in which the accused was allowed under the license to stock lime shell was not accessible to lorries and that was the circumstances under which the lime shell was stocked at the spot mentioned by PW1. 4. The accused took the stand that PW1 was incompetent to initiate prosecution of the present nature. It was also contended that the action of seizure of the lime shell was illegal and that only royalty could have been realised. It was accepting the defence contentions and also that the stock yard mentioned in the license was inaccessible for lorries that the trial court justified the action of the accused and granted the benefit of acquittal to the accused. 5. It was accepting the defence contentions and also that the stock yard mentioned in the license was inaccessible for lorries that the trial court justified the action of the accused and granted the benefit of acquittal to the accused. 5. The learned Public Prosecutor submitted that independent of the powers to realise royalty amount the department had the right and duty to prosecute those who commit violation of the Rules and conditions of license and that in that perspective the prosecution is maintainable. According to him, Exts. P1 to P3 provide adequate power to PW1 to initiate a prosecution of the present nature. 6. In view of the above arguments the following questions arise for consideration: 1. Whether a prosecution under Rule 58 can be sustained for violation of the terms of the license? 2. Whether PW1 is an officer competent to initiate a prosecution of the present nature? 3. Whether the respondent has committed the offence under Rule 58 of the Kerala Minor Mineral Concession Rules for conviction/sentence? And 4. Reliefs. 7. Point No.1:- For deciding the point in controversy a reference is necessary to the relevant provisions of the Kerala Minor Concession Rules. Rule 48C, F, G, I, L, N, & O read as follows: R. 48C: Form and particulars of licence:- On receipt of an application for the grant of a dealer’s license or for its renewal the competent authority after making such enquiry as it thinks fit may grant or renew a license in form ‘L’ or refuse to grant a license. 2. Every license issued under sub-rule (1) shall be subject to such conditions and restrictions as may be specified therein and to the provisions of the Act and the Rules. 3. Every licence issued under sub-rule (1) shall show herein the name of minor mineral and its varieties authorized to be sold or to be offered for sale by the dealer and the particulars of the premises where the minor minerals are stocked for sale. 3. Every licence issued under sub-rule (1) shall show herein the name of minor mineral and its varieties authorized to be sold or to be offered for sale by the dealer and the particulars of the premises where the minor minerals are stocked for sale. 48F:- Maintenance of Records and production of the same for inspection:- A dealer shall maintain in Form ‘M’ a record of all purchases and sale effected by him of each minor mineral showing he particulars of the sources and quantity of purchase and of the persons to whom sold and a stock register in Form ‘N’ and such other records, if any, as the competent authority may specify and such records shall be open to inspection by the competent authority or of any other person authorized in this behalf by the competent authority. 48G: Furnishing of a statement of accounts by a dealer:- Every dealer shall within seven days of the close of each month submit to the competent authority a return in Form ‘O’ of the total purchase and sale effected by him during the month. Separate statement of accounts shall be furnished for each minor mineral if the dealer is having licenses for more than one minor mineral. 48I: Cancellation of a license :- If a dealer fails to comply with any of the conditions of the license or any of the provisions of the Act, Rule or orders in this regard, the competent authority may by an order in writing rescind the license issued under these Rules.” 48L: Checking of unauthorized dealing in minor mineral: Any person who possesses any minor mineral for consumption or for sale or consumed or sold any minor mineral shall if so required produce sufficient proof to the competent authority or to any other person authorized in this behalf by the competent authority or the Government, to the effect that the minor mineral had been purchased from any duly authorized producer or dealer as the case may be. If he fails to produce sufficient proof to that effect the competent authority or such authorized person may recover the minor mineral or where such mineral has already been disposed of or consumed, the price thereof and also recover from the person the royalty or tax and fine, if any imposed. If he fails to produce sufficient proof to that effect the competent authority or such authorized person may recover the minor mineral or where such mineral has already been disposed of or consumed, the price thereof and also recover from the person the royalty or tax and fine, if any imposed. 48N: Inspection and verification of stock held by (Quarrying Permits, Quarrying Lease and Dealer’s license holders) the producers and dealers. - The holders of quarrying permit, quarrying lease and dealer’s licence shall allow any police officer not below the rank of sub Inspector, the competent authority, or any other person authorized by the competent authority, or any other person authorized by the competent authority or the Government in this behalf, to enter with or without notice any premises where minor minerals are stocked and to inspect, check and verify the stock of them. 48 O:- Checking of accounts of the producer and dealer: The producer/dealer shall afford all facilities for the checking of his accounts and verify the stock of minor minerals and shall furnish fully and correctly any information in his possession, as may be required for the purpose of the Act and Rules.” These rules come under Chapter VII A relating to Stocking and selling of minor minerals. Rule 58 actually comes under Chapter IX under the head Miscellaneous. Rule 58 (1) reads as follows: “R. 58(1): Whoever contravenes any provision of these rules shall be punishable with imprisonment for a term which may extend to one year, or with a fine which may extend to five thousand rupees or with both and in the case of continuing contravention, with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.” The contention of the respondent is that Rule 58 is applicable only to contravention of any of the provisions in Chapter IX and that it will have no application to a case of violation of the provisions in Chapter VII A. I find it difficult to accept the said contention. As is clear from a plain reading of Rule 58(1), violation of any of the rules contained in the Kerala Minor Minerals Concession Rules shall invite the consequence of punishment mentioned therein. As is clear from a plain reading of Rule 58(1), violation of any of the rules contained in the Kerala Minor Minerals Concession Rules shall invite the consequence of punishment mentioned therein. If it were the intention of the government to confine the prosecution contemplated in Rule 58 to violation of the rules in Chapter IX viz.,. Rules 54 to 57, the wording in Rule 58 would have been different and instead of stating that ‘whoever contravenes any provision of these rules’ it would have been provided that only contravention of provisions of Chapter IX would be punishable thereunder. The reference to words ‘these rules’ contained in Rule 58 obviously is to the Kerala Minor Mineral Concession Rules as a whole as mentioned in Rule 1 Chapter I of the Rules. 8. It is true that for the violation of the terms of license, cancellation of the license is permissible under Rule 48(i); but the contention that that is the only consequence of violation of the Rules, however, does not appeal to me. What is apparent from a plain reading of Chapter VII A and Chapter IX is that while Rule 48(1) takes care of penalty that could be imposed at the level of the department, Rule 58 takes care of the prosecution which is a matter to be taken up with courts. It is not unusual in such statutes to have provisions allowing prosecution through court in addition to punishment that could be imposed by departmental authorities by way of penalty, cancellation of license; by way of composition or otherwise. Merely because the is a power given to the officers to cancel license or to compound and realise royalty, it cannot therefore be said that the prosecution before the court of law for the same offence is a taboo. Ofcourse, both the court the powers cannot be invoked for one and the same violation simultaneously. Apart from that, there does not appear to be any inhibition in the prosecution under Rule 58 if there is contravention of any of the Rules including those contained in Chapter VII A. May be, there is a difference if the violation is not in respect of any Rule, but only of the conditions of license. But that is not the position here in so far as Rule 48L is allegedly violated. But that is not the position here in so far as Rule 48L is allegedly violated. It is a matter of discretion then for the competent officials to choose the forum. This is not to say that the officers can initiate prosecution indiscriminately ignoring their power under Rule 48I. Where ever circumstances so require and the violations actually attract only invocation of the power under Rule 48I, the officer would certainly be expected to invoke such power instead of rushing to the court with complaint under Rule 58. This is a judicial discretion to be exercised by the officers themselves. All that can be stated is that the court cannot throw out a complaint as done by the trial court herein on the ground that there was adequate power available to PWs. 1 and 2 to proceed under Rule 48I and that a prosecution would not hence be maintainable. 9. A perusal of the impugned judgment shows that the trial court was persuaded by the decision in Kalyanam Tile Co. v. State of Kerala (1988 (1) KLT 153). The said decision, actually was not in force as it had been set aside in appeal by a Bench of this court in W.A. No.434 of 1988 on 18-12-1990. The basis of the impugned judgment is thus lost. 10. Point No.2: Lime, admittedly, is a minor mineral. Ext.P1 notification empowered different officers of the Mining and Geology Department to prefer complaints in courts in respect of office punishable under the Act and the Rules. It is not mentioned in the notification that the authorization is only in respect of major minerals. The contention of the accused based on want of jurisdiction on the part of PW1 is built upon the edifice that the explanatory note to Ext.P1 Government Notification contains the following: “Further in G.O. (Rt) 708/84/ID dt. 14.8.1984, Government sanctioned the formation of the Kerala Mineral squad for prevention of unauthorized mining/transportation of major minerals in different parts of the State. Consequent on the formation of Squad with jurisdiction over the entire State, it became necessary to extend the authority to prefer complaints in writing in Courts in respect of any offence punishable under the relevant provisions in the Mines and Minerals (Regulation and Development) Act, 1975 and the rules made thereunder to the Geologist attached to the Squad also. Hence the notification.” (emphasis supplied). 11. Hence the notification.” (emphasis supplied). 11. The ingenious argument of the learned counsel for the respondent is that since the formation of the squad was especially for prevention of unauthorized mining/transportation of ‘major minerals’ in different parts of the State, the notification has to be deemed to invest power with regard to officers of category 11 in Ext.P11, viz. ‘Geologists and Asst. Geologists attached to the Kerala Mineral Squad with Headquarters at Trivandrum’, as to be confined to prosecution in respect of violation regarding major minerals. 12. It is true that the squad was formed for the above purpose. But that does not mean that the investiture of the power was confined to prosecution in respect of major minerals. Had the intention behind Ext.P1 been to limit competence of the Squad to ‘major minerals’, there was nothing which prevented the Government from specifying in the body of the notification that as regards the officers coming under category 11, who have been given State-wide jurisdiction to initiate prosecution, the power would be confined to major minerals. It is very pertinent that the body of the notification does not specifically refer to major minerals or minor minerals. On the other hand, the authorization is to prefer complaints in courts in respect of ‘any offence punishable under the Act or the Rules’. To me, it appears that non-mention in the body of the notification, limiting powers of officers of Category 11 to major minerals is purposeful. Out of the 11 categories of officers mentioned in Ext.P1 notification dated 13.12.1984, the jurisdiction of officers under categories 2 to 10 are confined to definite areas. It is only the Director of Mining and Geology falling under Category 1 and the Geologists and Asst. Geologists of the Kerala Mineral Squad mentioned in Item 11, who are invested with State-wide jurisdiction. 13. It is possible that officers of these categories who are expected to make inspection throughout the State, with the objective of detecting violation in respect of major minerals may notice violation of both categories viz. minor minerals and major minerals. When such officers notice violation with regard to minor minerals, they cannot be expected to shut their eyes and direct other officials to initiate necessary steps with regard to such violations. minor minerals and major minerals. When such officers notice violation with regard to minor minerals, they cannot be expected to shut their eyes and direct other officials to initiate necessary steps with regard to such violations. Irrespective of whether the violation occurred in respect of major mineral or minor minerals, the officers should immediately act as expected of them and that appears to be the purpose why the body of the notification does no specifically limit its operation to major minerals, notwithstanding the fact that the formation of the squad with Headquarters at Trivandrum was made for prevention of unauthorized mining/transportation of major minerals in different parts of the State. Ext.P3 shows that PW1 is one of the members of the Squad mentioned in clause 11 of Ext.P1 notification. In the circumstances it cannot be said that PW1 was incompetent to initiate the present prosecution. 14. Point No.3:- Ext. P10 is the license obtained by the respondent herein. It enables him to sell, stock and exhibit for sale, 500 tonnes of lime shell in 12.5 cents in Sy.No. 98/10/C of Kumarakom Village for the financial year 1986 – 87 and 1987 – 88. The inspection made by PW1 was admittedly on 12-3-1988, which was within the period of the said license. Conditions 2 and 3 of Ext.P10 licence read as follows: “2. The dealer shall comply with the provisions of the Mines and Minerals (Regulation & Development) Act, 1957 and the Kerala Minor Mineral Concession Rules, 1967 and all orders issued by the competent authority in this regard. 3. The dealer shall afford all facilities for checking his accounts and verifying the stock of minor mineral(s) and shall furnish fully and correctly any information in his possession as may be required by the competent authority or any person authorized by the competent authority in that behalf.” The respondent, by virtue of these conditions, was bound to furnish full and correct details as required by PW1 during his inspection to the premises on 12.3.1988 and also duty bound to comply with the provisions of the Mineral (Regulation and Development) Act, 1957 and the Kerala Minor Mineral Concession Rules, 1967. 15. Pursuant to Ext.P5 memo issued by PW1 the accused allegedly made available Form M register showing the purchases and sale of minor minerals and 222 vouchers as stated in Ext.P6. 15. Pursuant to Ext.P5 memo issued by PW1 the accused allegedly made available Form M register showing the purchases and sale of minor minerals and 222 vouchers as stated in Ext.P6. Ext.P9 mahazar proved by PW1 shows that he had traced the ownership of 60 metric tonnes lime shell found stocked on the western side of Kumarakom Kavanattinkara road to the respondent herein. Ext.P4 certificate issued by the Tahsildar made it clear that the place where the 60 metric tones of lime mentioned in the mahazar was found was well within Sy.No. 122/2 of Kumarakom Village and not in Sy.No. 98/10/C which is the survey number mentioned in Ext.P10 license. According to Ext.P4, the former property belongs to a Co-operative Society. Obviously, there has been a violation of the said requirement of the licence. Whether that violation was trivial; whether it comes within the purview of Rule 58 and whether the complaint covers this violation etc. is another matter. 16. Ext.P7 series and P8 series were the vouchers made available by the respondent evidencing purchase of lime shell. They revealed purchase of 1792 metric tones of lime shell in the year 1987 – 88. Out of the above, 262 metric tones of lime shell were purchased from Co-operative Societies and 754 metric tones was purchased from other sources for which he was directed to pay royalty. Thus there was a reminder of 776 metric tones of lime shell admittedly purchased by the respondent from unauthorized sources. Whether violation of Rules attracting Rule 58(1) is involved therein is a matter which has to be decided based on the averments in the complaint and Rules, if any, barring such purchase. 17. The same is the position regarding the evidence adduced with regard to transaction exceeding the sanctioned limit 500 metric tones of lime. 18. Ext.P11 showed that according to the respondent’s own statement before the Sales Tax Authorities, he had sold in the year 1987 – 88 lime shell worth Rs. 3,29,030.60 in the year 1987 – 88. That is the value of 1495 tonnes. Under Ext.P10 licence the accused could deal in 500 metric tones of lime alone during the particular year. 18. Ext.P11 showed that according to the respondent’s own statement before the Sales Tax Authorities, he had sold in the year 1987 – 88 lime shell worth Rs. 3,29,030.60 in the year 1987 – 88. That is the value of 1495 tonnes. Under Ext.P10 licence the accused could deal in 500 metric tones of lime alone during the particular year. I find, on a perusal of the complaint filed in this case, that notwithstanding the above evidence, the complaint actually alleges violation of Rule 48L relating to purchase of stock from unauthorized sources and Sec. 15(1) of the Act alone. Of course the pleadings cover unauthorized stocking on two counts viz. 1) want of evidence to show that 60 metric tones was purchased from authorised source and 2) stocking at a place different from the one mentioned in the license. It is important to mention here that dealing in excess of limits allowed by licence is not a matter alleged in the complaint and as such the violation, if any, in the matter cannot attract punishment in the present case. However, the prosecution initiated by PW1 is maintainable atleast on one count if not more. 14. Point No.4: In view of my findings under the aforesaid points, the impugned judgment of acquittal is set aside and the case is remitted to the trial court for passing fresh judgment in accordance with the findings on Points 1 and 2 and after considering culpability for the offence/offences pleaded and to impose appropriate sentence in case the accused is found guilty. This judgment should not be taken to mean that the accused is found to have committed any offence. Excepting competence of PW1 all other questions are left open. The appeal is disposed of as above.