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2010 DIGILAW 822 (JHR)

Md. Gulfam Ansari v. State of Jharkhand

2010-08-19

DABBIRU GANESHRAO PATNAIK

body2010
ORDER : D.G.R. PATNAIK, J. 1. Heard Counsel for the petitioner and the Counsel for the State. 2. Prayer in this application is for quashing for F.I.R. dated 9.6.2009 registered for the offences u/s 414/34 IPC read with Section 20(i) of the MMRD Act, at Nirsa Police Station vide Nirsa P.S. Case No. 116 of 2009 corresponding to G.R. No. 1723 of 2009, which is presently pending in the court of Chief Judicial Magistrate, Dhanbad. 3. A first information report was filed by the Sub Inspector of Police on the self recorded statement. The allegations in the FIR is that on confidential information that the present petitioner along with several others, was engaged in illegal extraction of coal from the closed ECL Colliery No. 12, the informant Police Officer proceeded to the place of occurrence along with the raiding party. On seeing the police party, persons who were present at the place of occurrence, fled away. Thereafter, in the presence of two witnesses, the informant Police Officer made an inspection of the colliery and found that about 250 tons of illegally extracted coal was stacked at the site. The informant seized the coal and prepared the seizure list. 4. Assailing the initiation of the criminal proceeding against the petitioner on the basis of the FIR, Counsel for the petitioner argues that the institution of the FIR, in itself, is illegal and contrary to the provisions of law and as a matter of fact, the informant Police Officer has no authority either to file the FIR or register any case on the basis of the information / report lodged by him for the alleged offences. 5. Learned Counsel argues further that the Mines and Minerals (Regulation & Development) Act, 1957 has been enacted for the purpose of regulating the mining and distribution of coal and it contains a penal provision also for punishing the offenders. The Special Act contains provisions relating to search, seizure and prosecution and also lays down the procedure in respect of taking cognizance of the offences under the Act. The Special Act contains provisions relating to search, seizure and prosecution and also lays down the procedure in respect of taking cognizance of the offences under the Act. Learned Counsel argues further that the power of search and seizure as laid down u/s 22(B) of the MMRD Act provides that only a Gazetted Officer of the Central or State Government authorized by the Central or State Government, can exercise powers of search and seizure in cases where the Search Officer has reason to believe that any mineral has been raised in contravention of the provision of the Act and the Rules made thereunder. The informant Police Officer has not been authorized by the State Government and as such, the entire process of search and seizure made by him, are beyond his competence and authority. Learned Counsel adds further that u/s 22 of the Act, no court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government. Thus, under such circumstances, the court cannot take cognizance of the offences on the basis of the report submitted by the police. Learned Counsel submits further that even otherwise, since admittedly, the petitioner was not present at the place from where the coal was seized, nor is there any theft report of the seized coal, the offence u/s 414 IPC or even under the provisions of the MMRD Act, cannot be attracted against the petitioner and continuance of the criminal proceeding against the petitioner, would amount to an abuse of the process of court. 6. Counsel for the State, on the other hand, would argue that the offences for which FIR was registered, are not only for the offences u/s 21(2) of the MMRD Act, but also in respect of the offences u/s 414 IPC and as such, the Police Officer has the right to investigate any cognizable offence under the IPC and also to conduct search and seizure. 7. From the rival arguments of the learned Counsel, the points of relevance on the issues raised, invite the reference to the provisions of MMRD Act and also to the Rules made thereunder. 8. The Mines and Mineral (Regulation and Development) Act, 1957 was enacted for the purpose of prohibiting mining and winning mineral without licence. 7. From the rival arguments of the learned Counsel, the points of relevance on the issues raised, invite the reference to the provisions of MMRD Act and also to the Rules made thereunder. 8. The Mines and Mineral (Regulation and Development) Act, 1957 was enacted for the purpose of prohibiting mining and winning mineral without licence. The Act is a self contained Act which not only prohibits illegal raising or mining and minerals, but also contains penal provisions for punishment of offenders who indulge in the illegal act of mining the minerals. The penal provisions are contained in Section 21 of the Act. Offences of illegal extraction of coal and theft and transportation of extracted coal is also included in the penal provisions. 9. The provisions of Section 23(B) of the Act, reads as under: 23B. Power of Search._If any Gazetted Officer of the Central or a State Government authorized by the Central Government or a State Government, as the case may be in this behalf by general or special order has reason to believe that any mineral has been raised in contravention of the provisions of this Act or the rules made thereunder or any document or thing in relation to such mineral is secreted in any place he may search for such mineral document or thing and the provisions of Section 100 of Code of Criminal Procedure, 1973 shall apply to every such search. 10. In the present case, on the basis of the allegation that the coal was illegally extracted from the closed mines, the case was registered for the offences u/s 21(i) of the MMRD Act. If admittedly, the acts alleged constitute the offence punishable under the provisions of the MMRD Act, then it would certainly call for application of Section 22 of the Act which prohibits cognizance of the offences except on the basis of the complaint lodged by the officer duly authorized by the Central or State Government. If admittedly, the acts alleged constitute the offence punishable under the provisions of the MMRD Act, then it would certainly call for application of Section 22 of the Act which prohibits cognizance of the offences except on the basis of the complaint lodged by the officer duly authorized by the Central or State Government. Even if the informant Police Officer may have authority to seize any property believed to be stolen, and suggesting commission of cognizable offence punishable u/s 414 IPC, yet such FIR cannot be registered on the basis of the Police Officer's report for the offences under the provisions of MMRD Act since it cannot be dissociated from the offence under the provisions of MMRD Act and corresponding rules thereunder, which lays down provisions of Section 23(C) for preventing not only illegal mining, but also the transportation and storage of minerals procured by illegal mining. 11. Counsel for the State has not produced any notification to inform that the informant Police Officer is either authorized to make search and seizure of illegally extracted coal or for filing a complaint before the Magistrate for taking cognizance of the offences under the Act. A similar blanket prohibition has also been provided in Rule 41 of the Bihar Minor Mineral Concession rules, 1972 against taking of cognizance of any offence under the Act, except upon a complaint made in writing by the competent officer duly empowered by the concerned Government. Furthermore, in absence of any theft report of the seized coal, and in absence of any allegation against the petitioner that he was seen indulging in illegal mining and extraction of coal, it would be a futile exercise to launch criminal prosecution against the petitioner without any incriminating evidence offered against him in respect of any of the offences for which the case was registered. 12. In the light of the facts and circumstances, and the discussions made above, I find merit in this application. Accordingly, this application is allowed. The impugned FIR registered as Nirsa P.S. Case No. 116 of 2009 and the entire criminal proceedings registered vide G.R. No. 1723 of 2009, pending in the court of Chief Judicial Magistrate, Dhanbad, is hereby quashed.