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2014 DIGILAW 126 (JHR)

Kailash Kumar Sharma v. State of Jharkhand

2014-01-20

R.R.PRASAD

body2014
ORDER By the Court.-Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 2. This application has been filed for quashing of the order dated 28.7.2012 passed by Judicial Magistrate, 1st Class, Jamshedpur in Parsudih (Sundernagar) P.S. Case No. 175 of 2010 whereby and whereunder cognizance of the offence under Section 414 of the Indian Penal Code and also under Section 21 of the Jharkhand Mines and Minerals (Development and Regulation) Act as well as under Rule 8 of the Jharkhand Mineral Dealer's Rules, 2007 has been taken against the petitioner. 3. Before adverting to the submission advanced on behalf of the parties, case of the prosecution needs to be taken notice of. 4. It is the case of the prosecution that when Mining Inspector received an information that some persons at Parsudih had been indulging themselves in loading iron ore over the truck illegally, he reached over there and found two trucks, bearing registration Nos. JH-05AB-1271 and JH-05K-7181 loaded with iron ore. The drivers were asked to produce transit challans but they failed to do so. 5. Further it has been alleged that near to that place, one truck bearing registration No. CG-04J-9891 was found standing over there, over which iron ore was being loaded and thereby the drivers of the aforesaid three trucks as well as crusher operator, Kailash Kumar Sharma, the petitioner were alleged to have contravened the provision of Rule 6 of the Jharkhand Mineral Dealer's Rules, 2007 which is punishable under Section 21 of the Mines and Mineral (Development and Regulation) Act. 6. The matter was taken up for investigation. After completion of investigation, charge-sheet was submitted, upon which cognizance of the offence punishable under Section 414 of the Indian Penal Code and also under Section 21 of the Jharkhand Mines and Minerals (Development and Regulation) Act as well as under Rule 8 of the Jharkhand Mineral Dealer's Rules, 2007 has been taken against the petitioner, vide order dated 28.7.2012 which is under challenge. 7. Mr. 7. Mr. Indrajit Sinha, learned counsel appearing for the petitioner submits that cognizance of the offence has been taken under Section 414 of the Indian Penal Code and also under Section 21 of the Jharkhand Mines and Minerals (Development and Regulation) Act as well as under Rule 8 of the Jharkhand Mineral Dealer's Rules, 2007 but the prosecution cannot be maintained for the offence under Section 414 of the Indian Penal Code, in view of the special legislation covering the same field. 8. Furthermore, the petitioner cannot be prosecuted for the offence punishable under Section 21 of the Jharkhand Mines and Minerals (Development and Regulation) Act as the person, who has lodged the case, has never been authorized to lodge the case. 9. In this regard, it was further submitted that search and seizure has been made by the Mining Inspector but he had not been authorized under the Jharkhand Mineral Dealer's Rules, 2007 to make search and seizure, rather as per Rule 9 of the aforesaid Rules, it is only the State Government .or the competent officer, who can authorize a person to make search and seizure. Here in the instant case, specific stand has been taken by the petitioner that Mining Inspector has not been authorized either by the State Government or by the competent officer in terms of Rule 9 of the aforesaid Rule to make search and seizure. 10. However, the stand which has been taken on behalf of the State is that under Jharkhand Mineral Transit Challan Regulations, 2005, Mining Inspector has been empowered to make search and seizure but that provision would never prevail over the provision as is there under the Rule called Jharkhand Mineral Dealer's Rules, 2007 which docs occupy wider field including the field which had been occupied by the Jharkhand Mineral Transit Challan Regulations, 2005. 11. 11. Further it was submitted that both the Rules and Regulation have been framed by virtue of power given under Section 23-C of the Mines and Minerals (Development and Regulation) Act whereby regulation is confined only to transport of the minerals whereas Rule framed in the year 2007 covers the entire field such as, possession, storage, trading, and transport of mineral and thereby it is not only that the latter Legislation covers the field which had been earlier covered by the Regulation but this field is wider than the field covered by regulation and in that view of the matter, the provision of Rule would prevail over the provision of Regulation and therefore, it would be deemed that the provision of Regulation has been repealed. 12. Learned counsel in this regard has referred to a decision rendered in a case of Zaverbhai Amaidas v. State of Bombay, AIR 1954 SC 752 and also in a case of State of M.P. v. Kedia Leather & Liquor Ltd. and others, (2003) 7 SCC 389 . 13. In such situation, the prosecution of the petitioner cannot be maintained either under Section 21 of the Mines and Mineral (Development and Regulation) Act or for contravention of Rule 8 of the Jharkhand Mineral Dealer's Rules, 2007. 14. Further submission which was advanced is that when a case is based upon search and seizure not made by a competent person, the prosecution cannot be maintained. 15. In this regard, a decision rendered in a case of Roy V.D. v. State of Kerala, (2000) 8 SCC 590 was referred to. In these circumstances, it was submitted that the order taking cognizance is fit to be quashed. 16. As against this, Mr. S.S. Prasad, learned counsel appearing for the State submits that under Jharkhand Mineral Transit Challan Regulation, 2005, Mining Inspector has been authorized to make search and seizure and thereby the instant prosecution would not be vitiated on account of case being lodged upon search and seizure made by the Mining Inspector. 17. 16. As against this, Mr. S.S. Prasad, learned counsel appearing for the State submits that under Jharkhand Mineral Transit Challan Regulation, 2005, Mining Inspector has been authorized to make search and seizure and thereby the instant prosecution would not be vitiated on account of case being lodged upon search and seizure made by the Mining Inspector. 17. From the contention made on behalf of the parties, it does appear that on one hand, the stand which has been taken by the petitioner is that the prosecution of the petitioner is, illegal for the reason that search and seizure upon which case has been lodged has never been effected by the person authorized by the State Government or competent person and on the other hand, the stand which has been taken is that Mining Inspector has been authorized under the Jharkhand Mineral Transit Challan Regulation, 2005 to make search and seizure. 18. It be stated that both the legislations i.e., Jharkhand Mineral Dealer's Rules, 2007 as well as Jharkhand Mineral Transit Challen Regulations, 2005 have been framed by virtue of the power conferred by Section 23-C of the Mines and Minerals (Development and Regulation) Act, 1957. 19. On perusal of the provision as contained in Jharkhand Mineral Transit Challan Regulation, 2005, it does appear that it is confined to only to the transport of mineral whereas Jharkhand Mineral Dealer's Rules, 2007 covers wider field of the activities such as possession, storage, trading and transport of minerals. 20. In that event, it is obvious that the field covered by the Regulation is limited whereas the field covered under the Rules are wider. 20. In that event, it is obvious that the field covered by the Regulation is limited whereas the field covered under the Rules are wider. Further the Regulation has been framed in the year 2005 whereas Rules have come into force in the year 2007 and thereby Legislation which has come later on would occupy the Held in view of the ratio laid down in a case of Zaverbhai Amaidas v. State of Bombay (supra) wherein it has been held as hereunder : "It is true, as already pointed out, that on a question under Article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law. We must accordingly hold that Section 2 of Bombay Act 36 of 1947 cannot prevail as against Section 7 of the Essential Supplies (Temporary Powers) Act 24 of 1946 as amended by Act 52 of 1950." 21. More or less, similar view has been taken later on by the Hon'ble Supreme Court in a case of State of M.P. v. Kedia Leather & Liquor Ltd. and others (supra). 22. More or less, similar view has been taken later on by the Hon'ble Supreme Court in a case of State of M.P. v. Kedia Leather & Liquor Ltd. and others (supra). 22. In this regard it be stated that the State in its counter-affidavit is silent as to whether Mining Inspector has been empowered by the State Government or by the competent authority to make search and seizure, though Mining Inspector has been empowered to make search and seizure under Jharkhand Mineral Transit Challan Regulation, 2005 which would not be workable when Jharkhand Mineral Dealer's Rule came into force in the year 2007 and therefore, it can be said that the case which was launched is not based upon search and seizure made by a person authorized under the law and in that event, the prosecution launched upon the search and seizure made by a person not competent under Jharkhand Mines and Mineral (Regulation and Development) Act, cannot be maintained and thereby cognizance taken of the offences under Section 21 of the Mines and Mineral (Development and Regulation) Act and also under Rule 8 of the Jharkhand Mineral Dealer's Rules, 2007 is hereby quashed. 23. So far cognizance of the offence under Section 414 of the Indian Penal Code is concerned that is also bad in view of the fact that the allegation does nut make out a case under Section 414 as the petitioner is being prosecuted only on account of the fact that the transit permit was not placed before the Mining Officer, who never suspected that the iron ore which was found loaded over the trucks, was the stolen property. Besides that since illegal possession of mineral can be subject matter of the prosecution under the Mines and Minerals (Development and Regulation) Act any prosecution under the general law cannot be maintained. 24. Under the circumstances, prosecution under Section 414 of the Indian Penal Code cannot be held to be maintainable. 25. Accordingly, entire criminal proceeding of Parsudih (Sundernagar) P.S. Case No. 175 of 2010 including the order dated 28.7.2012 taking cognizance of the offence is hereby quashed so far the petitioner is concerned. In the result, this application stands allowed. Petition allowed.