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2015 DIGILAW 467 (JHR)

Durga Das v. State of Jharkhand

2015-04-15

RONGON MUKHOPADHYAY

body2015
ORDER : 1. Heard Mrs. Nitu Sinha, learned counsel appearing on behalf of the petitioner and the learned A.P.P. appearing on behalf of the opposite parties. 2. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with OCR Case No. 171 of 1996 including the order dated 12.12.1996 passed by the learned Additional Chief Judicial Magistrate, Pakur whereby and whereunder cognizance has been taken under Rule 49 of the Bihar Minor Mineral Concessions Rule, 1972. 3. The prosecution story as would appear from the complaint petition filed by the opposite party No. 2 in his capacity of Assistant Mining Officer, Pakur is to the effect that the petitioner was carrying on business of stone beyond the leasehold area without obtaining the license as prescribed in Form – L and, therefore, the same is an offence under Rule 49 (iii) of the Bihar Minor Mineral Concessions Rule, 1972. 4. After filing the complaint vide order dated 12.12.1996 the learned Additional Chief Judicial Magistrate, Pakur was pleased to take cognizance for the offence punishable under Rule 49 of the Bihar Minor Mineral Concessions Rule, 1972. 5. On receipt of summons from the court of learned Additional Chief Judicial Magistrate, Pakur, the petitioner appeared and filed an application for dropping the proceedings on the ground that no case under Rule 49 (iii) of the Bihar Minor Mineral Concessions Rule, 1972 is made out in view of the fact that the petitioner is a lessee and an agreement was entered into between the petitioner and the State of Bihar. It was also contended therein that a lessee is not required to obtain license in Form – L in view of the Circular issued by the Department of Mining and Geology. The learned court below vide order dated 07.01.1997 dropped the proceedings against the petitioner which was challenged by the opposite party No. 2 in Criminal Revision No. 142 of 1997 before the learned Additional Sessions Judge, Pakur. Vide order dated 07.05.2002 the learned Additional Sessions Judge, Pakur allowed the revision and set aside the order of discharge dated 07.01.1997 passed by the learned ACJM, Pakur. 6. Vide order dated 07.05.2002 the learned Additional Sessions Judge, Pakur allowed the revision and set aside the order of discharge dated 07.01.1997 passed by the learned ACJM, Pakur. 6. The learned counsel for the petitioner has assailed the impugned order dated 12.12.1996 by submitting that the petitioner was granted mining lease over 6.2 acres of land under C.S. No. 92 within the District of Pakur in terms of lease executed between the petitioner and the State of Bihar on 10.04.1995. It has been submitted that the lease deed was executed in favour of the M/s. Oten Das & Company and the petitioner is the proprietor of the said Company. It has also been submitted that nowhere in the lease deed it has been stated that the lessee has to obtain license in Form – L. The learned counsel for the petitioner has further submitted that the prosecution report does not disclose as to the area in which the petitioner is carrying on business as also the area in which the petitioner is alleged to be carrying on the business of stone which is beyond the leasehold area. The learned counsel for the petitioner has also submitted that in terms of the provisions of Bihar Minor Mineral Concessions Rule, 1972 only the District Mining Officer is competent to institute a complaint and Assistant Mining Officer was not the competent person to lodge a case and in such circumstance, therefore, the entire criminal proceedings are liable to be quashed. 7. The learned counsel for the State, on the other hand, has submitted that an inspection was made by the Mining Inspector and it was detected that the petitioner was transporting/removing stone materials such as boulder extracted from the mining area to his crushing site which was situated outside the lease hold area which was being carried on without obtaining a license as required under Rule 49 of Bihar Minor Mineral Concessions Rule, 1972. It has further been submitted that Rule 49 of Bihar Minor Mineral Concessions Rule, 1972 specifies that any person who intend to stock and dispatch minor mineral beyond the leasehold area shall have to obtain license in Form – L which the petitioner had flouted and, therefore, the petitioner is liable to be prosecuted. 8. It has further been submitted that Rule 49 of Bihar Minor Mineral Concessions Rule, 1972 specifies that any person who intend to stock and dispatch minor mineral beyond the leasehold area shall have to obtain license in Form – L which the petitioner had flouted and, therefore, the petitioner is liable to be prosecuted. 8. After hearing the learned counsel for the parties and after going through the records, I find that the cognizance was taken by the learned ACJM, Pakur on the basis of a complaint made by the opposite party No. 2 on 23.11.1996 for the offence punishable under Rule 49 of Bihar Minor Mineral Concessions Rule, 1972. It appears from the complaint petition that the allegation is with respect to the fact that the business of stone was being carried on beyond the leasehold area which has further been clarified in the counter affidavit to the effect that although the mineral were extracted from the leasehold area but the same was being kept outside the leasehold area where the stones and boulders were being crushed into chips/dust without obtaining the license in Form – L. 9. The counter affidavit of the opposite party No. 2 has mentioned a letter dated 26.04.1999 which had made it optional to the lessee to obtain Form – L but the said letter dated 26.04.1999 was subsequently withdrawn vide letter dated 13.07.1999. The prosecution report submitted by the opposite party No. 2 is cryptic and does not even mention the leasehold area or the area in which the allegation of dumping the extracted stones, boulders etc. has been made and, therefore, the said complaint being vague and shorn of the fundamental requirements with respect to the violation committed by the petitioner deserves to be discarded. 10. The learned ACJM, Pakur while discharging the petitioner from the case had taken into consideration that the complaint petition itself is vague and no plot number and boundaries or area had been mentioned. The learned revisional court had set aside the order of discharge only on the ground that the prosecution was not given an opportunity of hearing. The fact remains that non-disclosures of the plot number of the leasehold area, the area in which the extracted stones was being crushed is stark on the face of it and in such circumstances, the criminal proceedings against the petitioner cannot be allowed to continue. 11. The fact remains that non-disclosures of the plot number of the leasehold area, the area in which the extracted stones was being crushed is stark on the face of it and in such circumstances, the criminal proceedings against the petitioner cannot be allowed to continue. 11. In view of what has been stated above, I find merit in this application. Accordingly, this application is allowed and the entire criminal proceedings in connection with OCR Case No. 171 of 1996 including the order dated 12.12.1996 is, hereby, quashed.