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Madhya Pradesh High Court · body

2020 DIGILAW 914 (MP)

SOHAN LAL v. STATE OF M. P.

2020-09-15

ANAND PATHAK

body2020
ORDER/JUDGMENT – Shri Pawan Pathak, learned counsel for the applicant. Shri Nitin Goyal, learned PL for the respondent/State. Matter is heard through Video Conferencing. The applicant has filed this second bail application under section 439, Criminal Procedure Code for grant of bail. Applicant has been arrested on 29-6-2020 by Police Station Panihar, District Gwalior in connection with Crime No. 68/2020 registered for offence under sections 379 and 414 of Indian Penal Code and 2/21 of Mines and Mineral Rules. Allegations are of illegal transportation of sand without any royalty receipt or any legal permission. 2. It is the submission of counsel for the applicant that applicant is suffering confinement since 29-6-2020 on false pretext whereas charge-sheet has already been filed. It is further submitted that tractor was being driven by son (Ramu) of the owner (Ramnaresh) of the vehicle and both father and son implicated the applicant representing him to be the driver of vehicle. Since he is semi-literate (primary pass) therefore, he could not understand the nitty-gritty of procedure and further interesting point is that in arrest memo, seizure memo and memo under section 27 of the Evidence Act of applicant prepared by the police are being signed by the owner of the tractor as one of the witnesses. Police very cleverly converted the real culprit into witness of the case and present applicant has been falsely implicated. As per the version of owner of tractor, applicant borrowed the tractor for agriculture purpose and allegedly used in transportation of illegal minerals but in reality, it was owner of the tractor-Ramnaresh and his son-Ramu who were causing transportation and storage of minerals without royalty. On his behalf, his father gave an affidavit regarding above-mentioned fact of role of owner. As per section 4(1-A) read with section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (for brevity “Act, 1957”) case has not been investigated properly by the police and present applicant has been framed. 3. Applicant is in confinement since 29-6-2020 and in his absence his family is finding hard to make both the ends meet. Looking to the challenging period of Covid-19 Pandemic and the fact that charge-sheet has already been filed and he is the victim of the mens rea of owner of the tractor in collusion with Police Authority, his case may be considered for bail. Applicant undertakes to cooperate in trial. Looking to the challenging period of Covid-19 Pandemic and the fact that charge-sheet has already been filed and he is the victim of the mens rea of owner of the tractor in collusion with Police Authority, his case may be considered for bail. Applicant undertakes to cooperate in trial. Under these grounds, he prayed for grant of bail to the applicant. 4. Counsel for the State opposed the prayer and submits that on the basis of memo prepared under section 27 of the Evidence Act, he has been implicated. So far as allegations regarding role of owner of the vehicle and his son is concerned, their role shall be taken care of in accordance with law. 5. Heard learned counsel for the parties at length through VC and considered the arguments advanced by them. 6. This is a case where applicant is facing allegation of offence under section 379, 414 of Indian Penal Code read with section 4/21 of the Act, 1957. Section 4(1) and 4(1-A) of Act, 1957 indicate that if a person transports or stores or causes to be transported or stored any mineral otherwise, than in accordance with provisions of the Act, 1957 and Rules made thereunder, then he is liable to be punished as per section 21 of the Act, 1957 and same is reproduced for ready reference : – 21. Penalties.? (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare of the area. (2) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand rupees for every day during which such contravention continues after conviction for the first such contravention. (3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land. (4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf. (4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the Court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such Court. (5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under sub-section (1) shall be cognizable. 7. Perusal of the above provision makes it very clear that the scope of statute is not confined to driver of the vehicle simpliciter but encompasses the persons behind the said illegal activity by incorporating the word “caused to be raised, transported or stored” without any lawful authority any mineral from land. Beside that, provision of confiscation of the vehicle/equipment etc. has also been envisaged in the statute and heavy fine has been mentioned in the provision. 8. Beside that, provision of confiscation of the vehicle/equipment etc. has also been envisaged in the statute and heavy fine has been mentioned in the provision. 8. It appears that Investigating Officer of the present case or in other similar matters, are duty bound to proceed as per the letter and spirit of sections 4 and 21 of the Act, 1957 and role of other persons who cause to raise, transport or store the mineral including the owner of the vehicle is to be mandatorily scrutinized and investigated so that spirit of provision may be given effect to. Even otherwise, it is highly improbable in normal course of nature that driver of a vehicle who is usually an employee, would dare to make such adventure of illegal mining without the knowledge of owner of the vehicle, who may be instrumental in causing to raise, transport or store the mineral without any legal sanction. Therefore, investigation from this angle would unfold the truth and real culprits would also come to book. 9. Perusal of charge-sheet indicates that applicant is facing allegation of offence under section 414 of Indian Penal Code also which talks about assistance for concealment of stolen property. Therefore, it is to be seen by the police, whom applicant assisted for concealment of stolen property (sand in present case) and from charge-sheet, this angle of investigation in missing. Therefore, on this count also role of owner of the vehicle deserves scrutiny and investigation. 10. Considering the submissions in the present case and looking to the period of custody and the fact that charge-sheet has already been filed and no custodial interrogation is required as well as looking to the Covid-19 Pandemic situation, this Court is of the opinion that without commenting on the merits of the case, the present bail application is allowed. It is hereby directed that the applicant shall be released on bail on his furnishing personal bond of Rs. 25,000/- (Rupees Twenty Five Thousand only) with one solvent surety of the like amount to the satisfaction of trial Court. 11. It is hereby directed that the applicant shall be released on bail on his furnishing personal bond of Rs. 25,000/- (Rupees Twenty Five Thousand only) with one solvent surety of the like amount to the satisfaction of trial Court. 11. In view of COVID-19 pandemic, the jail authorities are directed that before releasing the applicant, his preliminary Corona Virus test shall be conducted and if he is found negative, then the concerned local administration shall make necessary arrangements for sending the applicant to his house, and if he is found positive then the applicant shall be immediately sent to concerned hospital for his treatment as per medical norms. If the applicant is fit for release and if he is in a position to make his personal arrangements, then he shall be released only after taking due travel permission from local administration. After release, the applicant is further directed to strictly follow all the instructions which may be issued by the Central Government/State Government or Local Administration for combating the Covid-19. If it is found that the applicant has violated any of the instructions (whether general or specific) issued by the Central Government/State Government or Local Administration, then this order shall automatically lose its effect, and the Local Administration/Police Authorities shall immediately take him in custody and would sent him to the same jail from where he was released. 12. This order will remain operative subject to compliance of the following conditions by the applicant : – 1. The applicant will comply with all the terms and conditions of the bond executed by him; 2. The applicant will cooperate in the investigation/trial, as the case may be; 3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be; 4. The applicant shall not commit an offence similar to the offence of which he is accused; 5. The applicant shall regular appear in the trial Court and shall not seek unnecessary adjournments during the trial; and; 6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be. 7. The applicant shall not commit an offence similar to the offence of which he is accused; 5. The applicant shall regular appear in the trial Court and shall not seek unnecessary adjournments during the trial; and; 6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be. 7. The applicant will inform the SHO of concerned police station about his residential address in the said area and it would be the duty of the Public Prosecutor to send E-copy of this order to SHO of concerned police station for information. 13. Copy of this order be sent to Director General of Police, Bhopal, Inspector General of Police, Gwalior as well as Chambal Zone and Superintendent of Police, Gwalior for information and sensitization of Investigating Officers for appropriate investigation in respect of other persons also who may cause illegal transportation/raise/store etc. including owner of vehicle and to issue necessary instructions in this regard if required, so that letter and spirit of section 4/21 of the Act, 1957 be ensured in accordance with law. 14. E-copy of this order be sent to the trial Court concerned for compliance, if possible, for the office of this Court. 15. Certified copy/ e-copy as per rules/directions.