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2022 DIGILAW 562 (AP)

Dovara Rajasekhar v. State of Andhra Pradesh

2022-06-20

CHEEKATI MANAVENDRANATH ROY

body2022
JUDGMENT Cheekati Manavendranath Roy, J. - This criminal petition under Section 482 of Cr.P.C is filed seeking quash of FIR in Crime No.51/2022 of Dakkili Police Station of SPSR Nellore District. 2. The petitioners are accused 1 and 2 in the above crime. 3. a case under Section 420 of IPC and under Section 21(4) of the Mines and Minerals (Development and Regulation) act, 1957 (the MMDR act, for short) was registered against the petitioners in the above crime. 4. Heard learned counsel for the petitioners and the learned additional Public Prosecutor for the respondents/State. 5. Briefly stated, it is the case of the prosecution that the 2nd respondent-Sub Inspector of Police of Dakkili Police Station has conducted a vehicle check on 29-4-2022 on receipt of credible information relating to illegal transportation of sand. at that time, he has intercepted one Tipper bearing No.aP39U-5234 and inspected the same. He has verified the documents relating to the said vehicle and also the Way Bill. at that time, he found that excess sand is being transported than the permissible limit. according to the prosecution, the tipper in which the sand was being transported is weighing 10,200 kgs weight whereas the capacity of the tipper to carry goods is 18,000 kgs and the total weight of the tipper is 28,000 kgs. When the load of sand in the tipper was weighed, it is found that 32,180 kgs sand is being transported and as such there is excess of 4 tonnes of sand being transported in the said tipper. 6. Therefore, a case under Section 420 of IPC and under Section 21(4) of the MMDR act was registered against the petitioners in the above crime. The 2nd petitioner, who is accused No.2, is the owner of the said tipper and the 1st petitioner, who is accused No.1, is the driver of the said tipper. 7. The petitioners now sought quash of the said FIR registered against them on the ground that the facts of the case even if accepted as true, on the face of it, it does not constitute any offence of cheating punishable under Section 420 of IPC. It is the further case of the petitioners that Section 21(4) of the MMDR act is also not attracted to the facts of the case as it relates to only seizure of the vehicle. It is the further case of the petitioners that Section 21(4) of the MMDR act is also not attracted to the facts of the case as it relates to only seizure of the vehicle. Therefore, on the aforesaid two grounds, the petitioners sought quash of the FIR. 8. Learned additional Public Prosecutor opposed the criminal petition. He would submit that the case is only at the stage of investigation and he would submit that the FIR cannot be quashed at this stage and thereby prayed for dismissal of the criminal petition. 9. It is not in dispute that the petitioners are in possession of valid permit for transportation of sand. It is only the case of the prosecution that the petitioners have been transporting excess sand of 4 tonnes than the permissible limit. Therefore, in the said facts and circumstances of the case, the facts of the case do not attract any offence of cheating punishable under Section 420 of IPC. Therefore, the registration of FIR in the given facts and circumstances of the case for the offence punishable under Section 420 of IPC is not legally sustainable. 10. as regards the offence under Section 21(4) of the MMDR act is concerned, the FIR suffers from two infirmities. Section 21 of the MMDR act speaks of penalties to be imposed for contravention of certain provisions of sub-section (1) or sub-section (1a) of Section 4 of the MMDR act. Section 21(4) for which the FIR was registered only pertains to seizure of the vehicle that is used for transportation of the mineral. It is not a penal provision. Therefore, registration of the FIR under Section 21(4) of the MMDR act is clearly unsustainable under law. 11. Further, even though Section 4(1a) of the MMDR act says that no person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this act and the Rules made thereunder and even though any such act is made punishable under Section 21(1) of the MMDR act, it is significant to note that there is a bar on the Court under Section 22 of the MMDR act to take cognizance of any offence punishable under the said act or any Rule made thereunder except upon a complaint in writing made by a person authorized in this behalf by the Central Government or the State Government. 'Complaint' is not defined in the MMDR act. Therefore, the definition assigned to the term 'complaint' under Section 2(d) of Cr.P.C is to be taken into consideration. Section 2(d) of Cr.P.C reads as under: '2(d). 'complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but does not include a police report. Explanation: a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;' 12. Therefore, in view of the aforesaid bar, prosecution can be launched only by way of a complaint in writing to be made by a person authorized in this behalf by the Central Government or the State Government before the concerned Magistrate. In the instant case, no such complaint was made by any officer authorized in this behalf before any Magistrate. Therefore, the registration of FIR is legally unsustainable in the facts and circumstances of the case. 13. Resultantly, the criminal petition is allowed quashing the FIR that was registered against the petitioners in the above crime. However, the competent officer authorized in this behalf by the concerned Government is at liberty to make a complaint before the Magistrate in this regard. Pending applications, if any, shall stand closed.