In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.220 of 2008
Calcutta Jaipur Paribahan Private Limited.....Petitioner
VERSUS
State of Jharkhand and others.............. Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr. Ananda Sen
For the State : Mr. R.R.Mishra
Reserved on 18.3.200 9 Pronounced on 16.4.09
8. 16.4.09
This application under Article 226 of the Constitution of
India has been filed for quashing the first information report of
Gua P.S. case no.22 of 2008 instituted under sections 420/34 of the
Indian Penal Code and also under sections 8/9 of the Jharkhand
Minerals Dealers’ Rule read with Mines and Minerals (Development
and Regulation) Act, 1957.
The case of the prosecution is that one Raghav Nandan
Prasad, District Mining Officer, Chaibasa on receiving information
relating to illegal storage of iron ores came along with other Mining
Officials as well Sub-Inspector of Police of Barajamda out post
near Central Hospital, Barajamda and found iron ore fines/blue dust
stored at Noamundi- Barajamda road. On enquiry, it could be
known that iron ores taken from the mines situated in the State of
Orissa was meant to be transported to Haldia Port still it was stored
at Barajamda, though transport permit never permitted storage at
Barajamda nor any one had been given licence under the
Jharkhand Minerals Dealers’ Rule, 2007 for storage of the iron ores
at the place where it was found. However, it could be found that
different quantity of iron ores had been stored there by the
transporters, namely, S.M.Carrier, Kolkata-Jaipur Parivahan Pvt.
Ltd, Supersonic Carriers Pvt. Ltd, A.M. Logistics Pvt. Ltd and thus,
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those accused persons by contravening provision of the aforesaid
rules committed offence under Rule 8 and 9 of the Jharkhand
Minerals Dealers’ Rule and the Mines and Minerals (Development
and Regulation) Act as well as under the Indian Penal Code.
On the basis of the information given to the Gua police, a
case was registered as Gua Police case no.22 of 2008 under
sections 420/34 of the Indian Penal Code and also under Rules 8
and 9 of the Jharkhand Minerals Dealers’ Rule read with Mines and
Minerals (Development and Regulation) Act.
Learned counsel appearing for the petitioner submits that
Jharkhand Minerals Dealers’ Rule, 2007 was promulgated by the
State of Jharkhand in exercise of power conferred by Section 23 (C)
(1) and 23(2)(c) of the Mines and Minerals (Development and
Regulation) Act, 1957 in order to regulate mining, transportation,
storage of minerals and mineral products and further Rule 3
prohibits any person from engaging himself in any transaction of
buying and selling any minerals without being registered and
similarly Rule 6 prohibits any person from transporting any minerals
without obtaining transport challan. Further Rule 8 is a penal
provision prescribing punishment in case any person contravenes
any of the provision of rule or buys or sells or stores minerals.
Learned counsel in view of the aforesaid provisions submits
that the allegations upon which the case has been lodged do fall
within the purview of special legislation, namely, Jharkhand
Minerals Dealer’s Rule, 2007 and Mines and Minerals (Development
and Regulation) Act, 1957 and in that event the cognizance of
such offence in terms of the provision as contained in Section 22 of
the Mines and Minerals (Development and Regulation) Act, 1957
can be taken by the court only upon complaint in writing made by a
person authorized in this behalf by the Central Government or the
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State Government and therefore, any prosecution initiated on the
basis of the first information report would be quite illegal and
hence, first information report is fit to be quashed.
It be stated that in spite of opportunity being given to the
State, no counter affidavit has been filed.
Having heard learned counsel appearing for the parties, it
appears that on finding iron ore stored at a place at the instance of
the accused without there being any authority, a case was
registered under sections 420/34 and section 8/9 of the Jharkhand
Minerals Dealers’ Rule read with Mines and Minerals (Development
and Regulation) Act but the question falls for consideration is as to
whether in view of the special law, namely, Jharkhand Minerals
Dealers’ Rule, 2007 and also Mines and Minerals (Development and
Regulation) Act, case lodged under the penal code would be
competent ? For adjudicating this issue one needs to take notice of
the definition of the ‘special law’ as has been defined under section
41 of the Indian Penal Code which reads as follows:
“Special law- A “special law” is a law applicable to a
particular subject.”Obviously ” Special law” means the provision of law which is
not applicable generally but which applies to a particular or
specified subject or class or subject. In other words where there is
a specific punishment provided in a special Act it takes precedence
over the general punishment under the penal code and that
where there is no specific punishment provided under special law,
general law of the land, under the penal code comes into operation
if the requirements under any section thereof are satisfied. In that
view of the matter, one needs to examine as to whether Mines and
Minerals (Development and Regulation) Act and also Jharkhand
Minerals Dealers’ Rule do prescribe punishment for illegal
extraction, transportation, storage etc. of the minerals. In this
4respect one can take notice of Rule 8 of Jharkhand Minerals
Dealers’ Rule, 2007 which reads as follows:
Penalties – (1) Any person, who contravenes any of
the provision of these rules or buys or sells or stores
minerals except under and in accordance with the
dealer’s registration or who transports the minerals
except as mentioned in the transport challan shall be
punishable with :(a) A fine of Rs.5000/- or imprisonment for a
term which may extend to one year or with
both.(b) In the case of a continuing contravention,
with an additional fine which may extend to
fine hundred rupees for every day during
which such contravention continues after
conviction for the fist such contravention.
(2) Any person, who buys or sells minerals except
under and in accordance with the registration,
shall be punishable with a fine which may extend
to Rs.5000/- or imprisonment for a term which
may extend to one year or with both.
(3) Any person, who transports minerals except to
the destination specified in transport challan,
shall be punishable with an imprisonment upto a
term of one year or fine which may extend to
Rs.5000/- or with both.
(4) Whoever, intentionally obstructs the competent
officer or any other officer in performing his
duties (in imposing penalties etc.) under these
rules, shall be punishable with an imprisonment
for a term which may extend to 6 months or fine
which may extend to Rs.5000/- or with both.”
From perusal of the aforesaid provision, it is evidently clear
that it does prescribe punishment in case of storage and
transportation of minerals in contravention of the provision of the
Jharkhand Minerals Dealers’ Rule, 2007. That being the position,
the provision contained in special legislation will certainly take
precedence over the general punishment prescribed under the
penal code and as such, provision of penal code would have no
application in the matter of transportation, storage, transaction etc.
of the minerals in contravention of the provision of the Act or rule
made thereunder.
That apart, procedure for initiation of the penal action in
terms of the said rule has also been prescribed under section 22 of
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the Mines and Minerals (Development and Regulation) Act, 1957
which reads as follows:
“22 – Cognizance of offences – 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, it appears that law under the provision of the Mines
and Minerals (Development and Regulation) Act or Rule made
thereunder such as Jharkhand Minerals Dealers’ Rule, 2007 can be
set at motion only through a complaint that too in writing made by
the person authorized.
The word complaint has been defined under clause (d) of
section 2 of the Code of Criminal Procedure which reads as follows:
(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 it does not include a
police report.
Explanation – A report may by a police officer
in a case which disclosed after investigation,
the commission of a non-cognizable offence
shall be deemed tobe a complaint; and the
police officer by whom such report is made
shall be deemed to be the complainant.
Regard being had to the definition as noticed above if one
makes a complaint in writing then it needs to fulfill following
conditions:
(1) it must be made to a Magistrate ;
(2) it must be made with a view to his
taking action under the Code;
(3) it must contain an allegation that
some person, whether known or
unknown, has committed an offence
(4) it must not be the report of a police
officer [Explanation to clause (d)].
Admittedly, so far this case is concerned, complaint has
never been made to the Magistrate by the informant, though
under section 22 of the Mines and Minerals (Development and
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Regulation) Act, 1957, any prosecution under that Act or Rules
made thereunder such as, Jharkhand Minerals Dealers’ Rule, 2007
needs to be set at motion by filing complaint by an authorized
person before a Magistrate. Further any investigation, enquiry or
trial of the offences under the aforesaid Act and the Rules needs to
be dealt with in accordance with procedure laid down under the
Special Law which would have precedence over the procedure laid
down under the general law in view of the mandate of section 4 of
the Code of Criminal Procedure which reads as follows:
” Trial of offences under the Indian Penal Code
and other laws:
(1) ” All offences under the Indian Penal Code
(45 of 1860) shall be investigated, inquired
into, tried and otherwise dealt with
according to the provisions hereinafter
contained.
(2) All offences under any other law shall be
investigated, inquired into, tried and
otherwise dealt with according to the same
provisions, but subject to any enactment
for the time being in force regulating the
manner or place of investigating, inquiring
into, trying or otherwise dealing with such
offences.”
Having noticed all the provisions, as mentioned above, it can
conclusively be said that offences relating to storage,
transportation, transaction etc. of the minerals in contravention of
the provision of the Mines and Minerals (Development and
Regulation) Act, 1957 and also the Rules of Jharkhand Minerals
Dealers’ Rule, 2007 came within the purview of the said Act and
Rules and as such, any investigation, inquiry or trial shall be
governed by the Special Law and not under the general law.
Therefore, any prosecution launched by the informant not by way
of complaint but by way of information to the police is quite illegal.
In other words, instant prosecution can be said to be nonest in the
eye of law and hence, it is not sustainable in law.
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Accordingly, the first information report of Gua P.S. case
no.22 of 2008 is hereby quashed so far petitioner is concerned.
Consequently, this application is allowed.
(R.R.Prasad, J.)
ND/