# STATE OF NCT OF DELHI v. SANJAY

- **Citation:** [2014] 9 S.C.R. 1063
- **Court:** Supreme Court of India
- **Decided:** 2014-09-04
- **Case number:** Criminal Appeal No. 499 of 2011
- **Bench:** M.Y. Eqbal, Pinaki Chandra Ghose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-nct-of-delhi-v-sanjay-30042
- **Pages:** 59

## Headnote

Mines and Minerals (Development and Regulation) Act,
1957:
Object and legislative intent behind enactment -
Discussed.
A
B
c
Illegal sand mining - Adverse impact of - Discussed.
ss.21, 22 - Whether the provisions contained in ss.21,
D
22 and other sections of MMDR Act operate as bar against
prosecution of a person who has been charged u/ss. 3791114
and other provisions of the /PC - Held: A close reading of
the provisions of MMDR Act and the offence defined u/s.378,
/PC shows that the ingredients constituting the offence are
E
different -
The contravention of terms and conditions of
mining lease or doing mining activity in violation of s.4 of the
Act is an offence punishable uls.21 of the MMDR Act,
whereas dishonestly removing __ §g_{ld, gravels and other
minerals from the river, whicnTs the property of the State, out
F
. of State's possession without the consent, constitute an
offence of theft - Therefore, in a case where there is a theft of
sand and gravels from the Government /aQd, the police can
register a case, investigate the same and submit a final report
u/s. 173, Cr.P. C. before the Magistrate having jurisdiction for G
,(h~ ,PF,rpose of taking cognizance as provided in s.190(1)(d),
Cr.P. C. - Penal Code, 1860 - ss. 3791114 - Constitution of
India, 1950 -Arts 48-A, 51-A - Doctrine of Public Trust.
1063
H
1064
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A
Interpretation of statutes:
Non-obstante clause - Held: Is a legislative device which
is usually employed to give overriding effect to certain
provisions over some contrary provisions that may be found
8
either in the same enactment or some other enactment, that
is to say, to avoid the operation and effect of all contrary
provisions -
Mines and Minerals (Development and
Regulation) Act, 1957.
Statute mandatory or directory - Held: The question
C whether a statute is mandatory or directory depends upon the
intent of the Legislature and not upon the language in which
t""'. intent is clothed.
D
Disposing of the appeals, the Court
HELD: 1. There cannot be any two opinions that
natural resources are the assets of the nation and its
citizens. It is the obligation of all concerned, including the
Central and the State Governments, to conserve and not
waste such valuable resources. Article 48-A of the
E Constitution requires that the State shall endeavour to
protect and improve the environment and safeguard the
forests and wild life of the country. Similarly, Article 51-A
enjoins a duty upon every citizen to protect and improve
the natu'ral environment including forests, lakes, rivers
F and wild life, and to have compassion for all the living
creatures. In view of the Constitutional provisions, the
Doctrine of Public Trust has become the law of the land.
The said doctrine rests on the principle that certain
resources like air, sea, waters and forests are of such
G great importance to the people as a whole that it would
be highly unjustifiable to make them a subject of private
ownership. Reading the provisions of the MMDR Act
minutely and carefully, prima facie there is no complete
and absolute bar in prosecuting persons under the Indian
H
STATE OF NCT OF DELHI v. SANJAY
1065
Penal Code where the offences committed by persons
A
are penal and cognizable offence. [Paras 55, 56] [1115G, H; 1116-A-D]
M. Pa/anisamy v. The State of Tamil Nadu 2012 (4) CTC
1; Centre for Public Interest Litigation v. Union of India (2012)
8
3 SCC 1: 2012 (3) SCR 147; M. C. Mehta v. Kamal Nath
(1997) 1 SCC 388: 1996 (10) Suppl. SCR 12; Intellectuals
Forum v. State of A.P. (2006) 3 SCC 549: 2006 (2) SCR 419;
Manohar Lal Sharma v. Principal Secretary (2014} 2 SCC
532; State of M.P. v. Ram Singh (2000) 5 SCC 88:
2000
(1) SCR 579; Directorate of Enforcement v. Deepak Mahajan,
C
(1994) 3 SCC 440: 1994 (1) SCR 445; Maqbool Hussain v.
State of Bombay, AIR 1953 SC 325: 1953 SCR 73.0; State
of Bombay v. S.L. Apte AIR 1961 SC 578:1961 SCR 107;
T. S. Baliah v. /TO AIR 1969 SC 701: 1969 SCR 65; Collector
of Customs v. Vas

## Text

_Characters 0–39,857 of 111,465. This is a partial read: ask again with offset=39857 for what follows._

[2014] 9 S.C.R. 1063
STATE OF NCT OF DELHI
v.
SANJAY
(Criminal Appeal No. 499 of 2011)
SEPTEMBER 04, 2014
[M.Y. EQBAL AND PINAKI CHANDRA GHOSE, JJ.]
Mines and Minerals (Development and Regulation) Act,
1957:
Object and legislative intent behind enactment -
Discussed.
A
B
c
Illegal sand mining - Adverse impact of - Discussed.
ss.21, 22 - Whether the provisions contained in ss.21,
D
22 and other sections of MMDR Act operate as bar against
prosecution of a person who has been charged u/ss. 3791114
and other provisions of the /PC - Held: A close reading of
the provisions of MMDR Act and the offence defined u/s.378,
/PC shows that the ingredients constituting the offence are
E
different -
The contravention of terms and conditions of
mining lease or doing mining activity in violation of s.4 of the
Act is an offence punishable uls.21 of the MMDR Act,
whereas dishonestly removing __ §g_{ld, gravels and other
minerals from the river, whicnTs the property of the State, out
F
. of State's possession without the consent, constitute an
offence of theft - Therefore, in a case where there is a theft of
sand and gravels from the Government /aQd, the police can
register a case, investigate the same and submit a final report
u/s. 173, Cr.P. C. before the Magistrate having jurisdiction for G
,(h~ ,PF,rpose of taking cognizance as provided in s.190(1)(d),
Cr.P. C. - Penal Code, 1860 - ss. 3791114 - Constitution of
India, 1950 -Arts 48-A, 51-A - Doctrine of Public Trust.
1063
H
1064
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A
Interpretation of statutes:
Non-obstante clause - Held: Is a legislative device which
is usually employed to give overriding effect to certain
provisions over some contrary provisions that may be found
8
either in the same enactment or some other enactment, that
is to say, to avoid the operation and effect of all contrary
provisions -
Mines and Minerals (Development and
Regulation) Act, 1957.
Statute mandatory or directory - Held: The question
C whether a statute is mandatory or directory depends upon the
intent of the Legislature and not upon the language in which
t""'. intent is clothed.
D
Disposing of the appeals, the Court
HELD: 1. There cannot be any two opinions that
natural resources are the assets of the nation and its
citizens. It is the obligation of all concerned, including the
Central and the State Governments, to conserve and not
waste such valuable resources. Article 48-A of the
E Constitution requires that the State shall endeavour to
protect and improve the environment and safeguard the
forests and wild life of the country. Similarly, Article 51-A
enjoins a duty upon every citizen to protect and improve
the natu'ral environment including forests, lakes, rivers
F and wild life, and to have compassion for all the living
creatures. In view of the Constitutional provisions, the
Doctrine of Public Trust has become the law of the land.
The said doctrine rests on the principle that certain
resources like air, sea, waters and forests are of such
G great importance to the people as a whole that it would
be highly unjustifiable to make them a subject of private
ownership. Reading the provisions of the MMDR Act
minutely and carefully, prima facie there is no complete
and absolute bar in prosecuting persons under the Indian
H
STATE OF NCT OF DELHI v. SANJAY
1065
Penal Code where the offences committed by persons
A
are penal and cognizable offence. [Paras 55, 56] [1115G, H; 1116-A-D]
M. Pa/anisamy v. The State of Tamil Nadu 2012 (4) CTC
1; Centre for Public Interest Litigation v. Union of India (2012)
8
3 SCC 1: 2012 (3) SCR 147; M. C. Mehta v. Kamal Nath
(1997) 1 SCC 388: 1996 (10) Suppl. SCR 12; Intellectuals
Forum v. State of A.P. (2006) 3 SCC 549: 2006 (2) SCR 419;
Manohar Lal Sharma v. Principal Secretary (2014} 2 SCC
532; State of M.P. v. Ram Singh (2000) 5 SCC 88:
2000
(1) SCR 579; Directorate of Enforcement v. Deepak Mahajan,
C
(1994) 3 SCC 440: 1994 (1) SCR 445; Maqbool Hussain v.
State of Bombay, AIR 1953 SC 325: 1953 SCR 73.0; State
of Bombay v. S.L. Apte AIR 1961 SC 578:1961 SCR 107;
T. S. Baliah v. /TO AIR 1969 SC 701: 1969 SCR 65; Collector
of Customs v. Vasantraj Bhagwanji Bhatia 1988 (3) SCC 467:
D
1988 (3) SCR 450; Leo Roy Frey v. Thomas Dana AIR 1958
SC 119: 1958 SCR 822; State of Bihar v. Murad Ali Khan
and Ors. (1988) 4 sec 655:1988 (3) Suppl. SCR 455;
Institute of Chartered Accountants of India v. Vimal Kumar
Surana (2011) 1 SCC 534: 2010 (14) SCR 248; State of E
Rajasthan vs. Hat Singh (2003) 2 SCC 152: 2003 (1) SCR 38
- referred to.
Avtar Singh vs. State of Punjab AIR 1965 SC 666: 1965
SCR 103 - Distinguished.
F
Sengol, Charles and K. Kannan, etc.etc. vs. State Rep.
by Inspector of Police 2012 Cri LJ 1705, 2012(2) CTC 369;
Smt. Seema Sarkar vs. The State (1995)1 CALLT 95(HC) -
referred to.
G
2. Sub-section (1A) of Section 4 of the MMDR Act
puts a restriction in transporting and storing any mineral
otherwise than in accordance with the provisions of the
Act and the rules made thereunder. In other words no
person will do mining activity without a valid lease or
H
1066
SUPREME COURT REPORTS
[2014) 9 S.C.R.
A license. Section 21 is a penal provision according to
which if a person contravenes the provisions of Subsection (1A) of Section 4 shall be prosecuted and
punished in the manner and procedure provided in the
Act. Section 22 of the Act puts a restriction on the court
s to take cognizance of any offence punishable under the
Act or any rule made thereunder except upon a complaint
made by a person authorized in this behalf. Section 21
does not begin with a non-obstante clause. Instead of the
words "notwithstanding anything contained in any law
c for the time being in force no court shall take
cognizance ..... ", the Section begins wit!t the words "no
court shall take cognizance of any offence." It is well
known that a non-obstante clause is a legislative device
which is usually employed to give overriding effect to
0 certain provisions over some contrary provisions that
may be found either in the same enactment or some other
enactment, that is to say, to avoid the operation and effect
of all contrary provisions. The question is whether a
statute is mandatory or directory depends upon the intent
of the Legislature and not upon the language in which
E the intent is clothed. [Paras 57 to 60, 63] [1116-E-H; 1117A-B; 1118-A]
3. Considering the principles of interpretation and
the wordings used in Section 22, the provision is not a
F complete and absolute bar for taking action by the police
for illegal and dishonestly committing theft of minerals
including sand from the river bed. The Court shall take
judicial notice of the fact that over the years rivers in India
have been affected by the alarming rate of unrestricted
G. sand mining which is damaging the eco-system of the
rivers and safety of bridges. It also weakens river beds,
fish breeding and destroys the natural habitat of many
organisms. If these illegal activities are not stopped by
the State and the police authorities of the State, it will
H cause serious repercussions. [Paras 66,67] [1119-8-E]
STATE OF NCT OF DELHI v. SANJAY
1067
4. There cannot be any dispute with regard to
A
restrictions imposed under the MMDR Act and remedy
provided therein. In any case, where there is oa mining
activity by any person in contravention of the provisions
of Section 4 and other sections of the Act, the officer
empowered and authorized under the Act shall exercise
8
all the powers including making a complaint befor-e the
jurisdictional magistrate. The Magistrate shall in such
cases take cognizance on the basis of the complaint filed
before it by a duly authorized officer. In case of breach
and violation of Section 4 and other provisions of the Act, c
the police officer cannot insist Magistrate for taking
cognizance under the Act on the basis of the record
-submitted by the police alleging contravention of the said
Act. In other words, the prohibition contained in Section
22 of the Act against prosecution of a person except on
0
a complaint made by the officer is attracted on!y when
such person sought to be prosecuted for contravention
of Section 4 of the Act and not for any act or omission
which constitute an offence under Indian Penal Code.
However, there may be situation where a person without
any lease or licence or any authority enters into river and
E
extracts sands, gravels and other minerals and remove
or transport those minerals in a clandestine manner with
an intent to remove dishonestly those minerals from the
possession of the State, is liable to be punished for
committing such offence under Sections 378 and 379,
IPC. [Paras 68, 69] [1119-F-H; 1120-A-C]
5. A close reading of the provisions of MMDR Act and
F
the offence defined under Section 378, IPC make it clear
that the ingredients constituting the offence are different.
G
The contravention of terms and conditions of mining
lease or doing mining activity in violation of Section 4 of
the Act is an offence punishable under Section 21 of the
MMDR Act, whereas dishonestly removing sand, gravels
and other minerals from the river, which is the property
H
1068
SUPREME COURT REPORTS
[2014) 9 S.C.R.
A of the State, out of State's possession without the
consent, constitute an offence of theft. Hence, for the
·commission of offence under Section 378 Cr.P.C., on
receipt of the police report, the Magistrate having
jurisdiction can take cognizance of the said offence
B without awaiting the receipt of complaint that may be filed
by the authorized officer for taking cognizance in respect
of violation of various provisions of the MMRD Act. [Paras
70 to 72] [1120-D-E; 1121-B-C]
, C
Pratap Singh vs. Shri Krishna Gupta AIR 1956 SC 140;
State of UP. vs. Babu Ram Upadhya AIR 1961 SC 751 -
relied on,
D
E
F
G
H
Liverpool Borough v. Turner Lord Campbell (1861) 30
L.J. Ch.379 - referred to.
Maxell on the Interpretation of Statutes 10th Edn.-
referred to.
Case Law Reference:
2012 Cri LJ 1705,
referred to
Para 11
2012(2) CTC 369
(1995)1 CALLT 95(HC)
referred to
Para 13
2012 (4) CTC 1
referred to
Para 35
2012 (3) SCR 147
referred to
Para 36
1996 (10) Suppl. SCR 12 referred to
Para 37
2006 (2) SCR 419
referred to
Para 38
(2014) 2 sec 532
referred to
Para 39
2000 (1) SCR 579
referred to
Para 40
1994 (1) SCR 445
referred to
Para 41
1953 SCR 730
referred to
Para 42
STATE OF NCT OF DELHI v. SANJAY
1069
1961 SCR 107
referred to
Para 44
.1969 SCR 65
referred to
Para 45
1988 (3) SCR 450
referred to
Para 46
1958 SCR 822
referred to
Para 47
1988 (3) Suppl. SCR 455 referred to
Para 49
2003 (1) SCR 38
referred to
Para 51
1965 SCR 103
Distinguished
Para 52
2010 (14) SCR 248
referred to
Para 54
AIR 1956 SC 140
relied on
Para 62
AIR 1961 SC 751
relied on
Para 65
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 499 of 2011.
From the Judgment & Order dated 17.03.2009 in Writ
Petitiobn (Criminal) No. 5.82 of 2008 by the High Court of Delhi
A
B
c
D
at New Delhi.
E
WITH
Crl. A. Nos. 2108-2112, 2107, 2106 and 2105 of 2013.
Anil Katiyar, Abhijat P. Medh, Nikhil Goel, A. Venayagam
F
Balan for the Appellant.
R.C. Kaushik, Pinky Behra, Preeti Bhardwaj (for
Hemantika Wahi) for the Respondent.
The Judgment of the Court was delivered by.
G
M.Y.EQBAL, J. 1. The principal question which arises for
consideration in these appeals is whether the provisions
contained in Sections 21, 22 and other sections of Mines and
Minerals (Development and Regulation) Act, 1957 operate as
H
1070
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A bar against prosecution of a person who has been charged with
allegation which constitutes offences under Section 379/114
and other provisions of the Indian Penal Code. In other words,
whether the provisions of Mines and Minerals Act explicitly or
impliedly excludes the provisions of Indian Penal Code when
B the act of an accused is an offence both under the Indian Penal
Code (in short, 'IPC') and under the provisions of Mines and
Minerals (Development and Regulation) Act.
2. Criminal Appeal No.499 of 2011 arose out of an order
passed by the Delhi High Court on an application under Section
C 482 Cr.P.C. seeking quashing of the FIR registered at Police
Station Alipur under Sections 379/114/1208/34 IPC on the
allegation that appellant was involved in illegal mining of sand
from the Yamuna basin. An FIR was registered by the police
suo motu having come to know that some persons were
D removing and selling sand from the Yamuna basin for the last
so many days. On receipt of such information, the police
officers committed raid and visited the site where they found
one dumper filled with sand. Because of non-production of any
documents and valid papers, the digging equipments were
E seized and taken into possession and persons were arrested.
An FIR was registered on the charges of illegal mining under
Section 379/114 IPC besides being cognizable offence under
Section 21 (4) of the Mines and Mineral (Development and
Regulation) Act, 1957 (in short the MMDR Act).
3. The appellant challenged the registration of the case on
the ground inter alia that offence if at all committed, cognizance
would have been taken under the provisions of MMDR Act, that
too on the basis of complaint to be filed under Section 22 of
G the Act by an authorized officer.
4. Criminal Appeal No.2105 of 2013
Similarly this case arose 9ut of an order passed by the
Gujarat High Court on an application filed by the appellant
H seeking quashing of the FIR on various grounds inter alia that
STATE OF NCT OF DELHI v. SANJAY
1071
[M.Y. EQBAL, J.]
Section 22 of the MMDR Act put a complete bar on .the
A
registration of FIR by the police. The allegation inter alia in the
FIR was on illegal mining in those areas where mining lease
was already revoked.
5. Criminal Appeal Nos. 2108-2112 of 2013
B
In these cases, appellants are the owners of Murlidhar
Stone Industries and were granted quarry lease in the seam of
Village Thoriwari for excavation of mines and minerals on
payment of royalty. The appellants challenged the legality and
validity of mining complaint lodged by the State geologist
C
against them for offences under Section 379/114 of IPC .and
under Section 21 of the MMDR Act. The appellants sought an
. appropriate writ or direction to quash and set aside the criminal
proceedings on the same ground that Section 22 of the Act
prohibits registration of FIR with respect to offences punishable
D
under the said MMDR Act.
6. Criminal Appeal No.2107 of 2013
E
This appeal also arose out of the order passed by the High
Court of Gujarat on the application challenging the legality and
validity of criminal complaint filed before Bhuj Taluka Police
Station for the alleged illegal mining and transporting a dumper
loaded with black trap stone. A complaint was made with the
police for the commission of offence under Section 379 read
with Section 114 of the IPC and Linder Section 21 of the MMDR
F
Act.
7. Criminal Appeal No.2106 of 2013
This appeal also arose out of a complaint filed before
Sayla Police Station by the lncharge Mines Supervisor, alleging
G
offence punishable under Sections 4(1) and 21(1) of the MMDR
Act. No charge sheet has been filed in this complaint so fa_r.
8. Criminal Appeal No.499 of 2011, as stated above,
H
1072
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A arose out of the order passed by the Delhi High Court. The
Delhi High Court formulated three issues for consideration:-
B
c
(1) Whether the police could have registered an FIR in the
case;
(2) Whether a cognizance can be taken by the concerned
Magistrate on the basis of police report; and
(3) Whether a case of theft was made out for permitting
registration of an FIR under Section 379/411 of the Indian
Penal Code.
The High Court after referring various provisions on the
MMDR Act vis-a-vis Code of Criminal Procedure disposed of
the application directing the respondent to amend the FIR, which
D was registered, by converting the offence mentioned therein
under Section 379/411/1208/34 of IPC to Section 21 of the
MMDR Act. The Higt'I Court in para 18 of the impugned order
held as under:-
"18. In view of the aforesaid and taking into consideration
E
the provisions contained under Section 21 (6) of the said
Act I hold that:
F
G
H
(i) The offence under the said Act being cognizable
offence, the Police could have registered an FIR in this
case;
(ii) However, so far as taking cognizance of offence
under the said Act is concerned, it can be taken by the
Magistrate only on the basis of a complaint filed by an
authorized officer, which may be filed along with the police
report;
(iii) Since the offence of mining of sand without
permission is punishable under Section 21 of the said Act,
the question of said offence being an offence under
Section 379 IPC does not arise because the said Act
STATE OF NCT OF DELHI v. SANJAY
1073
[M.Y. EQBAL, J.]
makes illegal mining as an offence only when there is no
A
permit/licence for such extraction and a complaint in this
regard is filed by an authorized officer."
9. On the other hand the Gujarat High Court formulated the
following question for co'nsideration:-
Whether Section 22 of the Act would debar even lodging
an FIR before the police with respect to the offences
punishable under the said Act and Rules made
thereunder?
In Case such FIR's are not debarred and the police are
permitted to investigate, can the concerned Magistrate
take cognizance of the offences on a police report?
B
c
What would be the effect on the offences punishable under
the Indian Penal Code in view of the provisions contained
D
in the Act?
10. The Gujarat High Court came to the following
conclusion:-
E
(i) The offence under the said Act being cognizable
offencE>. the Police could have registered an FIR in this
case;
(ii) However, so far as taking cognizance of offence under
the said Act is concerned, it can be taken by the Magistrate
F
. only on the basis of a complaint filed by an authorized
officer, which may be filed along with the Police report;
(iii) Since the offence of rriining of sand without permission
is punishable under Section 21 of the said Act, the
G
question of said offence being an offence under Section
379 IPC do~s riot arise because the said Act makes
illegal mining as an offence only when there is no permit/
licence for such extraction and a complaint in this regard
is filed by an authorized officer.
H
A
B
c
D
E
F
1074
SUPREME COURT REPORTS
[2014] 9 S.C.R.
The High Court, therefore, held that:-
1. Section 22 of the Act does not prohibit registering an
FIR by the police on information being given with respect
to offences punishable under the said Act or the Rules
made thereunder.
2. It is however, not open for the Magistrate to take
cognizance of the offence punishable under the Act or the
Rules made there under on a mere charge- sheet filed by
the police. It would, however, be open for the officer
authorized by the state or the Central Government in this
behalf to file a complaint in writing before the Magistrate
relying upon the investigating carried out by the police and
the complaint may also include the papers of the police
investigation.
3. With respect to offences punishable under the Indian
Penal Code, no such bar as indicated in para (2) would
apply.
xxxxxxx
22. In so far as the petitions where only FIRs have been
registered by the police and no charge sheet is filed, they
must fail. In so far as the cases where police investigation
has been concluded and charge sheets have been filed,
it would not be open for the Magistrate concerned to take
cognizance of offences only on such police reports.
11. In the case of Sengol, Charles and K. Kannan, etc.etc.
vs. State Rep. by Inspector of Police, 2012 Cri LJ 1705,
2012(2) CTC 369, a similar question also came for
G consideration before the Madras High Court where a batch of
writ petitions were heard and disposed of. The allegation made
against the writ petitioner in the FIR was that they committed
theft of sand from rivers and river-bed belonging to the
Government, which act also constitutes violation of the
H
STATE OF NCT OF DELHI v. SANJAY
1075
[M.Y. EQBAL, J.]
provisions of MMDR Act. Accordingly, they were prosecuted
A
for the offence punishable under Section 21 of the MMDR Act
and also under Section 379 IPC. The question that came for
consideration before the Court was as to whether the provisions
of the Mines and Minerals (Development and Regulation) Act,
1957, will either explicitly or impliedly exclude the provisions of
B
the Indian Penal Code when the act of an accused is an offence
both under the Indian Penal Code and under the Provisions of
the Mines and Minerals (Development and Regulation) Act,
1957?
c
12. After considering various provisions of the Act, the
Division Bench observed:-
"35. A cursory comparison of these two provisions with
Section 378 of IPC would go to show that the ingredients
are totally different. The contravention of the terms and
D
conditions of mining lease, etc. constitutes an offence
punishable under Section 21 of the Mines and Minerals
Act, whereas dishonestly taking any movable property out
of the. possession of a person without his consent
constitutes theft. Thus, it is undoubtedly clear that the
E
ingredients of an offence of theft as defined in Section 378
of IPC are totally different from the ingredients of an
offence punishable under Section 21 (1) r/w Section 4(1)
and 4(1A) of the Mines and Minerals Act."
13. The Calcutta High Court in the C(\se of Smt. Seema
Sarkar vs. The State, (1995)1 CALLT 95(HC), has taken a
different view. In this case the Block Land Reforms Officer
lodged a complaint with the Police Station alleging inter a/ia
F
that the accused persons unauthorisedly excavated the land of
ordinary clay for manufacturing brick without an authorized
G
licence and thereby violated Section 21 (2) of the MMDR Act
and Section 379 IPC. The Bhatar police station registered the
complaint treating it as an FIR and GR case was started before
the sub-divisional judicial Magistrate, Faridabad. The order
taking cognizance and also the complaint was challenged by
H
1076
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A the accused persons on the ground inter alia that no court is
competent and empowered to take cognizance of an offence
under the MMDR Act, 1957 unless the complaint is being
lodged by an authorizea person. Quashing· the complaint, the
B
c
D
E
F
G
Calcutta High Court held as under:-
"6. The learned Magistrate has taken cognizance of. the
offence on the basis of the charge-sheet as submitted by
the Police under Section 21 (2) of the Mines and Minerals
(Regulation and Development) Act, 1957 and Section 379
of the Indian Penal Code. Cognizance can be taken under
section 190 of the Code of Criminal Procedure, 1973.
Cognizance is one and it cannot be divided. Splitting of
cognizance is not permissible under the law. This is the
admitted position that the complainant who lodged the
complaint is not an authorized person to make such
complaint. So taking cognizance on the basis of the
complaint by the learned Magistrate for violation of-the
provision under Section 21 (2) of the Mines and Minerals
(Regulation and Development) Act, 1957 is bad. The only
question that is left open is whether taking cognizance itself
is bad or a partial cognizance can be taken? In the
peculiarity of the facts and circumstances of the case if the
offence as alleged under Section 379 1.P.C. against the
accused is dissociated from the allegation of excavation
of earth without license constituting an offence under
Section 21 (2) of the Mines and Minerals (Regulation and
Development) Act, 1957, then there is no ingredient for an
offence under Section 379 l.P.C. against the accused.
Even if it is assumed that there is such an ingredient then
the order of taking cognizance is bad because cognizance
is one and it cannot be made a split. If it is found that taking
cognizance of an offence is bad the other part of the
offence for which cognizance has been taken cannot be
sustained in law."
14. Since conflicting views have been taken by Gujarat
H High Court, Delhi High Court, Kerala High Court, Calcutta High
STATE OF NCT OF DELHI v. SANJAY
1077
[M.Y. EQBAL, J.]
Court, Madras High Court and Jharkhand High Court, and they
A
are in different tones, it is necessary to settle the question
involved in these appeals.
B
15. Mr. Nikhil Goel learned counsel appearing in Criminal
Appeal Nos. 2105, 2106 and 2107 of 2013 assailed the
impugned order of the High court on various grounds. Learned
counsel firstly contended that Section 22 of MMDR Act per se
puts a bar even on registration of the FIR and consequently on
investigation unless a direction to that effect comes from the
Magistrate and that too on a complaint in writing made by a
person authorized in this behalf. Learned counsel contended
C
that Section 21 (6) of the Act makes the offence under subsection 1 of Section 21 to be cognizable irrespective of
anything contained to the contrary in the Code of Criminal
Procedure. Learned counsel contended that both Section 21 (6)
and Section 22 if read independently on each other would
D
make the other provision otiose. As a result, the bar under
Section 22 of the Act would not only prevail upon the provisions
contained in Section 190, Cr.P.C. but would prevail over the
chapter of the investigation, namely Chapter 12 Cr.P.C.
16. Learned counsel further submitted that in case the
cognizability of the offence contained in sub-clause 6 of Section
21 is to be extended to include applicability of Chapter 12 of
the Criminal Procedure Code, without complying with the
provisions of Section 22, the same would present at least three
difficulties. Firstly, there are several provisions after the stage
E
F
of filing of charge-sheet which would be contrary to the
provisions and the rules contained in the 1957 Act. These
provisions in the act and the rules framed under the 1957
legislation inescapably indicate that almost everything relating
G
to an offence under the provisions of Section 21 has to be done
by the authorized officer. Accordingly, if the provisions of
Section 21(6) are to be extended to Chapter 12, while the
police may register an FIR, the power to seize, the power to
compound, the requirement of taking directions from the
H
1078 . SUPREME COURT REPORTS
[2014] 9 S.C.R.
A jurisdictional magistrate are examples of some things which the
police cannot do in view of direct contrary to the provisions in
the 1957 Act. Learned counsel submitted that this power of the
police is equivalent to the same power/duty which arises
pursuant to an order of the Magistrate under Section 156 [3].
s There would definitely be cases where offences punishable
under Section 20 were brought to the notice of persons who
were neither authorized person under the Act nor the police.
Therefore in such a situation, if the police fails to act, the other
option available to any person is to make an application under
c · Section 156 [3]. However, in this case, the learned Magistrate
has no jurisdiction to pass an order under this provision in view
of paragraph 11. Therefore, it will be a completely incongruous
situation if the provisions of sub-clause 6 of Section 21 are to
be extended to Chapter 12 despite which several provisions
0
in Chapter 12 cannot be invoked.
17. Learned counsel further submitted that the provisions
of Chapter 12 to 14 leading up to the magistrate taking
cognizance of an offence are a part of a common statutory duty.'
The investigation under Section 156 of the Code has to
E necessarily result in a report either under Section 170 or 173
of the Code. The appellant submits that the magistrate is duty
bound to act on such report in one of the three manners
suggested in para-6 of 1980 (4) SCC 631. It is submitted that
there is no other option of preparation of final report and keep
F it in abeyance. For this reason as well, the provisions of subsection (6) cannot be read into Chapter 12 of the code.
Learned counsel further submitted that the manner in which the
various high courts have dealt with these provisions are
conflicting. The appellant relies upon the decision of Kerala
G High Court reported in 2008 Cr.L.J. 2388, decision of Madras
High Court in Sengol (supra), the judgments of this Court
reported in (2009) 7 sec 526 and (2011) 1 sec 534 on the
· interpretation of similar clauses under different enactments. It
was contended that if the intention of the Legislature was to
H make violation of the provisions of Section 4 of the MMDR Act
STATE OF NCT OF DELHI v. SANJAY
1079
[M.Y. EQBAL, J.]
as an offence of theft, there would have been, an appropriate
A
provision in the MMDR Act itself. The counsel submits that there
is a specific purpose for which powers have been given to the
authorized person to take care of breaches under the Act and
as such breaches are to be tried under the general penal law
as it would take away the protection which an accused/suspect
B
has been given under the MMDR Act. The appellant submits
that all penal statutes have to be construed strictly and wherever
there are two views possible, benefit to an accused has to be
given.
18. Before answering the question, we shall first refer in
brief the relevant provisions of Mines and Minerals
(Development and Regulation) Act, 1957 and Code of Criminal
Procedure. Section 4 of the Act puts a restriction on mining
operation or prospecting mining operation by any person
except under a lease or licence. Section 4 reads as under:-
"4. Prospecting or mining operations to be under
licence or lease. (1) No person shall undertake any
reconnaissance, prospecting or mining operations in any
area, except under and in accordance with the terms and
conditions of a reconnaissance permit or of a prospecting
licence or, as the case may be, a mining lease, granted
under this Act and the rules made thereunder:
Provided that nothing in this sub-section shall affect any
prospecting or mining operations undertaken in any area
in accordance with the terms and conditions of a
prospecting licence or mining lease granted before the
commencement of this Act which is in force at such
commencement.
Provided further that nothing in this sub-section shall apply
to any prospecting operations undertaken by the
Geological Survey of India, the Indian Bureau of Mines, the
Atomic Minerals Directorate for Exploration and Research
c
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G
o, .he Department of Atomic Energy of the Central
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SUPREME COURT REPORTS
[2014] 9 S.C.R.
Government, the Directorates of Mining and Geology of any
State Government (by whatever name called), and the
Mineral Exploration Corporation Limited, a Government
Company within the meaning of Section 617 of the
Companies ACft, 1956.
Provided also that nothing in this sub-section shall apply
to any mining lease (whether called mining lease, mining
concession or by any other name) in force immediately
before the commencement of this Act in the Union Territory
of Goa, Daman and Diu.
(1A) 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.
(2) No reconnaissance permit, prospecting licence or
mining lease shall be granted otherwise than in
accordance with the provisions of this Act and the rules
made thereunder.
(3) Any State Government may, after prior consultation with
the Central Government and in accordance with the rules
made under Section 18, undertake reconnaissance,
prospecting or mining operations with respect to any
mineral specified in the First Schedule in any area within
that State which is not already held under any
reconnaissance permit, prospecting licence or mining
lease."
19. From a bare perusal of Section 4, particularly Section
G 4(1 A) would show that there is a total restriction on
transportation or search of minerals otherwise than in
accordance with the provisions of the Act and the rules made
. thereunder. The next relevant provisions are Sections 21 and
22 of the Act. Section 21 reads as under:-
H
STATE OF NCT OF DELHI v. SANJAY
1081
[M.Y. EQBAL, J.]
"Penalties 21. (1) Whoever contravenes the provisions of
A
sub-section (1) or sub-section (1A) of section 4 shall be
punished with imprisonment for a term which may extend
to two years, or with fine which may extend to twenty-five
thousand rupees, or with both.
(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 one year
or with fine which may extend to five thousand rupees, or
with both, and in the case of a continuing contravention,
with an additional fine which may extend to five hundred
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.
B
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(4A) Any mineral, tool, equipment, vehicle or any o!her
.thing seized under sub-section (4), shall be liable to be
G
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.
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SUPREME COURT REPORTS
[2014] 9 S.C.R.
(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, an offence under sub-section
(1) shall be cognizable."
20. Section 21 is a penalty provision in case of
contravention of Section 4( 1 A) of the Act and is punishable with
imprisonment for a term which may extend to two years. SubD section 3 of Section 21 would show that the State Government
or any other authority authorized by the State Government may
obtain the help of police to evict the trespassers from the land
who is doing mining activity in contravention of the provisions
of the Act. Sub-section 4 further empowered the officer or an
E authority specially empowered in this behalf to seize any tool,
equipment, vehicle or any other thing which are used by any
person who illegally or without any lawful authority erases,
transports any minerals from any land. Those minerals, tools,
equipment or vehicle or any other thing so seized shall be
F confiscated by the order of the court competent to take
cognizance and shall be disposed of in accordance with the
direction of such court as contemplated under sub-section 4(A)
of Section 4 of the Act. Sub-section (6) of Section 21 has been
inserted by an Amendment Act of 1986 whereby an offence
under Sub-section (1) of this Section has been made
G cognizable. Section 22 which is very relevant for the instant
case needs to be quoted hereinbelow :-
"22. Cognizance of offences
H
No court shall take cognizance of any offence punishable•
STATE OF NCT OF DELHI v. SANJAY
1083
[M.Y. EQBAL, J.]
under this Act or any rules made thereunder except upon
A
complaint in writing made by a person authorised in this
behalf by the Central Government or the State
Government."
21. Reading the aforesaid provision would show that
8
cognizance of any offence punishable under the Act or the
Rules made thereunder shall be taken only upon a written
complaint made by a person authorized in this behalf by the
Central Government or the State Government.
22. Section 23(8) confers power to any gazetted officer
C
of the Central or State Government authorized on that behalf
to make search of minerals, documents or things in case there
is a reason to believe that any mineral has been raised in
contravention of the Act or the Rules made thereunder. While
making search provisions of Section 100 of Code of Criminal
D
Procedure has been made applicable to every search.
"238. Power to search -. If any gazetted officer of the
Central or a State Government authorised by the Central
Government [or a State Government, as the case may be,
in this behalf by general or special order has reason to
believe that any mineral has been raised in contravention
of the provisions of this Act or rules made thereunder or
any document or thing in relation to such mineral is
secreted in any place [or vehicle,] he may search for such
mineral, document or thing and the provisions of section
100 of the Code of Criminal Procedure, 1973 shall apply
to every such search."
23. In exercise of powers conferred by Section 23(C)(1)
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of the MMDR Act, the Government of Gujarat made rules called
G
Gujarat Mineral (Prevention of Illegal Mining, Transportation and
Storage) Rules, 2005. The said Rules, inter alia, made
provisions to search, seizure and confiscation of the property
....
in the manner provided under the Act as and when a person
H
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SUPREME COURT REPORTS
[2014) 9 S.C.R.
A violates the provisions of the Act and the Rules made thereunder
· in doing mining activities.
24. Looking into the provisions the Code of Criminal
Procedure, 1973 the relevant provisions need to be referred
8
hereunder. Section 2(c), 2(d) and 2(h) define cognizable
offence, complaint and investigation which reads as under :-
c
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"2(c) "cognizable offence" means an offence for which, and
"cognizable case" means a case in which, a police officer
may, in accordance with the First Schedule or under any
other law for the time being in force, arrest without warrant;
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.
2(h) "investigation" includes all the proceedings under this
Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf;"
25. Section 4 provides that all offences under the Indian·
Penal Code shall be investigated, inquired into, tried and
otherwise dealt with according to the provisions contained in
F the said Code. Sub-section (2) of Section 4 provides that all
offences under any other law shall be inquired into, tried and
otherwise dealt with according to the same provisions but
subject to any enactment regulating the mining or place of
investigation, inquiry or trial of such offences. Coming to the
G provisions of Section 41 of the Code, it will show that a police
officer without an order of Magistrate and warrant can arrest
any person who commits a cognizable offence. The Court may
also arrest any person against whom a reasonable complaint
has been made or credible information has been received or
,,
H a reasonable suspicion exist that he has committed a
STATE OF NCT OF DELHI v. SANJAY
1085
[M.Y. EQBAL, J.]
cognizable offence punishable with imprisonment for a term
A
which made less than seven years. The relevant part of Section
41, Cr.P.C. is quoted hereinbelow:-
"41.