HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.13215, 13216, 13283 and 13288 of 2014 Date: 13-11-2014 Crl.P.No.13215 of 2014:
Between Amanchi Srinivasa Rao @ Swamulu … Petitioner/ Accused No.3 and The State of A.P., Through SHO, Vetapalem PS, Prakasam District, Rep. by Public Prosecutor, High Court at Hyderabad … Respondent Crl.P.No.13216 of 2014:
Between Amanchi Srinivasa Rao @ Swamulu … Petitioner/ Accused No.3 and The State of A.P., Through SHO, Vetapalem PS, Prakasam District, Rep. by Public Prosecutor, High Court at Hyderabad … Respondent Crl.P.No.13283 of 2014:
Between Amanchi Srinivasa Rao @ Swamulu … Petitioner/ Accused No.4 and The State of A.P., Through SHO, Vetapalem PS, Prakasam District, Rep. by Public Prosecutor, High Court at Hyderabad … Respondent Crl.P.No.13288 of 2014:
Between Amanchi Srinivasa Rao @ Swamulu … Petitioner/ Accused No.15 and The State of A.P., Through SHO, Vetapalem PS, Prakasam District, Rep. by Public Prosecutor, High Court at Hyderabad … Respondent HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.13215, 13216, 13283 and 13288 of 2014 Common Order:
The State through Station House Officer, Vetapalem Police Station, Prakasam District laid various cases against the petitioner under Section 379 IPC and under Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (the Mines Act, for short), as well as under Section 3 of the Prevention of Damage to Public Property Act. The petitioner challenges 4 of the cases seeking the quashment of the First Information Reports (FIRs). As the petitioner is common in all the 4 cases and the nature of the allegations more or less are common, these petitions are disposed of through this common order.
2. The petitioner is accused No.3 in Crime No.143 of 2014. Police allegedly intercepted a lorry proceeding from Ongole side at Vetapalem Bye-Pass Road Junction as the lorry was carrying sand. Allegedly he collected sand from the quarry of the petitioner at Pandillapalli by making payments. Considering that the petitioner has no authority to quarry sand, a case was instituted against him and others. The prosecution alleged that the petitioner committed theft of sand and also violated the provisions of Section 4(1A) of the Mines Act by allowing the transport of sand resorting to illegal mining. It is also alleged that the activity of the petitioner was tantamount to damage to public property, so much so, the petitioner was liable for punishment under Section 3 of the Prevention of Damage to Public Property Act. Consequently, the petitioner seeks for the quashment of the FIR.
3. Same allegations are made leading to registration of FIRs in Crime Nos.142 of 2014, 144 of 2014 and 146 of 2014. The petitioner is accused No.3 not only in Crime No.143 of 2014 but also in Crime No.142 of 2014.
He is accused No.4 in Crime No.144 of 2014 and is accused No.15 in Crime No.146 of 2014.
4. When Smt. K.Sesharajyam, learned Senior Counsel for the petitioner, sought for the quashment of the FIRs, the learned Public Prosecutor stoutly opposed the contentions of the learned Senior Counsel.
The learned Public Prosecutor submitted that there are several instances of the petitioner committing the offences leading to various FIRs and that where the petitioner has more or less became a habitual offender in respect of transportation of sand illegally, the petitioner shall not be entitled to any relief much less quashment of the FIRs.
5. The learned Senior Counsel for the petitioner submitted that the petitioner possesses licence to perform quarry operations. She cited orders of the Government in Proceeding No.10424/M/2008, dated 28-3-2004, granting lease in favour of the petitioner for mining Silica sand for a period of 20 years in Survey Nos.289/1(P), 289/2, 292/1(P), 292/3(P), 292/4 and 292/5(P) of Pandellapally. She contended that as the petitioner possessed lease to mine sand, assuming that the drivers of the lorry informed Police that they purchased sand from the mines of the petitioner, the petitioner would not be punishable either under Section 379 IPC or under the Mines Act and also is not punishable under the provisions of Prevention of Damage to Public Property Act.
6. The learned Public Prosecutor pointed out that the petitioner possessed leasehold rights to exploit Silica sand and what was found in the lorries was sand but not Silica sand. He submitted that the sand was illegally mined by the petitioner not from the land over which he has licence but neighbouring land. In any event, he submitted that a person who possessed licence to exploit Silica sand cannot exploit sand and claim protection under the lease.
7. It may be pointed out that the lease in favour of the petitioner is for the exploitation of Silica sand whereas the lorries intercepted by Police were in possession of sand and not Silica sand. Consequently, prosecution of those involved in the transportation of sand through the lorries is justified. The learned Senior Counsel for the petitioner submitted that where the petitioner is a lessee, exploiting the land would not make the petitioner liable for punishment under Section 379 IPC. The learned Public Prosecutor submitted that the exploitation of land was not in the site over which the petitioner held leasehold rights but in other site, so much so, the exploitation would be tantamount to theft. I therefore consider that the contention of the learned Senior Counsel for the petitioner that the offence under Section 379 IPC is prima facie not made out cannot be accepted.
8. It is contended by the learned Senior Counsel for the petitioner that the case is built up upon a confession of a co-accused and that there is no material against the petitioner. I am afraid that it is a question of fact on which, enquiry is to be made by Police. At this stage, it may not be appropriate to scuttle the investigation merely because the allegations are through a confession by a co-accused.
9. The learned Senior Counsel for the petitioner submitted that the petitioner is the brother-in-law of the sitting MLA who, as an independent MLA defeated the Ruling Party candidate and that false cases have been instituted against the petitioner and his brother on the basis of the complaints by the lady Sarpanch of the Ruling Party. She submitted that these complaints are also engineered to teach a lesson for the petitioner.
I am afraid that these questions cannot be considered at this stage. Indeed, the petitioner is welcome to raise these contentions either before Police or, in the event charge-sheet is laid, before the Trial Court.
10. It is submitted by the learned Public Prosecutor that the petitioner dug the land to a depth of about 20 feet and exploited sand. This also is a question of fact, which is to be investigated and a conclusion is to be reached by Police. So far as the present stage is concerned, as many as 4 lorry drivers claimed that they purchased sand from the petitioner and were transporting the same through their respective lorries. The petitioner did not possess any licence/lease to exploit sand. Consequently, the complicity of the petitioner prima facie constitutes the offences under which the cases have been registered against the petitioner. I therefore deem it appropriate to permit the investigation to proceed. The learned Public Prosecutor submitted that as the petitioner is involved in several cases of the same nature, no mercy deserves to be shown to the petitioner directing Police not to arrest the petitioner during the pendency of investigation.
In view of such representation on the part of the learned Public Prosecutor, it would be appropriate to direct Police to proceed with the investigation and to apply Sections 41 and 41A, Cr.P.C to the case of the petitioner.
11. Accordingly, the four criminal petitions are disposed of granting liberty to the Investigating Officer to proceed with the investigation of the respective cases. Police however shall follow Sections 41 and 41A, Cr.P.C so far as the petitioner is concerned. The miscellaneous petitions, if any, pending in these petitions shall stand closed.
Dr. K.G.SHANKAR, J.
13th November, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR Criminal Petition Nos.13215, 13216, 13283 and 13288 of 2014 (Common Order) 13th November, 2014. (Ak)