IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.38575/2017 (GM - RES) BETWEEN:
SALEEM BAIG N.
S/O LATE NASIR BAIG AGED ABOUT 29 YEARS RESIDING AT NO.5/308 BEEDI COLONY GALIPURA LAYOUT CHAMARAJANAGARA TOWN & DISTRICT PIN CODE – 571 313 (BY SRI MAHADEVA R.K., ADVOCATE) AND:
... PETITIONER THE STATE OF KARNATAKA REP. BY THE STATION HOUSE OFFICER KUDEUR POLICE STATION CHAMARAJANAGAR CIRCLE CHAMARAJANAGAR PIN CODE – 571 313 REP. BY ITS STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001 ...RESPONDENT (BY SRI S. ROCHAIAH, HCGP.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING THAT THIS HON’BLE COURT TO ALLOW THE PETITION AND QUASH THE FIR AND FURTHER PROCEEDINGS IN CRIME NO.83/2017 OF KUDERU POLICE STATION, CHAMARAJANAGARA CIRCLE, CHAMARAJANAGARA DISTRICT DATED 21.08.2017 FOR THE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 21(1) OF MMDR (MINOR MINES AND MINERALS REGULATION OF DEVELOPMENT) ACT, 1957, SECTION 42(3), 43(5) AND 43 OF KARNATAKA MINOR MINERAL CONSISTENT RULES 1994 AND SECTION 420 OF IPC, 1860 ON THE FILE OF THE CIVIL JUDGE AND JMFC COURT YALANDUR, CHAMARAJANAGARA DISTRICT AT ANNEXURE – A ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel appearing for petitioner and learned High Court Government Pleader appearing for respondent – State.
2. The case of the prosecution is, on 20.08.2017 at about 11.00 p.m. Chamarajanagara Police while on patrolling duty, on the said intervening night at about 3.00 a.m. near Naveeluru village they intercepted a lorry bearing registration No.TN-52-J-1427 driven by Saleem Baig N. (accused herein) and on verification they found black granite stone was being transported in the said lorry and on enquiry with the driver, he produced a permit issued by Mines and Geological Department for transporting the same from Mohan Enterprises, Jyothigowdanapura Village, Chamarajanagara to Bommasandra (Bengaluru) and having further enquired with the driver about the weight of the granite block being carried, he was unable to state the exact weight. Hence, on suspicion that material in the lorry weighed excess than the specified weight in the permit, vehicle along with the petitioner was brought to the police station and lorry came to be seized. After weighing the block, it was found that it was weighing 40,220 kgs. Hence, on the ground that the vehicle was carrying excess weight and there has been change in the route, FIR came to be registered in crime No.83/2017 for the offences punishable under Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as ‘MMDR Act’), Rules 42(3), 43(5) and 43 of the Karnataka Minor Mineral Concession Rules, 1994 (hereinafter referred to as ‘KMMC Rules, 1994’) and Section 420 of IPC.
3. Having heard the learned counsel appearing for the parties and on perusal of records, it would disclose that it is the specific case of the prosecution that lorry in question which was transporting black granite block which was excess in weight than specified in the permit. The Mineral Dispatch Permit issued by Department of Mines and Geology, Chamarajanagar at Annexure ‘D’ would disclose that it was issued on 20.08.2017 at 7.40 p.m. and validity of which was from said date and time till 21.08.2017 upto 8.40 p.m. (25 hours). Said permit being valid for only 25 hours and distance from starting place to the place of destination was 250 kms. Thus, vehicle in question having been loaded with said black granite block was traveling towards Bengaluru. A perusal of said permit would also disclose the total volume in cubic meters as specified in the permit was 8.471 cubic meter, which figure has been arrived at after taking into consideration the length, breadth and height of the block. Thus, vehicle which was transporting the granite block was possessing a valid permit dated 20/8/2017- Annexure-D issued by the Department of Mines and Geology.
4. It is not the case of the prosecution that the granite block which was being transported is different or other than the one for which the permit had been granted. On the other hand, it is the specific case of the prosecution that granite block which was being transported was having excess weight or in other words, the weight of the granite being transported is in excess of the weight specified in the permit and there has been change in the route. In order to substantiate its claim, the prosecution has relied upon Rules 42 and 44 of KMMC Rules, 1994, which reads as under:
“42. Transport of Minor Minerals:- (1) No person shall transport or cause to be transported any minor mineral except under or in accordance with a COMPUTERIZED MINERAL DISPATCH PERMIT in FORM MDP (A) generated in electronic form (e-Permit or m-Permit) by the licence/leaseholder or his authorized person and issued using Special Security Permit Paper (SSPP) sheet obtained from the Competent Authority or any other officer authorised by the Director.
(2) Any person desiring to transport the minor mineral by road, by rail or any other means of transport shall after payment of royalty apply in Form AP to the concerned Competent Authority in electronic form along with rupees fifty as processing fees for each Mineral Dispatch Release Order (MDRO) for specified bulk quantity of specified or non-specified minor mineral intended to transport.
(3) The Competent Authority after such enquiry as it deems fit, if satisfied that the information furnished in the application is correct and the applicant is entitled for a MDRO,, it may issue a MDRO in FORM- MDRO and enable the leaseholder to generate CMDP’s. However the validity of such MDRO shall be thirty days:
Provided that where the Computerized Mineral Dispatch Permit is generated by the lessee himself, if there is any error in weight, volume, royalty etc., the lessee is solely held responsible as per Rule 43.
(4) The Computerized Mineral Dispatch Permit shall be generated in electronic form and issued by leaseholder or his authorised person using SSPP sheet obtained from Competent Authority on the basis of One Permit for One vehicle.
(5) The validity of CMDP’s issued by leaseholder or his authorised person shall be one hour for each ten kilometer of distance or fraction thereof from the date of issue and two hours of additional time together for loading and unloading of the minor mineral:
Provided that the Competent Authority of the concerned district may, on a written request by the holder of permit and after such enquiry as it deems fit renew the permit and in case of mineral in transit, the concerned jurisdictional Competent Authority may renew subject to collecting processing fee and SSPP sheet fee, if any upon recording the reasons and issue fresh CMDP.
44.Offences:- (1) Any person who contravenes the provisions of sub-rule(1) of Rule 42 shall, on conviction be punished with imprisonment for a term which may extend to two years or with fine which may extend to rupees five lakh 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 first such contravention.
(2) Any persons who undertakes any quarrying operation in respect of any minor mineral either without a licence or quarrying permit granted under these rules or in contravention of the terms and conditions of any licence or permit shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to fifty thousand rupees or with both and in 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) Any person who undertakes any quarrying operation in respect of the minor mineral without a licence or lease is liable to pay a penalty equal to fifteen times of royalty.
(4) If any lessee or licensee or his managers, employees, contractors, consumers or buyers dispatch or transport mineral without valid permit, such lessee or licensee shall be liable to pay a penalty equal to 15 times of royalty of mineral so dispatched or transported and if such dispatch or transport without valid permit happens for any subsequent times of such levy of penalty, then he shall be liable for additional levy of penalty equal to 15 times of royalty for mineral so dispatched or transported for the subsequent time also and the Competent Authority shall also order for determination of lease or licence:
Provided that, no such order of determination shall be made with giving the lessee or licensee an opportunity being heard.
(5) When the offender is not known or cannot be found, the Court competent, may, if he finds, that an offence has been committed, order the property in respect of which the offence has been committed to be forfeited to the State Government together with mineral, tools, equipment, vehicles or any other thing used in committing the offence and taken charge of by the authorised Officer, or to be made over to the person whom the Court competent deems to be entitled to the same:
Provided that no such order shall be made until the expiration of thirty days from the date of seizing the property, or without hearing the person, if any, claiming."
5. A bare reading of the Rule and provisions would clearly disclose that transportation or cause to be transported any minor mineral should be in accordance with the Mineral Dispatch Permit in form No.MDP(A) generated in electronic Form. In the absence of such Permit issued by competent authority, if minor mineral is being transported it would attract above said provisions and consequently there would be contravention of aforesaid provisions and would attract Rule 44 of the KMMC Rules, 1994, which clearly indicates that the contravention of Sub- rule (1) of Rule 42 would entail such person being punished with imprisonment upto 2 years or with fine, which may extend upto Rs.5,00,000/- or with both. In the instant case, as could be seen from permit- Annexure ‘D’ relied upon by petitioner would clearly disclose that vehicle in question which was transporting black granite block was having a permit or in other words, driver of the vehicle in question was possessing a valid permit issued by the Department of Mines and Geology and as such it cannot be said that granite block being transported was without valid permit. Hence, Rules 42 or 44 would not be attracted.
6. Rules 42(3) and 43(5) of abovestated Rules which has been incorporated in FIR would also be inapplicable to the case on hand in as much as, Sub- Rule (3) of Rule 42 would clearly disclose that competent authority issuing such permit can issue the same only on arriving at his satisfaction about the information provided by the applicant appears to be correct and not otherwise. Likewise, Sub-rule (5) of Rule 43 would clearly indicate that non-production of valid permit at the check-post while being in transit would entail levy of penalty as prescribed under Schedule (2) of KMMC Rules, 1994. As already observed herein above, it is not the case of the prosecution that on demand by the jurisdictional police, petitioner had failed to produce the permit. On the other hand, allegation made in the FIR would disclose that driver had produced a valid permit and it was also found to be genuine.
7. Insofar as the alleged offence, granite block in question being excess in weight also cannot be accepted for the simple reason that specification details indicated in the Mineral Dispatch Permit would disclose that total volume of the granite for which permit was granted was measuring 8.40 cubic meters and the panchanama drawn as per Annexure ‘B’ would disclose that the said granite which was being carried in the vehicle in question was measuring 7.59 cubic meters. In other words, it was less than the cubic meters for which the Mineral Dispatch Permit was granted and as such, the contention of the prosecution that it was excess in weight, also cannot be accepted even on the basis of the panchanama.
8. Hence, this Court is of the considered view that even if the materials placed by the prosecution were to go controverted, it would not result in conviction of the petitioner and as such, the continuation of proceedings against the petitioner would only be an abuse of process of law and waste of judicial time.
Accordingly, I proceed to pass the following;
ORDER (i) Writ petition is hereby allowed.
(ii) Proceedings initiated in crime No.83/2017 at Annexure ‘A’ by Chamarajanagara against the petitioner for the alleged offences punishable under Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957, Rules 42(3), 43(5) and 43 of the Karnataka Minor Mineral Concession Rules, 1994 and Section 420 of IPC is hereby quashed.
(iii) Jurisdictional police are hereby directed to release the vehicle as well as the seized granite block to the Mineral Dispatch Permit holder on proper identification.
SD/- JUDGE nvj