indrajeet Sanyal, Vs. State of Jharkhand and Awadhesh Kumar Singh - Court Judgment

Excerpt:
criminal - essential commodities act, 1955 - section 7 r/w clause 13 of lpg (regulation of supply and distribution) order, 2000 - use of domestic lpg cylinders for commercial purpose in fast food vehicle - informant/ opposite party no. 2, an officer of rank of deputy collector, who made search and seizure in vehicle of petitioner, was not authorized to make search and seizure - criminal prosecution initiated against petitioner in contravention of specific provisions of law not sustainable - deputy commissioner had no authority to delegate power which was prohibited under law - criminal prosecution of petitioner including order of cognizance not maintainable under law and quashed - petition allowed. - motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the order taking cognizance as well as the entire criminal proceedings in connection with nimdih p.amareshwar sahay, j.heard the parties.1. the points involved in both the writ petitioners are the same and as such both cases were taken up together and are being disposed of by this common order.2. the facts in short of w.p.(cr.) no. 142 of 2007 are that on 22.01.2006, an f.i.r. was lodged by one anand mohan singh, assistant sub inspector of police of nimdih police station, alleging therein that while he was returning after making investigation in a case along with other police officials he found a truck bearing no. br-13/9089 loaded with white stone going on patherdih road. he got the truck stopped but the driver fled away after stopping the said truck. the labourers on the truck disclosed that the white stones were loaded from jhimri forest and that they had no proper documents for the same. the stone loaded in the truck was seized and the f.i.r. was lodged under sections 379, 411/34 of the indian penal code and section 4/21 of the mines and mineral (development and regulation) act, 1957.3. after investigation, chargesheet was submitted by the police on the basis of which, cognizance of the offence under sections 379, 411/34 of the indian penal code and section 4/21 of the mines and mineral (development and regulation) act, 1957 was taken which has been challenged in this writ petition.4. in w.p.(cr.) no. 233 of 2007, the prayer is to quash the f.i.r. of shikaripara p.s. case no. 30/2004 which has been lodged against eight named accused persons under sections 414/120b of the indian penal code and section 40(iv) of the bihar minor mineral concession rule, 1972 by one awadhesh kumar singh.5. it has been alleged in the f.i.r. that on 04.06.2004, at about 12:00 noon, a secret information was received at the h.qrs. that in the shikaripara p.s. territory, illegal extraction of stones are being done in chitragarhia benagarhia villages and the same are being illegally transported to west bengal through trucks/dumpers. the police party proceeded on police vehicles. on 04.06.2004, at 2:30 p.m., the said team led by the informant, reached haripur crossing on the dumka-rampur hat road. trucks loaded with stone boulders corning from the village chitragarhia, benagarhia side, was intercepted/stopped in presence of two independent witnesses namely raj kumar mandal and ram prasad faujdar of village ghat haripur. truck no. wb-67-1086 (driver wakil soren), w.b.-53-3562 (driver - chunnu besra), wmk - 4168 (driver md. azeem), usp - 4031 (driver - pawan kumar ghosh), brl - 8350 (driver mangal singh), wmq - 6098 (driver - akal soren), w.b. - 53 - 2085 (driver deepak mehra) and brj - 7116 (driver - surai marandi) were searched and found eight tones boulder (stones) loaded on each of it. no document/challan was produced in support of transportation by the drivers. during the course of inquiry, finding the police personnel busy, one truck loaded with stone boulders bearing no. wb-73 - 3695, fled away.6. accordingly, f.i.r. was lodged by the inspector of police for the alleged commission of the offences punishable under section 414/120b of indian penal code and rule 40(iv) of the minor mineral concessions rules, 1972.7. mr. ananda sen, learned counsel appearing for the petitioner in both the writ petitions submitted that from the allegations made in the f.i.r. of both the cases, it would appeal that the allegations therein are that the accused persons were involved in extracting or removing or transporting minor mineral in contravention of the provisions of the mines and mineral (development and regulation) act, 1957 and bihar/jharkhand minor mineral concession rule, 1972/2004. he submitted that when special statutes for commission of the offences is already there then in that case, the general statute i.e. the indian penal code will have no application for commission of such offences which are covered under the special act. he further submitted that under section 22 of the mines and mineral (development and regulation) act, 1957 and under rule 41 of the bihar minor mineral concession rule, 1972, a bar has been created in taking cognizance by saying that no cognizance of the offence under the act and the rules can be taken except upon the complaint made in writing by a competent officer or the deputy director of mines or additional director of mines or director of mines or any other officer empowered by the government in this behalf. similar is the provision in the jharkhand minor mineral concession rule, 2004 under rule 57.8. it is submitted that in the present case, admittedly the f.i.r. has been lodged by a police officer who can not be said to be a competent person under the mines and mineral (development and regulation) act, 1957 or under the bihar/jharkhand minor mineral concession rule, 1972/2004 to launch the prosecution and therefore whole prosecution launched on the basis of the f.i.r. lodged by a person who is not authorized under the mines and mineral (development and regulation) act or the bihar/jharkhand minor mineral concession rule would be illegal and invalid. learned counsel for the petitioner in this regard relied on a decision of this court in the case of narayan mahto @ narayan chandra mahto v. state of jharkhand and ors. reported in 2006 (4) jcr 218.9. in the aforesaid case of narayan mahto @ narayan chandra mahto (supra), both the points which has been raised by the petitioners in the present writ petitions have been decided and it has been held that since the special statute is operative for the offence under the aforesaid mines and mineral (development and regulation) act, 1957 and the bihar/jharkhand minor mineral concession rule, 1972/2004 and therefore, the general statue i.e. the indian penal code would not be applicable for those offences which are covered under the special act. it has further been held in the said decision that only the deputy director of mines, additional director of mines, director of mines or any other officer authorized in this behalf, are authorized to lodge the f.i.r. under the law and no other person.10. it is not the case of the respondents that the sub inspector of police or assistant sub inspector of police who lodged the f.i.r. in question were authorized under the mines and mineral (development and regulation) act or the minor mineral concession rules to lodge the f.i.r., in such cases, for commission of the offences falling under aforesaid mines and mineral (development and regulation) act, 1957 or under the bihar/jharkhand minor mineral concession rule, 1972/2004, therefore, it is clear that the informant of both the writ petitions who are police officials, are not competent or authorized to launch prosecution for the offences which are covered under the mines and mineral (development and regulation) act, 1957 or the bihar/jharkhand minor mineral concession rule, 1972/2004 made thereunder.11. in view of the above discussions, i find that the points raised in the present two writ petitions are covered by the aforesaid decision of the case of narayan mahto @ narayan chandra mahto (supra). accordingly, both the writ petitions are allowed. the order taking cognizance as well as the entire criminal proceedings in connection with nimdih p.s. case no. 07/2006 corresponding to g.r. no. 62/2006 pending in the court of judicial magistrate at saraikella and shikaripara p.s. case no. 30/2004 corresponding to g.r. no. 549 of 2004 respectively, pending in the court of chief judicial magistrate, dumka are hereby quashed.