Police Personnel 'Authorised Officer' Under Mines And Minerals Act, Have Powers To Seize Vehicle, Compound Offences: Madras High Court

“In view of issue No.1 being held in the affirmative for bringing the police personnel within the ambit of “authorised officer empowered” u/s 21 (4), 22 and 23-A of the MMDR Act, the vehicles/materials, which have been seized by the police personnel on the basis of the authorisation granted by the Government under G.O. Ms. No.114, dated 18.9.2006 and G.O. Ms. No.12, dated 2.2.2009, which have been reiterated in G.O. Ms. No.170 dated 5.8.2020 does not suffer the vice of any illegality and, therefore, the seizure made as a consequence thereof, is wholly within the framework of Section 21 (4) of the MMDR Act,” the full bench observed.

Background

The petitioner, S Kumar had initially filed a writ petition to direct authorities to permit him to continue his crusher operation and to take back his vehicles. When the division bench heard the matter, it was unclear as to which authority has powers to seize vehicles under the Act.

The court noted that a division bench in Muthu v. The District Collector & Ors had ruled that only a revenue official was authorised under the Act to seize a vehicle. However, the court also noted that the Government by way of Orders had conferred upon police personnel, powers to seize the vehicle under the Act and this fact was not brought to the attention of the division bench. This led to the constitution of a full bench to decide upon the issue.

Authority Specially Empowered Under The Act

Section 21(4) of the Act empowers an officer or a specially empowered authority to seize any mineral tool, equipment, vehicle or any other thing which is used for transport any mineral unlawfully. Section 22 of the Act states that a court shall not take cognizance of any offence punishable under the rule except upon a complaint in writing made by a person authorised in this behalf by the Central Government. Section 23A of the Act says that a person authorised under Section 22, who is authorised to make a complaint, can compound the offence, either before or after institution of prosecution, on payment of a specified sum.

The court noted that Section 21(4) of the act uses the term authority specially empowered and the State Government had powers under Section 15 of the Act to grant such empowerment. The court noted that it was based on this power, the State had issued the G.O granting seizing powers to police officers.

“When the Act, in clear and unambiguous term provides the State Government with the power to empower an particular authority as the authorised officer to effect seizure, the definition of “Authorised Officer” u/s 2 (ii) of Rules, 2011 which defines the “District Collector of the district concerned or such other officer as may be authorised by the Government” would only go to mean that the term “such other officer as may be authorised by the Government” should be read harmoniously with the Act so as to take within its fold all the authorities, who are empowered as the person authorised by the State Government. Any other interpretation of the same would defeat the very purpose of the Act and would render Section 21 (4) otiose, as it would be a practical impossibility for the District Collector to go and seize each and every vehicle, which is involved in illegal mining activities,” the court said.

The court also observed that since the G.O’s granting powers to the police have not been challenged till date, it could be impliedly affirmed that the police officers are authorised officers under the Act.

“The implied affirmation, having obtained finality without being disturbed in any manner, the necessary inference that could be drawn is that the police personnel empowered under G.O. Ms. No.114 dated 18.9.2006 to be authorised officers u/s 21 (4) of the MMDR Act with the power to effect seizure is wholly within the framework of the MMDR Act and the Rules framed thereunder,” the court observed.

After noting that the police personnel would come within the ambit of authorised officer under the Act, the court added that the police personnel also have powers to compound the offences under the Act. 

Power to File Private Complaint

The court also noted that though there is no nexus between Section 21(4) and 22 of the Act, it is prudent that an authority, who has the power to seize a vehicle involved in illegal mining, be also given the powers to file a private complaint.

The court noted that the as per the G.O’s, though any officer not below the rank of a Deputy Tahsildar has powers to seize a vehicle, only a Revenue Divisional Officer is given the powers to file a complaint. Similarly, the court also noted that though a District Forest Officer is not given powers to seize a vehicle, he is given powers to file a private complaint.

Thus, the court noted that to ensure proper filing of a private complaint without any delay or error, it is prudent that the authority authorised to seize a vehicle be also given the power to file a private complaint. The court thus observed that the Government Orders could be modified to such extent.

“The officer empowered under Section 21 (4), who seized the vehicle would be the best authority to file the private complaint u/s 22. However, if the authority who seized the vehicle is not empowered as the person authorised to file a private complaint u/s 22, then upon filing of report by the said authority, who seized the vehicle, the person authorised u/s 22 shall file the private complaint before the court of competent jurisdiction, within the time frame, which has been fixed in Muthu case. However, in the interest of justice and also in the interest of speedy trial, this Court suggests that the persons, who have been authorised u/s 21 (4) also be authorised u/s 22 as well so that there is no delay in the initiation of prosecution and speedy trial. The Government Orders, to that extent, shall be issued with requisite modification,” the court observed.

Joint Trial Of Offences Under The Act and IPC

The court further noted that the Special Court under the Act are empowered to try the offences under the Act but their powers would be limited to confiscation and release of a vehicle seized under the Act. The court said that the Special Court will have no role to play in the matter of compounding the offences under the Act as such powers are conferred only to the persons authorised under Section 22 of the Act.

The court added that the Special courts could hear both the offences under the Act and those under Section 379 of IPC jointly to avoid possible conflicts. In this regard, the court directed the police authorities, who have registered FIR under Section 379 of IPC and authorised person under Section 21(4) of the Act to file a Final Report and private complaint respectively before the concerned Magistrate Court/Special Court within a period of three months from the order.

The court noted that when such Final reports are filed, the concerned Magistrate shall commit the case to the Special Court having jurisdiction who shall take up the cases along with the private complaint which relates to the same offender and shall complete the trial as expeditiously as possible.

Amendment to Section 36A of Tamil Nadu Minor Mineral Concession Rules 1959

The court also noted that in the interest of the environment, amendments could be made to Section 36A of the Tamil Nadu Minor Mineral Concession Rules 1959 which deals with penalties, to obtain an expert opinion of the Director of Geology and Mines before passing any orders compounding the offence.

“In the above stated backdrop, this Court, in the interests of the environment as also the State, suggests the Additional Chief Secretary to the Government, Natural Resources Department, in consultation with the Commissioner, Directorate of Geology and Mining to take necessary steps for making amendment to the Rules, 1959, more particularly, Rule 36-A, for obtaining expert opinion of the Director of Geology and Mines with regard to the mineral that is seized, prior to passing any orders compounding the offence u/s 23-A (1) by the person authorised u/s 22 of the MMDR Act,” the court observed.

The court noted that under Section 36A, a minimum penalty of Rs.25,000 is provided. However, the court noted that while calculating the penalty, the importance of the mineral and its value in the market will also be determinants and the minimum penalty should not be uniformly applied for all minerals.

The court observed that the persons who have the powers to compound offences under the Mines and Minerals Act would not have the necessary expertise about the mineral mined, or its quality and thus it would be in best interest to seek the expert opinion of Director of Geology and Mines. The court added that only such a procedure would ensure that the Rules are followed in letter and spirit and would minimise the destruction to the environment and the exchequer.

Case Title: S Kumar v The District Collector and others

Citation: 2023 LiveLaw (Mad) 187

Counsel for the Petitioner: Mr.Vallinayagam, SC, for Mr. S.PalaniVelayutham

Counsel for the Respondent: Mr.Veerakathiravan, AAG Assisted by Mr., P.Thilak Kumar for RR-1 to 4 & 6 to 8 Mr. N.Dilipkumar for R-5

Amicus Curiae: Mr. B.Vijay Mr. N.Ananthapadmanabhan, Senior counsel