Discretionary Powers For Anticipatory Bail Cannot Be Extended To Persons Indulging In Illegal Sand Mining, Smuggling & Theft Of Sand And Minerals: Madras HC [Read Judgment]

Questioning itself whether the discretionary power under Section 438 of Cr.P.C can be routinely exercised for cases of illegal quarrying/mining, theft and smuggling of sand and minerals, the Madras High Court, finding, that the discretionary power has been consciously and continuously misused by the offenders and the enforcers as well in an organised manner, observed that the anticipatory bail cannot be extended to persons indulging in illegal sand mining, smuggling and theft of sand and minerals.

"This Court finds that the discretionary power has been consciously and continuously misused by the offenders and the enforcers as well in an organised manner and this Court is of the firm opinion that the discretionary powers cannot be extended to persons indulging in illegal sand mining, smuggling and theft of sand and minerals", the Court observed dismissing a batch of 36 bail applications.

"This court can see that due to the amount of money involved, the business of illegal quarrying/mining ,theft and sand smuggling activities is increasing day by day and offenders are bold enough to involve in the offences with a fond belief that they will be able to get advance bail by accepting and undertaking to comply with any stringent conditions imposed by the courts", said Justice A. D. Jagadish Chandira, adding that orders of the courts are routinely taken more lightly and the industry is thriving by engaging men and materials on a large scale.

The Single Judge noted that heavy and high- cost equipments and vehicles like excavators, earthmovers, JCB, Poclain, Hitachi are used to excavate and heavy lorries viz., Taurus and Tata Benz are being used in the illegal mining business flouting all rules which remain in paper only.

"Nowadays bullock carts are fabricated like that of tractor trailers to transport a huge quantity of sand to avoid seizure of high priced vehicles. This court is also able to see cases where more and more people are getting involved and sand is smuggled in pleasure cars and two wheelers which shows the   economy and the profits involved in sand smuggling", reflected the bench, expressing that the offenders with scant regard to the law enforcers and orders of the court continue with the illegality at the cost of heavily degrading the ecology and environment since it is well settled in their minds that they will be able to get anticipatory/advance bail by complying with any stringent condition with ease and get out".

"It is common knowledge what is the amount paid as Royalty to the Government and what is the amount paid by end user of sand and minerals. It is an open secret that various mafias are controlling the illegal business at various locations. By this cartelisation, not only the State's exchequer, the entire society is affected. In a way the illegal business is nothing but an organised crime against the society and each individual offender plays an active role in the organised crime", remarked the bench.

Stating that it is not that the individual offender is not aware about the rippling effect the illegal act causes to the environment and ecology, the bench said that the greed and selfish attitude of the offenders are increasing day by day and that the Courts cannot keep the eyes and ears closed.

Noting that though anticipatory bails are granted imposing heavy monetary cost and serious conditions, the bench said the offenders are not bothered about paying since the amount of money spun in the illegal business takes care of them- "May be the amounts ordered to be paid are treated as business expenditure in a thriving industry".

The bench found that the sand and mineral offenders are unmindful of the fact that they are killing their mother nature and are continuing to indulge in illegal activities since there is hope for them, that they can get away by complying with the stringent conditions imposed by the courts while granting anticipatory bail/advance bail.

"It is also surprising and astonishing to note that despite seizure of vehicles and coming to know the names of owners and persons involved in the illegal activities they are allowed to roam scott free and given sufficient time to approach this court to obtain orders of advance bail. There seems to be no will for the enforcement agencies to give effect to the various orders passed by this court in letter and spirit. In most of the cases there is no progress after an accused obtains bail and when compared to the cases registered the confiscation and conviction rate till date remains very poor", the bench lamented, adding that it also has a reasonable suspicion that the cases which are registered are too for the purpose of statistics and are only a tip of the iceberg and much more are rolled under the carpet by the law enforcers for reasons best known to them.

Saddened that the routine exercise of discretionary power has allowed the miscreants to indulge in illegal activities fully understanding the consequences and implications, the court was of the opinion that the offenders despite several orders passed by various benches of this court regarding illegal sand mining and knowing fully well about the evil consequences affecting the environment and society at large and the implications thereon are indulging in the offences of illegal quarrying/mining, theft and smuggling of sand and minerals.

said the court.

Voicing the fear that this order discouraging anticipatory bails could bring in a counter effect of non registration of cases regarding illegal quarrying/mining, theft and smuggling of sand and minerals, the Court, however, reflected that it is aware that it would not be difficult for the Director General of Police, Tamil Nadu to get statistics in which Districts and which Stations more cases were registered and it would not be difficult for him to do proper monitoring and take appropriate action to stop the illegality.

Remarking that "Where there is a will there is a way", the bench directed the state DGP to periodically review the progress of cases registered for offences regarding illegal quarrying/mining, theft and smuggling of sand and minerals in a time bound manner and see to that the final reports are filed within the prescribed time and accused are taken to trial.

At the outset, the bench had commented that while sitting in the roster of Bail and Anticipatory Bail, it felt aghast with the sudden surge of petitions filed seeking bail and anticipatory bail for the offences relating to illegal quarrying/mining, theft and smuggling of sand and minerals.

"Amidst the national lockdown declared and the whole Country being under lockdown mode, there seems to be no lockdown for sand offenders. Most of the industries and businesses in the country and especially the construction industry were under lockdown, whereas the illicit sand mining industry had worked overtime", said the bench, stating that the surge of cases registered shows that the business of illegal quarrying/mining, theft and smuggling of sand and minerals had happened rampantly in all Districts unabated without any control, resulting in grave damage and degradation to the environment and also in depletion of natural resources.

The court asked itself a "heart-searching question":

"In a society that has a well-established system of justice and law, should the courts restrict its role only to adjudication of issues and abdicate and shirk its responsibility and pass on the duty of controlling and preventing crime to the police and State authorities alone?"

"In previous occasions this court in the petitions for anticipatory bails in cases relating to illegal quarrying/mining, theft and smuggling of sand and minerals, had granted anticipatory bail by imposing stringent monetary and serious conditions directing payment of hefty amounts to The Honourable Chief Minister's Relief Fund, The District Mineral Trust Fund and to various other organisation involved in Social work with a fond hope that offences of illegal quarrying/mining, theft and smuggling of sand and minerals could be controlled by imposition of such conditions", observed the bench. However, it despaired that despite the imposition of stringent conditions, the offences of such nature have not come down and on the contrary, there seems to be a rising trend, in these cases, increasing day by day. Each day at least 10 to 15 cases are being listed seeking the relief of anticipatory bail in offences of illegal quarrying/mining, theft and smuggling of sand and minerals.

"Despite the offences being non-bailable and this Court imposing stringent conditions, the police are not able to abate the menace of illicit quarrying/mining, theft and smuggling of sand and minerals", the bench had said.

The bench, in denying anticipatory bail on the string of petitions before it, observed that the order contemplated under Section 438 of the Code of Criminal Procedure is to be granted or refused by the High Court or Court of Sessions after exercising its judicial discretion wisely. "A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter regarding which it is required to be exercised, has to be used with due care and caution. Further anticipatory bails cannot be granted in cases of large magnitude affecting and impacting very large number of people", reiterated the bench.

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