[Mines & Minerals Regulation Act] Non-Constitution Of Special Courts Cannot Affect Seizure & Confiscation Proceedings: Kerala High Court

The Kerala High Court on Wednesday held that non-constitution of Special Courts under Section 30B of the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) cannot affect seizure and confiscation proceedings under the Act. 

Justice N. Nagaresh, in this regard, relied upon the decision in Pradeep S. Wodeyar v. State of Karnataka which held that the Special Court does not have, in the absence of a specific provision in the MMDR Act, the power to take cognizance of an offence under the Act without the case being committed to it by the Magistrate under Section 209 CrPC.

"Therefore, it is evident that it is the Magistrate's Court which is competent to take cognizance of any offence under the MMDR Act and the power to confiscate vehicles involved in offences under the MMDR Act is vested with the court competent to take cognizance under Section 21(4A)", it observed.

The Court added in this light that, 

"If Special Courts are not established, the prosecution and trial of offences under the MMDR Act would be governed by the general provisions of the Cr.P.C. The MMDR Act neither expressly nor by implication states that Special Court can take cognizance of the offences under the Act as a court of original jurisdiction without the case being committed to it. There is no reason to think that charge sheet or a complaint can straight away be filed before the Special Court".

The Court in the instant case was considering whether any mineral, tool, equipment, vehicle or any other thing can be seized under Section 21(4) of the MMDR Act, 1957, and whether seized articles are liable to be confiscated under Section 21(4A), when no Special Court is constituted  as contemplated under Section 30B of the Act.

The petitioners herein alleged that their vehicles were seized by the Police Officers / Revenue Officials alleging contravention of the provisions of the MMDR Act and the Rules thereunder. It was averred by the petitioners that confiscation of any property including vehicles seized, can be only by an order of the Court competent to take cognizance of the offence under the MMDR Act. They pointed out that Section 30B of the statute mandated the State Government to establish Special Court(s) for speedy disposal of cases, which had not been constituted so far. The petitioners asserted that since there were no Special Courts, which had been constituted by the State, there cannot be any prosecution for the offence and without a prosecution, there cannot be any confiscation.

It was further pointed out that the authorities who seized the vehicles were not officers specially empowered to effect seizure and the seizure was thus unsustainable. They emphasized that the authorities could not even effect the seizure without constituting a Special Court. "When a power is given by the statute to do certain thing in a certain way, the things must be done in that way or not all and that other methods of performance are necessarily forbidden. As Special Courts are not constituted as mandated, there can be no prosecution and, in turn, there cannot be any confiscation", it was argued. 

The respondents on the other hand contended that as per Section 102 CrPC, a police officer has the power to seize any vehicle found under suspicious circumstances of commission of any offence. It was contended that a complaint from Person Authorized as per Section 22 of the Act, is not necessary for the police to seize a vehicle involved / suspected to be involved in an offence under the MMDR Act. 

The Court in the instant case discerned that as per Section 21(4A) of the MMDR Act, the court competent to take cognizance of the offence is empowered to confiscate any mineral, tool, equipment, vehicle or any other thing seized. Trial of the offences under the MMDR Act ought to be by Special Courts which are to be deemed as Court of Sessions, as per Sections 30B and 30C. The Court thus ascertained that confiscation of vehicles is not dependent on whether a criminal prosecution for commission of offence under the MMDR Act has been launched against the offender or not, and that it is a separate and distinct proceeding from that of trial. 

"An examination of the Scheme of the MMDR Act and the relevant provisions of the Cr.P.C. would indeed make abundantly clear the intention of the legislature. The MMDR Act is intended to provide for the development and regulation of mines and minerals. The vehicles involved in all these writ petitions were seized when they were found transporting ordinary earth / red earth without permits/passes", it observed.

The Court noted that as per Rule 26(4) of the Kerala Minerals (Prevention of Illegal Mining, Storage and Transportation) Rules, 2015 framed under the MMDR Act, any consignment of minerals without a valid Mineral Transit Pass shall be considered as illicit, which is seen in the instant case. Section 21(4A) also stipulates that any vehicle seized under sub-section (4) is liable to be confiscated by an order of the court competent to take cognizance of the offence.

On these grounds, the Court arrived at the finding that it is the Magistrate's Court which is competent to take cognizance of any offence under the MMDR Act, and is also thus, vested with the power to confiscate vehicles involved in offences under the MMDR Act. 

The Court thereupon, attempted to analyze whether the constitution of the Special Court is a mandatory requirement under Section 30B and whether absence of duly constituted Special Court would make prosecution of the offences under the Act impossible.

In this regard, it perused Section 30B, and found that the provision begins with the phrase, "the State Government may", which indicated that the provision is only an enabling provision for the State to constitute Special Courts for speedy trial of offences under the Act. 

"Section 30B does not give mandatory direction to constitute Special Courts", it laid down. 

The Court also negatived the argument of the petitioners that of the absence of the words "whether a prosecution is initiated or not" in Section 21(4A) would imply that there cannot be any confiscation proceeding without any prosecution proceeding. 

"I find that Rule 21(4A) clearly provides that any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4) shall be liable to be confiscated by an order of the court competent to take cognizance of the offence. Therefore, what is required for a valid seizure is only usage of vehicle to transport minerals without any lawful authority as envisaged in Section 21(4). Absence of the words "whether a prosecution is initiated or not" in Section 21(4A) is of no consequence", the Court emphasized. 

The Court thus dismissed the petitions and directed the petitioners to surrender their vehicles released pursuant to the interim orders obtained in the instant petitions, forthwith. The Court clarified that the petitioners would be free to approach the competent court/authority for interim custody of vehicles or to compound the offences. 

Case Title: Rahul P.U. v. The Geologist and Other Connected Cases

Citation: 2022 LiveLaw (Ker) 629

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