IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28907 of 2005 PRAMOD KUMHAR, S/o Gajar Kumhar, R/o village Kanchanpur, P.S. Sasaram, District Rohtas (Bihar) ……. Petitioner Versus 1. STATE OF BIHAR 2. Assistant Mining Officer, Rohtas at Sasaram …. Opp. Partes ----------- Cr.Misc. No.28909 of 2005 SANJAY KUMAR, S/o Mohan Singh, R/o village Khilanganj, P.s. Sasaram, District – Rohtas (Bihar) ….. Petitioner Versus 1. STATE OF BIHAR 2. Assistant Mining Officer, Rohtas at Sasara …. Opp. Parties ----------- For the petitioners : M/s Sudama Singh & in both cases Rajani Kant Singh, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. -------- 4 16.03.2009 Cr. Misc. No. 28907 of 2005 and Cr. Misc. No. 28909 of 2005 have been taken up together as they involve the same issue of law and having been heard together are being disposed of by this common order. In Cr. Misc. No. 28907 of 2007 order dated 7.6.2002 passed by the learned Chief Judicial Magistrate, Rohtas at Sasaram in Official Case No. 51 of 2002, whereby he has taken cognizance of offence under sections 40 and 41 of the Mining Act and Section 379 IPC is sought to be challenged whereas in Cr. Misc. No. 28909 of 2005 order dated 6.6.2002 passed by the learned Chief Judicial Magistrate, Rohtas at Sasaram in Official Case No. 33 of 2002, wherein cognizance has been taken under similar provisions 2 is sought to be impugned. It appears that in both the cases the Assistant Mining Officer, Rohtas at Sasaram filed the aforesaid compliant petitions, inter alia, stating that Sri Sachidanand Singh, Departmental Mining Inspector having inspected the situs of the field of operation of the two petitioners found that the petitioner of both the cases had stored mining stones and sold the same after curshing it without having a valid permit as required under Rule 49 of the Bihar Minor Mineral Concession Rules, 1972 ( hereinafter referred to as “the Concession Rules”) and thereby had contravened the provisions of the Rules and were liable for prosecution under sections 40 and 41 of the Concession Rules and section 379 IPC. A similar matter came for consideration by a Bench of this Court in Cr. Misc. No. 21512 of 2002 which was disposed of on 3.3.2005. As observed in that case the allegation of the accused persons illegally storing the minerals without taking license in Form „L‟ under Rule 49 of the Concession Rules appears to be purely based on the report of Mining Inspector. It was further observed that according to the complainant the accused petitioners were mere offenders under the aforementioned provisions and by their said acts have caused revenue loss to the State exchequer. No counter affidavit has been filed on behalf of the State. Having perused the provision of Rule 40 and 41 of the Concession Rules it appears that the same are not applicable to the 3 petitioners in this case. There is also no question of theft for which the petitioners are liable to prosecution under section 379 IPC. Neither the prosecution report nor the learned counsel for the State has been able to point out as to what offence under the Mines Act or the Rules framed thereunder are committed by mere storage of mines, minerals / stones. Rule 49 of the Bihar Minor Mineral Concession Rules reads as follows: (1) Every person who carried business of minor minerals beyond any lease hold area shall obtain a licence from the Competent officer in Form „L” which shall be displayed at a conspicuous place of business and shall maintain proper accounts of purchase and sale of all such minerals in a registere in form „Ga‟ which shall be produced before the Commissioner, Director or Mines and Additional Director of Mines or Deputy Director of Mines or competent officer or any other officers authorized by the Government, for inspection. [Every application for obtaining licence in Form “l” shall be accompanied with a fee of [Rs. 500 (five Thousand Rupees) (a) Every such licence shall be valid for one calendar year; (b) Every such licence may, be renewed on application which shall be accompanied by a fee of [Rs. 1000(One thousand Rupees) (2) Every such person as mentioned in (1) shall issue a transport challan in Form „F‟ to every carrier, truck, tractor or bullock cart while dispatching minerals for his stock. (3) If any person as mentioned in (1) fails 4 to maintain a register in form „G‟ or [obtain Form „L or”] issue a challan in Form „F‟, shall be punishable with a simple imprisonment which may extend to one year or with fine which may extend upto Rs. 1000/- (One thousand) or with both.,]” A bare perusal of the prosecution report in both the cases does not even reveal or allege that the petitioners were carrying on business of mines and minerals which required them as a condition precedent, to obtain licence. There is another aspect of the matter. The cognizance taking court appears to be remiss of the fact that whereas the allegations are for violation of the provisions of Rule 40 and 41 of the Concession Rules, yet it has taken cognizance under sections 40 and 41 of the Mining Act. It is difficult to reconcile with the situation. This being the position I find sufficient cause to interfere with the impugned orders in both the cases whereby cognizance has been taken against the petitioners. Accordingly the impugned orders so far as the two petitioners of the two cases are concerned are hereby set aside and both applications are allowed. Spd/- (Abhijit Sinha, J.)