IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22897 of 2004 RAJA RAM SINGH Versus STATE OF BIHAR & ANR ----------- For the petitioner :Mr. Sanjeev Kumar, Advocate For the State :Mr. Someshwar Dayal, A.P.P. O R D E R The petitioner who is being prosecuted in Official Case No. 48 of 2002 is aggrieved by order dated 6.6.2002 passed by the learned Chief Judicial Magistrate, Rohtas at Sasaram, whereby he has taken cognizance of offence under section 40/41 of the Mining Act and Section 379 I.P.C. One Triveni Das, The Assistant Mining Officer, Rohtas filed a report / application alleging that Sachidannand Singh, Mining Inspector, Rohtas, had inspected the so called premises of the petitioner and in course thereof found that he had illegally stocked stone minerals in violation of Rule 49 of the Bihar Minor Minerals Concession Rule, 1972 (hereinafter referred to as “the BMMC Rule”). It has been submitted on behalf of the petitioner that Rule 40 of the BMMC Rule provides that whoever found to be extracting and removing minor minerals or on whose behalf such extraction or removal is being made he be an agent, a Manager, an employee or a Contractor or a Sublessee otherwise - 2 - than in accordance with these Rules shall be presumed to be party to the illegal removal of the minor mineral and every such person shall be punishable with simple imprisonment which may extend to six months or with fine, which may extend to rupees five thousand or with both. The Rule 49 of the said Rules reads as follows: (1) Every person who carried business of minor minerals beyond any lease hold area shall obtain a License 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 register in Form “Ga” which shall be produced before the Commissioner, Director of 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/- (a) Every such Licence shall be valid for one Calender Year. (b) Every such Licence may be renewed on application shall be accompanied by a fee of Rs. 100/- (2) Every such persons 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 - (3) If any person as mentioned in (1) fails to maintain a register in Form „G‟ or obtain for „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 single Judge of this Court by order dated 20.12.2005 passed in Cr. Misc. No. 22902 of 2004 observed as follows:- “In order to take cognizance on such complaint, it was obligatory on the part of the Magistrate to be prima facie satisfied of commission of the offence as alleged. In order to show prima facie that such offence has been committed, having regard to the fact that the allegation was that the petitioner is dealing with in Minor minerals without licence, it was required to show either that the petitioner has purchased Minor Minerals in bulk quantity or has stored the same or has sold any Minor Minerals. The complainant relied upon a report created by its own department wherein it was stated that Minor Minerals were stored by the complainant. The person, who prepared the report did not depose before the Magistrate. The person, who prepared the report, by law, had authority to seize illegally extracted Minor Minerals stored for the purpose of dealing with the same. Despite having such power, he did not seize the same. There is no allegation - 4 - that the petitioner either purchased or sold Minor Minerals. No prima facie or otherwise evidence was thus produced in support of any such allegation. Therefore, on the materials as were available before the Court, the learned Magistrate could not take cognizance on the complaint, for on the materials as produced no prima facie opinion could be expressed. “ Applying the above observations in the instant case I hereby quash the impugned order taking cognizance and remit the matter back to the learned Magistrate for reconsideration of the case. Patna High Court, Patna. Dated : The 12th of September, 2008 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)