IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Crl.MC.No. 3277 of 2009() ------------------------------------- (CRIME NO.758/2009 OF ADOOR POLICE STATION) PETITIONER(S): ACCUSED: ---------------------------------------- 1. ALEX.P.CYRIAC,PROPRIETOR,PERUMALIL GRANITE CONSTRUCTIONS,ARUNOOTTIMANGALAM, MULAKULAM.P.O,KOTTAYAM DISTRICT. 2. INNI,S/O.VIDYADARAN,BLOCK NO.1325, KOMPAYAR,COMPAYAR MURI,NEDUKANDAM VILLAGE, IDUKKI DISTRICT. 3. PUNNOOS,S/O.POTHAN,PUNNOOR,CHANDRITHIL VEEDU,RANDOM MILE,KUMALI,AMARAVATHI VILLAGE, IDUKKI DISTRICT. 4. BINOY,S/O.RAJAPPAN,MADATHATTU VEEDU, KUNNAPPALLI,PERUVA MURI, MULAKULAM VILLAGE, VAIKOM TALUK,KOTTAYAM DISTRICT. 5. BIJU,S/O.GOPALAN,ADUKUZHIL,CHATHAMUTTAM KARA,KADAVOOR VILLAGE,KOTHAMANGALAM, ERNAKULAM DISTRICT. 6. SATHEESH,S/O.KUNJUKUTTAN,KANJIRAPPARA VEEDU, PANICKANKUDI KARA,KONNATHADI VILLAGE, IDUKKI DISTRICT. 7. SHIJU,S/O.SHAJI,KUNNINU VEEDU, ULLANADU KARA,BHARANANGANAM VILLGE, KOTTAYAM DISTRICT. Kss ..2/- ...2.... CRMC.NO.3277/2009 8. KHAJA MUHAYADEEN MEARAN,S/O.SHAHUL HAMEED, NO.1 DIVISION TEA STALL,CHINNALAL MARKET, CHINNALAL MURI,UPPUTHARA VILLAGE, IDUKKI DISTRICT. 9. MURUKESAN.A,S/O.ALAKAR SWAMI, DOOR NO.33,SWAMINADAPURAM,SWAMINADAPURAM VILLAGE, KARUR DISTRICT. BY ADV. MR.K.GOPALAKRISHNA KURUP RESPONDENT(S): --------------------------- 1. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. SUB INSPECTOR OF POLICE,ADOOR POLICE STATION. R1 & R2 BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.3277 OF 2009 ------------------------------------------ Dated 15th December 2009 O R D E R First petitioner is a contractor undertaking civil works for the Southern Railway and petitioners 2 to 9 are its employees. They are the accused in C.C.1652/2009 on the file of Judicial First Class Magistrate, Adoor taken cognizance for the offences under Section 4 read with Section 21 of Central Mines and Minerals (Development & Regulation) Act and Section 48 read with Section 58 of Kerala Minor Mineral Concession Rules. Petition was originally filed to quash Annexure-A2 FIR and all further proceedings. Subsequent to the filing of the petition, Annexure-A8 final report was filed and therefore Crmc 3277/09 2 petition was got amended seeking relief of quashing Annexure-A8 final report also. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Crime No.758/2009 of Adoor police station was registered by Sub Inspector of Police, Adoor, after seizure of lorries KL- 36/8129, KL-36/8127 KL-36/8128, KL-36/8130, KL-36/8132, KL-36/8134, KL-36/8133 and JCB KL-36/131 on the allegation that ordinary earth is being transported without license or permit, after quarrying. First petitioner is admittedly the contractor who obtained the work of doubling of track between Kayamkulam and Mavelikkara and for the work ordinary earth is to be taken to the site where doubling of track is to be done. Prosecution Crmc 3277/09 3 case is that ordinary earth was quarried and transported by the petitioner in vehicles using services of the employees of the first petitioner and as he did not obtain permit or license for quarrying and transporting, they committed the offences. Learned counsel appearing for the petitioners pointed out that Division Bench of this court in Construction Materials Movers Association v. State of Kerala (2008 (4) KLT 909) considered the question whether a permit or license is to be taken for mining of ordinary earth, in view of Section 4(1) and 1(A) of the Mines and Minerals (Development & Regulation) Act and held that though by incorporating ordinary earth also within the definition of minor minerals, ordinary earth would also come within the ambit of the Act, Crmc 3277/09 4 but Schedule 1 of Kerala Minor Mineral Concession Rules was not amended and as long as ordinary earth is not included in schedule 1, no royalty is payable for the ordinary earth either for quarrying or for its transport. It was therefore held that if a person is not having quarrying permit or quarrying lease he cannot stock and sell minor minerals mentioned in Schedule 1 under dealer's license issued by the competent authority and since ordinary earth was not included in the schedule, provisions of Chapter VII A of the Rules are not applicable to ordinary earth and the provisions contained in Chapter III of Kerala Minor Mineral Concession Rules dealing with the grant of quarrying permit will apply to quarrying of ordinary earth Crmc 3277/09 5 from private lands and Rule 12 of the Rules under Chapter III enables competent authority to prohibit quarrying operations. It is pointed out that by Annexure-A1 order District Collector, Pathanamthitta as per order dated 11/3/2009 permitted the first petitioner to quarry ordinary earth from survey No.421/4 of Pallickal village and survey No.585/5-1 and 474/1 within the specified area and therefore, there is permit for quarrying. It is also pointed out that all the vehicles involved in the case are shown in Annexure-A1 order stating that first petitioner is entitled to transport ordinary earth in those vehicles to the place of work, through the specified route. When the vehicles were seized, first petitioner filed W.P.C.20118/2009. By Crmc 3277/09 6 Annexure-A4 judgment this court directed District Collector to pass orders, on the petitioners request for deployment of all the vehicles for the purpose mentioned in Ext.P1 itself and District Collector shall consider the requirement of the petitioner for the use of these vehicles for excavation of ordinary earth in connection with the contract that he was entrusted with and orders are to be passed within one week. By Annexure-A6 order dated 19/9/2009 District Collector not only permitted the quarrying but also permitted the first petitioner to transport ordinary earth so quarried in nine vehicles named therein which includes the vehicles included in this case. Revenue Divisional Officer was directed to issue necessary pass. By Annexure-A7 order dated Crmc 3277/09 7 5/10/2009, Revenue Divisional Officer issued necessary passes for transporting ordinary earth. 4. As rightly pointed out by the learned counsel appearing for the petitioners, as ordinary earth is not included in Schedule 1 of Kerala Minor Mineral Concession Rules and no royalty is payable either for quarrying or for transporting ordinary earth. Annexure-A1 order originally issued on 11/3/2009 itself provides the license or permit to the first petitioner to undertake quarrying the ordinary earth from the properties. Subsequently, the entire position has been clarified by Annexures-6 order and 7 order issuing the passes. In such circumstances, when first petitioner, through the remaining Crmc 3277/09 8 petitioners, who are his employees, is transporting ordinary earth after quarrying as authorised under Annexure-A1 permit and transporting them in the lorries specified in Annexure-A1 order itself and when there is no permit or license is necessary to transport the ordinary earth, continuation of the proceedings as against the petitioner is only an abuse of process of the court. Hence interest of justice warrants that proceedings is to be quashed. Petition is allowed. C.C.1652/2009 on the file of Judicial First Class Magistrate, Adoor taken cognizance on Annexure-A8 final report in Crime No.758/2009 is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj. Crmc 3277/09 9