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TMI Blog2016 (8) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution empowers the parliament to make laws for the whole or any part of the territory of India, subject to the other provisions of the Constitution. This clause also provides that the legislature of a State may make laws for the whole or any part of the State. Article 246 deals with legislative powers of the Centre and the States on the different matters enumerated in the three lists in the VIIth schedule of the Constitution. Clause 3 of Article 246 provides that subject to Clauses (1) and (2) dealing with legislative powers regarding matters in the union list and the concurrent list, the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II (State list) in the VIIth schedule. Thus it is very clear that the legislative powers of a State cannot extend beyond the territorial limits of the State and beyond the scope of the subject matter in the State list or in the concurrent list as the case may be, or beyond the scope of the object of legislation. In the present circumstances involving sand exported from the State of Karnataka, the Sand Act in Kerala can have no applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e police for arrest and seizure under the Code of Criminal Procedure are not specifically ousted or excluded by any of the provisions of the MMDR Act. On the other hand the offence punishable under Section 21 is made specifically cognizable also. That the offence is made cognizable means that any police officer, competent and empowered to act under the Code of Criminal Procedure, is competent to make arrest and to make seizure of properties, but prosecution can be launched only by the persons authorised by the Government under Section 22 of the MMDR Act. Contraband articles including minerals are liable to confiscation by court orders under Sub Section 4A of Section 21 of the MMDR Act - Competence of the police officer who made seizure in this case, to initiate prosecution under Section 22 of the MMDR Act cannot be questioned or doubted, because there is already a Government order authorising police officers of and above the rank of Sub Inspectors to initiate prosecution under Section 22. If an officer is authorised under the law to initiate prosecution, and if his powers as police officer under the Code of Criminal Procedure including Section 102 of the Code of Criminal Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers under the Sand Act, will have no authority or powers to seize the sand imported from other States, and that prosecution or other action is not possible in respect of such materials brought from other States, under the Sand Act, especially when import of sand from other States is permitted in the State of Kerala by a Government order. When the two writ petitions came up for consideration before a learned Single Judge of this Court, the writ petitioners sought orders on the basis of a Division Bench decision of this Court, dated 16.08.2011, in W.A. No. 1206/2011. On the other hand the respondents relied on another Division Bench decision dated 20.07.2010, in W.P.(C) No. 16392/2010 to contend otherwise that prohibition or control of export of sand in the State of Karnataka is binding on our State, and the authorities in Kerala will have to honour such laws of the neighbouring State restricting or prohibiting export of sand. Finding that the two decisions could not go hand-in-hand, the learned Single Judge thought that the question of law will have to be resolved either by another Division Bench, or by a Full Bench, if so felt necessary by the Division Bench. Accordingly, the tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 301 of the Constitution. The said Article declares freedom of inter-state intercourse in trade and commerce, subject to the restrictions and limitations under the Constitution itself, with the object of ensuring that the internal unity, and also the financial stability of India, shall not be affected or broken by internal barriers or restrictions prohibiting or controlling free flow of trade, commerce and intercourse throughout the country. The general policy declared under Article 301 of the Constitution is modified and explained by Article 302, which authorises the Parliament to impose such restrictions on the freedom of trade and commerce between one State and another, or within any part of the territory of India, by law, as may be required in public interest. While permitting such Legislation under Article 302 in public interest, Article 303 of the Constitution prohibits the Parliament and the State Legislatures from making any law giving, or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nacted by the Legislature. 7. In view of the provisions contained in Article 304, authorising State Legislatures to impose reasonable restrictions on the freedom of trade in a particular State, only by a special law enacted by the State Legislature, it is contended by the petitioners that a mere circular issued by the Government of Karnataka will not get sanctity as law, as meant under Article 304 of the Constitution. We are not in fact called upon to decide the Constitutional validity of the circular issued by the Government of Karnataka prohibiting export or transportation of sand from the State of Karnataka to the neighbouring States. However, a Division Bench of the Karnataka High Court in Santhosh Krishna Kalgutkar and Another v. State of Karnataka and Another [AIR 2011 Karnataka 49] upheld the validity of the ban imposed by the Government of Karnataka by way of a circular, prohibiting export and transportation of sand from the State of Karnataka to the neighbouring States. In such a situation we need not look into that aspect and probe into the constitutional validity of the said circular. That is not the issue here. Our concern is whether we are bound to honour the circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only if there is a violation of provision of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The appellants' contention that sand transported was sourced from Karnataka under permit issued by the Authorities in Karnataka and therefore transport is not illegal under the Sand Act is absolutely tenable. 9. The Division Bench referred the issue to the Full Bench, noticing a clear conflict on the subject, between two Division Bench decisions of co-equal Judge strength. However, the Division Bench observed thus in paragraph 6 of the judgment by which the matter was referred to the Full Bench: However, we, in co-equal jurisdiction, have to respect the wisdom expressed in the judgment in W.P.(C) No. 16392 of 2010 which expresses also the judicial anxiety in the context of movement of the goods on interstate basis, when the movement of goods from one State is prohibited. We are unable to dissuade ourselves from thinking that the said view has substance. 10. The petitioners rely on a decision of the Honourable Supreme Court in Varghese v. State of Kerala 2008(1)KLT 576 (SC) to contend that ban or prohibition of export of sand from one Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution must, in all ways possible, be respected, honoured, and accepted by other States. Prohibition of export in one State cannot be ignored or defied, or challenged by the other States, and import or transportation of such prohibited goods cannot be justified by the other States on the basis of permitted import in those States. It is true that import of sand to Kerala is permitted by the Government of Kerala. But, when such export is prohibited in a neighbouring State, we cannot defy and question the Karnataka law saying that our law permits import. When we permit import of sand to Kerala from neighbouring States, or the other States in the Country, it must definitely be subject to the restrictions and prohibitions made on the subject by the other States. Otherwise, situations of conflict between States, and conflict of interest between States will defile our federal system, and will create unhealthy and undemocratic situations in the dealings and relations between different States in India. When the State of Kerala permits import of sand from other States under any special law or the Rules, such import cannot go against the prohibition of export sanctioned under the supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chief Secretary, Government of Kerala and others 2014(1) KHC 329, involving a batch of writ petitions challenging the extent of the powers of the police and the other authorities under the MMDR Act in the absence of specific notification by the Government, a learned Single Judge of this Court held that even in the absence of such notification under Section 21(4) of the MMDR Act the authorities are well within their powers to seize vehicles and minerals, and that the general powers of police under the Code of Criminal Procedure for seizure and other procedures are not in any manner affected by the MMDR Act. 14. The extent of legislative powers of the Union and the States is dealt with under Part XI of the Constitution of India. Clause 1 of Article 245 of the Constitution empowers the parliament to make laws for the whole or any part of the territory of India, subject to the other provisions of the Constitution. This clause also provides that the legislature of a State may make laws for the whole or any part of the State. Article 246 deals with legislative powers of the Centre and the States on the different matters enumerated in the three lists in the VIIth schedule of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate the extraction and removal of river sand in Kerala, and also the matters connected therewith or incidental thereto. The scheme of the various provisions of the Kerala Sand Act also will show that the subject matter of legislation is in fact river sand collected or extracted from various rivers and river beds in Kerala, and the object is preservation and protection of biophysical environment system of river banks and river beds by such process. Much thought or probe is not required to find that sand, or even river sand, brought in Kerala from other States on licit or illicit export cannot be governed by the Sand Act in Kerala. When we examine the subject and object of legislation, and also the various provisions of the Sand Act in Kerala dealing with extraction, collection, removal and distribution of river sand collected from the rivers, and river banks or river beds in Kerala, we find that the object of the Sand Act is protection of the rivers and river banks of Kerala and also their bio-physical environmental system. So we find that in the present circumstances involving sand exported from the State of Karnataka, the Sand Act in Kerala can have no application, and the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners is contained in the scheme of the provisions of the Act. One may ask why minor mineral is separately defined under the law, if it is included in the definition of minerals. We find that it is with a specific object the parliament defined minerals generally and minor minerals specifically. The scheme of the provisions of the MMDR Act is that exclusive powers are given to the Centre to deal with minerals other than minor minerals, but under Section 15, State Governments are authorised to make Rules with respect to minor minerals alone. Even as regards minor minerals the scope of the Rules must be for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals. The matters on which the State Governments can make rules for regulating the grant of such leases or concessions are enumerated in Clauses (a) to (o) of sub Section IA of Section 15. When the application of law is divided as regards the subject matter categorywise, it is imperative that the subject matter within the powers of the centre and the subject matter within the powers of the States must be separately dealt with. This is the only reason why the MMDR Act defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of imprisonment for a term which may extend to one year, for contravention of any provision of the Rules. On an examination of Rule 58 dealing with different aspects including seizure of materials and also punishment for contravention of Rules, we find that what is dealt with under Rule 58 is not in fact a situation of violation of Sub Section 1A of Section 4 of the MMDR Act. The Kerala Minor Mineral Concession Rules, 1967 were in force in Kerala when the vehicles of the petitioners with full load of sand were seized by the police. But now what is in force in Kerala is the Kerala Minor Mineral Concession Rules 2015 framed by the Government of Kerala in exercise of the powers under Section 15 (1) of the MMDR Act, and in supersession of the Kerala Minor Mineral Concession Rules 1967. The 2015 Kerala Rules deal with certain situations not dealt with originally by the 1967 Rules. However, violation of Sub Section 1A of Section 4 of the MMDR Act is not seen covered by these Rules also. The punishment provided under Rule 108 of the 2015 Kerala Rules is only for the contravention of any provision of the Rules, and not for violation of any provision of the MMDR Act. Illicit import of sand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carrier without having a valid mineral transit pass under these Rules. In this case the petitioners did not have any permit or pass justifying import of sand from Karnataka or justifying transportation of such sand within the State of Kerala. The police seized the sand and the vehicles when the petitioners failed to produce any pass or permit as prescribed under the law. Of course, it is true that the above Rules were made in 2015 as authorised under Section 23C of the MMDR Act, but the vehicles and the sand in this case were seized long back in February 2012. Still the position is covered by the MMDR Act itself. 19. Now, after the coming into force of the provisions of the Rules made by the Government of Kerala under Section 23C of the MMDR Act, identical situations can be dealt with under these Rules, and the provisions of the MMDR Act dealing with seizure, prosecution or punishment etc. will have to be followed in the process. In the present circumstances we find that there is not much difficulty to deal with identical situations because illegal or illicit transport of any mineral, without any valid pass or licence as prescribed under Sub rule 3 of Rule 3 of the 2015 Rules ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf. Sub Section 4A further provides that any mineral or other material seized under sub Section 4, shall be liable to confiscation by an order of the court competent to take cognizance of the offence, and shall be disposed of in accordance with the directions of such court. 23. Now, let us see how situations like the present one involving illicit import or transport, or possession of minerals including minor minerals, not covered by the Kerala Sand Act and the MMDR Kerala Rules, can be dealt with in Kerala under the MMDR Act. Section 21 of the MMDR Act prescribes the procedure for criminal action in such matters, including seizure of articles, prosecution and confiscation of articles. Section 22 of the MMDR Act provides that, no court shall take cognizance of any offence punishable under the Act or any rule made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government . The Government of Kerala has already issued notification appointing different categories of persons of various depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their respective jurisdiction, to act as the competent authority under S. 22. S. 23A of the Act enables such authorised Officers to compound any offence punishable under the Act on payment of a sum that the said authority may specify. 25. We fully agree with the Division Bench on this legal aspect. Illicit import of sand to Kerala, or illicit possession of such sand, or illicit transport of such sand, or even illicit possession or transport of sand not covered by the Kerala Sand Act is punishable under Section 21 of the MMDR Act, as a violation of Sub Section 1A of Section 4 of the Act. 26. Sub Section (6) of Section 21 of the MMDR Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under Sub Section (1) of Section 21 shall be cognizable. That the offence is made cognizable means that police officers will have power to make arrest and to proceed appropriately under the law. The argument advanced by the petitioners is that police officers will not get any authority for arrest without warrant under Sub Section (6) of Section 21, when there is no notification appointing those officers under Sub Section (4) of Section 21. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and such properties can be appropriately dealt with. 28. Competence of the police officer who made seizure in this case, to initiate prosecution under Section 22 of the MMDR Act cannot be questioned or doubted, because there is already a Government order authorising police officers of and above the rank of Sub Inspectors to initiate prosecution under Section 22. If an officer is authorised under the law to initiate prosecution, and if his powers as police officer under the Code of Criminal Procedure including Section 102 of the Code of Criminal Procedure are not specifically ousted or excluded under the special law, and when the offence is specifically made cognizable, the powers and authority of such police officer to make seizure under Sub Section (4) of Section 21 cannot be questioned or challenged. We find that such appointment specifically under Sub Section (4) of Section 21 is required only in the case of other categories of officers than police officers. This position is made clear by the learned Single Judge in Aloshias C. Antony's case (cited supra). The learned Single Judge observed that power to seize must be corollary to the power to make arrest and to bring pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession or transport of such mineral in the State of Kerala, not covered by the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, or any other special law, will have to be dealt with, and appropriate proceedings including arrest, seizure and confiscation are possible, under the Mines and Minerals (Development and Regulation) Act, 1957. b) In the given factual situations in these two writ petitions, the Kerala Protection of River Banks and Regulation of Removal of Sand Act is not applicable. c) A writ of mandamus, as sought by the writ petitioners, directing the police officers to release their vehicles cannot be granted. Appropriate orders, including confiscation orders, will have to be passed by the court having jurisdiction to take cognizance of the offence punishable under Sub Section (1) of Section 21 of the MMDR Act, on a complaint brought under Section 22 of the Act. d) If the police officer who seized the properties has not so far reported the fact of seizure to the court, he will immediately report the fact of seizure to the court having jurisdiction. e) The court having jurisdiction shall pass appropriate orders as regards the san ..... X X X X Extracts X X X X X X X X Extracts X X X X
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