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TMI Blog2020 (11) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... ort "the IPC") as well as section 21 of the Mines and Minerals (Development & Regulation) Act, 1957 (hereinafter, called as "MMDR Act") has been called in question. 2. The factual exposition necessary for the purpose are briefly stated as under:- The petitioner no. 2 is the lessee of Unchabali Iron and Manganese Mines situated in the revenue village Unchabali in the District of Keonjhar, Odisha. The petitioner no. 1 is the General Power of Attorney holder of petitioner no. 2 who as such had executed the mining lease-deed on 05.02.1999 which had been granted in favour of the petitioner no. 2. The mining operation in the said mines commenced after the mining plan was approved by the Indian Bureau of Mines(IBM) as provided under section 5(2)(b) of the MMDR Act. The petitioners are thereby duly authorized to mine the iron ore and undertake the mining activities. 3. (a) On 24.09.2009, a joint physical inspection of the said mines was made by a team led by the Vigilance Authorities, consisting of Technical Experts such as Engineers, and the Officials of Revenue as well as Mining Departments. On 02.12.2009, a written information was lodged by the Deputy Superintendent of Police, Vigil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that the Dy. Director of Mines, Joda from 04.07.2005 to 10.08.2009 has allowed dispatch of the excess iron ore in connivance with the Senior Inspector of Mines working as such from 23.06.2006 to 03.07.2009 and the other Senior Inspector, Mines from since 06.07.2009 to 24.09.2009; (c) these officials visited the mining site from time to time, and certified the dispatch of the iron ore despite the fact that huge quantity of iron ore have been brought from outside of the mining lease area; (d) on 24.09.2009, the day of joint verification, the physical stock of iron ore were found to be 1,82,637.695 MT against the closing balance of 4,87,205.870 MT as on 24.09.2009; thus, a shortage of 3,04,568.170 MT of iron ore as on 24.09.2009, costing Rs.6000/- per MT, which has been clandestinely disposed off by the petitioners without disclosing about the same in any official records; (d) the amount royalty and Sales Tax against the above quantity of iron ore having not come to the State exchequer; the petitioners have thus cheated the State; (e) that up to the date of joint physical verification, the total dispatch was of Rs.24,31,225.130 MT as against the total production of iron ore fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners avoiding the payment of royalty and sales tax falls flat; that, on simple evaluation of the documents from the records maintained in the office of the concerned Deputy Director, Mines; further allegation that the petitioners had indulged in illegal mining activities in violation of the terms and conditions of the Mining Lease agreement and in contravention of the provision of section 4 of the MMDR Act is not per se acceptable nor those give rise to strong suspicion in the direction of and in support of the said allegations. (IV) that based on the F.I.R. and charge-sheet, upon which the court has taken cognizance of the offences and issued process to the petitioners, the Department of Steel and Mines, Government of Odisha demanded a sum of Rs. 11,31,72,22,470.00 under notice dated 25.11.2010. The said demand was based on the same sets of allegations / accusations/ assertions as made in the F.I.R. and charge-sheet. A revision as provided under the MMDR Act read with the Rules made thereunder being filed in questioning the said demand as well as the consequential actions as stated therein as to determination of the mining lease and forfeiture of the security deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmations being sought for under the RTI Act require proof during the trial and now the case has to proceed on the basis of the informations provided in the charge-sheet and the supporting documents annexed thereto; (iv) on the contention of the petitioners on the averments taken at paragraph-9 of the decision as to disposal of the revision by the Revisional Authority under the MMDR Act in their favour quashing the demand and consequential action upon failure based on same sets of factual settings as indicated in that joint inspection report and the final charge-sheet as also its confirmation by the Hon'ble High Court in the move by the State in questioning the said order of the Revisional Authority, nothing is stated in the objection in saying that such orders have either no factual or legal impact in the criminal trial. Rather, all those factual aspects said to have been found out or ascertained during joint inspection and as noted in the report as also in course of investigation based on which charge-sheet has been filed are again narrated. It is then stated that the materials collected during joint inspection as also subsequent thereto during investigation make out a case fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment to conduct the investigation under MMDR Act. In this case F.I.R. has been filed by Dy. Superintendent of Police, Vigilance Cell, Cuttack and charge sheet has been submitted by Dy. Superintendent of Police, Vigilance Cell Unit, Bhubaneswar. So, on no illegality has been committed by taking cognizance in this case u/s.21 of MMDR Act. In view of the above facts and circumstance and the principles decided by the Hon'ble Apex Court, the petition filed by the accused persons being devoid of any merit stands rejected. " 9. Learned Counsel for the petitioners in course of hearing advanced his submissions in reiterating the points raised before the trial court for discharge of the petitioners in their petition and further highlighted those with reference to the relevant documents. He submitted that the allegations as to clandestine mining by the petitioners and dispatch of minerals without extracting those from within the mines area but outside when run contrary to the records maintained in the office of concerned Deputy Director, Mines and as royalty has been fully paid and all the dispatch of minerals are backed by required transit permits; the allegations made by the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the petitioners from being visited with any penal consequences concerning the operation of the mines in question, no charge can be framed for trial of the offences indicting the petitioners to have been so committed by them, on those very same sets of allegations culled out and inferred from what have been said to have been noticed during joint inspection and the records prepared in the subsequent investigation made thereto. According to him, the criminal trial under the circumstance is abuse of process as the charges have now to be said to be groundless. He contended that on this ground alone the impugned order of the learned Special Judge unsustainable. He placed reliance upon the decision of the Hon'ble Apex Court in case of Radheshyam Kejriwal Vrs. State of West Bengal and Another; (2011) 3 SCC 581 in support of said limb of his contention. Thus he contended that besides the grounds urged as above even on this lone ground, the impugned order rejecting the application of the petitioners for their discharge in the case and holding that prima facie case is made out for framing charge for the offences as above noted could not be sustained in the eye of law. 10. Learned Addl. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners that his last limb of contention, if finds favour with and accepted, the other limbs would no more be required to be further dwelt at length; it is felt apposite to first take up said exercise of consideration of last limb of the contentions raised by the learned Counsel for the petitioners which corresponds to the ground raised before the trial court as indicated in the foregoing paragraph -6(iv) as to judge the impact of the decision of the Revisional Authority in the matter, which has been upheld by the Hon'ble High Court on being challenged, on the framing of charges against the petitioners in the criminal trial on hand and its progress. 12. This Court is in the seisin of the revision filed by the petitioners in questioning the sustainability of an order passed by the trial court, refusing thereby to discharge the petitioners in putting an end to the criminal trial in so far as they are concerned. At this juncture, before proceeding to dwell upon the contention as stated in the foregoing paragraph-11, it would be apt to take note of the settled principles of law in the matter of consideration of the application filed by the accused persons seeking their discharge in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 14. The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court for the purpose is not required to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused. Ref.:- State of M.P. Vrs. Mohanlal Soni; (2000) 6 SCC 338. 15. In the recent case in M.E. Shivalinga Murthy Vrs. Central Bureau of Investigation, Bengaluru; (2020) 2 SCC 768, cited by the learned Additional Standing Counsel, Vigilance, the Hon'ble Apex Court referring to the earlier decisions including the one in case of P. Vijayan Vrs. State of Kerala and Another; (2012) 2 SCC 398 have discerned the following principles:- (i) if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused; (ii) the Trial Judge is not a mere Post Office to frame the charge at the instance off the prosecution; (iii) the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and as such can always be looked into in their proper perspective as to their impact or bearing if any over this case in accordance with law, keeping in view the fact that the proceedings initiated by the State Government and the criminal case owe their origin to that very physical inspection and verification of the mines as made on 24.09.2009, with all those same features as to stock, excavation etc. as noted therein having no such variance. 17. The petitioner no.2, the lessee of the mines in question had been served with a notice indicating the above illegalities and irregularities committed in course of operation of the mines in violation of the conditions of the mining lease as provided under Rule 27 of the Mineral and Concession Rules, 1960 (hereinafter, for short, 'the M.C. Rules') and other provisions of the MMDR Act. Based upon the same, the demand of Rs.11,31,72,22,470.00 under section 21(5) of the MMDR Act was made with further mention that unless the same would be paid within 60 days from the date of notice, the mining lease would stand determined with forfeiture of security deposit. This demand basically was raised towards the cost of 24,31,225.130 MT of iron ore sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revisional Authority, was assailed by the State before this Court in W.P.(C) No. 10219 of 2012. After hearing, by judgment dated 08.08.2016, the Hon'ble Division Bench of this Court has found the Writ Application sans merit and accordingly, refused to interfere with the order of Revisional Authority which had been impugned therein. The Writ Application filed by the State has thus been dismissed. It is stated at the Bar, that the State has not questioned the said judgment of the Hon'ble Division Bench of this Court by further carrying the matter to the Hon'ble Apex Court. The judgment dated 08.08.2016 passed by the Hon'ble Division Bench of this Court in W.P.(C) No. 10219 of 2012 confirming the order of the Revisional Authority has thus attained its finality, in so far as demand of Rs.11,31,72,22,470.00 towards cost of 24,31,225.130 MT of iron ore which was raised and demanded being based on the one and same joint inspection and verification as aforestated. The consequential action of the cancellation of mining lease and forfeiture security deposit in the event of non-payment of above demand has thus been nullified; the petitioners have been continuing to operate the said mines as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,68,841.44 MT said to have been illegally raised from some area outside the leasehold. 23. It has noted the contentions raised by the petitioners which are the followings:- "31.1 On (i) above Revisionist contends that as per the month wise details received under RTI from Mining Officer, Joda vide letter dt.23.12.10 shown at Annex-J to RA, from May'08 to Sep.'10 their production comes to 27,17,082 MT. and dispatches 24,81,022 MT. According book balance as on 30.09.11 comes to 2,36,059.53 MT. These figures including closing balance exactly tally with figures in their statutory returns. There has been production of 60,051 MT and dispatch of 38.826 MT during 24.09.10 to 30.09.10. Revisionist further contends that during verifying Physical Balance, the team ignored stock pile of 24,700 MT of BD contaminated 10-80 mm ore presumably because it was staked in non-operational area but duly reflected in stock. The physical stock of iron ore was found to be 1,82,637.695 MT only. If this is added the Physical Balance would be 2,07,337.695 (rounded 2,07,338) against 1,82,637.695 MT. Accordingly as per the Revisionist as on 24.09.11 production and dispatches will be as under:- Production 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in impugned Proceedings were arrived at or their genesis are not explained. Why the same are also not as per FIR is also not explained. One of these two sets of departmental figures have to be true and authentic departmental figures. As information received under RTI Act generally has to be true and authentic and as State Govt. has not commented on the origin and veracity of the departmental figures of the impugned, thus allegations/findings of shortages are not substantiated. 31.3. As discussed above information received under RTI Act has to be true and authentic. Further as the same has been received from the same source as mentioned in the impugned Proceedings, I consider that the figures mentioned in the impugned Proceedings (para-2) are not authentic; the State Govt.'s own Department contradicts the same. Revisionist had also submitted detailed account of discrepancies along with errors which Sate Govt. appears to have committed in these figures during months of Feb., March, June and July, 2009. She has also given detailed comparison. From above, I observe that there is no discrepancy in production and figures in their records and statutory reports, IBM reports and records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody its report is binding on both the parties. i) That IBM on inspection on 09.12.09 certified that production from leasehold area from May' 2008 to Nov.' 2009 had been 30,86,776 MT. With backward computations Revisionist's correct production as on 24.09.2009 would be 26,57,031 and not 29,18,431 MT. ii) That further IBM on inspection on 08.12.2008 (Annexure-M) certified that production from leasehold area from May' 2008 i.e. within a period of seven months of the start of production Revisionist's had produced 7,84,950 MT. thus approximate 92% of this production has been produced by Nov.' 2008 i.e. 10 months before the visit. iii) Revisionist contends that admittedly the volume of pit excavated in the mining leasehold area of the Revisionist is 12,19,798.370 Cubic Meters. As per the mining plan duly approved by the IBM, the Tonnage Conversation Factor (TCF) is 3.5 MT/Cu.M for the iron ore and the Ore Incidence Factor (i.e. recovery percentage) is 70%. Against this that the State Govt. has considered TCF 1.99 and recovery percentage 35% which is wholly arbitrary, mala fide and liable to be rejected being contrary to the norms approved by the IBM. This is also against the genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment or Forest Department or by any of other for almost one year to locate such a huge size pit or above stated other paraphernalia, machineries and trucks. If it exists, the same must not be far away from existing lease area. Further admittedly area is stated to be falling in forest. No case has been stated to have booked for violation of Forest (Conservation) Act, 1980. There is also no allegation of tampering of boundary pillars. Not a single dispatch has been seized. No one has also appears to have seen Revisionist doing alleged illegal mining to such a huge scale. 32.6. Entire case of State Govt. is based only on the above stated visit on 24.09.09 and the demand is made upto this date. Impugned Proceedings is also silent about production/dispatch and also demand for the period subsequent to the visit. Whether the Revisionist suddenly stopped illegal mining from outside lease area after the visit or continued to do so. Impugned Proceedings and State Govt.'s reply/ submissions are silent on this issue. Trend and scale of production / dispatch of Revisionist after this visit appears to continue to be the same as it was before. Accordingly pit size must have increased and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly said that the revision filed by the opposite party no.2 therein challenging the order under communication on dated 25.11.2010 was maintainable under section 30 of the MMDR Act. 25. Next going to address the contention of the State that the Revisional Authority ought not to have entered into the merits of the case and given its finding as to whether opposite party no.2 therein was liable to make payment of the amount determined by said order dated 25.11.2010 under section 21(5) of the MMDR Act, but should have remanded the matter to the State Government to give an opportunity to the opposite party no.2 therein to show-cause and then pass final order; the Hon'ble Division Bench of this Court has held that in the facts and circumstances placed by the parties, the Revisional Authority having decided the revision on merits, cannot be faulted and there was nothing wrong on the part of the Revisional Authority to decide the same on merit and thereafter quash the proceeding after affording opportunity of hearing to the parties. 26. Proceeding then to examine the correctness of the findings of the Revisional Authority on the shortage of minerals, the answer has been recorded that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3- 1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs." 28. In case of G.L. Didwania Vrs. ITO; 1995 Supp.(2) SCC 724; the appellant therein was an assessee and had shown his business income from firms in Delhi and Bombay. There was another firm, M/s. Young India and Transport Company wherein the minor children of the appellant and two of his employees were partners. The firm was said to be not a genuine one and the instrument of partnership was attacked therein as invalid and inoperative. The appellant thus faced proceeding under section 147 and 148 of the Income Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ERA. The Enforcement Directorate was of the further opinion that by abetting as to contravention of the provisions of section 9(1)(f)(i) and section 8(2) read with section 64(2) of the FERA, the appellant has rendered himself liable for penalty under section 50 of the FERA. Accordingly, show-cause notice being issued, adjudication proceeding under section 51 of the FERA was initiated. The adjudication officer came to conclude that the charges against the appellant were not sustainable. Accordingly, the adjudication officer dropped the adjudicatory proceeding. This order was not further challenged by the Enforcement Directorate. However, on the same allegation which was the subject matter of adjudication proceeding the Directorate filed a complaint against the appellant for prosecution under section 56 of the FERA in the court of law. In the above state of the affair, the appellant filed an application for dropping the criminal proceeding inter alia contending that on the same allegation, the adjudication proceedings having been dropped and he has been exonerated therefrom, his continued prosecution is an abuse of process. The trial court repelled the contention and rejected the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case." 30. Then referring to various judgments cited therein and the factual settings under which those have been rendered, the Hon'ble Apex Court have culled out the ratio of those decisions in paragraph 38 which are reproduced herein below:- "38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the vendor that it has an account with Central Bank, Bangalore and not with Federal Bank, Thriupporur. On account of such diversion of funds as per the FIR, a number of persons came to be arraigned as accused persons in the case. The appellant therein who was accused no.9 with others had been charge-sheeted on 26.07.2011. It had been alleged that the appellant had received the e-mail on 25.05.2009 containing the RTGS details for the account with Federal Bank, Thripporur, which he then forwarded to accused-Muthukumar who is said to be the kingpin involved in the crime and apparently, based on Muthukumar's approval, the appellant then signed various cheques which were forwarded to other accounts. No sanction being obtained under the Prevention of Corruption act in so far as the appellant was concerned, the learned Special Judge decided not to proceed against the appellant for trial of said offence(s) under the P.C. Act. Next holding that there was no need for sanction under section 197 of the Code; finding in the facts of the case that a prima facie case for the offences under IPC was made out against the appellant therein, the learned Special Judge refused to discharge the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FIR as well as the charge-sheet giving rise to the present criminal trial have been quashed. The State Government since 08.08.2016 has accepted the said order of quashment of the proceedings for realization of heavy penalty from the petitioners and cancellation of the mining lease after having failed in the attempt by filing the writ application before this Hon'ble Court in getting the order of quashment of those proceedings passed by the Revisional Authority annulled. The Hon'ble Division Bench of this Court not only have found the order of the Revisional Authority to be on merit but also to be well in order. Accordingly, it has been held that the same does not warrant or justify interference. The Revisional Authority having made detail discussion of all the available materials, upon their critical analysis and keeping in view the rival contentions advanced before it, has held that all those very factual aspects as alleged/ projected in the charge-sheet for trial of the petitioners which form the foundations of the proceedings under challenge are not acceptable. The Hon'ble Division Bench of this Court has concurred with those categorical findings as to shortage of minerals as on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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