21. Once it is found that minerals include minor minerals, and that the subject matter of dispute in these cases is not in fact covered by the Sand Act in Kerala, or the MMDR Rules in Kerala, the prosecution procedure including seizure and arrest as provided under the MMDR Act, will have to be followed. The prohibition contained in Sub section IA of Section 4 of the MMDR Act applies to all minerals including minor minerals, and when the Rules framed by a State Government do not contain provision to deal with such a situation, or to deal with violation of Section 1A, such violation will have the consequences including prosecution, seizure and confiscation as provided under the MMDR Act. Such procedures are provided under Section 21 of the MMDR Act.
22. Sub section 1 of Section 21 of the MMDR Act provides that whoever contravenes the provisions of sub section 1 or sub Section 1A of Section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to ₹25,000/- or with both. Sub Section 4 of Section 21 provides that whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, 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 departments including police officers of and above the rank of Sub Inspector in the State to launch prosecution under Section 22 of the MMDR Act. The Learned counsel for the petitioners submitted that there was no Government notification as on the date of seizure in this case, appointing police officers under Sub Section (4) of Section 21 of the MMDR Act, with authority to seize articles liable to seizure under the said Sub Section. This is controverted by the other side, and it is contended that the Government has issued such a notification, and under the said notification police officers of and above the rank of Sub Inspectors are authorised to make seizure under Sub Section (4) of Section 21. Even if there is no such notification, the position is covered by the decision of this Court in Aloshias C. Antony and Others v. Chief Secretary, Government of Kerala and Others, 2014 (1) KHC 329 that the general powers of Police under the Code of Criminial Procedure are not in any manner affected by the MMDR Act.
24. In Construction Materials Movers Association v. State of Kerala, 2008 (4) KLT 909 a Division Bench of this Court observed that minerals include minor minerals also. As regards the scope and nature of proceedings in relation to minerals including minor minerals, under the MMDR Act, when the situation is not covered by any other laws or rules, the said Division Bench held thus in paragraph 10 of the judgment:
“S.21 of the Act provides a punishment of imprisonment for two years or fine, which may extend to twenty five thousand rupees or both for violation of sub-ss.(1) and (1A) of S.4. For unauthorised transport of minerals including minor mineral, the vehicles involved can be seized, which may be confiscated by the competent criminal court. The violations of sub-ss.(1) and (1A) of S.4 of the Act are cognizable offences, by virtue of S.21 (6) of the Act. S.22 says that the criminal court shall take cognizance of any offence punishable under the Act or Rules only on a complaint made in writing by a person authorised in this behalf by the Central or State Government. The State Government have issued a notification under S.22 of the Act, as per S.R.O.No.827/91 published in Kerala Gazette (Extraordinary) No.796 dated 26.06.1991, authorising all District Collectors and all Police Officers of and above the rank of Sub Inspector, apart from Geologists, 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.