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. As regards the powers of police for arrest and seizure even in the absence of notification under Sub Section (4) of Section 21 of the MMDR Act, we fully agree with the findings of the Division Bench in Construction Material Movers’ case (cited supra) and of the Single Bench in Aloshias C. Antony’s case (cited supra).
27. The general powers of the 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. The latter part of the Sub Section provides that the property shall be disposed of in accordance with the directions of such court. This means that appropriate orders including confiscation orders can be passed by the court having jurisdiction to take cognizance of an offence punishable under Sub Section (1) of Section 21, on a complaint brought by any officer authorised under Section 22 of the MMDR Act. Appropriate orders meant under Sub Section 4A will include even interim orders authorising interim custody under Section 451 of the Coder of Criminal Procedure. The object of Sub Section 4A of Section 21 is not that the property seized under Sub Section 4 shall be liable to confiscation in all situations. What we find on an analysis of the various provisions is that confiscation of properties is authorised under Sub Section 4A, by orders of the court having jurisdiction. However the court is competent to pass appropriate orders, for disposal of the properties. In appropriate cases where the facts and situations are of extreme violation, confiscation will have to be ordered by the court. However, in the case of minerals illicitly transported or imported, confiscation must be the rule. But in the case of vehicles and other articles, appropriate orders including confiscation orders can be passed by the court having jurisdiction, 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 prosecution. The learned Single Judge also observed that the argument otherwise, that seizure of articles made by an officer not empowered to arrest but empowered to bring prosecution under Section 22 of the MMDR Act, will not have effect of a legal seizure, is something difficult to digest. We fully agree with the observations and findings of the learned Single Judge in Aloshias C. Antony’s case (cited supra).
29. As discussed, observed and found in the forgoing paragraphs, we come to the conclusion on the important questions of law that situations like the present one involving minerals or minor minerals not covered by the Sand Act in Kerala or the MMDR Rules in Kerala, or any other special law, can be dealt with under the MMDR Act, and proceedings including seizure, confiscation and prosecution can be initiated under the MMDR Act. We accordingly find that the reliefs as sought by the writ petitioners cannot be granted. We reiterate that as regards the general police powers under the Code of Criminal Procedure for arrest and seizure, there cannot be any doubt or challenge, when such powers are not specifically ousted or excluded by any special or local law. There are provisions in the MMDR Act, authorising the Government to appoint other categories of officers also to make seizure and to initiate prosecution. We find that this is only in addition to the general powers given to the police under the Code of Criminal Procedure. However, as regards cognizance of offences, there is a specific provision under Section 22, and once cognizance otherwise than on complaint as prescribed under the law is barred, such cognizance under the Code of Criminal Procedure may not be possible. Only to that extent, the general powers of police under the Code of Criminal Procedure will stand excluded. In view of the specific provisions in Section 22 of the MMDR Act, prosecution on the basis of a final report under Section 173(2) Cr.P.C. is not possible. As regards the other police powers including arrest and seizure, there is no specific exclusion by the special law, and so, such general powers can be exercised by the police, including the powers to make arrest, and to seize properties.
In the result, the above writ petitions are disposed of as follows:
a) We declare that factual situations involving illicit import of minerals including sand to Kerala, or illicit possession 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 sand and the vehicles involved in the cases.
f) If application for interim custody of the vehicles is filed by the writ petitioners, the same shall be dealt with and disposed of by the learned Magistrate without any delay, or at any rate, within three months from the date of application.
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