JOYNAL ABESIN GAYEN Vs. STATE

JUDGEMENT

(1.) THESE two Rules are directed against the orders passed by the learned Sessions Judge of Hooghly whereby he has upheld the conviction and sentence imposed upon the petitioners by Sri M. M. Sinha Roy, Magistrate, First Class, Chandannagar, under Rule 25 of the West Bengal Minor Minerals Rules, 1959. The petitioners have been sentence to pay a fine of Rs. 200/- each, in default, to suffer simple imprisonment for three weeks. The prosecution story in both the cases are common. It was alleged that the accused petitioners along with others commenced extracting sand from C. S. Plot No. 301 of mouza Bagbari (Crl. Revn. 731/1961) and C. S. Plot No. 987 of mouza Baliagari (Crl. Revn. 730 of 1961), P. S. : Tarakeswar, without any licence or lease from the Government. The defence inter alia was that the petitioners were not guilty. It was alleged that the last recorded tenant dandiswami Hrishikesh Asram had leased out the lands in dispute to Sri bholanath Dutt, who in his turn leased them out to Jagin Bar for digging a tank. The petitioners were labour contractors and had merely supplied labourers for digging out the tank under orders of Jagin Bar and, as such they were not liable to be indicted for removal of sand as alleged. The co-accused Jamini and Toostu are the sons of the recorded tenant and they are in possession thereof upon payment of rent. The tank in dispute was being dug out for reclamation and the petitioners' contention further was that they were neither tenants of the land in dispute, nor the owners. They have also denied the allegations that they appropriated the sand extracted. Upon consideration of the evidence, the learned Magistrate convicted the petitioners in terms set forth above.

(2.) THE principal question mooted by Mr. Talukdar on behalf of the petitioners is that the offence as contemplated under Rule 25 of the West Bengal Mines and Minerals Rules is not applicable to the present case. His reasons are that this Rule was not framed in respect of the land owned by private owners and that in any event there being no non-conformance to Rule 26, the petitioners ought to have been found not guilty of the charge brought against them. It runs as follows : any person extracting any minor minerals without a proper lease or licence granted under these rules or in contravention of the provisions of the rule 26 shall be punishable with imprisonment for a term which may extend to three months. . . . etc. "

(3.) THE learned Sessions Judge has interpreted this Rule to mean that it prohibits extraction of any Minor minerals without a proper lease or licence excepting by the owner and for his own purpose or use. The Rule 25, however does not make any provision for user of the Minor Minerals by a private owner but Rule 26 does. It is not disputed by Mr. Talukdar that the sand which is said to have been extracted by the digging of the land was a minor Mineral within the ambit of section 3 (e) of the Mines and Minerals (Regulations and Development) Act, 1957.