- (1.) HEARD learned counsel appearing for the petitioner and learned counsel appearing for the State. A case was lodged by the Sub-divisional Officer, Jagannathpur, West Singhbhum, Chaibasa on the allegation that on inspection of the premises of Shyam Mineral Crusher Plant, situated at village Sarbil, it was found that stone after being brought from the forest area is being crushed illegally without having any licence by the Mines and Mineral Department and also without having any permission from the Pollution Control Department.
(2.) ON such allegation, a case was registered as Noamundi P.S. Case no.8 of 2011 under Section 414 of the Indian Penal Code, under Sections 33/41/42/52 of the Indian Forest Act and also under Section 4(1A)/21(1)(6) of the Mines and Mineral (Regulation and Development) Act and also under Section 37 of the Air (Prevention and Control of Pollution) Act, 1981. On submission of the charge sheet, when cognizance of the offences punishable under Sections 33/41/42/52 of the Indian Forest Act an also under Section 4(1A) and 21(1)(6) of the Mines and Mineral (Regulation and Development) Act and also under Section 414 of the Indian Penal Code was taken, vide order dated 16.3.2012, it was challenged to be bad in this application. Mr.Gadodia, learned counsel appearing for the petitioner submitted that it is the case of the prosecution that the Sub-divisional Officer, Jagannathpur on receiving information that the petitioner has been running crusher unit illegally without having licence from the Mines and Mineral Department and also without having any permission from the Pollution Control Department inspected the premises and found the allegation tobe true and thereby lodged a case for commission of offences under Sections 33/41/42/52 of the Indian Forest Act but in view of Section 52D of the Indian Forest Act as amended by the State Government, power of entry, inspection, search and seizure lies with the Forest Officer not below the rank of Range Officer of forest or Police Officer not below the rank of Sub-Inspector in case of contravention of any of the provision of the Forest Act but here in this case, it is the Sub-divisional Officer, who had made search and seizure,who has never been empowered under the Act to make search and seizure and if the case lodged upon the search and seizure which is illegal, entire prosecution gets vitiated so far the offence under the Forest Act is concerned.
(3.) IT was further submitted that similarly the court also committed illegality in taking cognizance of the offences punishable under Sections 4(1A)/21(1)(6) of the Mines and Mineral (Regulation and Development) Act as the court can take cognizance only on a complaint lodged by the authorized person but here in this case, the complaint has never been lodged by the competent authority raher an FIR has been lodged by the Sub-divisional Officer, Jagannathpur and thereby the court has certainly committed illegality. It was further submitted that so far cognizance of the offence under Section 414 of the Indian Penal Code is concerned, that also gets vitiated as when an offence comes within the purview of any Special Legislation, one cannot maintain prosecution for the said offece under the General Law, in view of the provision as contained in Section 4 of the Code of Criminal Procedure and thereby the court also committed illegality in taking cognizance of the offence punishable under Section 414 of the Indian Penal Code as whatever allegation has been made for commission of the offence under Section 414, that pertains to allegation which would be covered by Section 4(1A)of the Mines and Mineral (Regulation and Development) Act.;