@JUDGMENTTAG-ORDER
N.V. Anjaria, J@mdashThe present Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 arises out judgment and order dated 28th October, 2005 of learned Additional Sessions Judge, Third Fast Track Court, Kutch at Bhuj in Criminal Appeal No. 32 of 2003, whereby the said Appeal preferred by the applicant-accused came to be dismissed, and in turn judgment and order dated 29th April, 2003 passed by learned Judicial Magistrate (First Class), Nalia-Kutch in Criminal Case No. 87 of 1997 came to be confirmed. Learned Magistrate in the aforesaid criminal case convicted the applicant for the offence under Rule 5 read with Rule 42 of the Gujarat Minor Minerals Rules, 1966, and sentenced him to undergo simple imprisonment for six months and to pay fine of Rs. 1,000/- in default of payment of which, to undergo further simple imprisonment for 15 days. The said conviction and sentence came to be confirmed by the appellate court.
2. A complaint came to be filed against the applicant by the Mines Supervisor, Department of Mines. In the said complaint filed before the Court of learned Judicial Magistrate, Nalia, Kutch, offence in respect of illegal mining was alleged against the applicant, stating inter alia that the applicant had unauthorisedly mined the area in the land bearing Survey No. 157 of Village Raydhanjar, Taluka Abdasa, Kutch; that during the period from 01st March, 1997 to 07th May, 1997, though the applicant did not have the requisite permission or subsisting quarry lease, he carried out excavation of black stones to process the same to make chips after crushing the stone. It was alleged that 400 MT black stone was excavated without permission and without paying royalty to the State Government, payable at the rate of Rs. 12/- per MT being total amount of Rs. 4,800/-. It was further alleged that by illegal excavation, financial loss to the extent of Rs. 40,000/- was caused to the State Government. Accordingly for the offences punishable under Rule 5 read with Rule 42 of Gujarat Minor Minerals Rules, 1996, criminal case No. 87 of 1997 came to be registered.
2.1 The prosecution examined four witnesses, namely the complainant-P.W. 1 Kishor Kunvarji Machhar (Exh. 12), Devji Khajuriya and Hasam Mithu being Panch witnesses (Exhs. 37 and 38) and P.W. 4 Jaguben Dhanjibhai. The prosecution further relied on statements dated 02nd May, 1997 of the labourer (Exh. 13) and of the driver Shamji Mulji (Exh. 14), Panchnama (Exh. 15); furthermore the statement of Dhanji Nagshi of the same date (Exh. 16), the other statements of four different persons dated 07th May, 1997 (Exh. 18) and statement of Dhanji Nagshi Maheshwari (Exh. 19), as well as the statement of applicant dated 22nd May, 1997 (Exh. 20). The Court relied on the Notification of the State Government dated 31st May, 1997 (Exh. 21) and Office Order by the Directorate of Geology and Mines dated 13th November, 1992 (Exh. 22). The Panch witness turned hostile.
2.2 Both the Courts below considered the aforesaid evidence in their total effect together with the statement of applicant-accused (Exh. 20) as well as the statement of Dhanji Nagshi (Exh. 19), and recorded finding that for the said particular period the excavation was carried out by the applicant without any permission and authority. In the statement (Exh. 20) given before the Mines Supervisor, the accused admitted that the quarry lease was sanctioned on 27th December, 1988 which however came to be cancelled by order dated 03rd May, 1995 because of non-payment of royalty. He stated that mining operations were closed since last five years and admitted that after arranging for finance, he had got repaired the machinery and the work was started. The said statement (Exh. 20), when seen from the record, further mentioned that though the small black stones were excavated to the extent of 400 MT, no quantity thereof was sold and the entire quantity was lying at the mining site. According to the case of the applicant, the other quantity which was found there was the old stock lying unsold and unused. The Courts noted the contents of the statement of Dhanji Nagshi (Exh. 19) who accepted the activities of loading and unloading of the materials by truck.
2.3 Learned advocate for the applicant Mr. Kirtidev Dave submitted that documents produced in form of statements were not duly proved and could not have been relied upon to make it a basis for recording conviction. He submitted that the statements were not substantive piece of evidence and the Courts below committed an error in proceeding on that basis to hold the offence proved. On the cumulative consideration of the evidence on record however it was not possible to hold that the Courts below committed any error in holding the offence to have been proved when the factum of absence of permission to mine during the relevant period and the factum of mining activity was, established.
3. The revisional jurisdiction under Section 397 of the Code is a limited jurisdiction exercisable if the court below has committed a manifest illegality or the findings are perverse and based on misreading of evidence resulting into miscarriage of justice. The principles for exercise of revisional jurisdiction under Section 397, Cr.P.C. were highlighted in
3.1 Keeping in view the parameters for exercise of revisional jurisdiction, it could not be said that the orders passed by the courts below and the concurrent findings arrived at, were proper. They were factual in nature. The factum of absence of permission during the relevant period and the excavation activity which were the material aspects in respect of the offence, having been proved from the evidence on record, the courts below could not be said to have committed any error in holding that the offence was committed. Rule 42 of the Rules provides for penalty for unauthorized excavation, whereas Rule 5 provides that no person shall quarry, remove the minor minerals or carry away them except provided under the Rules. There was no material error or irregularity in recording concurrent findings by the courts below. Learned advocate for the applicant could not show any ground so as to persuade the Court to interfere with the impugned judgment and order.
3.2 In the alternative, learned advocate for the applicant submitted that in the facts and circumstances of the case, benefit of probation may be extended to the applicant. He submitted that though the finding recorded is that the applicant excavated the material in question, the same was never removed by him but remained at me site. He further submitted that for the period from November, 1997 to 30th April, 1998, royalty passes were issued to the applicant and the applicant was permitted to excavate the mineral. He submitted that the quarry lease was suspended for limited period because of applicant''s inability to pay the royalty due to financial crunch.
3.3 He relied on decision of the Supreme Court in Harivallabh v. State of M.P. [(2005) 10 SCC 330] . In that case while upholding the conviction and sentence recorded under the Essential Commodities Act, 1955 benefit of probation under Section 360, Cr.P.C. was granted by the Apex Court. In
4. Section 360 of the Code of Criminal Procedure deals with releasing an offender on probation of good conduct or after admonition the Section says that when any person not under 21 years of age is convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less or when any person under 21 years of age or any woman is convicted of an offence not punishable death or imprisonment for life and no previous conviction was proved against the offender, the Court may having regard to the age of the offender, his character and his antecedents as well as the circumstances in which the offence is committed, finds it expedient that the offender should be released on probation of good conduct, the Court may so direct instead of requiring him at once to suffer the punishment. As per Sub-section (4) of Section 360, these powers can be exercised by the appellate court or by the High Court while exercising powers of revision. Similarly in Probation of Offenders Act, 1958, Section 4 thereof provides that the Court may release certain offenders on probation of good conduct. According to Section 4(1), when any person is found guilty of having committed an offence not punishable with death or imprisonment of life, the Court may release him on probation of good conduct. Sub-section (2) provides that while granting the benefit, the Court shall take into account Report, if any, of the Probation Officer concerned in relation to the case. The underlying object by the provision for releasing the offender on probation of good conduct after his conviction and deal with him leniently in respect of the sentence, is in tune with the reformative theory of punishment. The object is to provide an opportunity to the offender to reform himself. The courts have held that while sentencing a person, the sentencing court must apply its mind and application of Section 360 of the Code or Section 4 of the Probation of Offenders Act should be allowed a fair play. In Savaldas Ghumamal v. State of Gujarat being Criminal Appeal No. 361 of 1998 decided on 04th April, 2011, this Court granted benefit of probation of good conduct to the appellant of that case who was convicted and sentenced for the offence under the Essential Commodities Act, by taking into consideration amongst other facts the lapse of 13 years in the proceedings. The Court observed that in each case the Court should not be enthusiastic to see that each order of punishment should be carried out just for the sake of deterrence and held that the trial court ought to have given the offender the benefit of probation.
5. Reverting to certain aspects emerging from the case, it was not in dispute that the applicant-accused has a quarry lease to mine the mineral in question given in the year 1988 valid for 10 years which, however was cancelled for some time. The offending act of unauthorized mining took place during the period otherwise covered under the lease. The lease was subsequently renewed and the applicant was given the royalty passes and was permitted to excavate. It was the case of the applicant that for some period the lease was cancelled because he failed to pay the royalty as his financial position was stringent. The lease was subsequently renewed for another period of 10 years on 29th December, 1997. The applicant has filed affidavit placing on record the document of original lease and the lease document whereby the same was renewed as above. It appears that the said documents were referred to in the cross-examination also.
5.1 Further it appeared that though the material was excavated, the same remained at the site and were not taken away, nor were sold. The other material was also lying at the site which were excavated during the valid lease period but not taken away for sale for some reason. By filing affidavit in this proceeding, the applicant pointed out that as per the case of the prosecution itself the minerals excavated were not removed and subsequently removal thereof was permitted by the Mining Department and the royalty book was issued for that; the royalty was paid as and when the minerals were removed. It was given out that applicant is aged 65 years of age and that now he is not engaged in the business of mining. Therefore there is no possibility of repeating the offence by him.
6. In the aforesaid circumstances, the benefit of probation deserves to be granted to the applicant by taking aids of provisions of Section 360 of the Cr.P.C. It is true that there is no Report of the Probation Officer, however on the basis of the aforesaid aspects which are special reasons available from record in relation to the case of the applicant, the benefit of probation is extendable exercising discretion in his favour in that regard.
7. Therefore instead of requiring the applicant-revisionist to undergo the sentence of imprisonment at once, he is directed to be released on probation of good conduct on execution of bond of Rs. 20,000/- (Rupees Twenty Thousand Only) for good behaviour for a period of two years. The applicant shall further furnish surety of equivalent amount in addition to the personal bond as above. The applicant shall remain in supervision for good conduct for the said period of two years and sentence imposed on him as per the order impugned shall remain suspended during that period. It is further directed that in the event of any breach, he shall appear and shall be required to receive the said sentence during such period as may be directed by the Court. With the aforesaid directions and providence as above, present Criminal Revision Application succeeds and the same is allowed making Rule absolute accordingly.
Office shall send back the Record and Proceedings to the Court concerned.
