Court affirms applicability of Bharatiya Nyaya Sanhita, 2023, alongside Kerala Sand Act, grants bail with conditions.
In a significant ruling, the Kerala High Court has clarified the legal standing on prosecuting the illegal transportation and removal of river sand under both the Bharatiya Nyaya Sanhita, 2023 (BNS), and the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Sand Act). This decision comes amidst a batch of pre-arrest bail applications where the central issue was whether charges could be invoked under Section 303(2) or 305(e) of the BNS for theft, alongside charges under Sections 20 and 23 of the Sand Act.
The court, presided over by Justice Dr. Kauser Edappagath, addressed the legal intricacies surrounding the dual prosecution of offences under these statutes. Previously, three separate Single Bench rulings had negated the possibility of such dual charges, asserting that the presence of a special law like the Sand Act precluded the applicability of general provisions under BNS.
However, the State's Senior Public Prosecutors argued that these rulings were rendered per incuriam—meaning they were made without acknowledging pertinent statutory provisions like Section 22 of the Sand Act and the General Clauses Act, 1897, which allows prosecution under different laws if the offences are distinct. Justice Edappagath concurred with this argument, noting that Section 22 of the Sand Act specifically permits prosecution under any other law for acts punishable under the Sand Act.
The judgment draws heavily from precedents set by the Supreme Court, which has repeatedly upheld the notion that an act or omission can constitute separate offences under different statutes, provided the offences have distinct ingredients. This principle aligns with Section 26 of the General Clauses Act, which allows for multiple prosecutions under different enactments, although it prohibits double punishment for the same offence.
In the specific cases reviewed, the court granted pre-arrest bail to several applicants accused of illegal sand transportation. The court deemed custodial interrogation unnecessary, given the completion of the investigations and the applicants' lack of direct involvement at the crime scenes. However, stringent conditions were imposed to ensure their cooperation with ongoing investigations.
Conversely, bail was denied for other applicants whose actions were deemed premeditated and who had prior criminal records, indicating a higher risk of interference with the investigation.
This ruling underscores the judiciary's commitment to enforcing environmental regulations while respecting the legislative framework that allows for comprehensive legal action against violators. It also highlights the importance of judicial diligence in recognizing and rectifying past oversights to uphold justice and statutory compliance.
Bottom Line:
Illegal removal or transportation of river sand can be prosecuted under Bharatiya Nyaya Sanhita, 2023, in addition to the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, as offences under these statutes are distinct, and prosecution under both is permissible.
Statutory provision(s): Bharatiya Nyaya Sanhita, 2023 Sections 303(2), 305(e), Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 Sections 20, 23, General Clauses Act, 1897 Section 26
Vineesh v. State of Kerala, (Kerala) : Law Finder Doc id # 2863723
