A self contained Act is one which doesn't need to look into other enactments for applicability of its provisions. Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (hereinafter referred to as Sand Act)has been acclaimed by the apex court as one such legislation. It cannot said to be a perfect and complete legislation. A glimpse on some of the provision are made in this note.
The offences in the Sand Act are cognizable. Cognizable offence are defined in Cr.PC as those offences in which the police officer may arrest without a warrant. The police are required to register a crime if any one illegally transports sand in contravention of this Act. Section 24 of the Act underlines this point which says "Notwithstanding anything contained in the Code of Criminal Procedure Code, all offences under this Act shall be cognizable."
Section 20 of the Act prescribes the punishment for anything done in contravention of any of the provisions of the Act or rules. On conviction a person shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to twenty-five thousand rupees or with both and in case of continuing contravention with an additional fine which may extend to one thousand rupees for every day during which such contravention continues. Thus we can learn that the maximum term of imprisonment is 2 years. As per 2(w) of the Code of Criminal Procedure, it is a summons-case.
Furthermore, no Court can take cognizance of any offence punishable under this Act, except upon a complaint in writing made by the person authorised in this behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology. It is provided in Section 25 of the Act. Thus if a petition is lodged with the police about illegal sand mining and as it is a cognizable offence the police registers the crime, the Court cannot take the cognizance. The report will not be treated as a complaint by the Court. If it is to be treated as a complaint, it should be revealed after investigation that it is a non-cognizable case as provided under Explanation to Section 2(d) of the CrPC. But as far as Section 24 of the Sand Act is clear, the offences are cognizable. Thus there is no scope for such an action upon a report filed by police under Section 173(2) of the Code. It is now made clear that the Court can take cognizance of any offence punishable under the Sand Act if the police officer authorised in this behalf by the Government files a complaint.
The police also need not file any report to the Magistrate after seizure of any vehicle under the Act. Section 23 of the Sand Act provides that any vehicle used for transporting sand without complying with the provisions of the Act is liable for seizure by police or Revenue officials. There is no statutory requirement as laid down in Section 102 of the CrPC to file a report to the Court. The Collector may seize the vehicle and on payment of fine it can be released. But if the collector fails to fix the amount of fine within a reasonable time, the High Court can be approached.
An interesting situation may arise if the Magistrate erroneously frames charge against the accused. As it is a summons case the trial starts as soon as the substance of offence are read over to the offender. So it is an irregularity which vitiate the proceedings. There is a provision under Section 258 for aquittal/discharge of accused. The accused can also seek the provision of Section 482 which saves the inherent power of High Court.
In concluding it can be said that even if the Sand Act is a self contained Statute, there are several anomalies lying hidden in it and in its application. At the same time different Courts and many benches of same Court has taken diverse views. The interference of Courts are not provided in the enactment. The punishment is low. The application and impact is not so strong. Section 22 only provides that a person can be punished under any other law in force notwithstanding anything contained in the Sand Act for offences made punishable under this Act. There is need for judicial scrutiny over such serious offences. Amendments of such a nature in the legislation is needed.