The Kerala High Court has held that offences of theft under Sections 303(2) or 305(e) of the Bharatiya Nyaya Sanhita, 2023 (BNS) can be invoked in addition to offences under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Sand Act) in cases involving illegal removal or transportation of river sand.
Justice Kauser Edappagath, deciding a batch of pre-arrest bail applications, clarified that the Sand Act does not exclude the applicability of general penal law. Relying on Section 26 of the General Clauses Act and binding Supreme Court precedents, the Court held that the same set of facts may constitute offences under multiple statutes, provided the ingredients of the offences are distinct. It emphasised that while double punishment is barred, simultaneous prosecution under different enactments is permissible.
The Court expressly overruled its earlier view in Mohammed Noufal v. State of Kerala, 2021 SCC OnLine Ker 5858 and subsequent decisions, which had held that IPC theft provisions would not apply where the Sand Act governed the field. Terming those rulings per incuriam, the Court observed that they were rendered without considering relevant statutory provisions and binding precedents. It underscored that judicial discipline requires correction of errors when they come to light.
On facts, the Court dealt with multiple bail pleas arising from allegations of illegal sand mining and transportation. The Court granted anticipatory bail to several accused, noting factors such as completion of investigation, absence of custodial interrogation requirements, and lack of criminal antecedents. However, bail was denied in cases involving serious allegations, including attempts to endanger a police officer and instances where the accused had prior criminal records or where investigation was at a preliminary stage.
Accordingly, the Court allowed some bail applications subject to conditions, while rejecting others, and settled the legal position that prosecution under the BNS for theft can proceed alongside offences under the Sand Act.
Appearances:
For the Petitioner: Sri M. Devesh; Sri M. Anuroop; Shri Murshid Ali M; Smt Jyothi’s Mary; Smt S.K. Sreelakshmy
For the Respondent: Sri K.A. Noushad SR PP.
