SC rejects 'immovable property' plea in sand theft case

The Supreme Court has rejected a contention that theft of sand can't be punishable under the penal provision on the pretext that it is immovable property, saying the material after excavation becomes capable of the offence.

The top court held that excavating sand beyond the permissible limit would lead to the prosecution of the one for theft, besides under the provisions of the Mines and Minerals (Development and Regulation) Act and other laws.

“Sand on being excavated would lose its attachment to the earth, ergo (therefore), it is a movable property or goods capable of being stolen,” a bench of Justices S Abdul Nazeer and Sanjiv Khanna said.

The court also cited the cardinal principle that every law was designed to further the ends of justice and should not be frustrated on mere technicalities.

The court explained the legal position while dealing with a plea by Kanwar Pal Singh against the Allahabad High Court's judgement, declining to quash his criminal prosecution for theft and under the provisions of the Mines and Minerals (Development and Regulation) Act, and the Prevention of Damage to Public Property Act.

The petitioner was accused of having illegally excavated a pit 50 feet long, 50 feet wide and 2 metres deep, outside the permitted area in Mirzapur district.

He contended when there was a special law relating to the mines regulation law, there can't be a charge under the Indian Penal Code for the offence of theft.

The court cited Section 26 of the General Clauses Act which permitted prosecution for ‘different offences’ but bars prosecution and punishment twice for the ‘same offence’ under two or more enactments.

Here, illegal excavation and theft are two ‘different’ and not the ‘same offence’.

The petitioner, for his part, maintained the alleged theft of sand was not possible as it was immovable property as per Section 3 (26) of the General Clauses Act.

Rejecting the plea, the court said, “In the present case, sand had been excavated and was thereupon no longer an immovable property.”

In the instant case, the bench, however, modified the HC's order by allowing the petitioner's plea that his prosecution under the mines regulation law would not be valid and justified in the absence of the due authorisation.

It upheld his prosecution of the offence under Section 379 (theft) of the IPC and provisions of the Prevention of Damage to Public Property Act.