VINEESH Vs. STATE OF KERALA

JUDGEMENT

(1.) The central issue in this batch of pre-arrest bail applications is whether an offence under Ss. 303(2) or 305(e) of Bharatiya Nyaya Sanhita, 2023, relating to theft, can be invoked for the illegal removal or transportation of river sand when the very same act is charged under Ss. 20 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001.

(2.) The issue was, in fact, answered in the negative by three Single Benches of this Court - Mohammed Noufal v. State of Kerala, [2021 SCC OnLine Ker 5858], Mohammed Salih v. State of Kerala (BA No.7522/2024 dtd. 1/10/2024) and Sirajudheen K.K. v. State of Kerala and Another (BA No.6548/2025 dtd. 2/6/2025). The first among the three orders (Mohammed Noufal) was rendered by me. It was held that when there is special law covering the question of theft of river sand, the offence under Sec. 379 of the IPC, which is non-bailable in nature, would not get attracted. It was followed in the subsequent two orders - Mohammed Salih (supra) and Sirajudheen K.K (supra).

(3.) The learned Senior Public Prosecutor, Sri. M. C. Ashi, at the outset, submitted that all the above three orders are per incuriam, as they were rendered without noticing the relevant provisions in Sec. 22 of the Sand Act and the binding precedent of the Supreme Court on the point, and thus have no binding effect. In view of the said submission, I directed the learned counsel for the applicants as well as the learned Public Prosecutors who are appearing for the State to advance arguments in detail.