Illegal Sand Mining Attracts Both Sand Act and BNS Theft Charges: Kerala HC [Read Order]

Kerala: The High Court of Kerala at Ernakulam has held, in a significant ruling on the law governing illegal sand mining, that a person who illegally removes or transports river sand can be prosecuted simultaneously for the offence of theft under the Bharatiya Nyaya Sanhita, 2023 (BNS) as well as for contravention of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Sand Act).

The Court also declared three earlier Single Bench orders, including one rendered by the same judge, as per incuriam, having been passed without considering the relevant statutory provisions and binding precedents of the Supreme Court.

The order was passed on 9th March 2026 by Dr. Justice Kauser Edappagath in a batch of nine pre-arrest bail applications filed by accused persons in various sand mining cases registered at police stations across Malappuram and Kozhikode districts.

The prosecution allegation common to all the cases was that the applicants had transported river sand belonging to the Government without complying with the provisions of the Sand Act. Each applicant was accordingly charged under Sections 20 and 23 of the Sand Act, as well as under Section 303(2) or 305(e) of the BNS, which relate to theft.

The central legal question that arose before the Court was whether an offence of theft under Sections 303(2) or 305(e) of the BNS could be invoked for the illegal removal or transportation of river sand when the very same act was already charged under Sections 20 and 23 of the Sand Act.

The Court noted that this question had been answered in the negative by three Single Bench orders of the Kerala High Court in Mohammed Noufal v. State of Kerala (2021 SCC OnLine Ker 5858), Mohammed Salih v. State of Kerala (BA No.7522/2024 dated 1/10/2024), and Sirajudheen K.K. v. State of Kerala and Another (BA No.6548/2025 dated 2/6/2025). The first of these, in Mohammed Noufal, had been rendered by the same judge. Those orders had taken the view that where a special law covers the question of theft of river sand, the general offence of theft under Section 379 of the IPC (the predecessor to the BNS provisions) would not be attracted.

At the outset of the hearing, the Senior Public Prosecutor submitted that all three orders were per incuriam, as they were rendered without noticing the relevant provisions of Section 22 of the Sand Act and the binding precedents of the Supreme Court. The Court accordingly directed detailed arguments from all sides.

Counsel for the applicants argued that since the Sand Act is a special statute regulating the removal of river sand, prosecution under Section 303(2) or 305(e) of the BNS was not maintainable. It was submitted that where a special statute deals with a special subject, resort cannot be taken to a general statute. Since the offence under Sections 20 and 23 of the Sand Act is bailable in nature, and the BNS theft provisions were said to be inapplicable, the applicants were entitled to pre-arrest bail.

The Public Prosecutors countered that the offence under the Sand Act and the offence under the BNS are distinct and carry different ingredients, and hence prosecution under both simultaneously is not barred. They placed particular reliance on Section 22 of the Sand Act, which expressly provides that nothing in the Act shall prevent any person from being prosecuted under any other law for any act or omission made punishable under the Act. The Public Prosecutors relied on a series of Supreme Court judgments including State (NCT of Delhi) v. Sanjay (2014), State of Maharashtra v. Sayyed Hassan Sayyed Subhan (2019), Kanwar Pal Singh v. State of Uttar Pradesh (2020), and Jayant v. State of Madhya Pradesh (2021), as well as the Kerala High Court’s own Division Bench ruling in Sujith v. State of Kerala (2012).

The Court examined the scheme of the Sand Act, noting that its primary object is to provide regulatory measures for environmental management of riverbanks and riverbeds. Section 20 prescribes penalties for contravention of the Act or the Rules. Section 22 expressly preserves the right to prosecute under any other law. The Court noted that the Division Bench of the Kerala High Court in Sujith had already held, relying on Section 22, that prosecution under the IPC can be initiated in addition to proceedings under the Sand Act.

The Court further observed that an offence under Sections 20 and 23 of the Sand Act deals with the unauthorised removal or transportation of sand from a Kadavu without complying with the regulatory requirements, whereas the BNS theft provisions deal with dishonestly removing property that belongs to the Government or a local authority out of its possession without consent. The Court held that a comparison of the two provisions shows that they are not the same offence and that their ingredients are entirely different. Section 26 of the General Clauses Act, 1897, it was noted, permits prosecution for different offences under multiple enactments but bars punishment twice for the same offence.

Drawing upon the Supreme Court’s ratio in Sanjay, Kanwar Pal Singh, Jayant, and Sayyed Hassan, the Court concluded that there is no express or implied bar in the Sand Act that excludes the provisions of the IPC or the BNS, and that the existence of the Sand Act does not immunise an offender from prosecution for theft under the BNS.

The Court held that the order in Mohammed Noufal and the two subsequent orders in Mohammed Salih and Sirajudheen were rendered without noticing Section 22 of the Sand Act, Section 26 of the General Clauses Act, and the binding precedents of the Supreme Court, and were therefore per incuriam. A decision rendered in ignorance of a binding precedent or a relevant statutory provision that significantly affects the outcome carries no binding precedent force, the Court reiterated.

The Court acknowledged that a mistake was made in the earlier Mohammed Noufal order and stated that realising a mistake afterwards does not ordinarily allow deviation from binding precedents, which would normally necessitate a reference to a Division Bench. However, since the very basis of the earlier order – the relevant statutory provisions and binding precedents – was never considered, the Court held it was justified in differing from its own earlier view without making a reference, citing Joby v. District Collector (2017).

The Court added that to persist with an error is not virtuous and that correcting it is a duty of judicial integrity.

“To persist with an error is not virtuous; correcting it is a duty of judicial integrity. The strength of a Judge lies not in the claim of infallibility, but in the courage to admit error and the humility to correct it when conscience and law reveal a truer course,” the Court said.

Six applicants were granted pre-arrest bail as they were not present at the scene or were only lorry owners, and custodial interrogation was not required.

Three applicants were denied bail because they were directly involved in transporting sand, attempted to evade or endanger police officials, and had prior similar offences, making them unfit for relief.

The six applicants who were granted bail were directed to execute a personal bond of Rs. 1,00,000 each with two sureties, appear before the investigating officer every Saturday, fully cooperate with the investigation, refrain from committing similar offences, not contact prosecution witnesses, and not leave the State without the permission of the trial court.

Case Title: Vineesh v. State of Kerala and Connected Cases

[Read Order]