M.P. Thakkar, J.
1. Did or did not the petitioners have the requisite mens rea to commit an offence (assuming that it is not an absolute offence and mens rea is a must) in excavating minor minerals after 'applying for' but before 'actually obtaining' the requisite licence under the relevant rules? The petitioners contend that they had none, and that the trial Court erred in holding otherwise.
2. The facts are not in dispute. The petitioners who are the office-bearers of a Co-operative Society doing business under the name and style of 'Sabarmati Reti Udyog Kamdar Sahakari Mandli Ltd.' were carrying on the work of excavating and removing sand from S. No. 859/51 situated on the bank of river Sabarmati within the limits of the Municipal Corporation of Ahmedabad on June 9, 1972. It is also not in dispute that such excavation work cannot be carried on without obtaining a mining lease under the Mines and Minerals (Regulation and Development) Act, 1957 read with the relevant rules framed under Section 15 of the said Act. It is also not in dispute that what was being excavated was 'minor mineral' within the definition of Section 3(e) of the Act. It is also common ground between the parties that by virtue of Rule 5 of the Gujarat Minor Mineral Rules, 1966 there is a legal bar to the quarrying, winning or removing etc. of a minor mineral except upon obtaining the requisite permission under the Rules. And it is also an admitted position that on June 9, 1972 when the petitioners were carrying on mining operations, they had not obtained the requisite lease or permit under the aforesaid rules. That it is an offence under Rule 42 to carry on mining operations in contravention of Rule 6 is also not disputed. It is, however, contended that the petitioners had made an application on June 5, 1972 seeking the requisite permit for carrying on quarrying operations for a period of one: month commencing from June 17, 1972 and that the petitioners had also deposited a sum of Rs. 1800/- along with an application. It is argued that inasmuch as four days before the date of the offence which took place on June 9, 1972, an application had already been made seeking a permission, notwithstanding the fact that such a permission had not been actually granted on June 9, 1972, the petitioners cannot be convicted inasmuch as it cannot be said that they had the requisite mens rea.
3. Reliance has been placed on Naihalal v. State of Madhya Pradesh : 1966CriLJ71 , in support of the argument that mens rea is an essential ingredient of a criminal offence and that the offence under Rule 42 is not an absolute offence which can be established without the proof, of the requisite mens rea. On the other hand, it has been contended on behalf of the State that having regard to the law laid down by the Supreme Court in The State of Gujarat and Anr. v. Acharya Shri Devendraprasadji Pande and Ors. etc : 1971CriLJ760 , the provisions embodied in the aforesaid rules which are regulatory in character and which have been enacted with a view to safeguard the interest of the public, must be so construed that Rule 42 creates an absolute offence and that the prosecution need not establish that there was a guilty mind if the excavation operations were being carried on without obtaining the requisite licence or permit. I am prima facie of the opinion that Rule 42 creates an absolute offence. It is not necessary for the prosecution to establish that the person who contravenes the relevant provisions and carries on quarrying operations without obtaining the requisite permit had a guilty mind. I, however, do not propose to invest the public time of this Court in an academic discussion in regard to this question in view of the fact that on the facts and circumstances of this case it is futile to argue that there was no mens rea on the part of the petitioners.
4. Admittedly, quarrying operations were carried on in a systematic manner and the activity carried on by the petitioners was an organized business activity. It is also not in dispute that the petitioners have been carrying on this activity through the Society for many years and that they are aware of the fact that excavation cannot be carried on without obtaining the requisite licence or permit under the Act and the rules. In fact an application for such a permit was made, but before the competent authority could decide the question, the petitioners commenced the excavation work and carried on the activities. They did not await the decision of the competent authority. In other words, they foreclosed the decision in the sense that if the competent authority had refused the permission, even so they would have excavated the minor mineral without a permit and would have obtained the benefit of excavation operations. In other words, for the requisite period they have given a permit to themselves (a permit from self to self). How can it be contended that they were acting in good faith when they assumed that the competent authority was bound to give a permit? The whole purpose of providing for carrying on quarrying operations only after obtaining the permit is that the competent authority has the liberty to decide whether or not to grant the permission and has also liberty to supervise or keep control on or check the excavation activities concerned. It was contended that they had carried on the excavation operations in order that the workers may not remain idle. Assuming that the argument is right, it means that their motive was not bad. That, however, does not mean that the activity carried on by them without obtaining the licence knowing full well that a licence was necessary and also knowing full well that the licence was not granted would not constitute an offence.
5. It may also be remarked that the argument as regards providing employment appears to be no more than a convenient argument to invoke the sympathy of the Court and the altruistic motive claimed by the petitioners cannot be accepted too readily. The Society in fact was carrying on an organized business activity for its own profit. Reliance was placed on the circumstance that an application for permission was made before concealing the excavation work and that even a deposit of Rs. 1800/- was made under a Chalan. That would only show that the petitioners were not carrying on activities in a surreptitious manner. It does not mean that they had no intention to flout the law. On admitted facts they were flouting the law knowing that the law was being flouted for they knew that a permit was necessary and that they had not obtained a permit. If the contention of the petitioners were to be upheld, it would mean that it is sufficient to 'make' an application for a permit in order to carry on excavation work and that it is not necessary to actually 'obtain ' such a permission or to await the decision of the competent authority whether or not the permit should be granted. To take a such a view would be to defeat the provisions obliging a person to obtain a permit before carrying on the excavation work.
6. In my opinion, therefore, it is specious to argue that there was no mens rea on the part of the petitioners. The order of conviction cannot therefore, be successfully assailed.
7. So far as the sentence is concerned, the trial Court has imposed only a token sentence in the facts and circumstances of the case. There is, therefore, no warrant for disturbing the order of sentence either.
8. The petition fails and is dismissed. The order of conviction and sentence is confirmed. Rule is discharged.