1. In this case the accused was charged with theft in that he dishonestly quarried and carried away stones from land in the possession of another. The Sub-Magistrate discharged the accused on the ground that the stones were not moveable property and so could not be the subject of theft and he relied on the ruling in Queen-Empress v. Kotayya I.L.R. 10 M. 255.
2. The question referred for our decision is whether, assuming that the stones were quarried and carried away dishonestly, the accused could be convicted of theft under Section 379, Indian Penal Code.
3. We have no doubt but that the answer to this question must be in the affirmative. Under Section 378, Indian Penal Code 'Whoever intending to take dishonestly any moveable property out of the possession of any person without that person's consent moves that property in order to such taking, is said to commit theft.' The only question is whether the stones in this case are ' moveable property.' Section 22 enacts that these words ' are intended to include corporeal property of every description, except land and things attached to the earth, or permanently fastened to anything which is attached to the earth' and in connection with this definition explanations 1 and 2 to Section 378 provide that 'A thing so long as it is attached to the earth, not being moveable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth,' and ' A moving effected by the same act which effects the sever-ancemay be a theft.'
4. We have no doubt but that stones when quarried and carried away are ' things severed from the earth' and are 'moveable property' and as such are capable of being the subject of theft. Before they were quarried out they formed part of ' the earth,' and as such they were not moveable property, but as soon as they were quarried out they were 'severed from the earth' and became ' moveable property.' This was the view, taken by this Court in the case of The Queen v. Tamma Ghantaya I.L.R. 4 M. 228. There the Court (Turner, C.J. and Kernan, J.) referring to salt formed spontaneously in a swamp said ' We cannot distinguish this case from theft of wood in a reserved forest, except that salt is actually a part of the soil, while trees are not; yet things immoveable become moveable by severance and this would apply to severed parts of the soil, e.g., stone quarried, minerals, iron or salt collected, as well as timber which has grown, or edifices which have been erected on the land.'
5. In the case of Queen-Empress v. Kotayya I.L.R. 10 M. 255 Gollins, C.J. and Kernan, J. (Brandt, J. dissentiente ) held that soil dug up by a person no* the owner of the land and carried away by him could not be the subject of theft on the ground that such soil was not a thing attached to the earth and then severed from it, but was a part of the earth or land itself and therefore excepted by Section 22 from the corporeal things which were moveable property and they distinguished the case of The Queen v. Tamma Ghantaya I.L.R. 4 M. 228 on the ground that the salt in the latter case was a natural efflorescence on the surface of the earth--a natural produce attached to the earth. We think that this decision was erroneous and that the learned Judges were misled by supposing that it was the intention of the framers of the Indian Penal Code to reproduce the English law of larceny. The terms of the section show that this was not their intention and it is by the terms of the section' that the law is determined. As recently remarked by the Privy Council in the case of Gokul Mandar v. Pudmanund Singh I.L.R. 29 Cal. 707 : 'The essence of a Code is to be exhaustive on the matters in respect of which it declares the law and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction'. Section 22 of Indian Penal Code does not except ' earth and things attached to the earth' but ' land and things attached to the earth.' ' Land' and ' earth' are not synonymous and there is a wide distinction between ' earth' and ' the earth.' ' Earth' may be severed from ' the earth' and attached to it again. When ' earth' is severed from ' the earth' it becomes moveable property. A cart-load of 'earth' may be bought any day in the bazaar. Can it be held for a moment that ' earth' when thus carted about and sold by one person to another is not moveable property and is incapable of being the subject of theft? Under the Indian Penal Code it does not matter by whom the severance from ' the earth' was made and the explanation to Section 378 expressly provides that 'a moving effected by the same act which effects the severance may be theft.' It was on these grounds that the Bombay High Court in Queen-Empress v. Shivram I.L.R. 15 B. 702 held that 'earth' might be the subject of theft and the game reasoning applies a fortiori to stones that are quarried from 'the earth'. We think that the view of Brandt, J. in Queen-Empress v. Kotayya I.L.R. 10 M. 255 is correct and we hold that any part of ' the earth,' whether it be stones or sand or clay or any other component, when severed from 'the earth' is moveable property and is capable of being the subject of theft. Our answer to the reference is, therefore, in the affirmative.