Sand Theft Under BNS And Kerala Sand Act Can Be Prosecuted Simultaneously; Earlier Contrary View Per Incuriam: Kerala High Court Judge Overrules Own Judgment

"To Persist With An Error Is Not Virtuous; Correcting It Is A Duty of Judicial Integrity", In a remarkable display of judicial candour, the Kerala High Court has overruled its own earlier precedent — authored by the very same judge — holding that prosecution for illegal removal and transportation of river sand can simultaneously proceed under both the Bharatiya Nyaya Sanhita, 2023 and the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, as the offences under the two enactments are entirely distinct.

Dr. Justice Kauser Edappagath, deciding a batch of nine pre-arrest bail applications, declared the earlier decision in Mohammed Noufal v. State of Kerala — which he himself had authored — along with two subsequent orders following it, to be per incuriam and devoid of binding force, for having been rendered in ignorance of Section 22 of the Sand Act, Section 26 of the General Clauses Act, 1897, and binding Supreme Court precedents on the point.

All nine applicants were accused of illegally transporting Government-owned river sand without complying with the Kerala Sand Act, and were charged both under Sections 20 and 23 of the Sand Act and under Sections 303(2) or 305(e) of the BNS for theft. The applicants relied on the earlier coordinate bench decisions — including the judge's own ruling in Mohammed Noufal — to argue that since the Sand Act is a special statute, the BNS theft provision could not be additionally invoked, and since the Sand Act offence is bailable, they were entitled to pre-arrest bail.

Whether concurrent prosecution under the BNS and the Sand Act for the same act of illegal sand removal is permissible; whether the earlier decisions in Mohammed Noufal and two orders following it were per incuriam; and whether the individual applicants merited pre-arrest bail on facts.

Court's Observations and Judgment

The Court began by squarely acknowledging its own error. The judge noted that the decision in Mohammed Noufal — that when a special law covers the theft of river sand, Section 379 IPC would not apply — had been rendered without noticing Section 22 of the Sand Act, Section 26 of the General Clauses Act, and a line of binding Supreme Court precedents. Two subsequent coordinate bench decisions had simply followed Mohammed Noufal without independently examining those provisions either.

"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."

On the substantive legal question, the Court examined 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 it. This provision, the Court held, is a decisive statutory answer to the applicants' entire argument — the Sand Act itself keeps the door open for parallel prosecution under general criminal law.

"Section 22 of the Sand Act specifically permits prosecution under any other law for any act or omission made punishable under the Act — if the act resulting in violation of Section 23 also amounts to an offence under any other law including the IPC, the offender can be prosecuted under both enactments."

The Court further held that a comparison of the two sets of provisions reveals that the offences are not the same and carry entirely different ingredients. Section 23 read with Section 20 of the Sand Act penalises the removal or transportation of sand without complying with the regulatory framework — a contravention of statutory procedure. Section 303(2) or 305(e) of the BNS, on the other hand, targets the act of dishonestly removing property belonging to the Government from its possession without consent — the classic elements of theft. Since the offences are distinct, Section 26 of the General Clauses Act — which bars double punishment but expressly permits prosecution under two or more enactments — fully enables dual prosecution.

The Court surveyed a consistent line of Supreme Court authority in support. In State (NCT of Delhi) v. Sanjay, the Supreme Court had held that prosecution under the IPC and the Mines and Minerals (Development and Regulation) Act simultaneously was permissible since the offences thereunder are distinct. In Kanwar Pal Singh, the same position was affirmed specifically for Sections 378-379 IPC alongside the MMDR Act. In Jayant v. State of Madhya Pradesh, the Supreme Court went further and held that even where violations under a special Act are compounded on payment of penalty, criminal proceedings under the IPC can continue independently. In State of Maharashtra v. Sayyed Hassan, the Supreme Court had reversed a High Court view that a special enactment excluded IPC prosecution — a position directly on point.

"The same set of facts can constitute offences under two different statutes — Section 26 of the General Clauses Act permits prosecution and punishment under any one of them, subject only to the bar against being punished twice for the same offence."

The Court then addressed the question of whether it could, as a Single Judge, overrule its own earlier Single Bench decision without reference to a Division Bench. Relying on Joby v. District Collector, the Court held that a Single Judge is entitled to differ from an earlier Single Judge decision — without requiring a Division Bench reference — when that earlier decision was rendered per incuriam, i.e., without noticing binding precedent or relevant statutory provisions.

"A decision is considered per incuriam if it is made in ignorance of a binding precedent or a relevant statutory provision that significantly affects the outcome — a decision made per incuriam has no binding precedent force."

Accordingly, Mohammed Noufal, Mohammed Salih, and Sirajudheen K.K. were all declared per incuriam and overruled.

On the individual bail applications, the Court carefully segregated the accused by their degree of culpability. Six applicants — all lorry owners who were not physically present in the vehicles at the time of seizure, with investigation nearly complete and lorries already recovered — were held entitled to pre-arrest bail, as their custodial interrogation was deemed unnecessary. Three applicants were denied bail: one who was driving the lorry, escaped from police, had criminal antecedents, and was involved in four similar cases; and two others against whom the prosecution alleged that the lorry was deliberately driven towards a police officer who had signalled it to stop, narrowly avoiding a fatal collision — conduct the Court characterised as prima facie premeditated.

"The de facto complainant signalled the vehicle to stop, but the driver drove the lorry towards him — but for his timely action, the vehicle would have caused his death — the allegations prima facie show a premeditated act on their part."

The Kerala High Court allowed six bail applications and dismissed three, while declaring three earlier coordinate bench decisions per incuriam and laying down that simultaneous prosecution under the BNS and the Kerala Sand Act for illegal sand removal is fully permissible in law. The ruling is a significant statement both on criminal law — clarifying that special statutes do not immunise offenders from general penal liability unless they expressly say so — and on judicial courage, with a judge publicly correcting his own error rather than perpetuating it.

Date of Decision: 09 March 2026