P L D 1960 W (PLP)

Muhammad Sadiq for Petitioner. Muhammad Baqir Ali, Bajri Kanungo, on behalf of the State. These two petitions‑R. O. R. No. 40 of 1958‑59 (Imam Din v. The State) and R. O. R. No. 45 of 1958‑59 (Imam Din v. The State)‑may be taken up together, as the parties are the same. The petitioner has been required to pay royalty and penalty for having illicitly quarried Rori. The Collector has reported that the pleas taken by the petitioner that he had supplied old Rori carried no weight, and that it was fully established that he had excavated Rori illegally. According to rule 3 (2) of the Minor Mineral Rules "a person not being a permit‑holder, who is found in possession of any recently quarried mineral, shall be deemed to have quarried the said mineral without a permit, unless he furnishes proof to the satisfaction of the Collector that the said mineral was quarried by a permit holder." It is clear that it must be proved that the person concerned was in possession of recently quarried mineral. Against the petitioner is the report of Bajri Kanungo who has stated that he did not see the Bajri, but submitted his report on the basis of the railway records. The Patwari who was examined against the petitioner stated that he saw some camels going and the camels were loaded with Bajri but he did not see whether the Bajri was new or old. He added that the Bajri might be old. Thus the prosecution evidence itself does not establish that the Bajri was recently quarried. On the other hand the petitioner produced the receipt of the contractor to whom the Bajri was sold. It was mentioned therein that the Bajri was old. He also produced several witnesses to show that it was old Bajri excavated from the roads. The low rate at which the Bajri was sold is attributed to the fact that it was old Bajri and also because the delivery was to be made at the road‑side and the petitioner was not to meet the transportation charges. Had the Bajri been new the petitioner was not likely to have sold it at such a low rate. It is clear that there is no material to establish the case against the petitioner. The result is that the petitions are allowed and the orders imposing royalty and penalty on the petitioner are set aside. K. M. A. Petitions allowed.