Satyajitsinh Lalubha Rathod vs State Of Gujarat

                                                                                         NEUTRAL CITATION




    C/SCA/20715/2022                                     ORDER DATED: 17/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 20715 of 2022
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                       SATYAJITSINH LALUBHA RATHOD
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR NIRAL V ZALA(11264) for the Petitioner(s) No. 1
MR RUTURAJ NANAVATI(5624) for the Petitioner(s) No. 1
MS. DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 17/08/2023

                                ORAL ORDER

1. Rule. Ms.Dharitri Pancholi, the learned AGP waives service of notice of rule for the respondents.

2. This writ-application is filed under Article 226 of the Constitution of India by the writ-applicant seeking for the following reliefs which are produced thus :-

"(a) YOUR LORDSHIPS may pleased to admit this petition and to allow the same;

(b) YOUR LORDSHIPS may please to issue Writ of Mandamus or may other appropriate Writ, Order or direction upon the respondent authorities to release the vehicle bearing registration no. GJ-11-BR-4152 is lying with the custody of the respondent No. 4 on appropriate and just terms and conditions that may be imposed by the Honourable Court;

NEUTRAL CITATION C/SCA/20715/2022 ORDER DATED: 17/08/2023 undefined

(c) YOUR LORDSHIPS may pleased to pending the hearing and final disposal of the petition be pleased to direct the concerned authority to accept the bond from the petitioner as per the rules and release the vehicle bearing registration no. GJ-11-BR-4152 is lying with the custody of the respondent No. 4;

(d) To pass any other appropriate and just order/s."

3. Heard Mr. Ruturaj Nanavati, the learned advocate appearing for the writ-applicant and Ms. Dharitri Pancholi, the learned AGP appearing for the respondent.

4. Mr. Ruturaj Nanavati, the learned advocate appearing for the writ-applicant submitted that the writ-applicant is owner of the Eicher Tractor, Eicher 380 bearing Registration No. GJ-11-BR-4152 (for short "vehicle in question"). It is submitted that the vehicle in question was seized on 5.4.2023 and the said vehicle in question is lying in the custody of the respondent No.4. and seizure memo pertaining to the same came to be issued on 6.4.2022, which is undisputed. The respondent authority i.e. respondent No.4 filed a complaint before learned Additional Sessions Court, Una being Criminal Enquiry No. 13 of 2022 and the learned Additional Sessions Court, Una passed the order dated 30.5.2022.

4.1 In view of the aforesaid, Mr,. Nanavati, the learned Page 2 of 8 Downloaded on : Sun Sep 17 01:30:47 IST 2023 NEUTRAL CITATION C/SCA/20715/2022 ORDER DATED: 17/08/2023 undefined advocate for the petitioner submitted that the complaint which is filed by the respondent authority is filed by the respondent authority is after 45 days of seizure of the vehicle and the mandatory requirement under Rule 12 of the Rules, 2017 is not complied with. In view thereof, the vehicle in question be released by imposing appropriate conditions.

4.2 It is submitted that in absence of any F.I.R. registered beyond the specified period, the action of the respondent authority seizing the machines, is illegal and against the principles laid down by this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat, rendered in Special Civil Application No.9203 of 2020. It is submitted that this Court has categorically held and observed that if the complaint is not registered as envisaged under sub-clause (ii) of sub-clause (b) of sub- Rule (2) of Rule 12 of the Rules of 2017, in absence of the complaint, the competent authority will have no option but to release the seized machines without insisting for any bank guarantee. Therefore, the principles laid down by this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat (supra) applies to the facts of the present case. It is therefore urged that the petition deserves to be allowed directing the respondent authorities to release the machines.

NEUTRAL CITATION C/SCA/20715/2022 ORDER DATED: 17/08/2023 undefined 4.3 In view of the ratio as laid down by the Coordinate Bench of this Court in the Special Civil Application No.9203 and Letters Patent Appeal No.717 of 2020 wherein this Court took the view that either FIR or written complaint as contemplated under Rule 12 is required to be filed within a period of 45 days from the date of seizure and in absence of the same the machines be released unconditionally.

4.4 It is urged that the petition be entertained only for the limited purpose of release of the vehicle in question.

5. On the other hand, Ms. Dharitri Pancholi, the learned Assistant Government Pleader was not in a position to controvert the submissions advanced by Mr. Nanavati, the learned advocate appearing for the petitioner.

6. Heard the learned advocates appearing for the respective parties.

7. It is undisputed that seizure memo was issued on 05.04.2022 followed by the seizure memo dated 6.4.2022. It is not disputed rather conceded that within a period of 45 days, no First Information Report has been registered by the respondent authority. Therefore, the principle laid down by this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat (supra) applies to the facts of Page 4 of 8 Downloaded on : Sun Sep 17 01:30:47 IST 2023 NEUTRAL CITATION C/SCA/20715/2022 ORDER DATED: 17/08/2023 undefined the present case.

8. In the aforesaid judgment, this Court, while dealing with the provisions of the sub-clause (ii) of sub-clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017, in paragraphs 7, 10 and 11 has held and observed thus:-

"7. Pertinently the competent authority under Rule 12 is only authorized to seize the property investigate the offence and compound it; the penalty can be imposed and confiscation of the property can be done only by order of the court. Imposition of penalties and other punishments under Rule 21 is thus the domain of the court and not the competent authority. Needless to say therefore that for the purpose of confiscation of the property it will have to be produced with the sessions court and the custody would remain as indicated in sub-rule 7 of Rule 12. Thus where the offence is not compounded or not compoundable it would be obligatory for the investigator to approach the court of sessions with a written complaint and produce the seized properties with the court on expiry of the specified period. In absence of this exercise, the purpose of seizure and the bank guarantee would stand frustrated; resultantly the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee."

10. The bank guarantee is contemplated to be furnished in three eventualities: (i) for the release of the seized property and (ii) for compounding of the offence and recovery of compounded amount, if it remains unpaid on expiry of the Page 5 of 8 Downloaded on : Sun Sep 17 01:30:47 IST 2023 NEUTRAL CITATION C/SCA/20715/2022 ORDER DATED: 17/08/2023 undefined specified period of 30 days; (iii) for recovery of unpaid penalty. Merely because that is so, it cannot be said that the investigator would be absolved from its duty of instituting the case on failure of compounding of the offence. Infact offence can be compounded at two stages being (1) at a notice stage, within 45 days of the seizure of the machines; (2) during the prosecution but before the order of confiscation. Needless to say that for compounding the offence during the prosecution, prosecution must be lodged and it is only then that on the application for compounding, the bank guarantee could be insisted upon. In absence of prosecution, the question of bank guarantee would not arise; nor would the question of compounding of offence.

11. The deponent of the affidavit appears to have turned a blind eye on Rule 12 when he contends that application for compounding has been dispensed with by the amended rules inasmuch as; even the amended Rule 12(b)(i) clearly uses the word "subject to receipt of compounding application". Thus the said contention deserve no merits. Thus, in absence of the complaint, the competent authority will have no option but to release the seized machines without insisting for bank guarantee. There is thus a huge misconception on the part of the authority to assert that even in absence of the complaint it would have a dominance over the seized property and that it can insist for a bank guarantee for its." It has been held that it would be obligatory for the investigator to approach the Court of Sessions with a written complaint and produce the seized properties with the Court on expiry of the specified period. In absence of such exercise, the purpose of seizure Page 6 of 8 Downloaded on : Sun Sep 17 01:30:47 IST 2023 NEUTRAL CITATION C/SCA/20715/2022 ORDER DATED: 17/08/2023 undefined and the bank guarantee would stand frustrated; resultantly, the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee.

9. In view of the fact that no First Information Report has been registered by the competent authority before completion of the 45 days and the principle laid down by this Court in the aforesaid case applies to the facts of the present case, the present writ-application deserves to be allowed and is accordingly allowed to the limited extent of directing the respondent to release the vehicle in question being Eicher Tractor, Eicher 380 bearing Registration No. GJ-11-BR-4152 of the writ-applicant, pending adjudication before the Sessions Court on the condition the writ-applicant deposits solvent surety equivalent to the amount of penalty that is determined by the respondent authority of Rs.55,240/- with the competent Court. Further the writ-applicant is directed to fulfill the following conditions :-

(i) The writ-applicant shall furnish a solvent surety equivalent to the amount of penalty of Rs.55,240/- with the competent Court.

(ii) The writ-applicant shall file an undertaking on oath before the learned trial Court that the writ- applicant shall not transfer, alienate, part with the Page 7 of 8 Downloaded on : Sun Sep 17 01:30:47 IST 2023 NEUTRAL CITATION C/SCA/20715/2022 ORDER DATED: 17/08/2023 undefined possession of the machines or create any charge over the machines till the conclusion of the trial.

(iii) The writ-applicant shall produce the machines as and when the Authority or the Court concerned directs him to do so.

10. This Court has not assessed the merits of the matter. It is directed that the Court below shall proceed with the complaint pending before the said Court independently and in accordance with law.

11. This order is passed in the peculiar facts and circumstances of the present case.

12. In view of the aforementioned discussion, the writ application succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 8 of 8 Downloaded on : Sun Sep 17 01:30:47 IST 2023