Gujarat High Court

Jayantibhai Ramanbhai Patel vs State Of Gujarat on 19 April, 2021

Bench: Mr. Justice Nath, Mr. Justice Shastri

      C/LPA/717/2020                                        CAV JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 717 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 8809 of 2020
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
             In R/LETTERS PATENT APPEAL NO. 717 of 2020
                                With
              R/LETTERS PATENT APPEAL NO. 882 of 2020
            In SPECIAL CIVIL APPLICATION NO. 1628 of 2020
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
             In R/LETTERS PATENT APPEAL NO. 882 of 2020
            In SPECIAL CIVIL APPLICATION NO. 1628 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

==========================================================

1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MANSUKH ALIAS RAVJI GORASIYA Versus THE STATE OF GUJARAT ========================================================== Appearance:

Letters Patent Appeal No.717 of 2020

MR MAULIK NANAVATI for MR JAY N SHAH (10668) & MS. NAMRATA j SHAH(6534) for the appellant MR KAMAL B TRIVEDI, ADVOCATE GENERAL assisted by MS SHRUTI PATHAK,

AGP for the respondents.

Letters Patent Appeal No.882 of 2020

MS KRUTI M SHAH for the appellant MR KAMAL B TRIVEDI, ADVOCATE GENERAL assisted by MS SHRUTI PATHAK, AGP for the respondents.

==========================================================

CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 19/04/2021 CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1. These two appeals raise similar questions of

law and facts, as such, have been taken up together.

2. Letters Patent Appeal No.882 of 2020 has been

filed assailing the correctness of the CAV order

dated 14.10.2020 passed in Special Civil Application

No.1628 of 2020 which is interim in nature whereby

the writ petitionerappellant was permitted to get

the vehicle in question released after furnishing

necessary continuing bank guarantee as shown in

notice FormJ and on fulfillment of other

requirements.

3. Letters Patent Appeal No.717 of 2020 has been

filed assailing the correctness of the interim order

dated 11.09.2020 passed in Special Civil Application

No.8809 of 2020 wherein again the learned Single

Judge directed the Authorized Officer to release the

vehicle after obtaining necessary continuing bank

guarantee as shown in notice FormJ and on

fulfillment of other requirements by the petitioner.

4. In both the writ petitions, the petitioners

are vehicle owners whose vehicles have been seized

under the provisions of Gujarat Mineral (Prevention

of Illegal Mining, Transportation and Storage) Rules,

2017 (hereinafter referred to as "the 2017 Rules").

5. In Special Civil Application No.1628 of 2020,

the seizure of the vehicle being Tata Hitachi Machine

was made on 16.10.2019 and notice in FormJ under the

2017 Rules was issued on 24.12.2019. The petitioner

objected to the notice by giving a reply dated

30.12.2019 stating that the vehicle was being used

for levelling of the road at Pipalsat and had

nothing to do with any illegal mining activity, as

such, the same may be released. When despite the said

reply dated 30.12.2019 the vehicle was not released,

the petition was filed in January, 2020 before this

Court for quashing of the notice dated 24.12.2019 and

also for release of the vehicle.

6. In Special Civil Application No.8809 of 2020,

the Dumper bearing No.GJ12V6037 was seized on

18.5.2020 and notice was issued on 22.06.2020

alleging that the vehicle was carrying 7.670 metric

tons of minor mineral without royalty pass and

accordingly, royalty fee of Rs.38,350/ and

compounding fee of Rs.50,000/ were demanded. The

petitioner gave a written response on 01.07.2020

stating that the vehicle has been illegally detained

and seized by violating the statutory rules and that

he was ready to pay penalty of Rs.38,350/ and was

also ready and willing to give bank guarantee of

Rs.50,000/. However, when he did not receive any

response and relying upon certain orders of this

Court wherein under similar circumstances the

vehicles have been released unconditionally, he filed

the petition in the first week of July, 2020.

7. In both the writ petitions, interim orders

were granted to the extent that the vehicles may be

released upon furnishing continuing bank guarantee

and fulfilling other requirements as per the rules.

The petitioners were aggrieved by the said interim

orders which imposed the condition of furnishing a

continuing bank guarantee as, according to them, the

learned Single Judge vide final judgment and order

dated 26.08.2020 passed in Special Civil Application

No.9203 of 2020 in the case of Nathubhai Jinabhai

Gamara Vs. State of Gujarat had held that if no

prosecution is launched within 45 days of the seizure

of the vehicle, there would be no question of

furnishing bank guarantee and the detention of the

vehicle thereafter would be illegal and as such

liable to be released unconditionally. It is also the

ground taken by the appellants that in a large number

of cases, the vehicles have been released by interim

orders without insisting for bank guarantee. In the

above backdrop, the present two appeals have been

preferred praying for release of the vehicles without

insisting for Bank Guarantee.

8. We have heard Mr. Maulik Nanavati, learned

counsel for Ms. Namrata J. Shah and Mr. Jay N. Shah,

learned advocates appearing for the appellant in

Letters Patent Appeal No.717 of 2020, Ms. Kruti M.

Shah, learned advocate appearing for the appellant in

Letters Patent Appeal No.882 of 2020 and Mr. Kamal

B. Trivedi, learned Advocate General assisted by Ms.

Shruti Pathak, learned Assistant Government Pleader

for the Staterespondents.

9. Mr. Maulik Nanavati and Ms. Kruti Shah,

learned counsels for the appellants have made the

following submissions:

i. The learned Single Judge committed error in

imposing the condition of furnishing continuing bank

guarantee while passing interim order for release of

the vehicles as the same was in direct conflict with

the judgment of the learned Single Judge dated

26.08.2020 passed in Special Civil Application

No.9203 of 2020 inasmuch as 45 days time from the

date of seizure had long expired in both the appeals

and no written complaint was filed before the Court

of Sessions, as such, the learned Single Judge ought

to have followed the ratio laid down in the judgment

dated 26.08.2020. According to them, the learned

Single Judge's did not respect the judicial

discipline in not following the earlier judgment

dated 26.08.2020.

ii. Accordingly to the learned counsels, the

learned Single Judge's had only two options, either

to follow the judgment dated 26.08.2020 or refer the

matter to a Larger Bench if they were not agreeing

with the view taken by the learned Single Judge in

the judgment dated 26.08.2020. Instead the learned

Single Judge took up the task of considering the

merit of the judgment of the learned Single Judge

which was not within their domain as they were not

sitting in appeal but were coordinate Benches.

iii. It is mandatory on the part of Authorized

Officer to file the complaint within 45 days before

the Court of Sessions as prescribed in Rule 12(2)(b)

(ii) failing which, the Authorized Officer would not

have any justification for retaining the vehicles

even for a day after 45 days and the vehicle will

have to be necessarily released unconditionally on

the 46th day.

iv. If any other interpretation is applied to Rule

12(2)(b)(ii), then the Authorized Officer would be in

a very strong bargaining position and misuse his

authority by continuing with the detention of the

vehicles and the vehicle owners would have no other

option but would be compelled to accept the

compounding or to pay the penalty and so long as such

provision continues, the vehicles would remain in

confinement. Such interpretation would be very harsh

and unreasonable and violative of Article 14 of the

Constitution.

v. It would be an open ended discretion at the

hands of the competent authority, on one hand by not

filing the complaint and on the other hand insisting

for a continuing Bank Guarantee. Once the complaint

is filed then the provisions of the Code of Criminal

Procedure, 1973, would come into play and the vehicle

owners like the present appellants would be at

liberty to approach the Criminal Court for release of

their vehicles under the provisions of the Code of

Criminal Procedure, 1973. In the absence of any

complaint being filed the vehicle owners cannot

approach the Criminal Court under provisions of the

Code of Criminal Procedure for release of the

vehicles.

10. On the other hand, learned Advocate General

Shri Kamal Trivedi appearing on behalf of the State

respondents drew the attention of the Court to the

various provisions contained in the 1957 Act as also

the 2017 Rules. Shri Trivedi also tried to convince

the Court that the orders passed by the learned

Single Judge requiring the release of the vehicles on

furnishing of continuing Bank Guarantee of the amount

indicated in Notice FormJ were just and valid and as

such no interference would be required by the

Division Bench in appeal. He also submitted that the

orders passed by the learned Single Judge impugned in

the present appeals are interim in nature and as such

also the present appeals may not be entertained.

11. Insofar as the submission relating to judicial

discipline being adhered to by the learned Single

Judge as canvassed by the learned counsels for the

appellants is concerned, Shri Trivedi left that issue

to the wisdom of the Court. Further, insofar as non

filing of a complaint till date that too even after a

period of more than a year in one of the cases and

still insisting for demand of continuing Bank

Guarantee, Shri Trivedi did make an effort to

convince the Court by referring to the various

provisions under the 1957 Act as also the 2017 Rules,

but could not show us any provision as to which would

place a cap on the authority to file the complaint

within a fixed timeframe.

12. Having considered the submissions, we find

that the judgment dated 26.08.2020 passed in Special

Civil Application No.9203 of 2020 in between

Nathubhai Jinabhai Gamara Vs. State of Gujarat,

clearly laid down that the written complaint as

envisaged under Rule 12 would have to be filed on the

expiry of the period specified therein i.e. 45 days.

In the absence of filing of such a complaint, the

purpose of seizure and the Bank Guarantee would stand

frustrated and the seized property will have to be

released without insisting for Bank Guarantee. The

relevant extract from the said judgment as contained

in paragraphs6 to 12 are reproduced below:

"6. Salient features of the Rules can be summarized thus:

(1) Seizure of the offending property as a security against the amount of penalty if any as may be determined as also to ensure the presence of the alleged offender before the government at notice stage in the event of person found to be indulging into objectionable activities by the use of the said property.

(2) Issuance of notice in Form J;release of the seized property upon receipt of the bank guarantee equal to penalty payable under Rule 21 or written down value of the property in case of illegal mining or illegal storage of minerals subject to right of the investigator to conduct investigation and other actions.

(3) Investigating and compounding of the offence if compoundable; upon receipt of the application for compounding,and recovery of the compounded amount by invocation of bank guarantee if the amount remains unpaid after the specified period.

(4) Preliminary investigation and registration of a complaint before the court of sessions upon expiry of 45 days from the date of seizure or completion of the investigation whichever event

occurs earlier,if compounding is not permissible or offence is not compoundable or not compounded.

(5) Trial by the court of sessions and imposition of penalty or confiscation of the property after appropriate opportunity of making a representation in writing as also the opportunity of being heard to the alleged offender found to have committed the offence.

(6) Validity of the bank guarantee and its renewal until occurrence of certain eventualities.

(7) Custody of the property seized until the occurrence of certain events.

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 subrule 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.

8. Although Rule 12, while referring to Rule 22 speaks about compoundability of offence and impermissibility of the compounding, the class of offences not qualifying for compounding are not indicated therein and on the contrary it speaks about compoundability of 'any' offence punishable under the Rules. Thus all the offences would be compoundable in absence of contrary provision; at any time before the order of confiscation by the court.

9. On perusal of the affidavit by respondent No.2, it appears that an attempt has been made to read amended and unamended rules in a distorted manner by picking up few contemplations of the rules in a selective manner. That, in the opinion of this court, is not a proper reading of the rules. Although the compounding of the offence under Rule 22 would

be permissible even after institution of the prosecution; should there be an application for the purpose.

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 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. In fact offence can be compounded at two stages being (1) at a notice stage, within 45 days of the seizure of the vehicle; (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 vehicle 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.

12. In view of the above discussions, the petition is required to be allowed. Relief in terms of para 8(A) is granted and the show causenotice dated 22.04.2020 issued by respondent No.2 is quashed and set aside. Rule is made absolute."

13. The aforesaid judgment takes into

consideration the relevant rules and the law on the

point. The learned Single Judge dealing with the

matter in the case of Nathubhai Jinabhai Gamara

(supra) has recorded reasons while interpreting the

Rules, 2017. It was a final judgment and not an

interim order. In both the appeals the learned Single

Judges were apprised of the judgment in the case of

Nathubhai Jinabhai Gamara (supra), which was on an

identical issue and squarely on the point. Whether

the judgment in the case of Nathubhai Jinabhai Gamara

(supra) was right or not, could only be looked into

by a higher forum i.e. in an appeal by a Division

Bench or before the Supreme Court. A learned Single

Judge of coordinate strength is bound by the said

judgment of a Coordinate Bench and as a principle of

judicial discipline must follow it unless for reasons

to be recorded it disagrees and refers the matter for

consideration by a Larger Bench taking a view

different from the view taken in the earlier judgment

of the learned Single Judge. Therefore, the

submission of the learned counsels for the appellants

to the extent that the learned Single Judge in both

the appeals erred in not following the judgment in

the case of Nathubhai Jinabhai Gamara (supra) and

committed an error of law has substance. According to

the learned counsels for the appellants, they were

entitled to the reliefs as had been granted in the

case of Nathubhai Jinabhai Gamara (supra), as the

view expressed therein and the ratio laid down would

hold the field till such time the same is not

disturbed in appropriate proceedings before superior

forum.

14. The law on judicial discipline insofar as it

relates to respecting decision of a coordinate Bench

is concerned, is well laid down by the Supreme Court

in the case of U.P.Gram Panchayat Adhikari Sangh &

Ors. vs. Daya Ram Saroj & Ors. reported in [2007(2)

SCC 138]. The Supreme Court noted that by ignoring

the earlier decision of a coordinate Bench, a

Division Bench of the High Court directed that part

time tubewell operators should be treated as

permanent employees with same service conditions as

far as possible and observed:

"26. Judicial discipline is selfdiscipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be

maintained by judicial fraternity."

15. Recently, the Supreme Court in the judgment

rendered in Criminal Appeal No.452 of 2020 in the

case of S.Kasi vs. State through The Inspector of

Police Samanynallur Police Station, Madurai District

explained in detail the principle of judicial

discipline in paragraphs31 to 33 of the report which

reads as follows :

"31. Learned Single Judge in the impugned judgment has taken a contrary view to the earlier judgment of learned Single Judge in Settu versus The State (supra). It is well settled that a coordinate Bench cannot take a contrary view and in event there was any doubt, a coordinate Bench only can refer the matter for consideration by a Larger Bench. The judicial discipline ordains so. This Court in State of Punjab and another versus Devans Modern Breweries ltd. and another, (2004) 11 SCC 26, in paragraph 339 laid down following:

"339. Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a Larger Bench. (See Pradip Chandra Parija vs. Pramod

Chandra Patnaik, (2002) 1 SCC 1 followed in Union of India Vs. Hansoli Devi, (2002) 7 SCC 273. But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores (supra) and K.K. Narula (supra) both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority."

32. Learned Single Judge did not follow the judicial discipline while taking a contrary and diagonally opposite view to one which have been taken by another learned Single Judge in Settu versus The State (supra). The contrary view taken by learned Single Judge in the impugned judgment is not only erroneous but also sends wrong signals to the State and the prosecution emboldening them to act in breach of liberty of a person.

33. We may further notice that learned Single Judge in the impugned judgment had not only breached the judicial discipline but has also referred to an observation made by learned Single Judge in Settu versus The State as uncharitable. All Courts including the High Courts and the Supreme Court have to follow a principle of Comity of Courts. A Bench whether coordinate or Larger, has to refrain from making any uncharitable observation on a decision even though delivered by a Bench of a lesser coram. A

Bench sitting in a Larger coram may be right in overturning a judgment on a question of law, which jurisdiction a Judge sitting in a coordinate Bench does not have. In any case, a Judge sitting in a coordinate Bench or a Larger Bench has no business to make any adverse comment or uncharitable remark on any other judgment. We strongly disapprove the course adopted by the learned Single Judge in the impugned judgment."

16. Since two Hon'ble Single Judges have passed

the impugned interim orders not in conformity with

the law laid down in Nathubhai Jinabhai Gamara

(supra), we deem it appropriate not to deal with the

said issue in these appeals as the judgment in the

case of Nathubhai Jinabhai Gamara (supra) is not in

challenge before us. Let the issue be decided in the

writ petitions by the learned Single Judge on merits

as to whether the learned Single Judge would agree to

the view taken by the judgment in the case of

Nathubhai Jinabhai Gamara (supra) or would like to

refer the same for consideration by a Larger Bench.