Urvashiben Nileshbhai Chaudhary vs State Of Gujarat
2021 Latest Caselaw 10544 Guj

     C/SCA/7069/2021                               JUDGMENT DATED: 04/08/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 7069 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or
      any order made thereunder ?

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            URVASHIBEN NILESHBHAI CHAUDHARY
                             Versus
                    STATE OF GUJARAT
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Appearance:
MR R.K.MANSURI(3205) for the Petitioner(s) No. 1
MS NIDHI VYAS AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 04/08/2021

                            ORAL JUDGMENT

1. Heard learned Advocate Shri R.K. Mansuri for the petitioner and learned AGP Ms. Nidhi Vyas for the respondent No.1 - State.

2. Rule. Learned AGP waives service of Rule on behalf of the

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respondent - State.

3. By way of present petition, the petitioner has sought for the following prayers:

(A) THIS HON'BLE COURT MAY BE PLEASED TO allow present petition by issuing appropriate writ, order or direction for quashing and setting aside the action of the respondent No.1 qua seizing the truck No.GJ-05-YY-8928 and thereby direct the respondent release the truck forthwith in the interest of justice.

(B) THIS HONOURABLE COURT MAY BE PLEASED TO allow present petition by passing order and issuing appropriate directions to the Respondents for releasing the Truck No.GJ- 05-YY-8928, as per the compounding fine for truck determined by the Respondent No2. Vide order dated 26/02/2021 in the interest of justice;

(C) THIS HONOURABLE COURT WOULD BE PLEASED TO grant interim relief by directing the respondents to release the truck No.GJ-05-YY-8928, on suitable terms and conditions, which was seized by the Respondent No.2, till pending admission hearing and till final disposal of the present petition, in the interest of justice and equity.

4. Learned Advocate for the petitioner has submitted that the truck in question had been seized by the respondent Authority on 24.11.2020 and whereas the notice had been issued on 27.11.2020 to one Nileshbhai Chaudhary, who was the husband of the petitioner and whereas and said person was directed to pay an amount of Rs. 2,57,351/- as compounding charges and the amounts of Rs.47,947/- and Rs.1,654/- were directed to be

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deposited towards compensation for causing the damage to the environment, the fines directed to be deposited with the Account of Environment Compensation Funds, Surat.

5. It is further submitted that vide order dated 26.02.2021, final order had been passed by the respondent Authority directing the addressee to pay the amount as mentioned earlier in the show cause notice, the respondent having taken final decision with regard to the show cause notice dated 27.11.2020. At this stage, it is also informed by learned Advocate Shri Mansuri that Nileshbhai Chaudhary, husband of the petitioner against whom show cause notice and further order is passed, has expired in the COVID 19 Pandemic.

6. Learned Advocate Shri Mansuri submits that as per the Scheme of the Rules, 2017 i.e. "Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017", as explained by the various decisions of this Court, upon seizure of the property, vehicle, in this case, the notice is to be issued in Form J asking the person concerned to provide Bank Guarantee equal to penalty payable under Rule 21 or written down value of the property in the case of illegal mining or illegal storage subject to the right of investigator to conduct the investigation and whereas the person whose property, vehicle, in this case, is seized, is not inclined to compound the offence or does not respond to the notice, then within a period of 45 days, a complaint has to be filed before the learned Sessions Court and the learned Sessions Court would take appropriate decision at the end of trial. It is also envisaged that if the offence is not compounded at the notice stage, then within period of 45 days, the complaint has to be filed and if no complaint is filed within stipulated period, the vehicle has to be released as it is. In support of the contentions, the petitioner has relied upon the decision of this Court of in the case of Special Civil Application No.9203 of 2020 dated 26.08.2020 and decision of this Court in the case of Special Civil

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Application No.7845 of 2020 dated 14.07.2020. At this stage, the Court deems it appropriate to reproduce the observations of this Court in Special Civil Application No.9203 of 2020 (Paras 6 to 11).

"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

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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. 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. Infact 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

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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."

7. Learned AGP has submitted that the petitioner has an alternative efficacious remedy of approaching the Additional Director, Geology & Mining, State of Gujarat against the order passed by the respondent No.2 herein. As far as submissions of learned AGP are concerned, this Court is of the opinion that the order dated 26.02.2021 is with regard to imposing of penalty upon the petitioner / Nileshbhai for having violated the provisions of the Rules of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 and whereas in the considered opinion of this Court, while it is open for the petitioner to avail alternative remedy but at the same time the vehicle of the petitioner cannot be permitted to be kept in the custody of the respondent Authority in view of the clear findings of this Court in the series of the judgments referred to herein above, since the complaint as envisaged in the Rules has not been registered.

8. It is clarified that in case, the legal heir of Nileshbhai does not challenge the order, then it would be upon for the respondent Authority to take appropriate action under the Rules of 2017 for recovery of the amount, more particularly, under Rule 14 of the Rules, which contemplates recovery of dues as arrears of the land revenue, if so permissible in accordance with law.

9. In view of the findings and conclusion arrived at by this Court as hereinabove, more particularly, in view of the fact that the decisions are still good law, this Court is of the opinion that the observations ought to be applied in the instant case also and whereas in the instant case, since there is no complaint filed by the respondent, then the respondents have no

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authority to retain the possession of the said vehicle. In this view of the matter, the respondent Authority is directed to release the vehicle unconditionally within a period of one week from the date of receipt of the writ of this order.

10. With this observation, the petition stands disposed of as allowed. Rule is made absolute.

(NIKHIL S. KARIEL,J) Y.N. VYAS