Najubhai Bhankubhai Manjaria vs State Of Gujarat
2021 Latest Caselaw 17947 Guj

     C/SCA/16888/2021                                    ORDER DATED: 01/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16888 of 2021

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                        NAJUBHAI BHANKUBHAI MANJARIA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 01/12/2021
                   ORAL ORDER

Learned advocate for the petitioner has tendered the draft amendment. Amendment is allowed in terms of draft. The same shall be carried out forthwith.

2. By the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal.

3. Issue rule, returnable forthwith. Mr. Krutik Parikh, learned Assistant Government Pleader, waives service of notice of rule on behalf of respondent no.1.

4. By this petition, the petitioner has prayed for quashing and setting aside the action of the respondent no.2 of seizing the vehicle of the petitioner, i.e Dumper bearing registration No. GJ-14-T-4936 (hereinafter referred to as "vehicle").

5. The brief facts are that on 12.08.2021, the respondent no.2 has seized the vehicle, followed by issuance of the show cause notice dated 4.9.2021 under the provisions of Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017

C/SCA/16888/2021 ORDER DATED: 01/12/2021

(hereinafter referred to as the 'Rules of 2017'), requiring the petitioner to compound the offence; however, the petitioner did not compound the offence. The petitioner appeared and filed reply dated 20.9.2021, inter alia, denying the contents of the notice dated 4.9.2021. It has been stated in the reply that no offence has been committed and therefore, compounding is not necessitated. It has also requested that the vehicle be released. Since nothing was heard, the petitioner has filed the captioned writ petition challenging the action of the respondent no.2 of seizing the vehicle.

6. Ms. Dhruti Pandya, learned advocate for Ms. Kruti M Shah, learned advocate appearing for the petitioner submitted that the action of the respondent no.2 of detaining and seizing the vehicle, is illegal and against the provisions of the Rules of 2017 inasmuch as, by now, more than 45 days have been passed and no complaint, as envisaged under sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017, has been filed. It is therefore, urged that the issue raised in the present writ petition, stands covered by the judgment in the case of Nathubhai Jinabhai Gamara vs. State of Gujarat, rendered in Special Civil Application No.9203 of 2020. It is submitted that this Court, has held and observed that after the period of 45 days, in absence of any complaint by the concerned competent authority, the detention and seizing of the vehicle would render illegal.

6.1 It is submitted that the issue of detention beyond the specified period, and in absence of any complaint, is no more res integra. Therefore, it is urged that the petition deserves to be allowed and the respondent authority be directed to release the vehicle as prayed for.

7. On the other hand, Mr. Kruti Parikh, learned Assistant

C/SCA/16888/2021 ORDER DATED: 01/12/2021

Government Pleader, upon instructions, states that after the show cause notice dated 4.9.2021, the office of Geologist, Geology & Mining Department, Anand, has passed the order dated 30.10.2021 and therefore, once the order is passed by the authority concerned, there is an alternative remedy available to the petitioner under the provisions of the Rules of 2017. Therefore, the petitioner be relegated to avail of such a remedy.

7.1 So far as the aspect of registration of the complaint as envisaged under sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017, it has been fairly conceded that no complaint has been filed and accordingly, it is also not disputed that the judgment rendered by this Court in the case of Nathubhai Jinabhai Gamara (supra) will apply.

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

9. The vehicle was seized on 12.8.2021, followed by issuance of the show cause notice dated 4.9.2021 and passing of the order on 30.10.2021. Undisputedly, the complaint, as envisaged under sub- clause (ii) of clause (b) of sub-rule (2) of Rule 12 of Rules of 2017, has not been filed yet and therefore, in absence of any complaint, the action of continuation of the detention of the vehicle by the respondent authority, is illegal and against the provisions of the Rules of 2017.

10. Reliance has rightly been placed on the judgment in the case of Nathubhai Jinabhai Gamara (supra). Paragraphs 7, 10 and 11 of the judgment read 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

C/SCA/16888/2021 ORDER DATED: 01/12/2021

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 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 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 and the bank guarantee would stand frustrated; resultantly, the property will have to be released in favour of the person from whom

C/SCA/16888/2021 ORDER DATED: 01/12/2021

it was seized, without insisting for the bank guarantee.

11. Under the circumstances, in absence of any complaint, the petition deserves to be allowed and the action of the respondent authority in seizing the vehicle, i.e. Dumper bearing registration No. GJ-14-T-4936, deserves to be quashed and set aside and is accordingly, quashed and set aside. The respondent authority, is forthwith directed to release the vehicle.

12. Needless to clarify that the present writ petition, has been entertained only for the limited purpose of releasing the vehicle, however, so far as the order dated 30.10.2021 is concerned, passed by the office of the Geologist, Geology & Mining Department, Anand is not interfered with and it will be open for the petitioner to challenge the same by way of an appeal. It is also clarified the appellate authority, without being influenced by this order, decide the appeal strictly in accordance with law. It is made clear that this Court has not examined the merits of the case.

13. With the aforesaid direction, the petition is allowed in part. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI