Jayswal Yash Rajendrakumar vs State Of Gujarat
2021 Latest Caselaw 17949 Guj

       C/SCA/16839/2021                                      ORDER DATED: 01/12/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16839 of 2021
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                          JAYSWAL YASH RAJENDRAKUMAR
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
MR KRUTIK PARIKH AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                                  Date : 01/12/2021

                                      ORAL ORDER

1. With the consent of the learned advocates for the respective parties, the petition is taken up for final disposal.

2. Issue Rule, returnable forthwith. Mr.Krutik Parikh, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondents.

3. By this petition, the petitioner has prayed for quashing and setting aside the action of the respondent No.2 of seizing the vehicle i.e. Dumper bearing No.GJ-03-BW-8059 (hereinafter referred to as the "vehicle").

4. The facts of the case are that Shri Jayswal Yash Rajendrakumar is the owner of the vehicle and has given the power- of-attorney in favour of Nikunjbhai Mistry for this very vehicle.

4.1. On 26.09.2021, apropos the inspection, a seizure memo in Form - J came to be issued to the power-of-attorney of the petitioner on the ground that the time mentioned in the royalty has expired, followed by issuance of the show-cause notice dated 28.09.2021, calling upon the recipient to pay the compounding fees of

C/SCA/16839/2021 ORDER DATED: 01/12/2021

Rs.2,97,183/-. On 06.10.2021, the petitioner submitted an affidavit that the petitioner has not committed any mistake and, in fact, one Ed blue named chemical, which was usually being used in the vehicle, was leaked and therefore, the speed of the vehicle had slowed down eventually and the vehicle broke down at the place, which was nearly 200 meters away from where, the vehicle was seized.

5. Being aggrieved, the petitioner has filed the present writ petition seeking direction to the respondent to release the vehicle.

6. Ms.Kruti Shah, learned advocate for the petitioner submitted that the action of the respondent No.2 detaining the vehicle is against the provisions of the Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2017 (hereinafter referred to as the "Rules of 2017") inasmuch as, no opportunity of hearing was afforded to the petitioner. It is submitted that the weighing slip of the vehicle was stating 38.41 MT of black trap only, which was exactly as per the royalty pass and hence, no illegality was committed. It is also submitted that the seizure memo has been issued in the month of September, 2021, followed by the show- cause notice on 28.09.2021; however, till date, the respondent has not registered any FIR which is essential as per the provisions of sub-clause (ii) of sub-clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017. It is also submitted that in absence of registration of any FIR beyond the period of 45 days, detention of the vehicle would be illegal.

7. The issue stands squarely covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020. Thus, the principle laid-down by the Co-ordinate Bench of this Court applies on

C/SCA/16839/2021 ORDER DATED: 01/12/2021

all fours to the facts of the present case. It is therefore, urged that the present writ petition be allowed and the respondent be directed to release the vehicle.

8. On the other hand, Mr.Krutik Parikh, learned Assistant Government Pleader could not dispute the fact that despite the period of 45 days having been expired, the complaint has not been registered as per the provisions of sub-clause (ii) of sub-clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017; however, Mr.Parikh has stated before this Court that after issuance of the show-cause notice dated 28.09.2021, the office of the Geologist, Geology and Mining Department has passed the order dated 23.11.2021 therefore, there is an alternative remedy available to the petitioner to challenge the same.

9. Heard the learned advocates for the respective parties and perused the documents available on record.

10. Pertinently, on the inspection of 26.09.2021, the seizure memo was issued, followed by issuance of the show-cause notice dated 28.09.2021 and as reported by Mr.Parikh, learned Assistant Government Pleader, passing of the order dated 23.11.2021. It is undisputed that the period of 45 days have been over but, no FIR has been registered as required under the provisions of sub-clause

(ii) of sub-clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017. Therefore, this Court is of the opinion that the issue stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara (supra). This Court, in paragraphs 7, 10 and 11 has held 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

C/SCA/16839/2021 ORDER DATED: 01/12/2021

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 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."

C/SCA/16839/2021 ORDER DATED: 01/12/2021

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 it was seized, without insisting for the bank guarantee.

11. Under the circumstances, in absence of registration of any FIR beyond the specified period, the respondent has no authority to detain the vehicle and therefore, the respondent No.2 is directed to release the vehicle i.e. Dumper bearing No.GJ-03-BW-8059 forthwith.

12. Needless to clarify that the present writ petition has been entertained only for the limited purpose of issuing direction to the respondent No.2 to release the vehicle. The petitioner, if has any grievance against the order dated 23.11.2021, it will be open to the petitioner to challenge the same before the authority concerned in tune with the provisions of the Rules of 2017 and the appellate authority shall decide the appeal strictly in accordance with law and without being influenced by the present order.

13. With the aforesaid direction, the present writ petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to cost.

(SANGEETA K. VISHEN,J) Hitesh