Veerbhadra Singh Lalsingh ... vs State Of Gujarat
2021 Latest Caselaw 18468 Guj

     C/SCA/10372/2021                            ORDER DATED: 16/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10372 of 2021

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                  VEERBHADRA SINGH LALSINGH SISODIYA
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
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 : 16/12/2021
                   ORAL ORDER

With the consent of the learned advocates appearing for the respective parties, the matter 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 respondent no.1.

3. The petition, inter alia, has been filed seeking direction for release of the Excavator Tata Hitachi 120H Sr. No.151 053828 (hereinafter referred to as the 'vehicle'), which is seized by the respondents.

4. The facts are to the effect that the petitioner is the owner of the vehicle, and on 12.3.2019, during the inspection carried out by the team of the respondent at Village Paliya, Pavi Jetpur, the vehicle was found along with seven other Excavators near Bharaj river wherein, the said sand mining was being done. According to the petitioner, the vehicle driver could not produce the mining permit and therefore, all the vehicles were seized by the respondent. On

C/SCA/10372/2021 ORDER DATED: 16/12/2021

17.9.2019, a common show cause notice was issued, requiring the vehicle owners to pay penalty of Rs.98,43,977/- for alleged illegal mining of 227989 metric ton of sand.

4.1 It is also the case of the petitioner that the notice was not issued to the petitioner, however, the petitioner came to know about the issuance of notice through the recipient of the notice and therefore, on 8.7.2021, submitted a representation to the office of the respondent no.2, inter alia, stating that the petitioner is not ready to compound the offence inasmuch as, as per sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to the 'Rules of 2017'), the complaint has not been filed after the expiry of 45 days from the date of the seizure. The petitioner, also invited the attention to the judgments of the Division Bench of this Court and requested for release of the vehicle, as the same has been lying in the open space since last more than 2 years. Since nothing was heard, the petitioner has preferred the captioned writ petition, inter alia, with a prayer to release the vehicle and also for quashing and setting aside the notice dated 17.9.2019.

5. Mr. Jay N. Shah, learned advocate appearing for the petitioner, at the outset, has stated that the petition, be entertained only for the limited purpose of releasing the vehicle and so far as the proceedings are concerned, the petitioner, if issued the notice, will pursue the remedy before the appropriate authority.

5.1 Mr. Shah, learned advocate submitted that the vehicle of the petitioner was seized during the inspection in the month of March, 2019, followed by issuance of the common notice dated 17.9.2021, requiring the vehicle owners to pay the penalty of Rs.98,43,977/-

C/SCA/10372/2021 ORDER DATED: 16/12/2021

together with the bank guarantee. It is submitted that the petitioner came to know about the seizure only through the recipient of the notice dated 17.9.2019 and therefore, the petitioner had submitted a reply/representation dated 8.7.2021, requesting the respondent to release the vehicle inasmuch as, the detention was not conformity with the provisions of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017.

5.2 Mr. Shah, learned advocate submitted that in absence of any complaint filed after the expiry of 45 days, the seizure would be without authority of law. The issue stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara vs. State of Gujarat rendered in Special Civil Application No.9203 of 2020. It is therefore, urged that in view of the action of the respondent authority being without jurisdiction, the vehicle be released forthwith.

6. On the other hand, Mr. Krutik Parikh, learned Assistant Government Pleader appearing for the respondent no.1, fairly conceded that after the issuance of the common notice dated 17.9.2019, no order could be passed. On 27.9.2019, a communication was addressed by the office of the Geologist, Geology & Mining Department to the Court of the Judicial Magistrate First Class, Taluka Jetpur Pavi. It is also conceded that thereafter, no steps have been taken by the respondent authorities. It is also not disputed that upon the expiry of 45 days from the date of the seizure, no FIR has been registered with the Court of the competent jurisdiction. It is urged that appropriate order be passed.

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

8. Pertinently, the vehicle of the petitioner, was seized during

C/SCA/10372/2021 ORDER DATED: 16/12/2021

the inspection on 12.3.2019, followed by issuance of the common notice dated 17.9.2019. It is also clear that the notice was not issued to the petitioner, but was issued to one Shri Ranchhodbhai Jahabhai Bharwad. Since the petitioner came to know about the issuance of the notice through the recipient, the petitioner, submitted a reply in the month of July, 2021, inter alia, pointing out that in absence of any complaint filed upon expiry of 45 days, the seizure would be without authority of law and therefore, the respondent no.3 was urged to release the vehicle immediately.

9. It is also clear from the record that after the issuance of the notice dated 17.9.2019, and addressing the communication dated 27.9.2019 to the Court of the Judicial Magistrate First Class, Taluka Jetpur Pavi, no further steps have been taken by the respondent. Furthermore, no FIR has been registered as required under the provisions of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of Rules of 2017 and therefore, in the opinion of this Court, issue raised in the present writ petition, stands covered by the judgment in the case of Nathubhai Jinabhai Gamara (supra) wherein, the co- ordinate bench of this Court, has held and observed that in absence of the complaint, upon expiry of specified period, the competent authority will have no option but to release the seized vehicle without insisting for the bank guarantee. Relevant 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 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

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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 it was seized, without insisting for the bank guarantee.

10. In view of the above, so also the admitted fact that the complaint has not been filed, the action of the respondent authority detaining the vehicle, deserves to be quashed and set aside and is hereby quashed and set aside. The respondent no.2 is directed to forthwith release the vehicle of the petitioner.

11. It is made clear that the present writ petition, has been entertained only for the limited purpose of releasing the vehicle, on

C/SCA/10372/2021 ORDER DATED: 16/12/2021

the ground that no complaint has been filed, as the issue stands covered by the judgment of this Court of Nathubhai Jinabhai Gamara (supra). It will be open to the concerned authority to complete the proceedings in furtherance of the show cause notice dated 17.9.2019, by passing appropriate order, after giving opportunity of hearing to the petitioner and strictly in accordance with law.

12. It is also clarified that it will be open to the authorities to initiate any proceedings for recovery, if permissible and in accordance with law.

13. In view of the aforesaid, the petition succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extend. No order as to costs.

14. Direct service is permitted.

(SANGEETA K. VISHEN,J) BINOY B PILLAI