Gujarat High Court
Dharmendrasinh Ghanshyamsinh ... vs State Of Gujarat on 20 December, 2021
Bench: Sangeeta K. Vishen
C/SCA/14770/2021 ORDER DATED: 20/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14770 of 2021
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DHARMENDRASINH GHANSHYAMSINH PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MR ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 20/12/2021
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. Rohan Shah, learned
Assistant Government Pleader waives service of notice of rule on
behalf of the respondents.
3. By this petition, the petitioner, inter alia, has prayed for
direction for releasing the vehicle bearing Truck No.GJ13AW4953
(hereinafter referred to as 'the vehicle') of the ownership of the
petitioner, seized by the respondents.
4. The facts are to the effect that apropos the inspection carried
out by the team of the respondent no.2 on 4.8.2021, the vehicle of
the petitioner was found transporting Black Trap. The driver could
not produce the permit and therefore, the vehicle was seized by the
respondent and kept in the custody of the respondent no.3. The
seizure memo was issued, followed by the show cause notice dated
9.8.2021, to which, the petitioner submitted the reply on 21.9.2021.
By the said reply, it was brought to the notice of the respondent
no.2 that the petitioner is not ready to compound the offence and as
per sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the
C/SCA/14770/2021 ORDER DATED: 20/12/2021
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 of the
seizure and therefore, the respondent has no authority to detain the
vehicle. Since nothing was heard, the petitioner, has filed the
captioned writ petition, seeking quashing of the show cause notice,
so also the release of the vehicle.
5. Mr. Jay N. Shah, learned advocate appearing for the petitioner
submitted that the vehicle of the petitioner was seized on 4.8.2021
at around 1.20 p.m., and since the driver could not produce the
permit/pass, the vehicle was seized by the respondent and kept in
custody of the respondent no.3. A show cause notice dated 9.8.2021
was issued, requiring the petitioner to pay the penalty or compound
the offence. The petitioner, submitted the reply dated 21.9.2021,
inter alia, informing the respondent authority that he is not ready to
compound the offence. Also as per sub-clause (ii) of clause (b) of
sub-rule (2) of Rule 12 of the Rules of 2017, despite the expiry of 45
days, complaint has not been filed and therefore, the seizure of the
vehicle would be without authority of law.
5.1 It is submitted that the issue is no longer res integra in view of
the judgment of this Court in the case of Nathubhai Jinabhai Gamara
vs. State of Gujarat passed in Special Civil Application No.9203 of
2020, so also the judgments of the Hon'ble Division Bench in the
case of Mansukh Alias Ravji Gorasiya vs. The State of Gujarat
passed in Letters Patent Appeal No.717 of 2020 and allied matters
and in the case of Zaverbhai Nanubhai Devani vs. State of Gujarat
passed in Letters Patent Appeal No.397 of 2018.
5.2 It is submitted that in view of the settled position, the action of
the respondent in seizing the vehicle, would be illegal and without
authority of law and therefore, the vehicle deserves to be released
C/SCA/14770/2021 ORDER DATED: 20/12/2021
forthwith.
6. Mr. Rohan Shah, learned Assistant Government Pleader
appearing for the respondents, submitted that after the issuance of
the seizure memo and notice, the respondent authority, has passed
the order dated 27.9.2021. It is submitted that if at all the petitioner
has any grievance, it would be open for the petitioner to avail of the
alternative remedy by filing an appeal before the Appellate
Authority. So far as the aspect of filing of complaint is concerned, it
is fairly conceded that no complaint has been filed upon expiry of
the specified period as envisaged under sub-clause (ii) of clause (b)
of sub-rule (2) of Rule 12 of the Rules of 2017. It is thus, urged that
appropriate order be passed, so far as the release of the vehicle is
concerned.
7. Mr. Shah, learned advocate appearing for the petitioner states
that so far as the order dated 27.9.2021 is concerned, the petitioner
will avail of an alternative remedy by filing an appeal, however, it is
urged that let the Appellate Authority decide the appeal in
accordance with law.
8. Heard the learned advocates appearing for the respective
parties and perused the material available on the record.
9. Apropos the inspection carried out by the team of the
respondent no.2 on 4.8.2021, the vehicle of the petitioner having
been found transporting Black Trap, and the driver being not able
produce the permit, the vehicle was seized, followed by the issuance
of the show cause notice dated 9.8.2021. As has been reported by
the learned Assistant Government Pleader, the show cause notice,
was adjudicated by passing the order dated 27.9.2021. The copy of
the order dated 27.9.2021, is directed to be taken on record. As has
been conceded by the learned Assistant Government Pleader, that
after the expiry of the specified period, the complaint has not been
C/SCA/14770/2021 ORDER DATED: 20/12/2021
filed and therefore, the issue stands covered by the judgment in the
case of Nathubhai Jinabhai Gamara (supra). Relevant paragraphs 7,
10 and 11 of the said 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
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
C/SCA/14770/2021 ORDER DATED: 20/12/2021
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. Under the circumstances, the respondent authority is directed
to forthwith release the vehicle of the petitioner. So far as the order
dated 27.9.2021 is concerned, as has been declared by the learned
advocate appearing for the petitioner, that the petitioner will avail of
an alternative remedy. If the petitioner files an appeal against the
order, the Appellate Authority shall decide the same after hearing
the petitioner and in accordance with law and without being
influenced by the observations made in the present order. It is also
clarified that it will be open to the authorities to effect the recovery,
if permissible and in accordance with law.
11. In view of the aforementioned discussion, the petition is
partly allowed. Rule is made absolute to the aforesaid extent. No
order as to costs.
12. Direct service is permitted.
(SANGEETA K. VISHEN,J)
BINOY B PILLAI
