Jasuben Maganbhai Kakasaina vs State Of Gujarat
2021 Latest Caselaw 18690 Guj

     C/SCA/11358/2021                              ORDER DATED: 23/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11358 of 2021

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                        JASUBEN MAGANBHAI KAKASAINA
                                   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
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                               Date : 23/12/2021

                                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. By this petition, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the action of the respondent No. 3 in seizing the JCB bearing registration no. GJ-21-AA-1245 (hereinafter referred to as the 'vehicle').

4. The brief facts are to the effect that the petitioner, is the owner of the vehicle. On 27.11.2020, the vehicle was seized by the respondent no. 3 by issuing the seizure memo in form J followed by issuance of notice dated 03.12.2020 and further followed by the order dated 24.05.2021. By passing the order, the Geologist,

C/SCA/11358/2021 ORDER DATED: 23/12/2021

Geology and Mining Department, has required the petitioner to make payment of Rs.2,75,600/- towards penalty under the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to the 'Rules of 2017'). It is the case of the petitioner that after issuance of the seizure memo, notice though claimed to have been issued was never served upon the petitioner and straightaway, order dated 24.05.2021, has been passed. The petitioner made a representation expressing the inability to pay the huge amount of penalty of Rs. 2,75,600/-. It has also been stated that request has been made for an adjournment. Since nothing was heard, the present writ petition is filed with a prayer for quashing and setting aside the action of the respondent No. 3 of seizing the vehicle so also passing the order dated 24.05.2021 by the Office of the Geologist, Geology and Mining Department.

5. Ms. Kruti Shah, learned Advocate appearing for the petitioner submitted that the vehicle has been seized somewhere in the month of November,2020 by issuing the seizure memo. Thereafter, the notice has been issued however, the said notice, has been issued to "Farukbhai Hunani" and not the petitioner. It is submitted that after the issuance of notice dated 03.12.2020, the order has been passed on 24.05.2021 i.e. almost after a period of close to five months. It is submitted that as required under the provisions of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017 the office of the respondent is under an obligation to file a complaint, however despite the expiry of the specified period no complaint is filed and therefore the action of the respondent authority is illegal and bad. It is therefore submitted that the issue stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara vs. State of

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Gujarat, rendered in Special Civil Application No.9203 of 2020. It is therefore urged that the vehicle be released.

6. Mr.Krutik Parikh, learned Assistant Government Pleader, has stated that so far as the order dated 24.05.2021 is concerned, it would be open for the petitioner so also Shri Farukbhai Hunani to file an appeal before the appellate authority and in view of the availability of alternative remedy the petition may not be entertained. So far as the filing of the complaint is concerned, Mr. Parikh, learned Assistant Government Pleader fairly conceded that no complaint has been filed after expiry of the specified period of 45 days and therefore 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 has been seized somewhere in the month of November, 2020 by issuing the seizure memo in form J. it appears that thereafter notice has been issued on 03.12.2020, the copy whereof was not served upon the petitioner but appears to have been served upon Shri Farukbhai Hunani. After the issuance of the notice, the office of the Geologist, Geology and Mining Department, has passed the order dated 24.05.2021.

9. Clearly, as per the requirement envisaged under sub-clause

(ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017, it is incumbent upon the respondent authority to file a complaint. In absence of any complaint as per the provisions of the Rules of 2017, the action of the respondent authority, in continuing with the detention, would be illegal and without authority of law. As has

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been fairly conceded by the learned Assistant Government Pleader that though 45 days are over no complaint has been filed, therefore, the issue stands covered by the judgment in the case of Nathubhai Jinabhai Gamara (supra) wherein it has been held and observed that on expiry of 45 days and in absence of any complaint filed by the respondent authority the detention of the vehicle would be without authority of law.

10. This Court, in paragraphs 7, 10 and 11 has held and observed 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

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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.

11. Under the circumstances, the action of the respondent in detaining the vehicle after the expiry of 45 days without any complaint being filed is not in conformity with the provisions of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017, therefore, deserves to be quashed and set aside and is accordingly, quashed and set aside. The respondent, is directed to forthwith release the vehicle. So far as the order dated 24.05.2021 passed by the Office of the Geologist, Geology & Mining Department is concerned, it will open to the petitioner to file an appeal against the said order.

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12. Needless to say that the Appellate Authority, shall decide the appeal strictly in accordance with law and without being influenced by the observations made in the present order inasmuch as, the present writ petition, has been entertained only for the limited purpose of releasing the vehicle, on the ground that no complaint has been filed and the issue stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara (supra).

13. 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.

14. In view of the aforesaid, the petition succeeds in part and is accordingly allowed. Rule is made absolute to the aforesaid extend. No order as to costs. Direct service is permitted.

(SANGEETA K. VISHEN,J) SINDHU NAIR