Arjunbhai Ambubhai Odd vs State Of Gujarat
2021 Latest Caselaw 1575 Guj

          C/SCA/1535/2021                                           ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO.                    1535 of 2021

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                            ARJUNBHAI AMBUBHAI ODD
                                     Versus
                              STATE OF GUJARAT
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Appearance:
MR. NITESH G JAIN(7178) for the Petitioner(s) No. 1
 for the Respondent(s) No. 2
MR RONAK RAVAL, AGP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                              Date : 03/02/2021

                                   ORAL ORDER

1. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed for quashing and setting aside the show cause notice dated 15.06.2020 issued by respondent No.2 and order dated 24.07.2020 passed by the respondent No.2. Petitioner has also prayed that the respondents be directed to release the vehicle being truck No. GJ­05­BZ­ 4044 of the petitioner.

2. Heard learned advocate Mr. Nitesh Jain for the petitioner and learned Assistant Government Pleader Mr. Ronak Raval for the respondents.

3. At the outset, learned advocate Mr. Jain appearing for the petitioner has contended that in an identical matter this Court has passed an order on 21.10.2020 in Special Civil Application

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No.11037 of 2020, by which, the vehicle bearing registration No.GJ­05­BZ­7237 for which also FIR is filed on 13.06.2020 before Jetpur Pavi Police Station, copy of which is placed on record at page 16/A of the compilation, has been released on certain terms and conditions. Learned advocate has referred the said order, copy of which is placed on record at page 29. It is, therefore, urged that similar order be passed by this Court in the present matter. It is further submitted that against the said order, till date no appeal is filed by the respondents before the Division Bench of this Court.

4. The brief facts of the case are to the effect that, the petitioner is owner of Tata Signa Truck No.GJ­05­BZ­4044 having Chassis No.MT448856J3H27242 and Engine No.ISB49B4H180K181H63722429 (hereinafter referred to as the 'vehicle in question') and it is being used for the purpose of transporting minerals. On 11.6.2020, it was checked by the officers of the respondent No.2 and after such inspection, was seized on the ground of illegal mining of ordinary sand of 30.063 metric tons.

4.1 When the vehicle in question was in the custody of the respondent No.2, the petitioner tried to take away the same without any permission, which led to filing of the First Information Report with Jetpur Police Station for the offences punishable under Sections 392, 120B of the

C/SCA/1535/2021 ORDER

Indian Penal Code. As a result of the registration of the First Information Report, the vehicle in question was shown as muddamal and therefore, the petitioner made an application under Section 451 of the Code of Criminal Procedure, 1973 for release of the muddamal. The learned J.M.F.C., Jetpur­Pavi vide order dated 18.7.2020 released the vehicle in question.

4.2 The petitioner approached the concerned police station for the release of the vehicle in question, however, the petitioner was informed that it is seized by the respondent No.2 and therefore, the custody cannot be handed over to the petitioner. Upon making further inquiry, the petitioner was served with the photocopy of the show­cause notice dated 15.6.2020 issued by the respondent No.2, requiring the petitioner, inter alia, to pay Rs.2,53,752/­ towards compounding fees/penalty on the alleged charge of illegal transport of ordinary sand. According to the petitioner, photocopy of the said show­cause notice dated 15.6.2020 was given by the police authorities to the petitioner on 21.7.2020; however, such notice was never served upon the petitioner by the respondent No.2. Upon receipt of the show­cause notice dated 15.6.2020, the petitioner made an application through e­mail for release of the vehicle in question on 28.7.2020.

            C/SCA/1535/2021                                                     ORDER



4.3   However,         to     the    utter       shock        and    surprise            of   the

petitioner, the petitioner received the order dated 24.7.2020 passed by the respondent No.2 whereby, the petitioner has been required to pay an amount of Rs.8,99,794/­ over and above what was demanded in the show­cause notice dated 15.6.2020. Therefore, according to the petitioner, the total amount comes to Rs.11,50,994/­. Hence, the present petition.

5. Mr. Nitesh Jain, learned advocate for the petitioner, submitted that the show­cause notice dated 15.6.2020 was never served upon the petitioner and without affording any opportunity of hearing to the petitioner, the order dated 24.7.2020 has been passed by the respondent No.2 requiring him to pay a penalty of whopping sum of Rs.11,50,994/­. It is submitted that the factum of non­service of notice to the petitioner and consequent passing of the order dated 24.7.2020, are clearly in violation of the principles of natural justice and deserve to be quashed and set aside.

5.1 Assuming without admitting that the notice dated 15.6.2020 was served upon the petitioner; however, the action of the respondent No.2 was clearly in violation of the Rule 12 of the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as the 'Rules of 2017').

5.2   The      respondent           No.2      was        obligated        to    issue         the






            C/SCA/1535/2021                                                 ORDER



      notice,         requiring        the       petitioner       to     compound         the

offence within stipulated period and in absence of any request to compound the offence, by paying compounding fees, it was incumbent upon the authorities to have produced the vehicle in question before the competent court within a period of 45 days. However, such exercise, has not been undertaken by the respondent No.2 and therefore, the action of the respondent No.2 is not only against the spirit of Rule 12 of the Rules of 2017, but also against the judgment passed by this Hon'ble Court. Reliance is placed on the judgment in the case of Nileshbhai Somabhai Raval vs. State of Gujarat reported in 2019 (1) GLR 307.

5.3 It is next submitted that a bare perusal of the show­cause notice dated 15.6.2020, clearly suggests that it was only limited to the aspect of compounding of the offence. However, the order dated 24.7.2020, goes beyond the scope of the show­cause notice inasmuch as, there was not a whisper regarding penalty for excavating the sand of 3449.14 metric tons, penalty of which comes to the tune of Rs.8,99,794/­.

5.4 Lastly, it is stated that the petitioner is ready and willing to abide by all the terms and conditions that may be imposed by this court. The petitioner is also ready and willing to pay the amount of Rs.2,53,752/­ towards compounding fees.

6.    On      the      other        hand,         Mr.     Ronak    Raval,          learned






        C/SCA/1535/2021                                              ORDER



     Assistant Government                Pleader, upon instructions

from the office of the respondent No.2 states that if the petitioner is ready and willing to make the payment of Rs.2,53,752/­ and bank guarantee for the remaining amount of Rs.8,99,794/­, the respondent No.2 will release the vehicle in question. It is submitted that so far as the order dated 24.7.2020 is concerned, the present petition may not be entertained in view of the alternative remedy available to the petitioner under Rule 18 of the Rules of 2017.

7. Pertinently, Rule 12 of the Rules of 2017 obligates the authorities to follow the procedure in the case of seizure of property liable to confiscation. Inbuilt mechanism has been provided for the purpose of seizing the property and conducting investigation for compounding the offence and if compounding is not permissible, then, a preliminary investigation followed by filing of complaint before the Court of Sessions. Sub­rule (2) of Rule 12 of Rules of 2017 provides for two eventualities in clauses (a) and

(b). As per clause (a) to sub­section (2) the authorised officer seizing any property, inter alia, is obligated to issue a notice in Form 'J' informing the person from whom the property is seized and release the property so seized upon receipt of a bank guarantee for an amount equal to the penalty payable under Rule 21 in case of transportation of or causing to transport, mineral without lawful authority. Clause (b)

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further provides for conduct of an investigation and if the authorised officer is satisfied that a compoundable offence has been committed in respect of the property, he may subject to receipt of compounding application, order payment of such amount for compounding the offence as may be deemed appropriate which may, if not paid within 30 days, may be recovered by invocation of the bank guarantee furnished under clause (a) of sub­rule (2); or conduct a preliminary investigation and if compounding is not permissible under Rule 22 or if he is satisfied that the offence committed in respect of the property is not compoundable, upon the expiry of 45 days from the date of seizure or upon completion of investigation, whichever is earlier, shall approach by way of making a written complaint, before the Court of Sessions.

8. Rule 12 of Rules of 2017 had fallen for consideration before this court in the case of Zaverbhai Nanubhai Devani vs. State of Gujarat & Ors. rendered in Letters Patent Appeal No.397 of 2018 wherein, this court in paragraphs 10, 11 and 12 has observed thus:­

"10. From the aforesaid provisions coupled with the facts of the present case, it is clear that after the seizure of the truck, notice was issued. However, thereafter, the respondent authority has not followed the provisions contained in Rule 12(2)(b)(ii) of

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the Rules of 2017. As per the said provision, if the application for compounding of offence is not received, the vehicle so seized shall be produced before the Court empowers to determine commission of such offence, upon expiry of 15 days from the date of seizure or upon completion of investigation, whichever is earlier.

11. In the present case, after completion of 15 days from the date of seizure, when application for compounding of offence is not submitted by the petitioner, it was the duty of the respondent authority to produce the said vehicle before the concerned Court. In absence of production of such vehicle before the competent Court, the petitioner has lost his right to file an application under Section 451 of the Code of Criminal Procedure, 1973, for release of the vehicle.

12. Thus, in view of the aforesaid discussion, we are of the view that the respondent authorities have failed to justify the reason for seizure of the truck in question. When the respondent authorities have failed to follow the procedure prescribed under the Rules of 2017, we are of the view that this is fit case where the action of seizure of the truck in question taken by the respondent authorities is required to be quashed and set aside and direction is required to be given

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to the respondent authorities to release the truck in question forthwith."

9. In the case on hand, the authorised officer issued a notice dated 15.6.2020, calling upon the petitioner to pay an amount of Rs.2,53,752/­ for compounding the offence within a period of 7 days from the date of receipt of the notice and if the petitioner fails to do so, it would be deemed that the petitioner is not desirous of compounding the offence and a decision will be taken ex parte.

10. As is clear from the record and not disputed by the respondent No.2, the notice dated 15.6.2020 was not served upon the petitioner, but photocopy whereof was received by the petitioner through the concerned police station. Therefore, when the petitioner had not received any notice for compounding the offence, the petitioner had no opportunity to avail of the remedy provided under clause (a) of sub­rule (2) of Rule 12 of Rules of 2017. Besides, there is nothing available on record to suggest to the contrary that the respondent No.2 has not followed the provisions of sub­rule (2) of Rule 12 except issuing the notice dated 15.6.2020 and passing the ex parte order on 24.7.2020.

11. In view of the aforesaid facts, the case of the petitioner is squarely covered by the principle laid down by this court in the case of Zaverbhai Nanubhai Devani vs. State of Gujarat & Ors.

            C/SCA/1535/2021                                           ORDER



      (supra).            Under   the     circumstances,             the       order

dated 24.7.2020 having been passed not only in breach of the principles of natural justice, but without observing the provisions of sub­rule (1) of Rule 12 of Rules of 2017, deserves to be quashed and set aside and is hereby quashed and set aside.

12. The petitioner has submitted before this court that had the petitioner received the notice, the petitioner would have compounded the offence by paying the amount towards the compounding fees. However, the petitioner, today also, is willing to make the payment of the amount contained in the show­cause notice dated 15.6.2020 for compounding the offence.

13. Under the circumstances and having regard to the facts of the present case, this court deems it fit to release the vehicle in question on condition that the petitioner shall deposit an amount of Rs.2,53,752/­ for compounding the offence as quantified by the department within a period of four weeks from the date of the order. Upon deposit of the said amount, the respondent authorities are directed to release the vehicle in question. Thus, it is clarified that this order shall not preclude the respondents to take further action in furtherance of the show­cause notice dated 15.6.2020 in accordance with law, if permissible. The petitioner shall also file an undertaking before this court that the

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petitioner shall forthwith comply with the directions contained in the outcome of the proceedings, if any, under the Rules of 2017.

14. The petition succeeds and is accordingly allowed.

Rule is made absolute to the aforesaid extent.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI