Zala Hardevsinh Jagubha vs State Of Gujarat
2021 Latest Caselaw 9863 Guj

     C/SCA/14540/2020                                    ORDER DATED: 29/07/2021




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 14540 of 2020

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              ZALA HARDEVSINH JAGUBHA
                            Versus
                   STATE OF GUJARAT
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Appearance:
D H BHARWAD(7394) for the Petitioner(s) No. 1
MR ISHAN JOSHI AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 29/07/2021

                                 ORAL ORDER

1. Heard learned Advocate Shri D.H. Bharwad for the petitioner and learned AGP Shri Ishan Joshi for the respondent No.1 - State.

By way of this petition, the petitioner prays for following prayers:

(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to the respondent No.2 to release the Truck having registration No.GJ-03-AT-0894 at Annexure B on suitable condition, in the interest of justice.

(B) Pending admission and final disposal of this petition, Your Lordships will be pleased to stay further execution, operation and implementation of the seizure in the interest of justice.

C/SCA/14540/2020 ORDER DATED: 29/07/2021

2. Learned Advocate Shri Bharwad submits that the petitioner is the owner of the truck having registration No. GJ-03-AT-0894, which had been seized by the respondent No.2 herein on 08.09.2020 under Rule 12(2) of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. According to the learned Advocate, at the time when the vehicle had been seized, the vehicle had been carrying 20 Tons of ordinary sand and whereas the vehicle had been seized for not having valid royalty receipt of the sand in question. Learned Advocate further submits that as per provisions of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, the vehicle could be released by the Authorized Officer upon the petitioner providing bank guarantee or security deposit in lieu of vehicle concerned.

3. Learned Advocate Shri Bharwad has submitted that the procedure for release of the vehicle upon taking up of the bank guarantee is available to the owner of the vehicle upon the competent Authority after seizure, issuing notice in Form J calling upon the person to submit bank guarantee as required in the notice, if he is interested to procure the possession of the seized article. Such release would be subject to the right of Investigating Agency to investigate the case and furthermore, it is submitted by the learned Advocate Shri Bharwad that Rule 12(2)(b)(ii) further contemplates that if after the preliminary investigation compounding is not permissible under Rule 22 or if the Investigating Officer is satisfied that the offence is not compoundable, upon expiry of 45 days from date of seizure or upon completion of the investigation, whichever is earlier, the Authorized Officer shall approach by way of making a written complaint before the Sessions Court. In this regard, he submits that since no notice as per Form J had been issued to the petitioner, therefore, the option available to the Authorized Officer under Rule 12(2)(b)(ii). He submits that as per the said Sub-Rule, if the application for compounding offence is not submitted at that stage, it was the duty of the Authority to produce the vehicle before the

C/SCA/14540/2020 ORDER DATED: 29/07/2021

concerned Court and whereas since the same had not been done and since the petitioner has lost his right for filing an application under Section 451 of Code of Criminal Procedure for release of the vehicle, the respondent Authority should be directed to release the vehicle.

4. Learned Advocate Shri Bharwad further relies upon the decision of this Court in the case of Dipak Dhanjibhai Savaliya Vs. State of Gujarat & Ors. in Special Civil Application No.7845 of 2020 by this Court (Coram: G.R. Udhwani, J.) dated 14.07.2020 and submits that this Court in the aforesaid matter, relying upon in earlier decision of this Court in the case of Zaverbhai Nanubhai Devani Vs. State of Gujarat in Letters Patent Appeal No.397 of 2018, decided on 18.04.2018, this Court had directed release of the vehicle in question in favour of the petitioner within a period of 3 days. Learned Advocate further submits that the same relief may be granted to the petitioner herein, more particularly, since fact before the Court in Special Civil Application No.7845 of 2020 and before this Court are almost identical.

5. Learned AGP Shri Ishan Joshi on behalf of the respondent Authorities could not seriously dispute the proposition as submitted by the learned Advocate Shri Bharwad, more particularly, since the learned Advocate for the petitioner has relied upon the decision of this Court, which decision has yet not been challenged by the State Authority.

6. Heard learned Advocates for the parties. This Court in Special Civil Application No.7845 of 2020, has dealt with the issue elaborately and therefore, this Court deems fit it to appropriate to reproduce the relevant portion of the judgment of this Court for better appreciation.

"It would appear that compounding of the offence or registration of a complaint with the court of Sessions after seizure of the offending article are the only options available with

C/SCA/14540/2020 ORDER DATED: 29/07/2021

the competent authority; the seizure would be followed by notice in Form J and if the person is interested in release of the vehicle pre- investigation of the offence, he may furnish bank guarantee as required by the said notice and procure the possession of the seized article. This will be subject to the right of the investigating agency to investigate the case further and file a complaint if necessary in absence of compounding of the offence or compoundability of the offence. The compounding would happen in cases where bank guarantee is given and application for compounding is made and where the offence is not compoundable or satisfaction is recorded by the concerned authority that the offence committed in respect of the property is not compoundable then investigation will have to be completed within 45 days and complaint will have to be filed with the court of Sessions if the case is found against the offender, within 45 days of the seizure. In the instant case, the seizure has happened on 06.02.2020 and no bank guarantee was given and therefore the offence could not be compounded and therefore in the prima facie opinion of this court, and the authority was left with no option but to proceed under Rule 12 (2)(b)(ii) and lodge the complaint with the court of Sessions within the specified period which concededly has not been done. The issue of similar nature although under the unamended rules of 2017 had cropped up in several cases including the case of Zaverbhai Nanubhai Devani vs. State of Gujarat (Letters Patent Appeal No. 397 of 2018 in Special Civil Application No. 3862 of 2018 with Civil Application No. 1 of 2018 decided on 18.04.2018). The only substantial difference between the unamended and amended rules is as regards the period for investigation i.e. 15 days in the unamended rules and 45 days in the amended rules post the date of seizure and contemplation of an application for compounding under the amended rules, which was not there in the unamended rules. This court is concerned with the consequences of non- registration of the complaint within specified period with the court of Sessions as contemplated in clause (ii) of Sub-rule 2(b) of Rule 12 and the ratio spelt out in this regard in Zaverbhai(supra) can be applied to the facts of the case despite the aforesaid amendment. In absence of the complaint within specified period the vehicle was ordered to be released in the case of Zaverbhai Nanubhai Devani(supra). The observations made in the said case can be reproduced for beneficial reference:

"10. From the aforesaid provisions coupled with the facts of the present case, it is clear that after the seizure of the truck,

C/SCA/14540/2020 ORDER DATED: 29/07/2021

notice was issued. However, thereafter the respondent authority has not followed the provisions contained in Rule 12(2)(b)(ii) of the Rules of 2017. As per application for 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 the 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 to the respondent authorities to release the truck in question forthwith. "

This court is conscious of the fact that the case of Zaverbhai Nanubhai Devani(supra) was decided finally whereas in the present case matter has been admitted; however in the opinion of this court serious prejudice will be caused to the petitioner if the vehicle is allowed to be detained by the authority in a case where prima facie the seizure would not be sustainable, leaving no room for confiscation proceeding in absence of complaint; which is sine qua non for initiation of confiscation proceeding with the court of Sessions as contemplated in sub-rule (3) of Rule 12 of above rules. In absence of the complaint, no authority is vested with the respondent to retain the possession of the seized vehicle and if such possession is allowed to be retained with the respondent, petitioner would be deprived of the vehicle even in absence of his prosecution if the interim order of release of the vehicle is not made during the pendency of this petition. Therefore in the opinion of this court, this is a fit case where

C/SCA/14540/2020 ORDER DATED: 29/07/2021

mandatory order requiring the respondent to unconditionally release the vehicle should be made. Accordingly the respondent is directed to release the vehicle in question in favour of the petitioner within three days from the date of receipt of writ of the order of this court. "

7. Having regard to the view taken by this Court relying upon the judgment of the Division Bench interpreting the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 and since nothing contrary thereto has been shown to this Court and since ratio laid down in the earlier judgment being binding on this Court, therefore, in the opinion of this Court, said order as had been passed in the said case, is required to be passed herein, the seizure order dated 08.09.2020 is quashed and set aside. The respondent Authority is directed to release the vehicle in question in favour of the present petitioner after due verification within 3 days from the receipt of writ of the order of this Court.

In view of the above direction, the petition stands allowed. Direct service is permitted.

(NIKHIL S. KARIEL,J) Y.N. VYAS