Harsukhbhai Karshanbhai ... vs State Of Gujarat
2021 Latest Caselaw 17734 Guj

      C/SCA/16224/2021                                  ORDER DATED: 25/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16224 of 2021

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                   HARSUKHBHAI KARSHANBHAI KARGATIYA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2,3
MR KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER, for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                      Date : 25/11/2021
                       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 - State.

3. By this petition, the petitioner has, inter alia, prayed for direction for

releasing the three cutter machines (hereinafter referred to as 'the

machines') and one generator of the ownership of the petitioner which

were seized by the respondents. The petitioner also prays for quashing

and setting aside the notice dated 29.12.2020 and the order dated

19.07.2021.

4. The facts of the case are that an inspection was carried out on

23.12.2020 by the team of the office of the Geologist, Geology & Mining

Department, Porbandar when, the machines and one generator of the

ownership of the petitioner were seized on the alleged ground of being

used in the mining area. As the person concerned could not produce the

C/SCA/16224/2021 ORDER DATED: 25/11/2021

permit, the machines and one generator were seized and kept in his

custody, followed by show cause notice dated 29.12.2020, requiring the

petitioner to pay the penalty of Rs.17,38,315/- for 3248 metric tons of

limestone mine. After the issuance of the notice, on 19.7.2021, an order

came to be passed, confirming the penalty.

5. The petitioner, thereafter, made several requests to release the

machines and one generator, however, the request of the petitioner had

fallen on deaf ears. The petitioner therefore, made representation dated

7.10.2021 with a request to the respondent no.2 to release the machines

and one generator as, nine months period have passed. It was also

brought to the notice of the authority concerned that if the application for

compounding of offence is not received, the machines and one generator

so seized, shall be produced before the Court of competent jurisdiction,

upon expiry of 45 days.

6. Owing to no response by the respondent no.2, the petitioner has

filed the captioned writ petition, inter alia, seeking direction to the

respondent no.2 to release the machines and one generator.

7. Mr. Jay N. Shah, learned advocate appearing for the petitioner

submitted that the notice was issued in the month of December, 2020,

followed by the order passed in the month of July, 2021; however, no

seizure memo was issued for seizing the machines and one generator. It is

therefore, submitted that the action of the respondents is bad of retaining

the machines and one generator for, no FIR has been filed beyond the

specified period of 45 days.

8. It is also the case of the petitioner that neither any FIR has been

filed nor any order has been passed by the respondent authority. That the

grievance of the petitioner, 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. In absence of there being any

C/SCA/16224/2021 ORDER DATED: 25/11/2021

complaint filed, the authority concerned, will have no power to seize or

detain the machines and one generator. It is submitted that the action on

the part of the respondent authority, is against the provisions of Rule 12 of

the Rules of 2017 so also the principle laid down by this Court in the case

of Nathubhai Jinabhai Gamara (supra) and deserves to be quashed and set

aside.

9. Mr. Krutik Parikh, learned Assistant Government Pleader appearing

for the respondent no.1, was required to take the instructions. Upon

instructions from Mr. Vinay Dodiya, Mines Supervisor, Porbandar, it is

stated that no FIR has been filed. It is also not disputed that the issue

would stand covered by the judgment of this Court in the case of

Nathubhai Jinabhai Gamara (supra).

10. Heard learned Advocates appearing for the respective parties.

11. Pertinently, the machines and one generator of the petitioner was

detained on 23.12.2020 followed by the issuance of the show cause notice

dated 29.12.2020 further followed by passing of the order dated

19.07.2021. However, undisputedly, the FIR as envisaged under Rule

12(2)(b)(ii) has not been filed before the concerned police station and

therefore, this Court is of the opinion that the case of the petitioner stands

squarely covered by the judgment in the case of Nathubhai Jinabhai

Gamara (supra).

12. In the case of Nathubhai Jinabhai Gamara (supra), this Court, in

paragraphs 7, 10 and 11 has held 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

C/SCA/16224/2021 ORDER DATED: 25/11/2021

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 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.

13. Under the circumstances, this Court, is of the opinion that in absence of any complaint filed on expiry of the specified period by the respondent authority, the principle laid down by this Court in aforesaid case, applies on all fours to the facts of the present case. Therefore, the petition deserves to be allowed and is partly allowed.

C/SCA/16224/2021 ORDER DATED: 25/11/2021

14. In view of the above, the action of the respondent authority of seizing the machines and one generator of the petitioner is quashed and set aside and is forthwith directed to release the machines and one generator. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the machines and one generator of the petitioner; however, so far as the order dated 19.07.2021 is concerned, the petitioner shall be at liberty to pursue the remedy before the higher forum. The Appellate Authority shall decide the appeal/application without being influenced by the observations made in the present order and in accordance with law.

15. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI