Pratik Dilipbhai Chandra vs State Of Gujarat
2021 Latest Caselaw 15909 Guj

     C/SCA/12473/2021                              ORDER DATED: 08/10/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12473 of 2021
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                        PRATIK DILIPBHAI CHANDRA
                                  Versus
                           STATE OF GUJARAT
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Appearance:
MS.NAMRATA J SHAH(6534) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR.KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 08/10/2021
                   ORAL ORDER

Draft amendment is tendered on record. Amendment is allowed in terms of draft. The same shall be carried out forthwith.

1. With the consent of the learned advocates 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 rule on behalf of the respondent.

3. By this petition, the petitioner has prayed for release of vehicle i.e. Truck bearing registration No.GJ-10-X-9403, which, has been seized by the respondent.

4. The facts of the case are that, on 22.07.2021, the vehicle of the petitioner was detained on the ground of it having overloaded with 8 tons of minerals followed by the seizure. According to the petitioner, no notice in form 'J' has been issued by the authorities and therefore, the action of the authority is illegal. Being aggrieved, by the detention, the petitioner has approached this Court with the aforesaid prayer.

5. Ms. Barkha R. Maheshwari, learned advocate appearing for

C/SCA/12473/2021 ORDER DATED: 08/10/2021

Ms. Namrata J. Shah, learned advocate for the petitioner, at the outset, on instructions from the petitioner has stated that the petitioner is ready and willing to deposit an amount of Rs.47,300/-.

6. Mr. Krutik Parikh, learned Assistant Government Pleader upon instructions from Mr. A.Y. Talat, Assistant Geologist, Jamnagar, has stated that if the petitioner is ready to deposit the penalty amount of Rs.47,300/- & Rs.50,000/- towards the compounding fee, totaling to the tune of Rs.98,365/- the vehicle of the petitioner would be released. It is also submitted that since the show cause notice is yet to be adjudicated, the petitioner, be relegated to the authority. Mr. Krutik Parikh, learned Assistant Government Pleader has denied that, no seizure memo has been issued, in fact, seizure memo has been issued on 22.07.2021.

7. Heard the learned advocates for the respective parties and perused the material available on the record.

8. The vehicle of the petitioner was detained on 22.07.2021 followed by issuance of the notice dated 09.08.2021, requiring the petitioner to pay an amount of Rs.98,365/- (Rs.47,300/- towards penalty + Rs.50,000/- towards bank guarantee). Ms. Barkha R. Maheshwari, learned advocate for the petitioner, upon instructions has volunteered that the petitioner is ready and willing to deposit the amount of Rs.47,300/- and therefore, the ends of justice would meet if the respondent is directed to release the vehicle forthwith.

9. So far as the aspect of furnishing of the bank guarantee is concerned, reliance is placed by the learned advocate for the petitioner on the judgment in the case of Nathubhai Gamara v. State of Gujarat passed in Special Civil Application No.9203 of 2020 wherein, this Court, had held and observed that if the complaint and/or an FIR is not filed upon expiry of the specified period, the concerned authority, has no authority to detain the vehicle. Paragraph 7, 10 & 11 of the judgment are relied upon, wherein, it

C/SCA/12473/2021 ORDER DATED: 08/10/2021

has been observed and held as under:

"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."

C/SCA/12473/2021 ORDER DATED: 08/10/2021

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.

10. Under the circumstances, this Court, is of the opinion that in absence of any complaint filed upon 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 accordingly partly allowed.

11. Under the circumstances, and in view of the statement made by the learned advocate of the petitioner, the respondent is directed to release the vehicle of the petitioner i.e. Truck bearing registration No.GJ-10-X-9403 forthwith, on condition that the petitioner deposits Rs.47,300/- towards the penalty. It is clarified that the captioned writ petition has been entertained only for the limited purpose of releasing the vehicle and this order shall not preclude the officers concerned from proceeding ahead with the adjudication of the show cause notice dated 09.08.2021. Needless to say that the petitioner will extend all the cooperation and after hearing the petitioner, the Office of the Geologist, Geology and Mining Department, shall take a decision and such decision shall be communicated to the petitioner within a period of 2 weeks, thereafter. With the aforesaid directions, the petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN, J) RAVI P. PATEL