Babubhai Shobhanbhai Patel vs State Of Gujarat
2021 Latest Caselaw 16123 Guj

      C/SCA/10371/2021                                          ORDER DATED: 13/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10371 of 2021
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                         BABUBHAI SHOBHANBHAI PATEL
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MS URMILA DESAI AGP (99) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                                    Date : 13/10/2021

                                     ORAL ORDER

1. With the consent of the learned advocates for the respective parties, the petition is taken for final disposal.

2. Issue Rule, returnable forthwith. Ms.Urmila Desai, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondents.

3. By this petition, the petitioner, inter alia, has prayed for direction for releasing the vehicle bearing tractor No.GJ-21-T-8216 of the ownership of the petitioner, which was seized by the respondents.

4. The brief facts of the case are that on 07.05.2021, inspection was carried out by the team of respondent No.2 at Vansda Khadakla road, Navsari when, the vehicle was found alongwith the other tractors and JCBs mining the sand. According to the petitioner, the driver of the vehicle could not produce the mining permit and accordingly, all the vehicles were seized by the respondent. On 01.06.2021, a show-cause notice was issued, requiring the petitioner to pay the penalty of Rs.13,58,175/- for 7761 MT of sand

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mining. The petitioner has made several requests for release of the vehicle; however, the request of the petitioner was not responded to. On 07.07.2021, the petitioner made a representation before the office of the respondent No.2, pointing out that within 45 days, as per sub-clause (2)(b)(ii) of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as the "Rules of 2017"), if the application for compounding of offence is not received, the vehicle so seized, shall be produced before the competent Court. Despite the representation of the petitioner, the respondent No.2 did not release the vehicle. Hence, the present petition.

5. Mr.Jay N. Shah, learned advocate for the petitioner submitted that the action of the respondent seizing the vehicle is illegal and without jurisdiction; resulting into injustice to the petitioner. It is further submitted that the respondent has not produced the vehicle before the concerned Court upon expiry of 45 days, as provided in sub-clause (ii) of Clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017. In absence of any complaint filed after the specified period, the action of the respondent authority, seizing the vehicle, is against the well settled principles laid down in the judgment in the case of Nathubhai Jinabhai Gamara vs. State of Gujarat passed in Special Civil Application No.9203 of 2020. Under the circumstances, it is urged that the petition be allowed and the vehicle be released forthwith.

6. Ms.Urmila Desai, learned Assistant Government Pleader has submitted that after issuance of the show-cause notice dated 01.06.2021, the order dated 17.07.2021 has been passed and therefore, the petitioner be relegated to avail of the alternative remedy, as provided under the provisions of the Rules of 2017. So far as the aspect of registration of the First Information Report

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and/or complaint is concerned, the learned Assistant Government Pleader, upon instructions, fairly conceded that no First Information Report has been registered after the specified period.

7. Heard the learned advocates for the respective parties.

8. Pertinently, on 07.05.2021, the inspection was carried out and the vehicle of the petitioner was detained alongwith the other vehicles, followed by issuance of the show-cause notice dated 01.06.2021. Upon expiry of the period of 45 days, the petitioner had made a representation dated 07.07.2021, inter alia, pointing out that though the specified time limit of 45 days have expired, no First Information Report has been filed and therefore, the respondent has no authority to continue with the detention of the vehicle. The request of the petitioner was not acceded to. The authority concerned thereafter, proceeded to pass the order dated 17.07.2021. However, the fact remains that after the specified period, as envisaged under sub-clause (ii) of Clause (b) of sub-rule (2) of Rule 12 of the Rules 2017, no First Information Report has been registered and therefore, the case of the petitioner stands squarely covered by the judgment in the case of Nathubhai Jinabhai Gamara (supra).

9. 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 remain as indicated in sub-rule 7 of Rule 12. Thus where the offence is not

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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

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property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee.

10. This Court, therefore, 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, applies on all fours to the facts of the present case. Therefore, the petition deserves to be allowed and is accordingly partly allowed.

11. In view of the above, the action of the respondent authority of seizing the vehicle of the petitioner is quashed and set aside and is forthwith directed to release the vehicle bearing tractor No.GJ-21-T- 8216. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner; however, the petitioner shall 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. Moreover, this order shall not preclude the authorised officer to initiate any action against the petitioner, if permissible and strictly in accordance with law.

12. Rule is made absolute to the aforesaid extent. No order as to cost.

(SANGEETA K. VISHEN,J) Hitesh