Arjun Babulal Chauhan vs State Of Gujarat
2021 Latest Caselaw 13685 Guj

     C/SCA/15036/2019                              ORDER DATED: 09/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15036 of 2019
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                        ARJUN BABULAL CHAUHAN
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR A A ZABUAWALA(6823) for the Petitioner(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                            Date : 09/09/2021
                             ORAL ORDER

1. With the consent of the learned advocates for the respective parties, the petition 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.

3. By this petition, the petitioner has prayed for direction to the respondent to release the vehicle of the petitioner being Truck bearing Registration No.MP-09-HG-9290 (hereinafter referred to as "the vehicle").

4. The facts of the case are to the effect that the vehicle, is of the ownership of the petitioner. While the vehicle was returning to Dhar and while passing through Ferkuva check post, the vehicle of the petitioner was stopped by the check post police within the jurisdiction of Rangpur Police Station. According to the petitioner, the petitioner was served with a memo and was informed to pay the fine before the Court of learned Judicial Magistrate First Class, Chhotaudepur. The petitioner appeared alongwith the memo signed by the Police Sub Inspector of Rangpur Police Station. The case was

C/SCA/15036/2019 ORDER DATED: 09/09/2021

registered being CC No.429 of 2019. The petitioner also paid the fine of Rs.2,200/- on 09.04.2019; however, the vehicle of the petitioner was not released by the concerned police station. During the proceedings it came to the knowledge of the petitioner that necessary instructions were issued to the Office of Geology and Mining Department to initiate proceedings under the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the "Act of 1957"). It is the case of the petitioner that no intimation or memo was issued to the petitioner about the seizure of the vehicle much less the seizure memo, therefore, the petitioner filed an application dated 17.06.2019 requesting for the copy of the seizure memo so that the petitioner can take appropriate steps for release of the vehicle; however, no such documents were supplied by the officials of the department.

4.1 The respondent No.3 - Assistant Geologist, Geology and Mining Department, Chhotaudepur has also filed the reply, inter alia, stating that the vehicle of the petitioner was detained by the police officials who, in turn, had handed over the possession of the vehicle to respondent No.3 on 25.04.2019. The petitioner, was also required to collect the seizure memo; however, the petitioner did not remain present which, led to passing of the order dated 19.11.2019, requiring the petitioner to pay an amount of Rs.5,000/- per metric tonne for quantity of ordinary sand, which was in excess of the permissible limit.

5. The petitioner in rejoinder, has denied of any issuance of intimation by the respondent No.3. The petitioner, has placed heavy reliance to the provisions of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transporation and Storage) Rules, 2017 (hereinafter referred to as the "Rules of 2017") as well as the judgment of the Division Bench passed in Letters Patent Appeal

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No.397 of 2018. Being aggrieved, the petitioner has filed the the captioned writ petition with the aforementioned prayers.

6. Mr.A. A. Zabuawala, learned advocate appearing for the petitioner has vehemently submitted that some proceedings were initiated at the level of police officials before the Court of competent jurisdiction and thereafter, the vehicle appears to have been handed over to the Office of the Geologist, Geology and Mining Department. It is submitted that despite the repeated request of the petitioner to the respondent No.3, the respondent No.3 neither supplied the copy of the seizure memo nor the order passed. The petitioner, was compelled to make an application praying for the documents and release of the vehicle; however, the respondent No.3 did not give any heed to the request of the petitioner. It is submitted that it is clear that the vehicle was detained and/or handed over to the respondent No.3 on 25.04.2019; however, till date, no seizure memo has been issued much less registration of the First Information Report. It is also submitted that in absence of any complaint after expiry of the specified period, the grievance of the petitioner, stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020. Reliance is also placed on the judgment of the Division Bench in the case of Zaverbhai Nanubhai Devani v. State of Gujarat passed in Letters Patent Appeal No.397 of 2018. It is submitted that in absence of there being any complaint filed, the authority concerned, will have no power to seize or detain the vehicle, and therefore, 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 v. State of Gujarat. Such action deserves to be quashed and set aside.

C/SCA/15036/2019 ORDER DATED: 09/09/2021

7. Mr. Krutik Parikh, learned Assistant Government Pleader has fairly submitted that the order dated 19.11.2019 has been passed, however, FIR has not been filed upon expiry of the specified period. It is submitted that so far as the release of the vehicle is concerned, appropriate order be passed but if the petitioner has any grievance against the order dated 19.11.2019, an alternative remedy is available to him and he be relegated to file an appeal before the appropriate authority.

8. Heard learned Advocates appearing for the respective parties and perused the documents available on the record.

9. Facts are to the effect that after the proceedings by the police officials and learned Judicial Magistrate First Class, Chhotaudepur, vide communication dated 25.04.2019, the vehicle of the petitioenr was handed over to the respondent No.3, thereafter, the order dated 19.11.2019 has been passed requiring the petitioner to make the payment of the penalty. The fact remains that the FIR has not been filed upon expiry of the specified period as provided under Rule 12 of the Rules of 2017. In absence of any complaint filed after the expiry of the specified period, the case of the petitioner stands squarely covered by the judgment in the case of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020. The learned Assistant Government Pleader has fairly conceded that FIR has not been filed.

10. In the case of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020, 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

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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."

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.

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11. In view of the aforementioned discussion, 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 the aforesaid judgment applies on all fours to the facts of the present case. Therefore, the present petition deserves to be allowed and is partly allowed. Needless to mention that the captioned writ petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner being Truck bearing Registration No.MP-09-HG-9290. However, it will be open to the petitioner to challenge the order dated 19.11.2019 before the Appellate Authority and the Appellate Authority, shall decide the same strictly in accordance with law.

12. With the above observations and directions, petition succeeds. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

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