Sonaji Gandaji Makwana vs State Of Gujarat
2021 Latest Caselaw 14637 Guj

    C/SCA/8265/2021                              ORDER DATED: 21/09/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 8265 of 2021
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                       SONAJI GANDAJI MAKWANA
                                Versus
                      STATE OF GUJARAT & 3 other(s)
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Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                            Date : 21/09/2021
                             ORAL ORDER

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

2. Issue Rule, returnable forthwith. Ms. Surbhi Bhati, 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 for releasing the vehicle being Tractor of Mahindra company, Model No. B275DI TU MKM bearing chasis no. MBNAAAEALLRE00941 and Serial No. RLE2EBN0700 (hereinafter referred to as "the vehicle") of the ownership of the petitioner.

4. According to the petitioner, he is the owner of the vehicle. On 17.12.2020, the respondent No. 3 had detained the said vehicle, which according to the petitioner was used to level the river bed at Sabarmati and recorded the statement of the driver. Seizure memo was issued on 17.12.2020. Thereafter a proposal was made to the respondent No. 4 to take legal action against the petitioner and the respondent no. 2 accordingly had issued show cause notice requiring him to show cause as to why penalty of Rs. 2,75,132/-

     C/SCA/8265/2021                               ORDER DATED: 21/09/2021




should not be imposed.

5. It is submitted that the petitioner had made an application on 19.02.2020 requesting the authority to release the vehicle, however of no avail. Learned Advocate appearing for the petitioner submitted that the vehicle of the petitioner was detained on 17.12.2020 followed by the issuance of show cause notice dated 03.02.2021. However, neither FIR has been filed nor any order has been passed as per the provisions under Rule 12 of the Rules of 2017. It is submitted that 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. In absence of there being any complaint filed, the authority concerned, will have no power to seize or detain the vehicle. 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 v. State of Gujarat and deserves to be quashed and set aside.

6. Ms. Surbhi Bhati, learned Assistant Government Pleader has fairly submitted that the show cause notice was issued on 03.02.2021, however, no order has been passed. Learned Assistant Government Pleader could not however dispute the fact that FIR has not been registered after the specified period.

7. Heard learned Advocates appearing for the respective parties.

8. Pertinently the vehicle of the petitioner was detained on 17.12.2020 followed by issuance of show cause notice dated 03.02.2021. Undisputedly, the respondent has neither filed the FIR nor has passed any order as provided under the provisions of Rule 12 of the Rules of 2017. There is no denial to the fact that the

C/SCA/8265/2021 ORDER DATED: 21/09/2021

complaint has not been filed after the specified period and therefore, 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.

9. 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 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

C/SCA/8265/2021 ORDER DATED: 21/09/2021

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.

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 the aforesaid case 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 present petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner being Tractor of Mahindra company, Model No. B275DI TU MKM bearing chasis no. MBNAAAEALLRE00941 and Serial No. RLE2EBN0700. However, this order shall not preclude the authorities to proceed ahead with the adjudication of the show cause notice by passing order strictly in accordance with law. The authority concerned shall take the decision without being influenced by the observations made in the present order.

11. With the above observations and direction, petition succeeds and is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

(SANGEETA K. VISHEN,J) SINDHU NAIR