Darshan Dayabhai Kansagara vs State Of Gujarat
2021 Latest Caselaw 14638 Guj

     C/SCA/6637/2021                              ORDER DATED: 21/09/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6637 of 2021
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                       DARSHAN DAYABHAI KANSAGARA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR P B KHANDHERIA(5228) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR KRUTIK PARIKH AGP (99) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                             Date : 21/09/2021

                              ORAL ORDER

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

2. Issue Rule, returnable forthwith. The opponents waives service of Rule.

3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 07.11.2020 passed by the respondent No.3 and the order dated 12.02.2021 passed by the respondent No.2 in Appeal No.125/2020. It has been further prayed for release of the vehicle i.e. dumper bearing registration No.GJ-03-AX-9054.

4. According to the petitioner, the vehicle of the petitioner was driven by his driver and on 08.10.2020, it has been seized by the respondent No.3. It is the case of the petitioner that no seizure memo has been served, either upon the petitioner or upon the driver of the said vehicle. It had come to the knowledge of the petitioner that on 08.10.2020 itself, the respondent No.3 has forwarded the Yadi of the said vehicle to Dhajala police station

C/SCA/6637/2021 ORDER DATED: 21/09/2021

which was sent to Sayla police station thereafter, as provided under Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2017 (hereinafter referred to as the "Rules of 2017"). The main grievance raised by the petitioner is that the respondents are required to follow the procedure as provided under the Rules of 2017; however, they have not followed the Rules stricto-senso. It is submitted that without observing the provisions of the Rules of 2017, the respondent No.3 has passed the order dated 07.11.2020, requiring the petitioner to pay the amount of Rs.2,02,768/-. It is submitted that the petitioner, in the interregnum, has approached this Court but, the same was withdrawn with liberty to file appeal before the appellate authority and the petitioner has preferred the appeal before the appellate authority, who, vide order dated 12.02.2021, has rejected the same.

4.1. Mr.P.Y. Jasani, learned advocate has placed heavy reliance on the order passed by this Court in Special Civil Application No.9203 of 2020 rendered in the case of Nathubhai Jinabhai Gamara vs. State of Gujarat.

5. At the outset, it is submitted that as per Clause (ii) of Clause

(b) of Rule 12 of the Rules 2017, the competent authority, upon expiry of specified period, was obliged to file the complaint before the Court of Sessions. In the present case, no such complaint has been filed. It is therefore, submitted that the issue raised in the captioned writ petition stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara (supra) passed in Special Civil Application No.9203 of 2020. It is therefore, urged that the vehicle of the petitioner, which has been seized, shall be released; however, the liberty be kept open to the petitioner to pursue his remedy before the revisional authority under the provisions of Rule 18(2) of the Rules of 2017.

      C/SCA/6637/2021                                    ORDER DATED: 21/09/2021




6.    Mr.Krutik        Parikh,   learned    Assistant   Government          Pleader

submitted that against the order dated 12.02.2021 passed by the Additional Director, Appeal & Flying Squad, Gandhinagar, remedy by way of revision is available to the petitioner and the petitioner be relegated to avail of the said remedy. As reported by the learned Assistant Government Pleader, upon instructions, upon expiry of the specified period, no complaint has been filed and therefore, the case of the petitioner stands squarely covered by the judgment in the case of Nathubhai Jinabhai Gamara (supra).

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

8. Pertinently, it is clear and not disputed by the learned Assistant Government Pleader that no FIR has been registered upon expiry of specified period, as contemplated under sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017 and therefore, the judgment in the case of Nathubhai Jinabhai Gamara (supra) applies on all fours to the facts of the present case. Paras 7, 10 and 11 of the said judgment read 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.

C/SCA/6637/2021 ORDER DATED: 21/09/2021

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 upon 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.

9. In view of the aforementioned discussion, 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 i.e. dumper bearing registration No.GJ-03-AX-9054. Needless to mention that the present petition has been entertained only for

C/SCA/6637/2021 ORDER DATED: 21/09/2021

the limited purpose of releasing the vehicle i.e. dumper bearing registration No.GJ-03-AX-9054 of the petitioner; however, as agreed, it would be open to the petitioner to pursue his remedy before the reivisional authority, as provided under the Rules of 2017.

10. Accordingly, present writ petition succeeds in part. Rule is made absolute to the aforesaid extent. No order as to cost.

(SANGEETA K. VISHEN,J) Hitesh