Parmar Bhayabhai Bhojabhai vs State Of Gujarat
2021 Latest Caselaw 14645 Guj

     C/SCA/15701/2020                             ORDER DATED: 21/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15701 of 2020

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                        PARMAR BHAYABHAI BHOJABHAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MS.NAMRATA J SHAH(6534) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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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 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 way of the present petition, the petitioner has sought direction against the respondents for release of the vehicle bearing Truck No. GJ-12-U-9712 (hereinafter referred to as "the vehicle") of the ownership of the petitioner, which has been seized and detained by the respondent No. 2. The petitioner had made application before respondent on 25.11.2020 to release his vehicle, which is still pending.

4. It is the case of the petitioner that the petitioner is the owner of the vehicle, and on 23.09.2020 the respondent No. 2, had seized and detained the vehicle of the petitioner followed by issuance of the seizure memo. Thereafter on 24.09.2020, show cause notice

C/SCA/15701/2020 ORDER DATED: 21/09/2021

was issued to the petitioner requiring the petitioner to pay the amount of Rs. 1,20,034/-. After the seizure of the vehicle by the respondent No. 2, the petitioner approached the respondent No. 2, requesting for release of vehicle, but of no avail. Therefore, the petitioner made a representation on 25.11.2020 for release of the vehicle, however, till date no order has been passed.

5. Learned Advocate, Ms. Namrata Shah appearing for the petitioner, has submitted that clearly the respondent has not followed the procedure as provided under Rule 12 of the Gujarat Mineral (Prevention of illegal Mining and Transportation and Storage) Rules, 2017 (hereinafter referred to as "the Rules, 2017") including non-filing of the FIR after the specified period.

6. Reliance has been placed on various decisions of this Court and more particularly, the order dated 26.08.2020 passed in Special Civil Application No. 9203 of 2020 wherein this Court has elaborately discussed with regard to the powers available to the respondent authorities under the provisions of the Rules, 2017. It is submitted that this Hon'ble Court while interpreting the Rules in question, has inter alia held that 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. It has been further held that imposition of penalties and other punishments under Rule 21 is thus the domain of the court and not the competent authority. It is submitted that in absence of any registration of FIR by the respondent authority, , after the specified period, the case of the petitioner stands fully covered by the principle laid down by this Court.

7. It is thus urged that the petition deserves to be allowed directing the respondent to release the vehicle and the respondent

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authority be directed to pass the order in accordance with law and after hearing the petitioners.

8. Mr. Krutik Parikh, learned Assistant Government Pleader could not dispute the fact that though the respondent authority is under the obligation to file a complaint as provided under Rule 12(2)(b)(ii), no complaint has been filed.

9. Heard the learned advocates appearing for the respective parties.

10. Pertinently in the present case, the seizure memo was issued on 23.09.2020 followed by show cause notice on 24.09.2020 however, till date no order has been passed. Undisputedly, the complaint as envisaged under Rule 12(2)(b)(ii) is also not filed. There is no denial to the fact that the 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.

11. 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

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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

C/SCA/15701/2020 ORDER DATED: 21/09/2021

person from whom it was seized, without insisting for the bank guarantee.

12. 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. 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 of the petitioner, bearing Registration No. GJ-12-U-9712. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner. However, this order shall nor preclude the authorities to proceed ahead with the adjudication of the show cause notice dated 24.09.2020, by passing order strictly in accordance with law.

13. In view of the above, the 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