Arjunbhai Natubhai Ode vs State Of Gujarat
2021 Latest Caselaw 14649 Guj

     C/SCA/1586/2021                               ORDER DATED: 21/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1586 of 2021

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                       ARJUNBHAI NATUBHAI ODE
                                Versus
                          STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No.
MR. KRUTIK PARIKH, GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No.
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3
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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. 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 for quashing and setting aside the action of the respondent No. 3 of seizing the vehicle i.e. Truck No. GJ-01-CU-2149 (hereinafter referred to as "the vehicle"). Further direction has been prayed for setting aside the notice dated 21.08.2020 and releasing the vehicle of the petitioner.

4. The brief facts are that, the petitioner is the owner of the vehicle and on 15.03.2020, upon inspection the vehicle was seized by PSI Desar Taluka, Police Station, followed by issuance of notice

C/SCA/1586/2021 ORDER DATED: 21/09/2021

from the office of the Geologist, Geology and Mining Department on 21.08.2020. The petitioner being aggrieved had filed a representation dated 31.08.2020 to the office of the Geologist.

5. Learned Advocate Ms. Kruti M. Shah appearing for the petitioner has submitted that after the issuance of the notice dated 21.08.2020 neither seizure memo has been issued nor any order has been passed. It is submitted that the vehicle was seized PSI Desar Taluka, Police Station, however, no procedure has been followed by the concerned authority for seizure of the vehicle. It is submitted that without there being any seizure memo, the vehicle has been detained by the Geologist.

6. It is submitted that neither any FIR nor any complaint has been registered as required under clause (ii) of sub-clause (b) of sub-Rule (2) of 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.

7. 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.

8. Learned Assistant Government Pleader Ms. Surbhi Bhati could not dispute the fact that no complaint has been filed as per the provisions of Rule 12 of the Rules of 2017 after the specified period.

9. Heard the learned advocates appearing for the respective

C/SCA/1586/2021 ORDER DATED: 21/09/2021

parties.

10. Pertinently, as is evident from the record, the petitioner has preferred the captioned petition challenging the notice dated 21.08.2021. It is clear from the record that the respondent authority has not followed the procedure for confiscating the vehicle as provided under Rule 12 of the Rule of 2017. It is clear that neither any seizure memo has been issued nor any order has been passed by the authority for determining the penalty or any other charges which the petitioner was required to pay. 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 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/1586/2021 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 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.

12. Under the circumstances, this Court, is of the opinion that in absence of any complaint filed on expiry of the specified period by the respondent authority, the principle laid down by this Court in

C/SCA/1586/2021 ORDER DATED: 21/09/2021

aforesaid case, applies on all fours to the facts of the present case. Therefore, the petition deserves to be allowed and is partly allowed.

13. 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 of the petitioner, bearing Truck No. GJ-01-CU-2149. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner. Moreover, this order shall not preclude the authorised officer to initiate any action against the petitioner, if permissible and strictly in accordance with law.

14. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) SINDHU NAIR