Shree Ambica Transport Through ... vs State Of Gujarat
2021 Latest Caselaw 14650 Guj

     C/SCA/9050/2021                                 ORDER DATED: 21/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9050 of 2021

==========================================================
SHREE AMBICA TRANSPORT THROUGH VASUDEVBHAI DALSUKHBHAI
                        PANCHAL
                         Versus
                   STATE OF GUJARAT
==========================================================
Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1,2,3
==========================================================

 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 notice dated 25.03.2021 issued by the respondent. Further direction has been prayed for release of the vehicle i.e. TATA Hitachi Machine Model Ex-110, Serial No. 1101-3768 (hereinafter referred to as "the vehicle"), of the ownership of the petitioner.

4. The brief facts are that, the petitioner is the owner of the vehicle. According to the petitioner, on 25.03.2021, the vehicle of the petitioner was seized by the respondent No. 3 on the ground of inconsistency in lease area as per GPS coordination. It is submitted that the said vehicle was given on lease to one Dalsukhbhai Oad

C/SCA/9050/2021 ORDER DATED: 21/09/2021

which was later on transferred to one Harishbhai Chimanbhai Oad. On 25.03.2021, notice was issued to Harishbhai Oad stating inter alia that on 25.02.2021 an inspection was carried out on the lease situated near Survey No. 156, 157 village Gaidaya, Taluka Bodeli at Orsang River. It was found that within the lease area two excavator machines were found to be operational and one truck and Tata Hitachi machine were stopped. According to the petitioner, the seizure memo was issued on 25.03.2021, however neither any complaint has been filed nor any order has been passed. Additionally, show cause notice dated 25.03.2020 was issued in the name of Harishbhai Chimanbhai Oad and not to the petitioner. It is therefore submitted that the notice itself is illegal and bad and deserves to be quashed and set aside.

5. 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. It is submitted that this Court, has clearly held that where the offences are not compounded, it would be incumbent upon the authorised officer to approach the Court of Sessions with a written complaint. In absence of there being any complaint filed, the authority concerned, will have no power to seize or detain the vehicle.

6. Mr. Krutik Parikh, learned Assistant Government Pleader could not dispute the fact that neither FIR is filed nor any order has been passed after the issuance of the notice dated 25.03.2021. Learned Assistant Government Pleader could not dispute the fact that the petitioner has not been issued any notice for initiating the proceedings under the provisions of Rule 12 of the Rules of 2017.

7. Heard the learned advocates for the respective parties.

C/SCA/9050/2021 ORDER DATED: 21/09/2021

8. Pertinently, the petitioner is the owner of the vehicle but on 25.03.2021 the notice was issued to one Harishbhai Chimanbhai Oad, the lease owner. The vehicle of the petitioner was seized however, no notice has been issued to him. In absence of issuance of any notice to the petitioner, so also the fact that FIR has not been registered under the provisions of Rule 12 of the Rules of 2017, this Court is of the opinion that 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

C/SCA/9050/2021 ORDER DATED: 21/09/2021

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.

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.

C/SCA/9050/2021 ORDER DATED: 21/09/2021

11. 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, TATA Hitachi Machine Model Ex-110, Serial No. 1101-3768. 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 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. The respondent Authorities are granted liberty to take appropriate action with regard to the show cause notice dated 25.03.2021 and it will be open to the respondent authority to issue Notice to the petitioner and pass necessary order in accordance with law.

12. 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