Shantilal Chaturbhai Patel vs State Of Gujarat
2021 Latest Caselaw 14652 Guj

     C/SCA/544/2021                             ORDER DATED: 21/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 544 of 2021
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                      SHANTILAL CHATURBHAI PATEL
                                 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. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3,4,5
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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 quashing and setting aside the action of the respondent No. 5 of seizing the vehicle i.e. JCB JS 140 Sr. No. 84132244 (hereinafter referred to as "the vehicle"). Further direction has been prayed for setting aside the order dated 27.10.2020 and releasing the vehicle of the petitioner.

4. The brief facts are that, on 20.12.2019, the vehicle of the petitioner was seized by the respondent No. 5 and seizure memo was issued followed by issuance of notice dated 22.01.2020 to the petitioner requiring the petitioner to show cause as to why the amount of Rs. 4,18,723/- as penalty and other charges should not

C/SCA/544/2021 ORDER DATED: 21/09/2021

be imposed. The show cause notice culminated into passing of the order dated 19.06.2020. The petitioner straightaway challenged the order dated 19.06.2020 before this Court by way of a writ petition being Special Civil Application No. 7775 of 2020, whereby this Court while not entertaining the petition directed the petitioner to avail the remedy available to him. The appellate authority was directed to consider as to whether reasonable opportunity of hearing was granted to the petitioner and also consider the request of the petitioner of offering an amount of bank guarantee for the release of the vehicle. The appellate authority passed an order dated 27.10.2020 quashing and setting aside the order dated 19.06.2020 and remanding the matter back to the respondent authority to hear the petitioner and pass necessary orders. As per the order, the appellate authority has also directed the petitioner to furnish the bank guarantee of the written down value of the vehicle for a period of one year. Being aggrieved, the petitioner has filed the captioned writ petition.

5. 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. 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. 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

C/SCA/544/2021 ORDER DATED: 21/09/2021

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.

7. Learned Assistant Government Pleader Ms. Surbhi Bhati could not dispute the fact that though the order was passed on 19.06.2020 which was challenged in Appeal before the appellate authority, till date, no complaint has been filed by the respondent authority.

8. Heard the learned advocates for the respective parties.

9. Pertinently, the vehicle of the petitioner was seized by the respondent No. 5 and seizure memo was issued on 20.12.2019. Notice dated 22.01.2020 was issued to the petitioner and order was passed by the respondent authority dated 19.06.2020 which was challenged by the petitioner before this Court. This Court disposed of the said writ petition of the petitioner by issuing directions to the appellate authority. The order dated 19.06.2020 was quashed and set aside by the appellate authority vide order dated 27.10.2020 and directions were given to release the vehicle upon furnishing of the bank guarantee by the petitioner for a period of one year. 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.

10. 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

C/SCA/544/2021 ORDER DATED: 21/09/2021

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 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;

C/SCA/544/2021 ORDER DATED: 21/09/2021

resultantly, the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee.

11. Under the circumstances, and the fact that the learned Assistant Government Pleader could not dispute that the complaint has not been filed, 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 aforesaid case, applies on all fours to the facts of the present case. Therefore, the petition deserves to be allowed and is partly allowed.

12. 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, JCB JS 140 Sr. No. 84132244. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner; however, the petitioner shall pursue the remedy before the higher forum. The Revisional Authority shall decide the Revision/application without being influenced by the observations made in the present order and in accordance with law. Moreover, this order shall not preclude the authorised officer to initiate any action against the petitioner, if permissible and strictly in accordance with law.

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

(SANGEETA K. VISHEN,J) SINDHU NAIR