Lalsingh Piraji Chouhan vs State Of Gujarat
2021 Latest Caselaw 14800 Guj

     C/SCA/13570/2021                                   ORDER DATED: 22/09/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 13570 of 2021
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                         LALSINGH PIRAJI CHOUHAN
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR A S SUNELWALA(11290) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR.KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 22/09/2021
                   ORAL ORDER

1. Mr.A.S. Sunelwala, learned advocate appearing for the petitioner has tendered the draft amendment. Amendment is allowed in terms of the draft. The same shall be carried out forthwith.

2. With the consent of the learned advocates for the respective parties, the matter is taken up for final disposal.

3. Issue Rule, returnable forthwith. Mr.Krutik Parikh, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent.

4. By this petition, the petitioner has prayed for release of the vehicle i.e. Truck bearing registration No.GJ-16-X-8525 (hereinafter referred to as "the vehicle") of the ownership of the petitioner, seized by the respondent Nos. 2 and 3.

5. According to the petitioner, the petitioner is engaged in the business of transportation of sand from the riverbank by loading and unloading through the vehicle. On 06.06.2020, the vehicle of the petitioner came to be intercepted by the Prant Officer, Chhotaudepur and was detained on account of over loading of the sand on the vehicle of the petitioner. On 18.06.2020, a show cause

C/SCA/13570/2021 ORDER DATED: 22/09/2021

notice was issued to the petitioner. The petitioner appeared and explained that though he is the owner of the truck; however, it was not within his knowledge about the alleged illegal transportation of the sand. The notice was followed by the order dated 20.07.2020; however, so far, the complaint has not been registered as provided under Rule 12(2)(b)(ii) of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as the "Rules of 2017").

5.1 Reliance is placed on the order dated 14.07.2020 passed in Special Civil Application No.7845 of 2020 so also order dated 26.08.2020 passed in Special Civil Application No.9203 of 2020. It is submitted that this Court, in para 12 has held and observed 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 the order of the court. It is, therefore, urged that since the issue is settled as regards release of the vehicle, the petition deserves to be allowed.

6. On the other hand, Mr.Krutik Parikh, learned Assistant Government Pleader appearing on advance copy states that the order has been passed on 20.07.2020; however, the complaint as required under Rules of 2017 has not been filed.

7. Heard the learned advocates for the respective parties.

8. Pertinently, the Notice was issued on 18.06.2020 followed by the order dated 20.07.2020. It is not in dispute that no complaint has been filed as provided under Rule 12(2)(b)(ii) of the Rules of 2017. 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

C/SCA/13570/2021 ORDER DATED: 22/09/2021

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 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."

C/SCA/13570/2021 ORDER DATED: 22/09/2021

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, applies on all fours to the facts of the present case.

11. 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 directed to release the vehicle of the petitioner i.e. Truck bearing registration No.GJ-16-X-8525 forthwith. 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 Appellate Authority shall decide the appeal/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.

12. The petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN, J) RAVI P. PATEL