Kalpeshbhai Jorubhai Gohil vs State Of Gujarat
2021 Latest Caselaw 15127 Guj

     C/SCA/5067/2021                             ORDER DATED: 27/09/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5067 of 2021

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                       KALPESHBHAI JORUBHAI GOHIL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
K T BELADIYA(9101) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                             Date : 27/09/2021

                              ORAL ORDER

1. Leave to amend the cause title. Amendment to be carried out

forthwith.

2. With the consent of the learned Advocates appearing for the

parties, the matter is taken up for final disposal.

3. Rule. Learned AGP waives service of notice of rule on behalf

of the respondents.

4. By way of the present petition, the petitioner has sought

direction against the respondent No.2 for release of the vehicle

bearing Truck No. GJ-05-BU-9756 (hereinafter referred to as "the

vehicle") of the ownership of the petitioner, which has been seized

and detained by the respondent No. 2.

C/SCA/5067/2021 ORDER DATED: 27/09/2021

5. On 19.02.2021, the respondent No. 2 along with a team of

Police, found that the vehicle of the petitioner was loaded with

sand in excess, which was without any permission, and accordingly,

it was seized by the respondent No. 2 in exercise of the powers

conferred under Rule 12 of the Gujarat Mineral (Prevention of

Illegal Mining, Transportation and Storage) Rules, 2017. It is the

case of the petitioner, that a valid royalty-pass dated 19.02.2021,

was issued by the Office of Geology and Mining, however, the

driver of the vehicle forgot to collect the royalty pass and that is

how at the time of inspection he was not possessing the royalty-

pass. It is the case of the petitioner that the respondent without

considering the case of the petitioner has straightaway issued the

notice dated 20.02.2021 followed by the notice dated 31.07.2021,

further followed by the order dated 09.08.2021 seizing the vehicle

of the petitioner and imposing the fine to the tune of Rs. 2,15,294/-.

Being aggrieved, the petitioner, has filed the captioned writ

petition.

6. Mr. Beladiya, learned Advocate submits that the petitioner,

was having a valid royalty-pass; however, the driver, could not

collect the royalty-pass and left it at the table of the issuing

authority. Otherwise, there was a valid royalty-pass dated

19.02.2021, issued at around 2:42 p.m. It is submitted that the

vehicle, was seized by the respondent No. 2 at around 3:10 p.m.

The driver of the petitioner requested repeatedly the respondent

No. 2 about he having a valid permit, however, the request of the

C/SCA/5067/2021 ORDER DATED: 27/09/2021

driver was not accepted.

7. It is submitted that the respondent No.2 without application

of mind, has seized the vehicle of the petitioner followed by

issuance of notice of seizure and order dated 09.08.2021. It is

submitted that the petition, is filed only for the limited purpose of

release of vehicle. The petitioner without prejudice to his rights

and contentions that may be available in law, will prefer an appeal

against the order dated 09.08.2020 passed by the Office of the

Geology and Mining Department. It is also submitted that though

the vehicle has been seized and the authority was under the

obligation to file a complaint after the specified period, the

authority has failed to register any such complaint and thereby, in

absence of any complaint, the vehicle of the petitioner, deserves to

be released.

8. Reliance is placed on the order dated 14.07.2020 passed by

the co-ordinate bench in Special Civil Application No. 7845 of 2020.

It is submitted that this Court while relying on the decision of

Zaverbhai Nanubhai Devani vs State of Gujarat & Ors. in Letters

Patent Appeal No. 397 of 2018 has observed and held that serious

prejudice will be caused if the vehicle is allowed to be detained by

the authority in a case where prima facie, the seizure, is

unsustainable. It has been held and observed that confiscation

proceedings in absence of complaint, which is a sine qua non for

initiation of the confiscation proceedings with the court of Sessions

C/SCA/5067/2021 ORDER DATED: 27/09/2021

as contemplated in sub-rule (3) of Rule 12 is mandatory. It has also

been held that in absence of the complaint no authority is vested

with the respondent to retain the possession of the seized vehicle,

and if any such possession is allowed to be retained, the vehicle

owner, would be deprived of the vehicle even in absence of the

prosecution.

9. Ms. Surbi Bhati, learned Assistant Government Pleader on

the other hand has placed on record the notices dated 20.02.2021,

31.07.2021 and the order dated 09.08.2021, passed by the Office of

the Geology and Mining Department. It is submitted that since

there is an order passed by the authority the remedy is available to

the petitioner to file an appeal against the order. It is fairly

conceded that no complaint has been filed as required under Rule

12 of Rules of 2017.

10. Heard the learned Advocates appearing for the respective

parties.

11. Pertinently, the vehicle of the petitioner was seized/detained

during the inspection by the concerned officer. The petitioner, in

support of his contention that there was valid royalty-pass has

placed on record the copy of such royalty pass. The said aspect has

not been denied by the learned Assistant Government Pleader that

there was a valid royalty-pass issued by the Office of the Geology

and Mining Department and the date and time recorded is

19.02.2021 at 2:42 p.m. and the vehicle of the petitioner was

C/SCA/5067/2021 ORDER DATED: 27/09/2021

detained at around 3:10 p.m. Therefore, there is no dispute that the

there was a royalty-pass issued for the purpose of transporting the

sand.

12. Moreover, 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.

13. 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)

C/SCA/5067/2021 ORDER DATED: 27/09/2021

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.

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

17. 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 Registration No.GJ-05-BU-9756. Needless to mention that the

C/SCA/5067/2021 ORDER DATED: 27/09/2021

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.

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

(SANGEETA K. VISHEN,J) SINDHU NAIR