Pathan Mazarkhan Aslamkhan vs State Of Gujarat
2021 Latest Caselaw 15226 Guj

     C/SCA/10745/2021                                    ORDER DATED: 28/09/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10745 of 2021
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                        PATHAN MAZARKHAN ASLAMKHAN
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS.NAMRATA J SHAH(6534) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 28/09/2021
                   ORAL ORDER

With the consent of the learned advocates for the respective parties, the matter 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 respondents.

3. By this petition, the petitioner has prayed for release of the 6 Building Chaff Cutter machine along with its motor (hereinafter referred to as the 'machines in question'), seized by the respondents.

4. The facts of the case are to the effect that on 7.12.2020, an inspection was carried out outside the lease area of Nathabhai Savdasbhai Agadh which, according to the petitioner, was beyond the boundary lines of the lease area. The alleged illegal excavation of sand was noticed whereby, the machines in question were kept and accordingly, were seized, followed by issuance of seizure memo in the name of Tikanbhai and Nathabhai Savdasbhai Agadh. It is the case of the petitioner that repeated requests were made that he being the owner of the seized machines, it be released; however, the request had fallen on deaf ears. It is also the case of the petitioner that no seizure memo of the machines in question were

C/SCA/10745/2021 ORDER DATED: 28/09/2021

issued to the petitioner. Ultimately, on 2.7.2021, the petitioner made a representation to the respondent no.2, however, till date, there is no response to the said representation and the machines in question are still lying with them. Being aggrieved, the petitioner has filed the captioned writ petition with a prayer to release the machines in question.

5. Ms. Namrata J. Shah, learned advocate appearing for the petitioner, submitted that owing to the inspection outside the lease area of Nathabhai Savdasbhai Agadh, alleged illegal excavation activities were noticed and as a result whereof, the machines in question were seized, followed by issuance of seizure memo on 7.12.2020. It is submitted that the petitioner, neither has been served with any notice nor the seizure memo. Being aggrieved, the petitioner had made representation, however, of no avail. It is submitted that there has been a grave procedural lapse on the part of the respondent authorities in not observing the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as the 'Rules of 2017').

5.1 It is submitted that the machines in question were seized somewhere in the month of December, 2020 and since then, they are lying with the respondents without any authority. It is submitted that such action would be against the law laid down by this Court vide order dated 26.8.2020 in the case of Nathubhai Jinabhai Gamara vs. State of Gujarat rendered in Special Civil Application No.9203 of 2020. It is submitted that this Court, has held and observed that the competent authority under the Rules of 2017, is only authorised to seize the property, investigate the offence and compound it; the penalty can be imposed and the confiscation of the property can be done only by the order of the Court. It has also been observed that when the offence is not compounded or not

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compoundable, it would be obligatory for the authorities 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, and resultantly, the property will have to be released in favour of the person from whom it was seized, without insisting for the bank guarantee. It is therefore, urged that the machines in question of the petitioners be directed to be released.

6. Mr. Krutik Parikh, learned Assistant Government Pleader could not dispute the aspect that upon expiry of the specified period, no FIR has been registered. Also, neither any notice nor any seizure memo has been issued to the petitioner.

7. Heard the learned advocates appearing for the respective parties.

8. As is discernible from the record, the inspection was carried out outside the lease area of Nathabhai Savdasbhai Agadh and during the inspection, the machines in question were allegedly found in illegal mining of the sand. Accordingly, the machines in question were seized by issuing a seizure memo. Being aggrieved, the petitioner, on 2.7.2021, had addressed a letter to the Royalty Inspector/Geologist, Mines & Minerals Department, inter alia, pointing out that he is the owner of machines in question, which were detained and seized on 7.12.2020. The petitioner also has made repeated requests, however, the petitioner has not been served with any show cause notice as regards the seizure of the machines in question. The petitioner also has urged that machines in question were seized on 7.12.2020, however, upon expiry of the specified period, FIR has not been registered with the Court of

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competent jurisdiction. In absence of any FIR, the respondent has no authority to detain the machines in question.

9. Pertinently, it is clear and not disputed by the learned Assistant Government Pleader that no FIR has been registered upon expiry of specified period, as contemplated under sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017 and therefore, the judgment in the case of Nathubhai Jinabhai Gamara (supra) applies on all fours to the facts of the present case. Paras 7, 10 and 11 of the said judgment read 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.

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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 authority to approach the Court of Sessions with a written complaint and produce the seized properties with the Court upon 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. In view of the aforementioned discussion, the action of the respondent authority of seizing the machines in question of the petitioner is quashed and set aside and is forthwith directed to release the machines in question. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the 6 Building Chaff Cutter Machine along with its Motor of the petitioner; however, it would be open to the authority to take proceedings against the petitioner, if permissible and in accordance with law.

11. Accordingly, present writ petition succeeds in part. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI