Late Ranchodbhai Jahabhai ... vs State Of Gujarat
2021 Latest Caselaw 15230 Guj

     C/SCA/10416/2021                                      ORDER DATED: 28/09/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10416 of 2021
==========================================================
     LATE RANCHODBHAI JAHABHAI BHARWAD THROUGH HIS WIFE
               RADHABEN RANCHODBHAI BHARWAD
                            Versus
                      STATE OF GUJARAT
==========================================================
Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MR KRUTIK PARIKH AGP (1) for the Respondent(s) No. 1,2,3
==========================================================

 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                                  Date : 28/09/2021

                                   ORAL ORDER

1. With the consent of the learned advocates for the respective parties, the petition is taken 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 direction for releasing the vehicle being Excavator No.R210-7 SR No.N601D05073 of the ownership of the petitioner with a further prayer to quash and set aside the notice dated 17.09.2019 issued by the office of the Geologist.

4. The brief facts are that on 12.03.2019, the inspection was carried out by the team of respondent No.3 at Paliya village, in Pavi Jetpur where, the Excavator was found alongwith 7 other Excavators near Bharaj river where, the mining activity was going on. It is the case of the petitioner that the driver could not produce the mining permit and therefore, all the Excavators were seized by the respondent and are kept at Jilla Seva Sadan. On 17.09.2019, the

C/SCA/10416/2021 ORDER DATED: 28/09/2021

show-cause notice was issued, requiring the late husband of the petitioner to pay the penalty of Rs.98,43,977/- for 227989 MT of sand mining amongst others and the bank guarantee of Rs.2 lacs towards compounding fees. The petitioner requested the respondent No.2 to release the vehicle; however, the request was not acceded to. Thereafter, on 08.07.2021, a representation was made, inter alia, pointing out that the vehicle was seized on 12.03.2019 and till 08.07.2021 i.e. for 27 months, no FIR has been filed. Since the request of the petitioner was not acceded to, the petitioner has filed the present writ petition with the aforementioned prayers.

5. Mr.Jay N. Shah, learned advocate for the petitioner submitted that the action of the respondent authority is in complete violation of the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as the "Rules of 2017"). Moreover, the Excavator of the petitioner has not been produced before the Court upon expiry of the specified period. Also, no FIR has been registered and the Excavator of the petitioner is lying in open since last 27 months, without being produced before the Court of competent jurisdiction. It is submitted that since no FIR has been filed, as required under sub-clause (ii) of Clause (b) of sub-rule (2) of Rule 12 of the Rules 2017, the grievance of the present petitioner stands covered by the judgment of this Court in the case of Nathubhai Jinabhai Gamara vs. 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.

C/SCA/10416/2021 ORDER DATED: 28/09/2021

6. On the other hand, Mr.Krutik Parikh, learned Assistant Government Pleader justified the action of the concerned authority, contending that after the issuance of seizure memo on 12.03.2019, the show-cause notice dated 17.09.2019 was issued; however, it would be open to the petitioner to pursue the show-cause notice with the office of the Geologist. So far as the registration of the FIR/complaint is concerned, upon instructions, it is submitted that till date, neither any FIR is filed nor complaint has been registered.

7. Heard the learned advocates for the respective parties and perused the documents available on record.

8. Pertinently, the seizure memo was issued on 12.03.2019, followed by issuance of show-cause notice dated 17.09.2019; however, till date, no order has been passed by the respondent authority, adjudicating the show-cause notice dated 17.09.2019. As reported by the learned Assistant Government Pleader, upon instructions, upon expiry of the specified period, no complaint has been filed and therefore, the case of the petitioner stands squarely covered by the judgment in the case of Nathubhai Jinabhai Gamara (supra).

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

C/SCA/10416/2021 ORDER DATED: 28/09/2021

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; 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 above, this Court is of the opinion that in

C/SCA/10416/2021 ORDER DATED: 28/09/2021

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. Therefore, the petition deserves to be allowed and is accordingly partly allowed.

11. In view of the aforementioned discussion, the action of the respondent authority of seizing the Excavator of the petitioner is quashed and set aside and is forthwith directed to release the Excavator of the petitioner, bearing Excavator No.R210-7 SR No.N601D05073. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the Excavator of the petitioner; however, the competent authority, if had not adjudicated the show-cause notice, are not precluded from proceeding further. 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. Rule is made absolute to the aforesaid extent. No order as to cost.

(SANGEETA K. VISHEN,J) Hitesh