Sarojben Bipinkumar Dabhi vs State Of Gujarat
2021 Latest Caselaw 15237 Guj

     C/SCA/10344/2021                              ORDER DATED: 28/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10344 of 2021

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                        SAROJBEN BIPINKUMAR DABHI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR M R MOLAVI(3362) for the Petitioner(s) No. 1
MS.URMILA A. DESAI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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 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 up for final disposal.

2. Issue Rule, returnable forthwith. Ms.Urmila A. Desai, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent.

3. By this petition, the petitioner has prayed for quashing and setting aside the notice dated 24.06.2021 issued by the respondent No.2 so also the action seizing the vehicle i.e. Truck bearing Registration No.GJ-07-YZ-6417 under the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as the "Rules of 2017").

4. The brief facts are that, the vehicle of the petitioner, was stationed at L&T Yard situated at Village Changa, Taluka Petlad along with the driver who had royalty pass issued by Gayatri Project Private Limited. Despite the valid royalty pass, the respondent No.2 had seized the vehicle on the ground that there was unauthorised

C/SCA/10344/2021 ORDER DATED: 28/09/2021

mining of sand. On 16.06.2021, seizure memo came to be issued by the respondent No.3. The petitioner, being aggrieved, made a representation on 08.07.2021 inter alia, pointing out that the vehicle was having valid royalty pass, moreover, there was no excess or illegal excavation by the petitioner and therefore, the petitioner is not liable to pay any amount. The petitioner thereafter, received a notice dated 24.06.2021 requiring the petitioner to pay compounding fees of Rs.2,33,906/-. The petitioner, being aggrieved, has preferred the captioned writ petition with the aforementioned prayers.

4.1 Mr.M.R. Molvi, learned advocate appearing for the petitioner, submitted that the vehicle of the petitioner was seized on 16.06.2021 and seizure memo was issued on the very same day followed by the notice dated 24.06.2021. It is submitted that the petitioner is into the business of transportation and the vehicle is the only source of income and owing to illegal action on the part of the authority, the petitioner will be subjected to monetary loss of Rs.2,000 to Rs.3,000 per day. It is submitted that the respondent authority is obliged to observe the provisions of the Rules of 2017 and it would be impermissible to it to continue the seizure beyond the specified period.

4.2 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.

C/SCA/10344/2021 ORDER DATED: 28/09/2021

5. On the other hand, Ms. Urmila A. Desai, learned Assistant Government Pleader submitted that after issuance of the notice dated 24.06.2021, the order dated 08.09.2021 has been passed by the Office of the Geologist and therefore, there is an alternative remedy available to the petitioners under the Rules of 2017 and petitioner be relegated to such remedy. So far as the registration of FIR/complaint is concerned, upon instructions, it is stated that till date, neither any FIR is filed nor complaint is registered.

6. Heard the learned advocates for the respective parties and perused the material available on the record.

7. Pertinently, the seizure memo has been issued on 16.06.2021 followed by the notice dated 24.06.2021 requiring the petitioner to compound the offence. Since there was no application, it appears that the respondent authority has proceeded to pass the order dated 08.09.2021. However, the fact remains that neither any FIR has been filed nor complaint has been registered upon the expiry of the specified period. Therefore, the case of the petitioner stands squarely covered by the judgment in the case of Nathubhai Jinabhai Gamara v. State of Gujarat (supra).

8. In the case of Nathubhai Jinabhai Gamara v. State of Gujarat (supra) 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

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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.

9. Under the circumstances, this Court, is of the opinion that in absence of any complaint filed upon expiry of the specified period

C/SCA/10344/2021 ORDER DATED: 28/09/2021

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.

10. 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 i.e. Truck bearing Registration No.GJ-07-YZ-6417. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner; however, it will be open for the petitioner to 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.

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

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