Kamuben Harjibhai Saraiya vs State Of Gujarat
2021 Latest Caselaw 15250 Guj

     C/SCA/10848/2021                              ORDER DATED: 28/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10848 of 2021

==========================================================
                        KAMUBEN HARJIBHAI SARAIYA
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
NIMIT Y SHUKLA(8338) for the Petitioner(s) No. 1
MS.URMILA A. DESAI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 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 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 direction to the respondent authority to release the vehicle of the petitioner being Loader Machine bearing Registration No.GJ-33-S-0351 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 seized by the respondent authorities followed by the issuance of show cause notice dated 09.07.2021. According to the petitioner, the notice was not issued to the petitioner but, was issued to one

C/SCA/10848/2021 ORDER DATED: 28/09/2021

Rameshbhai Devjibhai Zapadiya despite the fact that he was not the owner of the vehicle. The show cause notice, was replied by Rameshbhai Devjibhai Zapadiya, inter alia, pointing out that the amount being on higher side, it would be difficult for him to deposit the said amount because owing to the seizure of the vehicle, there is no source of income available to him. According to the petitioner, the Office of the Geologist did not acced to the request of the petitioner. Being aggrieved, the petitioner has preferred the captioned writ petition with the aforementioned prayers.

4.1 Mr.Nimit Y. Shukla, learned advocate appearing for the petitioner, submitted that the action of the respondent in issuing the show cause notice, under the provisions of Rules of 2017 is illegal and bad. Further, show cause notice, was replied to, inter alia, pointing out that no illegal mining activity has been carried out; however, the said reply was not considered and till date the vehicle has not been released. It is submitted that the vehicle had been purchased by the petitioner on loan and with a great difficulty, the loan amount has been settled. It is the only source of livelihood of the petitioner and continuation of seizure would cause huge monetary loss. It is also submitted that no fruitful purpose would be served, if the vehicle of the petitioner is continued in detention.

4.2 It is also submitted that in the present case, the seizure memo was not issued to the petitioner and on the top of it no FIR, has been registered; however, without issuance of seizure memo, the order is passed on 14.07.2021. It is therefore 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

C/SCA/10848/2021 ORDER DATED: 28/09/2021

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.

5. On the other hand, Ms. Urmila A. Desai, learned Assistant Government Pleader justified the action of the concerned authority contending that after the issuance of notice dated 09.07.2021, order dated 14.07.2021, has been passed by the authorised officer. Therefore, there is an alternative remedy available to the petitioner 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 has been registered.

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

7. Pertinently, in the present case, undisputedly, seizure memo has not been issued. The notice dated 09.07.2021, was issued to one Rameshbhai Devjibhai Zapadiya and not to the petitioner though, the petitioner is the owner of the vehicle in question. Pursuant to the notice, Shri Rameshbhai Devjibhai Zapadiya submitted a reply on 12.07.2021 with a request to release the vehicle on the ground that no illegal mining, has been undertaken. Moreover, there is no denial to the fact that FIR has not been filed upon the expiry of 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 (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

C/SCA/10848/2021 ORDER DATED: 28/09/2021

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."

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

C/SCA/10848/2021 ORDER DATED: 28/09/2021

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 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 Loader Machine bearing Registration No.GJ-33-S-0351. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner. In the present case, as is discernible from the record, the notice dated 09.07.2021, has been issued to Shri Rameshbhai Devjibhai Zapadiya and not to the petitioner and therefore, it would be open for 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