Hiteshkumar Dhirajlal Bhavani vs State Of Gujarat
2021 Latest Caselaw 15304 Guj

     C/SCA/9505/2021                              ORDER DATED: 29/09/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9505 of 2021
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                       HITESHKUMAR DHIRAJLAL BHAVANI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
MR KRUTIK PARIKH AGP (4) for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                              Date : 29/09/2021

                               ORAL ORDER

1. 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 quashing and setting aside the action of the respondent No.3 of seizing the vehicle of the petitioner i.e. Hitachi Machine No.EX-110, Serial No.1101-1901.

4. The grievance raised by the petitioner in the present writ petition is to the effect that the petitioner is the owner of the Hitachi Machine No.EX-110, Serial No.1101-1901. It is submitted that on 02.12.2020, the inspection team visited the place and the vehicle of the petitioner was seized. On 22.04.2021, the petitioner made a representation, inter alia, requesting the respondent No.3 to release the vehicle. In the said communication, the petitioner also agreed that he is ready and willing to pay the amount towards the penalty. That without issuing any notice and hearing the petitioner, the order

C/SCA/9505/2021 ORDER DATED: 29/09/2021

dated 29.04.2021 has been passed directing the payment of Rs.4 lacs towards compounding fees. Being aggrieved, the petitioner has filed the present writ petition.

5. Ms.Kruti M. Shah, learned advocate for the petitioner submitted that the order dated 29.04.2021 is in clear violation of the principles of natural justice so also, the respondent authorities have not filed any First Information Report upon expiry of the specified period, which otherwise, they are obliged to do so by virtue of the provisions of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Storage and Transportation) Rules, 2017 (hereinafter referred to as the "Rules of 2017"). It is submitted that the issue stands covered by various orders passed by this Court and, more particularly, the judgment dated 26.08.2020 passed in Special Civil Application No.9203 of 2020, in the case of Nathubhai Jinabhai Gamara vs. State.

6. Mr.Krutik Parikh, learned Assistant Government Pleader has placed on record certain documents, namely, Rojkam dated 07.11.2020, Form-J issued under Rule 12(2)(A), communications dated 02.12.2020 and 26.02.2021. It is submitted that the petitioner has submitted an application dated 22.04.2021 wherein, it has been declared that the petitioner is ready and willing to pay the amount of penalty. It is submitted that after the representation of the petitioner dated 22.04.2021, the office of the Geologist, Geology and Mining Department, Chhota Udepur has issued a communication dated 21.05.2021, requiring the petitioner to make the payment of Rs.46,27,987/- towards the penalty; however, the petitioner did not revert back. As reported by the learned Assistant Government Pleader, upon instructions, upon expiry of the specified period, no complaint has been filed, as contemplated under the

C/SCA/9505/2021 ORDER DATED: 29/09/2021

provisions of the Rules of 2017.

7. Heard the learned advocates for the respective parties.

8. Pertinently, the seizure memo in Form-J was issued in the name of Krunalgiri Sureshgiri Goswami, in whose possession, the vehicle was found, followed by issuance of notice dated 02.12.2020 to the lease holder and not to the petitioner. The said notice dated 02.12.2020 was followed by passing of the order dated 29.04.2021, directing the payment of Rs.46,27,987/- including the penalty of Rs.4 lacs towards the vehicle. The petitioner, though has submitted an application dated 22.04.2021, the office of the Geologist, Geology and Mining Department chose not to issue any notice and straightaway has passed the order dated 29.04.2021 and that too, without hearing the petitioner. Admittedly, no complaint, as envisaged under the provisions of sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules of 2017, has been filed and the aspect of non-filing of the complaint has been conceded by Mr.Parikh, learned Assistant Government Pleader.

9. Clearly, in absence of any registration of the FIR, upon expiry of the specified period, the judgment of this Court in the case of Nathubhai Jinabhai Gamara (supra) applies on all fours to the facts of the present case. This Court has held and observed in paras 7, 10 and 11, which read as under:-

"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

C/SCA/9505/2021 ORDER DATED: 29/09/2021

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 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.

C/SCA/9505/2021 ORDER DATED: 29/09/2021

10. Under the circumstances, in absence of any complaint filed, it would not be within the authority of the respondent No.3 to continue seizure of the vehicle and therefore, the authority concerned is directed to forthwith release the vehicle of the petitioner i.e. Hitachi Machine No.EX-110, Serial No.1101-1901. It is clarified that the present writ petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner. However, this order shall not preclude the officers to initiate and/or continue any proceedings, if permissible and in accordance with law, against the present petitioner.

11. With the above, present writ petition is disposed of. Rule is made absolute to the aforesaid extent. No order as to cost. Direct service is permitted.

(SANGEETA K. VISHEN,J) Hitesh