Jileshbhai Rameshbhai Barochiya vs State Of Gujarat
2022 Latest Caselaw 6943 Guj

      C/SCA/14623/2022                           ORDER DATED: 04/08/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 14623 of 2022
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                     JILESHBHAI RAMESHBHAI BAROCHIYA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
MR SAHIL B. TRIVEDI, AGP for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 04/08/2022
                   ORAL ORDER

1. RULE. Learned AGP waives service of notice of rule for and on behalf of the respondents.

2. At the outset, learned advocate Ms.Kruti Shah has submitted that the writ petition is confined to prayer No.7(c).

3. The petitioner is seeking a direction on the respondent No.4 to release the vehicle being HYUNDAI EXCAVATOR GJ-14 M 5698, Chassis No.Q401D00485, Model-R 140 LC 9 which was seized by the respondent No.4. The respondent No.2 has issued a show cause notice dated 17.06.2022 for payment of penalty.

4. The brief facts of the case are as under:

4.1 The petitioner is the owner of the vehicle being HYUNDAI EXCAVATOR GJ-14 M 5698, Chassis No.Q401D00485, Model-R 140 LC 9, which was given to one Prabhubhai Devjibhai Dabra on rental basis and informed to operate the same in legal manner by obtaining the pass permit and royalty pass for the mining purpose.

4.2 On 22.05.2022, an inspection was carried out by the team of respondent Nos.2 and 3, whereby the vehicle of the

C/SCA/14623/2022 ORDER DATED: 04/08/2022

petitioner was found mining simple sand mineral without royalty pass. Thereafter, the vehicle was seized by the respondent authority and kept in custody of respondent no.4. The respondent No.2 issued a show cause notice dated 17.06.2022 for payment of penalty.

4.3 It is submitted that the petitioner has not received any notice till date and has not done any illegal mining and has given the representation to the respondent No.3, in this regard.

5. Learned advocate Ms.Shah has submitted that the action of the respondent no.4 of detaining and seizing the vehicle on 22.05.2022, is illegal and against the provisions of the Rules of 2017 inasmuch as, by now, more than 45 days have been passed and no complaint, as envisaged under sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (for short, "the Mining Rules"), has been filed. It is therefore, urged that the issue raised in the present writ petition, stands covered by the judgment in the case of Nathubhai Jinabhai Gamara vs. State of Gujarat, rendered in Special Civil Application No.9203 of 2020 by the order dated 26.08.2020. It is submitted that this Court, has held and observed that after the period of 45 days, in absence of any complaint by the concerned competent authority, the detention and seizing of the vehicle would render illegal. In support of her submissions, she has also placed reliance on the decision dated 01.12.2021 passed in Special Civil Application No.16887 of 2021.

C/SCA/14623/2022 ORDER DATED: 04/08/2022

6. In response to the aforesaid submissions, learned AGP Mr.Mehta, upon instructions, has submitted that as per his information, no criminal prosecution has been initiated and no F.I.R. has been filed, as required under the provision of Rule 12 of the Mining Rules.

7. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them. The issue raised in the writ petition is governed under Rule 12(2)(b)

(ii) of the Mining Rules, which reads as under:

"12. Seizure of property liable to confiscation.- (2)(b)(ii) a preliminary investigation, and if compounding is not permissible under rule 22 or if he is satisfied that the offence committed in respect of the property is not compoundable, upon the expiry of forty-five days from the date of seizure or upon completion of the investigation, whichever is earlier, shall approach by way of making a written complaint, before the Court of Sessions."

8. The vehicle was seized on 22.05.2022. Undisputedly, the complaint, as envisaged under sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Mining Rules, has not been filed yet and, therefore, in absence of any complaint, the action of continuation of the detention of the vehicle by the respondent authority, is illegal and against the provisions of the Mining Rules.

9. Reliance has rightly been placed on the order dated 26.08.2010 passed in the case of Nathubhai Jinabhai Gamara Vs. State of Gujarat, in Special Civil Application No.9203 of 2020. Paragraph Nos.7, 10 and 11 of the order 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

C/SCA/14623/2022 ORDER DATED: 04/08/2022

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."

10. 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

C/SCA/14623/2022 ORDER DATED: 04/08/2022

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.

11. Under the circumstances, in absence of any complaint, the petition deserves to be allowed and the action of the respondent authority in seizing the vehicle, i.e. HYUNDAI EXCAVATOR GJ-14 M 5698, Chassis No.Q401D00485, Model-R 140 LC 9, deserves to be quashed and set aside and is accordingly, quashed and set aside. The respondent authority, is forthwith directed to release the vehicle.

12. With the aforesaid direction, the matter is allowed in part. Rule made absolute to the aforesaid extent.

(A. S. SUPEHIA, J) MAHESH BHATI/124