Gujarat High Court

Malek Anwarbhai Husainbhai vs State Of Gujarat on 29 August, 2022

Bench: Nirzar S. Desai

      C/SCA/3408/2022                                 ORDER DATED: 29/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 3408 of 2022

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                        MALEK ANWARBHAI HUSAINBHAI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR DHAVAL PRAJAPATI for MR ABHIRAJ R TRIVEDI(5576) for the
Petitioner(s) No. 1
MR MINESH D ERINPURIA(8512) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                               Date : 29/08/2022

                                ORAL ORDER

1 By way of this petition under Article 226

of the Constitution of India, the petitioner prayed

to quash and set aside the impugned order dated

20.7.2020 and immediately release of vehicle bearing

registration No.GJ-01-BV-2334 seized by the Prant

Officer and Mamlatdar and Deputy Collector Team of

Chhota Udepur and to direct the concerned authority

to accept the bond from the petitioner as per the

Rules and release the vehicle.

C/SCA/3408/2022 ORDER DATED: 29/08/2022

1.1 However, learned advocate Mr.Dhaval

Prajapati confines this petition only for the prayer

of release of vehicle as order dated 20.7.2020 is

appealable and by challenging the aforesaid order,

the petition wants to avail the alternative remedy

available to him. Permission, as prayed for is

granted.

2 Heard learned advocate Mr.Dhaval Prajapati

for Mr.Abhiraj Trivedi, learned advocate for the

petitioner and Mr.Sahil Trivedi, learned Assistant

Government Pleader for respondent - State.

3 By the consent of learned advocates for the

parties, the matter is taken up for final hearing.

Hence, Rule. Mr.Sahil Trivedi, learned Assistant

Government Pleader waives service of rule on behalf

of respondent State authorities.

4 The brief facts of the case are as under:

4.1 The petitioner is the registered owner of

C/SCA/3408/2022 ORDER DATED: 29/08/2022

the vehicle bearing No.GJ-01-BV-2334. On 22.6.2020

the petitioner went with the aforesaid vehicle to

load sand at survey No.15-18-22 at Orsang River bed.

That the lease of the sand was granted in favour of

one Anilbhai Sampatbhai Bhoi, whereas the petitioner

is only transporter. As per the case of the

petitioner, as the site of the lease does not

weighing machine and the vehicle has to travel 2 kms.

from the place of lease to Prayosha Way Bridge for

issuance of royalty.

4.2 It is the case of the petitioner that on

22.6.2020 when the truck of the petitioner was parked

beside the dredging machine, the Deputy Collector,

Chhotaudepur visited the site of lease and the truck

was parked legally at the site.

4.3 It is the case of the petitioner that when

the Deputy Collector visited the site of lease, the

truck was not involved in any illegal activity and

the Deputy Collector asked for royalty and delivery

challan, which could not be produced by driver of the

C/SCA/3408/2022 ORDER DATED: 29/08/2022

truck, as those documents could be given to the

petitioner only after measuring the weight of the

truck at Prayosha Way Bridge, which is around 2 kms.

far away, and therefore, ultimately truck of the

petitioner was seized. By way of this petition, the

petitioner has prayed for release of his vehicle.

5 Mr.Dhaval Prajapati, learned advocate for

the petitioner, states that since last more than 45

days the vehicle has been seized and FIR is not

registered in respect of seizure of the vehicle. As

per rule 12(2)(b)(ii) of the Gujarat Mineral (Illegal

Mining, Transpiration and Storage) rules, 2017 (for

short, `the Rules') if an application for compounding

of offence is not received, the vehicle/machine shall

be produced before the court to determine commission

of such offence, upon expiry of 45 days from the date

of seizure or upon completion of the investigation,

whichever is earlier, the vehicle is required to be

released. Learned advocate Mr.Prajapati states that

the issue is squarely covered by the order of the co-

ordinate Bench of this Court in Special Civil

C/SCA/3408/2022 ORDER DATED: 29/08/2022

Application No.9203 of 2020 order dated 26.8.2020 and

order dated 1.12.2021 passed in Special Civil

Application No.16887 of 2021.

6 Mr.Trivedi, learned Assistant Government

Pleader, upon instructions, states that pursuant to

the alleged incident, no FIR is registered and he

could not dispute the fact that the vehicle has been

seized for more than 45 days.

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 the Rule 12(2)(b) (ii) of

the Rules, 2017 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

C/SCA/3408/2022 ORDER DATED: 29/08/2022

investigation, whichever is earlier, shall approach by way of making a written complaint, before the Court of Sessions."

8 The truck was seized on 26.6.2020, and

therefore, undisputedly, the complaint, as envisaged

under sub-clause (ii) of clause (b) of sub-rule (2)

of Rule 12 of the Rules, has not been filed yet and,

therefore, in absence of any complaint, the action of

continuation of the detention of the truck by the

respondent authority, is illegal and against the

provisions of the Rules.

9 Reliance has rightly been placed on the

judgment in the case of Nathubhai Jinabhai Gamara Vs.

State of Gujarat, passed in Special Civil Application

No.9203 of 2020. The Paragraph Nos.7, 10 and 11 of

the judgment 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

C/SCA/3408/2022 ORDER DATED: 29/08/2022

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

C/SCA/3408/2022 ORDER DATED: 29/08/2022

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

C/SCA/3408/2022 ORDER DATED: 29/08/2022

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 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