Gujarat High Court

Vijay Masribhai Goraniya vs State Of Gujarat on 29 August, 2022

Bench: Nirzar S. Desai

      C/SCA/15246/2022                                   ORDER DATED: 29/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 15246 of 2022
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                            VIJAY MASRIBHAI GORANIYA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MS RIDDHI JOSHI for MS NAMRATA HARISHBHAI CHAUHAN(6534) for the
Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3,4
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                  Date : 29/08/2022
                                   ORAL ORDER

1 Heard learned advocate Ms. Riddhi Joshi for

Ms. Namrata Chauhan, learned advocate for the

petitioner and Mr. Hardik Mehta, learned Assistant

Government Pleader for respondent - State.

2 At the outset, Ms.Riddhi Joshi, learned

advocate for the petitioner states that she does not

press the prayer made in paragraph 7[c] to avail the

alternative remedy of appeal against order dated

2.4.2022. Permission, as prayed for, is granted.

3 By way of this petition under Article 226

C/SCA/15246/2022 ORDER DATED: 29/08/2022

of the Constitution of India, the petitioner prayed

to issue appropriate direction for releasing the 12

chaff cutter machines along with 4 generators seized

by the respondent authorities.

4 By the consent of learned advocates for the

parties, the matter is taken up for final hearing.

Hence, Rule. Mr. Hardik Mehta, learned Assistant

Government Pleader waives service of rule on behalf

of respondent State authorities.

5 The brief facts of the case are that the

petitioner is the owner of twelve chaff cutter

machines along with four generators. That on 2.4.2022

the respondent No.3 detained the machines along with

generators as unclaimed at Balej Todara Patiya and

kept at Navibandar Marin Police Station in violation

of Rules and Regulations and though a period of 45

days has been passed since the machines and

generators were seized, but no FIR was registered in

respect of the alleged offence.

C/SCA/15246/2022 ORDER DATED: 29/08/2022

6 Ms.Joshi, learned advocate for the

petitioner, states that since last more than 45 days

the machines along with generators have been seized

and FIR is not registered in respect of seizure of

the same. 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/machine is required

to be released. Learned advocate Ms.Joshi states that

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

ordinate Bench of this Court in Special Civil

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.

7 Mr.Mehta, learned Assistant Government

Pleader, upon instructions, states that pursuant to

C/SCA/15246/2022 ORDER DATED: 29/08/2022

the alleged incident, no FIR is registered and he

could not dispute the fact that the machines and

generators have been seized for more than 45 days.

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

9 The machines along with generators were

seized on 2.4.2022, and therefore, undisputedly, the

C/SCA/15246/2022 ORDER DATED: 29/08/2022

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 chaff cutter machines along with

generators by the respondent authority, is illegal

and against the provisions of the Rules.

10 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 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

C/SCA/15246/2022 ORDER DATED: 29/08/2022

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

C/SCA/15246/2022 ORDER DATED: 29/08/2022

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."

11 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

C/SCA/15246/2022 ORDER DATED: 29/08/2022

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.

12 Under the circumstances, in absence of any

complaint, the petition deserves to be allowed and