Gujarat High Court
Ranchodbhai Malabhai Laltuka vs State Of Gujarat on 30 August, 2022
Bench: Nirzar S. Desai
C/SCA/13524/2022 ORDER DATED: 30/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13524 of 2022
==========================================================
RANCHODBHAI MALABHAI LALTUKA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR R.K.MANSURI(3205) for the Petitioner(s) No. 1
MR.SAHIL TRIVEDI, LD. AGP for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 30/08/2022
ORAL ORDER
1. Rule.
2. At the outset, Mr. R.K. Mansuri, the learned advocate
appearing for the petitioner states that in respect of
prayer made in Para-11(B), the petitioner wants to file a
separate proceedings, and, therefore, the petitioner does
not want to press prayer 11(B) . Permission, as prayed for,
is granted.
3. The petitioner is seeking a direction on the
respondent No.3 to release the Tractor-Loader, which is of
the ownership of the petitioner.
4. The brief facts of the case are as under:
4.1 The petitioner is having a vehicle, i.e, Tractor/Loader
bearing No.GJ-13-AD-0901 and by carrying out the
C/SCA/13524/2022 ORDER DATED: 30/08/2022
transportation work by the aforesaid vehicle, the
petitioner is earning the livelihoods for himself as well as
for his family. The aforesaid vehicle was seized on the
ground that the same was used for illegal mining.
Although the aforesaid tractor was seized by the police
officer of Dhajara Police Station and subsequently was
handed over to the Assistant Geologist, Surendranagar
and Regional Transport Officer, Surendranagar, yet even
after expiry of 45 day from the date of the seizure of the
said vehicle, no FIR is registered against the present
petitioner. The petitioner has also paid necessary fine to
the RTO as per the provisions of the Motor Vehicles Act.
5. Learned advocate Mr. Mansuri has submitted that
though the petitioner has made a request to release his
vehicle before the respondents No.2, his request was not
responded. It is also submitted that as per Rule 12(2)(b)(ii)
of the Rules, if an application for compounding of offence
is not received, the vehicle/machine so seized 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. He has submitted that the issue is squarely
covered by the order of the Coordinate Bench of this Court
dated 26.08.2020 passed in Special Civil Application
No.9203 of 2020 and the order dated 16.02.2022 passed
in Special Civil Application No.14414 of 2021.
6. In response to the aforesaid submissions, learned
C/SCA/13524/2022 ORDER DATED: 30/08/2022
AGP, 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 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 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."
8. The Tractor-Loader was seized on 19.03.2022.
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 machine 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
C/SCA/13524/2022 ORDER DATED: 30/08/2022
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 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
C/SCA/13524/2022 ORDER DATED: 30/08/2022
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 Page 4
of 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 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 Tractor-
C/SCA/13524/2022 ORDER DATED: 30/08/2022
Loader bearing No.GJ-13-AD-0901, deserves to be quashed
and set aside and is, accordingly, quashed and set aside.
The respondent authority is forthwith directed to release
the Tractor/Loader.
12. With the aforesaid direction, the matter is allowed in
part. Rule made absolute to the aforesaid extent.
Direct service is permitted.
(NIRZAR S. DESAI,J)
Vahid
