Gujarat High Court

Vinodbhai Ranmalbhai Makvana vs State Of Gujarat on 12 December, 2022

Bench: Biren Vaishnav

     C/SCA/23649/2022                              ORDER DATED: 12/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 23649 of 2022

==========================================================
                        VINODBHAI RANMALBHAI MAKVANA
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MR.JAY TRIVEDI, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 12/12/2022

                                ORAL ORDER

1. Rule. Learned AGP Mr. Jay Trivedi waives service of

notice of rule on behalf of the respondent No.1.

2. By way of this petition under Article 226 of the

Constitution of India, the petitioner has prayed for

release of his 2 units of crushing machine with 2 units of

motor owned by the petitioner.

3. It is the case of the petitioner that the petitioner is

the owner of the 2 units of crushing machine with 2 units

of motor. On 09.09.2022, the respondent No.2 had

C/SCA/23649/2022 ORDER DATED: 12/12/2022

carried out inspection and seized the said machines and

kept in the custody of respondent no. 3.

4. Learned advocate Mr. Jay Shah submitted that as

per Rule 12 of the Gujarat Mineral (Prevention of Illegal

Mining Storage and Transportation) Rules, 2017 if no

other actions are taken and if the FIR is also not filed

within a period of 45 days from the date of seizure of

vehicle/machine, in that case, as per the catena of

decisions of this Court, the machine is required to be

released by this Court by directing the authority.

5. Learned AGP Mr. Jay Trivedi could not dispute the

aforesaid facts that the 45 days from the date of seizure

of the machine is over. He also could not point out that

any FIR in respect of the machine seized is filed.

6. 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

C/SCA/23649/2022 ORDER DATED: 12/12/2022

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."

7. The machines were seized on 09.09.2022, 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 machines by the respondent

authority, is illegal and against the provisions of the

Rules.

8. 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

C/SCA/23649/2022 ORDER DATED: 12/12/2022

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

C/SCA/23649/2022 ORDER DATED: 12/12/2022

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."

9. It has been held that it would be obligatory for the

C/SCA/23649/2022 ORDER DATED: 12/12/2022

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.

10. Under the circumstances, in absence of any

complaint, the petition deserves to be allowed and the