Pravinbhai Bhikhubhai Vasoya vs State Of Gujarat
2022 Latest Caselaw 3813 Guj

      C/SCA/860/2022                                      ORDER DATED: 31/03/2022



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 860 of 2022

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            PRAVINBHAI BHIKHUBHAI VASOYA
                          Versus
              STATE OF GUJARAT & 1 other(s)
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Appearance:
MR N P PANDYA(11241) for the Petitioner(s) No. 1
MS. DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                  Date : 31/03/2022

                                    ORAL ORDER

1. With the consent of the learned advocates appearing for the respective parties, the captioned writ petition is taken up for final hearing.

2. Issue Rule, returnable forthwith. Ms. Dharitri Pancholi, the learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent-State.

3. By way of this petition under Article-226 of the Constitution of India, the petitioner has prayed for the following relief:

"(a) Your Lordships be pleased to admit this petition and to allow the same.

            (b)        Your   Lordships        be    pleased      to     issue





      C/SCA/860/2022                             ORDER DATED: 31/03/2022

appropriate writ, order or direction for releasing the vehicle i.e. Truck bearing registration No. GJ- 05-BT-4914 of the ownership of the petitioner which is seized by the respondents and at present the case is pending with the respondents, on such terms and conditions as this Hon'ble Court may deem think fit;

(c) Your Lordships be pleased to issue appropriate writ, order or direction to the respondents to pass appropriate below the application given by the petitioner within a period of 3 days for the release of the seized vehicle bearing No. GJ-05-BT-4914 of the ownership of the petitioner.

(d) Pending the hearing and final disposal of the petition, direct the respondent authority to pass order below the application within a period of 3 days for the release of the seized vehicle bearing No. GJ-05-BT-4914 of the ownership of the petitioner.

           (e)     To pass any other appropriate and just
           order/s."

4. It is the case of the petitioner that, the petitioner is the owner of the vehicle i.e. Truck bearing registration No. GJ-

05-BT-4914 (hereinafter referred to as 'the vehicle in question'). On 20.09.2019, the truck- vehicle in question was seized by the respondent authority. The petitioner requested to the authorities for releasing his vehicle. The authority has passed an order dated 28.07.2020.

5. Mr. N.P. Pandya, learned advocate for the petitioner has submitted that as is clear from the seizure memo, the same was

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issued on 20.09.2019; after issuance of the seizure memo, the authority has passed the order dated 28.07.2020, however, the F.I.R. as provided under sub-clause (ii) of sub-clause (b) of sub- Rule (2) of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as the "Rules of 2017") has not been filed. It is submitted that in absence of any F.I.R. registered beyond the specified period, the action of the respondent authority seizing the vehicle, is illegal and against the principles laid down by this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat, rendered in Special Civil Application No.9203 of 2020. It is submitted that, this Court has categorically held and observed that if the complaint is not registered as envisaged under sub- clause (ii) of sub-clause (b) of sub-Rule (2) of Rule 12 of the Rules of 2017, in absence of the complaint, the competent authority will have no option but to release the seized vehicle without insisting for any bank guarantee. Therefore, the principles laid down by this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat (supra) applies to the facts of the present case. It is therefore urged that the petition deserves to be allowed directing the respondent authorities to release the vehicle.

5.1 It is urged that the petition be entertained only for the limited purpose of release of the vehicle. So far as the adjudication of the seizure memo and order passed therein is concerned, the petitioner may challenge the same before the

C/SCA/860/2022 ORDER DATED: 31/03/2022

appropriate authority as per the Rules.

6. On the other hand, the learned Assistant Government Pleader has fairly conceded, under instructions, that no First Information Report has been registered as provided under the provisions of Rules of 2017.

7. Heard the learned advocates appearing for the respective parties.

8. It is undisputed that seizure memo was issued on 20.09.2019 and on 28.07.2020 the order was passed therein. It is not disputed rather conceded that after the period of 45 days, no First Information Report has been registered by the respondent authority. Therefore, the principle laid down by this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat (supra) applies to the facts of the present case.

9. In the aforesaid judgment, this Court, while dealing with the provisions of the sub-clause (ii) of sub-clause (b) of sub- Rule (2) of Rule 12 of the Rules of 2017, in paragraphs 7, 10 and 11 has held and observed 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

C/SCA/860/2022 ORDER DATED: 31/03/2022

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

C/SCA/860/2022 ORDER DATED: 31/03/2022

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."

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.

10. In view of the fact that no First Information Report has been registered and the principle laid down by this Court in the aforesaid case applies to the facts of the present case, the present petition deserves to be allowed and is accordingly allowed to the limited extent of directing the respondent to release the vehicle of the petitioner i.e. Truck bearing registration no. GJ-05-BT-4914. So far as the seizure memo dated 20.09.2019 and order passed therein dated 28.07.2020 is concerned, the petitioner may challenge the same before the appropriate authority as per the Rules. It is clarified that this Court, has not examined the merits of the issue involved and the observations made are only for the limited purpose of releasing the vehicle.

C/SCA/860/2022 ORDER DATED: 31/03/2022

11. In view of the aforementioned discussion, the petition succeeds and is accordingly allowed in part. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) Pradhyuman