Gangabhai Masaribhai Vagh vs State Of Gujarat
2022 Latest Caselaw 4615 Guj

   C/SCA/8181/2022                       ORDER DATED: 04/05/2022



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CIVIL APPLICATION NO.       8181 of 2022

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              GANGABHAI MASARIBHAI VAGH
                        Versus
                   STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, ASSISTANT GOVERNMENT PLEADER
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                     Date : 04/05/2022

                         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 reliefs:

"(a) This Hon'ble Court may be pleased to admit and allow this petition;

(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for releasing the machines bearing 3 crusher machine and 1 generator of the ownership of the petitioner which is seized by the respondents and at present the case is pending with the respondent, on such terms and conditions as this Hon'ble Court

C/SCA/8181/2022 ORDER DATED: 04/05/2022

may deem think fit.

(c) This Hon'ble Court may be pleased to quash and set aside the seizure memo dated 04.03.2022 & Notice dated 09.03.2022 issued in connection with the 3 crusher machine and 1 generator of the ownership of the petitioner which is seized by the respondents.

(d) Pending admission and final disposal of this petition, your lordships may be pleased to release the machines bearing 3 crusher machine and 1 generator on appropriate terms and conditions that may be deem fit and proper to this Hon'ble court.

(e) Grant such other and further relief as thought fit in the interest of justice."

4. It is the case of the petitioner that the petitioner is owner of three crusher machine and one generator (hereinafter referred to as 'the vehicle in question'). On 04.03.2022, inspection was carried out by the team of respondent no.2 at Kutchdi village where the present machine was found without permit pass mining lime stone. The machines was seized by the respondent and was kept at the kutchdi gram panchayat office. The copy of the seizure memo dated 04.03.2022 and notice dated 09.03.2022 is produced on record at Annexure-B Colly. It is submitted that in spite of the fact that though the petitioner has made several request to release his vehicle before the respondent no.2, his request are not responded and thus the petitioner thereafter on 18.04.2022 made a representation before the office of respondent no.2 stating that the vehicle is seized by the respondent no.2 and till 18.04.2022 i.e. till 45 days as per Rule 12 (2)(b)(ii) of the said rules if the application for compounding of offence is not received the vehicle so seized shall be produced before the Court power to determine commission of such

C/SCA/8181/2022 ORDER DATED: 04/05/2022

offence, upon expiry of 45 days fromthe date of the seizure or upon completion of investigation, whichever is earlier. The petitioner has not committed any offence which falls under the ingredients of Rule 12 of Gujarat Mineral (Prevention of illegal Mining, Storage and Transportation) Rule 2017.

5. Mr. Jay Shah, learned advocate for the petitioner has submitted that as is clear that the The petitioner is owner of three crusher machine and one generator(hereinafter referred to as 'the vehicle in question') vehicle came to be seized on 04.03.2022 by the respondent No.2 and since then vehicle is lying with the respondent authorities, no steps worth the name have been initiated by the respondent, much less filing 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"). 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. It is urged that the petition be entertained only for the limited purpose of release of the vehicle.

C/SCA/8181/2022 ORDER DATED: 04/05/2022

6. On the other hand, the learned Assistant Government Pleader has fairly conceded upon instructions that no orders have been passed. It is also conceded 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 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 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

C/SCA/8181/2022 ORDER DATED: 04/05/2022

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 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

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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. machines bearing 3 crusher machine and 1 generator. It will be open to the respondent authority to consider the reply and pass orders, strictly in accordance with law. 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.

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)

Pallavi