Gujarat High Court
Shaileshbhai Dalpatbhai Oad vs State Of Gujarat on 11 October, 2022
Bench: Nirzar S. Desai
C/SCA/19555/2022 ORDER DATED: 11/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19555 of 2022
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SHAILESHBHAI DALPATBHAI OAD
Versus
STATE OF GUJARAT
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Appearance:
MR R.K.MANSURI(3205) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 11/10/2022
ORAL ORDER
1. Rule. Learned Assistant Government Pleader
Mr.Sahil Trivedi for the respondent State. With consent
of learned advocates for the parties, the matter is
decided finally.
2. By way of this petition under Article 226 of the
Constitution of India, the petitioner has prayed for
quashing and setting aside the action of the respondent
qua seizing of the truck bearing registration No.GJ-10-
U-6998 and to direct the respondent authorities to
release aforesaid truck forthwith in the interest of
justice.
C/SCA/19555/2022 ORDER DATED: 11/10/2022
3. Heard learned advocate Mr.Mansuri for the
petitioner. Learned advocate Mr.Mansuri submitted that
the petitioner is owner of the truck bearing registration
No.GJ-10-U-6998 and by way of using truck for
transportation he is earning his livelihood.
3.1 While the truck of the petitioner had gone for
loading the sand mineral at Dholai Bandar on
06.10.2021, a checking from the officer of the
respondent authority took place and at that time the
truck was found near stock-yard and the truck of the
petitioner was seized.
4.1 Learned advocate Mr.Mansuri states that as per
Rule 12(2) (b)(ii) of the Gujarat Mineral (Prevention of
Illegal Mining, Shortage and Transportation) Rules,
2017 ('the Rules, 2017', for short) if after the seizure
of the truck within 45 days no FIR is registered against
the present petitioner, in that case, the truck is
required to be released.
4.2 Learned advocate Mr.Mansuri submitted that
considering the fact that truck was seized on
C/SCA/19555/2022 ORDER DATED: 11/10/2022
06.10.2021 which is almost before one year and till the
date, no FIR is registered by the respondent, the truck
of the present petitioner is required to be released and,
therefore, respondents are required to be directed to
release the truck of the petitioner accordingly.
5. Learned Assistant Government Pleader Mr.Trivedi,
upon instructions, could not dispute the aforesaid fact
that the truck has been seized since 06.10.2021 and
though the period of filing of the FIR is over, no FIR
is registered.
6 Mr.Trivedi, learned Assistant Government Pleader,
upon instructions, states that pursuant to the alleged
incident, no FIR is registered and he could not dispute
the fact that the vehicle has been seized for more than
45 days.
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:
C/SCA/19555/2022 ORDER DATED: 11/10/2022
"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 truck was seized on 06.10.2021, 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 truck 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
Gujarat, passed in Special Civil Application No.9203 of
2020. The Paragraph Nos.7, 10 and 11 of the judgment
read thus:-
C/SCA/19555/2022 ORDER DATED: 11/10/2022
"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
C/SCA/19555/2022 ORDER DATED: 11/10/2022
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."
C/SCA/19555/2022 ORDER DATED: 11/10/2022
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 truck
bearing registration No.GJ-10-U-6998 deserves to be
quashed and set aside and is accordingly, quashed and
set aside. The respondent authority, is forthwith
directed to release the truck.
12 With the aforesaid direction, the matter is partly
allowed. Rule made absolute to the aforesaid extent.
Direct service is permitted.
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
