Gujarat High Court

Shobhaben Rameshbhai Makavana vs State Of Gujarat on 12 October, 2022

Bench: Nirzar S. Desai

    C/SCA/15383/2022                           ORDER DATED: 12/10/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 15383 of 2022

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                   SHOBHABEN RAMESHBHAI MAKAVANA
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR HIRENKUMAR M NIYALCHANDANI(9959) for the Petitioner(s) No. 1
MR.HARDIK MEHTA, 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
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                           Date : 12/10/2022
                            ORAL ORDER

1. By way of this petition under Article 226 of the Constitution

of India, the petitioner has prayed to forthwith release of

vehicle bearing registration No.GJ-10-U-8925 seized by the

respondent authority.

2. Heard learned advocate Mr. Hirenkumar M. Niyalchandani for

the petitioner and learned Assistant Government Pleader Mr.

Hardik Mehta for respondent - State.

3. By the consent of learned advocates for the parties, the matter

is taken up for final hearing. Hence, Rule. Learned AGP

Mr.Hardik Mehta waives service of rule on behalf of

C/SCA/15383/2022 ORDER DATED: 12/10/2022

respondent State authorities.

4. At the outset, learned advocate Mr. Hirenkumar M.

Niyalchandani for the petitioner places on record an affidavit

dated 07.10.2022. The same is taken on record.

5. It is the case of the petitioner that she is the owner of the Truck

bearing Registration No.GJ-10-U-8925. On 08.03.2022 while

transporting the mineral stones from Surendranagar to Rajkot,

Airport police have intercepted the vehicle and interrogated

the driver and seized the vehicle for transporting the mining

which was illegal. Thereafter, seizure memo was also issued to

the petitioner. Thereafter, Mining Department issued a show

cause notice to the petitioner on 10.05.2022 and at that time,

the petitioner filed an affidavit before the concerned authority

at Rajkot on 25.08.2022 stating that the petitioner is ready to

pay an amount of Rs. 93,733/- and Rs.901/- for environmental

dues. However, after knowing that while passing the order

directing the authorities to release the vehicle of similarly

situated persons, this Court has not directed the other similarly

C/SCA/15383/2022 ORDER DATED: 12/10/2022

situated persons either to deposit any amount before the

authority or to provide bank guarantee and therefore, by way

of this affidavit, which is submitted today, the petitioner has

stated that the petitioner withdraws the aforesaid affidavit

dated 25.08.2022 and she may be permitted to withdraw the

aforesaid affidavit.

6. Learned advocate Mr. Hirenkumar M. Niyalchandani for the

petitioner states that since last more than 45 days the vehicle

has been seized and FIR is not registered in respect of seizure

of the vehicle. As per rule 12(2)(b)(ii) of the Gujarat Mineral

(Illegal Mining, Transpiration and Storage) rules, 2017 (for

short, `the Rules') if an application for compounding of

offence is not received, the vehicle/machine 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, the

vehicle is required to be released. Learned advocate Mr.

Niyalchandani states that the issue is squarely covered by the

order of the co-ordinate Bench of this Court in Special Civil

C/SCA/15383/2022 ORDER DATED: 12/10/2022

Application No.9203 of 2020 order dated 26.8.2020 and order

dated 1.12.2021 passed in Special Civil Application No.16887

of 2021.

7. Learned AGP Mr. Hardik Mehta has strongly opposed this

petition by stating that the petitioner has already filed an

affidavit that she is ready and willing to deposit an amount of

Rs.93,733/- + Rs.901/- towards environmental charges and

therefore, once that affidavit is submitted before the authority,

unless that amount is deposited, this Court may not issue any

direction to the authority to release the vehicle of the

petitioner.

8. Learned Assistant Government Pleader Mr. Hardik Mehta,

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.

9. As far as the opposition by the learned AGP Mr. Mehta against

the affidavit submitted by the petitioner is concerned, this

Court is of the view that in similar cases, it has not been

C/SCA/15383/2022 ORDER DATED: 12/10/2022

insisted upon by the Coordinate Bench as well as by this Court

to direct the affected person whose vehicle is seized to deposit

any amount or to furnish the bank guarantee and therefore,

merely because the petitioner at one point of time under

compelling circumstances has submitted an affidavit showing

her willingness to deposit sum of Rs. 93,733/- + Rs. 901/-, the

petitioner should not be asked to abide by the aforesaid

affidavit considering the fact that in cases of other similarly

situated persons those deposit or furnishing of bank guarantee

is not insisted upon either by the authority or by this Court.

10. 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

C/SCA/15383/2022 ORDER DATED: 12/10/2022

by way of making a written complaint, before the Court of Sessions."

11. The truck was seized on 08.03.2022, 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 truck by the

respondent authority, is illegal and against the provisions of

the Rules.

12. 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:-

"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

C/SCA/15383/2022 ORDER DATED: 12/10/2022

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

C/SCA/15383/2022 ORDER DATED: 12/10/2022

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."

13. 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

C/SCA/15383/2022 ORDER DATED: 12/10/2022

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.

14. 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