Gujarat High Court

Ayajkhan Jikarkhan Yusufajaj vs State Of Gujarat on 12 October, 2022

Bench: Nirzar S. Desai

    C/SCA/19771/2022                              ORDER DATED: 12/10/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 19771 of 2022

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                       AYAJKHAN JIKARKHAN YUSUFAJAJ
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) 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. 1,2
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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 prayed for quashing and setting aside

the action of the respondent no. 2 of seizing the vehicle i.e.

Tata Hitachi Machine bearing registration No.GJ-10-AF-0104.

2. Heard learned advocate Ms. Kruti M. Shah 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

C/SCA/19771/2022 ORDER DATED: 12/10/2022

Mr.Hardik Mehta waives service of rule on behalf of

respondent State authorities.

4. It is the case of the petitioner that the petitioner is the owner of

the vehicle bearing Registration No.GJ-10-AF-0104 and the

same was purchased by the petitioner from one Kalpeshbhai

Vejanandbhai Nandaniya and thereafter, it was used by the

present petitioner. However, though the petitioner started

using the aforesaid vehicle, it could not be transferred in the

name of the petitioner as there was delay in initiating the

procedure for transfer at the ends of the petitioner and the

original owner does not have any objection, if the vehicle is

released and given to the petitioner. It is further submitted by

learned advocate Ms. Shah that on 25.03.2021, the said

machine was seized by the respondent no. 2 - The Mines

Supervisor, Geology and Mining Department, Chhota Udepur

on the ground that vehicle was mining outside the lease area

and seizure memo was issued against the present petitioner.

5. Learned advocate Ms. Shah for the petitioner states that since

C/SCA/19771/2022 ORDER DATED: 12/10/2022

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 Ms. Shah states that the issue is

squarely covered by the order of the co-ordinate Bench of this

Court in Special Civil 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.

6. Mr.Trivedi, learned Assistant Government Pleader could not

point out anything from the record to suggest that there is an

FIR registered against the present petitioner nor he could

dispute the settled proposition of law by pointing out any other

provisions of law or any decision of this Court contrary to the

C/SCA/19771/2022 ORDER DATED: 12/10/2022

submissions made by the learned advocate for the petitioner.

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:

"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 26.6.2020, 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

C/SCA/19771/2022 ORDER DATED: 12/10/2022

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:-

"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

C/SCA/19771/2022 ORDER DATED: 12/10/2022

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

C/SCA/19771/2022 ORDER DATED: 12/10/2022

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."

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

C/SCA/19771/2022 ORDER DATED: 12/10/2022

respondent authority in seizing the truck bearing registration