Gujarat High Court

Vihabhai Devayatbhai Rojiya vs State Of Gujarat on 12 October, 2022

Bench: Nirzar S. Desai

    C/SCA/19913/2022                             ORDER DATED: 12/10/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 19913 of 2022

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                       VIHABHAI DEVAYATBHAI ROJIYA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MS NAMRATA HARISHBHAI CHAUHAN(6534) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3
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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 prayed to forthwith release of vehicle

bearing registration No.GJ-13-AW-8504 seized by the

respondent authority.

2. At the outset, learned advocate Ms. Shruti Pandya for learned

advocate Mr. Namrata Chauhan, for the petitioner, upon

instructions does not press the prayer 7 (C).

3. Heard learned advocate Ms. Shruti Pandya for learned

advocate Ms. Namrata Chauhan for the petitioner and learned

C/SCA/19913/2022 ORDER DATED: 12/10/2022

Assistant Government Pleader Mr. Hardik Mehta for

respondent - State.

4. 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

respondent State authorities.

5. It is the case of the petitioner that on 23.07.2022, the

petitioner's vehicle was seized by the respondent no. 4 near

Sarla-Kalmad Road, Village:- Kalmad, Taluka: Mulli,

District:- Surendranagar for violation of the Prevention of

Illegal Mining, Transportation and Storage Rules, 2017 and for

that a show cause notice was issued by the respondent

authority on 13.09.2022. According to learned advocate for the

petitioner, after the vehicle was seized on 23.07.2022 the

period of 45 days is over 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

C/SCA/19913/2022 ORDER DATED: 12/10/2022

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 for the

petitioner 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. Learned AGP Mr. Hardik Mehta appearing for the respondent

- State has opposed the petition. He could not point out any

material on record to show that any FIR is registered against

the petitioner within a period of 45 days from the date of

seizure of vehicle nor he could dispute the date of seizure of

the vehicle.

7. Heard the learned advocates for the respective parties and also

perused the documents as pointed out by them. The issue

C/SCA/19913/2022 ORDER DATED: 12/10/2022

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 23.07.2022, 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.

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

C/SCA/19913/2022 ORDER DATED: 12/10/2022

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 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

C/SCA/19913/2022 ORDER DATED: 12/10/2022

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.

C/SCA/19913/2022 ORDER DATED: 12/10/2022

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

respondent authority in seizing the truck bearing registration

No.GJ-13-AW-8504 , deserves to be quashed and set aside and