Shaileshbhai Ramaji Thakor vs State Of Gujarat
2022 Latest Caselaw 9028 Guj

     C/SCA/19907/2022                              ORDER DATED: 12/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 19907 of 2022
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                        SHAILESHBHAI RAMAJI THAKOR
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI AGP 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. Rule. Learned Assistant Government Pleader Mr.Sahil Trivedi waives service of notice of Rule on behalf of respondent - State.

2. By way of this petition, the petitioner has prayed for direction to the respondent for release of vehicle of the petitioner i.e. truck bearing registration No. GJ-18

- AU - 7937 made of Tata Motors TRKOPN owned by the petitioner, which is seized by the respondent authorities.

3.1 It is the case of the petitioner that the petitioner is the owner of vehicle i.e. truck Tata Motors TRKOPN bearing Registration No. GJ-18 - AU - 7937. That on

C/SCA/19907/2022 ORDER DATED: 12/10/2022

05.08.2022 the said vehicle owned by the petitioner was seized by the Respondent No.2 authority from Toll Booth, Nr. Sughad Village, Bhat. The petitioner had given the said vehicle to one of his friends and hence the seizure memo was issued in the name of friend of the petitioner viz. Vinodbhai Dahyabhai Vanjara.

3.2 It is the case of the petitioner that though the vehicle was seized by the authority on 05.08.2022 and thereafter though more than 45 days have passed, till date no FIR is registered against the present petitioner for violation of the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Shortage and Transportation) Rules, 2017 ('the Rules, 2017', for short).

4. Learned advocate Mr.Shah submitted that in view of catena of decisions of this Court as the period of 45 days from date of seizure of vehicle is over, since no FIR is registered, the respondent authorities may be directed to release the vehicle of the petitioner.

5. Learned Assistant Government Pleader Mr.Sahil

C/SCA/19907/2022 ORDER DATED: 12/10/2022

Trivedi vehemently opposed the petition. However, he could not point out from the record that any FIR is registered against the petitioner. Further, he also could not point out any material which may satisfy this Court to take the view contrary than the view already taken by this Court as well as the coordinate bench of this Court in catena of decisions.

6. 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."

C/SCA/19907/2022 ORDER DATED: 12/10/2022

7. The truck was seized on 05.08.2022, 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.

8. 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

C/SCA/19907/2022 ORDER DATED: 12/10/2022

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 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

C/SCA/19907/2022 ORDER DATED: 12/10/2022

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."

9. 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

C/SCA/19907/2022 ORDER DATED: 12/10/2022

person from whom it was seized, without insisting for the bank guarantee.

10. 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-18 - AU - 7937 made of Tata Motors TRKOPN deserves to be quashed and set aside and is accordingly, quashed and set aside. The respondent authority, is forthwith directed to release the truck.

11. 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.