Gujarat High Court

Dineshbhai Tribhovanbhai Patel vs State Of Gujarat on 11 August, 2023

Bench: Vaibhavi D. Nanavati

                                                                            NEUTRAL CITATION




     C/SCA/13315/2023                         ORDER DATED: 11/08/2023

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
        R/SPECIAL CIVIL APPLICATION NO. 13315 of 2023
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            DINESHBHAI TRIBHOVANBHAI PATEL
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR MJ MEHTA(5797) for the Petitioner(s) No. 1
MR SAURABH J MEHTA(2170) for the Petitioner(s) No. 1
MR. AYAAN PATEL, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,5
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                          Date : 11/08/2023

                            ORAL ORDER

1. With the consent of the learned advocates appearing

for the respective parties, the captioned writ petition is taken up

for final hearing.

2. Issue RULE, returnable forthwith. Mr. Ayaan Patel,

the learned Assistant Government Pleader waives service of notice

of Rule on behalf of the respondent- State.

3. By way of this petition under Article-226 of the

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Constitution of India, the petitioner has prayed for the following

relief:

"(A) Your Lordships may be pleased to admit/ allow this petition;

(B) Your Lordships may be pleased to direct the respondents herein to release the Vehicle of the present petitioner (numbers of which mentioned in the cause title of the petition) in view of the orders annexed at Annexure 'A' passed by this Hon'ble Court;

(C) Your Lordships may be pleased to grant such other and further relief/s that may be deemed fit and proper in the facts and circumstances of the case."

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

herein is Government Contractor and he is engaged in the

business of Excavation and Transport and he is having Hitachi

Excavator Machine No. 2001-12125 of his ownership. It is the

case of the petitioner that the vehicle of the petitioner herein

being Hitachi Excavator machine No. 2001-12125 had been

illegally seized by the in-charge Circle Officer, Bhilapur on

08.06.2023. On 13.06.2023, the in-charge Circle Officer, Bhilapur

had handed over the possession of the Machine to the Talati-

cum-Mantri, Chanvada and subsequently, the custody of the

machine is handed over to Police Inspector, Dabhoi Police Station

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for the purpose of security. That no seizure memo had been

issued by the concerned authority, which is mandatory

requirement of the Rules of 2017. The petitioner had also made

representations on 19.06.2023 and 04.07.2023 to the respondent

authorities.

5. Mr. Mehta, learned advocate for the petitioner has

submitted that no seizure memo has been issued by the

respondent authority, however, on 08.06.2023, the vehicle in

question came to be seized. However, the F.I.R. as provided

under sub-clause (ii) of sub- clause (b) of sub-Rule (2) of Rule 12

of the Gujarat Mineral (Prevention of Illegal Mining,

Transportation and Storage) Rules, 2017 (hereinafter referred to

as the "Rules of 2017") has not been filed by the respondent

authorities. It is submitted that in absence of any F.I.R.

registered beyond the specified period, the action of the

respondent authority seizing the vehicle, is illegal and against the

principles laid down by this Court in the case of Nathubhai

Jinabhai Gamara v. State of Gujarat , rendered in Special Civil

Application No.9203 of 2020. It is submitted that, this Court has

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categorically held and observed that if the complaint is not

registered as envisaged under sub-clause (ii) of sub-clause (b) of

sub-Rule (2) of Rule 12 of the Rules of 2017, in absence of the

complaint, the competent authority will have no option but to

release the seized vehicle without insisting for any bank

guarantee. Therefore, the principles laid down by this Court in

the case of Nathubhai Jinabhai Gamara (supra) applies to the

facts of the present case. It is therefore urged that the petition

deserves to be allowed directing the respondent authorities to

release the vehicle.

5.1 It is urged that the petition be entertained only for

the limited purpose of release of the vehicle.

6. On the other hand, the learned Assistant Government

Pleader has fairly conceded that no First Information Report has

been registered as provided under the provisions of Rules, 2017.

7. Heard the learned advocates appearing for the

respective parties.

8. It is undisputed that no seizure memo has been issued

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by the respondent authority, however, on 08.06.2023, the vehicle

in question came to be seized. It is not disputed rather conceded

that after the period of 45 days, no First Information Report has

been registered by the respondent authority. Therefore, the

principle laid down by this Court in the case of Nathubhai

Jinabhai Gamara (supra) applies to the facts of the present case.

9. In the aforesaid judgment, this Court, while dealing

with the provisions of the sub-clause (ii) of sub-clause (b) of sub-

Rule (2) of Rule 12 of the Rules of 2017, in paragraphs 7, 10

and 11 has held and observed 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

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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 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."

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

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favour of the person from whom it was seized, without insisting

for the bank guarantee.

10. In view of the fact that no First Information Report

has been registered and the principle laid down by this Court in

the aforesaid case applies to the facts of the present case, the

present petition deserves to be allowed and is accordingly

allowed to the limited extent of directing the respondent to

release the vehicle of the petitioner i.e. Hitachi Excavator

machine No. 2001-12125. It is clarified that this Court, has not

examined the merits of the issue involved and the observations

made are only for the limited purpose of releasing the vehicle.

11. In view of the aforementioned discussion, the petition

succeeds and is accordingly allowed to the aforesaid extent. Rule

is made absolute to the aforesaid extent. No order as to costs.