Gujarat High Court

Karshan Nagabhai Karmur vs State Of Gujarat on 24 August, 2023

Bench: Vaibhavi D. Nanavati

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     C/SCA/13492/2023                           ORDER DATED: 24/08/2023

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
        R/SPECIAL CIVIL APPLICATION NO. 13492 of 2023
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               KARSHAN NAGABHAI KARMUR
                            Versus
                    STATE OF GUJARAT
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Appearance:
MS. RIDDHI JOSHI FOR MS NAMRATA HARISHBHAI
CHAUHAN(6534) for the Petitioner(s) No. 1
MS. TANUSHREE SHRIMAL, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,3
NOTICE SERVED BY DS for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 24/08/2023

                              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. Ms. Tanushree

Shrimal, 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) This Hon'ble Court may be pleased to admit and allow this petition;

(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for releasing the Loader vehicle bearing No. GJ-03-BW-9006 of the ownership of the petitioner, (Annexure-A) which is seized by the respondent No.4 and at presents the case, is pending with the respondent, on such terms and conditions as this Hon'ble Court may deem think fit.

(c) This Hon'ble Court may be pleased to quash and set aside notice dated 17.07.2023 (Annexure-B) issued in connection with the Loader vehicle bearing No. GJ-03-BW-9006 of the ownership of the petitioner which is seized by the respondents.

(d) Pending admission and final disposal of this petition, your lordships may be pleased to release the Loader vehicle bearing No. GJ-03-BW-9006 on appropriate terms and conditions that may be deem fit and proper to this Hon'ble court.

(e) Grant such other and further relief as thought fit in the interest of justice.

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

the owner of the Loader vehicle being No. GJ-03-BW-9006. It is

the case of the petitioner that on 09.06.2023, the respondent

no.3 detained the said vehicle in violation of the Rules and

therefore the vehicle was seized by the respondent on

09.06.2023. It is the case of the petitioner that, the petitioner

has made several oral requests to release his vehicle before the

respondent no.2, his request are not responded. The Notice came

to be issued on 17.07.2023. It is the case of the petitioner that,

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till date, no F.I.R. has been registered.

5. Ms. Riddhi Joshi, learned advocate for Ms. N.H.

Chauhan, learned advocate for the petitioner has submitted that

as is clear from the seizure memo, which was issued on

09.06.2023, thereafter, on 17.07.2023 Notice came to be issued,

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 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

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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 seizure memo was issued on

09.06.2023, thereafter, Notice came to be issued on 17.07.2023.

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

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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 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.

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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

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

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