Gujarat High Court
Sajanbhai Karshanbhai Nadaniya vs State Of Gujarat on 16 February, 2023
Bench: Biren Vaishnav
C/SCA/634/2023 ORDER DATED: 16/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 634 of 2023
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SAJANBHAI KARSHANBHAI NADANIYA
Versus
STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MS.DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 16/02/2023
ORAL ORDER
1. Rule. Learned AGP Ms. Dharitri Pancholi waives
service of notice of rule on behalf of the respondent No.1.
2. By way of this petition under Article 226 of the
Constitution of India, the petitioner has prayed for
release of his loader machine bearing no.GJ-10-AM-8470
owned by the petitioner.
3. It is the case of the petitioner that the petitioner is
the owner of the loader machine bearing no.GJ-10-AM-
8470. On 29.07.2021, the respondent No.3 had carried
C/SCA/634/2023 ORDER DATED: 16/02/2023
out inspection and seized the said machines and kept in
the custody of respondent no. 3.
4. Learned advocate Mr. Jay Shah submitted that as
per Rule 12 of the Gujarat Mineral (Prevention of Illegal
Mining Storage and Transportation) Rules, 2017 if no
other actions are taken and if the FIR is also not filed
within a period of 45 days from the date of seizure of
vehicle/machine, in that case, as per the catena of
decisions of this Court, the machine is required to be
released by this Court by directing the authority.
5. Learned AGP Ms. Dharitri Pancholi states that there
is no FIR was filed within 45 days from the date of the
seizure of loader machine bearing no.GJ-10-AM-8470.
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
C/SCA/634/2023 ORDER DATED: 16/02/2023
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."
7. The loader machine was seized on 29.07.2021, 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 machines 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
C/SCA/634/2023 ORDER DATED: 16/02/2023
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 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
C/SCA/634/2023 ORDER DATED: 16/02/2023
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."
9. It has been held that it would be obligatory for the
investigator to approach the Court of Sessions with a
C/SCA/634/2023 ORDER DATED: 16/02/2023
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. Under the circumstances, in absence of any
complaint, the petition deserves to be allowed and the
action of the respondent authority in seizing the loader
machine in question, deserves to be quashed and set
aside, and is accordingly, quashed and set aside. The
respondent authority, is forthwith directed to release the
loader machine bearing no.GJ-10-AM-8470. Petition is
allowed accordingly. Rule made absolute to the aforesaid
extent. Direct service is permitted.
(BIREN VAISHNAV, J)
ANKIT SHAH
