Gujarat High Court

Ashishbhai Vinubhai Kordiya vs State Of Gujarat on 17 February, 2023

Bench: Biren Vaishnav

     C/SCA/975/2023                             ORDER DATED: 17/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 975 of 2023

==========================================================
                      ASHISHBHAI VINUBHAI KORDIYA
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MR.JAY TRIVEDI, 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
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                            Date : 17/02/2023

                             ORAL ORDER

1. RULE. Learned AGP waives service of notice of

rule for and on behalf of the respondents.

2. The petitioner is seeking a direction on the

respondent No.2 to release the vehicle being Truck

No.GJ-05-YY-9168, which was seized by the

respondent No.3. The respondent No.2 issued a show

cause notice dated 26.12.2022 and passed an ex-parte

order dated 04.01.2023 imposing the penalty of

Rs.1,19,804/- upon the petitioner, in flagrant violation

C/SCA/975/2023 ORDER DATED: 17/02/2023

of principles of natural justice.

3. The brief facts of the case are as under:

3.1 The petitioner is the owner of the vehicle being

Truck No.GJ-05-YY-9168. On 29.03.2022, an

inspection was carried out by the team of respondent

No.3, whereby the vehicle of the petitioner was seized

for the reason that it was found ferrying simple sand

mineral without royalty pass. Thereafter, the

respondent No.2 issued a notice stating that there

was an illegal transportation of ordinary sand without

royalty pass of 13.85 metric ton and the notice is

issued to compound the offence by paying

Rs.1,19,804/-.

3.2 The petitioner has received an order dated

04.01.2023 passed by the Geologist, Narmada

imposing penalty of Rs.1,19,804/- on 04.01.2023.

C/SCA/975/2023 ORDER DATED: 17/02/2023

4. Learned advocate Mr.Shah has submitted that

the action of the respondent no.3 of detaining and

seizing the vehicle on 10.12.2022, is illegal and

against the provisions of the Rules of 2017 inasmuch

as, by now, more than 45 days have been passed and

no complaint, as envisaged under sub-clause (ii) of

clause (b) of sub-rule (2) of Rule 12 of the Gujarat

Mineral (Prevention of Illegal Mining, Transportation

and Storage) Rules, 2017 (for short, "the Mining

Rules"), has been filed. It is therefore, urged that the

issue raised in the present writ petition, stands

covered by the judgment in the case of Nathubhai

Jinabhai Gamara vs. State of Gujarat, rendered in

Special Civil Application No.9203 of 2020 by the

order dated 26.08.2020. It is submitted that this

Court, has held and observed that after the period of

45 days, in absence of any complaint by the

concerned competent authority, the detention and

seizing of the vehicle would render illegal. In support

C/SCA/975/2023 ORDER DATED: 17/02/2023

of her submissions, she has also placed reliance on

the decision dated 01.12.2021 passed in Special Civil

Application No.16887 of 2021.

5. In response to the aforesaid submissions, learned

AGP Mr.Trivedi, upon instructions, has submitted that

the criminal complaint has already been filed and

criminal prosecution has already initiated, however,

the concerned vehicle is not attached as muddamal

article.

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 Rule 12(2)(b)(ii) of the Mining Rules,

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,

C/SCA/975/2023 ORDER DATED: 17/02/2023

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 vehicle was seized on 10.12.2022.

Undisputedly, the complaint, as envisaged under sub-

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

the Mining Rules, has not been filed within 45 days

and, therefore, in absence of any complaint, the

action of continuation of the detention of the vehicle

by the respondent authority, is illegal and against the

provisions of the Mining Rules.

8. Reliance has rightly been placed on the order

dated 26.08.2010 passed in the case of Nathubhai

Jinabhai Gamara Vs. State of Gujarat, in Special Civil

Application No.9203 of 2020. Paragraph Nos.7, 10

and 11 of the order read thus:-

"7. Pertinently the competent authority under Rule 12 is only authorized to seize the property

C/SCA/975/2023 ORDER DATED: 17/02/2023

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. Needless to say that for compounding the offence during the

C/SCA/975/2023 ORDER DATED: 17/02/2023

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 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

C/SCA/975/2023 ORDER DATED: 17/02/2023

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 by the competent