Gujarat High Court
Asifbhai Mubarakbhai Malek vs State Of Gujarat on 1 February, 2023
Bench: Biren Vaishnav
C/SCA/25841/2022 ORDER DATED: 01/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 25841 of 2022
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ASIFBHAI MUBARAKBHAI MALEK
Versus
STATE OF GUJARAT
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Appearance:
MR R.K.MANSURI(3205) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 01/02/2023
ORAL ORDER
1. Rule returnable forthwith. Ms. Dharitri Pancholi, learned
AGP waives service of notice of rule on behalf of the
respondent - State. With consent of the learned advocates for
the respective parties, the matter is taken up for final hearing
today.
2. By way of this petition under Article 226 of the
Constitution of India, the petitioner has prayed for quashing and
setting aside the action of the respondent qua seizing of the
truck bearing registration No. GJ-16-W-7252 and to direct the
C/SCA/25841/2022 ORDER DATED: 01/02/2023
respondent authorities to release aforesaid truck forthwith in the
interest of justice.
3. Mr. Mansuri, learned counsel for the petitioner, would rely
on an order passed by this Court in Special Civil Application
No. 19555 of 2022 which reads as under:
"7 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."
8 The truck was seized on 06.10.2021, 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
C/SCA/25841/2022 ORDER DATED: 01/02/2023
of the truck by the respondent authority, is illegal and
against the provisions of the Rules.
9 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 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
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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."
10 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
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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.
11 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-10-U-6998 deserves to be quashed and
set aside and is accordingly, quashed and set aside. The
respondent authority, is forthwith directed to release the
truck.
12 With the aforesaid direction, the matter is partly
allowed. Rule made absolute to the aforesaid extent. Direct
service is permitted."
4. 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-16-W-7252 deserves to be
quashed and set aside and is accordingly, quashed and set
aside. The respondent authority, is forthwith directed to
release the truck.
C/SCA/25841/2022 ORDER DATED: 01/02/2023
5. With the aforesaid direction, the petition is allowed.
Rule made absolute to the aforesaid extent. Direct service
is permitted. No costs.
(BIREN VAISHNAV, J)
VATSAL
