Sureshbhai Ukabhai Gohil vs State Of Gujarat
2023 Latest Caselaw 865 Guj

    C/SCA/769/2023                            ORDER DATED: 03/02/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 769 of 2023

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                     SURESHBHAI UKABHAI GOHIL
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MS. DHARITRI PANCHOLI, ASSISTANT GOVERNMENT PLEADER/PP 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
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                          Date : 03/02/2023

                           ORAL ORDER

1. Rule. Ms. Dharitri Pancholi, the learned AGP waives

service of notice of rule for the respondents.

2. This writ-application is filed under Article 226 of the

Constitution of India by the writ-applicant seeking for the

following reliefs which are produced thus :-

"(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 truck bearing GJ-05-BU-5550 of the ownership of the petitioner which is seized by the respondents and at

C/SCA/769/2023 ORDER DATED: 03/02/2023

present the case is pending with the respondent, on such terms and conditions as this Hon'ble Court may deem think fit.

(C) Pending admission and final disposal of this petition, your lordships may be pleased to release the truck bearing GJ-05-BU-5550 on appropriate terms and conditions that may be deem fit and proper to this Hon'ble court.

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

3. Heard Mr. Jay N. Shah, the learned advocate appearing

for the writ-applicant and Ms. Dharitri Pancholi, the

learned AGP appearing for the respondents.

4. Mr. Jay N. Shah, the learned advocate appearing for

the writ-applicant submitted that the writ-applicant is

owner of the vehicle bearing Truck No GJ-05-BU-5550. It

is submitted that the vehicle in question was seized and

Notice pertaining to the same came to be issued on

30.11.2022 imposing penalty of Rs.3,20,296/-.

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

beyond the specified period, the action of the respondent

C/SCA/769/2023 ORDER DATED: 03/02/2023

authority seizing the machines, 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 option

but to release the seized machines without insisting for

any bank guarantee. Therefore, the principles laid down

by this Court in the case of Nathubhai Jinabhai Gamara v.

State of Gujarat (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 machines.

4.2 In view of the ratio as laid down by the Coordinate

Bench of this Court in the Special Civil Application

No.9203 and Letters Patent Appeal No.717 of 2020

C/SCA/769/2023 ORDER DATED: 03/02/2023

wherein this Court took the view that either FIR or

written complaint as contemplated under Rule 12 is

required to be filed within a period of 45 days from the

date of seizure and in absence of the same the machines

be released unconditionally.

4.3 The writ-applicant has stated that the notice was

issued by this Court making it returnable on 03.02.2023.

After issuance of notice by this Court a criminal

complaint for confiscation proceeding came to be

initiated by the respondent authority and FIR came to be

registered after 45 days as stated by the learned

advocates appearing for both the parties.

4.4 It is urged that the petition be entertained only for the

limited purpose of release of the truck. So far as the

adjudication of the show cause notices is concerned, the

petitioner be permitted to pursue the said show cause

notice as per the provisions of the Act.

C/SCA/769/2023 ORDER DATED: 03/02/2023

5. On the other hand, the learned Assistant Government

Pleader has fairly conceded on instructions that after the

issuance of the seizure memo, no orders have been

passed considering the pendency of the writ petition. It is

also conceded on instructions that no First Information

Report has been registered as provided under the

provisions of Rules of 2017. However, the FIR has been

registered after 45 days as stated by the learned

advocates appearing for both the parties.

6. Heard the learned advocates appearing for the

respective parties.

7. It is undisputed that notice was issued on 30.11.2022.

It is not disputed rather conceded that within a 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 v. State of Gujarat (supra) applies to the facts of

the present case.

C/SCA/769/2023 ORDER DATED: 03/02/2023

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

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

of subRule (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

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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 machines; (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 machines 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

C/SCA/769/2023 ORDER DATED: 03/02/2023

property will have to be released in favour of the person

from whom it was seized, without insisting for the bank

guarantee.

9. In view of the fact that no First Information Report has

been registered by the competent authority before

completion of the 45 days and the principle laid down by

this Court in the aforesaid case applies to the facts of the

present case, the present writ-application deserves to be

allowed and is accordingly allowed to the limited extent

of directing the respondent to release the vehicle bearing

Truck No GJ-05-BU-5550 of the writ-applicant pending

adjudication before the Sessions Court on the condition

the writ-applicant deposits solvent surety equivalent to

the amount of penalty with the competent Court. Further

the writ-applicant is directed to fulfill the following

conditions :-

(i) The writ-applicant shall furnish a solvent surety

equivalent to the amount of penalty with the competent

C/SCA/769/2023 ORDER DATED: 03/02/2023

Court.

(ii) The writ-applicant shall file an undertaking on oath

before the learned trial Court that the writ-applicant shall

not transfer, alienate, part with the possession of the

vehicle bearing Truck No GJ-05-BU-5550 or create any

charge over the vehicle in question till the conclusion of

the trial.

(iii) The writ-applicant shall produce the vehicle bearing

Truck No GJ-05-BU-5550 as and when the Authority or

the Court concerned directs him to do so.

10. This Court has not assessed the merits of the matter.

It is directed that the Court below shall proceed with the

complaint pending before the said Court independently

and in accordance with law.

11. This order is passed in the peculiar facts and

circumstances of the present case.

C/SCA/769/2023 ORDER DATED: 03/02/2023

12. In view of the aforementioned discussion, the writ

application succeeds and is accordingly allowed. Rule is

made absolute to the aforesaid extent. No order as to

costs. Direct service is permitted.

(BIREN VAISHNAV, J) BIMAL