Gujarat High Court
Hardasbhai Odedara vs State Of Gujarat on 3 February, 2023
Bench: Biren Vaishnav
C/SCA/26725/2022 ORDER DATED: 03/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26725 of 2022
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HARDASBHAI ODEDARA
Versus
STATE OF GUJARAT
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Appearance:
MS NAMRATA HARISHBHAI CHAUHAN(6534) for the Petitioner(s) No. 1
MR. SANJAY UDHWANI, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3
NOTICE NOT RECD BACK for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 03/02/2023
ORAL ORDER
1. Leave to amend. Rule. Learned AGP Mr. Sanjay
Udhwani, 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 vehicle bearing registration No. GJ-10-X-
6209 owned by the petitioner.
3. It is the case of the petitioner that the petitioner is the
C/SCA/26725/2022 ORDER DATED: 03/02/2023
owner of the vehicle bearing registration No. GJ-10-X-
6209. On 15.10.2022, the respondent No.2 had seized the
said vehicle and a show cause notice was not issued.
4. Learned advocate Ms. Namrata Chauhan 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, in that case, as per the catena of decisions of this
Court, the vehicle is required to be released by this Court
by directing the authority to release the vehicle.
5. Learned AGP Ms. Pancholi could not dispute the
aforesaid fact that 45 days from the date of seizure of the
vehicle is over. She also could not point out that any FIR
in respect of the vehicle seized is filed.
6. Heard the learned advocates for the respective parties
and also perused the documents as pointed out by them.
C/SCA/26725/2022 ORDER DATED: 03/02/2023
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."
7. The vehicle was seized on 15.10.2022, 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 vehicle 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/26725/2022 ORDER DATED: 03/02/2023
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 subrule 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. In fact 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
C/SCA/26725/2022 ORDER DATED: 03/02/2023
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 notarise; 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 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.
C/SCA/26725/2022 ORDER DATED: 03/02/2023
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 vehicle
bearing registration No. GJ-10-X-6209, deserves to be
quashed and set aside, and is accordingly, quashed and
set aside. The respondent authority, is forthwith directed
to release the vehicle in question.
11. Petition is allowed accordingly. Rule is made absolute
to the aforesaid extent. Direct service is permitted. No
order as to costs.
(BIREN VAISHNAV, J)
BIMAL
