Rajubhai Butabhai Fangaliya vs State Of Gujarat
2023 Latest Caselaw 893 Guj

    C/SCA/26476/2022                             ORDER DATED: 06/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 26476 of 2022

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                       RAJUBHAI BUTABHAI FANGALIYA
                                  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 : 06/02/2023

                              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 reproduced thus :-

"(A) This Hon'ble Court may be pleased to admit and allow this petition;

C/SCA/26476/2022 ORDER DATED: 06/02/2023

(B) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for releasing the vehicle bearing Sany Hydraulic Excavator, Model SY210_AC, Serial No.22SY210C000732 of the ownership of the petitioner which is seized by the respondents and at 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 vehicle bearing Sany Hydraulic Excavator, Model SY210_AC, Serial No.22SY210C000732 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 Sany Hydraulic Excavator, Model SY210_AC,

C/SCA/26476/2022 ORDER DATED: 06/02/2023

Serial No.22SY210C000732. It is submitted that the vehicle in

question was seized and seizure notice pertaining to the same

came to be issued on 19.11.2022 imposing penalty of

Rs.10,60,759/-.

4.1 Mr. Shah, the learned advocate for the writ-applicant

submitted that the writ-applicant preferred a representation

before the respondent authority to release his machines under

the provisions of Rule 12(2)(b)(ii) on 24.11.2022.

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

beyond the specified period, the action of the respondent

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

C/SCA/26476/2022 ORDER DATED: 06/02/2023

(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.

4.3 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 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.

5. On the other hand, the learned Assistant Government Pleader

C/SCA/26476/2022 ORDER DATED: 06/02/2023

Ms. Pancholi, upon instructions, states that the FIR was filed

within a period of 45 days, inasmuch as, it was filed on

17.12.2022 when the seizure was on 2.11.2022.

6. Mr. Jay Shah, learned counsel for the petitioner would submit

that the FIR was filed on 17.12.2022 which is the 46 th day after

the seizure order. Apparently, it appears that the submission of

learned counsel for the petitioner is in consonance with Rule

12(b) of the Rules in question.

7. It is undisputed that seizure notice was issued on 19.11.2022.

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.

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

C/SCA/26476/2022 ORDER DATED: 06/02/2023

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

C/SCA/26476/2022 ORDER DATED: 06/02/2023

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 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

C/SCA/26476/2022 ORDER DATED: 06/02/2023

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.

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 Sany Hydraulic Excavator, Model

SY210_AC, Serial No.22SY210C000732 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 :-

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(i) 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 Sany Hydraulic Excavator, Model

SY210_AC, Serial No.22SY210C000732 or create any

charge over the vehicle in question till the conclusion of

the trial.

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

Sany Hydraulic Excavator, Model SY210_AC, Serial

No.22SY210C000732 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.

C/SCA/26476/2022 ORDER DATED: 06/02/2023

11. This order is passed in the peculiar facts and circumstances

of the present case.

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) VATSAL