Hamirbhai Hardasbhai Ambaliya vs State Of Gujarat
2023 Latest Caselaw 115 Guj

     C/SCA/17513/2022                              ORDER DATED: 05/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17513 of 2022

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                        HAMIRBHAI HARDASBHAI AMBALIYA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MS NAMRATA HARISHBHAI CHAUHAN(6534) 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. 1,2,4
NOTICE SERVED BY DS for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 05/01/2023

                                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 appearing for the respective parties, the

matter is taken up for final hearing today.

2 The prayer in this petition is for a direction to

release the Hitachi machine Hyundai R-215 LC-7

S.N.N603D01918 owned by the petitioner which is seized

by the respondent authorities.

C/SCA/17513/2022 ORDER DATED: 05/01/2023

3 Ms. Dharitri Pancholi, learned AGP, would submit

that an FIR has been filed in the case on hand.

4 In the facts of the case, what is evident is that, the

FIR is filed beyond a period of 45 days.

5 Learned counsel appearing for the petitioner would

rely on a decision rendered by this Court in Special Civil

Application No. 5161 of 2022 dated 06.04.2022, the

relevant paragraphs of which read as under:

"6. Heard the learned advocates appearing for the respective parties.

7. It is undisputed that seizure memo was issued on 05.01.2022 followed by the show cause notice dated 07.01.2022 and 04.02.2022. 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 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

C/SCA/17513/2022 ORDER DATED: 05/01/2023

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 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

C/SCA/17513/2022 ORDER DATED: 05/01/2023

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 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 machines of

C/SCA/17513/2022 ORDER DATED: 05/01/2023

the writ-applicant pending adjudication before the Sessions Court on the condition the writ-applicant deposits solvent surety equivalent to the amount of penalty of Rs.10,63,346/- 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 of Rs.10,63,346/- with the competent 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 machines or create any charge over the machines till the conclusion of the trial.

(iii) The writ-applicant shall produce the machines 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.

12. In view of the aforementioned discussion, the writapplication succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted."

6 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

C/SCA/17513/2022 ORDER DATED: 05/01/2023

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 Hitachi

machine Hyundai R-215 LC-7 S.N.N603D01918 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 of

Rs.08,76,788/- 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 of Rs.08,76,788/-

with the competent 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 machines or create any charge

over the machines till the conclusion of the trial.

C/SCA/17513/2022 ORDER DATED: 05/01/2023

(iii) The writ-applicant shall produce the machines 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.

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