Nathabhai Balubhai Gosiya vs State Of Gujarat
2023 Latest Caselaw 383 Guj

     C/SCA/23528/2022                          ORDER DATED: 13/01/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO.23528 of 2022

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                        NATHABHAI BALUBHAI GOSIYA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR. NIKHIL R OZA(9911) for the Petitioner(s) No. 1
MS DHAIRITRI PANCHOLI, AGP for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                  Date : 13/01/2023
                   ORAL ORDER

1. Rule. Learned AGP waives service of notice of rule for the

respondents.

2. Mr. Nikhil Oza, learned counsel for the petitioner has

tendered additional affidavit on behalf of the petitioner which is

taken on record. Such affidavit indicates that the FIR has been

registered on 06.12.2022.

3. Mr. Oza, learned counsel for the petitioner relies on an

order of the Coordinate Bench of this Court dated 07.01.2022

passed in Special Civil Application No.7823 of 2021. The relevant

portion of the said decision is reproduced hereunder:

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

C/SCA/23528/2022 ORDER DATED: 13/01/2023

7. It is undisputed that seizure memo was issued on 24.6.2020 followed by show cause notice dated 21.7.2020. It is not disputed rather conceded that after the 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 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

C/SCA/23528/2022 ORDER DATED: 13/01/2023

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 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

C/SCA/23528/2022 ORDER DATED: 13/01/2023

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."

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 was been registered by the competent authority after 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 Truck of the writ-applicant bearing Registration No.MP-09-HJ-8848 pending adjudication before the Sessions Court on the condition the writ-applicant deposits solvent surety

C/SCA/23528/2022 ORDER DATED: 13/01/2023

equivalent to the amount of total penalty of Rs.5,82,565/- 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 total penalty of Rs.5,82,565/- 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 vehicle or create any charge over the vehicle till the conclusion of the trial.

(iii) The writ-applicant shall produce the vehicle 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."

4. In view of the fact that First Information Report has been

registered by the competent authority after completion of the 45

C/SCA/23528/2022 ORDER DATED: 13/01/2023

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

Truck of the writ-applicant bearing Registration No.GJ-03-Y-9455

pending adjudication before the Sessions Court on the condition

the writ-applicant deposits solvent surety equivalent to the

amount of total penalty of Rs.2,03,080/- 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 total penalty of

Rs.2,03,080/- 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 vehicle or create any charge

over the vehicle till the conclusion of the trial.

C/SCA/23528/2022 ORDER DATED: 13/01/2023

(iii) The writ-applicant shall produce the vehicle

as and when the Authority or the Court concerned

directs him to do so.

5. 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.

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

of the present case.

7. In view of the aforementioned discussion, the writ-

application succeeds and is accordingly allowed. Rule is made

absolute to the aforesaid extent. Direct Service is permitted. No

order as to costs.

(BIREN VAISHNAV, J) VATSAL