Lakhmanbhai Karshanbhai Jotva vs State Of Gujarat
2023 Latest Caselaw 3853 Guj

    C/SCA/7038/2023                                       ORDER DATED: 03/05/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 7038 of 2023
==========================================================
                      LAKHMANBHAI KARSHANBHAI JOTVA
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MR. TRUPESH KATHIRIYA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
==========================================================

 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 03/05/2023

                                ORAL ORDER

1. Rule. Mr. Trupesh Kathiriya, 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 quashing and setting aside the action of the respondents of seizing the vehicle at ANNEXURE-B and release the TRACTOR WITH TROLLEY, GJ-11-CD-3753 of the ownership of the petitioner which is seized by the respondents and at present the case is pending with the respondents, on such terms and conditions as this Hon'ble Court may deem think fit.

C/SCA/7038/2023 ORDER DATED: 03/05/2023

(c) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for releasing the TRACTOR WITH TROLLEY, GJ-11-CD-3753 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.

(d) Pending admission and final disposal of this petition, your lordships may be pleased to release the vehicle being TRACTOR WITH TROLLEY, GJ-11-CD-3753 on appropriate terms and conditions as this Hon'ble Court that may be deem fit and proper to this Hon'ble court.

(e) 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 Mr. Trupesh Kathiriya, the learned AGP appearing for the respondent State.

4. Mr. Jay N. Shah, learned the learned advocate appearing for the writ-applicant submitted that the writ applicant is the owner of the vehicle bearing TRACTOR WITH TROLLEY, GJ-11-CD-3753. On 27.2.2023, an inspection was carried-out by the rapid response cell near Shantipura Village, Tal. Maliya Hatina, Dist-Junagadh. The vehicle was empty and was seized by the Rapid Response Cell and no seizure memo was provided while seizing the vehicle. The subject Vehicle is in the custody of the respondent No.3.

C/SCA/7038/2023 ORDER DATED: 03/05/2023

4.1. In the aforesaid set of facts, no FIR came to be filed within 45 days under sub-clause (ii) of sub-clause (b) of sub-Rule (2) of Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules of 2017. On inspection, the vehicle bearing TRACTOR WITH TROLLEY, GJ-11-CD-3753.

4.2 It appears that FIR came to be filed by the respondent authority on 26.4.2023 i.e. after period of 45 days and considering the aforesaid, Mr Trupesh Kathiriya learned AGP was not in a position of controvert the fact that no FIR was filed within 45 days, as provided under the provisions of Rules, 2017.

5. Heard the learned advocates appearing for the respective parties.

6. It is undisputed that the vehicle was seized on 27.02.2023 and F.I.R. was registered on 26.4.2023 i.e. after a period of 45 days. It is not disputed rather conceded that after the period of 45 days First Information Report has been registered by the respondent authority. This Court, therefore, is inclined to follow the principles as laid down in the case of Nathubhai Jinabhai Gamara v. State of Gujarat, rendered in Special Civil Application No.9203 of 2020. It is

C/SCA/7038/2023 ORDER DATED: 03/05/2023

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 vehicle 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 vehicle.

7. In the aforesaid judgment, this Court, while dealing with the 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 subrule 7 of Rule 12. Thus where the offence is not

C/SCA/7038/2023 ORDER DATED: 03/05/2023

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 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

C/SCA/7038/2023 ORDER DATED: 03/05/2023

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." 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. Mr. Shah, learned counsel, on instructions, states that the writ-applicant is ready and willing to give solvent surety of Rs.6,00,000/- for releasing the vehicle in question, as in the panchnama, the said amount of the vehicle in question is reflected.

9. Considering the aforesaid, vehicle in question having been seized on 27.2.2023, and FIR being filed on 26.4.2023, in the opinion of this Court, the vehicle being TRACTOR WITH TROLLEY, GJ-11-CD-3753 be released on the condition that the petitioner deposits Rs.5 Lakh as solvent surety before the Geologist-Respondent No.2 being the competent authority on the following

C/SCA/7038/2023 ORDER DATED: 03/05/2023

conditions:

(i) The writ-applicant shall furnish a solvent surety equivalent to the amount of Rs. 5 lakh with the competent Authority.

(ii) The writ-applicant shall file an undertaking on oath before the competent authority that the writ-applicant shall not transfer, alienate, part with the possession of vehicle bearing TRACTOR WITH TROLLEY, GJ-11-CD- 3753 or create any charge over the vehicle in question till the conclusion of the trial.

(iii) The writ-applicant shall produce the vehicle bearing TRACTOR WITH TROLLEY, GJ-11-CD-3753 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, if any, filed by the respondent authority 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.

(VAIBHAVI D. NANAVATI,J) SAJ GEORGE