Siddharthsinh Abhaysinh Gohil vs State Of Gujarat
2023 Latest Caselaw 7975 Guj

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     C/SCA/14138/2023                              ORDER DATED: 01/11/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 14138 of 2023

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                        SIDDHARTHSINH ABHAYSINH GOHIL
                                    Versus
                              STATE OF GUJARAT
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Appearance:
APURVA K JANI(7057) for the Petitioner(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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  CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 01/11/2023

                                 ORAL ORDER

1. With the consent of the learned advocates appearing

for the respective parties, the captioned writ petition is taken up

for final hearing.

2. Issue Rule, returnable forthwith. Ms. Jyoti Bhatt, the

learned Assistant Government Pleader waives service of notice of

Rule on behalf of the respondent- State.

3. By way of this petition under Article-226 of the

Constitution of India, the petitioner has prayed for the following

relief:

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"(A) YOUR LORDSHIPS may be pleased to admit the present Application;

(B) YOUR LORDSHIPS may be pleased to allow the present application by quashing the show-cause notice dt.15.06.2023;

(C) YOUR LORDSHIPS may be pleased to allow the present application by quashing the action of seizure of vehicle of petitioner and be further pleased to direct its forthwith release tractor bearing registration no. GJ-32-B-7694 with attached trolley;

(D) Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the Respondent No. 2 to release the vehicle of the petitioner in the interregnum;

(E) Be pleased to pass any other and further relief in favour of the petitioner as the interest of justice may require;"

4. It is the case of the petitioner that, the petitioner is

the owner of the vehicle i.e. T ractor bearing registration no.

GJ-32-B-7694 with attached trolley (hereinafter referred to as

'the vehicle in question'). On 03.06.2023, the respondent No.2

seized the vehicle being Tractor bearing registration no. GJ-32-

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B-7694 with attached trolley and issued seizure memo. That,

notice dated 15.6.2023 has been given to the petitioner for the

seizure of the vehicle. That, in spite of the several request made

by the petitioner to release his vehicle, the respondent No.2 has

not responded.

5. Mr. A. K. Jani, learned advocate for the petitioner

has submitted that as is clear from the seizure memo, the same

was seized on 3.6.2023 however, no steps worth the name have

been initiated by the respondent, much less filing the F.I.R. as

provided 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, 2017 (hereinafter referred to

as the "Rules of 2017"). It is submitted that in absence of any

F.I.R. registered beyond the specified period, the action of the

respondent authority seizing the vehicle, 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

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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.

5.1 It is urged that the petition be entertained only for

the limited purpose of release of the vehicle.

6. On the other hand, the learned Assistant Government

Pleader, under instructions, has fairly conceded that no First

Information Report has been registered as provided under the

provisions of Rules of 2017.

7. Heard the learned advocates appearing for the

respective parties.

8. It is undisputed that seizure memo was issued on

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3.6.2023. 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.

9. 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 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

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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 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 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

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for the bank guarantee.

10. In view of the fact that the vehicle in question came

to be seized on 3.6.2023, no First Information Report has been

registered within 45 days of the seizure, and the principle laid

down by this Court in the aforesaid case applies to the facts of

the present case, the present petition deserves to be allowed and

is accordingly allowed to the limited extent of directing the

respondent to release the vehicle of the petitioner i.e. T ractor

bearing registration no. GJ-32-B-7694 with attached trolley.

11. It is clarified that this Court has not examined the

merits of the issue involved and the observations made are only

for the limited purpose of releasing the vehicle.

12. In view of the aforementioned discussion, the petition

succeeds and is accordingly allowed in part. Rule is made

absolute to the aforesaid extent. No order as to costs.

Direct service is permitted.

(VAIBHAVI D. NANAVATI,J)

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K.K. SAIYED