Gujarat High Court

Jayeshbhai Bhayabhai Solanki vs State Of Gujarat on 6 November, 2023

Bench: Vaibhavi D. Nanavati

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     C/SCA/19237/2023                            ORDER DATED: 06/11/2023

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
        R/SPECIAL CIVIL APPLICATION NO. 19237 of 2023
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                JAYESHBHAI BHAYABHAI SOLANKI
                              Versus
                      STATE OF GUJARAT
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Appearance:
MR. VEDANT GAIKWAD for MR P S DATTA(11324) for the
Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MS. SURBHI BHATI, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                           Date : 06/11/2023

                             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. Surbhi Bhati, 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

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relief:

"(A) YOUR LORDSHIPS may be pleased issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, orders or direction quashing and setting aside the impugned Seizure memo dated 26.08.2023 issued by the respondent no.2-Royalty Inspector, Junagadh as Annexure-B and further be pleased to direct concerned respondents herein to release the present petitioner ownership Vehicle bearing Registration No. GJ-11-AD-4240, JCB as Annexure-A of CASE New Holand Construction (Loader) in the custody of the Maliya Hatina police station, Junagadh;

Alternatively;

(B) YOUR LORDSHIPS may be pleased issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, orders or directing the respondent no.2-Royalty Inspector, Junagadh to drop the proceeding as no illegality is committed by the petitioner as per the Rule 12 of the Gujarat Mineral (prevention of illegal Mining, Transportation and Storage) Rule, 2017 (as amended in 2019);

(C) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of Seizure memo dated 26.08.2023 issued by the respondent no.2-Royalty inspector, Junagadh as Annexure-B and further be pleased to direct concerned respondents herein to release the present petitioner ownership Vehicle bearing Registration No. G-11-AD- 4240, as Annexure-A CASE New Holand Construction (Loader) till final disposal of the petition; (D) Pass any such other and / or further orders that may be thought just and proper, in the facts and circumstances of the present case."

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

the owner of the vehicle bearing registration No. GJ-11-AD-4240,

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JCB of CASE new Holand Construction (Loader). The seizure

memo came to be issued on 26.08.2023 by the respondent no.2.

It is the case of the petitioner that, till date, the said vehicle is

still lying with the respondent authorities, which is in the

complete violation of the statutory rules and regulations, since no

F.I.R. has been registered.

5. Mr. Vedant Gaikwad, learned advocate for Mr. P.S.

Datta, learned advocate for the petitioner has submitted that as is

clear from the seizure memo, which was issued on 26.08.2023,

however, 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") has not

been filed by the respondent authorities. 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,

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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 (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, Ms. Surbhi Bhati, learned AGP

appearing for the respondent - State produced on record the

communications dated 22.09.2023 and 05.10.2023, wherein, it

was directed the Talati-cum-Mantri to lodge the F.I.R. /

complaint against the petitioner, however, no complaint has been

filed within a period of 45 days from the date of seizure, as

provided under the provisions of the Rules, 2017.

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7. Heard the learned advocates appearing for the

respective parties.

8. It is undisputed that seizure memo was issued on

26.08.2023. 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 (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

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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 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

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favour of the person from whom it was seized, without insisting

for the bank guarantee.

10. In view of the fact that no First Information Report