Gujarat High Court

Shiyal Laxmanbhai Visabhai vs State Of Gujarat on 13 October, 2023

Bench: Vaibhavi D. Nanavati

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     C/SCA/15067/2023                            ORDER DATED: 13/10/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 15067 of 2023

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                        SHIYAL LAXMANBHAI VISABHAI
                                  Versus
                             STATE OF GUJARAT
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Appearance:
MS NAMRATA HARISHBHAI CHAUHAN(6534) for the Petitioner(s) No.
1
MR AYAAN PATEL, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) 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 : 13/10/2023

                               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. Mr. Ayaan Patel, 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) 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 releasing the JCB Machine bearing Registration No.GJ-13-AD-1265 of the ownership of the petitioner (Annexure - A) which is seized by the respondent No.2 and at present the case is pending with the respondent, on such terms and conditions as this Hon'ble Court may deem think fit.

(c) This Hon'ble Court may be pleased to quash and set aside notice dated 15.07.2023 (Annexure - C) issued in connection with the JCB Machine bearing Registration No.GJ-13-AD-1265 of the ownership of the petitioner which is seized by the respondents.

(d) Pending admission final hearing and disposal of this petition, your lordships may be pleased to release the JCB Machine bearing Registration No.GJ-13-AD-1265 on appropriate terms and conditions 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."

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

owner of the vehicle JCB Machine bearing Registration No.GJ-

13-AD-1265 (hereinafter referred to as 'the vehicle in

question'). On 20.06.2023, the respondent no.2 seized the said

vehicle in violation of Rule 7 of the Gujarat Mineral (Prevention

of Illegal Mining, Transpiration and Storage) Rules, 2017 and

seizure memo pertaining to the same was served to the

petitioner on the same day. On 15.07.2023, a show cause

notice came to be issued by the respondent No.2.

5. Ms. Shruti H. Doshi, learned advocate for Ms. Namrata H.

Chauhan, learned advocate for the petitioner has submitted

that as is clear from the seizure memo, the vehicle-in-question

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was seized on 20.06.2023, followed by the show cause notice

dated 15.07.2023; however, after the issuance of the show

cause notice, 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

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

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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. So far as the

adjudication of the show cause notice is concerned, the

petitioner be permitted to pursue the said show cause notice

as per the provisions of the Act.

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

20.06.2023 followed by the show cause notice dated

15.07.2023. 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.

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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 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

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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.

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

seized on 20.06.2023, 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