Siddharthsinh Abhaysinh Gohil vs State Of Gujarat
2023 Latest Caselaw 6718 Guj

                                                                                            NEUTRAL CITATION




     C/SCA/14366/2023                                     ORDER DATED: 12/09/2023

                                                                                            undefined




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          R/SPECIAL CIVIL APPLICATION NO. 14366 of 2023
===================================================
            SIDDHARTHSINH ABHAYSINH GOHIL
                          Versus
                  STATE OF GUJARAT
===================================================
Appearance:
MR. APURVA K JANI(7057) for the Petitioner(s) No. 1
MS.TANUSHREE SHRIMAL, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
===================================================

 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                Date : 12/09/2023

                                  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. Tanushree

Shrimal, 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:

NEUTRAL CITATION

C/SCA/14366/2023 ORDER DATED: 12/09/2023

undefined

"(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 Annex-A;

(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 of tractor with chassis no. NHN32300ZLH516875;

(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 was

issued a show cause notice on 15.06.2023 alleging that by virtue

of a report dated 03.06.2023 to the officers of Kodinar Police

Station had got a secret information based on which one

excavator machine and 4 tractor trolleys were seized. It was

submitted that, at the time of seizure, the petitioner / driver of

the vehicle was issued a notice in Form-J of the Rules, 2017.

5. It is further the case of the petitioner that the vehicle

was seized on 03.06.2023 and 45 days expired on 18.07.2023,

either upon expiry of 45 days or upon completion of

NEUTRAL CITATION

C/SCA/14366/2023 ORDER DATED: 12/09/2023

undefined

investigation, whichever was earlier, the officer was bound to

approach the Sessions Court by way of making a written

complaint, however, upon inquiry by the petitioner, no such

complaint has been filed. The vehicle of the petitioner being

Tractor having chassis No. NHN32300ZLH516875 with attached

trolley and name of the petitioner reflects in column 3 in Form-

J.

5. Mr. Apurva K. Jani, learned advocate for the

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

which was issued on 03.06.2023, 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

NEUTRAL CITATION

C/SCA/14366/2023 ORDER DATED: 12/09/2023

undefined

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 (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 on instructions of Mr. Ketan Mahavadiya, Geologist,

Dist.: Gir-Somnath - respondent no.2 herein, that no First

Information Report has been registered as provided under the

provisions of Rules, 2017.

NEUTRAL CITATION

C/SCA/14366/2023 ORDER DATED: 12/09/2023

undefined

7. Heard the learned advocates appearing for the

respective parties.

8. It is undisputed that seizure memo was issued on

03.06.2023. 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

NEUTRAL CITATION

C/SCA/14366/2023 ORDER DATED: 12/09/2023

undefined

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

NEUTRAL CITATION

C/SCA/14366/2023 ORDER DATED: 12/09/2023

undefined

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 no First Information Report

has been registered 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. Tractor with chassis no.

NHN32300ZLH516875. 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.

11. In view of the aforementioned discussion, the petition

succeeds and is accordingly allowed to the aforesaid extent. Rule

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

Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) Pradhyuman