Dineshbhai Nethaji Vanazara vs State Of Gujarat
2024 Latest Caselaw 1462 Guj

Gujarat High Court

Dineshbhai Nethaji Vanazara vs State Of Gujarat on 19 February, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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     C/SCA/1902/2024                             ORDER DATED: 19/02/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1902 of 2024
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                       DINESHBHAI NETHAJI VANAZARA
                                   Versus
                          STATE OF GUJARAT & ANR.
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Appearance:
MR NIRAV R MISHRA(6140) for the Petitioner(s) No. 1
MS. DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 19/02/2024

                              ORAL ORDER

1. Draft amendment dated 19.2.2024 is taken on record and the same is allowed. Amendment to be carried out forthwith.

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. Dhwani Tripathi, 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:

"11. (A) Your Lordship may be pleased Admit and Allow this petition;

(B) Your Lordship may be pleased to direct the

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C/SCA/1902/2024 ORDER DATED: 19/02/2024

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respondent authorities to immediately release the vehicle belonging to the petitioner being JCB Machine having Chassis RAJ3DXINPO3283279 and No. registration number GJ02BS2688 belonging to the petitioner, which was seized by the respondent referred authorities the and as notice dated in 5.01.2024 [at Annexure-B] @ page15-161, as the said act on part of the respondent State authorities in seizing the said vehicle and not releasing the same is in complete violation of statutory rules and regulations specifically Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017, dehors the statutory rules and regulations and therefore violative of Articles 14, 19(1)(g) and 21 of the Constitution of India respondent and therefore authorities are the duty bound to release the said vehicle belonging to the petitioner referred above, immediately;

(C) Your Lordships may be pleased to hold and declare the action and inaction on the part of the respondent authorities in seizing the belonging vehicle to the petitioner being JCB Machine having Chassis No. RAJ3DXINPO3283279 and registration number GJ02BS2688, [at Annexure-A (Colly.) despite time of @ page 13-141, 45 days period having been lapsed, and thereafter not releasing the same is illegal, arbitrary, against the statutory rules and regulations, violative of fundamental rights of the petitioner under Articles 14, 19(1) (g) and 21 of the Constitution of India and therefore the respondent authorities are duty bound to release the same as the said seizure is incomplete and fragrant violation of statutory rules and regulations, referred hereinabove;

(D) During the final hearing pendency, disposal petition, pleased Your of the Lordship and present may be to direct the respondent authorities to immediately release the vehicle belonging to the

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C/SCA/1902/2024 ORDER DATED: 19/02/2024

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petitioner being JCB Machine having Chassis No. RAJ3DXINPO3283279 and registration number GJ02BS2688, [at Annexure-A (Colly.) @ page 13-

14];

(E) Your Lordships may be pleased to grant ex parte interim relief in terms of Prayer (D).

(G) Your Lordships may be pleased to pass such other and further orders as may deem fit in the interest of justice."

4. It is the case of the petitioner that, the petitioner is the owner of the vehicle i.e. JCB Machine having Chassis No. RAJ3DXINPO3283279 and registration number GJ02BS2688 (hereinafter referred to as 'the vehicle in question'). On 9.12.2023, the respondent no.2 has seized the said vehicle and show cause notice came to be issued on 5.01.2024.

5. Mr. Nirav Mishra, learned advocate appearing for the petitioner has submitted that the vehicle was seized on 9.12.2023 followed by the show cause notice dated 5.01.2024; 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

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C/SCA/1902/2024 ORDER DATED: 19/02/2024

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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 respondent authorities to release the vehicle.

5.1 It is submitted that the present petition is filed for the limited purpose of release of the vehicle in question.

6. On the other hand, Mr. Rohan Raval, the learned Assistant Government Pleader has fairly conceded, on instructions that no First Information Report has been registered as provided under the Rules.

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

8. It is undisputed that the vehicle in question came to be seized on 9.12.2023 followed by the show cause notice dated 05.01.2024. 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

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C/SCA/1902/2024 ORDER DATED: 19/02/2024

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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 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

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C/SCA/1902/2024 ORDER DATED: 19/02/2024

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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."

10. In view of the fact that the vehicle came to be seized on 9.12.2023, 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. JCB Machine having Chassis No. RAJ3DXINPO3283279 and registration number GJ02BS2688. The present order is passed only for the purpose of release of the vehicle in question, reserving liberty in favour of the respective parties to take further action in accordance with law.

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C/SCA/1902/2024 ORDER DATED: 19/02/2024

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11. 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) SAJ GEORGE