Gujarat High Court
Pravinsinh Ajitsinh Barad vs State Of Gujarat on 19 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/2046/2024 ORDER DATED: 19/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2046 of 2024
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PRAVINSINH AJITSINH BARAD
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JIGAR L PATEL(11596) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MS DHWANI R TRIPATHI, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 19/02/2024
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. Dhwani R. Tripathi,
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:
"a. Your Lordship may be pleased to admit and allow this petition.
b. YOUR LORDSHIPS BE PLEASED to quash and set aside the action
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of respondent authorities of seizing the Volvo Machine bearing Volvo
EC210 B Excavator Engine No.1193511, Chasis No.76596 of the
petitioner and further be pleased to direct the concerned respondent
authorities to release the vehicle of the petitioner at the earliest on
such terms and conditions as deemed fit by the Hon'ble Court.
c. Pending the admission, hearing and final disposal of the present
petition, Your Lordship may be pleased to direct the concerned
respondent authorities to release Volvo Machine bearing Volvo EC210
B Excavator Engine No.1193511, Chasis No.76596 of the petitioner at
the earliest on such terms and conditions as deemed fit by the Hon'ble
Court;
d. Grant any other and further relief, as the nature and
circumstances of the present case may require."
4. It is the case of the petitioner that, the petitioner is the
owner of the vehicle i.e. Volvo Machine bearing Volvo EC210 B
Excavator Engine No.1193511, Chasis No.76596 (hereinafter
referred to as 'the vehicle in question'). On 30.11.2023,
inspection was carried-out by the officers from the office of the
respondent No.2 at Suvey No.275 of village : Mota Kerala, Tal.
Sayla, Surendranagar, where the vehicle in question was found
illegally excavating the black trap minerals. The vehicle in
question was seized by the respondent authority on
14.12.2023 and a show cause notice also came to be issued on
the even date.
5. Mr. Jigar L. Patel, learned advocate for the petitioner has
submitted that the vehicle-in-question was seized by the
respondent - authority, followed by the show cause notice
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dated 14.12.2023; 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 respondent authorities to release the
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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 the vehicle-in-question was seized
by the respondent - authority, followed by the show cause
notice dated 14.12.2023. 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-
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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 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."
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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 14.12.2023, 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. Volvo
Machine bearing Volvo EC210 B Excavator Engine No.1193511,
Chasis No.76596.
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.
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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)
NEHA
