Vijaybhai Shanabhai Parmar vs State Of Gujarat
2024 Latest Caselaw 606 Guj

Gujarat High Court

Vijaybhai Shanabhai Parmar vs State Of Gujarat on 23 January, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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     C/SCA/18700/2023                              ORDER DATED: 23/01/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 18700 of 2023
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                        VIJAYBHAI SHANABHAI PARMAR
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MS NAMRATA HARISHBHAI CHAUHAN(6534) for the Petitioner(s) No. 1
MR. ROHAN RAVAL, AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 23/01/2024
                               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. Mr. Rohan Raval, 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:

7. The petitioner therefore, prays that:-

(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 Machine Serial No. N601D01817 of the ownership of the petitioner, which is seized by the respondent No.2 and at present the case, is pending with the respondent, on such terms and

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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 11.05.2023 issued in connection with Machine Serial No. N601D01817 of the ownership of the petitioner which is seized by the respondents.

(d) Pending admission and final disposal of this petition, your lordships may be pleased to release the Machine Serial No. N601D01817 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 Machine Serial No. N601D01817 (hereinafter referred to as 'the Machine in question'). On 30.04.2023, the respondent no.2 seized the machine in question and thereafter, on 11.5.2023, seizure notice was issued by the respondent No.2. which is produced at Annexure -B. The petitioner made representation dated 29.9.2023 for release of the said Machine in question. On 8.6.2023, the respondent no.2 passed an order, which is duly produced on record.

5. Ms. Namrata Chauhan, learned advocate appearing for the petitioner has submitted that the machine was seized on 30.4.2023 followed by the seizure notice dated 11.5.2023; however, after the issuance of the seizure order on 11.5.2023, 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

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(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 machine, 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 machine 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 machine.

5.1 It is submitted that the present petition is filed for the limited purpose of release of the machine 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.

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8. It is undisputed that the machine in question came to be seized on 30.4.2023 followed by the seizure order dated 11.5.2023. 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-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

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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."

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 machine of the petitioner i.e. Machine Serial No. N601D01817 . The present order is passed only for the purpose of release of the machine in question, reserving liberty in favour of the respective parties to take further

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action in accordance with law.

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