Gujarat High Court

Jaypalbhai Natubhai Boricha vs State Of Gujarat on 25 January, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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     C/SCA/5/2024                                       ORDER DATED: 25/01/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5 of 2024

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                     JAYPALBHAI NATUBHAI BORICHA
                                Versus
                           STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MR ROHAN H RAVAL, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 4,5
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 25/01/2024

                                ORAL ORDER

1. Issue Rule, returnable forthwith. Mr. Rohan H. Raval,

learned Assistant Government Pleader waives service of notice

of Rule on behalf of the respondent- State.

2. With the consent of the learned advocates appearing for

the respective parties, the captioned writ petition is taken up

for final hearing.

3. By way of this petition under Article-226 of the

Constitution of India, the petitioner has prayed for the

following reliefs:

"(a) This Hon'ble Court may be pleased to admit and allow this

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petition;

(b) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for quashing and setting aside the action of respondents of seizing the vehicle at ANNEXURE - B and release the ASHOK LEYLAND TRUCK REGISTRATION NO GJ-14-Z-9109, of the ownership of the petitioner which is seized by the respondents 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 issue appropriate writ, order or direction for releasing the ASHOK LEYLAND TRUCK REGISTRATION NO GJ-14-Z-9109, of the ownership of the petitioner which is seized by the respondents and at present the case is pending with the respondent, on such terms and conditions as this Hon'ble Court may deem think fit.

(d) Pending admission and final disposal of this petition, your lordships may be pleased to release the vehicle being ASHOK LEYLAND TRUCK REGISTRATION NO GJ-14-Z-9109, 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 being ASHOK LEYLAND TRUCK bearing

Registration No.GJ-14-Z-9109 (hereinafter referred to as 'the

vehicle in question'). On 28.10.2023, inspection was carried-

out by the team of the respondent No.3 at Khambhat Dist.

Anand. The vehicle-in-question was seized as it was

overloaded with blacktrap minerals. A seizure memo dated

28.10.2023 came to be issued by the respondent No.3. The

vehicle-in-question was kept in custody of the respondent No.4.

5. Mr. Jay N. Shah, learned advocate for the petitioner has

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submitted that as is clear from the seizure memo, the vehicle-

in-question was seized on 28.10.2023, however, after seizure

of the vehicle-in-question, 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

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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, Mr. Rohan H. Raval, learned Assistant

Government Pleader, on instructions, has fairly conceded that

no First Information Report has been registered as provided

under the provisions of Rules of 2017.

6.1 Mr. Raval, learned AGP, has tendered a copy of an

undertaking by the petitioner dated 07.11.2023 wherein, the

petitioner has undertaken to compound the offence, which is

taken on record.

7. Heard the learned advocates appearing for the respective

parties.

8. It is undisputed that seizure memo was issued on

28.10.2023. 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

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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. 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

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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

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 28.10.2023, 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