Gujarat High Court

Vanzara Bhupatbhai Sitaram vs State Of Gujarat on 4 March, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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     C/SCA/1697/2024                                       ORDER DATED: 04/03/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 1697 of 2024

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                       VANZARA BHUPATBHAI SITARAM
                                  Versus
                         STATE OF GUJARAT & ORS.
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Appearance:
MR HARSHADRAY A DAVE(3461) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 04/03/2024

                                   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. Jayneel Parikh,

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 reliefs:

"a) This Hon'ble Court be pleased to admit this petition;


        b)     This Hon'ble Court may be pleased to issue appropriate writ,





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     C/SCA/1697/2024                                         ORDER DATED: 04/03/2024

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order or direction for quashing and setting aside the seizure memo dated 16th December 2023 of the respondent no.3 of seizing the vehicle being dumper bearing registration number GJ-

18-BV-7991 and GJ-24-V-6979 and an excavator being JCB JS 205 and declare the same to be null and void and further be pleased to pass consequential order of release of such vehicles and excavator;

c) This Hon'ble Court may be pleased to issue appropriate writ, order or direction to the respondent no.2 and 3 to immediately release the vehicle being dumper bearing registration number GJ- 18-BV-7991 and GJ-24-V-6979 and an excavator being JCB JS 205;

d) Pending the admission and final disposal of this petition, this Hon'ble Court be pleased to direct the Respondent Authorities to release the vehicle being dumper bearing registration number GJ- 18-BV-7991 and GJ-24-V-6979 and an excavator being JCB JS 205 upon such terms and conditions as this Hon'ble Court may deem fit;

e) This Hon'ble Court be pleased to grant ad-interim relief in terms of Para-d), hereinabove;

f) To pass such other and further order in the interest of justice which may be deemed fit to this Hon'ble Court."

4. It is the case of the petitioner that, the petitioner is the

owner of the vehicles i.e. Dumpers bearing Registration Nos.GJ-

18-BV-7991 and GJ-24-V-6979 (hereinafter referred to as 'the

vehicles in question'). The petitioner also uses an excavator of

JCB Company being JS 205, which is owned by his father Shri

Sitaram Devaji Vanzara. The petitioner is engaged in the

business of excavating the land and transport of the sand for

construction purposes. It is the case of the petitioner that on

16.12.2023 at around 2:00 p.m., the respondent No.3

intervened the work of the petitioner and demanded illegal

gratification of Rs.1,00,000/- from the petitioner and

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C/SCA/1697/2024 ORDER DATED: 04/03/2024

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threatened the petitioner that the respondent No.3 would not

allow the petitioner to work as per the work order and thereby,

forcibly seized the vehicles of the petitioners i.e. Dumpers

bearing Registration Nos.GJ-18-BV-7991 and GJ-24-V-6979 as

well as an excavator being JCB JS 205.

5. Mr. Jay Kishor Barot, learned advocate appearing for Mr.

Harshadray A. Dave, learned advocate appearing for the

petitioner has submitted that as is clear from the seizure

memos, the vehicles-in-question were seized on 16.12.2023;

however, after the seizure of the same, 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

vehicles, 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

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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 vehicles 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 vehicles.

5.1 It is urged that the petition be entertained only for the

limited purpose of release of the vehicles.

6. On the other hand, Mr. Parikh, 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 seizure memos were issued on

16.12.2023. It is not disputed rather conceded that after the

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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 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

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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

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 vehicles-in-question came to

be seized on 16.12.2023, 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