Gujarat High Court
Zaverbhai Nanubhai Devani vs State Of Gujarat on 18 April, 2018
Author: Vipul M. Pancholi
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/397/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 397 of 2018
In SPECIAL CIVIL APPLICATION NO. 3862 of 2018
With
CIVIL APPLICATION NO. 1 of 2018
==========================================================
ZAVERBHAI NANUBHAI DEVANI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS. KRUTI M SHAH(2428) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2,3,4
GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 18/04/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed under Clause 15 of Letters Patent against an oral order dated 13.03.2018 passed by the learned Single Judge in Special Civil Application No.3862 of 2018 by which the learned Single Judge has dismissed the petition.
2. Heard learned advocate Ms. Kruti M. Shah for the appellant - original petitioner and learned Assistant Government Pleader Mr. K. M. Antani for the respondents.
Page 1 of 10 C/LPA/397/2018 ORDER3. It is submitted by learned advocate Ms. Kruti M. Shah for the appellant - original petitioner that the petitioner is the owner of truck bearing registration No. GJ-05-BV-4148. The said truck was stopped on 27.02.2018 by the respondent No.3 which was carrying ordinary sand and measured the sand loaded in the said vehicle. However, the measurement has not been done by the Government approved agency. In fact the petitioner had valid royalty passes for the sand loaded in the said vehicle which was measured in Government approved agency. Learned advocate has referred the weighing slip of the truck in question issued by the Government approved Weigh Bridge.
4. Learned advocate Ms. Shah thereafter would submit that the respondent No.3 seized the said vehicle on 27.02.2018 at 6:30 a.m. under the Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2017 (hereinafter referred to as 'the Rules of 2017' for short) on the ground that the vehicle was overloaded. It is submitted by learned advocate that respondent has illegally detained the truck of the petitioner by saying that the petitioner is involved in illegal transportation of mineral and vehicle was overloaded and thereby petitioner has committed breach of the Rules of 2017. It is contended that though the petitioner requested to Page 2 of 10 C/LPA/397/2018 ORDER release the vehicle which was illegally detained, the said vehicle was not released and therefore the petitioner filed the captioned petition in which the petitioner had prayed that the action of respondent authorities in seizing the truck in question under the Rules of 2017 be quashed and set aside and further direction be given to the respondent authorities to release the truck in question. However, the learned Single Judge dismissed the petition on the ground that the petition is premature.
5. Learned advocate Ms. Shah thereafter would submit that the petitioner was holding valid and legal royalty passes for 18 metric ton. The sand was initially weighed by the Government approved Weigh Bridge at Dhamsiya, Taluka: Nasvadi, District: Chhotaudepur, where the sand was weighed at 18 metric ton and when the truck was seized, the weight of the sand was found to be 18.190 metric ton. It is contended that the respondent authorities have weighed the truck in question at private weigh bridge and thereafter Form-J was issued by the respondent authorities stating that the truck was overloaded and thereafter the truck in question was seized. The said action is illegal, highhanded and therefore the same be quashed and set aside.
Page 3 of 10 C/LPA/397/2018 ORDER6. On the other hand, learned AGP Mr. Antani submitted that the truck in question was seized on 27.02.2017 and a notice was issued on 27.02.2018 itself. The petitioner gave the reply on 01.03.2018 and till the filing of the petition, no order was passed by the respondent authority and on the very same day the petition was preferred before this Court. Thus, the learned Single Judge has not committed any error while observing that the petition is premature.
7. Learned AGP thereafter submitted that after the seizure of the truck of the petitioner which was intercepted by flying squad, the report was made on 08.03.2018 with respect to the seizure by the office of concerned Geologist. On receipt of such report, a show cause notice came to be issued on 09.03.2018 to the petitioner. Learned AGP thereafter has referred to Rule 12 of the Rules of 2017 and submitted that the competent authority, after the seizure of the truck in question, is required to investigate into the case of seizure for which notice was already issued to the petitioner on 09.03.2018. However, the petitioner has not responded to the same. The petitioner has not submitted any application within the prescribed time limit for compounding of the offences. Thus, the respondent authorities have not committed any illegality as contended by Page 4 of 10 C/LPA/397/2018 ORDER learned advocate for the petitioner. It is, therefore, urged that there is no merit in the present appeal. Accordingly, the same be dismissed.
8. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that the truck in question was carrying ordinary sand for which valid royalty passes are issued by the competent authority. The said truck was weighed at the Government approved weigh bridge. Copy of the weighment slip is produced at page 14 of the compilation. The said vehicle was seized by the respondent authority on 27.02.2018 at 6:30 a.m. under the Rules of 2017 and seizure memo was issued in Form-J of the Rules. The reason stated in Form-J is that the truck was overloaded. For giving the said reason, the respondent authority has placed reliance upon the weighment slip of the truck in question which was weighed at private weigh bridge. Thus, it is not in dispute that the truck in question was weighed at private weigh bridge which is not approved by the Government. On 09.03.2018, the respondent authority issued a show cause notice to the petitioner under the provisions of the Rules of 2017 alleging violation of Rule 7 of the Rules of 2017 and asked the petitioner to make the payment Page 5 of 10 C/LPA/397/2018 ORDER of Rs.1,05,000/- for compounding of the offences. It is further stated that if the petitioner will not remain present, appropriate decision would be taken ex parte. However, at this stage, it is required to be noted that the respondent authority has not followed the procedure prescribed under Rule 12 of the Rules of 2017.
9. Rule 12 of the Rules of 2017 provides as under:
"12. Seizure of property liable to confiscation.-
(1) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or other thing (hereinafter referred to as "property") shall be liable to be seized by the Government in the manner specified in sub- rule (2) of this rule.
(2) Every Authorised Officer seizing any property under these rules shall photograph the property and place on such property a mark in such manner as may be prescribed, indicating that the same has been so seized and shall:
(a) issue a notice in Form J informing the person from whom the property is seized of the property so seized;
(b) conduct:
(i) an investigation and if he is satisfied that a compoundable offence has been committed in respect of the Page 6 of 10 C/LPA/397/2018 ORDER property, he may, subject to receipt of a compounding application, order payment of such amount for compounding the offence as may be deemed appropriate; or
(ii) a preliminary investigation and shall produce the property seized before a court empowered to determine commission of such offence, if compounding is not permissible under rule 22 or if no application for compounding is received pursuant to clause (a) above, upon the expiry of fifteen days from the date of seizure or upon completion of the investigation, whichever is earlier.
(3) Where any property seized under sub-
rule (1) is produced before a court under sub clause (ii) of clause (b) of sub-rule (2) and the court is satisfied that offence has been committed in respect thereof, the court may order confiscation of the property under sub-section (4A) of Section 21 of the Act.
(4) No order for confiscating any property shall be made under sub-rule (3) unless the person from whom the property is seized is given:
(a) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation; and
(b) a reasonable opportunity of being heard in the matter.
(5) Upon expiry of fifteen days from the date of seizure of the property under sub- rule (2) and prior to:
(a) payment for compounding the offence under sub-clause (i) of clause (b) of sub-Page 7 of 10 C/LPA/397/2018 ORDER
rule (2); or
(b) completion of the investigation by the Authorised Officer under sub-clause (i) of clause (b) of sub-rule (2); or
(c) a determination under sub-rule (3), the Authorised Officer may release the property on the furnishing of a non-
interest bearing security deposit or a bank guarantee.
(6) The bank guarantee issued under sub- rule (5) shall be valid for an initial period of one year and shall be renewed from time to time until payment for compounding the offence under sub-clause
(i) of clause (b) of sub-rule (2) or a determination under sub-rule(3), as applicable, is made. The non-interest bearing security deposit or bank guarantee shall be for an amount equivalent to ten times of the market value of the mineral seized or for such other amount as may be specified by the Government through a notification, subject to a minimum of rupees two lakh:
Provided that, if upon a determination under sub-rule (3), a
penalty for an amount exceeding the amount of non-interest bearing security deposit or bank guarantee is levied and the penalty amount is not paid, then the penalty amount may be recovered in the same manner as if it were an arrear of land revenue.
(7) The property seized under this rule shall be kept in the custody of the Authorised Officer, any other third party, nearest police station or Government premises until:
Page 8 of 10 C/LPA/397/2018 ORDER(a) payment for compounding the offence is maid; or
(b) a bank guarantee is provided pursuant to sub-rule (5); or
(c) an order of the court directing its disposal is received by the Authorised Officer."
10. From the aforesaid provisions coupled with the facts of the present case, it is clear that after the seizure of the truck, notice was issued. However, thereafter, the respondent authority has not followed the provisions contained in Rule 12(2)(b)(ii) of the Rules of 2017. As per the said provision, if the application for compounding of offence is not received, the vehicle so seized shall be produced before the Court empowers to determine commission of such offence, upon expiry of 15 days from the date of seizure or upon completion of investigation, whichever is earlier.
11. In the present case, after completion of 15 days from the date of seizure, when application for compounding of offence is not submitted by the petitioner, it was the duty of the respondent authority to produce the said vehicle before the concerned Court. In absence of production of such vehicle before the competent Court, the petitioner has lost his right to file an application under Section 451 of the Code of Criminal Procedure, 1973, for release of the Page 9 of 10 C/LPA/397/2018 ORDER vehicle.
12. Thus, in view of the aforesaid discussion, we are of the view that the respondent authorities have failed to justify the reason for seizure of the truck in question. When the respondent authorities have failed to follow the procedure prescribed under the Rules of 2017, we are of the view that this is fit case where the action of seizure of the truck in question taken by the respondent authorities is required to be quashed and set aside and direction is required to be given to the respondent authorities to release the truck in question forthwith.
13. Accordingly, the appeal is allowed and the order dated 13.03.2018 passed by the learned Single Judge in Special Civil Application No.3862 of 2018 is set aside. The action of the respondent authorities in seizing the truck in question under the Rules of 2017 is quashed and set aside. The respondent authorities are hereby directed to release the truck in question forthwith. Civil application also stands disposed of.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) Jani Page 10 of 10