Gujarat High Court
Dharmeshbhai Chandubhai Patel vs State Of Gujarat on 28 September, 2021
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/9580/2021 ORDER DATED: 28/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9580 of 2021
==========================================================
DHARMESHBHAI CHANDUBHAI PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. R.D.KINARIWALA(6146) for the Petitioner(s) No. 1
MS.SURBHI BHATI, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 28/09/2021
ORAL ORDER
1. With the consent of the learned advocates for the respective parties, the petition is taken up for final disposal.
2. Issue Rule, returnable forthwith. Ms.Surbhi Bhati, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent.
3. By this petition, the petitioner has prayed for direction for quashing and setting aside the seizure memo dated 11.06.2021 issued by the respondent. Further direction has been prayed for release of the vehicle bearing registration No.GJ-09-X-7951, of the ownership of the petitioner.
4. The brief facts are that, the petitioner is engaged in the business of transportation and has purchased the vehicle in the year 2016 on loan and the same is hypothecated with Shri Ram Finance. According to the petitioner, the vehicle of the petitioner, was used for transporting the excavated mineral under the Sujlam Suflam Jal Abhiyan - 2021. On 11.06.2021, the vehicle of the petitioner, was seized by issuing the seizure memo followed by the issuance of Page 1 of 6 Downloaded on : Fri Oct 01 22:26:47 IST 2021 C/SCA/9580/2021 ORDER DATED: 28/09/2021 notice dated 17.06.2021 under Rule 22 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as the "Rules of 2017"). The petitioner, being aggrieved, submitted a representation dated 21.06.2021, inter alia, pointing out that the truck was being used for excavation of the mineral, found while digging the pond in village Limbhoi under the Scheme namely Sujlam Suflam Jal Abhiyan - 2021 floated by the Industries and Mines Department of the State Government. It was also pointed out that the vehicle, was not used in any other excavation activity, which aspect was confirmed by the Sarpanch of Limbhoi Gram Panchayat vide letter dated 12.06.2021. Despite the representation of the petitioner, the respondent authority did not release the vehicle and the petitioner was compelled to file the present writ petition with the aforementioned prayers.
4.1 According to the petitioner, after this Court had issued the notice, the respondent authority has passed the order dated 13.07.2021 imposing penalty to the tune of Rs.1,22,645/- under the provisions of sub-Rule (2) of Rule 12 of the Rules of 2017.
4.2 Mr.R.D. Kinariwala, learned advocate appearing for the petitioner, at the outset submitted that the seizure memo was issued on 11.06.2021 clearly indicating that the truck was found empty. Despite that, the notice for compounding of offence under Rule 22 of the Rules of 2017 was issued on 17.06.2021. The petitioner, had made a representation; however, of no avail. It is submitted that the petition was filed and after the issuance of the notice, the order dated 13.07.2021 has been passed. It is submitted that neither any FIR nor any complaint has been registered as required under clause (ii) of sub-clause (b) of sub-Rule (2) of Rule 12 of the Rules of 2017. It is submitted that the grievance of the petitioner, stands covered by the judgment of this Court in the case Page 2 of 6 Downloaded on : Fri Oct 01 22:26:47 IST 2021 C/SCA/9580/2021 ORDER DATED: 28/09/2021 of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020. It is submitted that this Court, has clearly held that where the offences are not compounded, it would be incumbent upon the authorised officer to approach the Court of Sessions with a written complaint. In absence of there being any complaint filed, the authority concerned, will have no power to seize or detain the vehicle.
4.3 Reliance is also placed on the order dated 10.08.2021 passed by this Court in Special Civil Application No.2029 of 2021. It is submitted that the action on the part of the respondent authority, is against the provisions of Rule 12 of the Rules of 2017 so also the principle laid down by this Court in the case of Nathubhai Jinabhai Gamara v. State of Gujarat and deserves to be quashed and set aside.
5. On the other hand, Ms. Surbhi Bhati, learned Assistant Government Pleader justified the action of the concerned authority contending that after the issuance of notice dated 17.06.2021, order dated 13.07.2021 has been passed by the authorised officer. Therefore, there is an alternative remedy available to the petitioners under the Rules of 2017 and petitioner be relegated to such remedy. So far as the registration of FIR/complaint is concerned, upon instructions, it is stated that till date, neither any FIR is filed nor complaint has been registered.
6. Heard the learned advocates for the respective parties.
7. Pertinently, the seizure memo has been issued on 11.06.2021. Further, in the seizure memo, it clearly records that the vehicle, was found empty. It is surprising that when the vehicle, was found empty, what was the reason available to the authority concerned to issue seizure memo followed by notice dated 17.06.2021 requiring Page 3 of 6 Downloaded on : Fri Oct 01 22:26:47 IST 2021 C/SCA/9580/2021 ORDER DATED: 28/09/2021 the petitioner to compound the offence. Not only this, the petitioner, has also submitted a representation dated 21.06.2021 bringing it to the notice of the authority concerned the fact that the vehicle was not involved in the unauthorized mining; however, the authority concerned did not pay any heed to the request of the petitioner. It is only when the petitioner had approached this Court and the notice was issued on 07.07.2021, that in the interregnum, the order dated 13.07.2021, came to be passed. There is no denial to the fact that the complaint has not been filed after the specified period and therefore, the case of the petitioner stands squarely covered by the judgment in the case of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020.
8. In the case of Nathubhai Jinabhai Gamara v. State of Gujarat, passed in Special Civil Application No.9203 of 2020, this Court, in paragraphs 7, 10 and 11 has held 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 Page 4 of 6 Downloaded on : Fri Oct 01 22:26:47 IST 2021 C/SCA/9580/2021 ORDER DATED: 28/09/2021 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."
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.
9. Under the circumstances, this Court, is of the opinion that in absence of any complaint filed on expiry of the specified period by the respondent authority, the principle laid down by this Court in aforesaid case, applies on all fours to the facts of the present case. Therefore, the petition deserves to be allowed and is accordingly partly allowed.
10. In view of the above, the action of the respondent authority of seizing the vehicle of the petitioner is quashed and set aside and is forthwith directed to release the vehicle of the petitioner, bearing Page 5 of 6 Downloaded on : Fri Oct 01 22:26:47 IST 2021 C/SCA/9580/2021 ORDER DATED: 28/09/2021 Registration No.GJ-09-X-7951. Needless to mention that the present petition has been entertained only for the limited purpose of releasing the vehicle of the petitioner; however, the petitioner shall pursue the remedy before the higher forum. The Appellate Authority shall decide the appeal/application without being influenced by the observations made in the present order and in accordance with law. Moreover, this order shall not preclude the authorised officer to initiate any action against the petitioner, if permissible and strictly in accordance with law.
11. Rule is made absolute to the aforesaid extent. No order as to costs.
(SANGEETA K. VISHEN, J) RAVI P. PATEL Page 6 of 6 Downloaded on : Fri Oct 01 22:26:47 IST 2021