Gujarat High Court
Dipak Dhanjibhai Savaliya vs State Of Gujarat on 14 July, 2020
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/7845/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7845 of 2020
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DIPAK DHANJIBHAI SAVALIYA
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MS.NAMRATA J SHAH(6534) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR ADITYASINH JADEJA ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE G.R.UDHWANI
Date : 14/07/2020
ORAL ORDER
Rule.
The issue involved in this petition percolates around the interpretation of Rule 12 of the Gujarat Mineral ( Prevention of illegal mining, transportation and storage) Rules, 2017 which reads thus:
"Rule- 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) 13[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 determined, 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; and release the propriety so seized upon receipt of a bank guarantee for an amount equal to-
(I) the penalty payable under Rule 21, in case of transportation of, or causing to transport, mineral without lawful authority; or Page 1 of 4 Downloaded on : Wed Jul 15 21:49:19 IST 2020 C/SCA/7845/2020 ORDER (II) the written down value of the property, in case of illegal mining or illegal storage of mineral:
Provided that release under clause (a) of sub-rule (2) shall be without prejudice to and shall not in any manner affect the conduct of investigations and other actions contemplated under clause (b) of sub-rule (2).
Explanation: Under these rules property is seized as a security against the amount of penalty due to the Government and to ensure the presence of the alleged offender before the Government if the case is at notice stage].
14[
(b) conduct,
(i) an investigation and if he is satisfied that a compoundable offence has been committed in respect of the property, he may, subject to receipt of a compounding application, order payment of such amount for compounding the offence as may be deemed appropriate, which amount, if not paid within thirty days, may be recovered by invocation of the bank guarantee furnished under clause (a) of sub-rule (2), or
(ii) a preliminary investigation, and if compounding is not permissible under rule 22 or if he is satisfied that the offence committed in respect of the property is not compoundable, upon the expiry of forty-five days from the date of seizure or upon completion of the investigation, whichever is earlier, shall approach by way of making a written complaint, before the Court of Sessions.
Explanation: Any offence under these rules shall be tried by the court of sessions in accordance with the Procedure laid down under the Code of Criminal Procedure, 1973;] (3) xxxxx."
It would appear that compounding of the offence or registration of a complaint with the court of Sessions after seizure of the offending article are the only options available with the competent authority; the seizure would be followed by notice in Form J and if the person is interested in release of the vehicle pre- investigation of the offence, he may furnish bank guarantee as required by the said notice and procure the possession of the seized article. This will be subject to the right of the investigating agency to investigate the case further and file a complaint if necessary in absence of compounding of the offence or compoundability of the offence. The compounding would happen in cases where bank guarantee is given and application for compounding is made and where the offence is not compoundable or satisfaction is recorded by the concerned authority that the offence committed in respect of the property is not compoundable then investigation will have to be completed within 45 days and complaint will have to be filed with the court of Sessions if the case is found against the offender, within 45 days of the seizure. In the instant case, the seizure Page 2 of 4 Downloaded on : Wed Jul 15 21:49:19 IST 2020 C/SCA/7845/2020 ORDER has happened on 06.02.2020 and no bank guarantee was given and therefore the offence could not be compounded and therefore in the prima facie opinion of this court, and the authority was left with no option but to proceed under Rule 12 (2)(b)(ii) and lodge the complaint with the court of Sessions within the specified period which concededly has not been done. The issue of similar nature although under the unamended rules of 2017 had cropped up in several cases including the case of Zaverbhai Nanubhai Devani vs. State of Gujarat (Letters Patent Appeal No. 397 of 2018 in Special Civil Application No. 3862 of 2018 with Civil Application No. 1 of 2018 decided on 18.04.2018). The only substantial difference between the unamended and amended rules is as regards the period for investigation i.e. 15 days in the unamended rules and 45 days in the amended rules post the date of seizure and contemplation of an application for compounding under the amended rules, which was not there in the unamended rules. This court is concerned with the consequences of non-registration of the complaint within specified period with the court of Sessions as contemplated in clause (ii) of Sub-rule 2(b) of Rule 12 and the ratio spelt out in this regard in Zaverbhai(supra) can be applied to the facts of the case despite the aforesaid amendment. In absence of the complaint within specified period the vehicle was ordered to be released in the case of Zaverbhai Nanubhai Devani(supra). The observations made in the said case can be reproduced for beneficial reference:
"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 application for 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 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 the 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. "Page 3 of 4 Downloaded on : Wed Jul 15 21:49:19 IST 2020 C/SCA/7845/2020 ORDER
This court is conscious of the fact that the case of Zaverbhai Nanubhai Devani(supra) was decided finally whereas in the present case matter has been admitted; however in the opinion of this court serious prejudice will be caused to the petitioner if the vehicle is allowed to be detained by the authority in a case where prima facie the seizure would not be sustainable, leaving no room for confiscation proceeding in absence of complaint; which is sine qua non for initiation of confiscation proceeding with the court of Sessions as contemplated in sub-rule (3) of Rule 12 of above rules. In absence of the complaint, no authority is vested with the respondent to retain the possession of the seized vehicle and if such possession is allowed to be retained with the respondent, petitioner would be deprived of the vehicle even in absence of his prosecution if the interim order of release of the vehicle is not made during the pendency of this petition. Therefore in the opinion of this court, this is a fit case where mandatory order requiring the respondent to unconditionally release the vehicle should be made. Accordingly the respondent is directed to release the vehicle in question in favour of the petitioner within three days from the date of receipt of writ of the order of this court.
(G.R.UDHWANI, J) A.M.A. SAIYED/NIRU/SONGARA Page 4 of 4 Downloaded on : Wed Jul 15 21:49:19 IST 2020