Gujarat High Court
Ajaybhai Mohanlal Rathor vs State Of Gujarat on 24 December, 2021
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/16359/2021 ORDER DATED: 24/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16359 of 2021
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AJAYBHAI MOHANLAL RATHOR
Versus
STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 24/12/2021
ORAL ORDER
Ms.Dhruti Pandya, learned advocate for Ms.Kruti M. Shah, learned advocate appearing for the petitioner seeks permission to amend the prayer clause.
Request is acceded to. Amendment to be carried out forthwith.
With the consent of the learned advocates for the respective parties, the captioned writ petition is taken up for final disposal.
2. Issue Rule, returnable forthwith. Mr.Rohan Shah, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondents.
3. The petition has been filed, inter alia, seeking release of the vehicle that is Truck No.MP-09-HG-3606 (hereinafter referred to as "the vehicle") on the ground that it was found transporting illegally the mineral that is ordinary sand.
4. The facts are to the effect that the vehicle of the petitioner, was seized on 15.05.2020, followed by issuance of notice dated Page 1 of 5 Downloaded on : Wed Jan 12 14:56:48 IST 2022 C/SCA/16359/2021 ORDER DATED: 24/12/2021 28.05.2020 requiring the petitioner to compound the offence, failing which, the order would be passed. The petitioner has addressed a communication dated 20.07.2020 showing the willingness to compound the offence; however, no decision was taken either for the purpose of release of the vehicle or for compounding the offence. According to the petitioner thereafter nothing was heard, the present writ petition by the petitioner.
5. Ms.Dhruti Pandya, learned advocate for Ms.Kruti M. Shah, learned advocate for the petitioner, submitted that the vehicle of the petitioner, is lying for more than one and half year with the respondent authority. It is submitted that the vehicle of the petitioner was seized on 15.05.2020 followed by the issuance of the notice dated 28.05.2020. It is submitted that apropos the notice dated 28.05.2020, the petitioner had also expressed his willingness to pay the compounding fees; however, not considering the request of the petitioner, the respondent authority had neither passed any order nor released the vehicle. It is also submitted that as per the provisions of 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"), the respondent authority, is obliged to release the vehicle; however, the vehicle has so far been not released. It is also submitted that as per the said provisions, it is incumbent upon the officer concerned to file a complaint. In absence of any complaint, after expiry of the 45 days, the action of the respondent , would be without authority of law. Reliance is placed on the judgment 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 held and observed that after the expiry of the specified period, the officer concerned, is obliged to file a complaint. In absence of any complaint, the authority, would not Page 2 of 5 Downloaded on : Wed Jan 12 14:56:48 IST 2022 C/SCA/16359/2021 ORDER DATED: 24/12/2021 be justified to continue with the detention. It is therefore submitted that the case of the petitioner stands covered by the said judgment.
6. Mr.Rohan Shah, learned Assistant Government Pleader submitted that after the issuance of the notice dated 28.05.2020, the respondent authority has passed the order dated 20.07.2020. It is submitted that the remedy of appeal was very much available to the petitioner; however, without availing such remedy the petitioner has filed the captioned writ petition. It is urged that let the petitioner challenge the order on merits before the Appellate Authority. So far as filing of complaint is concerned, Mr.Rohan Shah, learned Assistant Government Pleader, fairly conceded that no complaint has been filed. It is also conceded that the principle laid down by this Court would squarely apply to the facts of the present case.
7. Heard the learned advocates appearing for the respective parties and perused the documents available on the record.
8. Pertinently, in the present case, the vehicle has been seized on 15.05.2020, followed by issuance of show cause notice on 28.05.2020, further followed by passing of the order dated 20.07.2020. So far as the observance of the provisions of sub-clause
(ii) of sub-clause (b) of sub-Rule (2) of Rule 12 of the Rules of 2017 is concerned, it has been conceded by the learned Assistant Government Pleader that no complaint has been filed. In absence of any complaint having been filed, this Court, is of the opinion that the detention of the vehicle by the respondent, would be without any authority of law. The issue stands covered by the judgment in the case of Nathubhai Jinabhai Gamara v. State of Gujarat (supra). This Court, 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 Page 3 of 5 Downloaded on : Wed Jan 12 14:56:48 IST 2022 C/SCA/16359/2021 ORDER DATED: 24/12/2021 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. 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 Page 4 of 5 Downloaded on : Wed Jan 12 14:56:48 IST 2022 C/SCA/16359/2021 ORDER DATED: 24/12/2021 it was seized, without insisting for the bank guarantee.
9. In view of the aforementioned discussion, the action of the respondent having found to be without authority of law deserves to be quashed and set aside and is accordingly, quashed and set aside. The respondent is forthwith directed to release the vehicle. So far as the order dated 20.07.2020 is concerned, copy whereof is not placed on the record. The learned advocate for the petitioner has stated before this Court that the petitioner will avail of an alternative remedy by filing an appeal challenging the order dated 20.07.2020. It is clarified that once the appeal is filed, the Appellate Authority, shall decide the appeal independently and without being influenced by the observations made in the present order.
10. It is clarified that this Court, has not examined the merits of the issue involved and the observations made are only for the limited purpose of releasing the vehicle. It is also clarified that it will be open to the respondent authorities to initiate any proceedings for recovery, if permissible and in accordance with law.
11. In view of the aforementioned discussion, the petition succeeds and is accordingly allowed in part. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
(SANGEETA K. VISHEN, J) RAVI P. PATEL Page 5 of 5 Downloaded on : Wed Jan 12 14:56:48 IST 2022