Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 1253 (GUJ)

Dilipbhai Maganbhai Patel v. State Of Gujarat

2018-12-12

VIPUL M.PANCHOLI

body2018
ORDER : Vipul M. Pancholi, J. This petition is filed under Article 226 of the Constitution of India, in which the petitioner has prayed for the following main relief/s: “A. Your Lordships may be pleased to admit and allow this petition. B. Your Lordships may be pleased to issue appropriate writ, order or direction and thereby direct the respondent authorities to forthwith release the vehicle in question of the petitioner i.e. Dumber bearing registration No.GJ-24-X- 9800; C. Your Lordships may be pleased to issue appropriate writ, order or direction and thereby quash and set aside the impugned communication/notice dated 24.07.2018 [Annexure-D]; D. Your Lordships may be pleased to issue appropriate writ, order or direction and thereby direct respondent nos. 1 and 2 to inquire about the incident in question and thereafter initiate appropriate departmental proceedings against respondent nos. 3 and 4; E. Pending admission and final disposal of this petition, Your Lordships may be pleased to direct the respondent authorities to release the vehicle of the petitioner i.e. Dumper bearing registration No. GJ-24-X-9800;” 2. Heard learned advocate Mr. Satyam Chhaya for the petitioner and learned Assistant Government Pleader Mr. Rohan Yagnik for the respondents. 3. Learned advocate Mr. Chhaya for the petitioner submitted that petitioner is the owner of the vehicle in question i.e. Dumper bearing registration No.GJ-24-X-9800. The elder brother of the petitioner is registered stockiest under the provisions of the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as 'the Rules of 2017'). The petitioner is engaged in the business of transportation of goods including the mineral. It is the case of the petitioner that petitioner used to transport the ordinary sand stored at the stockyard of the brother of the petitioner to different area as per the orders given by the concerned persons. It is submitted that on 20th July, 2018, the driver of the petitioner had loaded 15 MT of ordinary sand from the stockyard of the brother of the petitioner and the royalty passes/delivery challans were also available with the driver of the petitioner. It is submitted that the royalty passes /delivery challans were issued on 20.07.2018 at 4:23 p.m. Thereafter the vehicle of the petitioner was started from the stockyard and was going towards Kalol. The said vehicle was intercepted between stockyard and Shihori three roads. It is submitted that the royalty passes /delivery challans were issued on 20.07.2018 at 4:23 p.m. Thereafter the vehicle of the petitioner was started from the stockyard and was going towards Kalol. The said vehicle was intercepted between stockyard and Shihori three roads. The driver of the petitioner had shown the royalty passes to the respondent No.4. In spite of that the vehicle in question is seized by the respondent No.4 at 4:25 p.m. Learned advocate for the petitioner has referred the averments made in the petition with regard to the mala fide intention on the part of the respondent nos. 3 and 4. It is submitted that the respondent no.3 had issued notice to the brother of the petitioner with regard to the stockyard from which the mineral was loaded in the vehicle in question and because of the said proceeding, the vehicle of the petitioner was seized illegally though the driver of the petitioner was having valid royalty passes. 4. Learned advocate Mr. Chhaya thereafter submitted that the petitioner made a representation on 23.07.2018 to the respondent No.3 and pointed out the correct facts and the relevant evidence in the form of video clip of CCTV record. In spite of that the respondent authority issued a show cause notice dated 24.07.2018 under the provisions of the Rules of 2017 and petitioner is asked to explain why penalty of Rs. 1,75,600/-shall not be recovered from the petitioner. Petitioner is also asked to give his consent whether he is agreeable for compounding of the offence or not. 5. Learned advocate Mr. Chhaya thereafter pointed out from the documents produced at page 22 to 24 of the compilation i.e. the Global Positioning System (GPS System) which was installed in the vehicle in question and submitted that as per the said GPS System, vehicle in question was lying within the stockyard till 4:19 p.m.. The respondent Nos. 3 and 4 stopped the said vehicle at 4:24 p.m. at the spot which is one and half km. away from the starting point. After referring to the said document and the averments made in para 6 of the petition, it is submitted that the respondent authority has manipulated the record and shown that the vehicle is seized at 4:20 p.m. 6. away from the starting point. After referring to the said document and the averments made in para 6 of the petition, it is submitted that the respondent authority has manipulated the record and shown that the vehicle is seized at 4:20 p.m. 6. It is further submitted that though the vehicle is seized in July 2018, till date no FIR is registered against the petitioner for the alleged violation of provisions of Rules of 2017. Learned advocate at this stage has referred the provisions contained in Rule 12 of the Rules of 2017 and also placed reliance upon the order dated 09.07.2018 passed by the Division Bench of this Court in Letters Patent Appeal No.783 of 2018 and submitted that though the period of 15 days is over from the date of seizure, the vehicle in question has not been released and therefore this Court may issue necessary direction to the respondent authorities for release of the vehicle in question. 7. On the other hand, learned Assistant Government Pleader has, at the outset, submitted that the present petition is premature. Learned Assistant Government Pleader has referred the show cause notice dated 24.07.2018 and submitted that no reply has been submitted by the petitioner. Pursuant to the said show cause notice, petitioner did not appear before the respondent authority and instead he has chosen to file the present petition in August, 2018. Learned Assistant Government Pleader has referred the averments made in the affidavit-in-reply and submitted that the petitioner visited the office of the Geologist, Patan for showing video clip of the CCTV camera installed at his brother's stockyard. However, in the said video, it was observed by the authority that the vehicle in question has left the stockyard before 4:23 p.m. with the ordinary sand i.e. at the time when the delivery challan was generated. It is submitted that after the vehicle in question was detained/seized, the delivery challan was produced. It is further submitted that the vehicle in question was stopped and seized at 2.20 kms. from the stockyard of the brother of the petitioner. Learned AGP thereafter referred the additional affidavit filed on behalf of the respondent and submitted that the timing shown in the extract of GPS is technical issue about authenticity and accuracy and therefore this Court may not go into the disputed question of facts. from the stockyard of the brother of the petitioner. Learned AGP thereafter referred the additional affidavit filed on behalf of the respondent and submitted that the timing shown in the extract of GPS is technical issue about authenticity and accuracy and therefore this Court may not go into the disputed question of facts. It is submitted that pursuant to the request made by the concerned respondent, the company viz. Geo-safe Techno-hub LLP has issued a communication on 07.12.2018, wherein, it is stated that the narration mentioned in the extract of the GPS report can neither be verified nor be authenticated. It is, therefore, urged that this Court may not entertain this petition. 8. Having heard the learned advocates appearing for the parties and having gone through the material produced on record it has emerged that the petitioner is the owner of the vehicle in question. The said vehicle is seized by the respondent authority on 20.07.2018. However, the dispute is with regard to the timing of the seizure of the vehicle. It is submitted that the vehicle in question was seized at 4:24 p.m. On 20.07.2018 at one and half km away from the starting point. However, the case of the respondent is that the said vehicle was seized at 4:20 p.m. From the material produced on recor, it is revealed that up to 4:19 p.m. the vehicle was lying in the stockyard of the brother of the petitioner and after four minutes the same was intercepted by the respondent authority. It is further revealed that the driver was having the royalty passes. From the show cause notice issued by the respondent authority it is revealed that the allegation is levelled against the petitioner that when the vehicle in question was seized, the driver was not having delivery challan. However, subsequently it was produced before the authority. It is also alleged that the vehicle in question was carrying ordinary sand and was overloaded and therefore petitioner was asked to pay penalty of Rs. 1,75,600/- for compounding of the offence. It is not in dispute that the petitioner has not given his consent for compounding of the offence. In the aforesaid facts, the provisions contained in Rule 12 of the Rules of 2017 is required to be examined, which provides as under: “12. 1,75,600/- for compounding of the offence. It is not in dispute that the petitioner has not given his consent for compounding of the offence. In the aforesaid facts, the provisions contained in Rule 12 of the Rules of 2017 is required to be examined, which 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 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. (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 subrule (2) and prior to: (a) payment for compounding the offence under sub-clause (i) of clause (b) of subrule (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: (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.” 9. From the aforesaid provisions contained in Rule 12, it is clear that if the application for compounding of the offence is not received by the authority, the vehicle seized by the said authority is required to be produced before the competent Court, which is empowered to determine the commission of the offence. Thus, the vehicle in question was required to be produced before the concerned Court after expiry of the period of 15 days from the date of the seizure. It is also not in dispute that FIR is not registered against the petitioner till date. Thus, the respondent authority has violated the provisions contained in Rule 12 of the Rules of 2017. 10. In view of the aforesaid facts and circumstances of the present case, the respondent No.3 is directed to release the vehicle in question of the petitioner forthwith. The petitioner is directed not to transfer the vehicle in question for a period of six months. It is open for the respondent authorities to proceed further in the matter in accordance with law. Moreover, it is open for the respondent authorities to weigh the vehicle in question and the mineral lying in the said vehicle at Government approved weigh-bridge before release of the vehicle in question. 11. With the aforesaid observations and directions, the petition is disposed of. Direct service is permitted.