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2018 DIGILAW 841 (GUJ)

Jitendrakumar Madhu Damaniya v. State of Gujarat

2018-07-10

R.SUBHASH REDDY, VIPUL M PANCHOLI

body2018
JUDGMENT & ORDER : VIPUL M. PANCHOLI, J. 1. This appeal is filed by the appellant - original petitioner under Clause 15 of the Letters Patent against an oral order dated 02.07.2018 passed by the learned Single Judge by which the learned Single Judge disposed of the petition with direction to the respondent No.2 to decide the representation of the petitioner. 2. Heard learned advocate Ms. Kruti M. Shah for the appellant - original petitioner and learned AGP Mr. Devnani for the respondents. 3. Learned advocate Ms. Shah appearing for the petitioner submitted that petitioner is the owner of the truck bearing No.DD-03-F-9529. The said vehicle of the petitioner was stopped by the respondent No.2 on 04.06.2018 while the same was carrying ordinary sand. It is submitted that while issuing notice in Form-J regarding seizer of the property, it is mentioned that the said vehicle was overloaded. However, the said vehicle was not brought to the Government approved agency for the purpose of weighing. It is further submitted that after the said vehicle is seized, the petitioner made a representation dated 12.06.2018 in which it is stated that truck was carrying ordinary sand and due to moisture in it minor variations were found and a request was also made to weigh the sand by the Government Approved Agency. It is further submitted that in the meantime, corrected notice in Form-J was issued by the respondent No.2 on 06.06.2018 wherein respondent No.2 has stated that 6.935 M. Ton ordinary sand was found in access in the vehicle in question, therefore, the petitioner was asked to give his consent, whether he is ready to pay an amount of Rs. 34,675/- by way of penalty for compounding the offences as well as the amount of Rs. 50,000/- for release of the vehicle in question total amounting to Rs. 84,675/- or not? 4. Learned advocate Ms. Shah thereafter contended that as per the provisions contained in Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (hereinafter referred to as "the Rules of 2017"), if no application for compounding the offence is received, the vehicle is to be produced before the Court empowered to determine the commission of offence, on expiry of 15 days from the date of seizure. It is contended that though the period of 15 days is over from the date of seizure of the vehicle in question, respondent No.2 has not released the vehicle nor it is produced before the concerned Court. 5. Learned advocate for the petitioner thereafter submitted that without prejudice to the rights and contentions of the petitioner, he is ready to deposit Rs. 34,675/- before the respondent No.2. 6. On the other hand, learned AGP Mr. Devnani has submitted that the respondent No.2 has seized the vehicle in question on 04.06.2018 as the said vehicle was found to carry the ordinary sand in excess than the permissible. It is pointed out that as per the royalty pass the vehicle in question can carry 10,000 M.ton sand. However, when it was stopped and weighed at the concerned weigh bridge, 6.935 M.Ton sand was found to be in excess and therefore within a period of two days only notice in the prescribed Form-J was issued to the petitioner and his willingness for compounding of the offence was asked. However, no reply is received from the petitioner with regard to compounding of the offences and therefore no illegality is committed by the respondent No.2 while detaining the vehicle. It is submitted that respondent No.2 is ready and willing to produce the vehicle in question before the competent Court. 7. Having heard the learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that the petitioner was having royalty pass to carry 10,000 M.Ton ordinary sand. The said vehicle was stopped and when it was brought to the private weigh bridge, it was found that the vehicle in question was having 6.935 M.Ton ordinary sand in excess than the permissible limit. The vehicle in question was therefore seized and the respondent No.2 has issued the notice in the prescribed form. The vehicle in question was seized on 04.06.2018 and till date the same has not been released by the respondent No.2. 8. At this stage, we would like to refer to the provisions contained in Rule 12 of the Rules of 2017, which provides as under: "12. The vehicle in question was seized on 04.06.2018 and till date the same has not been released by the respondent No.2. 8. At this stage, we would like to refer to the provisions contained in Rule 12 of the Rules of 2017, 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. (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. (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, it is clear that if the application for compounding of offence is not received, the vehicle so seized shall be produced, before the Court which is empowered to determine the commission of offence, upon expiry of 15 days from the date of seizure or upon completion of the investigation whichever is earlier. In the present case, the investigation is still not over nor the appellant has submitted an application for compounding of the offence. Thus, the respondent No.2 was duty bound to produce the vehicle in question before the concerned Court. However, till date the vehicle is not produced before the competent Court nor the investigation in relation to commission of the alleged offence is over. 10. It is further revealed from the record that in the present case, the vehicle in question is found to carry 6.935 M.Ton sand in excess than the permissible limit. Petitioner has shown willingness to deposit an amount of Rs. 34,675/- (Rs. 5000 per M.Ton x 6.935 M.Ton) without prejudiced to his rights. 11. In view of the aforesaid facts and circumstances of the present case, we allow the appeal on following terms: 1. We permit the petitioner to deposit an amount of Rs. 34,675/- before the respondent No.2. We direct the petitioner to give an undertaking before the respondent No.2 to the effect that if the competent Court finds that the petitioner has committed the alleged offence, the petitioner will deposit the remaining amount before the Authorized Officer/Court. 2. On receipt of an amount of Rs. 34,675/- as well as the undertaking as observed hereinabove from the petitioner, the respondent No.2 shall immediately release the vehicle in question. 12. In view of the forgoing discussion, the impugned order passed by the learned Single Judge is modified to the extent as indicated above. The appeal is allowed to the aforesaid extent. Consequently, civil application does not survive and stands disposed of.