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2019 DIGILAW 68 (GUJ)

ILYASBHAI HUSAINBHAI DAL v. STATE OF GUJARAT

2019-01-29

VIPUL M.PANCHOLI

body2019
JUDGMENT VIPUL M PANCHOLI, J. 1. This petition is filed under Article 226 of the Constitution of India, wherein the petitioner has prayed that respondent No.2 be directed to release the vehicle i.e. Truck bearing registration No.GJ-05-AT-0393. 2. Rule. Mr.Rohan Yagnik, learned Assistant Government Pleader, waives service of notice of Rule for the respondents. With the consent of the learned counsel for the respective parties, the petition is being heard and decided finally. 3. Heard Ms.Kruti M. Shah, learned advocate for the petitioner and Mr.Rohan Yagnik, learned Assistant Government Pleader for the respondents. 4. It is submitted that the petitioner is the owner of the vehicle i.e. Truck bearing registration No.GJ-05-AT-0393 ("the vehicle in question" for short). The said vehicle, which was carrying ordinary sand, was intercepted on 19.12.2018 by one Mr. Atik Saiyed, who was not a Government employee, near Pavagadh Bypass. Thereafter one Mr. Farhan Saiyed took the vehicle for weighing it. They both seized the vehicle saying that there was royalty pass of 10.800 metric ton of ordinary sand but the quantity of sand loaded in the vehicle was 15.655. Thereafter, respondent No.2 issued notice on 20.12.2018 to the petitioner asking him to give his consent for compounding of the offence and for payment of total amount of Rs.1,24,467/-, which includes an amount of Rs.24,275/- for 4.855 Mts sand, which was found in excess than the permissible limit and for Rs.1,00,000/- by way of penalty for the vehicle in question. 4.1. Learned advocate for the petitioner submitted that petitioner has given one written application to respondent No.2 authority for releasing the vehicle in question as the same was detained illegally by persons who are not Government employees. 4.2. Learned advocate for the petitioner further submitted that respondent No.2 has till date not produced the vehicle in question before the concerned Court and the act of the respondent No.2 authority of issuing notice under the provisions of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2017 (hereinafter referred to as "the Rules of 2017") is arbitrary as no action has been taken even after the petitioner's attempt and producing all the relevant documents and a written application to release his vehicle. Learned advocate has referred the provisions contained in Rule 12 of the Rules of 2017 as well as Section 21 (4A) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the Act of 1957"). Learned advocate has also referred the decision dated 10.07.2018 rendered by the Division Bench of this Court in Letters Patent Appeal No.782 of 2018 and submitted that in view of the said decision, appropriate direction be given to respondent No.2 for release of the vehicle in question. 5. On the other hand, learned Assistant Government Pleader opposed this petition and contended that respondent No.2 has issued notice as per the provisions of Rules of 2017 and therefore no illegality is committed by the respondent No.2 authority. He, therefore, submitted that this Court may not give any direction to respondent No.2 for release of the vehicle in question. However, during the course of submission, learned Assistant Government Pleader has fairly submitted, under the instructions of respondent No.2, that till date, no criminal proceedings are initiated for the incident in question. 6. Having heard learned advocates appearing for the parties and having gone through the material produced on record and the relevant provisions of the Rules and the Act, it is revealed that allegation of respondent No.2 in the notice issued to the petitioner is that the vehicle in question was seized as the same was carrying ordinary sand, which was in excess than the permissible limit. The vehicle in question was, therefore, seized. The notice was issued to the petitioner, by which, the petitioner was asked to give consent whether he is agreeable for compounding of the alleged offence or not and whether he is ready to pay the compounding fees of Rs.1,24,467/- or not. 7. In the aforesaid facts, if the provision contained in Rule 12 of the Rules of 2017 is seen, it provides the procedure to be followed after the vehicle is seized. Rule 12 of the Rules of 2017 provides as under: "Rule 12. Seizure of property liable to confiscation. 7. In the aforesaid facts, if the provision contained in Rule 12 of the Rules of 2017 is seen, it provides the procedure to be followed after the vehicle is seized. Rule 12 of the Rules of 2017 provides as under: "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) 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 subrule (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 subsection(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 noninterest bearing security deposit or a bank guarantee. (6) The bank guarantee issued under subrule (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 noninterest 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." 8. At this stage, it is necessary to refer the provisions contained in Section 21(4A) of the Act of 1957, which reads as under: "Section 21(4A) Any mineral, tool, equipment, vehicle or any other thing seized under subsection(4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under subsection(1) and shall be disposed of in accordance with the directions of such court." 9. From the combined reading of the aforesaid provisions, it is revealed that any mineral, equipment, vehicle etc., which is seized under subsection (4) of Section 21 of the Act of 1957, is liable to be confiscated by an order of the Court competent to take cognizance of the offence and such mineral or vehicle can be disposed of in accordance with the direction of the competent Court. It is further revealed from Rule 12(3) of the Rules of 2017 that after the vehicle is produced before the Court, if the concerned Court is satisfied that the offence has been committed in respect of the said vehicle, the concerned Court is empowered to pass an order of confiscation of the property as per the provisions contained in Section 21(4A) of the Act of 1957. 10. Keeping in view of the aforesaid provisions of the Act and the Rules, if the facts as discussed hereinabove are examined, it is revealed that till date, the respondent authority has not registered the offence against the petitioner for the incident in question. Though the vehicle is seized by respondent No.2, the same is not produced before the Court. Respondent No.2 is not authorised to confiscate the vehicle in question but the powers are given to the concerned Court after the vehicle is produced before it and, that too, after satisfaction that the offence is committed in respect of the said vehicle. Thus, respondent No.2 has not followed the procedure prescribed under the law. 11. At this stage, it is required to be noted that the Division Bench of this Court, in the order dated 10.07.2018 passed in Letters Patent Appeal No.782 of 2018, after considering the provisions contained in Rule 12 of the Rules of 2017, directed the concerned respondent to release the vehicle on payment of the amount of the ordinary sand, which was found in excess. In the present case, the petitioner has also shown willingness to pay an amount of Rs.24,275/- for 4.855 Mts ordinary sand, which is found in excess in the vehicle in question when the same was seized. 12. In view of the aforesaid discussion, the petition is partly allowed. The petitioner is permitted to deposit an amount of Rs.24,275/- before respondent No.2. As and when such amount is deposited by the petitioner before respondent No.2, respondent No.2 is directed to release the vehicle in question. The petitioner is directed not to transfer the vehicle in question in favour of any third party for a period of six months from today. The petitioner is also directed to give an undertaking before respondent No.2 to the effect that if the competent Court finds that the petitioner has committed an alleged offence, the petitioner will deposit the remaining amount before the concerned Court or the authorised officer. It is open for respondent No.2 to proceed further in the matter, in accordance with law. Rule is made absolute, to the aforesaid extent. Direct Service is permitted.