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2022 DIGILAW 1350 (GUJ)

Shobhaben Rameshbhai Makavana v. State Of Gujarat

2022-10-12

NIRZAR S.DESAI

body2022
ORDER : 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed to forthwith release of vehicle bearing registration No.GJ-10-U-8925 seized by the respondent authority. 2. Heard learned advocate Mr. Hirenkumar M. Niyalchandani for the petitioner and learned Assistant Government Pleader Mr. Hardik Mehta for respondent – State. 3. By the consent of learned advocates for the parties, the matter is taken up for final hearing. Hence, Rule. Learned AGP Mr.Hardik Mehta waives service of rule on behalf of respondent State authorities. 4. At the outset, learned advocate Mr. Hirenkumar M. Niyalchandani for the petitioner places on record an affidavit dated 07.10.2022. The same is taken on record. 5. It is the case of the petitioner that she is the owner of the Truck bearing Registration No.GJ-10-U-8925. On 08.03.2022 while transporting the mineral stones from Surendranagar to Rajkot, Airport police have intercepted the vehicle and interrogated the driver and seized the vehicle for transporting the mining which was illegal. Thereafter, seizure memo was also issued to the petitioner. Thereafter, Mining Department issued a show cause notice to the petitioner on 10.05.2022 and at that time, the petitioner filed an affidavit before the concerned authority at Rajkot on 25.08.2022 stating that the petitioner is ready to pay an amount of Rs. 93,733/- and Rs.901/- for environmental dues. However, after knowing that while passing the order directing the authorities to release the vehicle of similarly situated persons, this Court has not directed the other similarly situated persons either to deposit any amount before the authority or to provide bank guarantee and therefore, by way of this affidavit, which is submitted today, the petitioner has stated that the petitioner withdraws the aforesaid affidavit dated 25.08.2022 and she may be permitted to withdraw the aforesaid affidavit. 6. Learned advocate Mr. Hirenkumar M. Niyalchandani for the petitioner states that since last more than 45 days the vehicle has been seized and FIR is not registered in respect of seizure of the vehicle. 6. Learned advocate Mr. Hirenkumar M. Niyalchandani for the petitioner states that since last more than 45 days the vehicle has been seized and FIR is not registered in respect of seizure of the vehicle. As per rule 12(2)(b)(ii) of the Gujarat Mineral (Illegal Mining, Transpiration and Storage) rules, 2017 (for short, `the Rules’) if an application for compounding of offence is not received, the vehicle/machine shall be produced before the court to determine commission of such offence, upon expiry of 45 days from the date of seizure or upon completion of the investigation, whichever is earlier, the vehicle is required to be released. Learned advocate Mr. Niyalchandani states that the issue is squarely covered by the order of the co-ordinate Bench of this Court in Special Civil Application No.9203 of 2020 order dated 26.8.2020 and order dated 1.12.2021 passed in Special Civil Application No.16887 of 2021. 7. Learned AGP Mr. Hardik Mehta has strongly opposed this petition by stating that the petitioner has already filed an affidavit that she is ready and willing to deposit an amount of Rs.93,733/- + Rs.901/- towards environmental charges and therefore, once that affidavit is submitted before the authority, unless that amount is deposited, this Court may not issue any direction to the authority to release the vehicle of the petitioner. 8. Learned Assistant Government Pleader Mr. Hardik Mehta, upon instructions, states that pursuant to the alleged incident, no FIR is registered and he could not dispute the fact that the vehicle has been seized for more than 45 days. 9. As far as the opposition by the learned AGP Mr. Mehta against the affidavit submitted by the petitioner is concerned, this Court is of the view that in similar cases, it has not been insisted upon by the Coordinate Bench as well as by this Court to direct the affected person whose vehicle is seized to deposit any amount or to furnish the bank guarantee and therefore, merely because the petitioner at one point of time under compelling circumstances has submitted an affidavit showing her willingness to deposit sum of Rs. 93,733/- + Rs. 901/-, the petitioner should not be asked to abide by the aforesaid affidavit considering the fact that in cases of other similarly situated persons those deposit or furnishing of bank guarantee is not insisted upon either by the authority or by this Court. 10. 93,733/- + Rs. 901/-, the petitioner should not be asked to abide by the aforesaid affidavit considering the fact that in cases of other similarly situated persons those deposit or furnishing of bank guarantee is not insisted upon either by the authority or by this Court. 10. Heard the learned advocates for the respective parties and also perused the documents as pointed out by them. The issue raised in the writ petition is governed under the Rule 12(2)(b) (ii) of the Rules, 2017 which reads as under: "12. Seizure of property liable to confiscation.- (2)(b)(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 fortyfive 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." 11. The truck was seized on 08.03.2022, and therefore, undisputedly, the complaint, as envisaged under sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Rules, has not been filed yet and, therefore, in absence of any complaint, the action of continuation of the detention of the truck by the respondent authority, is illegal and against the provisions of the Rules. 12. Reliance has rightly been placed on the judgment in the case of Nathubhai Jinabhai Gamara Vs. State of Gujarat, passed in Special Civil Application No.9203 of 2020. The Paragraph Nos.7, 10 and 11 of the judgment read thus:- "7. Pertinently the competent authority under Rule 12 is only authorized to seize the property investigate the offence and 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 subrule 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. 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." 13. 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." 13. 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 it was seized, without insisting for the bank guarantee. 14. Under the circumstances, in absence of any complaint, the petition deserves to be allowed and the action of the respondent authority in seizing the truck bearing registration No.GJ-10-U-8925, deserves to be quashed and set aside and is accordingly, quashed and set aside. The respondent authority, is forthwith directed to release the truck. 15. With the aforesaid direction, the matter is allowed. Rule made absolute to the aforesaid extent. Direct service is permitted.