Gujarat High CourtVadsola Vijaykuamr Lalijibhai vs State Of Gujarat on 8 June, 2023Bench: Vaibhavi D. NanavatiC/SCA/8154/2023                              ORDER DATED: 08/06/2023\n\n\n\n\n           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n             R/SPECIAL CIVIL APPLICATION NO. 8154 of 2023\n==========================================================\n                       VADSOLA VIJAYKUAMR LALIJIBHAI\n                                   Versus\n                            STATE OF GUJARAT\n==========================================================\nAppearance:\nMS NAMRATA HARISHBHAI CHAUHAN(6534) for the Petitioner(s) No. 1\nMR. AYAAN PATEL, AGP for the Respondent(s) No. 1\nDS AFF.NOT FILED (N) for the Respondent(s) No. 1,2,3\n==========================================================\n\n CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI\n\n                              Date : 08/06/2023\n\n                               ORAL ORDER1.    With the consent of the learned advocates appearing\nfor the respective parties, the captioned writ petition is\ntaken up for final hearing.2.    Issue Rule, returnable forthwith. Mr. Ayaan Patel,\nthe learned Assistant Government Pleader waives service\nof notice of Rule on behalf of the respondent- State.3.    By way of this petition underArticle-226of the\nConstitution of India, the petitioner has prayed for the\nfollowing relief:"(a) This Hon'ble Court may be pleased to admit and\n               allow this petition;(b) This Hon'ble Court may be pleased to issue\n               appropriate writ, order or direction for releasing the\n               JCB excavator machine bearing register No. GJ-03-EA-Page 1 of 7Downloaded on : Fri Jun 09 20:45:13 IST 2023C/SCA/8154/2023                                     ORDER DATED: 08/06/2023\n\n\n\n\n               8207 of the ownership of the petitioner (Annexure-A)\n               which is seized by the respondent No.2 and at present\n               the case is pending with the respondent, on such terms\n               and conditions as this Hon'ble Court may deem think\n               fit;(c) This Hon'ble Court may be pleased to quash and set\n               aside notice dated 15.3.2023 (Annexure-B) issued in\n               connection with the JCB excavator machine bearing\n               register No. GJ-03-EA-8207 of the ownership of the\n               petitioner   (Annexure-A)         which    is      seized       by      the\n               respondent(d) Pending admission final hearing and disposal of this\n               petition, Your Lordships may be pleased to release the\n               JCB excavator machine bearing register No. GJ-03-EA-\n               8207 on appropriate terms and conditions that myay be\n               deem fit and proper to this Hon'ble Court.(e) Grant such other and further relief as thought fit in\n               the interest of justice."4.    It is the case of the petitioner that, the petitioner is\nthe owner of the vehicle i.e. JCB excavator machine\nbearing register No. GJ-03-EA-8207 (hereinafter referred\nto as 'the vehicle in question'). The respondent no.2 has\nseized the said vehicle on 15.3.2023. On 24.03.2023, the\nrespondent no.2 issued notice stating that the said\nvehicle was seized on 15.03.2023.5.    Ms. Namrata Chauhan, learned advocate for the\npetitioner has submitted that the JCB excavator machinePage 2 of 7Downloaded on : Fri Jun 09 20:45:13 IST 2023C/SCA/8154/2023                               ORDER DATED: 08/06/2023\n\n\n\n\nbearing      register No.   GJ-03-EA-8207           was issued                   on\n15.3.2023 followed by the show cause notice dated\n24.03.2023; however, after the issuance of the show\ncause notice, no steps worth the name have been initiated\nby the respondent, much less filing the F.I.R. as provided\nunder sub-clause (ii) of sub- clause (b) of sub-Rule (2) of\nRule 12 of the Gujarat Mineral (Prevention of Illegal\nMining,       Transportation     and         Storage)       Rules,          2017\n(hereinafter referred to as the "Rules of 2017"). It is\nsubmitted that in absence of any F.I.R. registered beyond\nthe specified period, the action of the respondent\nauthority seizing the vehicle, is illegal and against the\nprinciples laid down by this Court in the case ofNathubhai Jinabhai Gamara v. State of Gujarat, rendered\nin Special Civil Application No.9203 of 2020. It is\nsubmitted that this Court has categorically held and\nobserved that if the complaint is not registered as\nenvisaged under sub-clause (ii) of sub-clause (b) of sub-\nRule (2) of Rule 12 of the Rules of 2017, in absence of the\ncomplaint, the competent authority will have no option\nbut to release the seized vehicle without insisting for any\nbank guarantee. Therefore, the principles laid down by\nthis Court in the case ofNathubhai Jinabhai Gamara v.\nState of Gujarat(supra) applies to the facts of the present\ncase. It is therefore urged that the petition deserves to be\nallowed directing the respondent authorities to release\nthe vehicle.Page 3 of 7Downloaded on : Fri Jun 09 20:45:13 IST 2023C/SCA/8154/2023                       ORDER DATED: 08/06/2023\n\n\n\n\n5.1 It is urged that the petition be entertained only for\nthe limited purpose of release of the vehicle. So far as the\nadjudication of the show cause notice is concerned, the\npetitioner be permitted to pursue the said show cause\nnotice as per the provisions of the Act.6.    On the other hand, Mr. Ayaan Patel, the learned\nAssistant Government Pleader has fairly conceded that\nno orders have been passed considering the pendency of\nthe writ petition. It is also conceded that no First\nInformation Report has been registered as provided\nunder the provisions of Rules of 2017.7.    Heard the learned advocates appearing for the\nrespective parties.8.    It is undisputed that notice was issued on 24.3.2023.\nIt is not disputed rather conceded that within the period\nof 45 days, no First Information Report has been\nregistered by the respondent authority. Therefore, the\nprinciple laid down by this Court in the case ofNathubhai\nJinabhai Gamara v. State of Gujarat(supra) applies to the\nfacts of the present case.9.    In the aforesaid judgment, this Court, while dealing\nwith the provisions of the sub-clause (ii) of sub-clause (b)\nof sub-Rule (2) of Rule 12 of the Rules of 2017, inPage 4 of 7Downloaded on : Fri Jun 09 20:45:13 IST 2023C/SCA/8154/2023                           ORDER DATED: 08/06/2023\n\n\n\n\nparagraphs 7, 10 and 11 has held and observed thus:-"7. Pertinently the competent authority under Rule 12 is only\n    authorized to seize the property investigate the offence and\n    compound it; the penalty can be imposed and confiscation of\n    the property can be done only by order of the court.\n    Imposition of penalties and other punishments under Rule 21\n    is thus the domain of the court and not the competent\n    authority. Needless to say therefore that for the purpose of\n    confiscation of the property it will have to be produced with\n    the sessions court and the custody would remain as indicated\n    in sub-rule 7 of Rule 12. Thus where the offence is not\n    compounded or not compoundable it would be obligatory for\n    the investigator to approach the court of sessions with a\n    written complaint and produce the seized properties with the\n    court on expiry of the specified period. In absence of this\n    exercise, the purpose of seizure and the bank guarantee\n    would stand frustrated; resultantly the property will have to\n    be released in favour of the person from whom it was seized,\n    without insisting for the bank guarantee.10. The bank guarantee is contemplated to be furnished in\n    three eventualities: (i) for the release of the seized property\n    and (ii) for compounding of the offence and recovery of\n    compounded amount, if it remains unpaid on expiry of the\n    specified period of 30 days; (iii) for recovery of unpaid\n    penalty. Merely because that is so, it cannot be said that the\n    investigator would be absolved from its duty of instituting the\n    case on failure of compounding of the offence. Infact offence\n    can be compounded at two stages being (1) at a notice stage,\n    within 45 days of the seizure of the vehicle; (2) during thePage 5 of 7Downloaded on : Fri Jun 09 20:45:13 IST 2023C/SCA/8154/2023                               ORDER DATED: 08/06/2023\n\n\n\n\n     prosecution but before the order of confiscation. Needless to\n     say that for compounding the offence during the prosecution,\n     prosecution must be lodged and it is only then that on the\n     application for compounding, the bank guarantee could be\n     insisted upon. In absence of prosecution, the question of\n     bank guarantee would not arise; nor would the question of\n     compounding of offence.11. The deponent of the affidavit appears to have turned a\n     blind eye on Rule 12 when he contends that application for\n     compounding has been dispensed with by the amended rules\n     inasmuch as; even the amended Rule 12(b)(i) clearly uses the\n     word "subject to receipt of compounding application". Thus\n     the said contention deserve no merits. Thus, in absence of\n     the complaint, the competent authority will have no option\n     but to release the seized vehicle without insisting for bank\n     guarantee. There is thus a huge misconception on the part of\n     the authority to assert that even in absence of the complaint\n     it would have a dominance over the seized property and that\n     it can insist for a bank guarantee for its."It has been held that it would be obligatory for the\ninvestigator to approach the Court of Sessions with a\nwritten complaint and produce the seized properties with\nthe Court on expiry of the specified period. In absence of\nsuch exercise, the purpose of seizure and the bank\nguarantee        would   stand     frustrated;      resultantly,            the\nproperty will have to be released in favour of the person\nfrom whom it was seized, without insisting for the bankPage 6 of 7Downloaded on : Fri Jun 09 20:45:13 IST 2023C/SCA/8154/2023                                ORDER DATED: 08/06/2023\n\n\n\n\nguarantee.10. In view of the fact that that though the vehicle in\nquestion came to be seized on 15.3.2023, no First\nInformation Report has been registered within a period of\n45 days and the principle laid down by this Court in the\naforesaid case applies to the facts of the present case, the\npresent petition deserves to be allowed and is accordingly\nallowed to the limited extent of directing the respondent\nto release the vehicle of the petitioner i.e. JCB excavator\nmachine bearing register No. GJ-03-EA-8207. So far as\nthe show cause notice dated 24.3.2023 is concerned, the\npetitioner        shall   appear    and      file    necessary             reply\nresponding to the show cause notice and it will be open to\nthe respondent authority to consider the reply, adjudicate\nthe show cause notice and pass orders, strictly in\naccordance with law. It is clarified that this Court, has not\nexamined the merits of the issue involved and the\nobservations made are only for the limited purpose of\nreleasing the vehicle.11. In view of the aforementioned discussion, the\npetition succeeds and is accordingly allowed in part. Rule\nis made absolute to the aforesaid extent. No order as to\ncosts. Direct service is permitted.(VAIBHAVI D. NANAVATI,J)\nSAJ GEORGEPage 7 of 7Downloaded on : Fri Jun 09 20:45:13 IST 2023