Govindbhai Bhavanbhai Bharwad Vs State of Gujarat

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C/SCA/7570/2022 ORDER DATED: 12/07/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 7570 of 2022

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========================================================== GOVINDBHAI BHAVANBHAI BHARWAD

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Versus

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STATE OF GUJARAT

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Appearance:

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MR MRUGEN K PUROHIT(1224) for the Petitioner(s) No. 1 MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,2,3

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==========================================================

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CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA

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Date : 12/07/2022 ORAL ORDER

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1.Rule. Learned AGP waives service of notice of
rule for and on behalf of the respondents.

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2.The petitioner is seeking a direction on the
respondent authorities to release the vehicles
being Tractor and Trolly bearing Registration
No.GJ-06-MD-1207, which are of the ownership of
the petitioner.

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3. The brief facts of the case are as under:

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3.1The petitioner is the owner of the vehicles
being Tractor and Trolly bearing Registration
No.GJ-06-MD-1207. On 05.08.2021, a raid was
conducted at the premises of N.J.Corporation at
Village Sundalpura, Taluka Umreth, District
Anand, wherein the respondent No.3 had found
regular sand, which was brought there, after
illegal mining and the said vehicles were found
with other vehicles alongwith 1062.194 MT of
sand. Pursuant to that, a show-cause notice was

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Page 1 of 6

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C/SCA/7570/2022 ORDER DATED: 12/07/2022

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issued to the Manager of the said premises. Under
the provision of the Gujarat Minerals (Prevention
of Illegal Mining, Transportation and Storage)
Rules, 2017 (for short “the Rules, 2017”), the
vehiclesofthepetitionerwere
detained/confiscated by the respondent No.3 and
registered a complaint against the petitioner.

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5.Learned advocate Ms.Purohit has submitted
that the authority did not approach the concerned
Court and directly registered a complaint against
the petitioner even though no application of
compounding was made by the petitioners within a
period as prescribed under Rule 12 of the Rules,
2017. He has submitted that respondent No.3 has
not filed any F.I.R. as stipulated under the
Rules, 2017 and has wrongly passed the order
being No.AGA/Gheda/Hukam/1398 to 1402 dated
30.10.2021, whereby the penalty of Rs.6,34,447/-
was imposed upon the petitioner jointly with
other persons. It is further submitted that after
expiry of 45 days, the vehicle, which is seized,
is required to be released as per the provision
of 12(2)(b)(ii) of the Rules, 2017. He has
submitted that the issue is squarely covered by
the order of the Coordinate Bench of this Court
dated 26.08.2020 passed in Special Civil
Application No.9203 of 2020 and the order dated
01.12.2021 passed in Special Civil Application
No.16887 of 2021.

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Page 2 of 6

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C/SCA/7570/2022 ORDER DATED: 12/07/2022

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6.In response to the aforesaid submissions,
learned AGP Mr.Trivedi, upon instructions, has
submitted that as per his information, no
criminal prosecution has been initiated and no
F.I.R. has been filed, as required under the
provision of Rule 12 of the Rules, 2017.

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7.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:

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“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
forty-five 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.”

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8. The vehicle was seized on 05.08.2021.
Undisputedly, the complaint, as envisaged under
sub-clause (ii) of clause (b) of sub-rule (2) of
Rule 12 of the Rules, 2017, has not been filed
yet and, therefore, in absence of any complaint,
the action of continuation of the detention of
the vehicle by the respondent authority, is
illegal and against the provisions of the Rules,
2017.

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9. Reliance has rightly been placed on the
judgment in the case ofNathubhai Jinabhai Gamara

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Page 3 of 6

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C/SCA/7570/2022 ORDER DATED: 12/07/2022

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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:-

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“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 sub-rule 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. 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.

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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.

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Page 4 of 6

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C/SCA/7570/2022 ORDER DATED: 12/07/2022

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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.”

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10.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.

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11. Under the circumstances, in absence of any
complaint, the petition deserves to be allowed
and the action of the respondent authority in
seizing the vehicles, i.e. Tractor and Trolly
bearing Registration No.GJ-06-MD-1207, deserves
to be quashed and set aside and is accordingly,
quashed and set aside. The respondent authority,
is forthwith directed to release the vehicles.

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Page 5 of 6

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C/SCA/7570/2022 ORDER DATED: 12/07/2022

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12. With the aforesaid direction, the matter is
allowed in part. Rule made absolute to the
aforesaid extent.

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Sd/- (A. S. SUPEHIA, J)

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NVMEWADA

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Govindbhai Bhavanbhai Bharwad v. State of Gujarat

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Govindbhai Bhavanbhai Bharwad v. State of Gujarat

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