Illegal Mining | Seized Vehicle Must Be Released Without Bank Guarantee If FIR Not Registered Within Time Stipulated Under 2017 Rules: Gujarat HC

The Gujarat High Court has recently explained in the context of the Gujarat Mineral Rules, 2017 that if the complaint is not registered as envisaged under Rule 12(ii) of the Rules of 2017, the competent authority will have to release the seized vehicle without insisting for any bank guarantee.

The Bench comprising Justice Vaibhavi Nanavati was hearing a writ petition under Article 226 of the Constitution, seeking the quashment of the impugned order which seized the vehicle of the Petitioner.

The Petitioner, the owner of JCB (the vehicle) stated that Respondents 2 and 3 had seized the vehicle under Rule 12 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017. It was averred that the vehicle was excavating ordinary sand and the case was forwarded to the Geology Department. But Respondent No. 2 had imposed royalty worth INR 1,24,388, environment compensation worth INR 51,177 and costs of JCB machine worth INR 2,00,000 and dumper worth INR 1,00,250.

The Petitioner responded that the vehicle was permitted by the Deputy Executive Engineer Office to remove soil from the lake and was carrying out permitted work. Additionally, during seizure, the vehicle was not weighed, no panchnama was prepared and the statement of the driver was not recovered. This procedure was, therefore, illegal as per the principles laid down in Nathubhai Jinabhai Gamara v. State of Gujarat wherein filing of the FIR within 45 days was deemed mandatory.

The Bench agreed with the contention raised by the Petitioner as regards the law laid down in Nauthubhai wherein it was held:

"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."

The Bench while relying on the Nathubhai Jinabhai affirmed that bank guarantee can be 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.

The High Court emphasised that the offence can be compounded at two stages: 1) at a notice stage within 45 days of seizure of the vehicle, 2) during the Prosecution but before the order of confiscation.

However, in the instant case, the prosecution was not lodged and therefore, the question of compounding of offence could not be raised. The High Court also averred that the authorities had "turned a blind eye on Rule 12" in the absence of a complaint. Hence, the authority was obligated to release the seized vehicle without insisting for bank guarantee.

Accordingly, the Bench allowed the petition.

Case Title: Bhavinkumar Kantilal Gajera vs State Of Gujarat

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