The Gujarat High Court in the case Minalben Satishbhai Solanki v/s State Of Gujarat observed and has held that it is obligatory for the investigator to approach the Court of Sessions with a written complaint and properties seized upon expiry of the 45 days period specified under the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017.
The court observed that in the absence of such an exercise, the vehicle seized has by the Respondent authorities for allegedly carrying overloaded building limestone with an expired delivery challan. An affidavit was made by the petitioner on the oath that the reason for expiry of the challan was due to mechanical error and the breakdown of the vehicle. Thus, the vehicle was not involved into the illegal transportation of limestone and he had a valid royalty pass pertaining to the same.
The court observed that the petitioner primarily averred that the vehicle was detained from May 2022 and almost two months had passed. However, as per Rule 2(2)(b)(ii) of the 2017 Rules, if the application for compounding of offence was not received, the vehicle should be produced before the Court which had power to determine within 45 days of seizure commission of such offence. Thus, the respondent was to be alleged to be illegal and against the Rules. Reliance was placed on the case Nathubhai Jinabhai Gamara vs. State of Gujarat to bolster such contention. It was contended by the AGP that no criminal prosecution had been initiated and no FIR was filed.
It was concluded by the High Court, perusing these contentions that Undisputedly, the complaint, as envisaged under sub-clause (ii) of clause (b) of sub-rule (2) of Rule 12 of the Mining Rules, has not been filed yet and however in the absence of any complaint, the action of continuation of the detention of the vehicle by the respondent authority, is illegal and against the provisions stated under Mining Rules.
Further, the Single Judge Bench reiterated the decision in the Nathubhai judgement wherein it was held that at two stages the offence cannot be compounded (1) within 45 days of the seizure of the vehicle, at a notice stage (2) Needless to say that for compounding the offence during the prosecution, during the prosecution but before the order of confiscation. Thus, the 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 and nor would the
