JAYVIRSINH MAHENDRASINH RAJ vs THE STATE OF GUJARAT

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11890 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

==========================================================
Approved for Reporting Yes No
✓
==========================================================
JAYVIRSINH MAHENDRASINH RAJ
Versus
THE STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1,2,3,4
==========================================================
CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 31/08/2026

JUDGMENT
1. Rule. Learned Assistant Government Pleader
Mr.Nikunj Kanara waives service of notice of Rule for the
respondents.
2. By way of present petition under Article 226 of the
Constitution of India, the petitioner herein prays for the
following reliefs:
“(a). This Hon’ble Court may be pleased to admit and
allow this petition;
Page 1 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
(b) This Hon'ble Court may be pleased to issue
appropriate writ, order or direction for quashing and
setting aside the notice (at ANNEXURE-B) and action
of seizing the vehicle being Dumper/Truck of Tata
Motors Ltd. Having Registration No.GJ 16 AU 9918 by
the respondent authorities and release the vehicle
being Dumper/Truck of Tata Motors Ltd. Having
Registration No.GJ 16 AU 9918, of the ownership of
the petitioner which is seized by the respondents and
at present the case is pending with the respondent, on
such terms and conditions as this Hon'ble Court may
deem think fit.
(c) This Hon'ble Court may be pleased to issue
appropriate writ, order or direction for releasing the
vehicle being Dumper/Truck of Tata Motors Ltd.
Having Registration No.GJ 16 AU 9918, of the
ownership of the petitioner which is seized by the
respondents and at present the case is pending with
the respondent, on such terms and conditions as this
Hon’ble Court may deem fit.
(d). Pending admission and final disposal of this
petition, your lordships may be pleased to release the
vehicle being Dumper/Truck of Tata Motors Ltd.
Having Registration No.GJ 16 AU 9918, appropriate
terms and conditions that may be deemed fit and
proper to this Hon’ble Court.”
3. Heard learned advocate for the petitioner and
Learned Assistant Government Pleader for the respondents.
4. It is the case of the petitioner that the petitioner is
the owner of the seized vehicle and the vehicle in question
Page 2 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
was seized by respondent No.2 on 19.06.2026. Notice
pertaining to the same was issued which duly produced at
Annexure B.
5. Learned advocate for the petitioner submitted that
as is clear from the seizure memo, the same was issued on
19.06.2026; however, no steps worth the name have been
initiated by the respondent, much less filing the F.I.R. as
provided under sub-clause (ii) of sub-clause (b) of sub-Rule (2)
of Rule 12 of the Gujarat Mineral (Prevention of Illegal
Mining, Transportation and Storage) Rules, 2017 (hereinafter
referred to as the “Rules of 2017”). It is submitted that in
absence of any F.I.R. registered beyond the specified period,
the action of the respondent authority seizing the vehicle, is
illegal and against the principles laid down by this Court in
the case of Nathubhai Jinabhai Gamara v. State of Gujarat,
rendered in Special Civil Application No.9203 of 2020. It is
submitted that, this Court has categorically held and observed
that if the complaint is not registered as envisaged under sub-
clause (ii) of sub-clause (b) of sub-Rule (2) of Rule 12 of the
Rules of 2017, in absence of the complaint, the competent
authority will have no option but to release the seized vehicle
without insisting for any bank guarantee. Therefore, the
principles laid down by this Court in the case of Nathubhai
Page 3 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
Jinabhai Gamara v. State of Gujarat (supra) applies to the facts
of the present case. It is therefore urged that the petition
deserves to be allowed directing the respondent authorities to
release the vehicle. It is urged that the petition be entertained
only for the limited purpose of release of the vehicle.
6. Per contra, learned AGP for the respondent
authority submitted that the respondent authority has filed
complaint in the Court of learned Additional Chief Judicial
Magistrate, Wagra on 03.08.2026 being Criminal Case No.1447
of 2026.
7. Learned advocate for the petitioner submitted that
the said complaint dated 03.08.2026 filed by the respondent
authority is lodged in the Court of learned Additional Chief
Judicial Magistrate, Wagra, which is against the provision of
Rule 12(2) of the Gujarat Minerals (Prevention of Illegal Mining
Transportation and Storage) Rules 2017. (Amended Rules,
2019).
8. Placing reliance on Rule 12(2) of the Rules 2017, it
was submitted that the complaint would be maintainable
before the Court of Sessions. It was submitted that the
aforesaid complaint filed by the respondent authority in the
Court of learned Additional Chief Judicial Magistrate, Wagra is
Page 4 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
non-est in eye of law.
9. Heard learned advocates appearing for the
respective parties.
10. Rule 12 of the Rules, 2017 read thus:
“12. Seizure of property liable to confiscation.-
(1) Whenever any person raises, transports or causes to
be raised or transported, without any lawful authority,
any mineral from any land, and for that purpose, uses
any tool, equipment, vehicle or any other thing, such
mineral, tool, equipment, vehicle or other thing
(hereinafter referred to as "property") shall be liable to
be seized by the Government in the manner specified
in sub-rule (2) of this rule.
(2) [Every Authorised Officer seizing any property
under these rules shall photograph the property and
place on such property a mark in such manner as may
be determined, indicating that the same has been so
seized and shall:
(a) issue a notice in Form J informing the person from
whom the property is seized of the property so seized,
and release the property so seized upon receipt of a
bank guarantee for an amount equal to -
(i) the penalty payable under rule 21, in case of
transportation of, or causing to transport, mineral
without lawful authority; or
Page 5 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
(ii) the written down value of the property, in case of
illegal mining or illegal storage of mineral:
Provided that, release under clause (a) of sub-
rule (2) shall be without prejudice to and shall not in
any manner affect the conduct of investigations and
other actions contemplated under clause (b) of sub-rule
(2).
Explanation: Under these rules property is seized as a
security against the amount of penalty due to the
Government and to ensure the presence of the alleged
offender before the Government if the case is at notice
stage.]
(b)[conduct,
(i) an investigation and if he is satisfied that a
compoundable offence has been committed in respect
of the property, he may, subject to receipt of a
compounding application, order payment of such
amount for compounding the offence as may be
deemed appropriate, which amount, if not paid within
thirty days, may be recovered by invocation of the
bank guarantee furnished under clause (a) of sub-rule
(2); or
(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.
Page 6 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
Explanation: Any offence under these rules shall be
tried by the Court of Sessions in accordance with the
Procedure laid down under the Code of Criminal
Procedure, 1973;]
(3) [Where the court is satisfied that an offence has
been committed and is punishable under these rules,
the court may order for,-
(a) penalty in accordance with rule 21,
(b) confiscation of the property under sub-section (4A)
of section 21 of the Act, where the property seized
under sub-rule (1) above is produced before a court
under sub-clause (ii) of clause (b) of sub-rule (2).]
(4) No order for confiscating any property shall be
made under sub-rule (3) unless the person from whom
the property seized is given:
(a) an opportunity of making a representation in
writing within such reasonable time as may be
specified in the notice against the grounds for
confiscation; and;
(b) a reasonable opportunity of being heard in the
matter.
(5) [*]
(6) [The bank guarantee issued under clause (a) of sub-
rule (2) shall be valid for an initial period of one year
and shall be renewed from time to time until payment
for compounding the offence under sub-clause (i) of
clause (b) of sub- rule (2) or until payment of the
Page 7 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
penalty determined under sub-rule (3), as applicable, is
made:
Provided that, if upon a determination under
sub-rule (3), a penalty for an amount exceeding the
amount of the bank guarantee is levied and the
penalty amount is not paid, then the excess penalty
amount may be recovered in the same manner as if it
were an arrear of land revenue.]
(7) [The property seized under this rule shall be kept
in the custody of the Authorised Officer, any other
third party, nearest police station or Government
premises until:
(a) a bank guarantee is provided pursuant to clause (a)
of sub-rule (2)
(b) payment of the amount as determined under sub-
clause (i) of clause (b) of sub-rule (2) for compounding
the offence is made or,
(c) payment of penalty as determined under sub-rule
(3) is made: or
(d) an order of the Court directing its disposal is
received by the Authorized Officer.”
11. Considered the aforesaid submissions advanced by
the learned advocates for the respective parties. The aforesaid
issue was considered in Special Civil Application No.9213 of
th
2020, wherein, by order dated 06 November, 2020, while
considering identical facts, it was held that the complaint is to
Page 8 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
be filed before the Court of Sessions under Rule 12(2) of the
Rules, which provide that for an offence under the said Rules,
the same be tried by Court of Sessions in accordance with the
procedure laid down under the Criminal Procedure Code,
Considering Rule-12 of the Rules, 2017 and the Notification
th
dated 29 July, 2023 duly produced by the petitioner, the
competent forum is Sessions Court, wherein, the complaint is
to be filed. Learned Assistant Government Pleader appearing
for the respondent – State was not in a position to controvert
the aforesaid position of law and the Notification, as referred
above.
12. At this stage, it is apposite to refer to the ratio as
laid down in Special Civil Application No.9213 of 2020 dated
th
06 November, 2020 wherein in an identical facts, the said
issue was under consideration, wherein the paras-9 to 12 of
the said order read thus:
“9. Now the Court would like to deal with as to when
bank guarantee is required to be furnished. On reading
of Rule 12 of the said Rules as it is, the bank
guarantee is required to be furnished at the time (i)
for the release of the seized property (ii) for recovery
of unpaid penalty or (iii) for compounding of offence
and recovery of compounded amount, if it remains
unpaid on expiry of specified period of 30 days. In
fact, the offence can be compounded at two stages
Page 9 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
being (i) at a notice stage within 45 days of the
seizure of the vehicle and (ii) during the prosecution
but before order of confiscation. So State can insist
upon furnishing bank guarantee for compounding the
offence during prosecution, but provided prosecution is
lodged and application for compounding of offence is
moved by the petitioner. In the case on hand, neither
there is prosecution nor there is any application for
compounding of offence moved by the petitioner,
therefore, question of bank guarantee does not arise.
Looking to the scheme of Rule 12 of the said Rules,
the competent authority is authorized to seize the
property, investigate into the offence and compound it,
whereas, penalty can be imposed and confiscation of
the property can be done only by order of the Court.
So it is clear that imposition of penalty and other
punishment falls in the domain of the Court and not
competent authority. Thus, custody of the property on
production with the Sessions Court for the purpose of
confiscation of the property shall be dealt with as
indicated in sub-rule 7 of Rule 12 of the said Rules.
So it means where offence is not compounded or not
compoundable, it would be obligatory for the
investigator to approach the Sessions Court with a
written complaint and produce the seized property
with the Court on expiry of the specified period i.e. 45
days. In absence of this exercise, the purpose of
seizure and / or bank guarantee would stand
frustrated. Consequently, the property will have to be
released in favour of the person from whom it was
seized without insisting for the bank guarantee. So,
submission made at bar and stand of the State to
contend that furnishing of the bank guarantee is
mandatory upon the seizure of the property is
untenable and unacceptable.
Page 10 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
10. In sum and substance, when there is no any
compounding application moved by the petitioner as
contemplated in Rule 12(2)(a) of the said Rules, no
any investigation is conducted and finalized by filing
complaint before the Sessions Court or produce the
vehicle before the Sessions Court within specified
period, the State authority has no right to have
dominance over the seized property and insist for bank
guarantee and thus avoid to follow procedure as
contemplated in Rule 12(2) (b)(i) and (ii) read with
sub-rule 7 of Rule 12 of the said Rules. In nutshell,
inaction on the part of the respondent after effecting
seizure on 21.02.2020 till date, by turning blind eye
on Rule 12(2)(b)(i)(ii) and (7) of the said Rules, is
nothing but illegal and unauthorized stand on the part
of the State to continue dominance over the seized
property without recourse of further action
contemplated under Rule – 12(2)(b) read with Rule 7
of the said Rules.
11. Lastly, learned AGP would raise contention that
order dated 05.09.2020 is appealable before the
competent authority under Rule 18 of the said Rules
and therefore, present petition may not be entertained
in view of alternative efficacious remedy available to
the petitioner. In the case of hand, the issue goes to
the root of inaction on the part of respondent
authority as aforesaid and therefore, in Court’s
opinion, the petitioner is not required to be relegated
to such recourse, more particularity when action of
respondent nos.2 and 3 to continue dominance over
seized vehicle on account of non compliance of Rule
12(2)(b)(ii) of the said Rules is involved in the present
petition and therefore, the Court is not inclined to
Page 11 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
accept such contention and direct the petitioner to
relegate to take recourse under Rule 18 of the said
Rules.
12. In view of above position, the petition is required
to be allowed and accordingly action of respondent
nos.2 and 3 for dominance over seized vehicle having
become unauthorized and illegal on account of non
compliance of Rule 12(2)(b)(ii) of the said Rules, relief
in terms of para – 7(B) is granted. 13. While parting
with this order, respondent no.1 – State is directed to
issue suitable guidelines to the authorized officer
responsible to implement procedure under Mining
Rules of 2017 (as amended in 2019) in terms of this
order as to stage and eventuality at which bank
guarantee can be insisted and compliance of Rule 12(2)
(b) in case no application for compounding or release
of vehicle / property is moved by the person
concerned. Accordingly, present petition is allowed.
Rule is made absolute to the aforesaid extent. Direct
service is permitted.”
13. Considering the facts of the present case, and the
ratio as laid down, in Special Civil Application No.9213 of
th
2020 dated 06 November, 2020 as referred above, as also
Scheme of Rule 12(2)(b)(ii), as referred above, respondent
authority was required to approach the learned Sessions Court
under the provisions of Rule 12(2)(b)(ii) of the Rules, 2017. In
absence of the aforesaid exercise undertaken by the competent
authority, the complaint in question came to be filed in the
Court of learned Additional Chief Judicial Magistrate, Wagra
Page 12 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026

C/SCA/11890/2026 (GJHC240607952026) JUDGMENT DATED: 31/08/2026
would be non-est in the eye of law. At the cost of repetition,
the complaint is maintainable before the Court of Sessions
under Rule 12(2)(b)(ii) of the Rules, 2017 (Amended Rule,
2019).
14. For the foregoing reasons, the respondent authority
is directed to release the vehicle of the petitioner being
Dumper/Truck of Tata Motors Ltd. having Registration No.GJ
16 AU 9918, the complaint in question having been filed
before the Forum, which has no jurisdiction to consider the
complaint. The present order is passed only to release the
vehicle in question, reserving the liberty in favour of the
respondent authorities to initiate the appropriate steps, in
accordance with law. It is clarified that this Court has not
examined the merits of the issue involved and the observations
made are only for the limited purpose of releasing the vehicle.
15. In view of the aforementioned discussion, the
petition succeeds and is accordingly allowed in part. Rule is
made absolute to the aforesaid extent. No order as to costs.
Direct service is permitted.
(NIRZAR S. DESAI,J)
BHAVIN MEHTA
Page 13 of 13
Uploaded by BHAVINKUMAR DEVENDRABHAI MEHTA(HCW0108) on Wed Sep 02 2026 Downloaded on : Wed Sep 02 19:40:01 IST 2026