A Rule 12(2)(b)(ii) complaint filed before a Magistrate is non-est, requiring release of the seized vehicle.

The petitioner claimed ownership of a Tata Hitachi Hyd Excavator Machine, Serial No. SP21-45170, Model EX 210, which was seized by the respondent authorities on 19 June 2026 in proceedings under the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 (“Rules”).

The petitioner contended that the authorities had not taken the steps mandated by Rule 12(2)(b), including filing a complaint within the prescribed period, and sought release of the excavator.

During the proceedings, the State submitted that it had filed Criminal Case No. 1447 of 2026 before the Additional Chief Judicial Magistrate, Wagra, on 3 August 2026.

The petitioner argued that Rule 12(2)(b)(ii) required the complaint to be filed before the Court of Sessions, rendering the complaint before the Magistrate non-est.

The Court applied Rule 12(2)(a) of the Rules, which permits release of seized property upon furnishing a bank guarantee for the prescribed amount, without prejudice to further investigation.

Under Rule 12(2)(b)(ii), where compounding is impermissible or the offence is non-compoundable, the authorised officer must, upon expiry of forty-five days from seizure or completion of investigation, whichever is earlier, make a written complaint before the Court of Sessions; the Explanation further provides that offences under the Rules are to be tried by the Court of Sessions.

Rule 12(3) authorises the court to impose penalty and order confiscation, while Rule 12(7) governs custody of the seized property until release on bank guarantee, payment of the relevant amount, or a court order.

The Court relied on the principles stated in Special Civil Application No. 9213 of 2020, decided on 6 November 2020, that continued retention of seized property without following Rule 12(2)(b)(ii) is illegal and that, in the absence of a valid prosecution or compounding proceedings, the vehicle must be released without insisting on a bank guarantee.

The Court also referred to the decision cited as Nathubhai Jinabhai Gamara v. State of Gujarat.

The Court held that Rule 12(2)(b)(ii), read with its Explanation and the relevant notification dated 29 July 2023, required the respondent authority to approach the Sessions Court.

Although the State had filed a complaint, it had filed it before the Additional Chief Judicial Magistrate, Wagra, which was not the forum prescribed by the Rules. Consequently, the complaint was treated as non-est in the eye of law.

Applying the earlier decision, the Court concluded that the State could not retain control over the excavator or rely on the complaint to justify its continued seizure when the mandatory procedural requirement had not been complied with.

The Court confined its examination to the petitioner’s entitlement to release of the vehicle and did not adjudicate the merits of the alleged offence.

The respondent authorities were directed to release the Tata Hitachi Hyd Excavator Machine bearing Serial No. SP21-45170, Model EX 210, since the complaint had been filed before a court lacking jurisdiction under Rule 12(2)(b)(ii).

The State was granted liberty to take appropriate steps in accordance with law.

The Court clarified that the order was limited to release of the vehicle and that it had expressed no opinion on the merits of the underlying allegations.

Rule was made absolute to that extent, with no order as to costs.