The absence of an FIR within the specified period, as per the Rules of 2017 and established precedent, renders a seizure illegal and warrants the release of the seized property.

ORDER :

1. Rule. Mr. Jay Trivedi, the learned AGP waives service of notice of rule for the respondents.

2. This writ-application is filed under Article 226 of the Constitution of India by the writ-applicant seeking for the following reliefs which are produced thus :-

“(A) This Hon'ble Court may be pleased to admit and allow this petition;

(B) This Hon'ble Court may be pleased to issue appropriate writ, order or direction for releasing the truck bearing GJ-16-X-6596 and a boat 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) Pending admission and final disposal of this petition, your lordships may be pleased to release the truck bearing GJ-16-X-6596 and a boat on appropriate terms and conditions that may be deem fit and proper to this Hon’ble court.

(D) Grant such other and further relief as thought fit in the interest of justice.”

3. Heard Mr. Jay N. Shah, the learned advocate appearing for the writ-applicant and Ms. Dharitri Pancholi, the learned AGP appearing for the respondents.

4. Mr. Jay N. Shah, the learned advocate appearing for the writ-applicant submitted that the writ-applicant is owner of the vehicle bearing Truck No GJ-16-X-6596 and a boat. It is submitted that the vehicle in question was seized and Notice pertaining to the same came to be issued on 13.12.2022 imposing penalty of Rs.2,11,268/-.

4.1 It is submitted that in absence of any F.I.R. registered beyond the specified period, the action of the respondent authority seizing the machines, 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 machines without insisting for any bank guarantee. Therefore, the principles laid down by this Court in the case of Nathubhai 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 machines.

4.2 In view of the ratio as laid down by the Coordinate Bench of this Court in the Special Civil Application No.9203 and Letters Patent Appeal No.717 of 2020 wherein this Court took the view that either FIR or written complaint as contemplated under Rule 12 is required to be filed within a period of 45 days from the date of seizure and in absence of the same the machines be released unconditionally.

4.3 The writ-applicant has stated that the notice was issued by this Court making it returnable on 10.02.2023. After issuance of notice by this Court a criminal complaint for confiscation proceeding came to be initiated by the respondent authority and FIR came to be registered after 45 days as stated by the learned advocates appearing for both the parties.

4.4 It is urged that the petition be entertained only for the limited purpose of release of the truck. So far as the adjudication of the show cause notices is concerned, the petitioner be permitted to pursue the said show cause notice as per the provisions of the Act.

5. On the other hand, the learned Assistant Government Pleader has fairly conceded on instructions that after the issuance of the seizure memo, no orders have been passed considering the pendency of the writ petition. It is also conceded on instructions that no First Information Report has been registered as provided under the provisions of Rules of 2017. However, the FIR has been registered after 45 days as stated by the learned advocates appearing for both the parties.

6. Heard the learned advocates appearing for the