TaxTMI 
TaxTMI 
2008 (3) TMI 786
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....ma facie satisfaction of this Court that the authority had acted willfully mala fide, he (DTO Purnea) was directed to be added as party by name and notices were issued to him to show cause why pecuniary damages be not ordered for recovery from him for mala fide exercise of authority and in the meantime, he was directed to release the truck to the petitioner without demand of any fine or otherwise. The latter part was because in his counter affidavit, he disclosed that on 17.08.2007 he had suo motu imposed a fine/penalty of Rs. 16,900/- on payment whereof the vehicle could be released. This order, the petitioner alleges, was not disclosed. Ultimately the vehicle was released on 19.12.2007 that is more than after eight months of detention. 2. One of the main questions that arise for determination in this writ application is as to the jurisdiction and authority of different classes of authorities of the State to effect seizure of motor vehicles and impose penalty and matters related thereto. 3. The petitioner is the registered owner of public carrier truck No. HR 55/1330. It had undertaken certain works with regard to laying of cables for telecom sector and, as such, while the t....
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....ay's detention. Petitioner being unable to get the release then filed a criminal complaint before the Chief Judicial Magistrate, Purnea in which on 16.06.2007, after noticing that repeated summons to respondent No. 2 (DTO ) remained unresponded, the learned Court took cognizance against respondent No. 2 for an offence under Section 379 of Indian Penal Code. Immediately thereafter on 18.06.2007, respondent No. 2 responded not by filing any application but sending a memo to the Chief Judicial Magistrate, inter alia, admitting that papers were seized alongwith the truck which required verification. This memo is Annexure-3 to the writ petition and makes an interesting if not disturbing reading. By this memo, he has not only questioned the authority of Chief Judicial Magistrate but virtually cast aspersion on his integrity and virtually issued interrogatories to the learned Chief Judicial Magistrate. These facts, alongwith other facts which were stated in the counter affidavit filed on or about 08.11.2007, persuaded this Court to order adding respondent No. 2, the DTO Purnea as a party-respondent in person and issue notice to him as to why damages be not awarded against him for such....
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.... for the reasons to be discussed later, does not stand to reason. By then, petitioner's truck had been detained for over four months and he was before this Court to seek its release and to say that no one had turned up till the filing of counter affidavit in November 2007 is incomprehensible and cannot be believed much less accepted. 9. It is stated in the counter affidavit that against the order taking cognizance as against respondent No. 2, respondent No. 2/respondent No. 3 filed a Criminal Revision before the learned Sessions Judge, Purnea which was transferred to Fast Track Court who by its order dated 30.10.2007 stayed the prosecution while admitting the Criminal Revision. It is also stated that the petitioner ought to have preferred a revision application against the order refusing release of the vehicle as passed by the Chief Judicial Magistrate but he had not done so. 10. Then pursuant to notice issued by this Court after making respondent No. 2 as party in person as respondent No. 3, show cause has been filed reiterating the above facts. A supplementary show cause was then filed by which on 30.01.2008 wherein for the first time, stand is taken that in terms of Se....
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....issued in public interest. This stand being noticed, this Court has observed that if authorities forward the case for prosecution immediately on compounding not being availed of, a person could immediately appear before the Criminal Court, plead guilty, pay the maximum fines and take the release of vehicle but this judicial redressal was being denied by detaining the vehicle indefinitely, causing irreparable loss to the transporters and thereby extracting undue advantage by the Enforcement Officers. 14. I may also notice here that in terms of Section 200 of the Motor Vehicles Act, State Government has fixed compounding fee for various offences under the Act. It is made equivalent to the maximum fine imposable by Court upon conviction. The legality of such high compounding fee, though questionable, need not be decided in this case. 15. It is in relation to these facts and circumstances, now that the vehicle has been released pursuant to orders of this Court, the action of the respondent as a DTO and as a person has to be judged as also as to what relief the petitioner can get? Petitioner, in the writ petition, has itself prayed for damages for illegal detention of his truck to....
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....ward. Section 2(14) defines goods carriage to mean motor vehicle constructed for solely carrying of goods. Section 2(14) defines transport vehicle and is quoted hereunder: (47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle; From the above definitions, it would be seen that there is apparently a general division of types of motor vehicle depending on its capability and its usage. For the purpose of this case, I may conveniently divide all the motor vehicles of different class into two general category. The first being transport vehicle as defined under the Act which would include public service vehicle, goods carriage, private service vehicle and educational institution's buses and the other, not being transport vehicle which would contain primarily motor cars/cabs which I would like to call private vehicles or small vehicles for private hire. This, I am doing, because as would subsequently be seen that there is slight distinction in various statutory obligations, requirements of the two categories. 18. Chapter II of the Act deals with licensing of drivers of motor vehicles. Sectio....
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....ith national permit. 22. Thus, from the provisions aforesaid, it would be seen that the documents, relevant for the Act, driving licence, licence of conductors of stage carrier, registration certificate of motor vehicle, certificate of fitness for transport vehicles, permit for transport vehicles and insurance paper. For transport vehicles, all those papers are required but for other vehicles only driving licence, certificate of registration and insurance is relevant. 23. Now we come to Chapter VIII which deals with control of traffic. Section 127 of the said Chapter authorizes a Police Officer, in the uniform, having jurisdiction to remove a motor vehicle which is left unattended or abandoned for more than ten hours. Section 130 deals with duty to produce licence and certificate of registration etc to which I will in detail advert to alongwith Section 158 of Chapter XI dealing with insurance which is in similar terms. Alongwith these two Sections, reference could also be made to Section 137(b) being the powers of the Central Government to make rules and Section 138, power of State Government to make rules in respect of matters other than those mentioned in Section 137. 24....
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.... days from the date of demand, submit photo copies of the same, duly attested in person or send the same by registered post to the officer who demanded it. Explanation.- For the purposes of this sub-section, "certificate" of insurance" means the certificate issued under Sub-section (3) of Section 147.] (4) If the licence referred o in Sub-section (2), or the certificates or permit referred to in Sub-section (3), as the case may be, are not at the time in the possession of the person to whom demand is made, it shall be a sufficient compliance with this section if such person produces the licence or certificates or permit within such period in such manner as the Central Government may prescribe, to the police officer or authority making the demand: Provided that, [except to such extent and with such modifications as may be described], the provisions of this sub-section shall not apply to any person required to produce the certificate of registration or the certificate of fitness of a transport vehicle. 25. Section 158 is reproduced hereinbelow: 158. Production of certain certificates, licence and permit in certain cases.- (1) Any person driving a motor v....
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....production of papers can be demanded is to be found in Sub-section (2) of Section 158 which relates to accident. That apart, it would be seen by reading Sub-section (3) of Section 158 that even though prima facie Sub-section (1) thereof makes it obligatory to produce the paper on demand immediately the same is relaxed in terms of Sub-section (3) of Section 158 to producing it within seven days. But there is a proviso to Sub-section (3). This proviso is in terms similar to the proviso of Sub-section (4) of Section 130. These two provisos exclude the relaxation from immediate production of the documents and in relation to transport vehicles. But a closer reading of the two provisos would show that even that relaxation of exemption has been made "subject to such extent and with such modifications as may be prescribed." 28. Why I am laying emphasis on the two provisos to the concerned sub-sections mentioned above is that in exercise of the rule making power as conferred on the Central Government, Central Government has framed Rules and Rule 139 of the Central Motor Vehicles Rules 1989 reads as follows: Rule 139. Production of licence and certificate of registration.- The dr....
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....pto three months with fine that may extend to Rs. 1,000/-. 30. Now we come to Section 200 which deals with composition of certain offences. The compensation is authorized either before or after prosecution is instituted by such officer or authorities and for such amount as the State Government may direct by notification. Sub-section (2) thereof provides that if the offender is in custody when the offence is compounded, he shall be discharged and no further proceedings shall be taken against him in respect of such offence. It is this provision of Section 200 under which the State Government has authorized, inter alia, DTOs to compound offences and compounding fee has been fixed at the maximum monetary punishment that can be awarded. Now we come to the three provisions which are of importance. Section 202 makes provisions for arrest by a Police Officer in uniform without warrant. Arrest is in relation to offences of driving dangerously (Section 184), driving in an inebriated state and taking vehicle without authority (Section 197). The Police Officer is also authorized to make such an arrest if a person refuses to give his name and address and consequent to arrest of the driver, h....
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....t a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by Sub-section (1) of Section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof. 32. From the provisions of Sections 206 and 207, it would be seen that these are provisions authorizing direct intrusion into rights of a party, but, for a very important safeguard built therein, it would have given totally unguided and untrammeled power on the authorities to seize documents or any vehicle, may it be private vehicle, or transport vehicle, at any time and at any place irrespective of the consequences. The vehicle could be seized at dead of the night leaving the owner, passenger, may be his family members on the highway at night. It may lead to disruption of movement for an important engagement or disrupt delivery of goods on schedule. The important safeguards are two folds which will be discussed in greater detail later in the judgment. First that before he could invoke the powers under either of the two Sections, legislature have consciously provided that it must be pro....
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....tal rights of citizens and could have very serious repercussions. A person could be subjected to humiliation and harassment only for not having original certificates of registration on the motor vehicle, the original certificate of registration and the like documents being kept in safe custody. If a motor vehicle was to carry all original documents and it is stolen, it goes with all original documents. The consequences whereof can very well be imagined for the owner. The inconveniences caused can very well be imagined and it is, therefore, provided by the Rules that the same can be produced within fifteen days. Thus, the provision is explicit that none of those documents as mentioned in Rule 139 are to be mandatorily carried along with the vehicle and that cannot be a cause ever to detain the vehicle. 34. Ordinarily, it could be argued that Rule 139 of the Central Rules is in conflict with the substantive provisions of Sections 130 and 158 or for that matter, Section 159 as by Rules the duty cast under the Act to produce the documents when demanded is being taken away. In other words, by Rules, the substantive provisions of the Act are being amended and/or taken away which norma....
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.... and not by the will of the delegate that the overriding effect is given to the delegated legislation. similarly, when a statutory provision is in the form 'except as may be otherwise prescribed by rules' or when it 'subject to the rules', the rules are made to prevail over the statutory provision. In the same Chapter at page 850, it is noted as under: The delegate cannot override the Act either by exceeding the authority or by making provisions inconsistent with the Act. But when the enabling Act itself permits its modification by rules, the rules made prevail over the provision in the Act. 35. The said principles have been culled out of various decisions as mentioned therein and in my view is the correct enunciation. The attention of the learned Judges of the Karnataka High Court, for whom I have highest regards, was not drawn to this material change in phraseology used in the proviso and the principle of interpretation as noted above. In my view, Rule 139 thus has to be given a full play and cannot be read down or be made subject to the provisions of either Section 130 or Section 158 in its substantive form. 36. That being so, my answer to the f....
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....ld Act (now Section 130 which is in pari materia). While setting aside the conviction of the person, noticing the harassment and humiliations caused, it was clearly held that physical possession at the time when documents were demanded was not the legal requirement. Stern warning and caution was issued by the Court which appears to be totally forgotten by all concerned in the present. Thus, seen the consequence of non-carrying the documents is nothing more than making it obligatory on a person to disclose his true identity and give undertaking to produce the documents in the manner and in the time prescribed. This is true for both private motor vehicle and transport vehicle. A word of caution here is necessary. It can be argued that if a motor vehicle is believed to be applied in contravention of the provisions of the Act or the person from whom documents are demanded is not able to satisfy the authorities as to his identity what is to be done. The answer lies in Section 202(2) of the Act where a Police Officer in uniform is authorized to arrest without warrant any person who has committed an offence under the Act if such person refuses to give his name and address and in that cont....
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.... jurisdiction to take an action to impound the documents or detain the vehicle is "reason to believe" but what is meant by reason to believe is to be considered. In the case of State of Maharashtra and Ors. v. Nanded Parbhani ZLBMV Operator Sangh [2000]1SCR357 , while dealing with the power to detain vehicles in terms of Sub-section (1) of Section 207 of the Act, their Lordships held thus: The power, therefore, is required to be exercised with care and caution and the power has to be exercised only when the pre-condition for exercise of power is fully satisfied. Their Lordships further held thus: Bearing in mind, the aforesaid principle of construction of statute and on examining the provisions of Section 207 of the Act, which has been quoted earlier, we have no doubt in our mind that the Police Officer would be authorized to detain a vehicle, if he has reason to believe that the vehicle has been or is being used in contravention of.... 42. It may be pointed out that the said decision arose from the judgment of Division Bench of the Bombay High Court wherein the Bombay High Court held the detention and seizure of the bus to be unauthorized and illegal and on....
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....me it must be remembered that it is not any and every material, howsoever vague and indefinite or distant, remote and far-fetched, which would warrant the confirmation of the belief.... The reason for the formation of the belief must be held in good faith and should not be a mere pretence.... The words of the Statute are "reason to believe" and not "reason to suspect".... It is, therefore, essential that before such action is taken the requirements of law should be satisfied. It is a sound rule of interpretation that where a legal expression has received repeated consistent judicial interpretation then if the legislature in a latter legislation uses the same expression, the expression must be understood in the meaning as judicially earlier interpreted. 44. This expression was dealt with by Division Bench of this Court in the case of Bawa Gopal Das Bedi & Sons and Ors. v. Union of India and Ors. since reported in AIR1982Pat152 in relation to Section 66 of the Gold (Control) Act 1968 wherein the argument of Union of India was rejected in no uncertain terms wherein department submitted that whether there was reasonable belief or not could be determined only after enquiry. Their ....
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....le belief of the official must not be a mere suspicion as that would be far away from belief which could be said to be reasonable. Such reasonable belief is a condition precedent for the exercise of power under Section 110 of the Customs Act and if that is absent, the seizure cannot be said to be in accordance with law. While arriving at the said conclusion, their Lordships have referred to various cases of the Apex Court including the judgments in relation to income taxes as referred to above. 45. Mr. Giri, learned Senior Counsel appearing for respondent No. 3, the seizing officer in person, has relied on the judgment of the Apex Court in the case of Joti Parshad v. State of Haryana since reported in 1993 Supplement (2) Supreme Court Cases 497. That was a case where a person was convicted for an offence of illegal act of counterfeit Government stamps and in pursuance to that conspiracy, counterfeited Government stamps. While discussing the provisions of law, their Lordships referred to Section 258 of the Indian Penal Code which also uses the expression "reason to believe" and Section 259 of Indian Penal Code which uses the expression "which he knows to be a counterfeit". In thi....
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....Act is, as noted above, an Act to consolidate and amend law in relation to motor vehicles. It is, thus, a comprehensive law on the subject. It creates statutory liabilities and duties and provides for enforcement thereof. It provides for dealing with all contingencies and confers jurisdiction of officers in this regard. Therefore, the jurisdiction conferred on the officers have to be judged on the touchstone of the statutory provisions of the Act and not some wishful thinking of the authorities. The jurisdiction has to be exercised within the four corners of the law. There cannot be a roving or sweeping enquiry to ascertain whether law is being violated or not for the simple reason that if such power is permitted to be conferred then no citizen would be free. Liberty would be at peril. If that were the position then an Enforcement Officer without any "reason to believe" could stop vehicle anywhere and start checking. Regrettably, the legislature did not intend to confer such a jurisdiction and the Court cannot speak otherwise once the legislature has spoken. Legislature, as pointed out above, has made "reason to believe" a condition precedent to exercise of powers both under Sectio....
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.... makes an entry. Their Lordships held that a fishing or roving enquiry is not possible to cull out material for formulating a reason to believe subsequently. In words of their Lordships: Thus, under this Order, unless such a reasonable belief exists as to the likelihood of any contravention being committed or has been committed, there is no power in the officer to make such an entry. Subsequent acquisition of any information was not material to justify the seizure or search or even entry. 49. Thus, found in the facts of the present case, the respondent had no jurisdiction to detain the vehicle or even impounding any document much less for the period in question causing irreparable loss to the petitioner. He lacked the jurisdiction to do what he did and to compound it, he ultimately gave excuse of suspicion of permit not being issued by proper authority of the State of Haryana and detaining the vehicle for over four months while making such an enquiry which are all absolutely unauthorized in fact or in law. The law has been well settled as noted above and there was clearly infraction if not deliberate infraction thereof by the respondent violating petitioner's rig....
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....one in the Act which defines those offences. Here, as noted above, all the sections under which respondent has imposed penalty are penal Sections and the penalty is to be imposed on conviction for an offence committed, which as stated above, could only be by a Criminal Court. 53. If any authority is needed for this, it is to be found in two Division Bench judgments of this Court since reported in the cases of Veena Theatre Private Limited and Anr. v. The State of Bihar and Anr. 1988 PLJR 1 (HC) and Regent Cinema, Patna v. The State of Bihar and Ors. 1993 (2) PLJR 279. 54. To me, it appears that in total disregard to the said provisions, respondent No. 2 in a hurry to find some justification for holding back the vehicle for such a long time which, as stated above, was seized on 04.04.2007, imposed a fine/penalty on 17.08.2007 four months later once the writ application had already been filed. It is later on that by way of supplementary show cause that he has sought to justify the same and that too without reason, as being a fine in terms of compounding under Section 200. Section 200 of the Act provides that a person may compound offences either before or after institution of p....
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....han Criminal Court to impose fine for an offence under the Act and power to compound arises only when an application is made by the alleged offender and not otherwise and, therefore, the power was malafide exercised by respondent No. 2 who detained the vehicle intentionally depriving the petitioner for getting his statutory remedies before the Criminal Court and is in defiance of the circular as referred to above. This concludes the fourth issue. 56. Thus, this Court has clearly found that on all counts, respondent No. 2, being respondent No. 3 in person, has flagrantly violated the law and the rights of the petitioner. He detained the vehicle even though he had no prior reason to believe of any contravention being committed. Then only on a vague suspicion or surmises he continue to detain the vehicle for months together to satisfy his own whims and then wrongly sought to justify the same by imposing a fine for which he had no jurisdiction. Then again tried to justify the same as compounding fee for which action he had no jurisdiction as no such application was made and then having imposed fine, payment thereof was made a condition precedent for release of the vehicle. Then, at ....