Patna High Court
R.G. Holdings Private Limited vs The State Of Bihar And Anr. on 25 March, 2008
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
JUDGMENT Navaniti Prasad Singh, J.
1. Petitioner is the owner of a public carrier truck No. HR55/1330 and while it was carrying for the work undertaken by the Company, cable wiring, machines and other articles and equipments to Bahadurganj in district-Kishanganj being the worksite of the petitioner-Company, the truck was seized by District Transport Officer (DTO), Purnea, respondent No. 2 who is respondent No. 3, in person at Zero Mile, Gulab Bagh in the district of Purnea on 04.04.2007. The writ petition was filed on 25.07.2007 as by then the said respondent had merely held back the truck seized and was not releasing the same. Thus, the writ application was ostensibly filed for release from illegal seizure and compensation for long, illegal detention of the truck. In course of the proceedings on 08.11.2007, a counter affidavit was filed by respondent No. 2, the DTO Purnea and on prima 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 truck in question was carrying the petitioner's goods that is cable wiring, machines and other articles and equipments to the petitioner's worksite at Bahadurganj in Kishanganj district on 04.04.2007, it was intercepted by respondent No. 2 at Zero Mile, Gulab Bagh in the district of Purnea. A seizure list was prepared by respondent No. 2 being respondent No. 3 in person, purporting to be under Section 177 of the Motor Vehicles Act, 1988 allegedly for not carrying any paper. Seizure list is Annexure-1 to the writ petition and is Annexure-VIII to the counter affidavit and Annexure-A/G to the show cause of respondent No. 3.
4. Petitioner alleges that all papers were produced whereas respondent alleges that no papers were produced as is written on the seizure list. A reference to the seizure list, as appended by the respondent himself, shows that driving licence, certificate of fitness, registration book were produced and have been noticed in the seizure list itself but in the counter affidavit, it is stated that "original required documents" were not produced. They were later, after sometime, produced. What were the required documents is not stated nor is it stated in the counter affidavit as to how much later they were produced and how if they were not produced at the time of seizure how they were found mentioned in the seizure list itself. To this Court, it is apparent that documents were produced but in order to justify seizure or create a cause to seize, these statements were made in the counter affidavit which is contrary to the seizure list. Seizure list clearly refers to the original owner of the vehicle and its transfer to the petitioner which could only be on basis of certificate of registration. It shows the particular of driving licence, a certificate of fitness and respondents themselves have annexed permits issued by the Haryana Transport Authority.
5. The only ground for justifying the seizure and detention of the vehicle for such a long period as per specific averments in the counter affidavit is that on perusal of documents, respondent No. 2 had doubt about the genuineness of the permit issued by the Haryana Transport Authority and, as such, he took steps of sending letters to Haryana and ultimately a Special Messenger as well, unconcerned about the continued detention of the truck and consequential loss to the petitioner for everyday'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 blatant mala fide exercise of authority. Respondent No. 2 was added in name and person as respondent No. 3 and pursuant to notice issued, he has filed his show cause.
6. It appears that in view of the response as made by respondent No. 2 in the Court of Chief Judicial Magistrate, the learned Chief Judicial Magistrate by order dated 02.07.2007 rejected petitioner's application for release of vehicle which had already been under detention for over three months which apparently persuaded the petitioner to file this writ application which was filed on 25.07.2007. In the counter affidavit filed on 08.11.2007, it is first stated that respondent No. 3 was acting pursuant to joint order and direction of the Collector-cum-District Magistrate and Superintendent of Police, Purnea to conduct checking of all vehicles and it is pursuant to the said directions, the petitioner's vehicle was checked and seized. It is submitted by respondent that relevant papers were not produced though papers were later produced. What was the relevant paper and when exactly it was produced is not stated but as noticed above the seizure list shows otherwise.
7. The vehicle having been seized on 04.04.2007 in total disregard to the daily loss it was causing to the petitioner, it is for the first time on 10.04.2007, a letter is sent by respondent No. 2 to Haryana authorities and ultimately in July after three months of seizure, a Special Messenger is sent to verify the authenticity of documents/papers (permit) issued by the Haryana authorities to Haryana. The report of Special Messenger is dated 29.07.2007 on perusal whereof respondent No. 2 imposed a penalty/fine suo motu by his order dated 17.08.2007 of Rs. 16,900/- as under:
Section 177 Rs. 500/- Section 196 Rs. 1,000/- Section 192 Rs. 5,000/- Section 192A Rs. 10,400/- ____________ Total Rs. 16,900/-
He then ordered the release of vehicle only on payment of penalty. It is then stated that various efforts were taken to serve the order on the petitioner or his driver or his manager but it could not be done and no one turned up for the release of the vehicle. The vehicle was not released.
8. This, to my mind apart from being invalid in law 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 Section 200 of the Motor Vehicles Act, 1988 and notification of the State Government No. 5029 dated 09.12.2000, inter alia, DTOs were authorised to compound offences meaning thereby that he had the authority to compound offences and, as such, detained the vehicle till he passed compounding order and realized the compounding fee.
11. At this stage, all that I can say is even if power to compound is assumed, he could not have taken almost four months to exercise that power while detaining of the vehicle causing daily irreparable loss to petitioner. Then there cannot be a compounding without an application or a request by the owner of the vehicle or person in possession thereof and, admittedly, no such request was ever made by the petitioner or any one on his behalf. In my view, this is only a pretence of an excuse set up to justify the long undue seizure of a vehicle. Authorities have right and duty to compound provided any application is made in this regard.
12. In this supplementary show cause, it is then stated that pursuant to orders of this Court dated 27.11.2007, the vehicle was released on 19.12.2007 without realization of fine.
13. At this stage, I may also notice that though the respondent has endeavoured to refer the circular of the State Government dated 09.12.2000 authorising DTO to compound offences in terms of Section 200 of the Motor Vehicles Act, he has conveniently not referred to circular No. 2801 dated 28.06.2000 issued by the State Government which clearly directed that if a vehicle is seized by any authority and party does not appear and request for compounding then within twenty four hours, the case must be reported for prosecution and vehicle handed over to judicial custody so that the Criminal Court could deal with the matter. This aspect of the matter has been dealt in detail by this Court in CWJC No. 10370 of 2003 (Munna Lal Sharma v. State of Bihar and Ors.) which was disposed of on 11.01.2008. In that case, the petitioner had come to this Court for a direction for enforcement of the said circular. State, in its counter affidavit, had admitted that on complaints being received that Enforcement Officers were detaining vehicles and virtually blackmailing transporters, raids were conducted and from possession of Enforcement Officers, substantial unaccounted money were recovered and to get over such malpractices, the circular was 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 the extent of Rs. 7,00,000/- on the obvious ground that a public carrier truck is a commercial commodity and everyday's detention causes severe irreparable, irrecoverable financial loss.
In view of the facts stated above, primarily five questions arise for consideration:
(i) What are the obligations of the driver, owner of the vehicle or the person, incharge of the vehicle in relation to papers/documents to be carried alongwith the motor vehicle?
(ii) What are the consequences of non-production/carrying of those papers?
(iii) What is the jurisdiction of officers under the Act to seize the documents and motor vehicle
(iv) What is the jurisdiction of the authorities to compound and/or impose fine or penalty under the Act? and
(v) To what compensation, if any, is the petitioner entitled to and who would be liable to pay the same?
16. Before proceeding further, I may note the facts as ultimately found by this Court. Vehicle having been seized, driving licence, registration certificate, certificate of fitness, permit were produced. Only on ground of doubting the authenticity of the permit, as issued by the Haryana authorities and for its verification, vehicle was detained for over four months. Even though Haryana authorities did not dispute the permit, as granted by them, fine/penalty was imposed suo motu as a condition precedent for release of the vehicle and ultimately pursuant to orders of this Court, the vehicle was released after eight months of detention by respondents No. 2 and 3.
17. In respect to the first issue, it is necessary to refer to various provisions of the Motor Vehicles Act, 1988. This is an Act, as preamble reads, to consolidate and amend the laws relating to motor vehicles. Motor vehicle is defined by Section 2(28) of the Act. A reference to the said provision would show that any mechanically perpelled vehicle adapted for use on road would generally be a motor vehicle. Section 2(33) defines a private service vehicle. It means generally a motor vehicle carrying more than six persons used by the owner for his own purpose or his business. Section 2(26) defines a motor car to mean vehicles other than transport vehicle, omnibus, road roller, tractor, motorcycle or invalid car. Section 2(35) defines public service vehicle to mean motor vehicle adapted for carrying passengers for hire or reward. 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. Section 3 of the said chapter provides for necessity for a driving licence and makes it obligatory on a person to have a valid driving licence while driving a motor vehicle in any public place. A reference to the said Section would show that all it provides is that a person is required to have a driving licence but the Section does not provide that at the time of driving, he must have the same in his possession for that aspect is dealt later on in the Act. Section 13 of this Chapter, inter alia, provides that the driving licence once issued would be effective throughout India.
19. Chapter III deals with licensing of conductors of stage carriers. Conductor is defined by Section 2(5) to mean, inter alia, person engaged in collecting fares from passengers and regulating their entrance in the stage carriage and, thus, is in relation to transport vehicles (buses).
20. Chapter IV deals with registration of motor vehicles. Here again, Section 39 provides for necessity for registration of a motor vehicle but does not provide that whenever vehicle is driven, the registration paper has to be with the motor vehicle because that aspect of the matter is dealt later. It only provides that a non-registered motor vehicle shall not be plied. Section 40 provides for place of registration and Section 46 provides that registration once granted would be valid throughout India. Section 56, in relation to transport vehicle, additionally provides for a certificate of fitness. Thus, for vehicles, other than transport vehicle, certificate of fitness is not required. Chapter XI provides for insurance of motor vehicle against third party risk. Section 146 of Chapter XI makes it mandatory that before a vehicle can be used in public place, it shall have a policy of insurance complying with the provisions and requirements of this Chapter. Again, this does not prescribe that the said insurance document has to be carried at all times with the vehicle for this is dealt with separately.
21. Chapter V deals with control of transport vehicle. Section 66 provides for permit for plying transport vehicle which are to be granted or countersigned as the case may be by Regional Transport Authority or State Transport Authority who are defined in Section 68. Section 79 provides for goods carriage permit. Section 88(iv) provides for interstate agreement for grant of permits and Section 88(12) deals with 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. Section 132 of this Chapter (Chapter VIII) provides for duty of a driver to stop the vehicle in certain cases. In the specified cases therein, a Police Officer in uniform not below the rank of sub Inspector can cause the vehicle to stop and remain stationary but the period cannot exceed twenty four hours. It appears, it is noticing this provision, that the State Government issued the circular, as referred to above, wherein all authorities under the Act have been directed not to detain vehicles beyond twenty four hours otherwise than by reporting the matter to Criminal Court under the Act. Section 133 casts a duty on the owner, driver, conductor of a motor vehicle which is involved in an offence under the Act and on demand by a Police Officer authorized in this behalf by the State Government to disclose information regarding name and address and licence. Now we come to the provisions of Section 130 which can be read with Section 158 of the Act. Section 130 reads as under:
130. Duty to produce licence and certificate of registration.-(1) The driver of a motor vehicle in any public place shall, on demand by any police officer in uniform, produce his licence for examination:
Provided that the driver may, if his licence has been submitted to, or has been seized by, any officer or authority under this or any other Act, produce in lieu of the licence a receipt or other acknowledgment issued by such officer or authority in respect thereof and thereafter produce the licence within such period, in such manner as the Central Government may prescribe to the police officer making the demand.
(2) The conductor, if any, of a motor vehicle on any public place shall on demand by any officer of the Motor Vehicles Department authorized in this behalf, produce the licence for examination.] (3) The owner of a motor vehicle (other than a vehicle registered under Section 60), or in his absence the driver or other person in charge of the vehicle, shall, on demand by a registering authority or any other officer of the Motor Vehicles Department duly authorised in this behalf, produce the certificate of insurance of the vehicle and, where the vehicle is a transport vehicle, also the certificate of fitness referred to in Section 56 and the permit; and if any or all of the certificates or the permit are not in his possession, he shall, within fifteen 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 vehicle in any public place shall, on being so required by a police officer in uniform authorized in this behalf by the State Government, produce-
(a) the certificate of insurance;
(b) the certificate of registration;
(c) the driving licence; and
(d) in the case of a transport vehicle, also the certificate of fitness relating to the use of the vehicle.
(2) If, where owing to the presence of a motor vehicle in a public place an accident occurs involving death or bodily injury to another person, the driver of the vehicle does not at the time produce the certificates, driving licence and permit referred to in Sub-section (1) to a police officer, he shall produce the said certificates, licence and permit at the police station at which be makes the report required by Section 134.
(3) No person shall be liable to conviction under Sub-section (1) or Sub-section (2) by reason only of the failure to produce the certificate of insurance if, within seven days from the date on which its production was required under Sub-section (1), or as the case may be, from the date of occurrence of the accident, he produces the certificate at such police station as may have been specified by him o the police officer who required its production or, as the case may be, to the police officer at the site of the accident or to the officer-in-charge of the police station at which he reported the accident;
Provided that except to such extent and with such modifications as may be prescribed, the provisions of this sub-section shall not apply to the driver of a transport vehicle.
26. Section 137(b) reads thus:
137. Power of Central Government to make rules. - The Central Government may make rules to provide for all or any of the following matters, namely:
(a) ...
(b) the manner in which he licences and certificates may be produced to the police officer under Section 130.
Section 138(1) is as follows:
138.- Power of State Government to make rules.-(1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter other than the matters specified in Section 137.
27. Firstly, coming to Section 158, it may be noticed that the heading itself provides that the obligation is limited to certain cases/contingencies only. The contingency in which 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 driver or a conductor of a motor vehicle shall produce certificates of registration, insurance, fitness and permit, the driving licence and any other relevant documents on demand by any police officer in uniform or any other officer authorized by the State Government in this behalf, and if any or all of the documents are not in his possession, he shall produce in person an extract or extracts of the documents duly attested by any police officer or by any other officer or send it to the officer who demanded the documents by registered post within 15 days from the date of demand.
A simple reading of Rule 139 of the Central Rules would show that all the documents which were otherwise made necessary to be produced by person in charge of transport vehicle under the Act are now permitted to be produced, if not in immediate possession, within fifteen days from the date of demand. The implication of this Rule will be discussed in detail at an appropriate stage in this judgment. The Rule aforesaid completely relaxes the rigors of the Act in this regard.
29. Chapter XIII deals with offences, penalties and procedures in relation thereto. Section 177 is a general provision for punishment of offences and provides that if no penalty is provided for any offence punishable under the Act, the maximum fine that can be imposed for the offense is Rs. 100/- at the first instance and for subsequent, it may extend to Rs. 300/-. Section 181 provides for punishment for driving motor vehicle without licence and the punishment may extend to imprisonment of three months or fine which may extend to Rs. 500/- or both. Here, I may mention the punishment is not for no producing licence but for not having a licence. Section 192 is in similar terms in relation to using vehicles without registration wherein the punishment is upto one year imprisonment with a minimum fine of Rs. 5000/- but not exceeding Rs. 10,000/-. Here, again it is not for failure to produce certificate of registration that punishment is provided but it is for driving an unregistered vehicle. Section 192A is again with regard to using vehicle without permit when the fine for the offence is not less than Rs. 5,000/- but not exceeding Rs. 10,000/-. Again, it is punishable when there is no permit and not when permit is not carried. Similarly, Section 196 in relation to uninsured vehicle where the sentence is imprisonment upto 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, he could make proper arrangement for temporary custody of the vehicle.
31. The next two important provisions are Section 206 which deals with impounding of documents by a Police Officer or persons authorized by the State Government and Section 207 which, in similar terms, authorizes detention of vehicles. Relevant parts of Sections 206 and 207 are quoted hereunder:
206. Power of police officer to impound document.- (1) Any police officer or other person authorized in this behalf by the State Government may, if he has reason to believe that any identification mark carried on a motor vehicle or any licence, permit, certificate of registration, certificate of insurance or other document produced to him by the driver or person in charge of a motor vehicle is a false document within the meaning of Section 464 of the Indian Penal Code, 1860 (45 of 1860) seize the mark or document and call upon the driver or owner of the vehicle to account for his possession of or the presence in the vehicle of such mark or document.
(2) Any police officer or other person authorized in this behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it into the Court taking cognizance of the offence and the said Court shall on the first appearance of such driver before it, return the licence to him in exchange for the temporary acknowledgment given under Sub-section (3).
207. Power to detain vehicles used without certificate of registration permit, etc-(1) Any police officer or other person authorized in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3 or Section 4 or Section 39 or without the permit required by Sub-section (1) of Section 66 or in contravention or any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle:
Provided that where any such officer or person has reason to believe that 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 proceeded with "reason to believe", and secondly Section 207 proviso gives him an option that instead of seizing the vehicle, he could seize the certificate of registration of the vehicle. Thus, it is not incumbent or mandatory to seize all documents or merely for non-production thereof to seize the vehicle. These two provisions have to be read alongwith Rule 139 of the Central Motor Vehicle Rules, as referred to above.
Section 208 then provides for summary disposal of criminal cases in relation to the Act by Criminal Courts.
33. Now coming to the first issue as to what are the obligations in relation to the documents to be carried. A reference to Section 130 and in contingencies mentioned with reference to Section 158 of the Act, it would be seen that in respect of a transport vehicle, as the case may be, these documents are required. They are driving licence of the driver, licence of the conductor, if it is a bus, certificate of registration, certificate of fitness, permit and insurance certificate but with regard to all other vehicles including private vehicles, it is driving licence, registration certificate and insurance certificate. A reading of Section 130 would show that all these papers at different times before different authorities are required to be produced when demanded. Therefore, prima facie there is a duty to carry them while the motor vehicle is in movement but to this there is a relaxation in terms of Sections 130(3) & 130(4) subject to proviso and Rule 139 of the Central Motor Vehicle Rules 1989. Apart from relaxations being made in the respective Sections itself once the Rules have relaxed the rigors of the Section then Rule 139 cannot be ignored. If Rule 139 is read then it would show that it is a wrong notion carried by the authorities under the Act that it is mandatory for a driver or an owner or a person in possession of a motor vehicle to carry with him all the papers in original and failure to produce them would necessarily lead to detention of the vehicle. This wrong conception has led to innumerable cases and the power to detain vehicles are abused flagrantly. This, I am emphasizing, because it cannot be disputed that if a private vehicle is detained, it will cause great inconvenience to its occupants. Detention could be at any time or any place. It would be a serious inroad into various rights including invasion into fundamental 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 alongwith 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 normally is not permissible cause the authority conferred on the rule making body is generally to make rules for implementation of the Act and in consonance thereof and not in derogation to the Act. To that extent, Rule 139 of the Central Rules could be attacked as was done in the case of D.S. Ramachandra Reddy v. The Union of India and Ors. since reported in 1998 All India High Court Cases 4240 wherein a Division Bench of the Karnataka High Court held that Rule 139 has to be read within the framework of Section 130 of the Act and it was held that production on demand of the documents as referred to in Section 130 was the requirement and Rules had to be read down to that effect, else they would be ultra vires of the Act. With due respect to the learned Judges, their attention was not drawn to the proviso of Sub-section (4) of Section 130 which is in terms similar to the proviso to Sub-section (3) of Section 158. The proviso authorizes framing of Rules in a very peculiar manner. It provides that except to such extent and with such modifications as may be prescribed, the provisions of those sub-sections shall not apply to transport vehicles. The earlier sub-sections of Section 130 gave a partial relaxation. This expression that has been used in the proviso by the legislature, in my view, authorizes the delegatee to make Rules inconsistent with the provisions and on such rule being made, they are to override the provisions. The proviso in term makes the substantive relaxations inapplicable in case of transport vehicle but that very proviso authorizes the Government to frame Rules to such extent and with such modification as it may consider proper. This is an extraordinary power given to the delegate. This is an exception to the general rule of interpretation. In this connection, I may refer to Principles of Statutory Interpretation by Justice G.P. Singh, 09th Edition (2004). While dealing with delegated legislation and constituent limits of legislative delegation at page 828 it is, thus, mentioned:
As already seen the Legislature cannot delegate its power to repeal a law or even to modify it in essential features. But when the Legislature gives power to make delegated legislation and further declares that the same shall have effect even if inconsistent with any existing law, the delegated legislation has that effect, for it is by the will of the Legislature 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 first issue is that it is not necessary in law to carry the documents like licence, certificate of registration, insurance papers etc at all times in original while driving a vehicle. Liberty is given to produce the same in terms of Section 130 read with Section 158 and Rule 139 at a later date as prescribed.
37. If the provisions are read otherwise, it would lead to the provisions conferring authorities with power capable of great abuse by the authorities and great inconvenience to public at large. Notwithstanding papers being at hand, the authority could simply note that paper is not produced and detain the vehicle and leave it to the public whose vehicle is being detained to them spend time and money to establish that he in fact is in possession or had valid papers. This would be serious inroad and invasion into the rights of parties and to protect the public from such unguided, unbridled power that Rule 139 has been rightly made.
38. Now coming to the second issue as regard consequences of non-carrying of the documents. As is evident from the provisions of the Act though Sections 130 and 158 in certain cases as discussed above provides for production of the documents when demanded, they themselves provide that so far as private motor vehicles are concerned, the documents can be produced later. Proviso to Sub-section (4) of Section 130 and proviso to Sub-section (3) of Section 158 carves out exception in respect of transport vehicles but that exception is to be read alongwith Rule 139 of the Central Rules which, as discussed above, relaxes the same for all types of motor vehicles and in relation to all documents. Thus, it would be seen that non-carrying of documents is of no consequence provided those documents can be produced in the manner as prescribed even later on within the period as prescribed and before the authorities as prescribed. This also abundantly makes clear that non-carrying of documents is not penal in any manner. What is penal is not having those documents at all. If those documents are available or made available within the time prescribed then a person cannot be held guilty in any manner. This position in respect of motor car was settled by this Court more than half a century back in the case of P. Mukherji v. The State since reported in 1957 Criminal Law Journal 86 (Patna) = 1956 BLJR 19. There while discussing the scope and ambit of Section 86 under the old 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 contingency, Sub-section (3) thereof provides for the vehicle to be detained in proper custody but this power being a sovereign power of a drastic nature has to be exercised with great care and caution and not casually.
39. Here, I may refer to the case of Smt K. Laxmi v. Sub Inspector of Police (Traffic-West) and Anr. since reported in AIR 1989 Karnataka 311 where the Hon'ble Court held that the power of seizure, the power of arrest are sovereign powers which have to be exercised with extraordinary care and caution. While dealing with aspect of the matter, their Lordships referred to Section 129A of the old Motor Vehicles Act corresponding to Section 207(1) of the present Act and pointed out that the legislature themselves have provided that there is alternative to seizure of vehicle. If documents are not readily available, opportunity has to be given to produce the same and it is only on failure to produce within reasonable time the documents, seizure can be effected. This Court is in full agreement with the said law and the second issue is answered accordingly.
40. With regard to the jurisdiction to seize documents and motor vehicle the provisions are to be found in Sections 206 and 207 above. As pointed out earlier, power to seize documents and motor vehicle is a direct invasion into fundamental rights of a citizen or a person. As pointed out above, it may lead to very grave consequences for the owner of the vehicle in respect of his person or his property, the vehicle. On plain reading of the two Sections above, the only guideline apparently provided is that there are infraction of the provisions of the Act. Had the section been as simple then it was liable to be attacked as conferring unbridled power but the legislature have provided a very important safeguard which is a condition precedent to exercise the said power in both provisions of Sections 206 and 207. This has, to my mind, gone unnoticed for too long. The provision is that the condition precedent for exercising or assumption of jurisdiction to seize documents or detain the vehicle is dependent on "reason to believe" that there is infraction of law as mentioned in those Sections.
41. A reference to Sub-sections (1) and (2) of Section 206 and Sub-section (1) with proviso thereof of Section 207 which deals with power to detain vehicle would show that condition precedent to assume the power and 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 , 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 the said conclusion awarded a compensation to the tune of Rs. 10,000/-. Their Lordships of the Supreme Court agreed with the judgment of the High Court and held that the High Court has rightly held the seizure to be unauthorized and consequently compensation awarded cannot be said to be without jurisdiction and the appeal of the State of Maharashtra was dismissed. But this case does not deal with what is "reason to believe". To my mind, this expression "reason to believe" has been used in large number of statutes which confer power on authorities to seize and detain. This expression has received repeated judicial interpretation for over seventy five years and is nomen juris. For example, this expression is used and one of the most widely considered Statute, when it comes to income tax where power has been conferred on the Assessing Officer to reopen past assessments. This expression is found under various Orders issued under the Essential Commodities Act wherein power has been conferred on the authorities to enter, search and seize goods in premises. This expression is used under Customs Act in relation to similar power. This is by no way exhaustive. The expression is used as a condition precedent for assumption of jurisdiction to do or not to do a thing. It is a condition precedent in absence whereof the exercise of power is held to be without jurisdiction. In the case of Sheo Nath Singh v. The Appellate Assistant Commissioner of Income-tax (Central) Calcutta and Ors. while dealing with Section 34 of the Income-tax Act which corresponds to Section 147 of the present Income-tax Act, their Lordships held thus:
There can be no manner of doubt that the words "reason to believe" suggest that the belief must be of that of an honest and reasonable person based upon reasonableness and that the Income-tax Officer may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The Income-tax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied does not exceed or is not material or relevant to the belief required by the Section.
43. Then again in the case of The Income-tax Officer, Calcutta and Ors. v. Lakhmani Mewal Das since , their Lordships dealing with Section 147 of the Income-tax Act, 1961 held:
At the same time 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 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 Lordships held that the unfettered power of seizure were not contemplated by law makers in order to embark upon a roving enquiry, to form an opinion whether any provision of the Act has been violated or not. There should be some material in order to prima facie satisfy that some of the provisions of the Act have been violated. Reasonable belief was a condition precedent to exercise the power of search and seizure. In absence, their Lordships, in paragraph-11 of the judgment, have held thus:
Thus, according to he department the fact whether there was a reasonable belief or not will be determined only after enquiry. This, in my opinion, is contrary to the provisions of Section 66 of the Act and I may add, that it would amount to putting the cart before the horse and justify a seizure by forming an opinion in the nature of "reasonable" belief after enquiry. Such unfettered powers were also not contemplated by the law makers in order to embark upon a roving enquiry, to form an opinion whether any provisions of the Act has been violated or not. Search and seizure besides being an inroad invasion on fundamental right of a citizen, adversely affects the reputation of a person.... While exercising such power, the authority should be rather careful and cautious. There should be some material in order to be prima facie, satisfied that some of the provisions of the Act have been violated. Their Lordships have noted interpretation to the expression "reason to believe" by various judgments of the Apex Court and held that is a condition precedent for application of Section 66 of the said Act. Once that condition precedent of a reasonable belief is satisfied then the power extends to seizure. The Section did not permit an indiscriminate seizure with a view to fishing out material to form a belief and justify it by reasons culled therefrom. It is a matter of subjective satisfaction.
Then this expression again came up for consideration by Division Bench of this Court in the case of Angou Golmel v. Union of India and Ors. since reported in 1994 (1) PLJR 800 in relation to Section 110 of the Customs Act, 1962 which authorizes the proper officer who has reason to believe that any goods are liable to be confiscated under the Act to seize such goods. Their Lordships of the Division Bench again noted the facts and various cases on the subject and held that the reasonable 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 this connection, their Lordships referred to Section 26 of the Indian Penal Code which defines the expression reason to believe. In my view, the said judgment instead of assisting the argument of the respondent that he had the requisite reason to believe goes contrary to his submission for the Apex Court has noted in paragraph-5 of the said judgment as "under the Indian Penal Code penal law, guilt in respect of almost all the offences is fastened either on ground of "intention" or "knowledge" or "reason to believe". We are now concerned with the expression "knowledge and reason to believe." "Knowledge" is an awareness on part of the person concerned indicating his state of mind. "Reason to believe" is another facet of the state of mine. "Reason to believe" is not the same thing as "suspicion or doubt" and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind. Apart from what has been said above, their Lordships were discussing the meaning of this expression as a part of an offence and not as a part of a condition precedent to exercise of power but in any view of the matter, instead of furthering the cause of the respondent, this only establishes that reason to believe is a condition precedent and is not mere suspicion.
46. In the facts of the present case, the inspection is justified by the respondents on basis of directive of the District Magistrate and the Superintendent of Police, Purnea. Firstly, in my view, the District Magistrate or the Superintendent of Police had no such authority to issue such directions. They are not the legislatures or delegate of legislatures. It is the law that gives the mandate to the Enforcement Officers. Respondent No. 2 is the District Transport Officer and he has been conferred with powers of an Enforcement Officer under the Motor Vehicles Act. In exercise of his power, he is not subordinate or subservient to the District Magistrate or the Superintendent of Police. The said two officers in absence of power being there with the District Transport Officer could not conferred such a power and if such a power of inspection existed then the District Transport Officer had to exercise the said power on his own volition and not on the dictates of another even if they be higher in administrative hierarchy.
47. Further, no such general direction can be given for the Motor Vehicles 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 Sections 206 and 207 of the Act and this Court is bound to give effect to the legislative intent otherwise the power would be totally unbridled and would permit fishing or roving enquiries. The situation would be chaotic and catastrophic. It is like authorizing a Police Officer to get into any one's house and start enquiry whether any offence has been committed or not. That surely cannot be and is not the intention of the legislature. It is clearly the intention of the legislature that before he assumes jurisdiction to exercise the power of impounding documents or detaining vehicle he must have a prior reason to believe. Reading provisions otherwise would be ignoring the said expression altogether which is not permissible as a matter of interpretation of statute. In my view, if the expression or the jurisdiction was to be understood in another way, it would be in effect saying that the latter discovery of infraction would justify the earlier assumption of jurisdiction.
48. In my view, as held by Courts earlier, that would be putting the cart before the horse. It is the earlier reason to believe that justifies the intrusion into the rights of a person and acquisition of knowledge subsequently will not validate seizure made without prior reason to believe. This aspect of the matter has been dealt at length by the Division Bench judgment in the case of P. Ramachandra Chetty v. The Secretary, Ministry of Food, Government of India, New Delhi and Ors. since in relation to A P Foodgrain Dealers Licensing Order 1969 being an order made with reference to Section 3 of the Essential Commodities Act 1955 wherein Clause 11(b) of the Order conferred power on Enforcement Officers to enter, search and seize goods where they had reason to believe that a contravention of the provision of the Order has been or is likely to be committed. Their Lordships held categorically that "reason to believe" is a condition precedent to vest any jurisdiction in the officer either to enter the premises or to make any search or seizure in absence whereof the entry and the consequential search becomes vitiated. The mere fact that subsequently the officers taking search, discover some discrepancy in the stock on hand and the position of the stocks as entered on the notice board, cannot make good the reasonable belief which an officer is bound to have initially before he 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 rights. This answers the third issue as against the concerned respondent.
50. Before finally concluding this issue, I must point out that to Section 207(1) which deals with power to detain vehicles, there is a proviso as well. The substantive part of Section 207(1) authorizes the person to seize vehicle if he has reason to believe that a motor vehicle has been or is being used without a driving licence or without certificate of registration or without permit. Proviso reduces these rigors where the certificate of registration is there but other documents are not there, then, instead of seizing the vehicle, he has the option to seize the certificate of registration. This is an important matter because the legislature apparently do not want a vehicle to be detained and remain idle in all cases. Thus, the authority must have some very good bona fide reason for not letting go of the vehicle and seizing it.
51. Then there is Sub-section (2) to Section 207 which provides that I the motor vehicle has been seized and detained under Sub-section (1) of Section 207, he may apply to the Transport Authority together with documents for the release of the vehicle and the said authority may, after verification of the documents, order the release the vehicle. In present case, it would be seen that once the vehicle was detained, its detention was not finalized and on one pretext or the other, it was retained till this Court ordered its release. All along the papers remained seized by respondent No. 2 and petitioner was deprived of moving the authority. That apart, the authority was completely ignorant of Rule 139 of the Central Motor Vehicles Rules as discussed above or deliberately ignored the same.
52. Now coming to the fourth issue with regard to jurisdiction to impose fine/penalty. It is well established where penalties are provided for contravention of provisions of the Act found in course of prosecution then unless it is specifically provided in the Act the power to impose penalty is exclusively with the Criminal Court. This is so because of Section 4(2) read with Section 5 of the Code of Criminal Procedure. Those Sections provide that in respect of offences under any other law (other than Indian Penal Code), they shall be enquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure subject to any changes that may be done 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 prosecution before an authority notified by the State Government and on payment of such fee as may be prescribed. It is under this power that DTOs have been notified as an officer competent to compound offences. But merely conferring DTO power to compound offences does not mean that he has the authority to impose penalty or compounding fee even without there being an application in that regard by the person seeking to compound. Power to compound is distinct from power to impose penalty. Power to impose penalty is a unilateral act of an authority though after hearing the party in view of contravention committed by him. Compounding is not a unilateral act in that manner. A person, who is liable to be prosecution, can choose to avoid prosecution or prosecution having been instituted can choose to cut short the trial by pleading for compounding. He has to necessarily apply for compounding and it is only then the DTO gets jurisdiction to compound otherwise not. In the present case, admittedly, petitioner had not moved for compounding and, therefore, the DTO had no jurisdiction to impose a penalty/fine and make its payment a condition precedent for the release of the vehicle.
55. Here, I would also like to clarify, as noted in the judgment, State Government had issued circular No. 2801 dated 28.06.2000 which clearly directed the authorities not to detain vehicles for more than twenty four hours and, thereafter, they had to report the matter for prosecution to Criminal Court. The effect of the circular has been discussed in the judgment of Munnna Lal Sharma (supra) where this Court pointed out that this has been done to avoid authorities mala fide exercising power of detaining vehicles to take undue advantage of the situation and harassing people. Once the matter, after twenty four hours is reported to Criminal Court, the owner of the vehicle or the concerned person has immediately two options. He could either plead guilty and pay the fines and be done with ending ghe detention of his vehicle. Alternatively, eh could also apply for compounding, pay the fee and get acquitted but as noticed by the State itself in the said writ application, power to detain has long since been abused for the reasons which are very obvious and need not be discussed nor can be countenanced by this Court. Thus found by this Court that there is no provision authorizing any person other than 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 no point of time, did he take the trouble of letting the case go out of his own hand to the Criminal Court denying petitioner yet another opportunity to get his vehicle released. These consistent series of derelictions clearly establish mala fade on part of respondent No. 3. His acts were not in bona fide. They were designed to cause irreparable loss to the petitioner unless apparently the petitioner did something else to satisfy respondent No. 3. This has to be deprecated in the severest of terms.
57. An officer cannot be permitted to say that I commit a default causing you irreparable loss, you can go to the Courts and get a redressal but I cannot be proceeded against. There has to be an accountability of the persons holding public office in matters of exercise of their jurisdiction especially when they extend to such drastic powers which could completely ruin a person. Here, the drug, being a commercial commodity used as a business to earn profits everyday, lay seized for over eight months causing immense loss everyday when this was totally unnecessary if not impressible in fact or in law and was, thus, avoidable. This attitude must stop and it cannot stop except if the Enforcement Officers are held liable for such flagrant disregard to law. It is not a matter of inconsequential dereliction that could be condoned or ignored by the Courts. Imagine the plight of the owner of the vehicle being deprived of his earning from the said vehicle for over eight months and it is for this reason in the writ petition itself, it has been prayed that the writ petitioner be compensated for the wrongful act of the concerned respondent. In my view, the writ petitioner is correct and he deserves to be compensated.
58. Here, even assuming in favour of respondent No. 2/3 and giving him benefit of doubt that in fact no papers were at all produced when the truck was seized (though the seizure list speaks to the contrary) what, in law, was the sanctioned course to be taken? In my view, the Enforcement Officer could not have detained the vehicle under his authority but immediately forwarded it to the competent Criminal Court for prosecution and leave the matter. Instead of doing so the respondent hung on to the truck, challenged the authority of the learned CJM, virtually abused him and did all those things of which he had no authority or jurisdiction. He disregarded the provisions of Rule 139 of the Central Motor Vehicles Rules. He took all effective steps to retain the vehicle in his custody and deprive petitioner the right to use their vehicle. He deprived the petitioner of his rights under Article 300A of the Constitution apart from clearly violating his rights under Articles 14 and 19 of the Constitution. This clearly entitles the petitioner to compensation.
59. The next question is as to the quantum of compensation and as to who has to pay the same. In my view, the second part does not cause any problem for now it is well established that State is answerable and liable to pay compensation/damages for acts of its officers (See N. Nagendra Rao & Co. v. State of Andhra Pradesh and Chairman, Railway Board and Ors. v. Mrs Chandrima Das and Ors. ).
60. I, therefore, hold that petitioner is liable to get compensation of at least Rs. 50,000/- payable by the State. In case, petitioner thinks he is entitled to anything more, it will be open to the petitioner to move appropriate Court and upon proof if it is found he is entitled to more, the difference may be awarded by the Court against the State. The State, thus, being held liable to pay the damages/compensation, as aforesaid, would be at a liberty to realize the same from the officer responsible and concerned in the manner as it deems fit and in accordance with law.
61. As the vehicle has already been released without payment of fine, as unauthorisedly imposed, no further orders are need in that regard and the fine cannot be realized.
62. The writ application is, thus, allowed.
63. Let a copy of this order be sent to the Secretary-cum-Transport Commissioner, Department of Transport, Government of Bihar, Patna forthwith.