Gujarat High Court
Bhavesh Nandlal Kabra vs State Of Gujarat on 30 July, 2019
Equivalent citations: AIR 2019 GUJARAT 180, AIR 2019 GUJRAT 180, AIRONLINE 2019 GUJ 199 (2020) 1 ACC 25, (2020) 1 ACC 25
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/11354/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11354 of 2019
===========================================================
BHAVESH NANDLAL KABRA
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1
MR.DHAWAN JAYSWAL, AGP, (1) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
===============================================================
CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 30/07/2019
ORAL ORDER
[1] This petition is filed by the petitioner under Article 226 of the Constitution of India with a prayer to declare the action of respondent authority in detaining the vehicle for breach of Section 192-A of the Motor Vehicles Act, 1988 (for short the "the Act") and compelling the petitioner to compound the offence under Section 200 of the Act to pay the compounding fine.
[2] Learned advocate Mr. Premal Joshi appearing for the petitioner submitted that the petitioner is permitted to ply a vehicle as a contract carriage, whereas in the intervening night on 19/20.04.2019, the vehicle was intercepted and was found with passengers which did not belong to one group and the driver had not produced any passengers list and hence, prima- facie found that vehicle was being used as Stage Carriage. Such use being in contravention to Section 66 of the Act which provides for permits and therefore, was liable for action under Section 192-A of the Act. It is submitted that on the same day, after having found the petitioner liable for action under Section Page 1 of 8 Downloaded on : Thu Aug 01 20:41:46 IST 2019 C/SCA/11354/2019 ORDER 192-A of the Act, had proceeded to compound the offence under Section 200 of the Act. While compounding, the petitioner was made to pay an amount of Rs.2,000/-. Learned advocate for the petitioner submitted that Section 200 of the Act which provides for compounding of certain offences does not include Section 192-A of the Act and therefore, action of compounding the offence under 192-A of the Act contemplated against the petitioner ought not to have been compounded.
[2.1] Learned advocate relies upon the judgment in the case of Ramjibhai Dayarambhai Joshi v/s. State of Gujarat and another, reported in 1997(1) GLH 992 to submit that issue is no more res-integra considering the ratio laid down in para-7B.
[3] Learned Assistant Government Pleader opposes the petition on the ground that the petitioner had voluntarily paid the amount and after voluntary payment only, the departmental action was initiated against the petitioner and the fine of Rs.2000/- was accepted. It it submitted that it is only after a period of two months on such compounding, that the petitioner has filed the present petition and therefore, filing of the petition is an afterthought. It is submitted that by the late challenge to the action, the petitioner was escaped from both criminal liability as well as liability under the departmental proceedings.
[4] Learned AGP draws attention of this Court to Section 86 of the Act to contend that where a case is cancellation or suspension of permits, Sub-section 5 of Section 86 provides for department to receive certain money in lieu of cancellation or Page 2 of 8 Downloaded on : Thu Aug 01 20:41:46 IST 2019 C/SCA/11354/2019 ORDER suspension and it is under this that the amount of Rs.2,000/- is received.
[5] This Court has heard learned advocates for the parties and perused the documents placed on record. The relevant portion of the inspection report dated 20.04.2015 reads as under:-
"M.V. Carrying 35........................................Passengers from ..........................To................400.................with journey fare of Rs.......................... per passengers. All passengers are not in one group and Driver has not produced passenger list. MV used as a Stage carriage. Hence breach of permit condition."
"C.F. Recovered 2,000/-
Two thousand only."
[6] Sections 2(7), 2(40), 66, 192-A and 200 of the Act read as under;-
"2(7) contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward and is engaged under a contract, whether expressed or implied, for the use of such vehicle as a whole for the carriage of passengers mentioned therein and entered into by a person with a holder of a permit in relation to such vehicle or any person authorised by him in this behalf on a fixed or an agreed rate or sum-
(a) on a time basis, whether or not with reference to any route or distance; or
(b) from one point to another; and in either case, without stopping to pick up or set down passengers not included in the contract anywhere during the journey, and includes-
(i) a maxicab; and
(ii) a motor-cab notwithstanding that separate fares are charged for its passengers;
2(40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or individual passengers, either for the whole journey or for stages of the journey.
66. Necessity for permits-(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport Page 3 of 8 Downloaded on : Thu Aug 01 20:41:46 IST 2019 C/SCA/11354/2019 ORDER vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not.
Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage. Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried of by him. (2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed.
1[Provided that the holder of a permit on any articulated vehicle may use the prime mover of that vehicle for any other semi-trailer.] (3) The provisions of sub-section (1) shall not apply-
(a) to any transport vehicle owned by the Central Government or a State Government and used for Government Purpose unconnected with any commercial enterprise;
(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleaning, road watering or conservancy purpose.
(c) to any transport vehicle used solely for police, fire brigade or ambulance purpose;
(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;
(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place safety;
(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in Page 4 of 8 Downloaded on : Thu Aug 01 20:41:46 IST 2019 C/SCA/11354/2019 ORDER this behalf;
(g) to any transport vehicle used by a person who manufacturers or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;
(h) to any transport vehicle owned by, and used solely for the purposes of, any educational institution which is recognized by the Central or State Government or whose managing committee is a society registered under the Societies Registration Act, 1960 (21 of 1960) or under any law corresponding to that Act in force in any part of India;
(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;
(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle; 1[(l) to any motor vehicle which is operated by electric battery, compressed natural gas or solar energy.]
(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;
(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire- purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach it destination; or
(p) to any transport vehicle while proceeding empty to any place for purpose of repair.
Subject to the provisions of sub-section (3), sub-section (1) shall, if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver.
Page 5 of 8 Downloaded on : Thu Aug 01 20:41:46 IST 2019 C/SCA/11354/2019 ORDER192A. Using vehicle without permit-
(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to beused in contravention of the provisions of sub-section (1) of section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purposes for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not less than three montsh or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both. Provided that the Court may for reasons to be recorded, impose a lesser punishment.
(2) Nothing in this section shall apply to use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injury or for the transport of materials for repair or for the transport of food or materials to relieve distress or of medical supplies for a like purpose. Provided that the person using the vehicle reports about hte same to the Regional Transport Authority within seven days from the date of such use.
(3) The Court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub-section (1), may set aside or vary any order made by the Court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.
200.Composition of certain offences-
(1) Any offence whether committed before or after the commencement of this Act punishable under section 177, section 178, section 179, section 180, section 181, section 182, sub-section (1) or sub-section (2) of section 183, section 184, section 186, 1[section 189, sub-section (2) of section 190], section 191, section 192, section 194, section 196 or section 198, may either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State Government may, by notification in the Official Gazette, specify in this behalf. (2) Where an offence has been compounded under sub- section (1) the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence.
Page 6 of 8 Downloaded on : Thu Aug 01 20:41:46 IST 2019 C/SCA/11354/2019 ORDER[7] The observations of the division Bench in the case of Ramjibhai (Supra) in para-7B read as under;-
"7B. Reading Section 200, there is no manner of doubt that certain offences are made compoundable but Section 192A is not included in that section. In other words, the offences covered by Section 192A cannot be compounded by pressing in service the provisions of Section 200of the Act. Hence, prima facie, the contention of Mr. Zaveri is well founded that after November 14, 1994, no offence under Section 192A could have been compounded. It is the case of the appellant that on November 13, 1995, the appellant had attended the office of R.T.O. and had agreed to get offences compounded. The contention of Mr. Jhaveri requires to be upheld that only those offences could have been compounded which were otherwise compoundable. Other of fences which were non- compoundable with effect from November 14, 1994 could not have been compounded. It appears that the respondents were also aware of this fact. In para 1 of the affidavit-in-reply filed in the present appeal, it is stated by the defendant as under:
"That I have already filed my affidavit in the Spl. Cri. App. No. 164/1994 and I stick to statement made therein. At the outset, I must state that no application under Section 207(2) is made before me nor any such application is pending before me for disposal. I say that if any such application is made, same shall be disposed off expeditiously, looking to the priority of the matters on the hand (for vehicle No. GJ-8-T- 8094). I say that composition of the offence under Section 192A will not be possible due to the fact that the same is not provided for in Section 200 and hence any such composition shall have to be ignored and cases shall have to be accordingly dealt with as if there is no composition of the offences. (After.... Nov. 1994)"
[8] In view of the aforesaid, it is obvious that the nature of report recorded and the breach in the permit, the action can be undertaken only under Section 192-A of the Act and as Section 192-A of the Act is not an offence which is compoundable, the department was not within its authority to compound such offence under Section 200 of the Act.
Page 7 of 8 Downloaded on : Thu Aug 01 20:41:46 IST 2019 C/SCA/11354/2019 ORDER[9] The submission of learned AGP with regards to Section 86 of the Act, Section 86 which provides for cancellation and suspension of permits also provides for an opportunity to be given to holder of the permit to furnish his explanation before suspending or cancelling the permit. The chronology of events in the present case does not reflect that such action of receiving the amount of Rs.2,000/- can be considered to be an action under Section 86(5) of the Act.
[10] Moreover, when specifically it is narrated in the inspection from of receipt of Rs.2,000/- towards the compounding fine, the Court is not inclined to accept the explanation.
[11] In view of the aforesaid, the action on the part of the respondent authority in calculating the compounding fine of Rs.2,000/- is required to be quashed and set aside. The necessary consequence therefore should follow. As the petition was filed and is pending before this Court, it will still be open for the respondent authority to initiate any action as provided under the provisions of Motor Vehicles Act, 1988.
[12] With the aforesaid, the present petition is allowed to the aforesaid extent. Direct service is permitted.
(A.Y. KOGJE, J) SIDDHARTH Page 8 of 8 Downloaded on : Thu Aug 01 20:41:46 IST 2019