Document Fragment View

Matching Fragments

3. The grounds taken by the petitioner in his writ petition was that the impugned letter which was an executive instruction from the authorities was violative of the provisions of the M.V. Act, which made the offence of overloading a compoundable offence under section 200 of the M.V. Act and hence the direction of criminal prosecution for the offence of overloading without satisfying the condition precedents for invoking the provisions of the PDPP Act amounted to violation of the Fundamental Rights guaranteed under Article 19 (1) (g) of the Constitution of India to practise Trade and Commerce including the Transport business without any unreasonable obstruction. It was also claimed that initiation of proceedings under the M.V. Act and the PDPP Act amounts to double jeopardy causing unreasonable and arbitrary restriction on the business of transportation which is an established trade of the petitioner. Petitioner has also taken the ground that despite noticing the facts that there may be possibility of damage to the road surface, pollution and safety hazard, the Hon‟ble Supreme Court had recommended the exercise of powers under the M.V. Act apart from taking sufficient steps for strict enforcement of the provisions relating to overloading under the M.V. Act, and the Central Motor Vehicle Rules, 1989. It was further claimed that the authorities are putting the transporters, including the petitioner to arbitrary and unreasonable restrictions under the threat of prosecution severely affecting petitioner‟s right to pursue his transport business, as the impugned executive instruction issued by the authorities has conferred unbridled and unguided power upon the authorities to prosecute the allegedly overloaded vehicles without instruction to determine the factum of damage before initiating any prosecution.

7. Learned counsel for the petitioner averred that the PDPP Act applies only in case of public commotions, riots, etc. as is apparent from its Statement of Objects and Reasons and hence it is not at all applicable to the facts of the instant case where there is no question at all of any public commotions, riots etc. It was further claimed that section 3 of the PDPP Act is with respect to the place where mischief causing damage had taken place, but the said provision does not include road, but in spite of the aforesaid fact an F.I.R. has been lodged under the aforesaid provision although admittedly the vehicle was seized from the road and there was no allegation of damage to any public property as mentioned in the said provision. He further stated that in these facts and circumstances the provisions of the PDPP Act were wrongly applied whereas the offence committed under sections 113, 114 and 115 of the M.V. Act provide only punishment of fine under section 194 and even that punishment is compoundable under section 200 at the instance of the owner of the vehicle, who was always ready to pay fine. In this connection he relied upon a decision of the Apex Court in case of Utkal Contractors and Joinery Pvt. Ltd. and others vs. State of Orissa and others, reported in (1987) 3 Supreme Court Cases 279 in which it was held that administrative action should not be against the objects of the Act and also relied upon another decision of the Apex Court in case of Hira Lal Hari Lal Bhagwati vs. CBI, New Delhi, reported in (2003) 5 Supreme Court Cases 257 in which it was held that parallel procedure for the same offence cannot be legally adopted.

21. Learned counsel for the petitioner raises an objection that the objects & reasons of the PDPP Act as given therein is to curb the acts of vandalism and damage to public property during riots and public commotions only, hence in the instant case admittedly there being no riot or public commotion, the provisions of the PDPP Act cannot be made applicable. In this connection it may be noted that the words used in the PDPP Act while describing its objects & reasons is „To curb acts of vandalism and damage to public property, including destruction and damage caused during riots and public commotions‟. Thus it is quite apparent that the main emphasis is the acts of vandalism and damage to public property in any form including any destruction or damage during riots and public commotions.

- 19 -

25. It may be noted in this connection that vires of the PDPP Act or any of its provision is not under challenge in this case and the point raised by the petitioner is "Double Jeopardy" , claiming that for the same offence he cannot be punished twice and when he is already going to be punished under the M.V. Act which is a self-contained enactment, no step for his punishment under the PDPP Act as directed by the Secretary, Department of Transport, Government of Bihar (respondent no.1) vide memo dated 10.08.2010 (Annexure-4) can be taken for the same offence as it would amount to double jeopardy. He has further claimed that under the provision of section 194 of the M.V. Act a punishment of fine is provided, which can be compounded under section 200 of the M.V. Act, whereas under the provision of section 3 of the PDPP Act a sentence of imprisonment, which is not compoundable, is provided and there is no provision for its compounding, hence the petitioner is bound to be punished twice for the same offence if the impugned action is allowed to be continued.