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TMI Blog2008 (3) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gined for the owner. The inconveniences caused can very well be imagined and it is, therefore, provided by the Rules that the same can be produced within fifteen days. Thus, the provision is explicit that none of those documents as mentioned in Rule 139 are to be mandatorily carried along with the vehicle and that cannot be a cause ever to detain the vehicle. 34. Ordinarily, it could be argued that Rule 139 of the Central Rules is in conflict with the substantive provisions of Sections 130 and 158 or for that matter, Section 159 as by Rules the duty cast under the Act to produce the documents when demanded is being taken away. In other words, by Rules, the substantive provisions of the Act are being amended and/or taken away which 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bligatory 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 Kar 311 where the Hon'ble Court held that the power of seizure, the power of arrest are sovereign powers which have to be exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of law should be satisfied. It is a sound rule of interpretation that where a legal expression has received repeated consistent judicial interpretation then if the legislature in a latter legislation uses the same expression, the expression must be understood in the meaning as judicially earlier interpreted. 44. This expression was dealt with by Division Bench of this Court in the case of Bawa Gopal Das Bedi & Sons and Ors. v. Union of India and Ors. since reported in AIR1982Pat152 in relation to Section 66 of the Gold (Control) Act 1968 wherein the argument of Union of India was rejected in no uncertain terms wherein department submitted that whether there was reasonable belief or not could be determined only after enquiry. Their 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 almos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution. 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 AIR1994SC2663 and Chairman, Railway Board and Ors. v. Mrs Chandrima Das and Ors. 2000CriLJ1473 ). 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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