@JUDGMENTTAG-ORDER
S. Manikumar, J.@mdashAs common question of facts and law are involved in both the Writ Petitions/ they are taken up together and disposed of by common order. Brief facts leading to W.P.No.22033 of 2002 are as follows:
The petitioner is the owner of a Public Carrier bearing registration No.KA-02-AA/1177, which is covered by a National Permit. When the said vehicle was passing through Dharmapuri, it was checked by the respondent on 11.05.2002 and issued with a memo, charging that the lorry was overloaded by 14,740 kgs, the driver was without uniform and disobeyed Traffic signal. On the basis of these charges, the respondent has seized the records of the vehicle, such as Registration Certificate, Permit, etc. On receipt of the information, the petitioner proceeded to Dharmapuri and requested the respondent to return the Registration Certificate of the vehicle and permit, siezed by him on 11.05.2002. Before the respondents, the petitioner pointed out that Section 113 of the Motor Vehicles Act, 1988 enables the State Government to prescribe the maximum laden weight that the vehicle may carry and Section 114 of the Act authorises only the officers of the Motor Vehicles Department authorised in this behalf of the State Government to proceed against the permit as per the said Section and Police Officers have no jurisdiction to take action against the petitioner. It is further submitted that in so far as the charge that the driver was not in uniform and disobeyed the Traffic signal, they are only petty offences and action may be taken against the driver. Though the petitioner has pointed out that the respondent in this Writ Petition has no jurisdiction to charge the petitioner for overloading, he has refused to return the records and insisted the petitioner to pay a compounding fee of Rs. 5,000/- for the charge of overloading.
2. The facts in W.P.No.23854 of 2002 are almost the same except to state that the registration number of the public carrier is KA-01-D/7689, it was intercepted and checked on 10.05.2002. On the charge of overloading by 15,020 kgs, the respondent herein seized the records of the vehicle, such as, Registration Certificate, permit etc., and demanded compounding fee of Rs. 2,000/- for overloading.
3. Mr. R. Natesan, learned counsel for the petitioner submitted that the respondents have no jurisdiction to lay a charge of overloading u/s 113 of the Motor Vehicle Act and as per Section 114 of the Motor Vehicles Act, the State Government can authorise only the officers of the Motor Vehicle Department to lay the charge. He further submitted that the officer of the Motor Vehicles Department authorised in this behalf by the State Government, if he has reason to believe that a goods vehicle or trailer is being used in contravention of Section 113, require the driver to convey the vehicle to a weighing device, if any, within a distance of 10 KM., from any point on the forward route or within a distance of 20 KM., from the destination of the vehicle for weighment; and if no such weightment the vehicle is found to contravene in any respect the provisions of Section 113 regarding weight, he may, by order in writing, direct the driver to off-load the excess weight at his own risk and not to remove the vehicle or trailer from that place until the laden weight has been reduced. He further submitted that after off-loading the excess weight, the officer of the Motor Vehicles Department can endorse the relevant details of overloading on the goods carriage permit and intimate the fact of such endorsement to the authority which issued that permit. According to the learned counsel, excepting cancellation or suspension of permit by the permit issuing authority, the respondents, police officers have no authority to seize the records. Relying on an unreported judgment of the Karnataka High Court, in W.P.No.18327 of 2000, dated 11.01.2001, he further submitted that the respondents have no jurisdiction to issue police notice for overloading. He further submitted that though the respondents have received the copy of the order made in Writ Petition passed by the Karnataka High Court, they have refused to take cognizance of the same and orally demanded payment of compounding fee.
4. On the contrary, Mr. A. Arumugam, learned Additional Government Pleader, referring to Section 206 and 213 of the Motor Vehicles Act, 1988, submitted that Police Officers are empowered to impound documents for violation of permit conditions and therefore, the impugned notice issued by the respondents, directing the production of the vehicle''s permit, Registration Book, Insurance Certificate and driving licence, is valid in law. He further submitted that the respondents have every jurisdiction to direct the permit holders to produce the records and if the goods vehicle/ public carrier exceeds the permissible weight, the Police Officers are empowered to take penal action against the holder of the permit.
Heard the learned counsel appearing for the parties and perused the materials available on record.
5. In order to appreciate the rival contentions of the counsel, it is relevant to extract the provisions dealing with overloading and the powers of the police officers to seize the documents for violation of permit conditions. Section 113 of the Motor Vehicles Act, 1988 which deals with the Limits of weight and limitations on use, reads as follows:
113. Limits of weight and limitations on use - (1) The State Government may prescribe the conditions for the issue of permits for [transport vehicles] by the State or Regional Transport Authorities Page 1693 and may prohibit or restrict the use of such vehicles in any area or route.
(2) Except as may be otherwise prescribed, no person shall drive or cause or allow to be driven in any public place any motor vehicle which is not fitted with pneumatic tyres.
(3) No person shall drive or cause or allow to be driven in any public place any motor vehicle or trailer -
(a) the unladen weight of which exceeds the unladen weight specified in the certificate of registration of the vehicle, or
(b) the laden weight of which exceeds the gross vehicle weight specified in the certificate of registration.
(4) Where the driver of person in charge of a motor vehicle or trailer driven in contravention of Sub-section (2) or Clause (a) of Sub-section (3) is not the owner, a court may presume that the offence was committed with the knowledge of or under the orders of the owner of the motor vehicle or trailer.
6. Section 114 of the Motor Vehicles Act, 1988, deals with the power of any Officer of the Motor Vehicle Department authorised in this behalf by the State Government to have the vehicle weighed and it is extracted hereunder:
114. Power to have vehicle weighed. : (1) Any officer of the Motor Vehicles Department authorized in this behalf by the State Government shall, if he has reasons to believe that a goods vehicle or trailer is being used in contravention of Section 113 require the driver to convey the vehicle to a weighing device, if any, within a distance of ten kilometers from any point on the forward route or within a distance of twenty kilometers from the destination of the vehicle for weighment; and if on such weighment the vehicle is found to contravene in any respect the provisions of Section 113 regarding weight, he may, by order in writing, direct the driver to offload the excess weight at his own risk and not to remove the vehicle over trailer from that place until the laden weight has been reduced or the vehicle or trailer otherwise been dealt with so that it complies with Section 113 and on receipt of such notice, the driver shall comply with such directions.
(2) Where the person authorized under subsection (1) makes the said order in writing, he shall also endorse the relevant details of the overloading on the goods carriage permit and also intimate the fact of such endorsement to the authority which issued that permit.
7. Chapter X deals with the offences, penalties and procedure. Section 194 of the Act deals with driving a vehicle exceeding permissible weight and it reads as follows:
(1) Whoever drivers a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 113 or Section 114 or Section 115 shall be punishable with minimum fine of two thousand rupees and an additional amount of one thousand rupees per tonne of excess load, together with the liability to pay charges for off-loading of the excess load.
(2) Any driver of vehicle who refuses to stop and submit his vehicle to weighing after being directed to do so by an officer authorized in this behalf u/s 114 or removes or cause to removal of the load or part of it prior to weighing shall be punishable with fine which may extend to three thousand rupees.
8. Section 200 of the Act deals with composition of certain offences and it is extracted:
200. Composition of certain offences: (1) Any offence whether committed before or after the commencement of this Act punishable under Page 1694 Section 177, Section 178, Section 179, Section 180, Section 181, Section 182, subsection (1) or Sub-section (2) of Section 183, Section 184, Section 186, Section 189, Sub-section (2) of Section 190, Section 191, Section 191, 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 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.
9. Section 206 deals with the power of police officer to impound documents and it reads as follows:
(1) Any police officer or other person authorised 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 or 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 (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 authorised 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 summons, seize any licence held by such driver and forward it to 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 acknowledgement given under sub-section (3)
(3) A Police Officer or other person seizing a licence under sub-section (2) shall give to the person surrendering the licence a temporary acknowledgement therefor and such acknowledgement shall authorise the holder to drive until the licence has been returned to him or until such date as may be specified by the police officer or other person in the acknowledgement, whichever is earlier.
Provided that if any magistrate, police officer or other person authorised by the State Government in this behalf is, on an application made him, satisfied that the licence cannot be, or has not been, returned to the holder thereof before the date specified in the acknowledgement for any reason for which the holder is not responsible, the magistrate, police officer or other person, as the case may be, may extend the period of authorization to drive to such date as may be specified in the acknowledgement.
10. Section 207 deals with power to detain vehicles used without certificate of registration permit, etc., which reads as follows:
(1) Any police officer or other person authorised 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 of 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 be 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 acknowledgement in respect thereof.
(2) Where a motor vehicle has been seized and detained under Sub-section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of vehicle and such authority or officer may, after verification of such documents, by order, release the vehicle subject to such conditions as the authority or officer may deem fit to impose.
11. Section 208 of the Motor Vehicles Act contemplates summary disposal of the case by the Court taking cognizance of any offence under the Act. Section 213 of the Act deals with the power of the State Government to appoint Motor Vehicles Officers for the purpose of carrying into effect the provisions of the Act, establish a Motor Vehicles Department and appoint officers thereof such persons as it thinks fit. Every such officer shall be deemed to be a public servant within the meaning of the Indian Penal Code. As per Sub-Section (5) of the said Section, in addition to the powers that may be conferred on any officer of the Motor Vehicles Department under sub-section (3), such officer as may be empowered by the State Government in this behalf shall also have the power to:-
(a) make such examination and inquiry as he thinks fit in order to ascertain whether the provisions of this Act and the rules made thereunder are being observed;
(b) with such assistance, if any, as he things fit, enter, inspect and search any premises which is in the occupation of a person who, he has reason to believe, has committed an offence under this Act or in which a motor vehicle in respect of which such offence has been committed is kept.
Officer appointed under this Section is also empowered to seize and take copy of any registration and document or portions therefor and he must consider the relevant in respect of an offence under this Act which he has reason to believe has been committed and launch prosections in respect of any offence under this Act and to take a bond for ensuring the attendance of the offender before any Court.
12. A conjoint reading of Sections 113 and 194 of the Act makes it clear that where the driver or person in charge of the Motor Vehicle, or trailor drives the vehicle which exceeds the unladen weight specified in the certificate of registration of the vehicle, the Court may presume that the offence was committed with the knowledge of the owner of the Motor Vehicle or Trailor and for contravention of the provisions of Sections 113 and 114 of the Act, the accused shall be punishable with a fine of Rs. 2,000/- and an additional amount of Rs. 1,000/- per tonne of excess load is leviable against a person who drives or allow the Motor Vehicle to be driven, part from the off-loading charges. As per Section 194 of the Act, over-loading is an offence punishable under the Motor Vehicles Act, 1988 and the Police officer is empowered to register a criminal case and submit a report to the competent Criminal Court to take cognizance of the offence.
13. For adjudicating the issue, it would be useful to refer some of the judgments of the Supreme Court, where the powers of the Police Officers in case of violations of permit conditions, are dealt with.
14. In
Pre-condition for exercise of power of seizure and detention of the vehicle u/s 129-A is that the police officer or authorised person must have reason to believe that one or the other of the offences punishable u/s 123, has been or is being committed. Whenever property involved in the commission of an offence is seized, the seizure is generally expected to serve a manifold purpose such as to prevent repetition of the offence, to use the thing seized as material evidence in the prosecution, to preserve the property so as to enable the court to pass appropriate orders for its disposal by way of destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise. There is no reason to assume that the seizure u/s 129-A is any different and is not to serve any of these purposes or any purpose at all.
The next step would be to consider the question whether the offence should be compounded as provided by Section 127-B of the Act and any notification issued by the Government in that behalf. Thereafter, the police officer or appropriate person would lay a complaint before the competent Court, subject to over-riding provision of Section 132 of the Act. The Court before which the complaint may be laid has to be determined in accordance with the provisions of Chapter XIII of the Code, subject to the special provision u/s 130 of the Act. The provisions of Chapter XXXIV of the Code are also attracted in dealing with offences under the Act.
The Court thus has the power at the conclusion of the case to make appropriate orders regarding the disposal of the motor vehicle regarding which an offence appears to have been committed. A motor vehicle regarding whose temporary custody arrangements have been made u/s 129-A of the Motor Vehicles Act must be considered to have been produced before the Criminal Court as Soon as a complaint is filed. In any case, the Court has ample power under Chapter VII of the Code, Section 91 in particular, to compel the production of the vehicle before the Court. The custody of the vehicle in the hands the police officer or the authorised person is but temporary and he is therefore, obliged to act and take all further steps in the matter with all expedition. If, instead of relasing the vehicle on the offence being compounded, he lays a complaint before the Court, the court acquires instant jurisdiction over the vehicle to pass suitable orders. In the remote event of the police officer or the authorised person not taking any further action after seizing and detaining the vehicle, the owner of the vehicle is not without remedy. Article 226 is always available but one does not have to presume that the police officer or the authorised person may not act according to law.
15. Dealing with the issue of rash and negligent driving, the procedure to be followed by the State for enforcing better driving and the curative approach in sentencing the offender, Justice Krishna Iyer in
1. This petition for special leave under Article 136 is by a truck driver whose lethal hands at the wheel of an heavy automobile has taken the life of a scooterist-a deadly spectacle becoming so common these days in our towns and cities. This is a case which is more a portent than an event and is symbolic of the callous yet tragic traffic chaps and treacherous unsafety of public transportation the besetting sin of our highways which are more like fatal facilities than means of mobility. More people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country. What with frequent complaints of the State''s misfeasance in the maintenance of roads in good trim, the absence of public interest litigation to call state transport to order, and the lack of citizens'' tort consciousness, and what with the neglect in legislating into law no fault liability and the induction On the roads of heavy duty vehicles beyond the capabilities of the highways system, Indian Transport is acquiring a menacing reputation which makes travel a tryst with Death. It looks as if traffic regulations are virtually dead and police checking mostly absent. By these processes of lawlessness, public roads are now lurking death traps. The State must rise to the gravity of the situation and provide road safety measures through active police presence beyond frozen indifference, through mobilisation of popular organisations in the field of road safety, frightening publicity for gruesome accidents, and promotion of strict driving licensing and rigorous vehicle invigilation, lest human life should hardly have a chance for highway use.
2. These strong observations have become imperative because of the escalating statistics of road casualties. Many dangerous drivers plead in court, with success, that someone else is at fault. In "the present case, such a plea was put forward with a realistic touch but rightly rejected by the courts below. Parking of heavy vehicles on the wrong side, hurrying past traffic signals on the sly, neglecting to keep to the left of the road, driving vehicles criss-cross often in a spirituous state, riding scooters without helmets and with whole families on pillions, thoughtless cycling and pedestrian jay walking with lawless ease, suffocating jam-packing of stage carriages and hell-driving of mini-buses, overloading of trucks with perilous projections and, above all, police man, if any, proving by helpless presence that law is dead in this milieu charged with me(sic)lee-such is the daily, hourly scene of summons by Death to innocent persons who take to the roads, believing in the bona fides of the traffic laws. We hope that every State in India will take note of the human price of highway neglect, of State transport violations and the like, with a sombre sensitivity and reverence for life.
16. In a recent decision in
5. Section 200 does not in any way authorize the State Government to permit the excess weight to be carried when on various inspection/detection it is noticed that there is carriage of load beyond the permissible limit. It only gives an opportunity of compounding so that instead of the amounts fixed, lesser amounts can be accepted by the authorised officers. The intention of off-loading the excess weight is apparent from a bare reading of the Section 194(1). The liability to pay charge for off-loading of the excess load is fixed on one who drives a vehicle or causes a motor vehicle to be driven in contravention of the provisions of Sections 113-115. It is to be noted that compounding can be done either before or after the institution of the prosecution in respect of the enumerated offences. Any notification which runs counter to the clear import of Section 194 has no validity. As rightly submitted by learned Counsel for the petitioners after compounding the excess load, same cannot be permitted to be carried in the concerned vehicle. Such carriage would amount to infraction of Section 113 of the Act. The object for which the maximum permissible weights have been fixed is crystal clear.
7. It is apparent from the reply filed by the Union of India that overloading causes significant damage to the road surface and also cause pollution through auto emissions. Even overloaded vehicles are safety hazards not only for themselves, but also for other road users. It is pointed out that since the responsibility of enforcing of the provisions of the Act and the Central Rules is that of the State Government they have been advised by the Central Government to scrupulously enforce the provisions of the Act and the Central Rules.
8. Complaints were received that several States were issuing green cards/golden passes purportedly on the basis of the power of composition u/s 202. After examining the matter the Central Government requested the respective States to discontinue such cards/ passes.
9. Learned Counsel appearing for the State submitted that the system of issuing cards/passes has been discontinued. However, it was submitted that offloading excess weight from large, number of vehicles creates traffic problems and several other practical problems which according to them need to be addressed.
12. It is indisputable that the power of compounding vests with the State Government, but the notification issued in that regard cannot authorize continuation of the offence which is permitted to be compounded by payments of the amounts fixed. If permitted to be continued, it would amount to fresh commission of the offence for which the compounding was done. The State Governments which have not yet withdrawn the notifications shall do it forthwith.
17. The Constitutional validity of Sections 194 and 200 of the Motor Vehicles Act, 1988 enabling penal action for violation of provisions of Sections 113 to 115 of the Act was challenged in
For violation of Sections 113 - 115, Section 194 accords penal sanction and on conviction for violation thereof, the section sanctions punishment with fine as has been enumerated hereinbefore. The section would give guidance to the State Government as a delegate under the statute to specify the amount for compounding the offences enumerated under Sub-section (1) of Section 200. It is not mandatory that the authorised officer would always compound the offence. It is conditional upon the willingness of the accused to have the offences compounded. It may also be done before the institution of the prosecution case. In the event of the petitioner''s willing to have the offence compounded, the authorised officer gets jurisdiction and authority to compound the offence and call upon the accused to pay the same. On compliance thereof, the proceedings, if already instituted, would be closed or no further proceedings shall be initiated. It is a matter of volition or willingness on the part of the accused either to accept compounding of the offence or to face the prosecution in the appropriate court. As regards canalisation and prescription of the amount of fine for the offences committed,. Section194, the penal and charging section prescribes the maximum outer limit within which the compounding fee would be prescribed. The discretion exercised by the delegated legislation, i.e., the executive is controlled by the specification in the Act, It is not necessary that Section 200 itself should contain the details in that behalf. So long as the compounding fee does not exceed the fine prescribed by the penal section, the same cannot be declared to be either exorbitant or irrational or bereft of guidance.
18. In
Section 207 of the Act of 1988 empowering a police officer or an officer authorised by the State Government to seize a motor vehicle, if he has a reason to believe that the vehicle is being driven within registration or without permit or by a person who has no driving licence or plying on unauthorised route and to release the vehicle only after satisfying that the vehicle complies with requirement of the provisions, is valid. A reading of Section 207 clearly shows that sufficient guidelines and norms have been laid down for exercise of powers by the concerned authorities u/s 207 of the Act. The power has to be exercised only in certain circumstances and on existence of objective facts. The police officer or authorised person must have reason to believe about the existence of objective facts. Again in the case of abuse of power or misuse of powers in the additional cases, aggrieved party may always approach the higher authority or the appropriate Court for the appropriate relief. If the police officer or the authorised officer is taken away of his powers to detain the vehicle, it would lead to absurdity and frustrate the object and intention of the legislature. If a police officer on the spot is satisfied that a person driving the vehicle is less than eighteen years of age and, as such, he cannot drive the vehicle in public place. The police officer should exercise the discretion in detaining the vehicle and should not permit such a person to drive the vehicle in a public place. Further, the legislature has conferred power upon the authorities by enacting sub-Section (1) of Section 207 and also a proviso. There is no reason to believe that the authorities will not keep the proviso to sub-section (1) in view while exercising the powers under sub-section (1) of Section 207. Thus it cannot be said that the power Section can be misused by the police officer because if a power has not been properly exercised in a given case, it is always open to the aggrieved party to challenge that action in accordance with law. Moreover, the provisions of Section 130 of the Act do not curtail the power of the police officer or other authority vested by Section 207 of the Act. Thus because of some procedural change, it cannot be said that there is material change in Section 129-A of the old Act, substituted by Section 207, the validity of which has been upheld by Supreme Court.
19. In Paramjit Bhasin''s case, the Supreme Court held that overloading causes significant damage to the road surface and also cause pollution through auto-emissions. Overloaded vehicles are safety hazards, not only for themselves, but also for other road users. The object for which maximum permissible weights have been fixed is crystal-clear. The Apex Court further held that any notification issued permitting the operators to ply the vehicle after compounding the offence amounts to continuation of an offence and therefore, directed the State Governments to withdraw the notification forthwith.
20. Therefore, once penal action is attracted by violating Sections 113 and 194 of the Motor Vehicles Act, the Police Officer has got every authority to insist the driver or the owner of the vehicle or trailor to produce all necessary documents to take proper action. The scheme of the Act is to maintain the use of the vehicle in the manner which does not imperil public safety and therefore, the police officer is empowered to take all such measures to enforce the penal provisions under the Act.
21. It is manifestly clear that violation of the provisions, Sections 113 to 115 is an offence and penal action is provided u/s 194 of the Act. Therefore, the Police Officers are empowered to demand production of certain documents to check whether there is any commission of any violation of the provisions of the Act and to take proper action. Further, the power to demand production of documents, such as, permit, R.C. Book, vehicles'' Insurance and Driving Licence and impound the same in certain situations are set out in Section 206 of the Act and the Police Officers are also empowered to seize the vehicle in certain circumstances mentioned in Section 207 of the Act. The Police Officer or any person authorised in this behalf by the State Government, if he has reason to believe that the Motor Vehicle has been or is being used in controvention of any condition of such permit or of Section 3 or Section 4 or Section 39 or without the permit required by sub-Section (1) of Section 66, has got power to demand production of the records.
22. As overloading is an offence u/s 194 of the Act, it can be compounded u/s 200 either before or after the institution of the prosecution. Section 114 of the Motor Vehicles Act does not restrict or take away the power of the Police officer to impound the documents u/s 206 of the Act or detain the vehicle with the Registration Certificate, permit etc u/s 207 of the Act. The above said provisions are distinct and they are enforceable by the Police Officer or any such officer authorised by the State Government. In view of the above discussion, the un-reported judgement cited by the learned counsel for the petitioner does not merit consideration. In the result, the Writ Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are also closed.
