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2001 DIGILAW 612 (CAL)

SUSHIL KUMAR DUTTA v. STATE OF WEST BENGAL

2001-09-21

PRABIR KUMAR SAMANTA

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PRABIR KUMAR SAMANTA, J. ( 1 ) THE petitioner is the owner of an ambassador car being No. WBD-9652 which is driven by his driver who has a valid licence. The said car at the relevant point of time was issued with "pollution under control" certificate by the Superway Service Station at P-327, C. I. T. Road, Calcutta-700 054, an agency authorised by the State Government to issue a "pollution under control" certificate. The said certificate was issued on November 19,1996 and was valid till May 18, 1997. ( 2 ) THE petitioner filed this writ petition on the allegation that on 31st december, 1996 at about 2 p. m. , while he was travelling in his car, the same was intercepted at the crossing of Vivekananda Road and Girish Park by the traffic Police Officer. The said officer asked the petitioner to show the Smoke emission Testing Report and the "pollution under control" certificate. The petitioner accordingly produced the said certificate as issued under the provisions of the West Bengal Motor Vehicle Rules, 1989 as above. The said officer further checked the smoke emission of the said car with his instrument and informed the petitioner that the pollution level of the smoke emitted by the car was much above the notified emission standard and consequently because of the alleged offence committed under section 190 (2) of the Motor Vehicles act, 1988 the same was compounded upon realisation of fine of Rs. 750/- under section 200 of the Motor Vehicles Act, 1988 from the petitioner. Sub-Rule (3) of rule 258 of the West Bengal Motor Vehicles Rules, 1989 provides as under : "pollution under control" certificate- (A) Every motor vehicle will have to obtain a "pollution under control" certificate showing that the smoke emission level from that vehicle is within the limit prescribed hereinbefore. A "pollution under control" certificate will remain valid for a period of six months from the date of its issue. (b) A "pollution under control" certificate issued only by a State Government department or an agency authorised by the State Government to test smoke emission level in the Form prescribed in this behalf will be accepted for the purpose of these rules. (c) Notwithstanding the provisions contanied in clause (a), the authority, if it so thinks fit, may direct a vehicle to be tested in spite of its having a valid "pollution under control" certificate. (c) Notwithstanding the provisions contanied in clause (a), the authority, if it so thinks fit, may direct a vehicle to be tested in spite of its having a valid "pollution under control" certificate. (d) Agencies authorised by the State Government to test smoke emission level will charge such fees for different categories of vehicles as will be prescribed by the Government by order from time to time. (e) The State Government may, by issue of an order, delegate the power to the Director, Public Vehicles Department, for the city of Calcutta, or to the District Magistrates for their respective districts or to any other officer subordinate to them as the State Government may think fit, to authorise an agency to test smoke emission level. ( 3 ) SUB-SECTION (2) of section 190 again reads under :"any person who drives or causes or allows to be driven, in any public place a motor vehicle, which violates the standards prescribed in relation to road safety, control of noise and air pollution, shall be punishable for the first offence with a fine of one thousand rupees and for any second or subsequent offence with a fine of two thousand rupees. " ( 4 ) UPON reading of the aforesaid provisions of the said Rules it is apparent that once certificate for "pollution under control" is issued by an agency authorised by the State Government there cannot be any scope for holding that a person, who drives or causes or allows to be driven in any public place a motor vehicle which has been issued with such "pollution under control" certificate is guilty of the offence of violating the standards prescribed under the said Rules in relation to air pollution unless it is established that such certificate was issued by such agency fraudulently at the instance of the person who is responsible for the maintenance of the said vehicle. Otherwise the mens rea for violating such standards in relation to air pollution would be missing. Because the person responsible for maintenance of the vehicle is only obliged to get his vehicle tested for smoke emission by the authorised agent of the state Government. If such level of smoke emission does not exceed the level as prescribed under the aforesaid Rules then only the said agent would issue such certificate which would be acceptable by the authority concerned. If such level of smoke emission does not exceed the level as prescribed under the aforesaid Rules then only the said agent would issue such certificate which would be acceptable by the authority concerned. The person who is responsible for the maintenance of the vehicle is not under the Rules obliged to keep on checking the level of smoke emission of his vehicle every clay. Because under the said Rules such certificate is valid for a particular period from the date of its issue. Unless there is some exceptional circumstances there would be a presumption that the vehicle would maintain the standard during the period of validity of the said certificate. The said person is also not in a position by any possible means to verify the genuineness of such certificate issued by the agent of the State Government. Therefore, unless it is established beyond doubt that such a certificate was issued for the vehicle in collusion by and between the person responsible for maintenance of the said vehicle and the agent of the State Government there cannot be any offence for violating the standard prescribed in relation to air pollution by such a person during the period of validity of the said certificate. ( 5 ) AT the same time considering the present polluted condition of the city it would be against the greater interest of the public life if authority concerned is denuded with the power to check the vehicles even with valid certificates for the purpose of testing its level of smoke emission. If upon such check it is found that in spite of validity of the said certificate the vehicle in question does not conform to the standard of emission then in the absence of any proof that such a certificate was obtained by the said person either in collusion with the agent or fraudulently there cannot be any punishment for the offence under the provisions of sub-section (2) of section 190 of the said Act. The said authority shall at best compel the person responsible for maintenance of the vehicle to get the level of smoke emission within the limit by a particular period of time and to report compliance thereof to the authority concerned. The said authority shall at best compel the person responsible for maintenance of the vehicle to get the level of smoke emission within the limit by a particular period of time and to report compliance thereof to the authority concerned. ( 6 ) SO, in all these views, I am of the opinion that the authority concerned acted absolutely illegally by holding the petitioner guilty of violating the standards prescribed in relation to air pollution. Accordingly, the compounding of the offence by the authority concerned and thereby compelling the petitioner to pay a fine of Rs. 750/- were absolutely illegal. The respondent authorities are therefore under obligation to refund the same to the writ petitioner. ( 7 ) THIS writ petition is accordingly disposed of with a direction upon the deputy Commissioner of Police, Calcutta, Traffic Department to refund to the writ petitioner the aforesaid amount of Rs. 750/- as realised from the writ petitioner by way of imposition of fine for alleged commission of offence under sub-section (2) of section 190 of the said Act forthwith as and when demanded by the writ petitioner. Writ petition disposed of with direction.