Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 367 (HP)

Court On Its Own Motion v. Tassi Palzor

2012-07-02

KULDIP SINGH

body2012
ORDER : Kuldip Singh, J. This judgment shall dispose of Cr.MMO No. 103 of 2011 and Cr.MMO No. 104 of 2011, which have been registered on suo motu action of this Court. Cr.MMO No. 103 of 2011 has arisen out of order dated 19.2.2011 passed by Chief Judicial Magistrate, Mandi in case No. 398-17 of 2011 imposing fine of Rs. 700/- and releasing the vehicle No. BP-2-2335 Land Cruser Jeep in favour of respondent No.1. Cr.MMO No. 104 of 2011 has arisen out of order dated 15.2.2011 passed by Chief Judicial Magistrate, Mandi in case No. 399-17 of 2011 imposing fine of Rs. 2,000/- and releasing the vehicle No.BP-1A-8399 in favour of respondent No.1. Cr.MMO No. 103 of 2011: 2. The facts in brief are that on 10.2.2011 Head Constable Rajesh Kumar, Police Post, Riwalsar alongwith other Police staff were checking traffic at Riwalsar Bazar, the vehicle bearing No. BP-2-2335 Land Cruser Jeep, came from Mandi side. The vehicle was signaled to stop and the driver of the said vehicle was asked to produce the driving licence, registration certificate, insurance and any authorisation to drive in India. The vehicle was challaned and taken into police possession under the Motor Vehicles Act, 1988 (for short Act) and the vehicle was kept at Police Post, Riwalsar. The respondent No.1 prayed to Chief Judicial Magistrate, Mandi for releasing the vehicle and the vehicle was released in favour of respondent No.1 by the Chief Judicial Magistrate, Mandi on 19.2.2011 by imposing Rs. 700/- fine. The vehicle was not registered in India. 3. The respondent No.1 in the reply has submitted that one Sonam Tobgay in the middle of the year 2010 had come on pilgrimage to Riwalsar in his Toyota Land Cruser and while going back met with an accident and had to leave without his vehicle No. BP-2-2335 Toyota Land Cruser. The accident had taken place in June, 2010. The vehicle was left behind by Sonam Tobgay for repairs and thereafter the vehicle was parked in the garage in Monastery at Riwalsar. 4. On 10.2.2011 the respondent No.1 had taken out the vehicle from garage for washing on the information that owner of the vehicle was coming to collect the vehicle. The owner requested for cleaning and checking of the vehicle as it was lying parked for long time. 5. The challan was issued by traffic police under Section 207 of the Act. On 10.2.2011 the respondent No.1 had taken out the vehicle from garage for washing on the information that owner of the vehicle was coming to collect the vehicle. The owner requested for cleaning and checking of the vehicle as it was lying parked for long time. 5. The challan was issued by traffic police under Section 207 of the Act. The respondent No.1 appeared before the Chief Judicial Magistrate, Mandi and the vehicle was released by the Chief Judicial Magistrate, Mandi after perusing the documents produced by respondent No.1 on payment of fine of Rs. 700/- which was paid by respondent No.1. The vehicle is owned by Sonam Tobgay, who had come from Bhutan on pilgrimage. The vehicle is presently in the custody of Police Station, Manali. Cr.MMO No. 104 of 2011: 6. On 8.2.2011, Dy. S.P. (HQ) was on duty and checking the traffic at Riwalsar Bazar, the vehicle bearing registration No. BP-1A-8399 (Prado) came from Mandi side. The vehicle was signaled to stop, the respondent No.1 was driving the vehicle, he was asked to produce the documents of the vehicle. The respondent No. 1 failed to produce the registration certificate, insurance, driving licence, therefore, the vehicle was challaned and taken into possession under the Act. 7. The respondent No. 1 filed an application in the Court of Chief Judicial Magistrate, Mandi under Section 457 Code of Criminal Procedure, 1973 (for short Code) for releasing the vehicle. In the application, it was stated that the vehicle was registered in Bhutan. The respondent No. 1 was driving the vehicle at the relevant time. The police took into possession the vehicle under Section 207 of the Act. 8. It was also stated in the application that Chyozang Tashi is registered owner of the vehicle, who gave the vehicle to His Holiness Zigar Choktrul Rimpoche residing at Riwalsar, H.P. However, His Holiness Zigar Choktrul Rimpoche at the relevant time was residing at Bhutan and the vehicle was in the custody of the respondent No.1. In the application, it was claimed that Embassy of India in Bhutan had also issued authority letter to the Government of India to ply the vehicle in various States including Himachal Pradesh. The respondent No.1 prayed for releasing the vehicle in his favour. 9. The application was taken up by the Chief Judicial Magistrate on 9.2.2011 and was adjourned to 14.2.2011. The Chief Judicial Magistrate called the report. The respondent No.1 prayed for releasing the vehicle in his favour. 9. The application was taken up by the Chief Judicial Magistrate on 9.2.2011 and was adjourned to 14.2.2011. The Chief Judicial Magistrate called the report. It appears the Investigating Officer, Police Post, Riwalsar submitted report on 14.2.2011. In the report, it was stated that the vehicle was taken into possession on 8.2.2011 under Section 207 of the Act. The registration certificate of the vehicle was produced on 14.2.2011 by respondent No. 1 which was issued by Royal Government of Bhutan. As per registration certificate, Choyzang Tashi was the owner of the vehicle. The vehicle was not registered in India. The Special Power of Attorney of the vehicle was in favour of the respondent No.1. It was stated that the police has no objection if the vehicle was released in favour of the owner. On 15.2.2011 the Chief Judicial Magistrate imposed fine of Rs. 2,000/- and released the vehicle in favour of respondent No.1. 10. Heard and perused the record. The challans in both cases were prepared on proforma. In the challans under the details of the offence, it has been stated without documents vehicle is impounded u/s 207 M.V.Act. The Chapter IV of the Act is of Registration of Motor Vehicles. The Section 39 prohibits driving of the vehicle without registration under the Act. The Section 46 of the Act provides that subject to the provisions of section 47, a motor vehicle registered in accordance with this Chapter in any State shall not require to be registered elsewhere in India and a certificate of registration issued or in force under this Act in respect of such vehicle shall be effective throughout India. 11. The Section 207 of the Act provides seizure and detention of the vehicle, if the vehicle has been or is being used in contravention of 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 or 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. The sub section (2) of Section 207 further provides the owner or person incharge 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 the 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. The similar provision was earlier in Section 129-A of the Motor Vehicles Act, 1939. 12. The Section 139 (1) of the Act provides that the Central Government may, by notification in the Official Gazette, make rules prescribing the conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India; prescribing the conditions subject to which persons entering India from any place outside India for a temporary stay in India may drive motor vehicles in India. 13. It is not the case of the either side that under Section 139 of the Act, the Central Government has prescribed conditions subject to which motor vehicles brought temporarily into India from outside India by persons intending to make a temporary stay in India may be possessed and used in India or conditions subject to which persons entering India from any place outside India for a temporary stay in India may drive motor vehicles in India. It is not in dispute that both the vehicles bear registration of Bhutan. It is not the case of respondent No.1 in each case that vehicles were registered under the Act. In absence of registration of the vehicles under the Act, Section 39 was fully applicable. There was prima-facie violation of Section 39 and other provisions of the Act, therefore, police rightly invoked Section 207 of the Act. The Chief Judicial Magistrate released the vehicle in favour of respondent No.1 in each case by imposing fine of Rs. 700/- in case No. 398-17 of 2011 and fine of Rs. 2,000/- in case No. 399-17 of 2011. 14. In The Transport Commissioner, Ahdhra Pradesh, Hyderabad and another v. S.Sardar Ali and others AIR 1983 SC 1225 . The Chief Judicial Magistrate released the vehicle in favour of respondent No.1 in each case by imposing fine of Rs. 700/- in case No. 398-17 of 2011 and fine of Rs. 2,000/- in case No. 399-17 of 2011. 14. In The Transport Commissioner, Ahdhra Pradesh, Hyderabad and another v. S.Sardar Ali and others AIR 1983 SC 1225 . The Supreme Court has considered Section 129-A of the Motor Vehicles Act, 1939, Section 452 of the Code and has held:- "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. So far as the custody of the vehicle pending the conclusion of the case is concerned, the Court may either treat the arrangement made by the officer or person acting under Section 129-A as sufficient or may itself make further or other orders". The Supreme Court further held : "Thus, if the provisions of the Motor Vehicles Act are read in conjunction with the provisions of the Code of Criminal Procedure - and there is no getting away from the provisions of both the laws- it is seen that there is no lacuna whatsoever in regard to the proper custody and disposal of the motor vehicle seized, under Section 129-A of the Motor Vehicles Act. The custody of the vehicle in the hands of 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 he releases the vehicles on being satisfied that no offence has been committed or if he releases the vehicles on the offence being compounded, no further question arises. If, instead, he lays a complaint before the Court, the Court acquires instant jurisdiction over the vehicle to pass suitable orders". 15. In M.C. Mehta v. Union of India and others (1997) 8 SCC 770 , the Supreme Court has held as follows:- "One of the aspects which was considered at length by us was the need to find some stringent and effective measure to at least bring to a halt the danger posed to the public by the continued use of a motor vehicle which is not roadworthy or was being used/driven dangerously. We find that Section 207 takes care of that situation by conferring power on any police officer or other person authorised in this behalf to seize and detain the vehicle if he has reason to believe that the same has been or is being used in contravention of the specified provisions so as to pose a serious threat to the public. The object of enacting such a provision clearly is that such a vehicle cannot be continued to ply once it is found that it poses danger to the public because, in addition to punishing the guilty person for the contraventions committed earlier, it is also important and necessary to prevent any further danger to the public by letting the vehicle continue to ply on a public place". 16. The Supreme Court in State of Maharashtra and others v. Nanded-Parbhani Z.L.B.M.V. Operator Sangh (2000) 2 SCC 69 has held as follows :- "Bearing in mind, the aforesaid principles of construction of a 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 authorised to detain a vehicle, if he has reason to believe that the vehicle has been or is being used in contravention of Section 3 or Section 4 or Section 39 or without the permit required under 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". 17. In both the cases the vehicles were found plying in public place without documents and without registration under the Act. The Section 192 provides contravention of Section 39 of the Act punishable. The Section 196 of the Act provides punishment with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both for driving uninsured vehicle in contravention of Section 146 of the Act. 18. The vehicles were challaned for plying in public place without registration, insurance policy etc. The vehicles were taken into possession by the police under Section 207. It has not been submitted that respondent No.1 in each case produced registration certificate etc. 18. The vehicles were challaned for plying in public place without registration, insurance policy etc. The vehicles were taken into possession by the police under Section 207. It has not been submitted that respondent No.1 in each case produced registration certificate etc. of the vehicle under the Act and thereafter the Chief Judicial Magistrate after imposing fine, ordered release of respective vehicle in favour of respondent No.1 in each case. 19. It does not emerge from the impugned order in each case that the Chief Judicial Magistrate had considered the implication of lack of registration of the vehicle under the Act as well as want of insurance policy. It appears the Chief Judicial Magistrate in routine imposed fine and ordered release of vehicle in favour of respondent No. 1 in each case. The Chief Judicial Magistrate did not consider that the vehicles were not registered under the Act and without registration under the Act, the vehicles could not ply at public place. The Chief Judicial Magistrate did not consider the release of the vehicle in favour of respondent No.1 in each case subject to production of registration certificate of the vehicle under the Act within certain time frame. 20. It is not clear from the order dated 19.2.2011 passed in case No. 398-17 of 2011 and order dated 15.2.2011 in case No. 399-17 of 2011 that the fine imposed is for the violation of both Sections 192 and 196 of the Act or not. The impugned orders are outcome of total non-application of mind and, therefore, are not sustainable. 21. In view of above, order dated 19.2.2011 passed in case No. 398-17 of 2011 and order dated 15.2.2011 passed in case No.399-17 of 2011 are set-aside. The parties through their counsel are directed to appear before the Chief Judicial Magistrate, Mandi on 1.8.2012, who shall dispose of both the cases in accordance with law in the light of observations made above. The petitions stand disposed of on above terms, so also the pending application, if any. The records of both the cases be sent back immediately to the Chief Judicial Magistrate, Mandi.