MUNALAL SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner was the driver of a public carrier vehicle who was in interstate movement alongwith his public carrier vehicle. His vehicle was stopped and papers demanded. Allegedly, he was unable to produce all papers. Thus, the vehide was detained by the Enforcement Officer. For five days, the vehicle remained detained. Neither any prosecution was launched for a motor vehicle offence nor any proceeding recorded and initiated for compounding of offences alleged to have been committed. A complaint was then made to the State Transport Commissioner with regard to illegal detention of the vehicle. Immediately on the complaint being made, the Enforcement Officer accepted the compounding fee of Rs. 5,500.00 and released the vehicle which had been detained for over five days. The petitioner then moved this Court making a grievance that invariably vehicles are arbitrarily detained and neither prosecution launched nor offences compounded. It causes them loss and unless illegal demands of Enforcement Officers are satisfied even compounding money is not accepted for a long time. They ply public carrier commercial vehicle and everyday 'sdetention causes them irreparable loss apart from likelihood of damage to the goods being caused. There is a circular issued by the State Government dated 28.6.2000 (Annexure -B to the counter affidavit) wherein it is provided that if the vehicle is detained for any alleged motor vehicle offence by any police officer or Enforcement Officer, such detention cannot exceed twenty four hours. Either within twenty four hours, the matter must be compounded or on failure to complete process of compounding within twenty four hours, the matter must be immediately reported to the Criminal Court for prosecution but in either case, the Enforcement Officer cannot detain the vehicle beyond twenty four hours. Petitioner submits that though this is a Circular of the State Government and is binding on its officers including the Enforcement Officers as notified by the State Government under the Motor Vehicles Act, it is obeyed more in breach than in substance, if not totally ignored and consigned to the dustbin by the Enforcement Officers. The present case is illustrative of the same. It is submitted that unless the arbitrary power to indefinitely detain vehicles is not restricted, the power would be abused more than used leading to harassment to the public and undue enrichment to the Officers. In the counter affidavit, it is pointed out by the State that even the Transport Commissioner has found that whenever raids had been conducted in the places where Enforcement Officers are operating, substantial unaccounted money have been recovered. It is also stated that request of the State Transport Commissioner to depute officers for surprise raids have been turned down by the State on the plea that they have insufficient staff. At this juncture, the Court could only observe that when it comes to coercing and extracting money, as noticed by the Transport Commissioner, there appears to be no shortage of officers but when it comes to nefarious activities, the State takes the plea of lack of officers. This is regrettable in a democratic society. In substance, the petitioner wants a direction from this Court that the Circular issued by the State be obeyed and enforced unscrupulously for if it is not so done then the power will not be used but abused rampantly as is happening.

(2.) IN my view, it is first necessary to note some of the features of the Act and the fact which would now show that the grievance of. the petitioner is not unfounded. The Motor Vehicles Act provides for penalties. The penalties under the Act are only imposable by Criminal Courts. No administrative/executive authority under the Act including Enforcement Officers have the authority to impose any penalty. The provisions with regard to imposition of penalty confers jurisdiction to do so only on Criminal Courts. Therefore, one thing is clear that if a motor vehicle offence is committed, it should ordinarily be immediately reported for trial before a Criminal Court. The authorities after detaining the vehicle cannot sit over the matter ad inifinitum and use the detained vehicle with goods loaded thereon as a ransom property. I say so because a reference to Section 132 of the Act would show that the power to detain the vehicle is limited to twenty four hours. It is obviously with reference to the said provisions, the State Government has issued the Circular. Detention of a vehicle by an Enforcement Officer beyond twenty four hours would then per se be wholly without jurisdiction. Further, the provision to compound is to be found in Sec. 200 of the Act. This provision clearly provides that either before or after prosecution is instituted, a person may compound the offence alleged to have been committed. Therefore, it is not necessary to detain the vehicle awaiting compounding because if there is no compounding within twenty four hours, the matter must be forwarded to Criminal Court for prosecution and even when prosecution is instituted, the person has two options. Either he may plead guilty and pay the fine on the same very day when the prosecution is instituted and take the vehicle and go away or he may approach for compounding and get an order of compounding which would effectively close the criminal prosecution take his vehicle and go away. These provisions are apparently more abused than used lawfully. It is keeping in view those provisions that the State Government has directed that Enforcement Officers cannot detain the vehicle beyond twenty four hours but the present case is clearly illustrative of the fact that how the powers are abused. The application of the petitioner before the Transport Commissioner before the vehicle was released speaks volume. The petitioner complained to the authorities after three days of his vehicle being seized and detained that detention was obviously without jurisdiction and there was no justification for the same. In the counter affidavit, the defence of the detaining officer has been disclosed. That, on the face of it, is a spacious plea. It is said that he detained the vehicle because the driver said he wanted to compound but did not have the money to deposit which take time to be arranged. On the face of it this statement cannot stand the scrutiny for the reason that the petitioner by then had already made a complaint to the Transport Commissioner about the illegal detention of the vehicle and it is once the Transport Commissioner became active that money was taken, compounding order passed and the vehicle released which took five days. All this was contrary to the scheme of the Act. I, therefore, hold that if a vehicle is detained by the police and/or Enforcement Officer for an alleged motor vehicle offence either the matter should be compounded and vehicle released within twenty four hours or if for any reason whatsoever compounding is not possible then immediately a prosecution has to be launched. In either event, the vehicle has to go out of the hands of the Enforcement Officer within twenty four hours. No Enforcement Officer can hold on to the vehicle beyond twenty four hours. After twenty four hours, the vehicle has to be in judicial custody pursuant to prosecution launched where the person would have an option to either plead guilty, pay the fine, take the vehicle and go or approach for compounding, get compounding done and get the vehicle released or contest the matter praying for an interim relief of the release of vehicle from the Criminal Court. It is only if this scheme is unscrupulously obeyed and followed, the harassment to the citizen can end otherwise the power which is not open to abuse would be abused.

(3.) HAVING considered the matter as above, I direct accordingly. I direct the Secretary -cum -State Transport. Commissioner to see that the scheme of law as indicated above is not only followed but enforced unscrupulously for it is this scheme which satisfies the citizens from the vagaries of officers and the abuse of the power conferred on them. It is this scheme which makes the provisions reasonable and not open to challenge but if the scheme is not adhered to that would then expose the provisions to challenge on grounds of unreasonableness.