KISHAN LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This Criminal Misc. Petition under Section 482, Cr.P.C., is directed against the order dated 23-2-98 passed by the Learned Judicial Magistrate, Special Mobile Court, Hanumangarh in Criminal Case No. 81/98 whereby the learned Magistrate dismissed the application moved by the accused-petitioner to release Jeep No. RJ-31-C-1072 which was seized by the District Transport Officer, Hanumangarh on 18-2-98 at 2 P.M. at Makkasar at the time of spot checking and the accused-petitioner was found while carrying 7 passengers after realizing fare at the rate of Rs. 4/- per head. The accused-petitioner, admittedly, being the registered owner of the vehicle, did not have any permit to operate his vehicle for transportation of passengers and the same being registered as a private vehicle for his personal use, since the accused-petitioner did not obtain any permit required by the relevant provisions of the Motor Vehicle Act, 1988 (for short 'the Act') and, besides, he had also not paid road-tax and so, in absence of any permit/special permit or authority and non-payment of tax, he was found to have contravened the provisions of Sections 66 and 192-A of the Act and hence, while preparing a separate detailed checking memo, the D.T.O. seized the vehicle and produced the same before the trial Court along with a criminal complaint for prosecution of the accused-petitioner for commission of the aforesaid offences where at the present proceedings are said to be as yet pending. It was requested that since he was the registered owner of the vehicle and he never used the same for transportation of passengers and instead he was making its personal use only and therefore, there did not arise any question of any road-tax or special road-tax being payable to the State and the vehicle was no longer required by any Government agency and hence the same be delivered on 'supurdginama' to the accused-petitioner but on the face of objection from the transport authorities that road-tax/special road-tax were also payable by the accused-petitioner and unless the same were cleared in view of the Circular No. 4/P-1 dated 28-7-75 as also affirmed in similar S. B. Criminal Petition No. 675/95-State v. Mohd. Nisar decided on 17-7-97, the vehicle so seized and produced before the learned trial Magistrate could not be delivered on 'supurdginama' to the accused-petitioner in case any tax payable in respect thereof stood outstanding against the person so claiming custody of the vehicle and hence the application of the accused-petitioner stood dismissed giving rise to the present petition.

(2.) At the out set, it may be observed that since the transport authorities raised an objection before the trial Court and the same was reiterated before this Court by the learned P.P. on behalf of the State specially the transport authorities and, therefore, it was requested that the full particulars of outstanding dues or any amount, payable to the transport authorities as tax, on whatever basis or under any head, be submitted before the Court but the transport authorities did not come forward with any claim except the submission that since the vehicle in question was so checked at the spot and the accused-petitioner, being the registered owner of the vehicle, was found to have charged Rs. 4/- from each of the seven persons travelling in his jeep and, therefore, the accused-petitioner was caught red-handed while carrying and transporting passengers charging fare and he could not have, in absence of a valid permit, used the vehicle as a taxi to be plied for carriage/transportation of passengers on hire and hence he is liable to pay road-tax or the special road-tax to be assessed by the departmental authorities for the questioned incident reported to the trial Court and no other dues are pending against the accused-petitioner.

(3.) The learned counsel for the petitioner vehemently submitted that the accused-petitioner is vehemently denying his liability for having charged any hire or fare as alleged by the prosecution from any person and instead the vehicle being duly registered with the transport authorities in the name of the accused-petitioner who was also in custody and charge of the vehicle at the time of its checking and seizure and, therefore, when the alleged incident is a subject matter of enquiry/trial by the trial Court and the transport authorities have not so far been able to submit either before the trial Court or even before this Court that even a paisa was outstanding against the accused-petitioner on account of his liability for payment of road-tax and, therefore, the transport authorities have mala fide opposed application of the petitioner and, as a result, the vehicle is rotting and being damaged in absence of being delivered to the accused-petitioner who is its registered owner. Therefore, his submission is that, presently, the accused-petitioner has not been held liable for payment of any amount on account of his liability for payment of road-tax and, in its absence, pre-judging the decision of the trial Court, the vehicle is being detained for an indefinite period whereas looking to the likely damage to be suffered by the vehicle, the same ought to have been released on appropriate terms and conditions in favour of the accused-petitioner but, by refusing the same, the impugned order of the learned trial Court has resulted in miscarriage of justice occasioning a failure warranting quashing of the impugned order.