Posted On by &filed under Calcutta High Court, High Court.


Calcutta High Court
Dipankar Dutta vs State Of West Bengal & Ors. on 1 January, 1800
Equivalent citations: (1998) 3 CALLT 304 HC
Author: S Baneijea
Bench: S Banerjea


JUDGMENT

S. Baneijea, J.

1. An important question of law, with which all drivers of non-transport vehicles and the police officers are concerned, has come up for consideration before the court in the instant case, namely, whether a driver of a non-transport vehicle is legally obliged to produce certificate of registration of his vehicle and the certificate of insurance for examination on the spot on demand made by a police officer in the uniform and whether his failure to do so would amount to an offence for which police officer can penalise him by seizing the licence and imposing fine under the provisions of Motor Vehicles Act.

2. The petitioner, who is a practising advocate of this Hon’ble Court and is registered owner of a motor cycle bearing Registration No. WRI-6704, on 10th August, J996 along with his wife and daughter was proceeding to Salt Lake riding on the said motor cycle when he was intercepted by a traffic sergeant being the respondent No.6 and was asked to produce his driving licence, the certificate of pollution under control for his examination, which

was admittedly produced by the petitioner. The petitioner thereafter was asked to produce by the said traffic sergeant the certificate of registration, the insurance certificate and the tax token. Although such tax token was produced by the petitioner he not being in possession of the certificate of registration and the insurance certificate at that point of time was unable to produce the same on demand by the respondent, whereupon he was informed by the said traffic sergeant that the petitioner had contravened section 130(3) of Motor Vehicles Act 1988 and was, thus, liable to be penalised for having committed offence under the said Act. It has been alleged in the writ petition similar treatment was meted out to a scooterist who was also intercepted and was unable to produce the insurance certificate and the registration certificate on demand. It is the case of the petitioner that although thereafter he disclosed his identity before the traffic sergeant, namely, he is a practising advocate of this Hon’ble Court and informed him that under the relevant provisions of the Act he cannot be penalised for non-production of insurance certificate and registration certificate on spot but only after failure to do so within a certain time to be fixed by the said police officer, the same was of no avail. It is alleged that the petitioner was meted out by the said traffic sergeant with rude and impolite behaviour and he was absolutely arrogant and was not willing to submit to any reason and abused the entire legal profession and imposed penalty on the petitioner and seized his driving licence. From a copy of the seizure list handed over to him, it appears the same was really a compound slip wherein the petitioner was charged with committing offence under section 130(3) of the said Act read with section 177 thereof. It was further indicated in the said slip that the prayer for being excused and for compounding the offences having been made under section 200 of the said Act, the same would stand compounded under the said seclion on payment of Rs. 100 within 15 days failing which prosecution would be filed in the appropriate court of law (Annexure ‘B’ to the writ petition).

3. Thereafter the present writ petition was moved after giving notice to the respondents.

4. Although, even at the admission stage, being prima facie satisfied that under the provisions of section 130(3) of the Motor Vehicles Act a driver of a motor vehicle is entitled to 15 days’ time to produce such insurance certificate and registration certificate before the appropriate authority, if he is unable to produce the same on demand not being in possession thereof and although the learned counsel appearing for the respondents submitted that the driving licence of the petitioner was seized by the said traffic sergeant by mistake and by an interim order this court directed to return of the driving licence forthwith which was complied with by the respondents, the submission of both the parties that the question of law involved the case, being an important one, which may concern every driver of a non-transport vehicle and a police officer on traffic duty every day and therefore, there should be a pronouncement by the court on such question of law for the benefit of all, was accepted by this court. The parties thereafter exchanged their affidavits and both the learned counsel appearing for the petitioner as also the learned Government pleader appearing for the State addressed the court in full.

5. Examination of the relevant provisions of the Motor Vehicles Act, other relevant Act and Rules made thereunder will indicate that a driver of a motor

vehicle is always obliged while driving a vehicle to keep the driving licence with him and to produce the same on demand by any police officer in uniform or by any other appropriate authority on the spot and his failure to do so would amount to an offence under the provisions of the Motor Vehicles Act, but his failure to produce the insurance and registration certificates on such demand on the spot would not amount to an offence as he will be entitled to 15 days time for production of the same before the appropriate officer and only his failure to priduce the same within such time would amount to contravention of the provisions of the Act.

6. Under section 130(1) of the Motor Vehicles Act 1988 driver of a motor vehicle in any public place is obliged on demand by any police officer in uniform to produce his licence for examination provided he may if his licence has been submitted to or has been seized by an officer or authority under the Motor Vehicles Act or any other Act only of a licence receipt or other acknowledgement issued by such officer or authority in respect thereof and thereafter produce the licence within such period and is such manner at the Central Government may prescribe. Attention of the court has also been drawn to Rule 32 of the Rules of the Road Regulations 1989 (hereinafter referred to as the said Regulations) which provides that a person driving a vehicle shall always carry with him a driving licence, certificate of registration, certificate of taxation and certificate of insurance of the vehicle and in case Of transport vehicle the permit and fitness certificate also. Clause (ii) of the said Rules provides that the said driver on demand by police officer in uniform or an officer of the motor vehicle department in uniform or any other officer authorised by the Government produce the documents for inspection. An examination of the aforesaid provisions of the Act and the said Regulations, therefore, makes it absolutely clear that it is mandatory for every driver of a vehicle to carry with him his driving licence and he is legally obliged to produce the same on demand by a police officer in uniform for his inspection. Consequently, failure to produce lincence on such demands will amount to contravention of aforesaid provisions of the Motor Vehicles Act 1988.

7. So far as the certificate of registration and insurance are concerned, the legal position, however, appears to be different.

8. Section 39 of the Motor Vehicles Act 1988 prohibits any driver of a motor vehicle to drive a vehicle and owner of a motor vehicle to permit any one to drive his vehicle in a public place or any other place unless the concerned vehicle is registered in accordance with Chapter IV of the Act and carries a registration mark displayed in the prescribed manner. Section 146(1) of the Act prohibits all persons to use a vehicle except as a passenger of a motor vehicle in a public place unless a vehicle is insured as per the requirements of Chapter (XI) and section 147(3) of the Act provides that an insurance policy shall be of no effect for the purpose of Chapter (XI) unless and until a certificate of insurance has been issued by the insurer in the prescribed form.

9. A combined reading of the aforesaid provisions of the Act makes it clear that a vehicle cannot be driven or be used in a public place unless the same is registered in the prescribed manner and is also insured for which an insurance certificate has to be issued by the insurer.

10. The aforesaid provisions of the Act, however, do not provide that a driver of the vehicle is required to be in possession of such registration

certificate and insurance certificate while driving the vehicle and to produce the same on demand by a police officer.

11. Section 130(3) of the Act before its 1994 amendment provided that the owner of a motor vehicle (other than a vehicle registered under section 60) or in his absence the driver or other person in-charge of the vehicle shall on demand by a registering authority or any person authorised in his behalf by the State Government, produce the certificate of registration and the certificate of insurance of the vehicle.

12. Sub-section (4) of section 130, however, provides inter alia, that if the certificate of registration or permit referred to in sub-section (3) are not in possession of the person to whom such a demand is made, it shall be sufficient compliance with the section if such person produces the permit, such certificate within such period and in such manner as the Central Government may prescribe, to the police officer or authority making the demand. Rule 139 of the Central Motor Vehicle Rules prescribes the manner and the period relating to the production of such documents.

13. A combined reading of sub-section (3) and sub-section (4) of section 130 of the Act (prior to its 1994 amendment) makes it absolutely clear that on demand by a registering authority or any person authorised in such behalf by the State Government, to produce the certificate of registration and the certificate of insurance, the owner of a vehicle or in his absence the driver or other person-in-charge of the vehicle unable to produce such certificates not being in possession thereof, they will be entitled to produce the same within the period and the manner prescribed in aforesaid Rule 139 of the Central Motor Vehicle Rules and the same would amount to sufficient compliance with the provisions of sub-section [3) of section 130 of the Act.

14. It is pertinent to note in this connection that unlike sub-section (1) of section 130, under which it is obligatory for a driver of motor vehicle to produce his driving licence on demand by any police officer in uniform, in sub-section (3) of the said section the legislature was contemplated demand for production of registration and insurance certificate not by a police officer in uniform, but by the registering authority or by any person authorised in such behalf by the State Government.

15. The learned Government pleader appearing for the respondents has not been able to produce before this court any document to show that for the purpose of sub-section (3) of section 130 of the said Act a police officer has also been authorised by the State Government to demand production of insurance certificate and certificate of registration.

16. But since sub-section (4) of section 130 provides that production of such documents within the prescribed period to the police officer or authority making the demand would amount to sufficient compliance of sub-section [3), in my view, under the provisions of sub-section (3) of section 130 of the said Act such demand can also be made by a police officer.

17. Sub-section (2) and sub-section (3) of section 130 of the Motor Vehicles Act 1988 have since been amended by section 39 of the Motor Vehicles Amendment Act of 1994.

18. Under sub-section (3) of section 130 as amended by the said amending Act now, only the officers of the Motor Vehicles Department authorised in

this behalf can demand for production of the certificate of insurance and if such certificate cannot be produced instantly due to non-possession of the same, such certificate or its photo copy is to be produced within 15 days in person or through registered post to the officer who demanded it. Subsection (4) of section 130 of the Act, however, has not been amended by the said amending Act as a result whereof apparently production of such documents within 15 days time as prescribed by Rule 139 of the Central Motor Vehicles Rules before the appropriate authority demanding such documents or police officer would amount to sufficient compliance of subsection (3) of section 130 of the Act.

19. But since the amended sub-section (3) of section 130 now specifically empowers only officer of the Motor Vehicles Department authorised in this behalf to make such demand for production of insurance certificate, under sub section (3) a police officer cannot demand for production of insurance certificate and the question, therefore, for production of the same before a police officer making such demands under sub-section (4) of section 130 of the said Act cannot arise.

20. This, however, does not mean that a police officer is not entitled to under any of the provisions of the Motor Vehicles Act to ask for production of insurance and registration certificate.

21. Section 158 of the Motor Vehicles Act 1988 provides that any person driving a Motor Vehicle in any public place shall on being so required by a police officer in uniform authorised in this behalf by the State Government shall produce the certificate of insurance and registration and driving licence and in the case of transport vehicle also the certificate relating to use of the vehicle.

22. Sub-section (2) of section 158 provides if, where owing to the presence of a motor vehicle in a public place an accident occurs involving death or bodily injury to another person, the driver of the vehicle does not at that time produce the certificate, driving licence and permit referred to in sub-section (1) of section 130 of the said Act to a police officer, he shall produce the same at the police station at which he makes the report required by section 134 of the Act.

23. Sub-section (3( of section 158 provides specifically that no person shall be liable to conviction under sub-section (1) or sub-section (2) by reason only of the failure to produce the certificate of insurance, if within 7 days from the date on which its production was required under sub-section (1) or as the case may be from the date of occurrence of the accident, he produces the certificate at such police station as may have been specified by him to the police officer who required its production or as the case may be to the police officer at the site of the accident or to the officer-in-charge of the police station at which he reported the accident.

24. It will thus, appear from the aforesaid provisions of section 158 of the Act that non-production of the insurance certificate under sub-section (1) or sub-section (2) of the said section on demand by a police officer will not amount to an offence within the meaning of the said provisions if the same is produced before the police officer within 7 days from his demand or date of accident as the case may be.

25. A combined reading of amended sub-section (3), sub-section (4) of section 130 with sub-sections (1), (2) and (3) of section 158 of the Act reveals that failure to produce a registration certificate or an insurance certificate on demand by a police officer under the Motor Vehicles Act 1988 will not amount to an offence at all if the same is produced before the police officer or the appropriate authority within the time specified in sub-section [4) of section 130 or sub-section (3) of section 158 of the Act. It further reveals that a police officer has no further power to demand production of insurance certificate or registration certificate under section 130(3) of the Act, and such demand can only be made under section 158(1) of the Act; but as pointed out hereinbefore in view of sub-section (3) of section 158 of the Act failure to produce the same on the spot on demand would not amount to an offence if it is produced within the time stipulated therein.

26. I am not oblivious of the fact that sub-section (3) of section 158 gives time to a concerned driver for production of insurance certificate only and not registration certificate and if the insurance certificate is produced within such time, non-production of the same at the spot on demand would not amount to an offence either within the meaning of sub-section (1) or subsection (2); but sub-seclion (3) of section 158 does not speak of granting time for production of registration certificate when demand for same under subsection (1) of section 158 of the Act is made. But since such time has been provided for production of such registration certificate under sub-section (4) of section 130 as also for production of insurance certificate and such provisions has also been made under sub-section (3) of section 158 for insurance certificate and sub-section (3) of section 158 expressly does not prohibit grant of time for produclion of registration certificate, in my view, the reasonable interpretation of the aforesaid section would be that such time-frame would also be applicable in case of production of registration certificate and non-mentioning of the same in sub-section (3) of section 158 is an inadvertent omission. Rule 32(1) of the “Rules of the Road Regulations 1989” no doubt provides that a person driving a vehicle shall always carry with him his driving licence, certificate of registration, certificate of insurance of the vehicle and in case of tansport vehicle the permit and fitness certificate also and Rule 32(ii) of the said Rules provides that a person driving a vehicle was on demand by a police officer in uniform or all officers of the motor vehicle department in uniform or any other officer authorised by the Government produce the documents for inspection. But the said regulation having been framed by the Central Government in exercise of power of section 118 of the Motor Vehicles Act 1988, is the subordinate peace of legislation and, therefore, cannot override the aforesaid provisions of Motor Vehicles Act under which, as pointed out hereinbefore a driver of a non-transport vehicle is legally obliged to produce the insurance certificate and the registration certificate within the time stipulated in the aforesaid provisions of the Act before the appropriate authority and the failure of production of the same on demand by the appropriate authority by such a driver not being in possession thereof will not amount to an offence under the Motor Vehicles Act. The aforesaid provisions of Rule 32 of the said “Rules of the Road Regulations 1989”. therefore, being inconsistent with the aforesaid provisions of the Motor Vehicles Act 1988 the provisions made in the said Regulations 32(I) and (II) for carrying the certificate of registration, certificate of insurance in case of non-transport vehicle must be by a driver in case of a non-transport

vehicle and provisions for production thereof on demand by a police officer in uniform or any officer of the Motor Vehicle Department in uniform or any other officer authorised by the Government, must be interpreted to be directory and not mandatory the expression “shall” used in aforesaid Regulations 32(I) and (II) shall have to be read as may in case of a non-transport vehicle.

27. Under such circumstances, the impugned action of the respondent No. 6 being the concerned traffic sergeant to penalise the petitioner on his failure to produce the insurance certificate and registration certificate on demand at the spot, without giving him any opportunity for production of the same within the stipulated period is absolutely Illegal and wholly without jurisdiction and the same is, therefore, liable to be quashed.

28. The learned Government pleader has very fairly submitted that under the aforesaid provisions of the Motor Vehicles Act it is not mandatory for the drivers of the non-transport vehicle to carry with them the insurance certificate and the registration certificate while driving the vehicle although it is advisable for them to do so.

29. The learned Government pleader has also drawn attention of the court to Rule 39(4) of the West Bengal Motor Vehicle Rules 1989 which empowers the compounding officer to seize the required documents of the vehicle which will be necessary for prosecution, on proper seizure list. Attention of the court has also been drawn by the learned Government pleader to section 146 of the Act and section 260(2) of the Motor Vehicles Act empowering a police officer to seize the driving licence of a driver.

30. It has been submitted relying on the aforesaid provisions of the Act and the Rules that the concerned police officer being the respondent No- 6 had the authority to seize the licence and to issue a slip for compounding the offence under the said Rules.

31. The power of seizure by a police officer of the licence of the driver under sub-section (2) of section 120 is neither absolute nor can be exercised arbitrarily.

32. From the provisions contained in the aforesaid sub-section itself it will appear that a police officer may seize such a driving licence only if he has reason to believe that the driver of a motor vehicle who is charged with any offence under the Act may abscond or otherwise avoid the service of a summons. Such licence therefore, can be seized by such a police officer only if the driver is charged with committing an offence under the Act and the concerned police officer is of the reasonable belief that the offender may abscond or avoid the summons.

33. But as pointed out hereinabove it is not being mandatory for any driver of non-transport vehicle to carry with him the insurance certificate and the registration certificate while driving a motor vehicle, mere failure of the said driver to produce such certificates on demand by a police officer forthwith does not amount to contravention of any of the provisions of the Act and, therefore, is not an offence. The driver of a non-transport vehicle cannot be charged with an offence under the Act for failure to produce such certificates on demand by a police officer forthwith, but he can be so charged if he fails to produce the same within the time stipulated under the provisions of the Act of section 130(4) or under section 158(3) of the Act. Question of exercise

of power by the respondent No. 6 seizing the driving licence of the driver under section 206(2) of the Motor Vehicles Act therefore could not arise, consequently no offence having been committed by the petitioner, the question of compounding the same and issue of a compounding slip also could not arise.

34. It has rightly been contended by the learned counsel appearing for the petitioner that the power of the police officer under sub-section (2) of section 206 of the Act cannot go toghether with the power of the police officer to issue compounding slip under Rule 239(4) of the West Bengal Motor Vehicles Rules 1989 inasmuch as if an accused expresses willingness to have the offence compounded the fine may be realised then and there from the accused and under such circumstances as there is no question of chances of absconlion of the accused the question of seizure of his licence under section 206(4) cannot arise.

35. That apart, we are also not really concerned in the present case with the power of the police officer to seize the driving licence of a driver of a non-transport vehicle under any circumstances; but we are concerned with the question whether the failure of such a driver to produce insurance and registration certificates on demand by a police officer on the spot is an offence under the Act and whether because of such failure such a driver can be penalised under the provisions of the Act and the police officer can seize the driving licence of the concerned driver, until the fine is paid on compounding the offence.

36. It appears to this court, after considering all aspects of the matter as also the affidavits filed by the parties and the materials produced before this court, that the seizure of the driving licence of the petitioner by the concerned police officer being the respondent No. 6 on the presumption that the petitioner has committed an offence on his failure to produce the registration and insurance certificate on demand has resulted from the total ignorance of the respondent No. 6. the concerned police officer about the relevant provisions of the law. Further it appears to this court such ignorance of the respondent No. 6 the concerned police officer is the result of the failure of the police authorities to impart proper training to such police officers who are entrusted with traffic duties and to make them acquainted with the relevant provisions of law.

37. In course of the hearing of the writ petition on 13th September, 1996 it was submitted by the learned advocate appearing for the respondent No. 6, while performing his duties as a traffic sergeant he merely followed a Hand Book which was handed over to him and following the said Hand Book he took steps against the petitioner as he failed to produce the insurance and the registration certificates on demand; the said Hand Book was produced before the court.

38. Part 5 of the said Hand Book Indicates offences and penalties under the Act and at page 722 thereof at serial No.13, the penalty for failure to produce insurance certificate under section 130(3) of the Motor Vehicles Act has been indicated.

39. Such stand of the respondent No. 6, as pointed out hereinbefore reveals his total ignorance of the aforesaid provisions of law and to appreciate even the implications of the various provisions of section 130 of the Act which are enumerated in the said Hand Book perhaps because of his lack of proper

training. In the said Hand Book also section 130(3) of the Motor Vehicles Act was indicated and, therefore, from the said sub-section it was clear that the offence under the aforesaid provisions will occur only on failure of the concerned driver to produce the insurance certificate within the time stipulated under sub-section (3) of section 130 of fhe Act and not otherwise.

40. It is also interesting to note that the aforesaid Hand Book which was produced before the court contained the unamended provisions of section 130 of the Act and not amended provisions although as pointed out hereinabove the said section underwent an amendment under the Motor Vehicles Amendment Act of 1994. Such action of the respondent also indicates the failure of the police authorities to keep the police officer who are invested with traffic duties posted with the latest relevant provisions of the Motor Vehicles Act with which they will be concerned at the lime ot performing their traffic duties.

41. For the reasons stated above I, therefore, hold that although it is obligatory for the driver of a non-transport vehicle to be in possession of his driving licence while he is driving a vehicle and if he fails to produce the same on demand by a police officer in uniform on the spot, the same amounts to an offence under the Motor Vehicles Act, it is not obligatory for such a driver of non-transport vehicle to carry the insurance and the registration certificate with him while he is driving a vehicle and therefore, his failure to produce such insurance and registration certificates on demand by a police officer or any other appropriate authority on the spot will not amount to an offence under the Act and consequently his licence cannot be seized, by compounding the offence subject to payment of fine within the period stipulated by such police officer. Only his failure to produce insurance and registration certificate within the time prescribed under section 130(4) of the Motor Vehicles Act 1988 (15 days) before the appropriate authority or under section 158(3) of the said Act (within 7 days from demand) before the concerned police officer at the police station or officer-in-charge thereof, will amount to an offence under the Act.

42. It is further held that in view of such position of law the petitioner did not commit any offence under the Motor Vehicles Act on his failure to produce the Insurance and the registration certificate on demand by the respondent No.6 on the spot and therefore, the respondent No.6 had no jurisdiction to seize the driving licence of the petitioner.

43. The writ application, thus, succeeds. The impugned seizure of the driving licence of the petitioner by the respondent No. 6 is hereby quashed.

44. There will be no order as to costs.

45. A copy of this judgment be forwarded to the Secretary, Department of Home (Police). Government of West Bengal, to the Commissioner of Police, Calcutta, as also to the Deputy Commissioner of Police. Traffic, being respondent No. 4 for their Information and guidance.

Later :

46. After delivery of the judgment counsels of all the parties have submitted before this court that in view of the importance of the present judgment which will concern drivers of all non-transport vehicles as well as the police officers who will be on traffic duties, there should be direction upon

all the niedias including All India Radio and Doordarshan for giving wide publicity to the operative portion of the present order for the benefit of the members of general public.

47. After consideration of such prayer, it appears to this court that there is substance in such submission of the learned counsel for the parlies. In such view of the matter, it is directed that the Registry will take appropriate steps so that operative portion of the aforesaid judgment is forwarded to Doordarshan, All India Radio and all major newspapers for wide publicity.

48. Application succeeds


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

72 queries in 0.375 seconds.