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Introduction:
A state is a set of institutions that possess the authority to
make the rules that govern the people in one or more societies,
having internal and external sovereignty over a definite territory.
The state includes such institutions as the armed forces, civil
service or state bureaucracy, courts, and police.
Although the
term often refers broadly to all institutions of government or
rule
ancient and modern
the modern state system bears a number of characteristics that
were first consolidated in western Europe, beginning in earnest in
the 15th century. Through conquest, war and revolution, the
entirety of the world's inhabitable land has been divided into
more than 200 sovereign states, the vast majority of which are
represented in the United Nations.
The state is
considered the most central concept in the study of politics, and
its definition is the subject of intense scholarly debate.
Political sociologists in the traditions of Karl Marx and Max
Weber usually favor a broad definition that draws attention to the
role of coercive apparatus. By Weber's influential definition, a
state has a "monopoly on the legitimate use of physical force
within a given territory." The globalization of the world economy,
the mobility of people and capital and the rise of many
international institutions have all combined to circumscribe the
freedom of action of states: however, the state remains the basic
political unit of the world, as it has been since the 16th
century. This state possess the power to restrain and restrict the
individual for the betterment of the society.
A set of
governing institutions with sovereignty over a definite territory
which in real sense would mean state makes laws which regulates
the Nation which designates people, for the improvement of the
Country, which would mean the geographical area.
At this
juncture we see that among the regulating departments of the
society the most important and vulanarauble system is road
transport system. An efficient transport system is essential for a
modern society with a competitive economy. No economy would thrive
without a sound transport system. Globalisation and current socio
economic changes increase the demand for different modes of
transport, particularly road transport. Therefore, efforts should
be initiated to provide adequate number of vehicles of all kinds
throughout the State. Nevertheless, this does not mean that the
role of Transport Department (state) ends with introduction of
adequate number of services on the road.
The department
has to coordinate and regulate the various services on the sector
to ensure hassle free and accident free travel. Besides transport
system must be developed in such a way in which different modes of
transport complement one another. Above all, the transport
department which is the part of the state functionaries should
possess certain powers to regulate this and organize the road
transport system. Time has reached to impose the proper methods
and precautionary methods to use road infrastructure to its
optimum potential and to manage ever-growing congestion and
accidents. With the above priority in mind, the Transport
Department is working diligently and effectively through statutory
and non- statutory schemes.
The Transport
Department is headed by the Transport Commissioner and functions
under the administrative control of the Home Department. The
Transport Commissioner acts as the State Transport Authority also.
The basic functions of The Transport Department is administering
the provisions of Central Motor Vehicles Act 1988, Central Motor
Vehicles Rules 1989. Registration of motor vehicles, grant of
permits to transport vehicles, issue of driving and conductor
licenses, inspection of vehicles involved in accidents, collection
of tax and fees, controlling vehicular pollution, promotion of
road safety measures and other related issues connected with
Transport system in the State are some of the main functions of
the Transport Department.
Power source,
the motor vehicles act:
From the above stated functions of the road transport department
this paper would analyze and enlist the powers provided to the
department to regulate the road safety, and in the process the
powers provided to the state to revoke or cancel the driving
license and the detention and seizer of the vehicles. Motor
Vehicles Act 1988, (here after ?the act?) provides certain powers
to the police to carry on the above mentioned functions
effectively.
The act is the
beneficial legislation covering all aspects relating to the use of
motor vehicles on public places. The act has come into force with
the effect from the first day of July 1989 succeeding the since
repealed act of 1939. The motor vehicles Act, 1939 (4 of 1939),
consolidated and amended the law relating to motor vehicles. This
has been amended several times to keep it up to date. The need
was; however, felt that this Act should, now inter alia, take into
account also changes in the road transport technology, pattern of
passenger and freight movements, developments, of the road network
in the country and particularly the improved techniques in the
motor vehicles management. Various Committees, like, National
Transport Policy Committee, National Police Commission, Road
Safety Committee, Low Powered Two
Wheelers
Committee, as also the Law Commission have gone into different
aspects of road transport. They have recommended updating,
simplification and rationalization of this law. Several Members of
Parliament have also urged for comprehensive review of the Motor
Vehicles Act, 1939, to make it relevant to the modern
day requirements.
A Working
Group was, therefore, constituted in January, 1984 to review
all the provisions of the Motor Vehicles Act, 1939 and to submit
draft
proposals for a comprehensive legislation to replace the existing
Act.
Some of the major changes in the act were:
(a) rationalization of certain definitions with additions of
certain new definitions of new types of vehicles;
(b) stricter procedures relating to grant of driving licenses and
the period of validity thereof;
(c) laying down of standards for the components and parts of motor
vehicles;
(d) standards for anti-pollution control devices;
(e) provision for issuing fitness certificates of vehicles also by
the authorised testing stations;
(f) enabling provision for updating the system of registration
marks;
(g) liberalised schemes for grant of stage carriage permits on
nonnationalised routes, all-India Tourist permits and also
national permits for goods carriages;
(h) administration of the Solatium Scheme by the General Insurance
Corporation;
(i) provision for enhanced compensation in cases of ?no fault
liability? and in hit and run motor accidents;
(j) provision for payment of compensation by the insurer to the
extent of actual liability to the victims of motor accidents
irrespective of the class of vehicles;
(k) maintenance of State registers for driving licenses and
vehicle registration;
(l) constitution of Road Safety Councils.
These
suggestions and the improvements also provided for more deterrent
punishment in the cases of certain offences to attain the interest
and for the promotion of the objective of the act.
One of the
salient features of the act is that it contains penalties and the
punishments for the contraventions of the provisions there of.
Such penalties and punishments are in the nature of imprisonment,
fine or both, besides seizure of motor vehicles, and or seizure,
cancellation or suspension of the permit, license, certificate of
registration or endorsement of any remarkable events of such
documents, by a police, or the officer of the RTA or the other
authority empowered by the government, as the case may be.
Drivers
License as under motor vehicles act:
License in general would mean a revocable permission to commit
some act that would otherwise be unlawful. Further the state
issued certificate authorizing a person to operate a motor
vehicle. Motor vehicles act 1988, section 2(10) defines the term
Drivers License as follows:
"driving
license"
means the license issued by a competent
authority under Chapter II authorising the person specified
therein to drive, otherwise than as a learner, a motor vehicle or
a motor vehicle of any specified class or description;
Chapter II of
the motor vehicles act regulates and provides provisions for
restricting and restraining the access to the motor vehicles for
the public safety. This process of regulating and the restriction
are achieved by the concept of license.
Section 3 of
the act consisting of two sub sections deals with the necessity
for holding driving license, accordingly subsection (1) of section
3 Provides that no person shall drive a motor vehicle in a public
place with out holding a an effective driving license authorising
him to drive the vehicle authorizing him to drive the vehicle
other than motor cab or a motor cycle hired for his own use or
rented under any scheme made under subsection (2) of section 75
unless his driving license specifically entitles him so to do. As
provided for sub section (2) of section 3 the conditions subject
to which sub section (1) of section 3 shall not apply to a person
receiving in driving a motor vehicle shall be such as may be
prescribed by the central government. The word
effective
in section 3 means a valid license regarding the period and the
type of the vehicle. This condition makes every person to have the
driving license and as a penalty as per the mistakes or the crimes
committed by an individual to disable him from driving a motor
vehicle the driving license is either revoked or cancelled or
placed under probation.
Cancellation,
revocation of the license:
Provisions of the act lay down certain circumstances where the
license could be revoked or cancelled or a person could be
disqualified from holding the license.
Section 16 of
the act provides provisions for the revocation of the driving
license on the grounds of disease or disability by the licensing
authority for the reasons specified in that section. Basically
this is the section where the probability of the person to cause
disturbance in the public place in itself is considered by the
authorities to revoke the license or disqualify the person from
possessing such license. Further section 19 lays down certain
condition and empowers the licensing authority to disqualify the
person from holding the license or revoke the license. Sub section
(1) of section 19 of the act empowers the licensing authority to
dis qualify a person from holding a driving license in the
circumstances envisaged under clause (a) to (h) of sub section (1)
of that section, as provided below, subject to the provisions of
sub section (2) and (3) of section 19, namely where the holder of
the driving license:
(a) Is a
habitual criminal or habitual drunkard; or
(b) Is a habitual addict to any narcotic drug or psychotropic
substance within the meaning of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (61 of 1985); or
(c) Is using or has used a motor vehicle in the commission of a
cognizable offence; or
(d) Has by his previous conduct as driver of a motor vehicle shown
that his driving is likely to be attended with danger to the
public; or
(e) Has obtained any driving licence or a licence to drive a
particular class or description of motor vehicle by fraud or
misrepresentation; or
(f) Has committed any such act which is likely to cause nuisance
or danger to the public, as may be prescribed by the Central
Government, having regard to the objects of this Act; or
(g) Has failed to submit to or has not passed the tests referred
to in the proviso to sub-section (3) of section 22; or
(h) Being a person under the age of eighteen years who has been
granted a learner's licence or a driving licence with the consent
in writing of the person having the care of the holder of the
licence and has ceased to he in such care,
In the above stated circumstances the penalties and punishments
are imposed on the individuals as per stated in clauses h(i) and
h(ii). In the event of the occurrence of any of the above
situations, the punishments provided for is any of the following
imposed by issuing an order by the licensing authority for the
reasons to be recorded in writing, namely,
(i)
Disqualifying that person for a specified period for holding or
obtaining any driving licence to drive all or any classes or
descriptions of vehicles specified in the licence; or
(ii) Revoke any such licence.
As provided for in sub section (2) of section 19 an order under
sub section (1), when made the holder of driving license shall
surrender his driving license immediately to the concerned
licensing authority if it was not already surrendered and
therefore the licensing authority shall keep that license until
the disqualification has expired or has been removed where the
driving license is issued under the motor vehicles act.
In addition to
the above, section 20 of the act empowers the court which convicts
a person for an offence under the act or of an offence in the
commission of which a motor vehicle is used to disqualify a person
from holding any driving licence to drive all classes or
description of vehicles or any particular class or description of
such vehicle as are specified in the said licence.
In furtherance
of the objective of improving the road transport system and make
them user friendly, section 21 also provides certain cases in
which the driving licence can be suspended.
The license
could be suspended by the police officer, as provided for in
clauses (a) and (b) of subsection 1 of section 21 in respect of a
person who was previously convicted of an offence under section
184 and a case is presently registered by the police officer, the
driving license of such person shall become suspended for a period
of six months from the date on which the case is so registered or
if the concerned person is discharged or acquitted before the
expiry of the said period, the suspension shall be until such
discharge or acquittal, as the case may be.
By the court
as provided for in subsection (2) of section 21, where the driving
license has been suspended under subsection (1), the concerned
police officer who has registered the case under sub section (1)
of section 21, shall bring the same before the competent court and
there upon such court shall take possession of the driving licence,
endorse the suspension there on and intimate about such
endorsement to the concerned licensing authority which issued or
renewed the same. As per this section the license can be suspended
by the police officer and that suspension could be endorsed by the
court.
Adding up to
the above stated sections, section 22 of the act, consisting of
four subsections deals with the suspension or cancellation of the
driving license on conviction of the holder of it. As provided for
in subsection (3) of the section 22 with out prejudice to the sub
section (1) of section 21, where a person referred to in sub
section (1) of section 21, is convicted of offence of causing
death or grievous hurt to one or more persons persons by such
dangerous driving as is referred under section 184 of any class or
description of the motor vehicles, court which convicts such
person, may cancel or suspend for such period as it may think fit,
the driving license of that person. Similarly with out prejudice
to sub section (2) of section 20, if a person having been
previously convicted by an offence punishable under section 185 is
again convicted under the offence punishable under that section
then the court making such subsequent conviction shall by order
cancel the driving license by such person, as provided for in sub
section (2) of section 22.
Where a
driving license is cancelled or suspended under section 22, the
court shall take the licence into custody, endorse the
cancellation or suspension there on and send the same to the
authority which has issued the license or renewed it. On receipt
of same such authority shall keep the license in its the safe
custody. In case of the suspended license such authority shall
return the license to the holder after the expiry of the period of
suspension, on making an application by such person for that
purpose, as provided for in subsection (3) of 22.
Where a
driving license is suspended under section 22, the person
concerned shall be debarred from holding or obtaining the license
to drive such particular class or description of motor vehicles so
long as the cancellation or suspension of the driving license is
in force, as provided for in subsection (4) of section 22.
If looked
into, the act keenly we observe that section 206 of the act
consisting of three sub sections is an independent provision
dealing with the power of police of police officers to impound and
seize the false identification mark, or documents relating to
license, permit, certificate of registration, certificate of
insurance or other document produced to him by the driver or the
person in charge of a motor vehicle, with in the meaning of section
464 of the Indian Penal Code, 1860. All the above mentioned
sections try to enforce the conditions required for the public to
enjoy the facilities provided as under the road transport system,
by empowering the licensing authority and police to cancel or
revoke or suspend the license provided to the individuals.
Motor Vehicles
under Motor Vehicles act:
Motor
vehicles act 1988, section 2(28) defines the term Motor Vehicle as
follows:
"motor
vehicle"
or "vehicle" means any mechanically propelled
vehicle adapted for use upon roads whether the power of propulsion
is transmitted thereto from an external or internal source and
includes a chassis to which a body has not been attached and a
trailer; but does not include a vehicle running upon fixed rails
or a vehicle of a special type adapted for use only in a factory
or in any other enclosed premises or a vehicle having less than
four wheels fitted with engine capacity of not exceeding
[twenty-five cubic centimetres];
Access to a
motor vehicle in a
public place
depends on the permit provided to that individual and the license
obtained by that person as it is mandatory under section 3 of the
act. Which mean that the use of the motor vehicle in the public
place is restricted to those who are permitted by the government.
Section 207 of
the act consisting of two subsections provides power to a police
officer or other authorised person to seize and detain motor
vehicles used with out certificate of registration, permit, etc.,
in contravention of the provisions of section 3 or 4 or 39 or with
out the permit required by sub section (1)of section 66 or in
contravention to any condition of such permit relating to the
route or the area where the vehicle may be used. He may instead of
seizing the vehicle may seize the certificate of registration and
issue an acknowledgement in there of. Analogous law Section 207
Corresponds to s. 129 A of M.V. Act 1939.
129A. Power to
detain vehicles used without certificate of registration or
permit. Any police officer authorised in this behalf or other
person authorised in this behalf by the State Government may, if
he has reason to believe that a motor vehicle has been or is being
used in contravention of the provisions of s. 22 or without the
permit required by sub-sec. (1) of s. 42 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,
seize and detain the vehicles and for this purpose take or cause
to be taken any steps he may consider proper for the temporary
safe custody of the vehicle:
Provided that
where any such officer or person has reason to believe that a
motor vehicle has been or is being used without the permit
required by sub-sec. (1) of s. 42, he may instead of seizing the
vehicle, seize the certificate of registration of the vehicle and
shall issue an acknowledgement in respect thereof:
Provided
further that where a motor vehicle has been seized and detained
under this section for contravention of the provisions of s. 22,
such vehicle shall not be released to the owner unless and until
he produces a valid certificate of registration under this Act in
respect of that vehicle.
Difference
between old s. 129A and s. 207:
There is no material change of old s. 129A except the opening
sentence. Instead of the sentence "any police officer authorised
in this behalf or other persons authorised in this behalf by the
State Government" has been substituted as if any police officer or
other person authorised in this behalf by the State Government".
What is new under s. 207 is that an authorised officer or person
may seize and detain a vehicle which (i) has been or is being used
in contravention of s. 3 i.e. driving a motor vehicle in public
without valid driving licence; (if) has been or is being used in
contravention of the provisions of s. 4 i.e. age limit of 18 years
for driving a motor vehicle. Otherwise, power of seizure and
detention under s. 207 and old s. 129A for contravention of s. 39
(old s. 22) and s. 66 (old s. 42) are the same. Thus, in
substance, s. 207 is analogous to s. 129Aof old Act 1939.
Constitutional
validity of the section:
Under s. 207 sufficient guidelines and norms have been laid for
exercise of powers by the concerned authorities. The power has to
be exercised only in certain circumstances and on existence of
objective facts which the concerned authorities must have reason
to believe about their existence. In the case of abuse of power or
misuse of powers, the aggrieved parties may always approach the
higher authorities or the appropriate Courts for appropriate
relief. Thus, s. 207 is not ultra vires of Art. 14 or Art. 19(1) (d)(g)
and s. 300A of the constitution and because of same procedural
change it cannot be said that there is material change in s. 129A
substituted by s. 207. So, constitutional validity of s. 207 is
upheld.
The
authorities exercising the power of detention and seizure of the
vehicle are under an statutory obligation to see that only minimal
inconvenience is caused to owners of the vehicle. In appropriate
cases they should take recourse to the proviso to sub-sec.(l) of
s. 207 instead of seizure and detention of the vehicle. In petty
matters the offences can be compounded upon payment of Rs. 2,000
as fine/ So, s. 207 is not violating Art. 19(l)(g) of the
Constitution.3
In the case of
seizure under the Motor Vehicles Act, all things are seized not
separately but as part of the vehicle itself and there is no
provision for preparing a list of things seized under s. 129A of
the M.V Act 1939. It is in the interest of the very officer or
person seizing the vehicle, that such officer or person takes care
to prepare a list of detachable things which are ordinarily not
parts of the vehicle and hand over a copy of the list to the
person in charge of the vehicle at the time of seizure. But s.
129A cannot be said to be unreasonable because there is no
provision for preparing a list of things seized as it is not
possible to comply with s. 100(4) (5), CrPC.
Power to seize
and detain vehicle:
The power of seizure has been conferred upon the appropriate
authority, which power is, infact, a sovereign power of the State
and has been delegated to the police officer. If the police
officer has reason to believe that the vehicle has been or is
being used 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" then that will only authorise him to detain the vehicle and not for each and every
condition of permit on being violated or contravened. The
expression "purpose for which the vehicle may be used" could not
be contrued that when the vehicle is found to be carrying
passengers more than the number prescribed in the permit then the
purpose of user is otherwise. In such a case the purpose would
only refer to a contingency and well not be a violation of the
purpose for which the permit is granted. The addition of the
expression "relating to the route on which or the area in which or
the purpose for which the vehicle may be used" does not confer
power of detention on the police officer for violation of any
condition of the permit.
A vehicle
plying in breach of conditions of permit as regards the purpose of
usage of the vehicle can be seized under s. 207 of the M.V. Act
1988, but not under s. 8 of the A.E Motor Vehicles Taxation Act
1963 for arrears of tax demand. But the mere fact that the latter
provision is also quoted does not vitiate seizure. The vehicle so
seized cannot be detained until the completion of enquiry under
the Taxation Act and payment of tax, if any pursuant to the demand
raised.
The vehicle
seized under s. 207 on the ground of contravention of conditions
of permit should not be detained for unduly long time and an
application filed by the vehicle operator, the vehicle ought to be
released with expedition subject to stipulation of conditions to
ensure non-alienation of the vehicle and the production of vehicle
in connection with the enquiry unless there are exceptional
circumstances which make the release of vehicle frustrate the
enquiry. Such conditions may include furnishing of cash security
of a reasonable amount which could be adjusted later on towards
compounding fee or tax if any demanded.
The detention
of vehicle shall not continue beyond a short period unless such
detention is essential to facilitate the finalisation of the
enquiry or to ensure compliance with the ultimate order passed. If
other steps or remedies are equally open to effectively enforce
the ultimate order that may be passed and the detention no longer
serves any purpose; an implied duty is cast on the competent
authority to release the vehicle without undue delay. Reasonable
conditions to ensure the production of vehicle of course, be
prescribed.
Detention of
goods vehicle being used for carrying passengers cannot be said to
be unlawful or illegal. A tourist vehicle under a valid permit for
country wide operation as non-stop motor vehicle plying between
one terminus in home State and another terminus in another State
and carry individual passengers whose names are listed as per the
prior contract and who have paid separate fares to travel agents
who engaged the whole vehicle on contract with the permit holder
can also be seized and detained under s. 129A of M.V. Act 1939 or
under s. 207, M.V Act 1988 under special circumstances. If the
checking authorities on the spot have reason to believe that such
vehicle has carried passengers whose names are either not given in
advance to the permit holder before the journey begins or even if
their names are so given, any of them are not genuine and bona
fide tourists, then such tourist vehicle can be seized and
detained.
When a truck
was being plied on road without permit, it could be seized by
police. Where vehicles holding special permits under ss. 66(6) and
66(7) of M.V Act 1939[New ss. 88(6) & 88(7) of M.V Act 1988] were
operating as stage carriage permits masque rading as contract
carriage, the cases fell within the compass of s. 129A of Act 1939
on the ground that the vehicles were plying without permit as
required by s. 42(1) of Act 1939 [News. 66(1) of Act 1988].
Rule 448Aof
A.R Motor Vehicles Rules 1989conferringpowersonmotorvehicles
Inspector to seize and detain vehicle is not unconstitutional and
so also Rule 448B inserted by government orders is not uftra vires.
Rule 259(2) of the Karnataka Motor Vehicles Rules 1989 lays down
that any officer of the Motor Vehicles Department of and above the
rank of inspector of M.V Shall exercise powers under various
section is so far as it relates to s. 207 is witra vires the power
of the govt. for making such rules as permitted by s. 212(3) of
the Act.
Where the
State Government by a notification authorised an officer of the
State Road Transport Corpn to exercise powers under s. 129A of Act
1939 to mean "other person" in the section, the said notification
was not valid.
When vehicle
may not be seized:
The High Court directed the State Government to issue a general
circular to the following effect:
"When a permit holder-contends that he has not committed a breach,
in that case, his vehicle should not be seized but his
registration certificate must be seized and an acknowledgment to
this effect maybe given so that he may have a right to approach
for redressal of his grievance."
Seizure of
vehicle is limited to grounds envisaged in the provision of s.
207. Directions were issued by respondent to subordinates for
avoiding harassment of long distance passengers of contract
carriage by seizing vehicle violating s. 207.
Seizure under
s. 207 has to be delinked from tax liability:
For release of a vehicle seized under s. 207 of the Act, the
demand of estimated tax to be determined after due enquiry under
the provisions of the A.R Motor Vehicles Taxation Act 1963 or
furnishing security therefore shall not be made a condition
precedent. The Competent Transport Authority can withhold the
release or stipulate any appropriate conditions for release where
there is reasonable apprehension that the vehicle will not be
available for taking further action but not for payment of tax not
yet determined. Such reasons are to be recorded in writing. What
cannot be done under s. 8 of the Taxation Act cannot be
accomplished under s. 207 of the M.V. Act and s. 207 does not
confer the power of seizure on the ground of anticipated tax
liability. The power under s. 207 can be exercised not because of
prima facie satisfaction that tax has not been paid but for
reasons that the vehicle has been or being used without permit or
in violation of conditions of permit. The seizure of vehicle under
s. 207 has to be delinked from the question of tax liability under
the State Taxation Act though the violations giving rise to
seizure may give rise to action under both the Acts.
A circular
issued by the High Court addressed to all subordinate Courts
stated that seizure of motor vehicles in the event of non-payment
of tax would not amount to seizure of motor vehicle with respect
of any offence. It was held that the circular was issued ignoring
the provisions of s. 11 of the Rajasthan Motor Vehicles Taxation
Act 1951 and was issued on the administrative side which could not
curtail the judicial powers of the Magistrate under s. 457, Cr.
EC. Powers of the Magistrate regarding seized property under s.
457, Cr. EC. do not stand excluded in view of specific provisions
in s. 207 of the M.V Act 1988.
Detention and
seizure of vehicle unauthorised for carrying passengers more than
prescribed in permit:
The expression "purpose
for which the vehicle may be used"
could not be
construed to mean that when the vehicle is found to be carrying
passengers more than the number prescribed in the permit, the
purpose of user is violated. Carrying passengers more than the
number specified in the permit will not be violation of the
purpose for which the permit is granted. The purpose would only
refer to a contingency when a vehicle having a permit for stage
carriage is used as a contract carriage and nice versa. If the
Legislature really wanted to confer power of detention on the
police officer for violation of any condition of permit, then
there would not have been the necessity of adding the expression
"relating to the route on which or the area in which or the
purpose for which the vehicle may be used."
The user of
the aforesaid expression cannot be ignored nor can it be said to
be a tautology. Carrying passengers beyond the number (seating
capacity) mentioned in column 5 of the Form of permit issued under
r. 72(l)(ix) and r. 74(6) of Maharashtra Motor Vehicles Rules
1989, would not be violation of the conditions of permit relating
to either the route or the area or the purpose for which the
permit is granted. So, detention and seizure of vehicle on that
ground are unauthorised.
Conclusion:
The powers of stopping the motor vehicles and the powers of
inspection, search, seizure and detention exercised under the Act
are serious restrictions on the fundamental right of the operators
of motor vehicles guaranteed under Article 19(1)(g) of the
Constitution. These powers can be considered as reasonable
restrictions only when they are exercised properly in the
interests of the general public. They should be reasonable both
from the substantive as well as the procedural standpoint. They
would be reasonable only when the act of the official is in the
interest of the public at large. There is a chance of these powers
being misused hence to avoid any of this kind exploitation, Such
powers should, be entrusted to a person who is expected to
exercise them fairly and without bias.
The power
given to seize and detain vehicle under s. 129A of M.V, Act 1939
is to be exercised by the police officer or the authorised person
when he has a reason to believe that an offence punishable under
s. 123(1) of the M.V Act 1939 has been or is being committed. If
the provisions of the Motor Vehicles Act are read in conjunction
with sub-secs, (4) and (5) of s. 100, Cr. P. C., it is seen that
there is no lacuna whatsoever in regard to the proper custody and
disposal of the vehicle seized under s. 129A. The custody of the
vehicle in the hands of the police officer or authorised person is
but temporary and he is obliged to act and take all further steps
in the matter with all expedition.
If he releases
the vehicle on being, satisfied that no offence has been committed
or if releases the vehicle 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. In the remote event of the police
officer or the authorised person not taking any further action
after seizing and detaining the vehicle, the owner of the vehicle
is not without remedy. Article 226 of the Constitution is always
available Management and Control of Traffic constitutional
obligation:
The existing
provisions in the Act alone are sufficient to clothe the members
of the police force without reference to the general powers
available under the Police Act and the Code of Criminal Procedure
and the Transport authorities with ample powers to control and
regulate the traffic in an appropriate manner. So that no vehicle
being used in a public place poses any danger to the public in any
form.
When the
strength of the police force is not adequate in a given area, the
law confers power of delegation of these powers to other
authorities, officers and responsible members of the public so
that the resource crunch or inadequacy of infrastructure is not an
impediment in enforcement of the law. For the purpose of such
delegation, these authorities would not suffer from any constraint
and this order is sufficient empowerment to them in this behalf
notwithstanding any administrative orders imposing any impediment
or constraint on them, if any. The control and regulation of
traffic is a matter of paramount public safety and is evidently
within the ambit of Art. 21 of the Constitution.
For the reason
of promotion of the public safety the police and the licensing
authorities restrain the individual if need and impose the
reasonable restriction as listed and analyzed above.
|
Power of the state, to revoke or cancel the drivers license and
to
detain or seize the motor vehicle under Motor Vehicles Act 1988
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The
author can be reached at: anup.koushik@legalserviceindia.com /
