By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed to release the vehicle (truck) belonging to the petitioner bearing registration No.MH-04-EY-3384 as well as the mudammal (sand), which came to be seized on 14.04.2012 at National Highway No.8, Bhilad Check Post.
It appears from the record that on seizure being affected, an offence under Section 237 of the Motor Vehicles Act, 1988 (the MV Act) came to be registered being Non-Cognizable Complaint No.203/12. It appears from bare reading of the memo that RTO officer, who was at the Bhilad check post, seized the truck in question for the reason that it was overloaded.
Mr.Nasir Saiyed, learned advocate for the petitioner, has submitted that the truck in question is registered in Maharashtra and the same has valid National All India permit for the purposes of transportation of goods and the petitioner is the owner of the said good, which has a valid fitness certificate as well as requisite insurance for the said vehicle. Relying upon the averments made at Paragraph No.5 of the petition, it is submitted that the petitioner even today is ready and willing to pay penalty and/or fine, if any, which is leviable under the MV Act and/or the Motor Vehicles Rules, 1989 (the MV Rules) and the petitioner has also made request to that effect to respondent No.3. However, the said request was not accepted and on the contrary after a period of about one month, a notice has been issued on 18.05.2012 by respondent No.2 under the provisions of the Mines and Minerals (Regulation and Development) Act, 1957, the Gujarat Minerals (Prevention of Illegal Mining Transportation & Storage) Rules, 2005 as well as the Gujarat Minor Minerals (Concession) Rules, 2010. Further relying upon the order passed by this Court in similar fact situation, it is submitted that the petitioner is ready and willing to file an undertaking before this Court and adhere to any conditions that may be imposed upon by this Court. It is therefore submitted that the petition deserves to be allowed.
Per contra, Ms.Moxa Thakkar, learned Assistant Public Prosecutor for the respondents, has relied upon the affidavits filed by respondent No.2 as well as respondent No.3. It is vehemently submitted that after the vehicle in question came to be seized under the provisions of the MV Act, respondent No.2 has lodged an F.I.R. for the alleged offences under Rules 3, 5, 6, 8 and 9 of the Gujarat Minerals (Prevention of Illegal Mining Transportation & Storage) Rules, 2005, which has been registered at Bhilad Police Station, Dist. Valsad being C.R. No.II-3196/12 dated 14.08.2012. It is further submitted that as far as the truck in question is concerned, over and above the impugned memo (at Annexure-B to the petition) the truck has been seized as mudammal in the offence. It is therefore submitted that as far as release of vehicle is concerned, the petition deserves to be dismissed and the petitioner may be relegated to the trial Court to file an appropriate application as provided under Section 451 of of the Code of Criminal Procedure, 1973 (the Code).
It may be noted that the petitioner has not challenged the seizure of the vehicle in question by the investigating agency in connection with the aforesaid FIR being C.R. No.II-3196/12 at Bhilad Police Station. What is challenged in the present petition is action of seizure, which took place on 14.04.2012 at Bhilad Check Post under the provisions of the MV Act.
Considering the submissions made by the learned counsel appearing for the respective parties, it appears that as far as the alleged offence under provisions of the MV Act is concerned and as indicated in the memo the same relates to the offence of overloading, the said issue can be dealt with under the provisions of the MV Act as well as under the MV Rules. This Court is of the opinion that no useful purpose would be served if the truck in question is permitted to remain unused at the police station as the same would curtail right of the petitioner to trade in a legal manner and the petitioner would sustain loss of income and the condition of the truck would also deteriorate. Considering the aforesaid facts and circumstances of the case arising out of the present petition as well as considering the principles laid down by the Apex Court in the case of Ramesh Chand Jain Vs. State of Haryana and Anr., (2007) 15 S.C.C. 126 while dealing with an application under Section 451 of the Code, the truck in question belonging to the petitioner deserves to be released on the following conditions that the petitioner shall:
furnish bond of Rs.1,00,000/- with the police authorities for production of vehicle (truck) in question as and when directed;
not sell or in any manner transfer ownership and/or possession of the vehicle (truck) in question till the case is concluded;
inform the RTO authority at Thane about the registration of the aforesaid offence for the vehicle (truck) in question;
present the vehicle (truck) in question before the police authorities or the court as and when directed; AND approach the RTO authorities, Bhilad for either paying penalty in accordance with the MV Act and the MV Rules or for any further prayer before the RTO authorities and the same shall be dealt with by the aforesaid authorities in accordance with law.
With the above directions, the petition is disposed of. Rule is made absolute to the aforesaid extent.
It is however made clear that it would be open for the petitioner to file an appropriate application before the trial Court as far as the seizure under C.R.
No.II-3196/12 registered at Bhilad Police Station, Dist. Valsad dated 14.08.2012 is concerned, and this order shall be applicable only qua the memo impugned in the present petition issued under Section 237 of the Act.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Page 6 of 6