Transport Commissioner, A. P. , Hyderabad vs S. Sardar Ali, Bus Owner, Hyderabad

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1983 Supreme(SC) 247

SUPREME COURT OF INDIA
D.A. DESAI AND O. CHINNAPPA REDDY, JJ.
The Transport Commissioner, A.P., Hyderabad and another, Appellants
Versus
S. Sardar Ali and others, Respondents.
Civil Appeals Nos. 2546-2547 of 1983 with Writ Petns. Nos. 6051-64, 8226-28, 8284-97, 8321-37, 3952, 7569, 7572, 7574 and 7577 of 1983, D/- 26-8-1983.

Advocates:
A.SUBBA RAO, B.R.KAPUR, D.R.GUPTA, H.VAHI, K.G.Bhagat, K.N.BHATT, N.N.SHARMA, N.Nettra, P.K.PALLI, P.R.MRIDUL, R.B.DATAR, R.N.Poddar, S.R.SHRIVASTAVA, SHANTI BHUSHAN, T.V.S.N.Chari, V.G.MEHTA, Y.S.Chitale

Headnote:
Constitution of India, 1950 - Art, 19 (1) (g) , 133 (1), 132 and 145 (3) - Criminal Procedure Code,1973 - Section 4(2) and 100 - Motor Vehicles Act - Section 129-A, 123 (1) , 22 and 42(1) - Motor Vehicles (Amendment Act, 1982) - Section 112, 113, 113A, 113B, 114 (1) and (2) ,115, 116, 118, 120, 122, 123, 124, 125 or 127 - Interpretation of Constitution - Motor Vehicles - Ultra vires - Order of High Court while saying that question relates to interpretation of Constitution refrained from certifying that case involved a substantial question of law as to interpretation of Constitution – Court cannot therefore, treat certificate as one under Art. 132 of Constitution - On other hand High Court has certified that case involves a substantial question of law of general importance and it requires to be decided by SC, employing precise language used in clauses (a) and (b) respectively of Art. 133 (1) of Constitution - Certificate, therefore was clearly one under Art. 133 of Constitution - Court attention was invited to Art. 145 (3) of Constitution which provides that minimum number of Judges who are to sit for purpose of deciding any case involving a substantial question of law as to interpretation of Constitution or for purpose of hearing any reference under Art. 143 shall be five - High Court had not certified that cases involved a substantial question of law as to interpretation of Constitution and Court are also satisfied that cases do not involve a substantial question of law as to interpretation of Constitution -Held, if properly examined in light of the provisions of both Motor Vehicles Act and Code of Criminal Procedure, as Court are bound to - Indeed, whenever an offence under a law other than Penal Code is committed and that law does not itself regulate procedure to be followed there is no option but to look to provisions of Criminal Procedure Code for further action and to weave into a single texture provisions of Code and special law - High Court has totally ignored provisions of Criminal Procedure Code and judgment stands vitiated on that account - It has therefore, to be set aside - There should be some safeguard in regard to several removable items which are usually found in tourist vehicles such as spare tyres, spare parts, radio, video etc - It was suggested that in absence of a provision similar to that found in Criminal Procedure Code, Section 129-A should be held to be unreasonable - There is no substance in this contention - Section 100 of Criminal Procedure Code to which reference was made by Counsel deals with searches and not seizures - In very nature of things when property is seized and not recovered during a search, it is not possible to comply with provisions of sub-sections four and five of Section 100 of Criminal Procedure Code - In case of a seizure under Motor Vehicles Act, there is no provision for preparing a list of things seized in course of seizure for obvious reason that all those things are seized not separately but as part of vehicle itself - Appeals allowed.

Judgment

CHINNAPPA REDDY, J.:- The Andhra Pradesh High Court has declared Section 129-A of the Motor Vehicles Act unconstitutional and void as offending Art, 19 (1) (g) of the Constitution of India. We may straightway say that the judgment of the High Court suffers from serious infirmities, not the least of which is the total failure to notice and consider the applicability of the provisions of the Code of Criminal Procedure to the situation.

2. On an oral application by the Advocate General, the High Court granted leave to appeal to the SC. Presumably, by leave the High Court meant a certificate as provided under the Constitution. The order of the High Court regarding the grant of leave to appeal to this Court is in the following terms: "An oral application for leave to appeal to the SC has been made by the learned Advocate General. The question whether S. 129-A of the Motor Vehicles Act is ultra vires the Constitution on the ground that it infringes Art. 19 (1) (g) of the Constitution relates to the interpretation of the Constitution and is also a substantial question of law of general importance, which requires to be decided by the SC. Therefore, we grant leave to appeal to the SC".

The order of the High Court states, (i) that the question relates to the interpretation of the Constitution; and (ii) the question is also a substantial question of law of general importance which requires to be decided by the SC. The order of the High Court while saying that the question relates to the interpretation of the Constitution refrained from certifying that the case involved a substantial question of law as to the interpretation of the Constitution. We cannot therefore, treat the certificate as one under Art. 132 of the Constitution. On the other hand the High Court has certified that the case involves a substantial question of law of general importance and it requires to be decided by the SC, employing the precise language used in clauses (a) and (b) respectively of Art. 133 (1) of the Constitution. The certificate, therefore, was clearly one under Art. 133 of the Constitution. We are mentioning these circumstances because at the very commencement, our attention was invited to Art. 145 (3) of the Constitution which provides that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference under Art. 143 shall be five. The High Court had not certified that the cases involved a substantial question of law as to the interpretation of the Constitution and we are also satisfied that the cases do not involve a substantial question of law as to the interpretation of the Constitution. We proceeded to hear the appeals and writ petitions after the position was clarified when the cases were opened by the learned counsel.

3. Section 129A of the Motor Vehicles Act may be extracted here. It is as follows :-

"129-A. 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 Section 22 or without the permit required by sub-section (2) of Section 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 vehicle, 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-section (1) of Section 42, he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect t

Click Here to Read the rest of this document