Dr. Davinder Singh Jasrotia And ... vs State Of J&K And Others
2021 Latest Caselaw 245 j&K

                                                                Sr. No. 222
              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU
CJ Court

Case: PIL No. 25 of 2011


Dr. Davinder Singh Jasrotia and others             ...Petitioner(s)/Appellant(s)
                                 Through: Sh. Rohit Kapoor, Advocate with
                                          Ms. Nadia Qadeer, Advocate.
                                          Sh. Masood Ahmed, Advocate.

                          v/s
State of J&K and others                                       .... Respondent(s)
                                 Through: Sh. A. M. Malik, Dy. AG.

       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE


                                      ORDER

1. In order to recognise right to life and the right to live in safe

environment free from heinous crimes like kidnapping, sexual assault on

women and dacoity, the Supreme Court of India on a public interest litigation

Avishek Goenka v. Union of India and ors., (2012) 5 SCC 321 held that one

of the contributing factors to such crimes is use of black films on

windows/wind shield of the four wheeled vehicles. It accordingly on

consideration of The Motor Vehicles Act, 1988 (for short 'the Act') and the

Rules framed thereunder held that use of black films or any other material upon

safety glass of the wind screen and side windows is impermissible and that

under the Rules, the manufacturer of the vehicle may use tinted glasses which

have 70% Visual Light Transmission (VLT) for wind screens (front and rear)

and 40% VLT on side glasses and that no black film or any material can be

pasted on the wind screens and side glasses of the vehicles. It accordingly

prohibited use of black films of any lesser VLT percentage or any other

material upon the safety glasses of wind screens (front and rear) and side

glasses of all vehicles throughout the country and the said prohibition was

made operative and enforceable w.e.f. 04.05.2012.

2. The aforesaid judgment and order of the Supreme Court only

prohibited use of black films or tinted glasses below the prescribed VLT

percentage but nowhere directed that the vehicles found using such prohibited

material would attract any penalty or would be liable for seizure.

3. A Division Bench of this court in dealing with the menace created by

use of tinted glasses on four wheelers, in this public interest litigation by an

order dated 31.07.2012 directed for the issuance of a public notice clearly

indicating the directions issued by the Supreme Court and for the removal of

black films by 20th August 2012. It further provided that if anybody is found

using black/tinted films or any such material contrary to the directions issued

by the Supreme Court after the said date their vehicles would be impounded.

4. It is on account of the above directions issued by this court that

vehicles using tinted glasses and black films are being seized and scores of

applications are being filed everyday by the owners of the vehicles for the

release of their vehicles on various grounds such as they have not violated the

norms laid down by the Supreme Court or that their vehicles have been

illegally seized in violation of the principles of natural justice. The court on

such applications have been directing for the release of the vehicles without

going into the merits of the order of seizure on the owners furnishing the

undertakings before the DIG Traffic Jammu Range that they shall not ply their

vehicles in violation of the directions of the Supreme Court in the above

referred case.

5. Similar applications for the release of seized vehicles are for

consideration before us.

6. We have heard Sh. Rohit Kapoor, learned counsel for the petitioner

and Sh. A. M. Malik, Deputy Advocate General for the respondents.

7. It has been vehemently argued that the direction for the seizure

should be maintained to check the menace of use of dark/tinted glasses and that

the vehicles should not be allowed to be released otherwise then by the order of

the High Court.

8. The Act is a complete Code in itself and provides for the mechanism

for levying penalty and for seizing of the vehicles for violation of the

provisions of the Act or the Rules framed thereunder. The aforesaid Act and

the Rules nowhere specifically provide as to the effect of use of dark/tinted

glasses in motor vehicles or for the seizure of vehicles on the aforesaid ground.

It is only by virtue of the above decision of the Supreme Court and the

directions of the High Court contained in one of the interlocutory orders

referred to above that the motor vehicles found using dark/tinted glasses are

being seized.

9. Section 207 of the Act provides for the detention of the vehicles for

violation of certain provisions of the Act such as use of vehicles without

Certificate of Registration, Driving License, etc. But even the said provision

also does not envisage for the seizure of vehicles for violating the condition of

using the safety glasses below the permitted VLT. The aforesaid provision inter

alia lays down that where the motor vehicle is seized and detained, the owner

or the person incharge of such vehicle may apply to the Transport Authority or

any officer authorized in this behalf by the State Government for the release of

vehicle and such authority or officer may after verification order the release of

the vehicle subject to the conditions as may be deemed fit.

10. It is pertinent to mention here the power to seize vehicle under the

aforesaid provision is not only vested in the Transport Authority but also upon

the police officer or any other person authorized in this behalf by the State

Government.

11. It is important to mention that in Ishwar Singh Bagga and ors. v.

State of Rajasthan, (1982) 1 SCC 101, it has been held that the competent

authority i.e. the Transport Authority or even the police officer may lodge a

complaint before the Magistrate for taking action against the owner of the

vehicle for violation of any of the provisions of the Act. In other words, a

Motor Vehicle is liable to seizure by the police or the Transport Authority for

violation of the provisions of the Act and the Rules and that a complaint in this

regard may be made to the Magistrate concerned and in the meantime the

vehicle may be released upon verification of the documents by the Transport

Authority or the officer authorized in this behalf by the State Government.

12. Section 208 of the Act provides for the summary disposal of cases in

respect whereof complaints are made to the Magistrate.

13. In view of the aforesaid provisions, it is clear that the Act contains a

complete mechanism for the seizure of vehicles violating certain provisions of

the Act, for lodging of complaint against the owners of such vehicles, release

of vehicle and for the summary disposal of such cases. Since there is no

specific provision for seizing vehicles on the ground of use of dark films and

tinted glasses and for their release or for lodging a complaint against the

owners of such vehicles but as the directions of the Court partakes the position

of law and supplements the statutory provisions, it is logically prudent to apply

the same mechanism for the release of vehicles as is provided for under Section

207 of the Act.

14. The argument that if the power is given to the Magistrate or to the

Transport Authority or any officer authorized in this behalf by the State

Government, it will frustrate the very purpose of the seizure of vehicles on the

ground of use of dark and tinted glasses and that the menace would continue

unabated, is bereft of merit. This court simply in order to put control on the

menace of use of dark and tinted glasses in the motor vehicles cannot burden

itself with the administrative or magisterial work so as to allow its precious

time to be lost in handling such release matters. Moreover, it would amount to

usurping the power of the Transport Authority or the officer authorised or the

Magistrate.

15. It is important to note that the judgments and directions of the court

are equally binding and enforceable in law by the Executive/Administrative

Authorities as are the statutory provisions. Therefore, once the court has

already issued certain directions it is incumbent upon all authorities to

implement them in the right spirit and to ensure that no one escapes from the

rigour of such orders and directions.

16. In view of the aforesaid facts and circumstances and conscious of the

fact that courts cannot confer jurisdiction upon any authority or court which

otherwise is not vested upon them in law, we are of the opinion that

applications for the release of motor vehicles seized on the ground of violating

the directions of the Supreme Court and the High Court need not be dealt with

by the High Court, rather by the authorities or the Magistrate on the principle

and analogy of the provisions of Section 207 of the Act which authorises the

Transport Authority or the officer authorised and even the Magistrate to deal

with such matters in a given case.

17. Accordingly, we direct that henceforth all applications for release of

vehicles so seized shall be filed before the Magistrate concerned before whom

a complaint for violation of the provisions of the Act or the Rules or even the

direction of the Court is lodged or is proposed to be lodged, whereupon the

Magistrate will proceed with the matter in accordance with law and upon

verification as may be necessary direct for the release of vehicles but not

without imposing a fine of ₹10,000/- for the first offence and ₹20,000/- for the

offence committed for the second time subject to the final decision by the

Magistrate on the complaint lodged in that connection.

18. It is trite to mention here that in every case of seizure of vehicle on

the above ground, it would be incumbent upon the authorities or the seizing

authority to lodge a complaint before the Magistrate concerned within a period

of 30 days of such seizure.

19. The applications for release of vehicles which have already been

filed before this court and are listed for consideration before us are disposed of

and it is directed that all vehicles involved therein stand released subject to the

owners or the person in charge of the vehicles furnishing an undertaking before

the DIG Traffic Jammu Range that they shall not ply their vehicles in violation

of the directions of the Supreme Court and upon depositing a fine of ₹10,000/-

and ₹20,000/- respectively as directed above subject to the final outcome of the

complaint that may have been lodged against them and in case there is no

complaint, they need not deposit any fine.

20. Application nos. 6067, 7507, 7564, 7959, 7961, 8283 & 8350/2020

and 688, 689, 1062, 1245, 1246, 1353, 1541, 1564, 1626, 1677, 1683, 1693,

1813, 1818, 1832, 1834 & 1866/2021 stand disposed of.

21. Let the main petition be listed on 7th April 2021.

                                         (SINDHU SHARMA)                      (PANKAJ MITHAL)
                                                   JUDGE                       CHIEF JUSTICE
            Jammu
            05.03.2021
            Raj Kumar




RAJ KUMAR
2021.03.17 18:24
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