Jharkhand High Court

Hemant Kumar Gupta vs State Of Jharkhand on 16 September, 2021

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr) No.168 of 2021

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Hemant Kumar Gupta, aged about 67 years, s/o late Surya Bhushan Prasad, r/o 3/126, Paschim Putiari Circus Avenue PO&PS-Kolkata, District West Bengal, at present resident of Road No.2, PS-Sukhdeo Nagar, District Ranchi. ..... Petitioner

-- Versus --

1.State of Jharkhand

2.The Deputy Transport Cum Secretary, South Chotangapur, Regional Transport Authority, PO -GPO, PS-Kotwali, and District-Ranchi ...... Respondents

With

Cr.M.P. No. of 1824 of 2021

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1.The State of Jharkhand

2.The Deputy Transport Commissioner cum Secretary Regional Transport Authority, South Chhotanagpur, PO-Kutchery, PS-Kotwali and District-

      Ranchi                                    ..... Petitioners

                                  --     Versus   --

Hemant Kumar Gupta, aged about 70 years, s/o late Surya Bhushan Prasad, resident of Paschim, Putiary Colony, near Mansa Bari 24 Pargana, Kolkata (West Bengal) at present residence of Road No.2, PO, PS-Sukhdeonagar, District-Ranchi ...... Opposite Party

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Sidhartha Roy, Advocate For the State :- Mr. Amitesh Kumar Geasan, Adv.[W.P.(Cr) No. of 168 of 2021] Mrs. Priya Shrestha, Adv. [Cr.M.P. No. of 1824 of 2021]

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6/16.09.2021 Heard Mr. Sidhartha Roy, the learned counsel appearing for

the petitioner, Mr. Amitesh Kumar Geasan and Mrs. Priya Shrestha, the

learned counsels appearing on behalf of the State in respective cases.

2. These petitions have been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of the

parties have complained about any technical snag of audio-video and

with their consent this matter has been heard.

3. Heard Mr. Siddharth Roy, the learned counsel appearing on

behalf of the petitioner in W.P.(Cr.) No.168 of 2021 and he has also

appeared on behalf of the sole Opposite Party in Cr.M.P.No.1824/2021.

Mr. Amitesh Kumar Geasan, the learned counsel has argued in W.P.(Cr.)

No.168/2021 on behalf of the State. Mrs. Priya Shrestha, the learned

counsel has argued in Cr.M.P.No.1824/2021 in both the petitions on

common question of fact, law and judgment are the subject matter and

that is why both these petitions have been heard together with the

consent of the parties.

W.P.(Cr) No.168 of 2021

4. This petition has been filed for direction upon the

respondent no.2 to forthwith release the vehicle of the petitioner bearing

registration no.WB 37C 9865. Further prayer is made for direction upon

the respondent no.2 to comply the order dated 25.03.2021 passed by

learned ACJM, Ranchi in Complaint Case No.5507/2020 by which the

vehicle of the petitioner was ordered to be released after indemnity bond

of Rs.15 lakhs, with two sureties of like amount each, was furnished on

behalf of the petitioner, which has already been furnished on behalf of

the petitioner. Now pending in the court of learned ACJM, Ranchi.

5. Mr. Siddharth Roy, the learned counsel for the petitioner

submits that Deputy Transport Commissioner cum Secretary, South

Chhotanagpur Regional Transport Authority, Ranchi has passed the order

dated 01.10.2020 assessing the tax liability upon the petitioner to the

tune of Rs.11,28,470/-. He further submits that it has been ordered that

if that amount is not paid, prosecution will be launched against the

petitioner under sections 21(a) and 22(3) of Jharkhand Motor Vehicles

Taxation Act, 2001. Pursuant thereto, the prosecution against the

petitioner was initiated by Annexure-A to the counter affidavit.

Thereafter, the petitioner filed a petition for release of the vehicle before

the Court of ACJM, Ranchi and the learned court has passed the order

dated 17.12.2020 which was numbered as Misc. Criminal Application

No.5859/2020 corresponding to Complaint Case No.5507/2020 which was

heard on 17.12.2020 and posted for that day whereby learned court

directed to release the vehicle of the petitioner on the condition that the

entire taxation amount shall be deposited by the petitioner in four equal

EMI and furnishing of two sureties of Rs.15 lakhs each. It was further

directed that after getting it released the petitioner shall remove all such

invalid alteration. Aggrieved with this order, the petitioner has preferred

Criminal Revision No.14/2021 before the learned AJC-XVI, Ranchi which

was decided on 19.03.2021 and the learned AJC has modified the order

so far as paying of the taxation is concerned and to that extent, as

indicated in the paragraph no.6 of the judgment in revisional court and

with that modification the revisional application was allowed and it was

communicated to the court of ACJM, Ranchi. After that order, the learned

ACJM, Ranchi by order dated 25.03.2021 directed to Secretary, South

Chhotanagpur Regional Transport Authority, Ranchi to release the vehicle

of the petitioner.

6. Mr. Roy, the learned counsel appearing for the petitioner

submits that inspite of this development, the vehicle in question of the

petitioner has not been released by the respondent no.2 and that is why

the petitioner has been compelled to file writ. He submits that the

commercial vehicle of the petitioner has been seized on 29.09.2020 and

almost an year is going to be completed and the vehicle is lying in open

and no purpose will be served to allow the vehicle to be damaged as has

been held by this Court as well as the Hon'ble Supreme Court in several

judgments. He further submits that in the courter affidavit filed by the

State, at page 35, the Joint Transport Commissioner, Jharkhand has

issued the letter wherein it is stated that the tax of the vehicle has been

paid from 16.11.2016 to 15.11.2021. He submits that it is an admitted

position that those document has been brought on record in the counter

affidavit filed on behalf of the respondent State. He submits that

Annexure-B at page 34 is the notification dated 28.05.2020 by which

three officers have been authorized to compound the cases under section

200 of the Motor Vehicle Act, 1988. He further submits that section 3 of

Jharkhand Motor Vehicle Taxation Act speaks about notification for

appointment of a person as Taxing Officer. He submits that Annexure-B in

the counter affidavit is not a notification of appointment of any Taxing

Officer rather that notification is under section 200 of Motor Vehicle Act,

1988. He further submits that demand notice contained in Annexure-5

has been issued on the back of the petitioner as no opportunity of

hearing was provided to the petitioner and the assessment was done by

the respondent no.2 which is not taxing authority.

7. Mr. Amitesh Kumar Geasan, the learned counsel appearing

on behalf of the respondent State submits that notification dated

28.05.2020 is already there as contained in Annexure-B by which three

persons have been authorized to assess the tax under Motor Vehicle Act,

1988.

Cr.M.P. No.1824 of 2021

8. This petition has been filed by the State praying therein to

quash the order dated 19.03.2021 Annexure-5 passed in Criminal

Revision No.14/2021 and consequential order dated 25.03.2021 passed

by the learned ACJM, Ranchi.

9. Mrs. Priya Shrestha, the learned counsel appearing on

behalf of the State in this case contended that by notification dated

28.05.2020 three officers have been assigned to made assessment of

taxation of the vehicle and the revisional court has erred in modifying

that order. She further submits that section 3 of the Jharkhand Motor

Vehicle Taxation Act, 2001, also crystal clear by which power of State

Government rests for appointment of any officer to assess tax.

10. Mr. Roy, the learned counsel appearing for sole opposite

party in this case has repeated his argument as he has argued in W.P.(Cr.)

No.168/2021.

11. In the light of above submissions of learned counsels

appearing on behalf of the parties, the Court has perused Annexure-5

which is the order as taxation order dated 01.10.2020 by which the

petitioner has been slapt with an additional amount of Rs.11,28,470/-.

On perusal of this order, it transpires that no notice of hearing has been

issued to the petitioner and the petitioner was not heard before passing

of such order and there is violation of principle of natural justice.

Pursuant to non-payment of the amount as assessed by order dated

01.10.2020, the prosecution case has been lodged against the petitioner

on 14.10.2020 and the occurrence is said to be of 29.09.2020 and it was

registered at 8.52 p.m. The petitioner filed a petition for release of the

vehicle. The vehicle in question was directed to be released with certain

conditions as has been indicated above. The petitioner moved before

revisional court and the revisional court has modified the taxation part of

the order passed by the learned ACJM, Ranchi. He remitted the matter to

the learned ACJM, Ranchi for the needful. Pursuant thereto, learned

ACJM, Ranchi passed the order dated25.03.2021 directing the respondent

no.2 to release the vehicle. It is admitted position that counter affidavit

has been filed on behalf of the respondent State in which letter dated

08.02.2021 of Joint Transport Commissioner has been annexed which

suggest that tax of the vehicle was paid with effect from 16.11.2016 to

15.11.2021 and the notification dated 28.05.2020 suggest that it has

been issued under section 200 of Motor Vehicle Act, 1988. On perusal of

section 200 of the said Act, it is crystal clear that it is for composition of

certain offences. Section 3 of Jharkhand Motor Vehicle Taxation Act,

2001 speaks about appointment of Taxing Officer. No document has

been brought on record by the respondent State that who are the

persons who have been appointed pursuant to that section of Jharkhand

Motor Vehicle Taxation Act to assess the tax. On perusal of notification

dated 28.05.2020 no prudent person can come to the conclusion that by

this notification the appointment of Taxing Officer shall be made. This

notification has been issued on the strength of section 200 of Motor

Vehicle Act, 1988. In the light of "General Insurance Council and Others

v. State of A.P. And Others" reported in (2010) 6 SCC 768, the Hon'ble

Supreme Court has held that it is of no use to keep the seized vehicles at

the police stations for a long period. It is for the Magistrate to pass

appropriate order immediately by taking appropriate bond and guaranty

as well as security for return of the said vehicles, if required at any point

of time. This can be done pending hearing of applications for return of

such vehicles. If the petitioner has not been heard at Annexure-5 it is

open to the petitioner to challenge it before appropriate forum. There is

already order of release in favour of the petitioner, keeping their vehicle

in open will serve no purpose. The vehicle in question is commercial and

it is of no use of keeping such vehicle at police station for a long period.

This aspect of the matter has been considered by the Hon'ble Supreme

Court in the case of "Sunderbhai Ambalal Desai v. State of Gujarat"

reported in (2002) 10 SCC 283. Paragraph nos.5 and 17 of the said

judgment are quoted herein below:

"5. Section 451 clearly empowers the court to pass appropriate orders with regard to such property, such as: (1) for the proper custody pending conclusion of the inquiry or trial;

(2) to order it to be said or otherwise disposed of, after recording such (3) If the property is subject to speedy and natural decay, the dispose of the same xxx xxx xxx "17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and

guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles."

12. As a cumulative effect of the above discussion, the

Secretary, Regional Transport Office, Ranchi is directed to release the

vehicle as there is direction by the learned ACJM, Ranchi, passed in

Complaint Case No.5507/2020, forthwith. The vehicle in question shall be

released in favour of the petitioner on his undertaking on the following

terms and conditions:-

(i) As it has been stated that indemnity bond of Rs.15 lakhs, with two sureties of like amount each, has already been deposited by the petitioner in terms of order dated 25.03.2021, the court below shall consider it and will pass the order on the point of indemnity bond which has been recorded in that order.