Civil Appeal No 2546 2547 of 1983
731 From the judgment and order dated the 13th February 1981 of the Andhra Pradesh High Court in Writ Petitions Nos
5458 and 5459 of 1980
WITH Writ Petition Nos
6051 64 8226 28 8284 97 8321 37 3952 7569 7572 7574 and 7577 of 1983
Under Article 32 of the Constitution of India T V section N Chari for the Appellant
D R Gupta B R Kapoor section R Srivastava and N N Sharma for the Petitioners
K G Bhagat Additional Solicitor General Shanti Bhushan P R Mridul Dr Y section Chitale K N Bhatt P K Pillai R N Poddar R B Datar A Subba Rao N Nettar V G Mehta and Mrs H Wahi for the appearing Respondents
The Judgment of the Court was delivered by CHINNAPPA REDDY J
The Andhra Pradesh High Court has declared sec
129 A of the unconstitutional and void as offending article 19 1 g of the Constitution of India
We may straight away 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
On an oral application by the Advocate General the High Court granted leave to appeal to the Supreme Court
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 Supreme Court has been made by the Learned Advocate General
The question whether 129 A of the is ultra vires the Constitution on the ground that it infringes article 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 Supreme Court
Therefore we grant leave to appeal to the Supreme Court
732 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 Supreme Court
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 article 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 Supreme Court employing the precise language used in clauses a and b respectively of article 133 1 of the Constitution
The certificate therefore was clearly one under article 133 of the Constitution
We are mentioning these circumstances because at the very commencement our attention was invited to article 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 article 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
Section 129 A of the may be extracted here
It is as follows 129 A Power to detain vehicles used without certificate of registration or permit
Any police officer authorized in this behalf or other person authorized 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 Sec 22 or without the permit required by sub section 1 of Sec
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 733 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 subsection 1 of Section
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 Section 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
 It is seen that Section 129 A contemplates three situations where the police officer or authorized person may seize and detain the vehicle
The three situations are i where he has reason to believe that the motor vehicle has been or is being used in contravention of the provisions of Sec 22 ii where he has reason to believe that the motor vehicle has been or is being used without the permit required by sec
42 1 and iii where he has reason to believe that the motor 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
These are precisely the three situations contemplated by Sec 123 1 of the and made punishable under that provision
Section 123 1 which may also be extracted is as follows S 123
Using vehicle without registration or permit
1 Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 22 or without the permit required by sub section 1 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 or to the maximum number of passengers and maximum weight of luggage that may be carried on the vehicle shall be punishable for a first offence with fine which may extent to two thousand rupees and for any second or subsequent offence with imprisonment
It is therefore clear that the power given to seize and detain the vehicle under sec
129 A is to be exercised by the police officer or 734 the authorised person when he has reason to believe that an offence punishable under sec
123 1 has been or is being committed
Now after detecting the commission of an offence punishable under sec
123 1 of the  the next appropriate step for the police officer or the authorised person would be to consider the question whether the offence should be compounded as provided by Section 127 B of the and any notification issued by the Government in that behalf
Section 127 B may also be extracted here and it is as follows  127 B 1 Any offence whether committed before or after the commencement of section 26 of the Motor vehicles Amendment Act 1982 punishable under section 112 section 113 section 113A section 113B section 114 sub section 1 and 2 or section 115 section 116 section 118 section 120 section 122 Section 123 section 124 section 125 or section 127 may either before or after the institution of the prosecution be compounded by such officers or authorities and for such amount as the State
Government may by notification in the official Gazette specify in this behalf
2 Where an offence has been compounded under sub section 1 the offender if in custody shall be discharged and no further proceedings shall be taken against him in respect of such offence
 Thereafter the next logical and appropriate step for the police officer or the authorised person would be to lay a complaint before the Court competent to take congnizance of the offence subject to the over riding provision of Section 132 of the which provides that no Court inferior to that of a Metropolitan Magistrate or a Magistrate of the second class shall try any offence punishable under the or any rule made thereunder
Section 4 2 of the Code of Criminal Procedure provides that all offences under any law other than the Penal Code shall also be investigated inquired into tried and otherwise dealt with according to the same provisions that is the provisions of the Criminal Procedure Code subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences
Chapter XIII of the Code of Criminal Procedure deals with Jurisdiction of the Criminal Courts in inquiries and trials
So subject to section 132 of the  735 the Court before which the complaint may be laid has to be determined in accordance with the provisions of chapter XIII of the Code of Criminal Procedure
After the complaint is laid the case has to be tried in accordance with the provisions of the Code of Criminal Procedure
This again is subject to one special provision of the  namely Section is in the following terms The court taking cognizance of an offence under this Act i may if the offence is an offence punishable with imprisonment under this Act and ii shall in any other case state upon the summons to be served on the accused person that he a may appear by pleader and not in person or b may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the court such sum not exceeding the maximum fine that may be imposed for the offence as the court may specify Provided that nothing in this sub section shall apply to any offence specified in Part A of the Fifth Schedule
Where the offence dealt with in accordance with sub section 1 is an offence specified in Part of the Fifth Schedule the accused person shall if he pleads guilty to the charge forward his licence to the Court with the letter containing his plea in order that the conviction may be endorsed on the licence
Where an accused person pleads guilty and remits 1 the sum specified and has complied with the provisions of sub section 2 no further proceedings in respect of the offence shall be taken against him nor shall he be liable to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty
 That is how the offender is dealt with
But what happens to the vehicle seized under the provisions of section 129 A  To begin with we notice that a pre condition to the seizure and detention of the vehicle is that the police officer or authorised person must have reason to believe that one or the other of the offences specified punishable as we have seen under section 123 736 has been or is being committed
Whenever property involved in the commission of an offence is seized the seizure is generally expected to serve a manifold purpose such as to prevent repetition of the offence to use the thing seized as material evidence in the prosecution to preserve the property so as to enable the court to pass appropriate orders for its disposal by way of destruction confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise
There ii no reason to assume that the seizure under section 129 A is any different and is not to serve any of these purposes or any purpose at all
We then notice that the police officer or the authorised person may 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
Clearly therefore the detention by the authorised officer or person is to be temporary
For how long then  obviously until appropriate orders regarding its disposal are made
Quite obviously the vehicle may be released if the owner of the vehicle satisfies the authorised officer or person that no offence such as that mentioned in section 129 A had been or was being committed
This is subject to tho second proviso to section 129 A which bars the release of a vehicle seized for a contravention of the provisions of section 22 unless the owner of the vehicle produces a valid certificate of registration under the Act in respect of the vehicle
Conversely in the contest it implies 15 that a vehicle seized for a contravention of section 22 is to be released if the certificate of registration is produced
Again since the detention is for temporary safe custody until appropriate orders are made the police officer or authorised person seizing the vehicle may arrange for the temporary safe custody  of the vehicle with the owner of the vehicle by releasing the vehicle to him subject to suitable security J and so undertaking to produce the vehicle when called upon to do so
We have indicated that the next step in the process of dealing with tho offender is to consider whether the offence may not be compounded
If the offence is compounded the vehicle has naturally to be returned to the owner
If it is not compounded a complaint has to be laid before the Court empowered to take cognizance of the case and the case proceeded with
As soon as the complaint is laid the Court acquires jurisdiction to pass appropriate orders regarding the custody  and the the disposal  of the vehicle
We have already noticed how Section 4 2 of the Code of the Criminal Procedure stipulates that offences under laws other than the Penal Code also are to be investigated inquired into tried and otherwise dealt with in accordance with the provisions of the Code of Criminal Procedure 737 The provisions of Chapter XXXIV of the Code relating to Disposal of Property  are also therefore attracted in dealing with offences under the 
Section 452 of the Code enables the Court at the conclusion of an inquiry or trial to make such order as it thinks fit for the disposal by destruction confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to have been committed or which has been used for the commission of any offence
The Court thus has the power at the conclusion of the case to make appropriate orders regarding the disposal of the motor vehicle regarding which an offence appears to have been committed
So far as the custody of the vehicle pending the conclusion of the case is concerned the Court may either treat the arrangement made by the officer or person acting under section 129 A as sufficient or may itself make further or other orders
Section 451 of the Code of Criminal Procedure empowers the Court when any property is produced before it during any inquiry or trial to make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial
We think that a motor vehicle regarding whose temporary custody arrangements have been made under sec
129 A of the by the police officer or the authorised person seizing the vehicle must be considered to have been produced before the Criminal Court as soon as a complaint is filed before the Court alleging the commission of an offence under sec
123 regarding the vehicle
In any case the Court has ample power under Chapter VII of the Code Section 91 in particular to compel the production of the vehicle before the Court
Thus if the provisions of the are read in conjunction with the provisions of the Code of Criminal Procedure and there is no getting away from the provisions of both the laws it is seen that there is no lacuna whatsoever in regard to the proper custody and disposal of the motor vehicle seized under sec
129 A of the 
The custody of the vehicle in the hands the police officer or the authorised person is but temporary and he is therefore 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 he 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 738 seizing and detaining the vehicle the owner of the vehicle is not without remedy
article 226 is always available but one does not have to presume that the police officer or the authorised person may not act according to law
The Andhra Pradesh High Court appeared to think that sec
129 A of the was an unreasonable restriction on the fundamental right guaranteed by article 19 1 g of the Constitution because i there was no provision in the Act providing for confiscation of the vehicle ii there was no provision in the Act indicating what should be done after seizing and detaining the vehicle iii the seizure by the police officer or the authorised person was based on his subjective satisfaction iv there was no discernible purpose behind the seizure v there was no obligation on the seizing authority to produce the vehicle in court vi Nor was there any purpose to be served by producing the vehicle before the court as the court did not possess the power to confiscate the vehicle or to pass any orders regarding its temporary custodyvii no appeal was provided against the seizure and viii no maximum period was prescribed for the detention of the vehicle
None of these reasons bears any scrutiny if properly examined in the light of the provisions of both the and the Code of Criminal Procedure as we are bound to
Indeed whenever an offence under a law other than the Penal Code is committed and that law does not itself regulate the procedure to be followed there is no option but to look to the provisions of the Criminal Procedure Code for further action and to weave into a single texture the provisions of the code and the special law
The High Court has totally ignored the provisions of the Criminal Procedure Code and the judgment stands vitiated on that account
It has therefore to be set aside
We have explained the context of Sec
129 A in the scheme emerging from the inter lacing of the provisions of the and the Criminal Procedure Code
We do not have the slightest hesitation in rejecting the contention that there is any infringement of the fundamental right guaranteed by article 19 1 g of the Constitution and in upholding the vires of Sec
129 A of the 
One of the Learned Counsel submitted that when a tourist motor vehicle was seized under Sec
129 A there should be some safeguard in regard to the several removable items which are usually 739 found in tourist vehicles such as spare tyres spare parts radio video etc
It was suggested that in the absence of a provision similar to that found in the Criminal Procedure Code Sec 129 A Should be held to be unreasonable
There is no substance in this contention
100 of the Criminal Procedure Code to which reference was made by the Counsel deals with searches and not seizures
In the very nature of things when property is seized and not recovered during a search it is not possible to comply with the provisions of Sub Sections 4 and 5 of Sec
100 of the Criminal Procedure Code
In the case of a seizure under the  there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself
But it is in the interests of the very officer or person seizing the vehicle so that they may not be open to any charge being laid against them later that such officer or person takes care to prepare a list of detachable things which are ordinarily not part of the vehicle and give a copy of the list to the person in charge of the vehicle at the time of the seizure
In view of the discussion the appeals are allowed with cost and the writ petitions filed in High Court are dismissed
Some of the operators have directly approached this Court under article 32 of the Constitution
Their writ petitions have been heard along with the civil appeals and for the same reasons they are dismissed with costs
HLC Appeals allowed


Summary:
Section 129 A of the authorises the seizure and detention of a motor vehicle by a police officer or any other person authorised by the State Government in that behalf if such officer or person has reason to believe that the vehicle has been or is being used without a certificate of registration as required under section 22 or without a permit as required under sub section
1 of section 42 or in contravention of any condition of such permit
The appeals in this group of matters were directed against a judgment of the Andhra Pradesh High Court striking down section 129 A as an unreasonable restriction on the fundamental right guaranteed by article 191 g of the Constitution for the reason that there was no discernible purpose behind the seizure authorised by the section that the seizure was based on the subjective satisfaction of the police officer or the person authorised that there was neither any obligation on him to produce the vehicle in the court nor was any power conferred on the court either to confiscate the vehicle or to pass any orders regarding its temporary custody that there was no provision in the Act indicating as to what should be done after seizing and detaining the vehicle and that there was also no provision prescribing any maximum period for the detention of the vehicle or providing for an appeal against seizure
Upholding the validity of section 129 A and allowing the appeals  HELD There is no lacuna in regard to the proper custody and disposal of the motor vehicle seized under section 129 A of the 
The provisions of the Act have to be read in conjunction with the provisions of the Code of Criminal Procedure
739 A B i Section 129 A contemplates three situations where the police officer or the person authorised may seize and detain the vehicle and these are precisely the three situations made punishable under section 1231
The power given to seize and detain the vehicle under section 129 A has to be exercised by the police officer or the person authorised when he has reason to believe that an offence punishable under section 1231 has been or is being committed
After detecting the commission of an offence punishable under section 1231 the next step for him would be to consider whether the offence should be compounded as provided 730 under section 127 B and thereafter to lay a complaint before the Court competent to take cognizance of the offence
Section 42 of the Code of Criminal Procedure provides that all offences under any law other than the Penal Code shall also be investigated inquired into tried and otherwise dealt with in accordance with the provisions of the Code subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences
Chapter XIII of the Code deals with Jurisdiction of the Criminal Courts in inquiries and trials
So subject to section 132 of the Act the Court before which the complaint may be laid has to be determined in accordance with Chapter XIII of the Code and after the complaint is laid before the appropriate court it has to be tried in accordance with the provisions of the Code subject to section 130 of the Act
This is how the offender has to be dealt with
733 D H 734 A B G H 735 A B ii A pre condition to the seizure of a vehicle under section 129 A is that the police officer or the person authorised must have reason to believe that one or the other of the offences specified in section 123 has been or is being committed
The seizure is expected to serve a manifold purpose such as to prevent repetition of the offence to use the thing seized as material evidence in the prosecution and so on
Section 129 A itself provides that the detention of the vehicle by the authorised officer or person is to be temporary and obviously until appropriate orders regarding its disposal are made
The vehicle may be released if the owner satisfies the authorised officer or person that no offence such as that mentioned in section 129 A had been or was being committed
Again since the detention is for temporary safe custody the vehicle may be released to the owner subject to suitable security and an undertaking to produce it when called upon to do so
If the offence is compounded under section 127 B the vehicle has naturally to be returned to the owner
If a complaint is laid before the appropriate court the court acquires jurisdiction to pass appropriate orders regarding the custody and the disposal of the vehicle under Chapter XXXIV and sections 451 and 452 of the Code of Criminal Procedure
735 H 736 C H 737 A 2
The contention that section 129 A should be held unreasonable as it does not provide any safeguard in regard to the several removable items which are usually found in tourist vehicles such as spare tyres spare parts radio video etc has no substance
Section 100 of the Code of Criminal Procedure which was referred to in this context deals with searches and not seizures
In the very nature of things when property is seized and not recovered during a search it is not possible to comply with the provisions of sub sections
4 and 5 of section 100 Cr
In the case of a seizure under the  there is no provision for preparing a list of the things seized in the course of seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself
But it is in the interests of the very officer or person seizing the vehicle to prepare a list of detachable things which are ordinarily not part of the vehicle and give a copy of the list to the person in charge of the vehicle at the time of the seizure
739 A D