K.C. Sood, J.
1. On 26th February, 2000, the petitioner was driving his Car bearing registration No. HP-09-0050 on his way to Chandigarh from Shimla. His vehicle was checked by Head Constable Abhimanu and it was found that he was not carrying a valid 'Pollutions under Control' Certificate. The one he was carrying had expired. He was challaned and produced before the learned Chief Judicial Magistrate, Shimla on the spot. The learned Chief Judicial Magistrate imposed a penalty of Rs. 400/- upon the petitioner. The amount of fine was deposited, on the spot, with the officials of the court of the learned Chief Judicial Magistrate.
2. The case of the petitioner is that he was challaned without following the procedure as provided under Chapter-V of the Central Motor Vehicles Rules, 1989. It is also the case of the petitioner that he requested the concerned police officer that his vehicle should be got tested, as per Rule 116 of the Motor Vehicles Rules, 1989, or in the alternative he should be granted time to get his vehicle checked from the competent Agency, authorized by the State Government and produce the certificate before the authority. It is his case that after having paid the fine imposed upon him he get his vehicle checked on the same day at Solan. The emission was found within permissible limits, as provided under Rule 115 of the Motor vehicles Rules and obtained 'Pollution under Control' certificate.
The petitioner challenges his prosecution and imposition of fine, on the ground that such action was illegal, arbitrary, discriminatory and not in accordance with the provisions of Motor Vehicles Act, 1988 read with The Central Motor Vehicles Rules, 1989 and the Himachal Pradesh Motor Vehicles Rules, 1999.
3. The stand of the respondents-State, in its return, is that it was incumbent upon the petitioner to have carried valid 'Pollution under Control' Certificate while driving a vehicle and produce the same on demand. As the petitioner was not carrying valid 'Pollution under Control' Certificate, he was rightly challaned though dealt with leniently by the learned Chief Judicial Magistrate, Shimla.
4. Heard Mr. Rajiv Sharma, learned Senior Advocate, assisted by Mr. Surinder Sharma, Advocate for the petitioner and Mr. M.S. Chandel, learned Advocate General, assisted by Mr. Nainta, Deputy Advocate General for the respondents.
5. The Motor Vehicles Act, 1988, hereinafter referred to as the 'Act' came into force w.e.f. 1st July, 1989. Sub-section 2 of Section 190 of the Act lays down that any person who drives or causes or allows to be driven, in any public place a motor vehicle, which violates the standards prescribed in relation to road safety, control of noise and air pollution, shall be punishable for the first offence with a fine of one thousand rupees and for any second or subsequent offence with a fine of two thousand rupees.
6. Section 190 of the Act, for convenience, is reproduced:
Using vehicle in unsafe condition.--(1) Any person who drives or causes or allows to be driven in any public place a motor vehicle or trailer the first offence which may extend to three thousand, rupees, or with imprisonment for a term which if may extend to one year, or with both, and for any second or subsequent offence with fine which may extend to five thousand rupees, or with imprisonment for a term which may extend to three years, or with both.
7. The Central Government in exercise of powers under Section 110(g) and (h) has framed the Rules known as 'The Central Motor Vehicles Rules, 1989' hereinafter referred to as the 'Rules'.
Rule 115 of the Rules lays down the norms with regard to emission of smoke, vapour, etc. from motor vehicles. It specifically provides that every motor vehicle other than motor cycles of engine capacity not exceeding 70 cc, manufactured prior to the first day of March, 1990, shall be maintained in such condition and Shall be so driven so as to comply with the standards prescribed in these rules.
8. Sub-rule (7) of Rule 115 lays down that after expiry of a period of one year from the date on which the motor vehicle was first registered, every such vehicle shall carry a valid 'Pollution under control' certificate issued by an agency authorized for this purpose by the State Government. The validity of the certificate shall be for six months or any lesser period as may be specified by the State Government from time to time and the certificate shall always be carried in the vehicle and produced on demand by the officers referred to in Sub-rule (1) of Rule 116.
Rule 116 reads:
Test for smoke emission level and Carbon Monoxide level for Motor vehicles.--(1) Notwithstanding anything contained in Sub-rule (7) of Rule 115 any officer not below the rank of Sub-Inspector of Police or the Inspector of Motor Vehicles who has reason to believe that a motor vehicle is not complying with the provisions of Sub-rule (2) or Sub-rule (7) of Rule 115, may in writing, direct the driver or any person incharge of the vehicle to submit the vehicle for conducting the test to measure the standards or emission in any one of the authorized testing stations, and produce the certificate to any authority at the address mentioned in the written direction within 7 days from the date of conducting the check.
(2) The driver or any person in-charge of the vehicle shall upon, such direction by the officer referred to in Sub-rule (1) submit the vehicle for testing for compliance of the provisions of Sub-rule (2) of Rule 115, at any authorized testing stations.
(3) The measurement for compliance of the provisions of Sub-rule (2) of rule 115 shall be done with a meter of the type approved by any agency referred to in Rule 126 of the principal rules or by the National Environmental Engineering Research Institute, Nagpur-440 001 :
Provided that such a testing agency shall follow ISO or ECE Standards and procedures for approval of measuring meters.
(4) If the result of the tests indicate that the motor vehicle complies with the provisions of Sub-rule (2) of Rule 115, the driver or any person incharge of the vehicle shall produce the certificate to the authority specified in Sub-rule (1) within the stipulated time limit.
(5) If the test results indicate that the motor vehicle does not comply with the provisions of the Sub-rule (2) of rule 115, the driver or any person incharge of the vehicle shall rectify the defects so as to comply with the provisions of the Sub-rule (2) of Rule 115 within a period of seven days and submit the vehicle to any authorized testing station for re-check and produce the certificate so obtained from the authorized testing station to the authority referred to in Sub-rule (1).
(6) If the certificate referred to in Sub-rule (1) is not produced within the stipulated period of seven days or if the vehicle fails to comply with the provisions of Sub-rule (2) of rule 115 within a period of seven days, the owner of the vehicle shall be liable for the penalty prescribed under Sub-section (2) of Section 190 of the Act.
(7) If the driver or any person in charge of the vehicle referred to in 1 (1) does not produce the said certificate within the said period of seven days, such vehicle shall be deemed to have contravened the provisions of the Sub rule (2) of Rule 115 and the checking officer shall report the matter to the Registering Authority.
(8) The Registering authority shall on receipt of the report referred to in Sub-rule (7), for reasons to be recorded in writing, suspend the certificate of registration of the vehicle until such time the certificate is produced before the registering authority to the effect that the vehicle complies with the provisions of Sub-rule (2) of rule 115.
(9) On such suspension of the certificate of registration of the vehicle, any permit granted in respect of the vehicle under Chapter V or under Chapter VI of the Motor Vehicles Act, 1988 (59 of 1988) shall be deemed to have been suspended until afresh 'Pollution under Control' certificate is obtained.
9. In the present case, the police authorities took action under Rule 115(7) of the Rules, which mandates that after the expiry of a period of one year from the date on which the motor vehicle was first registered, every such vehicle shall carry a valid 'Pollution under Control' certificate issued by an agency authorized for this purpose by the State Government.
10. The contention of Mr Rajiv Sharma, learned Senior Advocate is that if on demand the petitioner could not produce valid 'Pollution under Control' certificate issued by the competent agency then it was necessary for the concerned authority (Police officer in this case) to have proceeded against the petitioner, as provided under Rule 116 of the Rules.
11. The contention raised by Mr. Sharma, learned Senior Advocate, is well founded. Rule 116 mandates that any officer not below the rank of Sub-Inspector of Police or the Inspector of Motor Vehicles who has reason to believe that a motor vehicle is polluting air, he can direct the driver or any person incharge of the vehicle to submit the vehicle for conducting the test to measure the standards of emission at any authorized testing agencies and produce the certificate before the concerned authority at the address which may be given in writing within 7 days from the date of such checking. It will only be thereafter that the concerned driver or person incharge of the vehicle will be obliged to submit his vehicle for testing in terms of the provisions of Rule 115(2) of the Act. If the result of tests indicate that the vehicle complies with the provisions of Sub-rule (2) of Rule 115, then the driver or any person incharge of the vehicle shall produce the certificate to the authority specified in Sub-rule (1) within the stipulated/period of seven days. However, if the motor vehicle is found to be not complying with the norms laid down under Sub-rule (2) of Rule 115, then the driver or the person incharge of the vehicle is to rectify the defects within the stipulated period of seven days and submit the vehicle to any authorized testing station for re-check and produce the certificate to the authority referred to in Sub-rule (1) Rule 116. If the certificate is produced within the stipulated period of seven days, then no action is required to be taken but if the vehicle fails to comply with the norms of Sub-rule (2) of of Rule 115 within the period of seven days or if the owner of the vehicle or incharge of the vehicle or driver fails to produce 'Pollution under Control' certificate within the period of seven days then the owner of the vehicle is liable to penalty prescribed under Sub-section (2) of Section 190 of the Act.
12. A combined reading of Rules 115(7) and 116 of the Rules clearly show that before fine under Section 190(2) of the Act is imposed, the 'procedure as prescribed under Rule 116(1) has to be followed. As per the procedure, if the vehicle is found to be polluting, or if the driver is not carrying 'Pollution under control certificate' an opportunity has to be given to the driver or the person incharge of the vehicle to get his vehicle rectified and submit it for testing by the concerned authorized agency, obtain a certificate of Pollution under control certificate and produce the same before the authority, as specified under Sub-rule (1) of rule 116 of the Rules. It is only in case failure to comply with such direction that penalty under Section 190(2) of the Act can be imposed. If the certificate of 'pollution under control' under Sub-rule (7) of rule 116 of the Rules not produced, it is open to the concerned authority even to move the Registering Authority for suspension of the certificate of registration of the vehicle until such time the certificate is produced before the registering authority to the, effect that the vehicle complies with the provisions of Sub-rule (2) of Rule 115.
13. As noticed earlier, in the present case, the police challaned the petitioner, for having not produced the valid pollution under control certificate, without giving him an opportunity of getting his vehicle tested from the authorized agency and produce the same before the police. It was not given to the Head Constable, who] is not even an authorized person under Sub-rule (1) of rule 116, to have challaned the petitioner for having not carried a valid pollution under control certificate without complying with the provisions of Rule 116(1) of the Rules.
16. It is admitted position that the petitioner got his vehicle checked from an authorized agency on the same day and his vehicle was found to be emitting pollution within the limits prescribed. Sub-rule 116(6) clearly lays down that before proceeding to levy a penalty under Section 190(2) of the Act, the incumbent should be given seven days notice to get the vehicle rectified and it is only if he fails to comply then penalty under Section 190(2) of the Act can be imposed. The impugned penalty imposed on the petitioner being illegal is liable to be set aside.
15. No other, point is urged.
16. In result, the petition is allowed. The penalty imposed on the petitioner by the learned Chief Judicial Magistrate, Shimla, being illegal is set aside. Fine of Rs. 400/- deposited by the petitioner shall be refunded back to him within thirty days from today.
17. The Registrar General shall send a copy of this judgment to the Secretary (Home), Director General of Police, and the Secretary (Transport) to the Government of Himachal Pradesh for its circulation to the concerned police officers and authorities for their guidance.
No costs.