JUDGMENT Pinaki Chandra Ghose, J.
1. The petitioner Mr. Dutta appearing in person submitted that the licence of the petitioner was seized by the police authorities although the petitioner agreed to face the trial, even then the concerned police officer being the respondent No. 6 insisted him to sign a compound slip admitting the guilt. According to Mr. Dutta, he is agreeable to face the trial. In that case it is the duty of the concerned police officer to hand over the seizure list only and further he submitted that the police officer hasn't any right to seize the licence until and unless he had reason to believe that offender may abscond and then and then only has a right to seize the licence after recording the reasons. According to him, he duly disclosed his identity to the respondent No. 6 and further explained the position of law after disclosing his identity, even then he refused to pay any heed to the petitioner and seized licence. He further contended that such action on the part of the said authority is in violation of the provisions of Section 206(2) of the Motor Vehicles Act, 1988.
2. The concerned police officer Mr. Rakesh Kundu is personally present in Court. He submits through his learned counsel that steps were taken by him against the petitioner wrongly since he did not understand the intricacies of law, and also that he has acted at the instance of his superiors and not otherwise. It is further submitted on his behalf that due to his ignorance about the relevant provisions of law, he has wrongly seized the driving licence without issuing proper seizure list and tenders his unqualified apology before this Court.
3. Ms. Roy, learned Counsel submits that her client shall return the driving licence to the petitioner and no further steps shall be taken in the matter.
4. Considering the submissions made on behalf of the concerned police officer, the apology tendered by Mr. Kundu, the concerned police officer is accepted by the Court.
5. Since the authorities want to drop the case, as submitted by Ms. Roy, advocate, appearing for the authorities, the Court directs the authorities to drop the matter and to return the licence to the petitioner. The petitioner is also directed to take back the licence from Ms. Roy here and now.
6. I make it clear that if at any point of time a driving licence is to be seized on the apprehension that the alleged offender may abscond or may avoid service of summons on him, the authority seizing the licence shall be at liberty to do so but only upon recording proper reason therefor and not otherwise and thereafter he can take necessary follow-up action in terms of Section 206 of the Act and Rule 10(2) of the West Bengal Motor Vehicles Rules, 1989.
7. Section 206(2) and (3) of the Act and Rule 10(2) of the Rules read as under:
"Section 206(2); Any police officer or other person authorized in this behalf by the State Government may, if he has reason to believe that the driver of a motor vehicle who is charged with any offence under this Act may abscond or otherwise avoid the service of a summons, seize any licence held by such driver and forward it to the Court taking cognizance of the offence and the said Court shall, on the first appearance of such driver before it, return the licence to him in exchange for the temporary acknowledgement given under Sub-section (3).
Section 206(3): A police officer or other person seizing a licence under Sub-section (2) shall give to the person, surrendering the licence, temporary acknowledgement therefor and such acknowledgement shall authorize the holder to drive until the licence has been returned to him or until such date as may be specified by the police officer or other person in the acknowledgement, whichever is earlier:
Provided that if any Magistrate, police officer or other person authorized by the State Government in this behalf is, on an application made to him, satisfied that the licence cannot be, or has not been, returned to the holder thereof before the date specified in the acknowledgement for any reason for which the holder is not responsible, the Magistrate, police officer or other person, as the case may be, may extend the period of authorization to drive to such date as may be specified in the acknowledgement.
Rule 10(2): When a police officer seizes a licence under Sub-section (2) of Section 206 of the Act, he shall give to the person, surrendering the licence, the temporary authorization to drive under Sub-Section (3) of the said section also in Form-L As scripted in the judgment [tem] and the production thereof, on demand, shall be deemed to be production of the licence."
8. Mr. Dutta has referred to the judgment of a Division Bench of the Orissa High Court reported in 1991(II) ACC 372. It has been held therein that seizure of vehicles and impounding of documents like registration book, fitness certificate and driving licence can only be exercised strictly in accordance with the provisions of the Act or the Rules and such action cannot be exercised merely under the shelter of departmental instructions. It has further been held that illegal, arbitrary and mechanical exercise of power may give rise to a cause of action for claim of damages against the delinquent officer concerned and the cloak of enforcement of the provisions of the statute will not be available to them in such circumstances. It was also held that the officers should clearly state in the check report the infraction/violation of statutory provisions which they detect at the time of checking and reason why they retain the documents and other papers.
9. Mr. Dutta has also referred to a judgment reported in 1998(3) CLT 304, Dipankar Datta v. State of West Bengal & Ors., wherein it was held that power of seizure under Section 206(2) of the Act is not absolute and power under the said provision cannot be exercised arbitrarily. He has submitted that the authorities are bound to follow the guidelines as laid down therein in the matter of taking action under Sections 130(1)(2) and (3), 158(1), (2) and (3) and 206 of the Act. He has further submitted that the aforesaid judgment has been confirmed by the Division Bench of this Court.
10. I am in full agreement with the aforesaid judgments. It is to be noted that an alleged offender always has a right to defend himself. Insistence on admitting the offence and paying the penalty is nothing but violation of the fundamental right of a citizen guaranteed under the Constitution of India. Depriving the alleged offender of his right of hearing amounts to violation of the principles of natural justice. When commission of offence punishable under the Act is detected the police officer concerned cannot compel the alleged offender to sign on the compound slip. The police officer must be aware that he must give a chance to the alleged offender to either face trial before the appropriate Court or to compound the offence, shall act in terms of the desire expressed by the alleged offender accordingly.
11. Accordingly, the police authorities i.e., the Commissioner of Police, Calcutta; Deputy Commissioner of Police (Traffic), Calcutta; Additional Commissioner of Police (Traffic), Calcutta; Joint Commissioner of Police, Calcutta and all other authorities entrusted with duties of traffic control including the Officer-in-Charge of Traffic Guards, North, West, South, East and Central Calcutta are directed to act in terms of this order as also the order passed in the earlier case reported in 1998(3) CLT 304 (supra).
12. It is to be noted that the police authorities must act in accordance with the order passed by this Court on the earlier occasion. It was recorded therein that the police authorities had failed in imparting proper training to the officers entrusted with traffic duties. It appears from the said order that a copy of the said order was directed to be forwarded to the Home Secretary, Government of West Bengal, the Commissioner of Police, Calcutta and the Deputy Commissioner of Police, Calcutta so that the said authorities can take steps in accordance with the said order. Incidentally, it may be recorded that the said authorities did not take any step in the matter and thereby they have failed to apprise their officers as to what to do and what not to do.
13. The Secretary, Home Department, Government of West Bengal, the Commissioner of Police, Calcutta and the Deputy Commissioner of Police (Traffic), Calcutta are directed to take necessary steps in the matter.
14. Registrar General, High Court, Calcutta is directed to send a copy of this order to the Secretary, Home Department, Government of West Bengal, the Commissioner of Police, Calcutta, the Deputy Commissioner of Police (Traffic), Calcutta for onward compliance of this order.
15. The writ application is, thus, disposed of with the aforesaid observations, but without, however, any order as to costs.
16. Let a xerox plain copy of this order duly countersigned by Assistant Registrar (Court) be given to the learned advocates appearing for the parties on their usual undertaking.