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Monday, April 30, 2012

where sanction under Section 7 of the said Act is not obtained, the prosecution will have to be quashed but it would be open to the prosecution to start the prosecution afresh after obtaining sanction from the competent authority.Section 7 of the Explosive Substances Act, 1908 (for short, “the said Act”), as the controversy revolves round the ‘consent to prosecute’ contemplated therein. It reads thus: “Section 7: No court shall proceed to the trial of any person for an offence against this Act except with the consent of the Central Government.” It must be stated here that by Act 54 of 2001, Section 7 was amended and the words ‘Central Government’ were substituted by the words ‘District Magistrate’. It is true that learned Sessions Judge has, by his order dated 13/9/2007 discharged the appellant of the charges under Sections 3, 4, 5 and 6 of the said Act because there was no sanction. But, the prosecution has now obtained sanction. The Sessions Judge has accepted the sanction and has directed that the trial should be started against the appellant for offences under Sections 3, 4, 5 and 6 of the said Act, as well. The order of the Sessions Judge is affirmed by the impugned order passed by the High Court. In view of the legal position as discussed above, and in the facts of the case, as narrated above, we see no reason to interfere in the matter and we direct the trial court to frame additional charges against the appellant under Sections 3, 4, 5 and 6 of the said Act and to proceed with the trial. Needless to say that the stay of further proceedings granted by this court on 5/7/2011 shall stand vacated.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 719 OF 2012
       [Arising out of Special Leave Petition (Cri.) No.3989 of 2011]



DEEPAK KHINCHI                    …          APPELLANT

                                   Versus

STATE OF RAJASTHAN                …          RESPONDENT



                                  JUDGMENT


(SMT.) RANJANA PRAKASH DESAI, J.


1.    Leave granted.


2.    This appeal, by grant of special leave, is directed  against  judgment
and order dated  24/01/2011  passed  by  the  High  Court  of  Rajasthan  at
Jodhpur.    By  the  impugned  judgment,  learned  Single  Judge   dismissed
Criminal  Revision  Petition  No.853  of  2010  filed   by   the   appellant
challenging  order  of  Addl.  Sessions  Judge  (Fast  Track),   Chittorgarh
allowing application submitted by the prosecution under Section 311  of  the
Code of Criminal Procedure, 1973 (for short, “the Code”) and directing  that
trial should proceed against the appellant for offences  under  Sections  3,
4, 5 and 6 of the Explosive Substances Act, 1908.

3.    Before, we turn to the facts of the case, it is necessary  to  have  a
look at Section 7 of the Explosive Substances Act,  1908  (for  short,  “the
said Act”), as the controversy revolves round  the  ‘consent  to  prosecute’
contemplated therein. It reads thus:




           “Section 7: No court shall proceed to the trial  of  any  person
           for an offence against this Act except with the consent  of  the
           Central Government.”

      It must be stated here that by Act 54 of 2001, Section 7  was  amended
and the words ‘Central Government’ were substituted by the  words  ‘District
Magistrate’.

4.     The appellant claims to be a trader registered under  the  provisions
of the Rajasthan Sales Tax  Act,  1994.   According  to  him,  he  deals  in
Kerosene, lubricants, paints, varnish, thinner, petroleum products  and  has
a license for the storage of  solvents,  petrochemicals  and  raw  materials
used for the purpose of blasting for mining, roads and other end  uses.  The
prosecution alleges that on 2/5/2006 at about 6.40 p.m. a fire broke out  in
the shop/store of the  appellant  situated  at  Gandhinagar  Vistar  Yojana,
Chittorgarh, Rajasthan due to which many children, women and men were  burnt
alive.  The SHO, Reserve  Center,  Chittorgarh,  upon  receiving  telephonic
information from an unknown caller, visited  the  spot  and  registered  the
First Information Report against three  persons  under  Sections  285,  286,
323, 324, 304 of the Indian Penal Code (for short, “the IPC” )  as  well  as
under Sections 3, 4, 5 and 6 of the said Act. The appellant was  arrayed  as
accused 1.  Upon completion of the investigation,  charge  sheet  was  filed
before the learned CJM, Chittorgarh under Sections 285, 286,  323,  324  and
304 of the IPC as well as under Sections 3, 4, 5 and 6 of the said Act.   In
respect of the offences under the provisions of the said Act, no consent  of
the competent authority was taken.

5.    After committal of the case before the Sessions Court,  the  case  was
registered as Sessions Case No.53 of 2006. After  the  arguments  on  charge
were heard on 7/8/2007, the Sessions Court directed the prosecution, in  the
interest of justice, to file a reply,  inter  alia,  stating  why  mandatory
permission under Section 7 of the said Act was not taken and indicating  the
correct legal position in that behalf.  The case was posted for  hearing  on
22/8/2007.  Though opportunity was given, Addl. Public  Prosecutor  did  not
file any reply nor did he submit any  written  arguments.   He  prayed  that
another opportunity be given to him to  file  reply.   In  the  interest  of
justice, learned Sessions  Judge  adjourned  the  case.   On  10/9/2007,  an
application was moved by the Addl. Public Prosecutor  stating  that  he  had
written a letter to the SHO through the  Superintendent  of  Police  but  no
reply has been received so far. The case was, therefore, posted for  hearing
on 12/9/2007.  Even on 12/9/2007, the sanction was not produced.   Arguments
of parties were heard and on 13/9/2007, learned  Sessions  Judge  discharged
the appellant of the offences under the said  Act.   While  discharging  the
appellant of the said offences, learned Sessions  Judge  noted  that  though
the hearing was repeatedly postponed,  Addl.  Public  Prosecutor  failed  to
produce the sanction and state the correct  legal  position.   The  question
whether if a sanction is produced in future, the appellant  could  be  tried
for offences under the said Act was kept open by  him.   He  sought  for  an
explanation from the District Magistrate, Chittorgarh why sanction  was  not
obtained though 14 persons had died and a number  of  persons  had  received
severe burn injuries in the  disastrous  fire  accident.   Learned  Sessions
Judge also called for an explanation as to why the  Chief  Secretary,  State
of Rajasthan should not be informed about the unhappy state of  affairs  due
to which he was constrained to  discharge  the  appellant  of  the  offences
under the said Act.  Learned Sessions Judge, however, noted that it was  his
prima facie  view that the appellant  had  not  taken  adequate  care  while
conducting his business of storing and marketing of inflammable  substances.
 He further noted that prima facie, it was evident that carelessness of  the
appellant led to the fire in his shop killing 14 persons and injuring  many.
 He, therefore, directed that charge for the offences  under  Sections  285,
286 and 304 of the IPC be framed against the appellant on the next  date  of
hearing of the case.  It is pertinent to note that the appellant  challenged
order dated 13/9/2007 before learned Single  Judge  of  the  Rajasthan  High
Court.  The said petition was dismissed.

6.    On 3/4/2008, the SHO, Reserve Centre,  Kotwali  moved  an  application
through the Addl. Public Prosecutor along with  sanction  letter  issued  on
1/4/2008 by the District Magistrate,  Chittorgarh.   On  15/5/2010,  learned
Sessions Judge rejected the application  on  the  ground  that  sanction  to
prosecute the appellant under Sections 3, 4, 5 and 6  has  been  granted  by
the District Magistrate, however, it is not under  Section  7  of  the  said
Act.  A copy of the sanction order is annexed to the appeal memo at  Ex-P/6.
 It would be advantageous to  produce  the  relevant  portion  of  the  said
sanction order.

      “From the investigation of the case it  has  been  revealed  that  the
      accused while acting negligently and in violation of the rules of  the
      license kept in  his  shop  in  residential  area  highly  inflammable
      substance solvent with the knowledge that it could at any  time  cause
      heavy loss to life and property but then also he  committed  this  act
      due to which the explosion took place and the  incident  happened  and
      damage has been caused to life and property.


           Therefore, against the  accused  Deepak  Khichi  S/o  Madan  Lal
      Khichi R/o Gandhi Nagar Chittorgarh prima facie the case under section
      3, 4, 5, 6 of the Explosive Substance Act, 1908 is found to have  been
      proved due to which under section 7 of the  Explosive  Substance  Act,
      1908 the sanction for prosecution  upon  the  filing  of  the  challan
      before a competent court is granted.”

      It is surprising that in a serious case  like  this,  the  prosecution
should not challenge  order  dated  15/5/2010  passed  by  learned  Sessions
Judge.

7.    The prosecution again submitted an application purported to  be  under
Section 311 of the Code along with sanction dated  1/6/2010  issued  by  the
District  Magistrate,  Chittorgarh.  As   stated   hereinabove,   the   said
application was allowed by learned Sessions Judge  on  16/11/2010.   By  the
impugned order passed by the  Rajasthan  High  Court  the  order  passed  by
learned Sessions Judge was upheld. Hence, the present appeal.

8.    We have heard  learned  counsel  for  the  parties,  at  some  length.
Counsel for the appellant submitted that the courts below erred in  allowing
the application filed by the  prosecution  after  a  delay  of  about  three
years.  He submitted that it  was  not  open  to  the  prosecution  to  make
repeated attempts to get sanction from  the  competent  authority.   Counsel
submitted that by passing order under Section 311 of  the  Code,  the  trial
court has subjected the appellant to the ordeal of a trial for the  offences
under the said Act after a period of  three  years.  This  has  resulted  in
miscarriage of justice.  Counsel submitted that since  the  prosecution  had
deliberately delayed obtaining sanction, it cannot be now  allowed  to  fill
in the lacuna.  Such a course will result in abuse of process of court.   In
support of his submissions, counsel relied on the judgments  of  this  court
in Rajendra Prasad  v.  Narcotic Cell[1] and State of Himachal  Pradesh   v.
Nishant Sareen[2].

9.    The explosion which took place in the  appellant’s  shop  resulted  in
death of 14 persons.  Several persons were  severely  injured.   Seriousness
of the occurrence can  hardly  be  disputed.   Learned  Sessions  Judge  has
framed charges against the appellant for offences under the IPC  because  in
his prima facie opinion, there is enough material against the  appellant  to
bring home the said charges.  It is unfortunate  that  so  far  as  offences
under the  said  Act  are  concerned,  there  should  be  so  much  inaction
bordering on callousness on the part of the prosecution.   Learned  Sessions
Judge has in his order expressed despair about  the  prosecution’s  conduct.
He had called for an explanation but the  explanation  does  not  appear  to
have come.  We express our extreme displeasure about this  approach  of  the
prosecution.  We wonder whether as desired by learned  Sessions  Judge,  the
inaction  of  the  prosecution  was  conveyed  to   the   Chief   Secretary.
Ultimately, learned Sessions Judge had to discharge  the  appellant  of  the
said charges because there was no sanction.

10.   As  stated  hereinabove,  on  1/4/2008  sanction  was  issued  by  the
District  Magistrate,  Chittorgarh,  but  the  application   made   by   the
prosecution for framing charge against the appellant under the said Act  was
rejected by learned Sessions Judge.  We are prima facie satisfied  that  the
letter of the District Magistrate, Chittorgarh issued on 1/4/2008 gave  good
and valid consent as envisaged under Section 7 of the Act for trial  of  the
appellant for offences under the said Act and  the  learned  Sessions  Judge
was in error in rejecting the consent letter by his order  dated  15/5/2010.
The proper course for the prosecution was to challenge that order  and  have
it set aside by the High Court.  Instead of  taking  that  course,  a  fresh
sanction was issued by the District  Magistrate,  Chittorgarh  on  1/6/2008.
The prosecution then filed an application under Section  311  of  the  Code.
It was prayed that sanction issued under Section 7 of the said  Act  by  the
District Magistrate be taken on  record  and  the  appellant  be  tried  for
offences under Sections 3, 4, 5 and 6 of the  said  Act.   Learned  Sessions
Judge while granting  the  said  application,  relied  on  the  judgment  of
Rajasthan High  Court,  Jaipur  Bench  in  Ramjani  &  Ors.   v.   State  of
Rajasthan[3] wherein it was held that where sanction under Section 7 of  the
said Act is not obtained, the prosecution will have to  be  quashed  but  it
would be open to the prosecution  to  start  the  prosecution  afresh  after
obtaining sanction from the competent  authority.   The  High  Court  upheld
this order.

11.   Before dealing with the  submissions  of  learned  counsel,  we  shall
refer to the judgments on which reliance is placed by  learned  counsel  for
the appellant.  In Rajendra Prasad,  this court explained when a  court  can
exercise its power of recalling or re-summoning witnesses.  While  repelling
the contention raised by counsel for the appellant therein that power  under
Section 311 of the Code was being exercised to  fill  in  the  lacuna,  this
court observed that a lacuna in the prosecution must be  understood  as  the
inherent weakness or a latent wedge in the matrix of the  prosecution  case.
The advantage of it should normally go to the accused in the  trial  of  the
case, but an oversight in  the  management  of  the  prosecution  cannot  be
treated as irreparable lacuna.  This court clarified  that  no  party  in  a
trial can be foreclosed from correcting errors and if  proper  evidence  was
not adduced or a relevant material was not brought  on  record  due  to  any
inadvertence, the court should be magnanimous in  permitting  such  mistakes
to be rectified.  This court  observed  that  after  all,  function  of  the
criminal court is administration  of  criminal  justice  and  not  to  count
errors committed by the parties or to find out and  declare  who  among  the
parties performed better.  In our opinion, the  appellant  cannot  draw  any
support from this judgment because it  arose  out  of  a  totally  different
facts scenario.  If at all the observations  of  this  court  quoted  by  us
would help the prosecution rather  than  the  appellant.    No  question  of
sanction was involved in that case.  The prosecution and defence had  closed
their evidence and thereafter at the instance of  the  prosecution,  two  of
the witnesses who had already been examined, were summoned for the  purposes
of proving certain documents for  prosecution.  In  the  circumstances,  the
question arose whether by making application under Section 311 of the  Code,
the prosecution was trying to fill in the lacuna.  In our opinion,  Rajendra
Prasad has no application to the present case.  We do not  want  to  express
any opinion as to whether in this case, the  application  was  made  rightly
under Section 311 of  the  Code  by  the  prosecution.   We  find  that,  in
substance, the application filed by the prosecution was  for  tendering  the
consent/sanction of the District Magistrate, on record  and  requesting  the
court to start trial against  the  appellant  for  the  offences  punishable
under the said Act.  Learned Sessions Judge granted the said application.

12.   In Nishant  Sareen,  the  respondent  therein  was  caught  red-handed
accepting bribe from the complainant.  Sanction was sought by the  Vigilance
Department under Section 19 of the Prevention of  Corruption  Act,  1988  to
prosecute  the  respondent.   The  Principal  Secretary  (Health)  found  no
justification in granting sanction to prosecute  the  respondent.   Sanction
was refused.  Thereafter, Vigilance Department  took  up  the  matter  again
with the Principal Secretary (Health) for grant  of  sanction.   The  matter
was reconsidered.  Though  no  fresh  material  was  available  for  further
consideration, the competent authority granted  sanction  to  prosecute  the
respondent. It is in these  circumstances  that  this  court  observed  that
sanction to prosecute a public servant on review could be granted only  when
fresh materials have been collected by the investigating  agency  subsequent
to earlier order.  Reconsideration can be done by the sanctioning  authority
in the light of the fresh material, prayer for  sanction  having  been  once
refused.  This case also can  have  no  application  to  the  facts  of  the
present case.  Here, initially prosecution did show  lackadaisical  approach
in obtaining sanction.  But, at no point of time, sanction was refused.   On
1/4/2008, the District Magistrate  granted  sanction  but  learned  Sessions
Judge rejected the application. Looking to the seriousness  of  the  matter,
that order ought to have been challenged by the prosecution but it  was  not
challenged.  Thereafter, the District  Magistrate  again  granted  sanction.
Learned Sessions Judge took that sanction on record and directed  the  trial
to proceed against the appellant for offences under Sections 3, 4, 5  and  6
of the said Act.   The  High  Court  affirmed  the  view  taken  by  learned
Sessions Judge. To these facts, judgment in Nishant Sareen,  where  sanction
was refused earlier by the Principal Secretary (Health) and was  granted  on
the same material later on, can have no application.

13.   In this connection, we may usefully refer  to  the  judgment  of  this
court in State of Goa  v.  Babu Thomas[4].  In  that  case,  the  respondent
therein was employed as Joint Manager in Goa Shipyard Limited, a  Government
of India Undertaking under the Ministry of Defence.  He was arrested by  the
CID, Anti-Corruption Bureau of Goa Police on the  charge  that  he  demanded
and accepted illegal  gratification  from  an  attorney  of  M/s.  Tirumalla
Services in order to show favour  for  settlement  of  wages,  bills/arrears
certification of pending bills and to show favour in the day-to-day  affairs
concerning the  said  contractor.   The  first  sanction  to  prosecute  the
respondent was issued by an incompetent  authority.    The  second  sanction
issued retrospectively after the  cognizance  was  taken  was  also   by  an
incompetent authority.   This  court  held  that  when  Special  Judge  took
cognizance, there was no sanction under the  law  authorizing  him  to  take
cognizance.  This was a fundamental error which invalidated  the  cognizance
as being without jurisdiction.  However, having regard  to  the  gravity  of
the allegations leveled against the respondent,  this  court  permitted  the
competent authority to issue a  fresh  sanction  order  and  proceed  afresh
against the respondent from the stage of taking cognizance of  the  offence.
It  is  pertinent  to  note  that  the  offence  therein  was  committed  on
14/9/1994.  Looking to the seriousness of the offence, this court  permitted
the competent authority to issue fresh sanction order after about 10  years.
 We have no hesitation in drawing support from this judgment.   The  offence
in this case is equally grave.  At no stage, sanction  was  refused  by  the
competent authority.  It is not the case of the appellant that  sanction  is
granted by the authority, which is not  competent.   It  is  true  that  the
proceedings are sought to be  initiated  under  the  said  Act  against  the
appellant after three years.  But, in the  facts  of  this  case,  where  14
innocent persons lost their lives and several persons were severely  injured
due to the blast which took place  in  the  appellant’s  shop,  three  years
period cannot be termed as delay.  It is also the duty of the court  to  see
that perpetrators of crime are tried and convicted if  offences  are  proved
against them.  We are not inclined to accept the specious argument  advanced
by learned counsel for the appellant that  the  lapse  of  three  years  has
caused prejudice to the accused.  The case will be conducted  in  accordance
with the law and the appellant will have enough  opportunity  to  prove  his
innocence.  Besides, equally dear to us are the victim’s rights.

14.   It is true that  learned  Sessions  Judge  has,  by  his  order  dated
13/9/2007 discharged the appellant of the charges under  Sections  3,  4,  5
and 6 of the said Act because there was no sanction.  But,  the  prosecution
has now obtained sanction.  The Sessions Judge  has  accepted  the  sanction
and has directed that the trial should be started against the appellant  for
offences under Sections 3, 4, 5 and 6 of the said Act, as well.   The  order
of the Sessions Judge is affirmed by the impugned order passed by  the  High
Court.  In view of the legal position as discussed above, and in  the  facts
of the case, as narrated above, we see no reason to interfere in the  matter
and we direct the trial  court  to  frame  additional  charges  against  the
appellant under Sections 3, 4, 5 and 6 of the said Act and to  proceed  with
the trial.  Needless to say that the stay of further proceedings granted  by
this court on 5/7/2011 shall stand vacated.

15.   Appeal is disposed of in the aforestated terms.

                                                       ……………………………………………..J.
                                (AFTAB ALAM)

                                                       ……………………………………………..J.
                                                     (RANJANA PRAKASH DESAI)
NEW DELHI,
APRIL 30, 2012.
-----------------------
[1]    (1999) 6 SCC 110
[2]    (2010) 14 SCC 527
[3]    1993 Cr.L.R. (Raj.) 179
[4]    (2005) 8 SCC 130

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16


The petitioner is a businessman engaged in the business of distribution of pre-paid virtual and tangible calling value for mobile phone subscribers and also sells new customer acquisition packs and follows it up, by collection of customer application forms and executing tele-calling, to verify customer credentials. In this Public Interest Litigation, the petitioner has attempted to highlight the grave issue of non-observance of norms/regulations/guidelines related to proper and effective subscriber verification by various service providers. In fact, according to the petitioner, there is rampant flouting of norms/regulations/guidelines relating to this subject matter and there is no proper verification of the subscribers prior to selling of the pre-paid mobile connections to them. 2. The Telecom Regulatory Authority of India (for short, “TRAI”) is the regulatory body for the telecommunications sector in India and the Union of India has responsibility to issue guidelines and frame regulations and conditions of licence, in consultation with the TRAI, to ensure coordination, standardization and compliance with the regulations, as well as protecting the security interests of the country. 3. It is the averment of the petitioner that the telecom sector has witnessed the most fundamental structural and institutional reforms since 1991. This sector has grown significantly in the last few years. As per the Annual Report for 2009-2010 of the Department of Telecommunication, Ministry of Communications and IT, Government of India (for short “DoT”), as on 31st December, 2009, the Indian telecom sector had about 5622.11 million connections. The tele-density per hundred population, which is an important indicator of telecom penetration in the country, has increased from 2.32 per cent in March, 1999 to 47.88 per cent in December, 2009. The Eleventh Five Year Plan for 2007-2012 had provided a target of 600 million connections, but the industry has already provided around 700 million connections, thus far exceeding the target. Different random studies in relation to pre-paid Subscriber Identity Module (SIM) cards show widespread violation of guidelines for Know Your Customer (KYC) and even other common guidelines. The SIM cards are provided without any proper verification, which causes serious security threat as well as encourages malpractices in the telecom sector. It appears that 65 per cent of all pre-paid SIM cards issued in Jammu & Kashmir and 39 per cent of all pre-paid SIM cards in Mumbai, may have been issued without verification; which means that 1 out of every 6 pre-paid SIM cards is issued without proper verification. The averment is that such unverified SIM cards are also used in terrorist attacks. In view of our above discussion, we partially allow the writ petition. The instructions dated 14th March, 2011 issued by DoT be and hereby are accepted by the Court subject to the following conditions: (i) We hereby direct the constitution of a Joint Expert Committee consisting of two experts from TRAI and two experts from DoT to be chaired by the Secretary, Ministry of Communications and Information Technology, Government of India. (ii) This Committee shall discuss and resolve the issues on which TRAI in its affidavit has given opinion divergent to that declared by DoT in its instructions dated 14th March, 2011. Following are the points of divergence that require examination by the Joint Expert Committee : (a) Whether re-verification should be undertaken by the service provider/licensee, the DoT itself or any other central body? (b) Is there any need for enhancing the penalty for violating the instructions/guidelines including sale of pre-activated SIM cards? (c) Whether delivery of SIM cards may be made by post? Which is the best mode of delivery of SIM cards to provide due verification of identity and address of a subscriber? (d) Which of the application forms, i.e., the existing one or the one now suggested by TRAI should be adopted as universal application form for purchase of a SIM card? (e) In absence of Unique ID card, whether updating of subscriber details should be the burden of the licensee personally or could it be permitted to be carried out through an authorized representative of the licensee? (f) In the interest of national security and the public interest, whether the database of all registered subscribers should be maintained by DoT or by the licensee and how soon the same may be made accessible to the security agencies in accordance with law? (iii) The above notified Committee shall resolve the above specified issues and any other ancillary issue arising therefrom and make its recommendations known to the DoT within three months from today. (iv) The DoT shall take into consideration the recommendations of the Joint Expert Committee. The instructions issued by DoT dated 14th March, 2011 shall thereupon be amended, modified, altered, added to or substituted accordingly. They shall then become operative in law and binding upon all concerned. (v) Composite instructions, so formulated, shall positively be issued by the DoT within 15 weeks from today and report of compliance submitted to the Registry of this Court. 21. The writ petition is disposed of with the above directions. There shall be no order as to costs.


                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION


                    WRIT PETITION (CIVIL) NO. 285 OF 2010





      Avishek Goenka                                   … Petitioner

                                   Versus
      Union of India   & Anr.                             … Respondents





                               J U D G M E N T



      Swatanter Kumar, J.


      1.    The petitioner is a  businessman  engaged  in  the  business  of
      distribution of pre-paid virtual and tangible calling value for mobile
      phone subscribers and also sells new customer  acquisition  packs  and
      follows it  up,  by  collection  of  customer  application  forms  and
      executing tele-calling, to  verify  customer  credentials.    In  this
      Public Interest Litigation, the petitioner has attempted to  highlight
      the grave  issue  of  non-observance  of  norms/regulations/guidelines
      related to proper and effective  subscriber  verification  by  various
      service providers.  In fact, according to  the  petitioner,  there  is
      rampant flouting  of  norms/regulations/guidelines  relating  to  this
      subject matter and there is no proper verification of the  subscribers
      prior to selling of the pre-paid mobile connections to them.
      2.    The Telecom Regulatory Authority of India (for short, “TRAI”) is
      the regulatory body for the telecommunications sector in India and the
      Union of India  has  responsibility  to  issue  guidelines  and  frame
      regulations and conditions of licence, in consultation with the  TRAI,
      to  ensure  coordination,  standardization  and  compliance  with  the
      regulations, as well as  protecting  the  security  interests  of  the
      country.
      3.    It is the averment of the petitioner that the telecom sector has
      witnessed the most fundamental structural  and  institutional  reforms
      since 1991.   This sector has grown  significantly  in  the  last  few
      years.   As per the Annual Report for 2009-2010 of the  Department  of
      Telecommunication, Ministry of Communications and  IT,  Government  of
      India (for short “DoT”), as on 31st December, 2009, the Indian telecom
      sector had about 5622.11 million connections.   The  tele-density  per
      hundred  population,  which  is  an  important  indicator  of  telecom
      penetration in the country, has increased from 2.32 per cent in March,
      1999 to 47.88 per cent in December, 2009.    The  Eleventh  Five  Year
      Plan for 2007-2012 had provided a target of 600  million  connections,
      but the industry has already provided around 700 million  connections,
      thus far exceeding the target. Different random studies in relation to
      pre-paid  Subscriber  Identity  Module  (SIM)  cards  show  widespread
      violation of guidelines for Know Your Customer (KYC)  and  even  other
      common guidelines.   The SIM cards are  provided  without  any  proper
      verification,  which  causes  serious  security  threat  as  well   as
      encourages malpractices in the telecom sector.  It appears that 65 per
      cent of all pre-paid SIM cards issued in Jammu & Kashmir  and  39  per
      cent of all pre-paid SIM cards in Mumbai, may have been issued without
      verification; which means that 1 out of every 6 pre-paid SIM cards  is
      issued without  proper  verification.    The  averment  is  that  such
      unverified SIM cards are also used in terrorist attacks.
      4.    This Court, in the case of  State  (NCT  of  Delhi)  Vs.  Navjot
      Sandhu alias Afsan Guru [(2005) 11 SCC 600] had,  with  some  caution,
      referred to a large number of calls which had been made by  terrorists
      from instruments containing  unverified  SIM  cards.   It  is  further
      averred by the petitioner that around 80 per cent of the pre-paid  SIM
      cards may be purchased in pre-activated form which is in violation  of
      the notifications issued by the DoT, dated  22.11.2006  and  23.3.2009
      respectively, banning the sale of pre-activated SIM  cards.    Another
      significant fact that has been brought out in this petition  is  that,
      pre-paid SIM  cards,  which  are  the  most  commonly  issued  without
      verification, constitute 96 per cent of  the  total  SIM  cards  sold.
      This indicates the seriousness of the problem as well as the  security
      hazard that emerges from the telecom sector.
      5.    Thus, the petitioner has prayed  that  there  should  be  strict
      implementation  of  subscriber   verification   guidelines,   physical
      verification be compulsory in future and physical  re-verification  of
      existing subscriber base be conducted in a transparent manner. He also
      seeks the prevention of inflated subscriber base. On  all  matters  in
      relation to these prayers, he pleads for issuance of appropriate writ,
      orders or directions.  Upon notice, the DoT as well as  the  TRAI  had
      put in appearance and placed on record the guidelines  issued  by  the
      DoT, as well as the comments of TRAI, respectively.
      6.    The petitioner, during the pendency of the  petition,  filed  an
      Interim Application, I.A. No. 6 of 2012,  wherein  he  referred  to  a
      circulation containing the draft norms prepared by the  Government  of
      India (DoT) in relation to :
            • Re-verification of existing customer base.
            • Verification process as followed in Assam, J&K to be extended
              across country.
            • Mail of SIM card and activation details to the address of the
              subscriber, both being  sent  separately.    This  method  is
              similar to that of delivery of debit, credit cards.
            • Refuse to recognize government ID cards as sufficient  proof,
              etc.
      7.    According to the petitioner, these norms have not  been  adhered
      to and in fact, the present instructions /  guidelines  formulated  by
      DoT are at variance to the norms, ignoring essential  precautions  for
      verification of subscriber identity and safe distribution of  pre-paid
      SIM cards.
      8.    We have already noticed that the rapid expansion of the  telecom
      sector  and  its  impact  on   development,   both,   equally   impose
      responsibility on the Government of India, the regulatory body and the
      various stakeholders  in  the  telecom  sector  to  carry  out  proper
      verification of the pre-paid SIM cards and ensure national safety  and
      security.   To achieve this object, it is  primarily  for  the  expert
      bodies and  the  Government  of  India  to  act  and  discharge  their
      respective functions.
      9.    In terms of Section 11 of the Telecom  Regulatory  Authority  of
      India Act, 1997 (for short, ‘the Act’), it is a  statutory  obligation
      upon the TRAI to recommend a regulatory regime which  will  serve  the
      purpose of development, facilitate competition and promote efficiency,
      while taking due precautions in regard to  safety  of  the  people  at
      large and  the  various  other  aspects  of  subscriber  verification.
      Similarly, the DoT is responsible for discharging  its  functions  and
      duties as, ultimately, it is the responsibility of the  Government  to
      provide for the safety of its citizens.  The TRAI has to regulate  the
      interests of telecom service  providers  and  subscribers,  so  as  to
      permit and ensure orderly growth of telecom sector.  The Government of
      India and  TRAI,  both,  have  to  attain  this  delicate  balance  of
      interests by providing relevant instructions or guidelines in a timely
      manner and ensuring their implementation in accordance with law.
      10.   While referring to the guidelines issued by DoT and the comments
      of  TRAI  thereupon,  the  petitioner  has  raised,  inter  alia,  but
      primarily, the following objections :
        i)  Despite  clear  guidelines  and  decision   to   complete   re-
           verification  of  existing  customer  base,  scheduled   to   be
           completed between 1st November,  2009  to  31st  October,  2010,
           which time was further  extended  to  31st  December,  2010,  no
           effective steps have been taken to complete this exercise.
       ii) Re-verification has been left in the  hands  of  the  interested
           stakeholders, i.e., the service providers  themselves,  who  are
           not taking appropriate and effective steps to complete  the  re-
           verification exercise.
      iii) The delivery  of  the  pre-paid  SIM  card  to  the  prospective
           subscribers should be  effected  by  registered  post  and  home
           delivery process, so as to provide  basic  verification  of  the
           address of the subscriber.
       iv) There should be no relaxation of requirement for  photograph  of
           the subscriber in the Customer Acquisition Forms (CAF).
        v) Lastly, that there should be heavy penalty for violation of  the
           guidelines and particularly, for providing pre-paid SIM cards to
           subscribers whose identity and addresses are unverified.
      11.   Before this Court, the DoT filed  its  instructions  dated  14th
      March, 2011, relating to various aspects involved in the present  case
      and  specifically,  on  the  manner  of  verification  of  new  mobile
      subscribers (pre-paid  and  post-paid).    These  instructions,  inter
      alia,  dealt  with  the  verification   and   activation   of   mobile
      connections, special guidelines for issue  of  mobile  connections  to
      foreigners and outstation users, bulk mobile  connections,  change  in
      the name of subscriber, disconnection, lodging of complaints and  even
      imposition  of  penalties.    Clause  3(vii)  of  these   instructions
      provided that pre-activated SIM cards are not to be sold.   In case of
      sale of pre-activated SIM cards, a penalty of Rs.  50,000/-  per  such
      connection shall be levied  upon  the  service  provider/licensee,  in
      addition to immediate disconnection of the mobile connection.
      12.   Most of the  grievances  raised  by  the  petitioner  have  been
      appropriately dealt with under  these  instructions.    But,  however,
      some of the issues have not been comprehensively provided  for.    The
      TRAI filed an affidavit dated  14th  March,  2012,  dealing  with  the
      instructions  of  the  DoT,  dated  14th  March,  2011.  In  the  said
      affidavit, however, TRAI suggested certain variations as  provided  in
      Annexure R-I to their affidavit.  According to TRAI, the  verification
      of identity is dealt with differently  in  different  countries,  some
      have provided stringent standards of documentation  of  identification
      while others have not  issued  any  guidelines  and  left  it  to  the
      discretion of the service provider.   In India, TRAI recommended  that
      the Customer Acquisition Form (CAF) have a “unique” number, which  may
      be affixed at a central warehouse, rather than prior to  distribution.
       TRAI also recommended that the CAF form  should  be  simpler  in  its
      content as the form presently  in  use  is  not  serving  its  purpose
      adequately.  TRAI has annexed to its affidavit,  as  Annexure  I,  the
      sample form which should be adopted as a regular form to be filled  in
      by the subscriber.   According to TRAI, in a manner  similar  to  bulk
      users, even individual users should disclose all  the  SIM  cards  and
      connections in the name of such individual, with due  verification  by
      the licensee. Also differing with the instructions of DoT on the issue
      of manner of conversion from pre-paid  to  post-paid  connections  and
      vice-versa,  as  well  as  regarding  the  transferability  of  mobile
      connections, TRAI submits that the both  should  be  permissible,  the
      former being treated as a change in tariff plan (not as a fresh  or  a
      transferred connection) and the latter as  a  new  mobile  connection,
      subject to consent of the existing owner of the mobile connection.
      13.   The other issue on which DoT and TRAI differed is,  whether  the
      employees of the  licensee/service  provider  should  be  required  to
      personally update  the  subscriber  details  in  the  database.  While
      according to DoT, this should be carried out by the employees  of  the
      licensee itself, however, according to TRAI, it can be done  by  their
      authorized representatives, keeping  in  view  various  factors,  like
      expense, time, efficiency and practicability.  Both TRAI and  DoT  are
      agreeable that such a  database  of  all  the  registered  subscribers
      should be maintained by the licensee and the same be  made  accessible
      to  the  security  agencies.   Giving  an  example  of  the   Nigerian
      Communication Commission, which maintains a similar  database  of  all
      registered subscribers, TRAI concludes that even the general  evidence
      demonstrates that such database makes verification and tracing of  the
      identity of the subscriber easier,  particularly  in  absence  of  the
      Unique  ID  cards.   Some  of  the  licensees  and  service  providers
      intervened in the present writ petition and have taken  a  stand  that
      they are, in fact, maintaining  database  details  of  all  registered
      subscribers.   Such  information  is  also  made  available   to   the
      Government Department or security agencies on demand and in accordance
      with law.
      14.   If one examines the powers and functions of TRAI, as  postulated
      under Section 11 of the Act, it is clear  that  TRAI  would  not  only
      recommend, to the DoT, the terms and conditions upon which  a  licence
      is granted to a service provider but has to also ensure compliance  of
      the same and may recommend revocation of licence in the event of  non-
      compliance with the regulations.   It has to perform very  objectively
      one of its main functions, i.e., to facilitate competition and promote
      efficiency in the operation of the telecommunication services,  so  as
      to facilitate growth  in  such  services.   It  is  expected  of  this
      regulatory authority to  monitor  the  quality  of  service  and  even
      conduct periodical survey to ensure proper implementation.
      15.   What emerges from the above discussion is that the  stakeholders
      DoT, TRAI and the licencees are ad idem  in  regard  to  most  of  the
      issues in terms of the instructions prepared  by  the  DoT.   However,
      there are certain points on which there is  a  difference  of  opinion
      between the DoT and the TRAI.  This limited divergence is required  to
      be resolved by further clarification and  issuance  of  more  specific
      instructions.  These issues fall under two categories: - firstly, what
      has been pointed out by the petitioner and secondly, where the DoT and
      the TRAI hold different opinion as noticed above.  Proper deliberation
      between the stakeholders possessed of technical  knowhow  can  resolve
      such issues usefully and effectively.
      16.   The abovementioned points of divergence between TRAI and DoT are
      matters which will have serious ramifications not only  vis-à-vis  the
      regulatory authorities and the licensees but also on  the  subscribers
      and the entire country.  These aspects demand serious deliberation  at
      the hands of the technical experts.  It will not  be  appropriate  for
      this Court to examine these technical aspects,  as  such  matters  are
      better left in the domain of the statutory or  expert  bodies  created
      for that purpose.  The  concept  of  ‘regulatory  regime’  has  to  be
      understood and applied by the courts, within the framework of law, but
      not by substituting their own views,  for  the  views  of  the  expert
      bodies like an appellate court.  The regulatory regime is expected  to
      fully regulate and control activities in  all  spheres  to  which  the
      particular law relates.
      17.   We have clearly stated that it is not for this Court to  examine
      the merit or otherwise of such policy  and  regulatory  matters  which
      have been determined by  expert  bodies  having  possessing  requisite
      technical knowhow and are statutory in  nature.   However,  the  Court
      would step in and direct the technical bodies to consider  the  matter
      in accordance  with  law,  while  ensuring  that  public  interest  is
      safeguarded and arbitrary decisions do not prevail.  This Court in the
      case of Delhi Science Forum & Ors. v. Union of India [AIR 1996 SC 1356
      = (1996) 2 SCC 405], while  dealing  with  provision  of  licences  to
      private companies as well as establishment, maintenance and working of
      such licences under the provisions of the Telegraph Act, 1885, applied
      the  ‘wednesbury  principle’  and  held  that  ‘as  such  the  Central
      Government is expected to put such conditions while granting  licences
      which shall safeguard the public interest  and  the  interest  of  the
      nation.  Such conditions should be commensurate with  the  obligations
      that flow while parting with the privilege which has been  exclusively
      vested in the Central Government by the Act’.  It is the specific case
      of the petitioner and some of the  affected  parties  in  the  present
      proceedings that certain very important aspects,  including  security,
      have not been appropriately dealt with in the instructions dated  14th
      March, 2011.
      18.   Some divergence on certain specific  issues  of  the  regulatory
      regime has been projected in the instructions and  comments  filed  by
      TRAI and DoT.  They need  to  be  resolved  but,  in  absence  of  any
      technical knowhow or expertise being available  with  this  Court,  it
      will not be appropriate to decide, by a judicial dictum, as  to  which
      of the views expressed by these high  powered  bodies  would  be  more
      beneficial to the regulatory regime and will prove more  effective  in
      advancing the public interest.  Essentially this should be left to  be
      clarified  and  the  disputes  be  resolved  by  the   expert   bodies
      themselves.  It is a settled canon of law that in a regulatory regime,
      the terms and conditions imposed thereunder should be unambiguous  and
      certain.  It is expected that the authorities concerned would  enforce
      the regulatory regime with exactitude.   Therefore,  it  is  not  only
      desirable but also imperative that TRAI and DoT seriously cogitate  on
      the issues where divergence has been expressed between them and  bring
      unanimity in the terms and conditions of licences which would form  an
      integral part of the instructions dated 14th March, 2011.
      19.   It may be  noticed  here  that,  as  interveners,  some  of  the
      licensees and/or service providers had criticized some  of  the  terms
      and conditions of licence proposed under the instructions  dated  14th
      March, 2011.  These interveners not only made  some  suggestions  with
      regard to the ambit and scope of the guidelines  and  instructions  by
      TRAI or DoT but also intended to raise certain disputes vis-à-vis  DoT
      in the capacity of licensees subject  to  the  impugned  instructions.
      Without any reservation, we make it clear that we are not directly  or
      indirectly entering upon the  adjudication  of  any  dispute  or  even
      differences between the service provider/licensee on the one hand  and
      TRAI or DoT on the other.  If they or any of them have  any  claim  or
      dispute with the  other,  they  should  resolve  the  same  by  taking
      recourse to independent proceedings in accordance with law.
      20.   In view of our above discussion, we  partially  allow  the  writ
      petition. The instructions dated 14th March, 2011 issued by DoT be and
      hereby are accepted by the Court subject to the following conditions:
      (i)   We hereby direct the constitution of a  Joint  Expert  Committee
           consisting of two experts from TRAI and two experts from DoT  to
           be chaired by the  Secretary,  Ministry  of  Communications  and
           Information Technology, Government of India.
      (ii)  This Committee shall discuss and resolve  the  issues  on  which
           TRAI in its  affidavit  has  given  opinion  divergent  to  that
           declared by DoT in its  instructions  dated  14th  March,  2011.
           Following are the points of divergence that require  examination
           by the Joint Expert Committee :
           (a)    Whether  re-verification  should  be  undertaken  by  the
                 service provider/licensee, the  DoT  itself  or  any  other
                 central body?
           (b)   Is there any need for enhancing the penalty for  violating
                 the instructions/guidelines including sale of pre-activated
                 SIM cards?
           (c)   Whether delivery of SIM cards may be made by post?   Which
                 is the best mode of delivery of SIM cards  to  provide  due
                 verification of identity and address of a subscriber?
           (d)   Which of the application forms, i.e., the existing one  or
                 the  one  now  suggested  by  TRAI  should  be  adopted  as
                 universal application form for purchase of a SIM card?
           (e)    In  absence  of  Unique  ID  card,  whether  updating  of
                 subscriber details should be the  burden  of  the  licensee
                 personally or could it  be  permitted  to  be  carried  out
                 through an authorized representative of the licensee?
           (f)   In the  interest  of  national  security  and  the  public
                 interest,  whether   the   database   of   all   registered
                 subscribers should be maintained by DoT or by the  licensee
                 and how soon  the  same  may  be  made  accessible  to  the
                 security agencies in accordance with law?
      (iii) The above notified Committee shall resolve the  above  specified
           issues and any other ancillary issue arising therefrom and  make
           its recommendations known to the DoT within  three  months  from
           today.
      (iv)  The DoT shall take into consideration the recommendations of the
           Joint Expert Committee.  The instructions issued  by  DoT  dated
           14th March, 2011 shall thereupon be amended, modified,  altered,
           added to or substituted accordingly.   They  shall  then  become
           operative in law and binding upon all concerned.
      (v)   Composite  instructions,  so  formulated,  shall  positively  be
           issued by the DoT within 15  weeks  from  today  and  report  of
           compliance submitted to the Registry of this Court.
      21.   The writ petition is disposed  of  with  the  above  directions.
      There shall be no order as to costs.
                                            ….…………......................CJI.
                                                              (S.H. Kapadia)






                                             …….…………......................J.
                                                              (A.K. Patnaik)






                                           ...….…………......................J.
                                                           (Swatanter Kumar)
      New Delhi
      April 27, 2012


Alarming rise in heinous crimes like kidnapping, sexual assault on women and dacoity have impinged upon the right to life and the right to live in a safe environment which are within the contours of Article 21 of the Constitution of India. One of the contributory factors to such increase is use of black films on windows/windshields of four-wheeled vehicles. The petitioner, as a public spirited person, has invoked the extra-ordinary jurisdiction of this Court under Article 32 of the Constitution in the present public interest litigation, praying for certain directions to stop this menace. According to the petitioner, this Court should issue a writ or direction requiring use of such safety glasses on the windows/windshields in vehicles having 100 per cent Visual Light Transmission (for short ‘VLT’) only and, to that extent, the petitioner challenges the correctness of Rule 100 of the Motor Vehicles Rules, 1989 (for short “the Rules”). He also prays for prohibition on use of black films on the glasses of the vehicles, proper implementation of law in that behalf and finally, for taking stringent actions against the offenders, using vehicles with black filmed glasses. He also prays that a larger police force should be deputed to monitor such offences. The manufacturer of the vehicle may manufacture the vehicles with tinted glasses which have Visual Light Transmission (VLT) of safety glasses windscreen (front and rear) as 70 per cent VLT and side glasses as 40 per cent VLT, respectively. No black film or any other material can be pasted on the windscreens and side glasses of a vehicle. 27. For the reasons afore-stated, we prohibit the use of black films of any VLT percentage or any other material upon the safety glasses, windscreens (front and rear) and side glasses of all vehicles throughout the country. The Home Secretary, Director General/Commissioner of Police of the respective States/Centre shall ensure compliance with this direction. The directions contained in this judgment shall become operative and enforceable with effect from 4th May, 2012. 28. With the above directions, we partially allow this writ petition and prohibit use of black films of any percentage VLT upon the safety glasses, windscreens (front and rear) and side glasses. However, there shall be no order as to costs.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION


                    WRIT PETITION (CIVIL) NO. 265 OF 2011

      Avishek Goenka                                  … Petitioner

                                   Versus
      Union of India   & Anr.                           … Respondents





                               J U D G M E N T



      Swatanter Kumar, J.

      1.    Alarming rise in heinous crimes like kidnapping, sexual  assault
      on women and dacoity have impinged upon the  right  to  life  and  the
      right to live in a safe environment which are within the  contours  of
      Article 21 of the Constitution of India.    One  of  the  contributory
      factors to such increase is use of black films on  windows/windshields
      of four-wheeled  vehicles.   The  petitioner,  as  a  public  spirited
      person, has invoked the  extra-ordinary  jurisdiction  of  this  Court
      under Article 32 of the Constitution in the  present  public  interest
      litigation, praying  for  certain  directions  to  stop  this  menace.
      According to the  petitioner,  this  Court  should  issue  a  writ  or
      direction   requiring   use   of   such   safety   glasses   on    the
      windows/windshields in vehicles  having  100  per  cent  Visual  Light
      Transmission  (for  short  ‘VLT’)  only  and,  to  that  extent,   the
      petitioner challenges  the  correctness  of  Rule  100  of  the  Motor
      Vehicles Rules, 1989 (for short  “the  Rules”).   He  also  prays  for
      prohibition on use of black films on  the  glasses  of  the  vehicles,
      proper implementation of law in that behalf and  finally,  for  taking
      stringent actions against the offenders,  using  vehicles  with  black
      filmed glasses.  He also prays that a larger police  force  should  be
      deputed to monitor such offences.

      2.    The use of black films upon the vehicles gives immunity  to  the
      violators in committing a crime and is used as a tool of  criminality,
      considerably increasing criminal activities.  At times, heinous crimes
      like dacoity, rape, murder and even terrorist acts are committed in or
      with the aid of vehicles having black films pasted on the side windows
      and on the screens of the vehicles.  It is stated that because of non-
      observance of the norms, regulations and guidelines  relating  to  the
      specifications for the front and rear windscreens and the side windows
      of the vehicles, the offenders can move undetected  in  such  vehicles
      and commit crimes without hesitation.

      3.    The word ‘tinted’ means shade or hue as per the dictionary.  The
      rear and front and side glasses of vehicles  are  provided  with  such
      shade or tint, and therefore, they are widely referred to  as  ‘tinted
      glasses’, which is different from ‘black films’.  The glasses  of  the
      vehicles having a coating of black films cannot be termed  as  ‘tinted
      glasses’ because they are not manufactured as such.

      4.    Besides aiding in commission  of  crimes,  black  films  on  the
      vehicles are also at times positively correlated with motor  accidents
      on the roads.  It is for the reason that the comparative visibility to
      that through normal/tinted glasses which are manufactured as  such  is
      much lesser and the persons  driving  at  high  speed,  especially  on
      highways, meet with accidents because of use of black filmed glasses.

      5.    The use of black films also prevents  the  traffic  police  from
      seeing the activity in the car and communicating with  the  driver  of
      the vehicle. The petitioner  also  cites  that  the  number  of  fatal
      accidents of vehicles having black films is much higher in India  than
      in other parts of the world.  The black  filmed  vehicles  have  lower
      visibility and therefore, the chances of accident are increased by  18
      per cent to 38 per cent due to low visibility.  He has  also  referred
      to the World Health Organization’s data, pertaining to  deaths  caused
      on roads, which, in India have  crossed  that  of  China,  though  the
      latter has more vehicles, population and area in comparison to  India.
      A device called luxometer can  measure  the  level  of  opaqueness  in
      windows owing to the application of black films but this device  is  a
      scarce resource  and  is  very  scantily  available  with  the  police
      personnel in India.

      6.    The Court can take a judicial notice of the fact  that  even  as
      per the reports, maximum crimes are committed  in  such  vehicles  and
      there has been a definite rise in the commission  of  heinous  crimes,
      posing a threat to security of individuals and the State, both.

      7.    Whatever are the rights of an individual, they are regulated and
      controlled by the statutory provisions of the Act and the Rules framed
      thereunder.   The citizens at large have a right to life i.e. to  live
      with dignity, freedom and safety.  This right emerges from Article  21
      of the Constitution of  India.   As  opposed  to  this  constitutional
      mandate, a trivial individual protection  or  inconvenience,  if  any,
      must yield in favour of the larger public interest.


      8.    The petitioner claims to have received various replies from  the
      police department of different States like Tamil  Nadu,  West  Bengal,
      Delhi and Ministry of Home Affairs, New Delhi.  On the  basis  of  the
      replies received under the provisions of the Right to Information Act,
      2005, copies of which have been annexed to the writ  petition,  it  is
      averred that these authorities are of the unanimous opinion that black
      films should be banned.  Black filmed glasses help  in  commission  of
      crime as well as hiding the criminals even during  vehicle  checks  at
      ‘Naka’ points.  Non-availability  of  electronic  devices  to  measure
      violations and lack of police force to  enforce  the  Rules  are  also
      apparent from these replies.  The petitioner also states that the  use
      of black  films  is  not  prevalent  in  developed  and/or  developing
      countries all over the world.  In fact, in some of the  countries,  it
      is specifically banned.  In Afghanistan, Belarus, Nigeria, Uganda  and
      even in Pakistan, use of black films on the vehicle glasses is banned.
      Use of black films is not  prevalent  in  United  States  of  America,
      United Kingdom, Germany and other countries as well.

      9.    In order to examine the  merits  of  the  prayers  made  by  the
      petitioner in the present application, it will be necessary for us  to
      refer to the relevant laws.

      10.   The Motor Vehicle Act, 1939 was enacted to consolidate and amend
      the laws relating to  motor  vehicles.   This  Act  was  subjected  to
      various amendments.  Finally, the Motor Vehicles Act, 1988 (for  short
      ‘the Act’) was enacted, inter alia, with the object and reason  being,
      to provide  for  quality  standards  for  pollution  control  devices,
      provisions  for  issuing  fitness  certificate  of  the  vehicle   and
      effective ways of tracking down traffic offenders.  Section 190 of the
      Act provides that any person who drives or  causes  or  allows  to  be
      driven in any public place a motor vehicle or a trailer which has  any
      defect, or violates the  standards  prescribed  in  relation  to  road
      safety, or violates the provisions  of  the  Act  or  the  Rules  made
      therein, is punishable as per the provisions  of  the  Act.  In  other
      words, alteration to  the  conditions  of  the  vehicle  in  a  manner
      contravening the Act is not permissible in law.   Section  52  of  the
      Act declares that no owner of a  motor  vehicle  shall  so  alter  the
      vehicle  that  the  particulars  contained  in  the   certificate   of
      registration are at variance with those originally  specified  by  the
      manufacturer.  However, certain changes are permissible  in  terms  of
      the proviso to this Section and that too  with  the  approval  of  the
      Central Government/competent authority.   In terms of  Section  53  of
      the Act, if any registering authority or  other  prescribed  authority
      has reason to believe that any motor vehicle within  its  jurisdiction
      is in such a condition that its use in a public place would constitute
      a danger  to  the  public,  or  that  it  fails  to  comply  with  the
      requirements of the Act or the Rules made thereunder, whether  due  to
      alteration of vehicle violative of Section 52 of the Act or otherwise,
      the Authority may, after giving opportunity of  hearing,  suspend  the
      registration certificate for the period required for rectification  of
      such defect, and if the defect is still not removed, for  cancellation
      of registration.   In exercise of its power, under various  provisions
      of the Act, the Central Government has framed the Rules.  Chapter V of
      the Rules deals with construction, equipment and maintenance of  motor
      vehicles.  Rule 92 mandates that no person shall use or cause or allow
      to be used in any public place any motor vehicle which does not comply
      with the provisions of this Chapter.  There are different Rules  which
      deals with various aspects of construction and maintenance of vehicles
      including lights, brakes, gears and other  aspects  including  overall
      dimensions of the vehicles.  Rule 100 of  the  Rules  concerns  itself
      with  the  glass  of  windscreen  and  VLT  of  light  of  such  glass
      windscreen.  It specifically provides for fixation of glasses made  of
      laminated safety glass conforming to Indian standards IS:2553-Part 2 –
      1992 and even for the kind of windscreen wipers required to  be  fixed
      on the front screen of the vehicle.   Relevant part of Rule 100,  with
      which we are concerned, reads as under:-

           “100. Safety glass.—(1) The glass of windscreens and the windows
           of every motor vehicle  188[other  than  agricultural  tractors]
           shall be of safety glass:


           Provided that in the case of three-wheelers  and  vehicles  with
           hood and side covers, the  windows  may  be  of  189[acrylic  or
           plastic transparent sheet.]


           Explanation.—For the purpose of this rule,—


                 i)  "safety  glass"   means   glass   conforming   to   the
                    specifications of the Bureau of Indian Standards or  any
                    International Standards and so manufactured  or  treated
                    that if  fractured,  it  does  not  fly  or  break  into
                    fragments capable of causing severe cuts;


                ii) any windscreen or window at the front  of  the  vehicle,
                    the inner surface of which is  at  an  angle  more  than
                    thirty degrees to the longitudinal axis of  the  vehicle
                    shall be deemed to face to the front.

           [(2) The glass of the windscreen and rear window of every  motor
           vehicle shall  be  such  and  shall  be  maintained  in  such  a
           condition that the visual transmission of light is not less than
           70%. The glasses used for side windows are  such  and  shall  be
           maintained in such condition that  the  visual  transmission  of
           light is  not  less  than  50%,  and  shall  conform  to  Indian
           Standards [IS: 2553— Part 2—1992];


           (3) The glass of the front windscreen  of  every  motor  vehicle
           [other than two wheelers and agricultural tractors] manufactured
           after three years from the coming  into  force  of  the  Central
           Motor  Vehicles  (Amendment)  Rules,  1993  shall  be  made   of
           laminated safety glass:


           Provided that on and from three months after the commencement of
           the Central Motor Vehicles (Amendment) Rules, 1999, the glass of
           the front windscreen of every  motor  vehicle  other  than  two-
           wheelers and agricultural tractors shall be  made  of  laminated
           safety glass conforming to the Indian  Standards  IS:  2553—Part
           2—1992.


           Explanation.—For  the  purpose  of  these  sub-rules  "laminated
           safety glass" shall mean  two  or  more  pieces  of  glass  held
           together by an intervening layer or layers of plastic materials.
           The laminated safety glass will crack and break under sufficient
           impact, but the pieces of  the  glass  tend  to  adhere  to  the
           plastic material and do not fly, and if a hole is produced,  the
           edges would be less jagged than they would be in the case of  an
           ordinary glass.”


      11.   From the above provisions, it is clear that the Rules deal  with
      every minute detail of construction and maintenance of a vehicle.   In
      other  words,  the  standards,  sizes  and  specifications  which  the
      manufacturer of a vehicle is required to adhere to while manufacturing
      the vehicle are exhaustively dealt with under  the  Rules.    What  is
      permitted has been specifically provided for and  what  has  not  been
      specifically stated would obviously be deemed to  have  been  excluded
      from these Rules.   It would neither be permissible nor  possible  for
      the Court to  read  into  these  statutory  provisions,  what  is  not
      specifically provided for.  These are the specifications which are  in
      consonance with the prescribed IS No. 2553-Part 2 of 1992 and  nothing
      is ambiguous or uncertain.   Let us take a  few  examples.   Rule  104
      requires that every motor vehicle, other than three wheelers and motor
      cycles shall be fitted with two red reflectors, one each on both sides
      at their rear.  Every motor cycle, shall be fitted with at  least  one
      red reflector at the rear.  Rule 104A, provides that two white  reflex
      in the front of the vehicle on each  side  and  visible  to  on-coming
      vehicles from the front at night.   Rule 106 deals with deflections of
      lights and requires that no lamp showing a light to the front shall be
      used on any motor vehicle  including  construction  equipment  vehicle
      unless such lamp is so constructed, fitted  and  maintained  that  the
      beam of light emitted therefrom is permanently deflected downwards  to
      such an extent that it is not capable of dazzling any person whose eye
      position is at a distance of 8 metres from  the  front  of  lamp  etc.
      Rules 119 and 120 specify the kind, size and manner in which the  horn
      and silencer are to be fixed in a vehicle.

      12.   These provisions demonstrate the extent  of  minuteness  in  the
      Rules and  the  efforts  of  the  framers  to  ensure,  not  only  the
      appropriate manner of construction and  maintenance  of  vehicle,  but
      also the safety of other users of the road.

      13.   Rule 100 provides for glass of windscreen and windows  of  every
      motor vehicle.  The glass used has to  be  ‘safety  glass’.   Then  it
      provides for the inner surface angle on the windscreen.   Rule 100 (2)
      provides that the glass of the windscreen and  rear  window  of  every
      motor vehicle shall  be  such  and  shall  be  maintained  in  such  a
      condition that VLT is not less than 70 per cent and  on  side  windows
      not less than 50 per  cent  and  would  conform  to  Indian  Standards
      [IS:2553-Part2-1992].

      14.   The said IS, under clause 5.1.7, deals with VLT standards and it
      provides for the same percentage of VLT through the safety  glass,  as
      referred to in Rule 100(2) itself.

      15.   Having dealt with the relevant provisions of law,  we  may  also
      refer to a statistical fact that the number of violators of  Rule  100
      has gone up from 110 in the year 2008 to 1234 in  the  year  2010,  in
      Delhi alone.  This itself shows an increasing trend  of  offenders  in
      this regard.

      16.   In face of the  language  of  the  Rule,  we  cannot  grant  the
      petitioner the relief prayed for, that there should be  100  per  cent
      VLT.   This Court cannot issue directions that  vehicles  should  have
      glasses with 100 per cent VLT.  Rule 100 of the Rules is a valid piece
      of legislation and is  on  the  statute  book.   Once  such  provision
      exists, this Court cannot issue directions contrary to  the  provision
      of law.   Thus, we decline to grant this prayer to the petitioner.

      17.    However,  the  prayer  relating  to  issuance   of   directions
      prohibiting use of black films on the glasses  of  vehicles  certainly
      has merit.  On the plain reading of the Rule, it  is  clear  that  car
      must have safety glass having VLT at the time of manufacturing 70  per
      cent for windscreen and 50 per cent for side windows.  It should be so
      maintained in that condition thereafter.   In other  words,  the  Rule
      not impliedly, but specifically, prohibits alteration of such  VLT  by
      any means subsequent to its manufacturing.  How and  what  will  be  a
      “safety glass” has been explained in Explanation to  Rule  100.    The
      Explanation while defining ‘laminated safety  glass’  makes  it  clear
      that two or more pieces of  glass  held  together  by  an  intervening
      layers of plastic materials so that the glass is held together in  the
      event of impact.  The Rule and the explanation do not  contemplate  or
      give any leeway to the manufacturer or user of the vehicle to, in  any
      manner, tamper with the VLT.  The Rule and the IS only specify the VLT
      of the glass itself.

      18.    Two  scenarios  must  be  examined.  First,  if  the  glass  so
      manufactured already has the VLT as specified, then  the  question  of
      further reducing it by any means shall be in clear violation  of  Rule
      100 as well as the prescribed  IS.   Secondly,  the  rule  requires  a
      manufacturer to manufacture the  vehicles  with  safety  glasses  with
      prescribed VLT. It is the minimum percentage that has been  specified.
       The manufacturer may manufacture vehicle with a  higher  VLT  to  the
      prescribed limit or even  a  vehicle  with  tinted  glasses,  if  such
      glasses do not fall short of the minimum prescribed VLT  in  terms  of
      Rule 100.  None can be permitted to create his  own  device  to  bring
      down the percentage of  the  VLT  thereafter.    Thus,  on  the  plain
      reading of the Rule and the IS standards, use of black  films  of  any
      density is impermissible.  Another adverse  aspect  of  use  of  black
      films is that even if they reflect tolerable  VLT  in  the  day  time,
      still in the night it would clearly violate the prescribed VLT  limits
      and  would  result  in  poor  visibility,   which   again   would   be
      impermissible.


      19.   The legislative intent attaching due significance to the ‘public
      safety’ is evident from  the  object  and  reasons  of  the  Act,  the
      provisions  of  the  Act  and  more  particularly,  the  Rules  framed
      thereunder.  Even if we assume, for the sake of  argument,  that  Rule
      100 is capable of any interpretation, then this Court should  give  it
      an interpretation which would serve the  legislative  intent  and  the
      object of framing  such  rules,  in  preference  to  one  which  would
      frustrate  the  very  purpose  of  enacting  the  Rules  as  well   as
      undermining the public safety and interest.  Use of these black  films
      have been proved to be criminal’s paradise and a  social  evil.    The
      petitioner has rightly brought on record the unanimous view of various
      police authorities right from the States of Calcutta, Tamil  Nadu  and
      Delhi to the Ministry of Home Affairs  that  use  of  black  films  on
      vehicles has jeopardized the security  and  safety  interests  of  the
      State and public at large.   This certainly  helps  the  criminals  to
      escape from the eyes of the police and aids in commission  of  heinous
      crimes like sexual assault on women, robberies, kidnapping, etc.    If
      these crimes can be reduced by enforcing the prohibition  of  law,  it
      would further the cause of Rule of Law and Public Interest as well.

      20.   This Court in the case of  Hira  Tikoo  v.  Union  Territory  of
      Chandigarh [(2004) 6 SCC 765], while dealing with  the  provisions  of
      town planning and the land allotted to the allottees, upon  which  the
      allotees had made full payment, held that such allotment was found  to
      be contravening other statutory provisions and the allotted  area  was
      situated under the reserved forest land and land in periphery  of  900
      meters of Air Force Base.  The Court held that  there  was  no  vested
      right and public welfare should prevail as the  highest  law.    Thus,
      this Court, while relying upon the maxim  “salus  populi  est  suprema
      lex”, modified the order of the High Court holding that the  allottees
      had no vested right and the land forming part of the forest area could
      not be taken away for other purposes.  Reference can also be  made  to
      the judgment of this Court in Friends Colony Development Committee  v.
      State of Orissa [AIR 2005 SC 1], where this Court, while referring  to
      construction activity violative of the regulations and control orders,
      held that the regulations made under  Orissa  Development  Authorities
      Act, 1982 may meddle with private rights  but  still  they  cannot  be
      termed arbitrary or unreasonable.  The private  interest  would  stand
      subordinate to public good.

      21.   In the present case as well, even if some  individual  interests
      are likely to suffer, such individual or private interests  must  give
      in to the larger public interest.  It is the duty of all  citizens  to
      comply with the law.  The Rules  are  mandatory  and  nobody  has  the
      authority in law to mould these rules for the purposes of  convenience
      or luxury and certainly not for crime.  We may also note that a  Bench
      of this Court, vide its Order  dated  15th  December,  1998  in  Civil
      Appeal No. 3700 of 1999 titled Chandigarh Administration and Others v.
      Namit Kumar & Ors., had permitted the use of  ‘light  coloured  tinted
      glasses’ only while specifically disapproving  use  of  films  on  the
      vehicles.  Subsequently, in the same case, but on  a  different  date,
      another Bench of this Court vide its order reported at [(2004)  8  SCC
      446] made a direction that mandate of sub-Rule (2) of Rule  100  shall
      be kept in mind while dealing with such cases.

      22.   Rightly so, none of the orders of this Court have permitted  use
      of black films.  Rule 100(2)  specifies  the  VLT  percentage  of  the
      glasses at the time of  manufacture  and  to  be  so  maintained  even
      thereafter.  In Europe, Regulation No. 43 of the  Economic  Commission
      for Europe of the United Nations (UN/ECE) and  in  Britain,  the  Road
      Vehicles (Construction and Use) Regulations, 1986, respectively, refer
      to the International Standard ISO 3538 on this  issue,  providing  for
      VLT percentage of 70 and 75 per cent respectively.

      23.   In light of the above  discussion,  we  have  no  hesitation  in
      holding that use of black films or  any  other  material  upon  safety
      glass, windscreen and side windows is  impermissible.    In  terms  of
      Rule 100(2), 70 per cent and 50 per cent VLT standard are relatable to
      the manufacture of the safety glasses for the windshields  (front  and
      rear) and the side windows respectively. Use of  films  or  any  other
      material upon the windscreen or the side windows is  impermissible  in
      law.   It is the VLT  of  the  safety  glass  without  any  additional
      material being pasted upon the safety glasses which must conform  with
      manufacture specifications.

      24.   Another issue that has been raised in the present Writ  Petition
      is that certain VIPs/VVIPs are using black films on their vehicles for
      security reasons.   Even this practice is not supported by law, as  no
      notification by the  competent  authority  has  been  brought  to  our
      notice, giving exemption to such vehicles from the operation  of  Rule
      100 or any of its provisions.   Be that as it may, we do not  wish  to
      enter upon the arena of the security  and  safety  measures  when  the
      police  department  and  Home   Ministry   consider   such   exemption
      appropriate.   The cases of the persons who have been provided with  Z
      and Z+ security category may be considered by a  Committee  consisting
      of the Director  General  of  Police/Commissioner  of  Police  of  the
      concerned State and the Home Secretary of that State/Centre.   It will
      be for that Committee to examine such cases for grant of exemption  in
      accordance  with  law  and  upon  due  application  of  mind.    These
      certificates should be provided only in relation to official  cars  of
      VIPs/VVIPs, depending upon the category of security that  such  person
      has been  awarded  by  the  competent  authority.     The  appropriate
      government is free to  make  any  regulations  that  it  may  consider
      appropriate in this regard.

      25.   The competent  officer  of  the  traffic  police  or  any  other
      authorized person shall challan such vehicles for violating  Rules  92
      and 100 of the Rules with effect from the specified date and thereupon
      shall also remove the black films from the offending vehicles.


      26.   The manufacturer of the vehicle  may  manufacture  the  vehicles
      with tinted glasses which have  Visual  Light  Transmission  (VLT)  of
      safety glasses windscreen (front and rear) as 70 per cent VLT and side
      glasses as 40 per cent VLT, respectively.   No black film or any other
      material can be pasted on  the  windscreens  and  side  glasses  of  a
      vehicle.

      27.   For the reasons afore-stated, we prohibit the use of black films
      of any VLT percentage or any other material upon the  safety  glasses,
      windscreens  (front  and  rear)  and  side  glasses  of  all  vehicles
      throughout    the    country.    The    Home    Secretary,    Director
      General/Commissioner of Police of the respective  States/Centre  shall
      ensure compliance with this direction.   The directions  contained  in
      this judgment shall become operative and enforceable with effect  from
      4th May, 2012.

      28.   With the above directions, we partially allow this writ petition
      and prohibit use of black films of any percentage VLT upon the  safety
      glasses, windscreens (front and rear)  and  side  glasses.    However,
      there shall be no order as to costs.



                                            ….…………......................CJI.
                                                              (S.H. Kapadia)






                                             …….…………......................J.
                                                              (A.K. Patnaik)






                                           ...….…………......................J.

      (Swatanter Kumar)
      New Delhi
      April 27, 2012