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P.K. Aboobacker and ors. Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 546, 547, 999, 4423 of 1973 and 2081, 5179 and 5549 of 1974
Judge
Reported in[1979]44STC250(Ker)
AppellantP.K. Aboobacker and ors.
RespondentState of Kerala and anr.
Appellant Advocate T. Karunakaran Nambiyar and; P.A. Mohammed (T), Advs.
Respondent AdvocateGovernment Pleader
DispositionPetition dismissed
Cases ReferredNand Lal Raj Kishan v. Commissionerof Sales Tax
Excerpt:
- - 8. it is well-settledthat the legislative entries have to be considered in their widest amplitudeand a power authorising an imposition of the tax also includes a power toprevent tax imposed being evaded and to check such evasion. therefore, the provisionto furnish security and seizure of the goods in default are only in the natureof an effective provision to recover the penalty which, in turn, is a measureaimed at prevention of tax evasion and perfectly within the incidental orancillary powers of taxation. 16. a contention was feebly advanced that security for payment ofpenalty and seizure in default in advance of the imposition of penalty are notjustified or reasonable as it is not certain whether the enquiry would resultin an imposition of a penalty.g. viswanatha iyer, j. 1. the constitutional validity of section 29a of the kerala general sales tax act (hereinafter referred to as the act) is challenged in all these writ petitions and, to appreciate the point raised, the facts in o.p. no. 999 of 1973 alone are stated in brief hereunder:2. the petitioner is doing business in hill produce such as pepper,ginger, etc., in tellicherry town. he purchases the goods locally and sellsthose goods to registered dealers outside the state in the course ofinter-state trade. the petitioner has been registered as a dealer both underthe provisions of the central sales tax act and the general sales tax act onthe file of the sales tax officer, special circle, tellicherry. on 9th march,1973, he despatched 84 bags of pepper and 8 bags of dry ginger to.....
Judgment:

G. Viswanatha Iyer, J.

1. The constitutional validity of Section 29A of the Kerala General Sales Tax Act (hereinafter referred to as the Act) is challenged in all these writ petitions and, to appreciate the point raised, the facts in O.P. No. 999 of 1973 alone are stated in brief hereunder:

2. The petitioner is doing business in hill produce such as pepper,ginger, etc., in Tellicherry Town. He purchases the goods locally and sellsthose goods to registered dealers outside the State in the course ofinter-State trade. The petitioner has been registered as a dealer both underthe provisions of the Central Sales Tax Act and the General Sales Tax Act onthe file of the Sales Tax Officer, Special Circle, Tellicherry. On 9th March,1973, he despatched 84 bags of pepper and 8 bags of dry ginger to M/s.Chakrapani and Co., who is acting as the agent of the petitioner inBangalore. According to the petitioner, the goods were despatched onconsignment basis by a lorry. One Ahammed was its driver and he took withhim the invoice and the way-bill relating to the consignment. The lorry leftTellicherry at 22.00 hours and was to reach Bangalore on the 10th morning asthere was an urgent demand for the supply of pepper and ginger. But theSales Tax Inspector, Chavasseri, intercepted the goods vehicle at Chavasseriin Tellicherry-Kuthupuzha road at about 23.30 hours on 9th March, 1973. Thedriver produced the invoice and the way-bill to the officer concerned. But theSales Tax Inspector--the second respondent herein--directed the lorry driverto unload the goods at Kuthupuzha check post and issued a notice to the driverpointing out certain defects in the documents produced by him and alsoproposing to take action in accordance with Sub-section (2) of Section 29A ofthe Act. The notice issued by the second respondent further contained astatement that an opportunity is given to the driver to prove that thedocuments produced by him are genuine. But before the driver could producethe necessary documents for that purpose, the Sales Tax Inspector changedhis camp from Chavasseri to Tellicherry and at about 11.15 A.M. on 10th March,1973, inspected the petitioner's place of business and demanded for theaccount books. At that time, the petitioner was not present in the shop.His employee could not give any details of the accounts to the officerconcerned. Following this, the Inspector issued exhibit P-6 notice callingupon the petitioner to produce certain records within 3 hours. On coming toknow of exhibit P-6 notice, the petitioner produced the ledger for the year1972-73, the way-bills, and the sales and purchase bill file before the secondrespondent at his camp office at Tellicherry at 1.30 P.M. These records werereceived by the officer, but were not returned after perusal. After these, theofficer issued another notice on 10th March, 1973, granting an opportunity tothe petitioner to furnish security for an amount equal to double the tax inrespect of the goods detained within 14 days from the date of stopping thevehicle. The notice, inter alia, stated that, as the driver of the vehiclefailed to adduce any evidence, the goods have been detained and the petitioneris called upon to furnish security for an amount of Rs. 2,818, which,according to the officer, represented double the tax due on the value of thegoods. The petitioner furnished the security under protest and transportedthe goods to Bangalore as originally arranged. Thereafter, this petition isfiled challenging the action of the Sales Tax Officer. The Sales TaxInspector--the second respondent --has apparently acted in exercise of thepowers conferred under Section 29A of the Act. Under this section, the officeris given power to stop the vehicle, to detain the goods, to demand security inany form for double the amount of tax likely to be evaded as may be estimatedby the officer, to seize the goods if security is not furnished, and a powerto impose penalty equal to twice the amount of tax attempted to be evaded andto recover the penalty, if imposed, by the sale of the goods seized. Theconferment of these powers, according to the petitioner, on the authorisedofficer are unconstitutional and they are not comprehended by the legislativeentry 54, List II, of the Seventh Schedule to the Constitution, and are anunreasonable restriction on the freedom to carry on trade or business. Theprovisions conferring such powers directly affect the free flow of trade andviolate Article 301 of the Constitution. This provision, according to thepetitioner, does not remove the vice in Section 29 pointed out by the FullBench decision reported in Yogesh Trading Co. v. Intelligence Officer of SalesTax 1970 K.L.T. 154 (F.B). This Court had declared in that decision thatSub-sections (3), (4) and (5) of Section 29, and Sub-rules (3) to (12) and(15) of Rule 35 of the Kerala General Sales Tax Rules are unconstitutionaland, therefore, invalid. The provisions in Section 29A introduced thereaftercontain the same vice pointed out by the Full Bench decisionl.

3. TheState opposes these petitions and contends that the vices pointed out in theabove Full Bench decisionl are not in the new section and the new section isconstitutionally valid. The only question for consideration at this stage,therefore, is whether Section 29A of the Act is, in any way, beyond thelegislative powers of the State Legislature.

4. The occasion toenact Section 29A arose in this way. The provision for confiscationcontained in Section 29 was challenged as unconstitutional in the above case.That section reads as follows:

29. Establishment of checkposts and inspection of goods in transit.--(1) If the Government consider thatwith a view to prevent or check evasion of tax under this Act in any place orplaces in the State it is necessary so to do, they may, by notification in theGazette, direct the setting up of check posts at such place or places, anddefine the boundaries of such check posts and notify the area of the checkposts included within such boundaries, hereinafter referred to as the notifiedarea, and demarcate such boundaries by means of barriers or otherwise for thepurpose of regulating the passage of goods across the notified area.

(2) No person shall transport within the State across or beyond thenotified area any consignment of goods exceeding such quantity or value as maybe prescribed by any vehicle or vessel, unless he is in possession of--

(a) either a bill of sale or delivery note or way-bill orcertificate of ownership containing such particulars as may be prescribed,and

(b) a declaration in such form and containing such particulars asmay be prescribed when the vehicle or vessel enters or leaves the Statelimits.

Explanation.--The term 'goods' referred to in this Sub-sectionshall not include luggage of persons who cross the notified area.

(3) At any place within the notified area or at any other place when sorequired by any officer empowered by the Government in this behalf, the driveror any other person in-charge of any vehicle or vessel shall stop the vehicleor vessel and keep the vehicle or vessel, as the case may be, stationary aslong as may be required by the officer-in-charge of the notified area or theofficer empowered as aforesaid, and allow and enable such officer to inspectthe goods under transport and to examine the bill of sale or delivery note orway-bill or certificate of ownership relating to the goods, which are in thepossession of such driver or person in-charge of the goods who shall, if sorequired, give his name and address, the name and address of the owner ofvehicle or vessel and the name and address of the owner of the goods and inthe case of a vehicle or vessel entering or leaving the State limits thedeclaration also.

(4) Where the goods transported exceed the quantityor value prescribed under Sub-section (2), the officer-in-charge of thenotified area or the officer empowered in the preceding Sub-section shall havepower to detain or seize and confiscate the goods--

(a) which arebeing transported by a vehicle or vessel and not covered by a bill of sale ordelivery note or way-bill or certificate of ownership and where the vehicleor vessel enters or leaves the State limits, the declaration referred to inClause (b) of Sub-section (2) also, or

(b) where the declaration isfalse or is reasonably suspected to be false in respect of the particularsfurnished therein :

Provided that before taking action for theconfiscation of goods under this section, the officer shall give the personin-charge of the goods and the owner, if ascertainable, an opportunity ofbeing heard and make an enquiry in the manner prescribed.

(5) Wheneverconfiscation is authorised by this section, the officer adjudging it shallgive the owner or the person in-charge of the goods an option to pay, in lieuof confiscation, a penalty not exceeding double the amount of tax calculatedat the rates applicable to the goods liable to confiscation :

Providedthat the officer may release the goods on cash security being furnished by theperson concerned to the extent of the penalty leviable, if, in the opinion ofthe officer, further time is required to arrive at a correct finding as towhether a penalty is to be imposed or not and that the security so furnishedshall be adjusted towards the penalty in case it is payable or returned to theparty, if otherwise.

(6) Nothing contained in Sub-section (4) orSub-section (5) shall apply in the case of goods transported which areexempted from tax under any of the provisions of this Act without anycondition or restriction.

5.Unconstitutionality was attributed to this on two grounds, namely, that theprovision is beyond the field of legislation covered by entry 54 and also thatit is an unreasonable restriction on the freedom of trade and commerceviolative of Article 301 of the Constitution. The question whether theprovision of confiscation contained in Section 29 is beyond the field oflegislation under entry 54 of List II of the Seventh Schedule to theConstitution was left open by the Full Bench, in view of the fact thatSub-sections (3), (4) and (5) were found to violate Article 301 and that wasenough to strike down those provisions. The attempt of the State to salvagethose provisions as amounting only to a reasonable restriction on the freedomof trade and commerce within the meaning of Article 304(b) of the Constitutionwas not successful as it was found, firstly, that the Act had not received theassent of the President as provided in Article 304 and, secondly, what amountsto a reasonable restriction in public interest will have to be considered inthe light of Article 19(1)(f) and (g) of the Constitution, and in the light ofthe above articles, the view of the Full Bench was that the section amounts toan unreasonable restriction. The Full Bench observed as follows:

They amply bring out that unless the owner travels with thegoods, the notice provided is hardly likely to reach him in time to avoid thecatastrophe of confiscation. We have already noticed the disparity betweenSection 29(4) and Rule 35(6) in providing for notice to the owner, the formerdirecting notice if the owner is 'ascertainable', and the latter, only, if heis 'present'. The further provisions in Rule 35(8) to ascertain the addressand particulars of the owner, and afford him an opportunity are, in the natureof things, illusory and ineffective, unless the owner travels with the goodsor is near at hand to the check post. It is little consolation for the ownerthat confiscation can be avoided by tendering twice the amount of tax payableon the goods under Clause (5) of Section 29 read with Clause (15) of Rule 35.The effectiveness of these provisions as a sufficient safeguard standsconsiderably attenuated, if not entirely destroyed, by the prospect of hishaving to do so at successive check posts, or in respect of successiveconsignments of goods at the same check post, to allay the suspicions of theofficers-in-charge. Both by the terms of the section and the rule, theconfiscated goods are to be sold in public auction, and all that the deprivedowner can get in case he eventually succeeds in appeal against the order ofconfiscation would be, not even the market value of the goods, but theproceeds fetched at the auction, less the charges incurred for conducting thesame. We have no doubt that these provisions operate as unreasonablerestrictions on the fundamental right of a person with respect to his propertyand with respect to his right to carry on a trade or business in goods.

Some of the provisions in Rule 35 were also found to beinvalid for the same reason and finally the Full Bench held thus:

We hold that the provisions of Section 29(4) and (5) and of Rule35(5) to (12) and (15) violate the rights guaranteed by Article 19(1)(f)and(g) of the Constitution and cannot be saved as reasonable restrictions on theexercise of the said rights. Some of the provisions of Rule 35 may, bythemselves, be innocuous, but they are so integrally connected with theprocess of confiscation provided therein, that portions of them alone cannotbe allowed to stand. The whole of Clauses (5) to (12) of Rule 35 must bestruck down.

6. We are informed that the State has filed anappeal before the Supreme Court against the above decision and the same ispending. A petition for stay of the above decision was not allowed by theSupreme Court, Consequently, to cope up with the situation that there is noeffective provision to check the evasion of tax and huge loss of revenue tothe Government, an Ordinance was promulgated which was subsequently replacedby an Act of the State Legislature, namely, Act No. 11 of 1972. The statementof objects and reasons of the above Act is as follows:

Section 29 of the Kerala General Sales Tax Act, 1963, provides for theestablishment of check posts and inspection of goods in transit, the procedurefor such inspection, detention of vehicles and vessels, seizure andconfiscation of goods, imposition of penalty, etc., with a view to preventevasion of sales tax. In O.Ps. Nos. 2642, 4977 and 4995 of 1967, See [1970] 26S.T.C. 45 (F.B.) a Full Bench of the Kerala High Court struck downSub-sections (3), (4) and (5) of that Section 29 and Sub-rules (3) to (12) and(15) of Rule 35 of the Kerala General Sales Tax Rules, 1963, as violative ofArticles 301 and 19(1)(f) and (g) of the Constitution.

2. Since theprovisions mentioned above have been invalidated by the High Court, the checkposts and flying squads, which are found to be very effective in checkingevasion of sales tax, could not function, resulting in heavy loss of revenueto the State due to evasion of sales tax. Appeals filed before the SupremeCourt against the decision of the High Court have not yet been disposed of.A petition for stay of the decision of the High Court filed before the SupremeCourt was not allowed. Therefore, to prevent the evasion of tax and the hugeloss of revenue to the Government, it was considered necessary to makeappropriate provisions in the Act after curing the defects pointed out by theHigh Court. Although Section 29 of the Act has become inoperative due to thedecision of the High Court, it was considered advisable to retain the section,pending decision of the Supreme Court in the appeals and to insert a newSection 29A in the Act for the above purpose.

3. Since theLegislative Assembly was not in session, the required amendments were made bythe promulgation of the Kerala General Sales Tax (Second Amendment) Ordinance,1971 (24 of 1971), See [1972] 29 S.T.C. Statutes 32. The Bill seeks to replacethe Ordinance by an Act of the State Legislature.' (Kerala Gazette,Extraordinary No. 174, dated 19th March, 1972).

7. Thecounsel for the petitioners attack this new provision. According to them,all the vices in Section 29 are substantially present in the new provision.They further contend that, except for keeping track of the goods and theidentity of its owner, the power conferred, to demand security and to seizeand sell the goods in case the security is not furnished, is beyond the powerof taxation contained in entry 54, List II, of the Seventh Schedule. Thislatter contention may be considered first.

8. It is well-settledthat the legislative entries have to be considered in their widest amplitudeand a power authorising an imposition of the tax also includes a power toprevent tax imposed being evaded and to check such evasion. The petitioners donot dispute this. But, according to them, conferment of a power to seize thegoods in case security for payment of penalty, if subsequently imposed, is notfurnished and to sell the goods seized to realise the penalty, if imposed, isnot very much different in substance from a power of confiscation and a powerof confiscation cannot be said to be within the scope of the incidental orancillary to a power to tax sale and purchase of goods, as held by theSupreme Court in the case reported in Check Post Officer v. K.P. Abdulla andBros. [1971] 27 S.T.C. 1 (S.C.) There the Supreme Court confirmed the decisionof the Madras High Court reported in K.P. Abdulla & Bros. v. Check PostOfficer [1968] 22 S.T.C. 552. Section 42 of the Madras General Sales Tax Act,1959, empowered the officer-in-charge of a check post to seize and confiscateany goods which are in transport and are not covered by bill of sale ordelivery note, goods vehicle records and such other documents as may beprescribed under Sections 43 and 44 of the Act. That section further providedthat before ordering confiscation, notice giving an opportunity of being heardshould be given to the person affected and also empowered the officer to givethe person affected an option to pay in lieu of confiscation (a) in caseswhere the goods are taxable under this Act, in addition to the taxrecoverable, a sum of money not exceeding one thousand rupees or double theamount of tax recoverable, whichever is greater and (b) in other cases, a sumof money not exceeding one thousand rupees. Striking down this provision, theSupreme Court observed as follows:

Entry 54 of List II of theSeventh Schedule to the Constitution authorises the State Legislature tolegislate in respect of taxes on the sale or purchase of goods. A legislativeentry does not merely enunciate powers: it specifies a field of legislationand the widest import and significance should be attached to it. Power tolegislate on a specified topic includes power to legislate in respect ofmatters which may fairly and reasonably be said to be comprehended therein:see United Provinces v. Mst. Atiqa Begum [1940] F.C.R. 110. NavinchandraMafatlal v. Commissioner of Income-tax, Bombay City [1954] 26 I.T.R. 758(S.C.) and Balaji v. Income-tax Officer, SpecialInvestigation Circle [1961] 43 I.T.R. 393 (S.C.). A taxingentry therefore confers power upon the legislature to legislate for mattersancillary or incidental including provisions for preventing evasion of tax.Sub-sections (1) and (2) of Section 42 are intended to set up machinery forpreventing evasion of sales tax. But, in our judgment, the power to confiscategoods carried in a vehicle cannot be said to be fairly and reasonablycomprehended in the power to legislate in respect of taxes on sale or purchaseof goods. By Sub-section (3) the officer-in-charge of the check post orbarrier has the power to seize and confiscate any goods which are beingcarried in any vehicle if they are not covered by the documents specified inthe three Sub-clauses. Subsection (3) assumes that all goods carried in avehicle near a check post are goods which have been sold within the State ofMadras and in respect of which liability to pay sales tax has arisen andauthorises the Check Post Officer, unless the specified documents are producedat the check post or the barrier, to seize and confiscate the goods and togive an option to the person affected to pay penalty in lieu of confiscation.A provision so enacted on the assumption that goods carried in a vehicle fromone State to another must be presumed to be transported after sale within theState is unwarranted. In any event, power conferred by Sub-section (3) toseize and confiscate and to levy penalty in respect of all goods which arecarried in a vehicle whether the goods are sold or not is not incidental orancillary to the power to levy sales tax. A person carrying his own goods evenas personal luggage from one State to another or for consumption, because heis unable to produce the documents specified in Clauses (i), (ii) and (iii) ofSub-section (3) of Section 42, stands in danger of having his goods forfeited.Power under Sub-section (3) of Section 42 cannot be said to be ancillary orincidental to the power to legislate for levy of sales tax.

These observations have to be understood in the light of the provisions ofthe Madras General Sales Tax Act. Section 42(3) of the latter Act conferred apower of seizure and confiscation of any goods which were under transport andwere not covered by the prescribed documents. This provision was based on theunwarranted assumption that the goods were transported after sale within theState. The seizure and confiscation may be made irrespective of the questionwhether there was any attempt to evade tax. So it was held that the power toseize and confiscate any goods, which were carried in a vehicle, whether theywere sold or not, was not incidental or ancillary to the power to levy salestax. Further, the option to pay, in lieu of confiscation in cases where thegoods are taxable under the Act, in addition to the tax recoverable, a sum ofmoney not exceeding double the amount of tax is invalid for the reason thatwhether a dealer is liable to be assessed to sales tax will depend upon theturnover and, until the turnover exceeds the minimum, it cannot be said thatany tax is recoverable. 9. These defects in the Madras Act of 1959 are notpresent in the new section. The new section is not based on any assumptionthat the goods were transported after sale within the State. It is intendedonly for prevention of evasion of tax and of violation of any provisions ofthe Act.

10. Preventing the attempt to evade tax is certainly withinthe incidental and ancillary power of taxation and if there is reason tosuspect that there is an attempt in that direction, a provision to guardagainst that attempt is certainly comprehended by the incidental or ancillarypowers. The provision that the goods transported should be accompanied by theprescribed documents is part of this provision to check evasion. If that isnot properly enforced by some penal step, prevention of evasion will not beeffective. Attempt to evade tax may take various forms. Goods for which onerate of tax is leviable may be transported but the documents accompanying themmay show a different item of goods for which the tax may be less or nil. Theactual quantity transported or its value may or may not be correctly shown inthe accompanying documents. It is not possible to exhaustively enumerate allpossible attempts to evade tax. The enquiry into this is a process and sometime is required to find out the exact state of affairs. If there are reasonsto suspect an attempt at evasion, the same is directed to be recorded inwriting and the person concerned is called upon to furnish security for thepenalty if imposed after enquiry. If the security is not called upon, thesubsequent imposition of penalty will not be effective. If the penalty is notrecoverable easily and if the sales tax authorities have to take steps in thenormal course and leisurely to recover it, the penalty provision will not beeffective. Seizure of goods is allowed only if security is not furnished. Nodoubt it is a temporary restriction in the movement of goods. But the propertyin the goods continues to be with the owner unlike in the case ofconfiscation. The danger of losing custody and control of the goods will actas discouragement and an effective check at evasion. Therefore, the provisionto furnish security and seizure of the goods in default are only in the natureof an effective provision to recover the penalty which, in turn, is a measureaimed at prevention of tax evasion and perfectly within the incidental orancillary powers of taxation.

11. We are supported, in this conclusion,by the decision of the Supreme Court reported in Commissioner of CommercialTaxes v. R.S. Jhaver [1967] 20 S.T.C. 453 at 464 (S.C.) where the courtobserved thus in paragraph 13:

It is also not in doubt thatwhile making a law under any entry in the schedule it is competent to thelegislature to make all such incidental and ancillary provisions as may benecessary to effectuate the law; particularly it cannot be disputed that inthe case of a taxing statute it is open to the legislature to enact provisionswhich would check evasion of tax. It is under this power to check evasion thatprovision for search and seizure is made in many taxing statutes. It musttherefore be held that the legislature has power to provide for search andseizure in connection with taxation laws in order that evasion may bechecked.

No doubt this observation was made while consideringwhether the power to confiscate goods which are not entered in the accounts ismerely a provision of ancillary nature to check evasion of tax by making itunprofitable for dealers to secrete goods in which they are dealing. Thoughthe Supreme Court did not decide that question, the court definitely held thatthe legislature has power to provide for search and seizure in connection withtaxation laws in order that the evasion may be checked.

12. Thequestion whether, for violation of any provision of the Sales Tax Act, penaltyby way of forfeiture is permissible, arose for consideration in a recentdecision of the Supreme Court in R.S. Joshi v. Ajit Mills A.I.R. 1977 S.C.2279. In that case, the provision of the Bombay Sales Tax Act to forfeit thesums collected by the dealers by way of sales tax, though not exigible, to thepublic exchequer punitively, was held to be within the incidental or ancillarypowers under entry 54. In dealing with that question, the Supreme Court hastaken the view that the forfeiture, which is plainly punitive, is justifiableunder the incidental or ancil-lary powers of entry 54.

13. Therepugnancy of a case where tax is ordered to be recovered even before the salein addition to the penalty is also not here in Section 29A. Section 29A doesnot provide for recovery of tax at all but only provides for the imposition ofa penalty and stringent measures to recover the same in case an attempt atevasion is made out. Therefore, there is no invalidity on that score. Thus,we hold that Section 29A is only a provision to punish those dealers whoattempt to evade tax or violate any of the provisions of the Act, which areaimed at checking evasion. All these are part of the incidental or ancillarypowers to the power of taxation.

14. The further question is whetherthis provision violates Articles 301 and 19(1)(f) and (g) of theConstitution. The interception of the movement of goods from one place toanother is, to some extent, a restriction in the freedom of trade, commerceand intercourse coming within the scope of Article 301. Notwithstanding thatArticle 304(b) permits the imposition of a reasonable restriction on such afreedom of trade, commerce and intercourse with or within the State as may berequired in the public interest and the law imposing such a reasonablerestriction can only be with the previous sanction of the President. Thereis no dispute that the previous sanction of the President has been obtainedfor enacting Section 29A. So the only other matter to be considered is whetherthis is only a reasonable restriction in the public interest within themeaning of Article 304(b) of the Constitution, which is identical with asimilar provision in Article 19(1)(f) and (g) read with Clauses (5) and(6).

15. What amounts to reasonable restriction has been thesubject-matter of decision of the Supreme Court in more than one case. In arecent decision of the Supreme Court reported in Pathumma v. State of KeralaA.I.R. 1978 S.C. 771 Fazal Ali, J., has grouped all the decisions andenumerated all of them under seven heads, and it is not necessary to repeatthem here. The only thing to be remembered, in this connection, is that therestrictions must not be arbitrary or of an excessive nature so as to gobeyond the requirement of the interest of the general public and, in order tojudge the quality of the reasonableness, no abstract or general pattern or afixed principle can be laid down so as to be of universal application and thesame will vary from case to case. A just balance has to be struck betweenthe restriction imposed and the interest of the general public. Therestriction must have a direct and proximate nexus with the object which issought to be achieved and the nature of reasonableness has to be viewed notonly from the point of view of the citizen but the problem before thelegislature and the object which is sought to be achieved by the statute. Inthe light of this principle, we have to consider whether the variousprovisions contained in Section 29A are restrictions reasonable in theinterest of the public. It cannot be disputed that evasion of tax has to beprevented and at the same time the movement of the goods shall not beparalysed. Here, the officer-in-charge of the check post has to record hisreasons in writing why he suspects a violation and give an opportunity to theowner of the goods or the driver of the vehicle to furnish security for therealisation of the penalty that may likely to be imposed after the enquiry.The reasons stated for suspecting the genuineness of the documents orsuspecting an attempt at evasion can be shown to be unfounded. The sectionrequires an enquiry to be held after giving an opportunity to the personconcerned before penalty is imposed. This is consistent with the principlesof natural justice. Only if security is not furnished within the time allowed,power is given to the officer to seize the goods. The ownership in the goodscontinues to be in the same person and, if penalty is imposed, the goodsseized are sold as his goods and, after realising the penalty, if there is abalance, that is returned to the owner of the goods. Until the sale, it isopen to the owner to pay the penalty and take back the goods. Time is alsogiven to pay the penalty after the imposition. So, the procedure in thematter of imposition of penalty is substantially and procedurally fair andreasonable. This provision is substantially different from the provisions inSubsections (3), (4) and (5) of Section 29 held to be invalid in the aboveFull Bench decision, 1970 K.L.T. 154 (F.B.). We do not think that there is anyunreasonableness or excessiveness in the restriction imposed in the movementof goods. This is only a safeguard in the nature of prevention of evasion oftax.

16. A contention was feebly advanced that security for payment ofpenalty and seizure in default in advance of the imposition of penalty are notjustified or reasonable as it is not certain whether the enquiry would resultin an imposition of a penalty. There is no substance in this contention.Demanding security for the proper payment of the penalty payable under thisprovision is neither arbitrary nor unreasonable. A similar provision forsecurity for payment of tax at the time when a person applies for beingregistered as a dealer or later has been held to be valid in view of thedecision of the Supreme Court reported in Nand Lal Raj Kishan v. Commissionerof Sales Tax [1961] 12 S.T.C. 324 (S.C.) followed by our Court in Abdulla v.Sales Tax Officer [1972] 30 S.T.C. 436. The same principle applies here.

17. It was submitted that the power under Section 29A is conferred on asubordinate official and as there is a likelihood of the power being abused,this provision is invalid. A mere possibility of abuse is no ground tostrike down the statutory provision. But we make it clear that the stringentpowers given to the officers should not be exercised arbitrarily. They shouldexercise their powers bona fide only for the purpose for which they have beenconferred and not for any ulterior purpose and, whenever there is atransgression by the authorities, they should not forget that theextraordinary powers of this Court are there to strike down their illegalaction.

18. It follows therefore that there is no basis for thecontention that Section 29A is constitutionally invalid. In each of thesepetitions, the allegations are made against the manner in which the action hasbeen taken against the petitioners. We are not going into them, because, atthe enquiry under Section 29A, they can point out that a case has not beenmade out for imposition of penalty and, if they are aggrieved by the orders ofthe subordinate authorities, there is provision to file an appeal. We haveonly disposed of the objection regarding the constitutional validity of theprovision. It is open to the petitioners to move the concerned authoritiesthat a case has not been made out to invoke the provisions of Section 29A ofthe Act.

Subject to these observations and directions, these originalpetitions are dismissed, but, in the circumstances, we make no order as tocosts.


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