9911796707
TMI Blog1996 (3) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,272 and 5,000 pieces of electronic quartz clock with dry battery cell of the value of Rs. 7,72,200, respectively. On receipt of telephonic intimation and receipt of all necessary documents including xerox copies of the invoice on May 3, 1995, normal permits in form No. XXXA being Nos. 351/95-96 and 352/95-96 both dated May 4, 1995 were obtained from respondent No. 7 and were delivered to one Mr. Chopra, a clearing agent of the firms at Chichira checkpost, District Midnapore as instructed by the Gujarat suppliers in the anticipation that the consignment of goods was scheduled to reach Chichira check-post on May 5, 1995. However, on May 6, 1995, the applicants came to know through the driver of the vehicle transporting the consignment that he had by mistake reached the Berma check-post in district Purulia on May 3, 1995 and that the Berma check-post authorities had allowed him to bring the permits from the clearing agent at Chichira check-post, when he was unable to produce the permits on demand. When the driver reached the Berma check-post with the permits on May 5, 1995, the respondent No. 4 handed over a seizure list dated May 3, 1995 in Case No. 7/41/95-96 of Berma without acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents have resisted the prayer and contended that the seizure proceedings were valid and according to law. It has been pointed out that the applicants applied for permits in form XXX only on May 4, 1995 which were also issued on the same day in form XXXA whereas the vehicle carrying the goods reached Berma check-post on May 1, 1995 at about 7.20 p.m. The goods were seized only on May 3, 1995 at 8.05 a.m. as no permit was produced by the driver even after being granted more than 24 hours' time. There was also no detention of the vehicle by any official of the check-post but actually the driver of the vehicle kept the vehicle of his own will wanting time to produce the necessary permits, and hence the question of detention of the vehicle by any check-post official does not at all arise. Further, once the notified goods are seized, such goods cannot be released without completing the procedure as prescribed in the 94 Act and the West Bengal Sales Tax Rules, 1995 (hereinafter referred to as "the 95 Rules") made thereunder. Since at the time of the entry of the vehicle at the check-post on May 1, 1995 there was no valid permit in possession of the driver of the vehicle, it would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has to be held, as stated by the respondents, that the vehicle in question had indeed reached the Berma check-post at 7.20 p.m. on May 1, 1995. 7.. The first contention of Mr. S.N. Bose, the learned advocate appearing for the applicants, is that no opportunity was given to the driver by way of sufficient time for production of the necessary permits when he reached the checkpost and he has relied on the decision of this Tribunal in the case of Hindusthan Lever Limited v. State of West Bengal reported in [1990] 76 STC 155. In that case, this Tribunal had held that where the carrier is unable to produce the necessary documents, the detention of the vehicle after giving a reasonable opportunity to the transporter to produce his documents to the satisfaction of the authority concerned cannot create any additional problem for the check-post authorities in the context of a suggestion on behalf of the applicant in that case that at least 24 hours time should be given to produce the permits (para 40 of the judgment) since section 7(2) of the West Bengal Sales Tax Act, 1954, which was under consideration and which provided for immediate seizure, had been challenged as being arbitrary a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denial of time to produce the necessary permit, thereby being denied reasonable opportunity fail. The authorities having acted in conformity with the statutory requirement there is also no merit in the contention that no show cause notice was issued prior to the seizure, for which there is neither statutory provision nor any necessity. 9. Mr. Bose had also argued that the seizure was bad since there was no reason for the authorities to suspect evasion of tax, having regard to the facts and circumstances of the case which indicate that the driver of the vehicle had voluntarily reached the Berma check-post and the vehicle had not, in fact crossed the check-post. Moreover, by refusing to release the goods even after the permits were produced before them on May 5, 1995, the authorities had interfered with his fundamental right to carry on business and the free-flow of trade under article 301. However, he did not challenge the constitutional validity of section 70 of the 94 Act which provides for the seizure of goods together with any container or other materials for the packing of such goods in the event of non-production of permits within a period not exceeding 24 hours for carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d because penalty had been imposed only because the driver failed to produce the prescribed documents immediately on demand and moreover the maximum penalty provided had been imposed without considering the explanation offered. It was further held that the imposition of the maximum penalty as a matter of course will be an arbitrary exercise of power and such exercise of the power may be repugnant to the provisions of article 301. In the case before us, the seizure was made only after opportunity was given as provided under the law to produce the permit and no penalty has yet been imposed though penalty proceedings have been initiated already. It is, therefore, still open for the applicant to plead its case and offer explanation before the appropriate authorities regarding imposition of penalty. There has, therefore, been no infringement of any fundamental right as alleged or of article 301 of the Constitution. The decision of this Tribunal reported in Transelektra Domestic Products Limited v. Inspector of Commercial Taxes [1992] 86 STC 497 has no relevance whatsoever since the facts and circumstances are altogether different. The decision of the Gauhati High Court reported in Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) The search shall be made in their presence and a list of all things seized in the course of such search and all the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it. (6) to (8)...................." Mr. Bose argued that, since there were no witnesses to the seizure on May 3, 1995 by the check-post authorities, there was a violation of the mandatory provisions and hence the seizure was bad. He also relied on a decision of the Calcutta High Court reported in Deoralia Brothers v. State of West Bengal [1982] 50 ST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicate that there need be simply no compliance at all. It was held that there should be an attempt in every case to secure some witnesses and in cases where no witness was available, the fact that no witness was available must appear from the contemporaneous record of the seizure which is the seizure receipt. Mere mention in seizure receipt that no witness was found will not at once discharge the legal obligation of compliance with rule 70A and that this will have to be judged on the facts and circumstances of each case. 13.. We reaffirm what we have stated in that case on the question of witnesses to seizure from the premises of a dealer but we are unable to see how that can be extended to the present case which stands on a different footing altogether. The moot question is whether the provisions of the Criminal Procedure Code, 1973 are at all applicable in the present case. Mr. Bose had contended that seizure at a check-post was no different from search and seizure of books and accounts or of goods from the business premises or godown of any dealer and that they should be treated pari passu in the matter of compliance with the requirement of witnesses envisaged under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the open and before the glare of anybody who happens to be present. In the present case, the seizure was made at the check-post on May 3, 1995, though the vehicle had reached there on May 1, 1995. Rule 207(1) of the 95 Rules cannot obviously have a wider scope than that of section 100(4) and (5) of the Criminal Procedure Code which it adopts with the rider "as far as possible". If the said section 100(4) or (5) cannot apply to search or seizure on a road or in the open, it can hardly apply to a seizure under section 70(1) of the 94 Act by virtue of rule 207(1). In this connection, it is relevant that though section 104(4) and (5) relates to searches and seizures at "places", section 100(1) of the Criminal Procedure Code deals with a "place" which is "closed". Moreover, sub-section (6) of section 100 lays down that the occupant of the "place" searched shall be permitted to attend the search and a copy of the seizure list should be delivered to him. Apart from section 100(1), sub-section (6) of section 100 of the Criminal Procedure Code also indicates without any ambiguity that sub-sections (4) and (5) of section 100 can hardly apply to seizures on roads or in the open such as at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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