{"id":193202,"date":"2008-12-19T00:00:00","date_gmt":"2008-12-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arun-vs-the-circle-inspector-of-police-on-19-december-2008"},"modified":"2017-10-21T20:10:48","modified_gmt":"2017-10-21T14:40:48","slug":"arun-vs-the-circle-inspector-of-police-on-19-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arun-vs-the-circle-inspector-of-police-on-19-december-2008","title":{"rendered":"Arun vs The Circle Inspector Of Police on 19 December, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Arun vs The Circle Inspector Of Police on 19 December, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 24643 of 2008(H)\n\n\n1. ARUN, S\/O.JOHN ALIAS YOHANNAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE CIRCLE INSPECTOR OF POLICE,\n                       ...       Respondent\n\n2. THE INSPECTING ASSISTANT COMMISSIONER\n\n3. THE INTELLIGENCE OFFICER, COMMERCIAL\n\n                For Petitioner  :SRI.V.P.SUKUMAR\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice K.M.JOSEPH\n\n Dated :19\/12\/2008\n\n O R D E R\n                        K. M. JOSEPH, J.\n                 --------------------------------------\n                  W.P.C. NO. 24643 OF 2008 H\n                  --------------------------------------\n               Dated this the 19th December, 2008\n\n                            JUDGMENT\n<\/pre>\n
     Petitioner seeks to quash Ext.P5 order passed by the<\/p>\n
second respondent and a direction is sought to respondents 2<\/p>\n
and 3 to release the goods detained as per Ext.P2 mahazar on his<\/p>\n
remitting redemption fee as provided in the second proviso to<\/p>\n
Section 49(3) of the KVAT Act.\n<\/p>\n
     2. Briefly put, the case of the petitioner is as follows:<\/p>\n
     Petitioner is an agent in hill produce business. His main<\/p>\n
principal is one Shri Manu Mathew. The first respondent, Circle<\/p>\n
Inspector of Police, during his patrol duty on 13.6.2008 got<\/p>\n
information that dry pepper was being transported through<\/p>\n
Cumbummettu for smuggling into Tamilnadu. On the basis of<\/p>\n
the said information, the first respondent reached a place called<\/p>\n
“8 Acre” near Cumbummettu. The first respondent though<\/p>\n
signalled the vehicle to stop, it sped away without stopping.<\/p>\n
Thereafter, the first respondent proceeded to the boundary and<\/p>\n
WPC.24643\/08H                    2<\/span><\/p>\n
found 84 Bags of dry pepper packed ion jute bags stored on the<\/p>\n
road side. Petitioner was also there as the person-in-charge of<\/p>\n
the goods. There were headload workers near the spot and the<\/p>\n
petitioner was there. On being questioned, they allegedly stated<\/p>\n
that the goods belonged to one Shri M. Kareem. Tax evasion<\/p>\n
being suspected, the first respondent seized the goods and<\/p>\n
entrusted to the second respondent vide Ext.P1. The third<\/p>\n
respondent prepared Ext.P2 spot mahazar. It is stated that the<\/p>\n
actual owner Shri Manu Mathew filed Writ Petition which was<\/p>\n
resisted by the Revenue on the ground that the goods belonged<\/p>\n
to Shri M. Kareem. By Ext.P3 Judgment, the Writ Petition was<\/p>\n
dismissed.   It is the further case of the petitioner that the<\/p>\n
petitioner was present and he filed Writ Petition, W.P.(C).<\/p>\n
No.19406\/08 which was disposed of by Ext.P4 Judgment<\/p>\n
directing the second respondent herein to consider the question<\/p>\n
of releasing the goods in accordance with law. By Ext.P5, the<\/p>\n
request of the petitioner was rejected.\n<\/p>\n
      3.   A Counter Affidavit is filed on behalf of the<\/p>\n
WPC.24643\/08H                   3<\/span><\/p>\n
respondents, reiterating the contentions as noted in Ext.P5.<\/p>\n
Petitioner has also filed an application seeking production of<\/p>\n
Ext.P6 which is the appellate order passed by the Deputy<\/p>\n
Commissioner (Appeals) by which the Appeals filed by Shri M.<\/p>\n
Kareem came to be allowed and the assessing authority was<\/p>\n
directed to refund the amounts remitted by the appellant, Shri M.<\/p>\n
Kareem as a condition for grant of stay. The said order is<\/p>\n
produced by the petitioner, apparently on the ground that one of<\/p>\n
the main grounds referred to in the impugned order is that the<\/p>\n
goods in question actually belonged to Shri M. Kareem, and that<\/p>\n
there were proceedings taken against Shri Kareem, and it was in<\/p>\n
such circumstances that Shri Kareem had put up the petitioner as<\/p>\n
a front to claim goods to avoid the huge penalty.<\/p>\n
      4. I heard Shri V.P. Sukumar, learned counsel for the<\/p>\n
petitioner and the learned Government Pleader.           Learned<\/p>\n
counsel for petitioner would contend that having regard to the<\/p>\n
fact that the petitioner was noted as the person-in-charge, there<\/p>\n
was no basis for not releasing the goods to the petitioner. He<\/p>\n
WPC.24643\/08H                   4<\/span><\/p>\n
would further rely on Ext.P6 order which I have already<\/p>\n
adverted to, to contend that it would show that the proceedings<\/p>\n
alleged against Shri Kareem itself has ended in his favour. He<\/p>\n
would further contend that on a perusal of Section 49 of the<\/p>\n
KVAT Act, the respondents were duty bound to release the<\/p>\n
goods to the petitioner. Per contra, learned Government Pleader<\/p>\n
would contend that the petitioner was not entitled to the release<\/p>\n
of the goods.     Learned Government Pleader relied on the<\/p>\n
language of Section 47(2) and pointed out that the language<\/p>\n
employed would show that it is only discretionary to give back<\/p>\n
the goods on furnishing of security. Shri V.P. Sukumar would<\/p>\n
submit that the mere fact that the goods are released to the<\/p>\n
petitioner would not stand in the way of the Department<\/p>\n
proceeding against Shri Kareem. He would also refer to the<\/p>\n
circumstances which are, of course, more elaborately considered<\/p>\n
in Ext.P5 order. In Ext.P5, the Officer has, inter alia, found that<\/p>\n
the 84 bags of dry pepper detained at 5\/45 PM at the State<\/p>\n
border at 8 Acre near Cumbummettu belonged to Shri M.<\/p>\n
WPC.24643\/08H                   5<\/span><\/p>\n
Kareem. It is further found that the petitioner who was present<\/p>\n
on the spot, stated before the Police Officials that the goods<\/p>\n
belonged to Shri M. Kareem, and that Shri Manu Mathew is the<\/p>\n
best friend of Shri M. Kareem and the petitioner is acting as<\/p>\n
pilot of Shri M. Kareem and he is his employee. Two reasons<\/p>\n
are given to deny the ownership by Shri M. Kareem. It is stated<\/p>\n
that no seizure was effected from the Building No.13\/11 as<\/p>\n
claimed by Shri Manu Mathew and the petitioner, and that the<\/p>\n
petitioner has failed to produce any documents to show that the<\/p>\n
goods seized were in his possession. It is noted that when the<\/p>\n
Police handed over the goods with Report at 8\/45 PM or<\/p>\n
thereafter till 11\/10 PM on 13.6.2008, the petitioner has not<\/p>\n
appeared before the Intelligence Officer. The petitioner claimed<\/p>\n
possession of the goods as purchasing agent of Shri Manu<\/p>\n
Mathew and the petitioner has no records or documents with<\/p>\n
him to substantiate his claim, it is noted. The owner of the<\/p>\n
goods seized has already been ascertained by the Police as well<\/p>\n
as the Commercial Tax Department.          Shri M. Kareem is<\/p>\n
WPC.24643\/08H                     6<\/span><\/p>\n
identified as the owner, it is found.\n<\/p>\n
     5. In order to appreciate the issues, it is necessary to refer<\/p>\n
to Section 49(3) and (4) which read as follows:\n<\/p>\n
              “49. Confiscation by Authorised Officers<\/p>\n
        in certain cases.-\n<\/p><\/blockquote>\n
              (3) Where the authorised Officer is satisfied<\/p>\n
        that the driver or other person in charge of the<\/p>\n
        vehicle   or  vessel    or   other conveyance     is<\/p>\n
        smuggling notified goods, the Officer shall have<\/p>\n
        the power to seize and detain the goods along<\/p>\n
        with the vehicle or vessel:\n<\/p><\/blockquote>\n
              Provided that before taking action to seize<\/p>\n
        and detain the goods and the vehicle or vessel<\/p>\n
        under this Section, the Officer shall give the<\/p>\n
        person in charge of the goods and the owner, if<\/p>\n
        ascertainable, and to the owner of the vehicle or<\/p>\n
        the person in charge of the vehicle a notice in<\/p>\n
        writing informing him the reason for the seizure<\/p>\n
        and detention of the goods and vehicle or vessel<\/p>\n
        and an opportunity of being heard:\n<\/p><\/blockquote>\n
              Provided further that the authorised Officer<\/p>\n
        may release the goods and the vehicle or vessel<\/p>\n
        seized and detained if the owner or the person in<\/p>\n
        charge of the notified goods or the owner or<\/p>\n
WPC.24643\/08H                 7<\/span><\/p>\n
       person in charge of the vehicle or vessel files an<\/p>\n
       option to pay in lieu of seizure and detention, a<\/p>\n
       redemption fee equal to thrice the amount of tax<\/p>\n
       due at the rate applicable to the goods liable to<\/p>\n
       seizure and detention and twice the tax due or an<\/p>\n
       amount of Rs.50,000\/= whichever is higher for<\/p>\n
       the release of the vehicle or vessel in lieu of<\/p>\n
       detention:\n<\/p><\/blockquote>\n
             Provided further that if the owner of the<\/p>\n
       vehicle produces the documents specified in sub-<\/p>\n
       section (3) of Section 46 and the owner of t4he<\/p>\n
       goods proves the bonafides of the transport of<\/p>\n
       goods within seven days of the seizure and<\/p>\n
       detention the Officer shall release the goods and<\/p>\n
       the vehicle.\n<\/p><\/blockquote>\n
<\/blockquote>\n
             (4) Notwithstanding anything contained in<\/p>\n
       the foregoing provisions, if the owner or person<\/p>\n
       in charge of the notified goods or the owner or<\/p>\n
       person in charge of the vehicle fails to prove the<\/p>\n
       genuineness of the transport of the notified goods<\/p>\n
       or to remit the redemption fee as specified in<\/p>\n
       second proviso to sub-section (3), within thirty<\/p>\n
       days from the seizure and detention of goods and<\/p>\n
WPC.24643\/08H                   8<\/span><\/p>\n
       the authorized Officer has reason to believe that<\/p>\n
       the owner or the person in charge of the vehicle<\/p>\n
       or the driver has transported the notified goods to<\/p>\n
       evade payment of tax with the knowledge or<\/p>\n
       connivance of the owner of the goods, the Officer<\/p>\n
       may confiscate the vehicle or vessel along with<\/p>\n
       the goods.\n<\/p><\/blockquote>\n
             Provided that the authorized Officer shall<\/p>\n
       serve notice to the owner of the vehicle or the<\/p>\n
       person in charge of the vehicle or the owner of<\/p>\n
       the notified goods, if ascertainable, intimating the<\/p>\n
       reason for the confiscation of the vehicle or vessel<\/p>\n
       affording him and an opportunity of being heard.<\/p>\n
       The Officer shall also afford an opportunity to<\/p>\n
       any of such persons to pay a penalty equal to<\/p>\n
       thrice the amount of tax attempted to be evaded in<\/p>\n
       lieu of confiscation of the notified goods and an<\/p>\n
       amount equal to thrice the amount of such tax or<\/p>\n
       rupees one lakh whichever is higher in lieu of<\/p>\n
       confiscation of the vehicle or vessel.”<\/p>\n<\/blockquote>\n
Undoubtedly, this Court has rejected the claim of Shri Manu<\/p>\n
Mathew on the ground that he had failed to establish that the<\/p>\n
goods belonged to him. This Court also found that Shri Manu<\/p>\n
WPC.24643\/08H                   9<\/span><\/p>\n
Mathew has not been able to establish that the goods were<\/p>\n
seized from the shop. It is thereafter that by Ext.P4 Judgment<\/p>\n
this Court directed the claim of the petitioner for release of the<\/p>\n
goods under the second proviso to Section 49(3) to be<\/p>\n
considered.\n<\/p>\n
      6. The case set up by the petitioner is that, having regard<\/p>\n
to the mahazar the petitioner has a legal right for release of the<\/p>\n
goods on payment of the amount mentioned in the second<\/p>\n
proviso, on the ground that he was identified as the person-in-<\/p>\n
charge of the goods.\n<\/p>\n
      7. Learned Government Pleader would point out that the<\/p>\n
second proviso to Section 49(2) only vests a discretion with the<\/p>\n
Officer to release the goods, as the word used is “may”. He<\/p>\n
supported Ext.P5. He would further contend that the Officer<\/p>\n
has identified Shri Kareem as the owner of the goods and in<\/p>\n
such circumstances, the stage is over when the petitioner, at any<\/p>\n
rate, could have insisted for the release of the goods. Shri V.P.<\/p>\n
Sukumar would also refer me to sub-section (4) of Section 49<\/p>\n
WPC.24643\/08H                    10<\/span><\/p>\n
and would contend that it may not be open to the interpretation<\/p>\n
that if a person-in-charge requests for the release of the goods<\/p>\n
and offers to pay the amount, the authority could make any<\/p>\n
further progress as provided in sub-section (4) and in the other<\/p>\n
subsequent provisions. This result, he would persuade me to<\/p>\n
accept by pointing out that as declared in Section 49(4), it is<\/p>\n
only if the owner or person-in-charge of the notified goods fails<\/p>\n
to remit the redemption fee as specified in the second proviso to<\/p>\n
sub-section (3) within thirty days of the seizure and detention of<\/p>\n
the goods and the authorised Officer has the reason to believe<\/p>\n
that the said person or the person-in-charge of the vehicle or<\/p>\n
driver has transported the goods to evade payment of tax with<\/p>\n
the knowledge or connivance of the owner, confiscation is<\/p>\n
permissible. He would further contend that the word “may” in<\/p>\n
sub-section (3), in this context, must be read as “shall”.<\/p>\n
      8. The first question to be considered is whether, if a<\/p>\n
person as the owner or in charge of the notified goods files an<\/p>\n
option to pay the amount, the Officer is bound to release the<\/p>\n
WPC.24643\/08H                  11<\/span><\/p>\n
goods ? One way of looking at it would be is that the word<\/p>\n
“may” implies not a duty, but a discretionary power to release<\/p>\n
the goods. The goods would have to be released on payment of<\/p>\n
thrice the amount of tax. Cases can fall in two broad categories.<\/p>\n
In the first category would be cases where the release is sought<\/p>\n
by the owner or person-in-charge of the goods in respect of<\/p>\n
proceedings launched against him for the first time. The second<\/p>\n
category would be cases where the proceedings may be taken in<\/p>\n
relation to a person for the second time or more than on two<\/p>\n
occasions. In the second category, one would be dealing with<\/p>\n
persons who could be characterised as persons who are<\/p>\n
unrelenting in the matter of breaching the law. Could it be said<\/p>\n
that irrespective of the circumstances, the second proviso<\/p>\n
mandates a duty to release the goods on mere payment of the<\/p>\n
amount three times of the tax ? Some indication as to the nature<\/p>\n
of the duty can be gleaned from the terms of the proviso to sub-<\/p>\n
section (4) which I have already extracted. Undoubtedly, this is<\/p>\n
a provision which contemplates service of notice when a<\/p>\n
WPC.24643\/08H                    12<\/span><\/p>\n
decision is taken to confiscate. It provides that the Officer has<\/p>\n
to provide an opportunity to the owner of a notified goods<\/p>\n
among others, to pay a penalty equal to thrice the amount of tax<\/p>\n
in lieu of the confiscation of the notified goods. The word used<\/p>\n
in the said proviso is “shall”.        No doubt, notice is not<\/p>\n
contemplated as per the said proviso to be issued to the person-<\/p>\n
in-charge of the goods.      Further more, sub-section (4), as<\/p>\n
already noticed, empowers the authorised Officer if he has<\/p>\n
reason to believe that the owner or person-in-charge of the<\/p>\n
vehicle or the driver has transported the notified goods to evade<\/p>\n
payment of tax with the knowledge or connivance with the<\/p>\n
owner of the goods, provided that the owner or person-in-charge<\/p>\n
of the notified goods, either fail to prove the genuineness of the<\/p>\n
transport or to remit the redemption fee as per the second<\/p>\n
proviso to sub-section(3) within thirty days of the seizure, to<\/p>\n
confiscate the goods. Further proceedings after the seizure and<\/p>\n
detention of the goods are to be done by the Officer as<\/p>\n
contemplated in sub-section (4). An Appeal is provided before<\/p>\n
WPC.24643\/08H                   13<\/span><\/p>\n
the Deputy Commissioner and a Revision is provided before the<\/p>\n
Commissioner.     No doubt, sub-section (9) provides that the<\/p>\n
order of confiscation will not prevent the infliction of any<\/p>\n
punishment for which the person is liable under the Act. It<\/p>\n
should be noticed that in the third proviso to sub-section (3), in<\/p>\n
contra distinction from the use of the word “may”, in a case<\/p>\n
where the owner of the vehicle produces the documents<\/p>\n
specified in sub-section (3) of Section 46 and the owner proves<\/p>\n
the bonafides of the transport within seven days, the Officer is<\/p>\n
bound to release the goods and the vehicle. The word used in<\/p>\n
the said proviso as “shall”. If, therefore, it is found that the<\/p>\n
power to confiscate cannot be exercised in a case where the<\/p>\n
owner of the goods or the person-in-charge of the notified<\/p>\n
goods, pays the redemption fee within thirty days of the seizure<\/p>\n
and detention of the goods, it would advance the case of the<\/p>\n
petitioner that he has a right for release of the goods on filing<\/p>\n
the option under the second proviso to sub-section (3) of<\/p>\n
Section 49.    Contemplate a situation where the authorised<\/p>\n
WPC.24643\/08H                  14<\/span><\/p>\n
Officer accepts the option by the owner or person-in-charge of<\/p>\n
the notified goods and release the goods and he effects the<\/p>\n
payment under the second proviso within thirty days. It would<\/p>\n
be then become impermissible for the authorised Officer under<\/p>\n
sub-section (4) to proceed to confiscate the goods.<\/p>\n
      9. Then the further question would be whether it could be<\/p>\n
contended that the meaning of the words “if the owner or person<\/p>\n
fails to remit the redemption fee” should be limited to a case<\/p>\n
where, in the exercise of the discretion, the authorised Officer<\/p>\n
permits him to pay the amount under the second proviso to sub-<\/p>\n
section (3). In other words, could it be said that there must be a<\/p>\n
decision taken in the exercise of his discretion to release the<\/p>\n
goods when the owner or person-in-charge of the goods files an<\/p>\n
option and payment is made within thirty days in order to<\/p>\n
deprive the authorised Officer of the power to proceed to decide<\/p>\n
that he may confiscate the goods along with the vehicle. I<\/p>\n
cannot also overlook the fact that the owner appears to have a<\/p>\n
legal right to have the goods released from the confiscatory<\/p>\n
WPC.24643\/08H                   15<\/span><\/p>\n
process under the proviso to sub-section (4) upon payment of<\/p>\n
thrice the amount of tax attempted to be evaded. No doubt, the<\/p>\n
word used in the second proviso to sub-section (4) is “thrice the<\/p>\n
amount of tax due”. Thus, if a person is the owner of the goods,<\/p>\n
it would be a reasonable interpretation of the second proviso to<\/p>\n
hold that he has a right to have the goods released by filing the<\/p>\n
option mentioned in the second proviso and paying the amount<\/p>\n
within thirty days. There can be no further steps under the Act,<\/p>\n
in such a situation.\n<\/p>\n
      10. The petitioner is admittedly is not the owner of the<\/p>\n
goods. He indeed claims in the Writ Petition and before the<\/p>\n
authority as agent of Shri Manu Mathew. Shri Manu Mathew<\/p>\n
was found to be not the owner of the goods by this Court in<\/p>\n
Ext.P3. The finding of the authority is that it is not Shri Manu<\/p>\n
Mathew, but Shri Kareem who is the owner of the goods. In<\/p>\n
this context, various factors have been gone into by the statutory<\/p>\n
authority to hold that Shri Kareem is the owner of the goods.<\/p>\n
Obviously, the goods does not come under the third proviso to<\/p>\n
WPC.24643\/08H                  16<\/span><\/p>\n
sub-section(3). in that, neither the owner of the goods, nor the<\/p>\n
person-in-charge of the notified goods, has succeeded in<\/p>\n
proving the genuineness of the transport within the meaning of<\/p>\n
the said proviso. A person who is in charge of the notified<\/p>\n
goods should be presumed to be acting on behalf of the owner.<\/p>\n
Here, the Officer has found that the owner is Shri Kareem.<\/p>\n
     11. Going by the version of the petitioner, he is clearly<\/p>\n
claiming as person-in-charge on behalf of Shri Manu Mathew,<\/p>\n
which means that if release of the goods is ordered to him, he<\/p>\n
will have to account the goods to Shri Manu Mathew, as the<\/p>\n
owner. Thus, if the petitioner is to be given the goods, it will<\/p>\n
tantamount to passing an order to release the goods to Shri<\/p>\n
Manu Mathew.       As already noticed, it was found by the<\/p>\n
respondent that Shri Kareem is the owner of the goods and<\/p>\n
notice also is issued. Under the proviso to sub-section (4) of<\/p>\n
Section 49, no notice is contemplated to the person-in-charge of<\/p>\n
the goods and notice need be issued only to the owner of the<\/p>\n
goods. It is not as if Shri Manu Mathew has been able to<\/p>\n
WPC.24643\/08H                  17<\/span><\/p>\n
establish his right within the meaning of the 3rd proviso to sub-<\/p>\n
section (3) of Section 49, either. Whatever may have been the<\/p>\n
position at an early stage, having regard to the position<\/p>\n
obtaining, I would think that I need not exercise the discretion<\/p>\n
under Article 226 of the Constitution of India in favour of the<\/p>\n
petitioner. In such circumstances, I decline jurisdiction and<\/p>\n
dismiss the Writ Petition.\n<\/p>\n
                                               Sd\/=
\n                                    K. M. JOSEPH, JUDGE<\/p>\n
kbk.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Arun vs The Circle Inspector Of Police on 19 December, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 24643 of 2008(H) 1. ARUN, S\/O.JOHN ALIAS YOHANNAN, … Petitioner Vs 1. THE CIRCLE INSPECTOR OF POLICE, … Respondent 2. THE INSPECTING ASSISTANT COMMISSIONER 3. THE INTELLIGENCE OFFICER, COMMERCIAL For Petitioner :SRI.V.P.SUKUMAR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-193202","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nArun vs The Circle Inspector Of Police on 19 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arun-vs-the-circle-inspector-of-police-on-19-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arun vs The Circle Inspector Of Police on 19 December, 2008 - 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