VENKATESWARA RAO,J. -
(1.) THE constitutionality of section 29 of the Andhra Pradesh General Sales Tax Act, which will hereinafter be referred to as the "act" to the extent it purports to empower the officer in charge of the check post or barrier to seize goods which are not covered by a way bill containing the prescribed particulars and to confiscate them if the penalty levied is not paid, is sought to be questioned in these writ petitions.
(2.) THE Anantapur District Co-operative Marketing Society Ltd. is the first petitioner in W. P. No. 4815 of 1968 while the second petitioner therein is a private transport company. Their case is that while "urea" released in favour of the first petitioner by the Joint Director of Food was being transported from Vijayawada to Hindupur in a lorry belonging to the second petitioner on 19th June, 1968, the Special Assistant Commercial Tax Officer (Evasions), Narasaraopet (R-1), stopped the vehicle and seized the goods on the ground that the way bill relating to them was defective and later passed an illegal order dated 1st September, 1969, confiscating 160 bags of urea. The facts giving rise to the other W. P. No. 5101 of 1968 are almost similar to those of W. P. No. 4815 of 1968. The petitioner in this case is a registered dealer carrying on wholesale business in jaggery. When 262 bags of jaggery purchased on his behalf in the Chittoor district were being transported to his place of business at Machilipatnam on 18th October, 1968, by means of a lorry, the Commercial Tax Officer, Chittoor (R-2), stopped the vehicle at a place lying 3 or 4 miles away from Chittoor though there was no check post there and high-handedly seized the goods notwithstanding that the way bill relating to them contained the required particulars, and had the same removed to his office at Chittoor. The next day he passed an order to the effect that the jaggery was seized pending further enquiry into the matter as the purchase vouchers were found to be concocted. All the efforts of the petitioner to convince him that the goods were not liable to be seized proved futile and he ultimately served the petitioner with a notice dated 15th November, 1968, proposing to levy a penalty of Rs. 1,675. 92 under section 29 of the Act. This act of the second respondent is illegal and without jurisdiction. Hence these petitions for the issuance of a writ of certiorari quashing the order of the Special Assistant Commercial Tax Officer (Evasions), Narasaraopet, dated 1st September, 1968, and a writ of mandamus directing the Commercial Tax Officer, Chittoor, to restore the 262 bags of jaggery seized by him, respectively.
The principal ground on which the legality of the seizures and the subsequent order confiscating the goods and proposing a penalty are questioned is that section 29 of the Act, in so far as it purports to empower the officer in charge of the check post or barrier or other officer, if any, empowered under sub-section (2) thereof to seize the goods and also to confiscate them if the penalty levied in respect of those goods is not paid within the time prescribed is ultra vires the powers of the State Legislature besides being violative of the provisions of articles 14, 19 and 31 of the Constitution of India. In order to appreciate this contention, it is necessary to notice the section which reads as under :
" 29. Establishment of check post or barrier and inspection of goods while in transit.- (1) If the State Government or the Board of Revenue consider or considers it necessary that with a view to prevent or check evasion of tax under this Act in any place or places in the State, it is necessary so to do, the State Government or the Board of Revenue may by notification direct the setting up of a check post or the erection of a barrier, or both, at such place or places as may be notified. (2) At every check post or barrier mentioned in sub-section (1) or at any other place when so required by any officer empowered by the State Government in this behalf, the driver or any other person in charge of a goods vehicle or boat shall stop the vehicle or boat, as the case may be, and keep it stationary as long as may reasonably be necessary, and allow the officer in charge of the check post or barrier, or the officer empowered as aforesaid, to examine the contents in the vehicle or boat and inspect all records relating to the goods carried, which are in the possession of such driver or other person in charge, who shall, if so required give his name and address and the name and address of the owner of the vehicle or boat. (3) If any goods which are under transport by a goods vehicle or a boat are not covered by a way bill issued by the person who consigns the goods in such form and containing such particulars as may be prescribed, the officer in charge of the check post or the barrier or the officer empowered under sub-section (2) shall have power to seize the goods and to levy - (i) in the case of goods exempted under section 8 or section 9, a penalty not exceeding rupees five hundred where the non-production of the way bill was wilful; (ii) in the case of goods other than those exempted under section 8 or section 9, a penalty equal to five times the tax leviable on the goods where the non-production of the way bill was wilful : Provided that before taking action for the levy of penalty as aforesaid, such officer shall give the person affected an opportunity of being heard while making an enquiry in the manner prescribed. (4) Where the penalty levied under sub-section (3) is paid, the goods so seized shall be released, but where such penalty is not paid by the person concerned, within the time prescribed, such officer shall confiscate the goods.
(3.) IT will be seen from what has been extracted above that sub-section (1) provides for the establishment of check post or erection of barriers or both, by the State Government or the Board of Revenue if they should consider it necessary to do so for the purpose of preventing evasion of tax. Sub-section (2) casts an obligation on the driver or any other person in charge of the goods vehicle or boat to stop the vehicle or the boat and keep it stationary, if so required by the officer empowered in that behalf and to allow him or the officer in charge of the check post or barrier to examine the contents of the vehicle or boat and also inspect the records relating to the goods besides furnishing his name and address and similar particulars relating to the owner of the vehicle or boat. Sub-section (3) authorises the officer concerned to seize the goods and levy the penalty prescribed in clauses (i) and (ii) thereof after giving the affected person an opportunity of being heard, if the goods transported by the vehicle or boat are not covered by a way bill, issued by the consignor and containing the prescribed particulars. Sub-section (4) provides for the release of the seized goods if the penalty levied under sub-section (3) is paid within the prescribed time failing which they are liable to be confiscated. It is the contention of the learned counsel, Sri Anantha Babu, that the impugned provisions of section 29, viz. , sub-sections (3) and (4), are beyond the legislative competence of the State and therefore void. It is, on the other hand, argued for the respondents that sub-sections (3) and (4) of section 29 are perfectly valid being well within the legislative competence of the State by virtue of entry 54 of List II of the Seventh Schedule.;