SUNIL AMBWANI,PRAKASH GUPTA,JJ. - (1.) WE have heard learned counsel appearing for the parties.
(2.) IN D.B. Civil Writ Petition No.5358/2001, the petitioner has prayed for the following reliefs: - "i) An appropriate writ, order or direction declaring Section 78(11) and section 78(12) of the Rajasthan Sales Tax Act, 1994 as Ultra Virus to the provisions of Constitution or unconstitutional. ii) An appropriate writ, order or direction delcaring the detention of goods and truck of the petitioner No.RJ -14 -1G -5043 by respondent No.3 on 5.10.2001 and Notice dated 5.10.2001 (Annexure 1) as well as Notice dated 15.10.2001 (Annexure -4) as illegal, unconstitutional and without jurisdiction and quash the same and direct the respondents to release the goods as well as Truck No.RJ -14 -1G -5043 immediately. iii) An appropriate writ, order or direction awarding a suitable compensation in favour of the petitioner for illegal action on the part of the respondents as well as for the loss suffered by the petitioner. iv) An appropriate writ, order or direction giving any other relief in the interest of the justice. The cost of the writ petition may kindly also be awarded to the petitioner."
(3.) IT is submitted by the petitioner that he had produced valid documents before the Assessing Authority, at the check -post. The Assessing Authority, however, without considering the validity of the documents, has imposed a penalty. The vires of Section 78(11) and 78(12) of the Rajasthan Sales Tax Act, 1994 (for short, 'the Act of 1994'), was upheld in Lalji Mulji Transport Company Vs. State of Rajasthan, 2002 127 STC 365, decided on 10.04.2002 relying upon the judgment in State of Rajasthan Vs. D.P. Metals, 2001 124 STC 611(SC), in which it was held in paragraphs 12 and 13, as follows: - "12. As far as the challenge to sub -section (11) is concerned, when the driver or the in -charge of the vehicle or the goods is not in a position to give the details of the consignee and the consignor, the only conclusion can be drawn is that the person carrying goods inside the State, is a dealer of the goods and he has brought for the purpose of sale within the State. Therefore, in our view, the provision is intra vires of the Constitution of India. 13. From the above discussion, it clearly emerges that section 78 of the Act has been enacted with a view to check evasion of tax by transporters who are found carrying goods with fake bilties, incomplete documents and under suspicious names. The constitutional validity of such provisions has been upheld by the various decisions of the apex Court. It is now realised that unless an element of fear is introduced in so far as is necessary and unless the consequence of breach turns into penalty of sufficiently effective measures, there shall be no real method of ensuring compliance. It will not be correct to protect a tax evader saying that there is absence of mens rea. The apex Court in D.P. Metals Case [2001] 124 STC 611, has rejected the submissions regarding absence of mens rea by observing that the submission of false or forged documents or declaration at the check -post or even thereafter can safely be presumed to have been motivated by desire to mislead the authorities. The court further observed that hiding the truth and tendering falsehood would per se show existence of mens rea, even if required. On the question of mens rea, our view that it has no application in fiscal statute is fortified by decision of the Supreme Court in R.S. Joshi, Sales Tax Officer v. Ajit Mills, 1977 AIR(SC) 2279 It is settled law that provisions of check evasion of sales tax are within the legislative competence of the State Legislature under entry 54 of List II of the Seventh Schedule to the Constitution of India. Thus, the provisions to make imposition of tax efficacious or to prevent evasion thereof, are within the legislative competence of the State Legislature. Thus, the plain and simple scheme of section 78 is that the vehicle passing through the State of Rajasthan carrying goods to be delivered in another State and carries the documents as referred in section 78(2) and produces at the check post or anywhere else where a person authorised ask him to do so, if it is done honestly and faithfully, there is absolutely no problem. However, if a transporter or a trader is entering into an adventurism with a view to evade tax, he must be ready to face the consequence of penalty at the rate of 30 per cent, seizure of vehicle and in aggravated case, the confiscation of the vehicle. The provisions cannot be said to be arbitrary, as they provide full opportunity of hearing to the parties affected. The Sales Tax Act also provides provision of appeal and review. The requirement of the laws is meant to be strictly construed particularly in areas of evasion of tax. We cannot lose sight of the fact that often there are attempts to avoid statutory obligation or requirement for oblique reason. An undue indulgence and leniency in favour of the tax evaders on technical or misplaced sympathetic grounds leads to serious consequences affecting the revenue and, as such, development and security of the State. We are not obvious of the fact that the penalty provisions cannot be used as a revenue yielding provision. The object of the penalty provision is to ensure compliance in the larger public interest. We are also conscious of the facat that in such a situation, a trader or the transporter is also not unnecessarily harassed. If, in a given case, it is found that the provisions has been misused by the authority, sufficient safeguards are provided under the statute and the Constitution. But a statutory provision cannot be struck down only on apprehensions or hypothetical grounds. Thus, we hold the entire provisions of section 78 of the Act intra vires of the Constitution.";