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Indra Pal Singh (truck Driver) v. State Of U.P. And Another - WRIT TAX No. 608 of 2005 [2005] RD-AH 934 (1 April 2005)


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Court No.37

Civil Misc. Writ Petition No.608 of 2005

Indra Pal Singh v. State of U.P. and another

Hon'ble R.K.Agrawal, J.

Hon'ble Prakash Krishna, J.

(Delivered by R.K.Agrawal, J.)

By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Indra Pal Singh, driver of vehicle no.HR 47 7017, seeks a writ, order or direction in the nature of certiorari quashing the order dated 24.3.2005 passed by the Assistant Commissioner (Incharge) Shift D, Sahayata Kendra, Kotvan, District Mathura, filed as Annexure 5 to the writ petition. He further seeks a writ, order or direction in the nature of mandamus directing the respondent no.2 to issue a transit pass, i.e., Form 34, to the petitioner and release the goods which are seized on 24.3.2005.

It may be mentioned here that the petitioner being a truck driver was transporting certain goods which are alleged to have been dispatched from Delhi to Patna. At Kotvan check post the truck driver had made an application for issuance of Form 34. On physical verification of the goods and the accompanying documents, it transpired that there was variation and difference in quantity of goods as also some of the invoices issued by different firms were in the same hand writing. A show cause notice was issued to the petitioner to show case as to why the goods be not seized as there was an intention to evade payment of tax for the reason that in the garb of Form 34, i.e., transit pass, the goods are likely to be unloaded within the State of U.P. and sold. At that point of time, the petitioner approached this Court by filing Civil Misc. Writ Petition No.531 of 2005, which was dismissed vide judgment and order dated 23.2.2005 on the ground that the petitioner had a right to submit a reply and without submitting the reply, the petitioner has rushed to this Court. The Court declined to interfere at that stage as it involved factual controversy and was of the  view that it can be more appropriately gone into by the authorities concerned. Subsequent to that order, the petitioner had submitted a reply. The Assistant Commissioner, respondent no.2, had seized the goods and directed for its release on furnishing security in the form of cash or bank draft for a sum of Rs.1,68,070/- being 40% of the value of the goods which was estimated at Rs.4,20,175/-.

We have heard Sri Ashok Kumar, learned counsel for the petitioner and have perused the writ petition and the documents filed alongwith the writ petition.

The learned counsel for the petitioner submitted that as the goods were meant from Delhi to Patna and the truck has been stopped at the entry check post for issuance of Form 34, which was applied for by the petitioner, there was no question of evasion of tax in Uttar Pradesh and, therefore, the goods cannot be seized. He further submitted that the petitioner is prepared to furnish the bank guarantee for the amount of tax which may be due on the aforesaid consignment and further the petitioner be permitted to transport the goods outside the State of U.P. and on submitting the dispatch Form 34 the bank guarantee may be released.

After taking into consideration the submission made by Sri Ashok Kumar and after going through the order dated 24.3.2005, we are of the considered opinion that this is not a case where this Court should interfere for more than one reasons. Firstly, under the proviso to Section 13-A(6) of the U.P. Trade Tax Act, the petitioner has a remedy by way of approaching the next higher authority, i.e., the Deputy Commissioner (Executive), for release of the goods without furnishing any security. Secondly, from a perusal of the seizure order, we find that there is a dispute regarding the exact quantity of the goods being transported in the vehicle and covered by the supporting documents, which too gives an impression that there is something fishy. Moreover, we find that on both the occasions the truck driver had approached this Court for the release of the goods. It is very strange that no effort has been made either by the consignor or the consignee of the goods in question to get it released, which also creates a reasonable doubt.

The learned counsel for the petitioner has relied upon a decision of this Court in the case of Devendra Kumar, Delhi v. Sales Tax Officer and others, 1990 UPTC 1162, wherein this Court has quashed the seizure order on the ground that the previous history or previous record cannot be made basis for declining to issue of Form 34 and for seizing the goods. The facts of the present case are entirely different and, therefore, the aforesaid decision will not apply.

In this view of the matter, we are not inclined to interfere in this writ petition. It is dismissed in limine.




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