IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WP(C).No. 3146 of 2010(P) ------------------------- PETITIONERS --------------- 1. N.HASSAN @ ASANAR, S/O.NAGUR MEERAN, ANAKKARU VEETTIL, ROSAPOOKANDAM, KUMILY, IDUKKI (DIST.) 2. SALIM P., HAROON MANZIL, ROSAPOOKANDAM,KUMILY, IDUKKI DIST. BY ADV. SRI.S.SANTHOSH KUMAR ADV. SRI.S.VINOD KUMAR ADV. SMT.P.LISSY JOSE. RESPONDENTS: --------------- 1. THE INTELLIGENCE OFFICER, COMMERCIAL TAXES, SQUAD NO.IV, IDUKKI AT NEDUMKANDAM. 2. THE SUB INSPECTOR OF POLICE, KUMILY POLICE STATION, KUMILY. 3. THE COMMERCIAL TAX OFFICER, VANDIPERIYAR AT KUMILY, IDUKKI. BY GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 3146 OF 2010 ......................................................................... Dated this the 2nd February , 2010 J U D G M E N T The petitioners have approached this Court with the following prayers: “i) to issue a writ of mandamus or any other appropriate writ or order directing the first respondent to finalise the proceedings initiated under Ext. P4 notice only after granting sufficient time to the petitioners to adduce evidence and also taking into account Ext.P5 objection and Ext.P6 petition. ii) to issue a writ of mandamus or any other appropriate writ or order prohibiting the 1st respondent from proceeding with the penalty proceedings initiated under Ext. P4 notice without following the law and procedure laid down in the decision reported in 2009(4) KLT 601 and; iii) to issue a writ of mandamus or any other appropriate writ or order directing the first W.P.(C) No. 3146 OF 2010 2 respondent to release the goods covered in Ext. P4 notice to the first petitioner accepting Bank guarantee for the amount of penalty proposed; iv) to issue a writ of mandamus or any other appropriate writ or order prohibiting the 1st respondent from selling the goods covered under Ext.P4 notice by public auction; and v) to issue such other appropriate writ, order or directions as this Hon'ble Court may deem just and proper to issue in the circumstances of the case.” 2. The learned Counsel for the petitioners submits that the first petitioner with an intend to start a business in the sale of Cardamom, took room No.173/KP-XI belonging to one Smt. Ruheena on lease, as covered by Ext.P1 lease agreement and had stored nearly 30 bags of cardamom, pending steps stated as being taken to apply for registration under the KVAT Act. While so, the second respondent conducted a surprise inspection on 27.01.2010 on the premises and seized the cardamom bags, leading to further proceedings by the police as well as W.P.(C) No. 3146 OF 2010 3 departmental authorities, alleging that the goods have been stored for smuggling to outside the State. 3. The only prayer now pressed before this Court, as put forth by the learned Counsel for the petitioner, is that the commodity seized is an easily perishable item and that the petitioners are ready and willing to offer 'bank guarantee' for the entire amount covered by Ext.P4 issued under Section 44 (8) of the KVAT Act, so as to facilitate the release of the goods to the first petitioner, pending further proceedings. 4. The learned Government Pleader, on instruction, submits that the version put forth by the petitioners does not have any iota of truth or bonafides, in so far as the materials were seized pursuant to the information revealed by the two head load workers, who were carrying the loads and intercepted at about 10.00 p.m. on 26.01.2010. It is the case of the department that the persons who were intercepted, as above, by the second respondent, revealed that they were carrying the loads, as instructed by the 2nd petitioner and that much more materials were stored in the premises as above and it was based W.P.(C) No. 3146 OF 2010 4 on the said intimation that the police party proceeded to the premises, seized the materials and handed over to the sales tax authorities; which forms the subject matter of Ext. P4 notice and other appropriate proceedings. 5. Considering the rival submissions, this Court does not propose to go into the merits of the case, but for considering the sustainability of the prayer confined from the part of the petitioners so as to release the goods on furnishing 'bank guarantee'. Since the petitioners have come forward stating that they are ready and willing to furnish necessary 'bank guarantee' covering the entire amount as shown in Ext. P4 notice, this Court does not find it necessary to keep the Writ Petition pending any further or to have the goods detained at the hands of the department or the Police. 6. In the above circumstances, the goods detained shall be released to the first petitioner, as prayed for, on furnishing the 'bank guarantee' for the full amount as shown in Ext. P4. On satisfying the requirement as above, the goods shall be released to the first petitioner forthwith . It is however made clear that W.P.(C) No. 3146 OF 2010 5 the release of the goods to the first petitioner will not be taken as an inference that the goods were actually belonging to the first petitioner and that the department will be at liberty to proceed with further steps for taking Ext.P4 proceedings to a logical conclusion, in accordance with law, of course after giving an opportunity of hearing to the petitioners and also taking note of the contentions raised in Exts. P5 and P6. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk