IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 WP(C).No. 29381 of 2009(P) -------------------------- PETITIONER: --------------- RANI STANLEY, W/O.STANLEY, KUNNUMPURATH HOUSE, KALLIMEL P.O., MAVELIKKARA. BY ADVS. SRI.G.HARIHARAN SRI.PRAVEEN HARIHARAN RESPONDENTS: --------------- 1. THE INTELLIGENCE INSPECTOR, SQUAD NO.II, COMMERCIAL TAXES, ALAPPUZHA AT CHENGANNUR, ALAPPUZHA DISTRICT. 2. SUB INSPECTOR OF POLICE, NOORNADU POLICE STATION, NOORNADU, ALAPPUZHA DISTRICT. BY GOVT. PLEADER SRI. V.K. SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 29381 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2009 J U D G M E N T 1. Petitioner claims to be registered owner of a lorry bearing registration No. KL-4L-3499. The said vehicle while transporting 'cast-iron gates' was intercepted and detained on 25.09.2009, at about 5 AM, by the 1st respondent, on the allegation that the transport was not accompanied by any valid document as required under Section 46 (3) of the Kerala Value Added Tax Act, 2003 (KVAT Act). On detention of the goods and the vehicle, the owner of the goods have approached this court and in Ext.P7 judgment, this court directed release of the goods on the owner furnishing bank guarantee. It is submitted that the goods have already been released by transferring into another vehicle on furnishing bank guarantee by its owner. 2. According to the petitioner the vehicle in question W.P.(C)No. 29381 of 2009 -2- is now detained because the respondents have initiated proceedings under Section 69 of the KVAT Act. It is pointed out that Ext.P6 notice was issued in this regard in the name of one Smt. Prasannakumary, who is the previous owner of the vehicle and whose name was written on the body of the vehicle. Complaint of the petitioner is that eventhough she had approached the 1st respondent with Ext.P5 request, on producing the records of the vehicle, the 1st respondent is not willing to release the vehicle, nor he had taken any steps to finalise the proceedings under Section 67 (1). On the other hand it is pointed out that petitioner was issued with Ext.P8 summons in Form No.22 calling for production of books of accounts relating to business for the year 2009-2010. 3. Heard learned counsel appearing for the petitioner and Government Pleader appearing for the respondents. The learned Government Pleader on the basis of instructions submitted that a proceeding under Section W.P.(C)No. 29381 of 2009 -3- 69 (1) of the KVAT Act is pending finalisation against the vehicle because it was detected that the vehicle was transporting goods without any documents as required to be accompanied, under the provisions of Section 46 (3) of the Act. It is further submitted that the petitioner has not approached the 1st respondent on producing documents pertaining to ownership of the vehicle and has not in any manner co-operated with finalisation of the proceedings under Section 69 (1). It is further stated that Ext.P8 is a notice issued calling for production of records pertaining to the other transactions alleged to have been carried out by the petitioner and the same is not in any way connected with the present proceedings under Section 69 (1) initiated pursuant to Ext.P6 notice. 4. On going through the provisions of Section 69 of the Act, it is noticed that the authority concerned is entitled to impose penalty equal to twice the amount of tax on the goods transported, subject to minimum of Rs.5,000/-, if it is W.P.(C)No. 29381 of 2009 -4- found that the transporting agency or contract carriage or the owner of the vehicle had transported the goods without any documents as required under Sub Section 3 of Section 46. Section 69 (2) of the Act enables the authority to detain the vehicle on detection of any subsequent offence of similar nature. Further Sub Section 5 of Section 69 provides that the vehicle so detained shall be released to the person from whom it was detained after the expiry of 30 days from the date of detention. 5. Going by the above stated provisions, it is evident that under Section 69 (1) of the Act, detention of the vehicle is not contemplated, if the offence is found for the first time. Therefore the continued detention of the vehicle on the premise that the proceedings for finalising imposition of penalty is pending, cannot be justified in any manner. At the same time having been initiated proceedings under Section 69 (1), release of the vehicle can be made only after ensuring proper measures for payment/realisation of the W.P.(C)No. 29381 of 2009 -5- amount of penalty which may be imposed ultimately. 6. Under the above circumstances, I am of the opinion that, the writ petition can be disposed of directing release of the vehicle after ensuring adequate measures for realisation of penalty if any imposed ultimately. 7. Therefore the 1st respondent is directed to release the vehicle bearing registration No.KL-4L-3499 to the petitioner on her production of the original records relating to ownership and on the petitioner submitting the undertaking in the form of an affidavit before the 1st respondent to the effect that she will not alienate ownership or possession of the vehicle till finalisation of the proceedings. The 1st respondent shall also make a request to the registering authority concerned, to restrain transfer of the vehicle till finalisation of such proceedings. The vehicle shall be released forthwith on executing the above said undertaking. W.P.(C)No. 29381 of 2009 -6- 8. It is further directed that the proceedings initiated under Section 69 may be finalised as early as possible, after affording opportunity to the petitioner, at any rate within the period of two months from the date of release of the vehicle. C.K. ABDUL REHIM JUDGE shg/