IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 WP(C).No. 33469 of 2008(H) --------------------------------------- PETITIONER(S): ---------------------- C.MANI, NO.620, PUTTAPPA LAY OUT, H A L 3RD STAGE, NEW THIPPASANDRA POST, BANGALORE, EAST RANGE, KARNATAKA - 560 075. BY ADV. MR.T.V.GEORGE MR.JIMMY GEORGE (THADATHIL) MR.K.N.BALACHANDRA KAIMAL SMT.LINDA GEORGE RESPONDENT(S): ------------------------ 1. ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE, PALAKKAD. 2. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAX CHECK POST, WALAYAR, 3. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, PALAKKAD. 4. M/S.TRANS CONNECT SERVICES, LOGISTIC/ MANAGEMENT / MARKETING CONSULTANTS, NO. 9 A, GROUND FLOOR, RICH MOUNT TOWERS, BANGALORE - 25. 5. M/S.AFL PRIVATE LTD, EXPRESS DIVISION, JUBILEE BUILDING, IIIRD FLOOR, 45, MUSEUM ROAD, BANGALORE – 25. R1 TO R3 BY GOVERNMENT PLEADER MR.C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2009, ALONG WITH WPC NO. 37366 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. CR P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 33469 & 37366 OF 2008 ------------------------------------------------- Dated this the 15th day of June, 2009 JUDGMENT The petitioners in these cases have got a common grievance in so far as Ext.P13 order passed by the first respondent in WP(C) No.33469/2008 as well as Ext.P11 order passed by the first respondent in the other case under Section 30(1) of the Kerala Tax Paper Lotteries Act, 2005 have been subjected to challenge on many a ground, legal as well as factual. The petitioner in the former case contends that, he was the owner of the vehicle bearing No. KA 3D 2189 and that he had made some arrangements with the 4th respondent for transportation of goods from different places, of course providing a driver. It is said that the 4th respondent in turn entered into agreement with the 5th respondent; on the basis of which the goods were being transported from place to places. 2. While so, the vehicle was intercepted by the first respondent at the check post at Walayar on 18.08.2008 and Ext.P1 notice was issued to the driver, who allegedly after accepting same, ran away. Subsequently, the physical verification of the goods contained in the vehicle as proposed in Ext.P9 was conducted on 21.08.2008; whereupon it was revealed that WPC NO.33469 & 37366/2008 2 the goods being transported were mainly 'paper lotteries', without any authority of law and that they were brought from outside, with unlawful designs. This made the first respondent to pass Ext.P10 notice of detention ordered on 21.08.2008, followed by Ext.P4 notice issued under Section 30(1) of the Act on 26.08.2008. 3. Admittedly, the above notice was issued to the registered owner of the vehicle, who is the petitioner in WP(C) 33469/2008 and also to the petitioner in the other case (none other than the 5th respondent in the former case). Both the parties submitted their objection before the first respondent contending that they were never liable to be proceeded against and that they had no idea regarding the contents of the goods transported; that the goods were actually sent by the consignor by name 'Good luck' and hence that the consignor was to be held as the transporter of the goods etc. The petitioner in the latter case had also filed a petition before the first respondent to implead the consignor as well for effective adjudication of the issue. It is stated that even though summons was ordered, it could not be served, as the addressee refused the same and in the said circumstances, the first respondent has proceeded with further coercive steps leading to the impugned order, fixing huge liability upon the petitioner; which in turn is subjected to challenge before this Court. 4. Learned Counsel for the petitioner in WP(C) 33469/2008 WPC NO.33469 & 37366/2008 3 submits that the charging provision, i.e., Section 30(1) fixes liability only on the 'transporter' and not on the registered owner. In support of the said proposition, the learned counsel places reliance on the 'second proviso', (wherein the provision for serving show cause notice to the party concerned is stipulated) providing an opportunity of hearing to the 'transporter'. It is the contention of the petitioner that since the terms 'transporter' and 'registered owner' have been separately referred to in the second proviso, it shall be deemed that the terms 'transporter' as appearing in the charging provision [Section 30(1) of the Act] shall mean only as a different person than the registered owner. The above proposition does not appear to be palatable to this Court, for many a reason. 5. It is very much relevant to note that the stipulation contained under Section 30(1) is mainly to prevent the fraudulent transport of lottery tickets. This is over and above the penalties as prescribed under Section 26, Section 22 and elsewhere, so as to meet the concerned contingencies involving the offence. The term 'transporter' has to be read and understood giving purposive interpretation of the statute; which was incorporated in the statute, based on the better legislative wisdom to intercept with the illegal transportation of lottery tickets, lest the revenue and public interest should be put to peril. That apart, the second proviso only says as to the liberty to be given to the party concerned, before passing an order as contemplated WPC NO.33469 & 37366/2008 4 under Section 30(1). In other words, the said proviso means that, the action can be justified, if an opportunity of hearing is given, serving a show cause notice either to the transporter or the person in charge (including the driver or the registered owner) of the vehicle. Once such notice is issued to either of the above persons and the proceedings are finalised accordingly, it cannot be said that there is violation of the statutory prescription in any manner. This being the position, it cannot be said that the registered owner is ousted from the liability created under Section 30(1) and that the authority can pursue only against somebody else. 6. According to the Learned Counsel for the petitioners, the term 'transporter' can only mean the consignor (M/s. Good luck) who has not turned up. Reference is also made to the petition for impleading, filed by the petitioner in WP(C) 37366/2008 and the coercive steps taken by the first respondent attempting to serve notice to the said party. Merely for of the fact that, the first respondent chose to issue notice to the consignor, taking note of the averments made from the part of the petitioner, it will not and cannot tilt the balance in favour of the petitioner, to arrive at a finding that the 'transporter' is the consignor and not the petitioner herein. 7. Learned Counsel appearing for the petitioner in WP(C) 37366/2008, besides the contentions raised by the learned counsel appearing in the other case, submits that the service of notice is not in tune WPC NO.33469 & 37366/2008 5 with the requirements as specified under Rule 20 of the Rules. Rule 20 of the Rules is extracted below:- Service of notices, etc. - The service of any notice, summons or order under the Act or these rules may be effected in any of the following ways, namely:- (a) by giving or tendering it to such promoter of person or his manager or agent; or (b) if such promoter or person or his manager, agent or servant is not found by leaving it at his last known place of business or residence or where any activity relating to lotteries was carried on or by giving or tendering it to some adult member of his family; or (c) if the address of such promoter or person is known to the Assistant Commissioner by sending it to him by registered post; or (d) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or where any activity relating to lotteries was carried on or residence. From the above, it is very clear that the service of notice can be effected by pursuing either of the different courses as provided under Sub Clause a, b, c & d. In the instant cases, the service of notice to the petitioner is rather admitted. When the petitioner contend that they were only acting as the agent of the consignor, the said admission by itself will establish proper service, in view of the specific manner of service as stipulated under sub clause (a), where it is provided that service on a person who is the manager or the 'agent' is sufficient to constitute the service as envisaged under the law. WPC NO.33469 & 37366/2008 6 8. There is yet another contention for the petitioner in the latter case that, even though the counsel had appeared on the scheduled date of hearing, the matter was not heard on that day and he was let known that notice would be issued and that the party could appear upon receipt of the notice, which is stated as not honoured. This contention also does not hold any water at all in view of the sequence of events narrated in Ext.P11 order. Learned Counsel appearing for the petitioner with reference to R1 (a) order dated 22.08.2008 submits that the vehicle was actually detained on 18.08.2008, while the detention order was passed only much belatedly, i.e., after 48 hours and hence that the detention is null and void, being not in conformity with the mandatory requirements under Section 30(1) of the Act. Learned Government Pleader appearing for the respondents submits that the detention was only by virtue of Ext.P10 notice on 21.08.2008 at 4 p.m. and never before. In other words, the inspection of the vehicle on 18.08.2008 will not and cannot constitute 'detention' as contemplated in the statute. It is pointed out that the proceedings pursued are within 48 hours and hence there is absolutely, no contravention of the legal requirements. The learned Government Pleader also places reliance on the terminology used in sub Section 2 of Section 30 in support of the said contention. 9. The petitioner in the latter case submits that he has already approached the concerned Magistrate's Court by filing a complaint against WPC NO.33469 & 37366/2008 7 the second respondent who is stated as the 'consignor', in respect of the offence stated as committed. It is also stated that the said proceeding is still pending. But filing of any such proceeding or its pendency can't defer the competent/departmental authority from proceeding against the wrong- doer in the manner as provided under Section 30(1). The dealings and transactions between the petitioner and the 'consignor' are purely matters between them and the proceedings pursued by the departmental authorities for the contravention of the relevant provision of law with regard to the transport of lottery tickets will not get mitigated on this score. If the petitioners have suffered any damages because of the action on the part of the 'consignor', it is for them to proceed against the consignors by filing appropriate proceedings before appropriate Court, Civil or Criminal or both. 10. The learned counsel for the petitioners placed reliance on the decision of the Apex Court in Tahir Mohammed Vs. State of Madhyapradesh [AIR 1993 SC 935] which appears to be rather not relevant or applicable to the case in hand. The position in the instant case is that the petitioners were admittedly given notice giving an opportunity of hearing. Their only grievance was that the 'consignor' was not heard or served; which cannot have any significance or consequence so as to make the impugned order null and void. Same is the position with regard to the alleged non-compliance with the provision to hand over the vehicle as well WPC NO.33469 & 37366/2008 8 as the goods to be effected within 48 hours from the date and time of detention, particularly in view of the fact that the statutory requirement has been complied with, since the detention was actually on 21.08.2008 and not on 18.08.2008 when the vehicle was intercepted for physical verification. That apart, there is no case for the petitioners that the driver or the representative was very much in station after service of Ext.P9 notice and the specific case of the departmental authorities that immediately serving the notice, the driver ran away, has not been rebutted by filing any reply affidavit. Above all, the petitioners have not brought about a case as to any substantial injury or loss as caused to them, in view of the alleged delay. This being the position, the contention raised in this regard, challenging the course pursued by the departmental authorities cannot hold any water at all. 11. Finally, the learned counsel for the petitioner in WP(C) 33469/2008, referring to the dictum in Assistant Forest Conservator Vs. Sharad RamChandra Kale [AIR 1998 SC 2927] submits that the Apex Court had intervened accepting the version of the owner of the concerned truck to hold that he did not have any knowledge that the truck was likely to be used for carrying 'forest produce' in contravention of the provisions of the Forest Act. It is also specifically observed in paragraph 2 of the said verdict that the aforesaid finding was rendered on the basis of the evidence WPC NO.33469 & 37366/2008 9 available in that particular case. As far as the present cases are concerned, the facts and figures have been specifically adverted to by the first respondent giving proper reasons for the finding arrived at. This being the position, no reliance can be placed on the above decision, in favour of the petitioner. 12. The first respondent, while passing the impugned order has discussed all the relevant aspects, with reference to the available materials on record. Finding is well supported with reasons and there is proper application of mind. As such, no interference is called for. The Writ Petition fails and it is dismissed accordingly. P.R.RAMACHANDRA MENON JUDGE dnc