JUDGMENT
1. By this petition under Article 226 of the Constitution of India, the petitioner challenges seizure of a tanker of used lubricating oil and also a writ of mandamus directing the respondents to permit the petitioner to transport the said goods to their destination.
2. A counter-affidavit has been filed on behalf of the respondents. No rejoinder-affidavit is proposed to be filed.
3. We have heard Shri M. Mangalik, learned counsel for the petitioner and Shri R.D. Gupta, learned Standing Counsel for the respondents.
4. The petitioner, Tarseem Singh, is a truck driver. His case is that on behalf of J. Shardanand, 511, Ravindra Sareni, Calcutta, he was transporting a consignment of 16,000 litres of "used lubricating oil from Calcutta to Jalandhar. The goods were contained in a tanker. For their transport from Calcutta to Jalandhar, he had to enter the State of U.P. He, therefore, arrived at the entry check-post at Naubatpur in the District of Varanasi and applied for a trip-sheet in terms of Section 28-B of the U.P. Trade Tax Act (hereinafter referred to as "the Act") and Rule 87 of the U.P. Trade Tax Rules (hereinafter referred to as "the Rules"). The officers at the check-post took a sample of the oil and finding that it was not used lubricating oil detained the same and ultimately passed a seizure order. Thereafter, the petitioner moved an application under Section 13-A(6) of the Act and the same was pending when the petitioner filed this writ petition.
5. In the counter-affidavit, it has been stated that a sample was taken out of the goods contained in tanker No. W.B.-23/5227 at the check-post on November 18/19, 1999 and the sample was examined by the department of Chemical Engineering and Technology, Institute of Technology, Banaras Hindu University, who vide report dated November 22, 1999 reported that the same is not used lubricating oil and it appears to be a refined petroleum products mixed some ingredients for the required purposes, for example, lubrication, etc., a copy of the report has been annexed as annexure C.A.3 and purports to have been signed by Shri P. Misra, Professor and the Head of the Department. The copies of the bills and delivery challan which were accompanying the consignment have also been annexed to the counter-affidavit as annexure C.A.1 which shows that the goods were sold by J. Shardanand, 511, Ravindra Sareni, Calcutta to Sardar Enterprises, By Pass Hosiarpur Road, Jalandhar City. In the counter-affidavit, it is admitted that the petitioner applied for a trip sheet showing that the goods were to be transported to Jalandhar and the goods were to be passed out of the State of Uttar Pradesh through Sarsawa Sahayata Kendra (check-post).
6. Thus, prima facie it is a case in which the goods in question were to pass from one State to another, and the State of Uttar Pradesh was to be used only as a corridor for transport of the goods. Section 28-B of the Act deals with such passage and provides as under :
"28-B. Transit of goods by road through the State and issue of authorisation for transit of goods.--When a vehicle coming from any place outside the State and bound for any other place outside the State, and carrying goods referred to in Sub-section (1) of Section 28A, passes through the State, the driver or other person-in-charge of such vehicle shall obtain in the prescribed manner an authorisation for transit of goods from the officer-in-charge of the first check-post or barrier after his entry into the State and deliver it to the officer-in-charge of the last check-post or barrier before his exit from the State, failing which it shall be presumed that the goods carried thereby have been sold within the State by the owner or person-in-charge of the vehicle :
Provided that where the goods carried by such vehicle are, after their entry into the State, transported outside the State by any other vehicle or conveyance, the onus of proving that goods have actually moved out of the State shall be on the owner or person-in-charge of the vehicle.
Explanation.--In a case where a vehicle owned by a person is hired for transportation of goods by some other person, the hirer of the vehicle shall for the purposes of this section, be deemed to be the owner of the vehicle."
Further procedure is prescribed in Rule 87, which is as under :
"87. The transit of goods by road through the State.--(1)The driver or person-in-charge of a vehicle coming from any place outside the State and bound for any other place outside the State shall present the trip sheet in triplicate to the officer-in-charge of the check-post or barrier, if any, established near the point of entry into the State, hereinafter referred to as entry check-post.
(2) The officer-in-charge of the entry check-post shall, after examining the document and after making such enquiries as he deems necessary, specify on all the copies of the trip sheet the check-post or the barrier (hereinafter referred to as the exit check-post) of the State to be crossed by the vehicle or vessel and the time and date up to which it should be so crossed and deliver two copies of the trip sheet to the driver or person-in-charge of the vehicle retaining one copy himself.
(3) The driver or person-in-charge of the vehicle or vessel shall stop his vehicle at such exit check-post surrender one copy of the trip sheet and allow the officer-in-charge of the check-post to inspect the documents, consignments and goods in order to ensure that the consignments being taken out of the State are the same as mentioned in the trip sheet. The officer-in-charge of the exit check-post shall issue a receipt on the other copy of the trip sheet surrendered by such driver or person-in-charge of the vehicle.
(4) The officer-in-charge of the exit check-post shall have the power to detain, unload and search the contents of the vehicle for the purpose mentioned in Sub-rule (3)."
7. The goods being meant for transport, through the State of U.P. the petitioner rightly applied for the issue of a trip sheet and even if in the opinion of the officer at the entry check-post, the goods loaded in the truck and mentioned in the trip sheet did not ;give correct description, he could have mentioned the correct test description in the trip sheet and issue the same to the transporter and send the necessary communication for the officer at the exit check-post. Sub-rule (4) of Rule 87 provides that the officer-in-charge of the exit check-post shall have the power to detain, unload and search the contents of the vehicle for the purpose mentioned in Sub-rule (3). Surrender of the trip sheet is not merely presenting the document at the exit check-post but presentation of the document has to be accompanied by the actual transport of the same goods outside the State of U.P. Simply because there was some difference of opinion about the quality of the goods as shown in the document, as in the present case, there was no reason for, the respondents to believe that the goods will be unloaded somewhere in the State of Uttar Pradesh and the other goods will be filled in the tanker. Such an apprehension as mentioned in paragraph 14 is without a foundation. It may be mentioned that neither the seller nor purchaser has been found to be a non-existent or a bogus party.
8. The power to seize goods is conferred on the officers of the Trade Tax Department where the goods are not accounted for by a dealer in his accounts or register or where they are not traceable to a bona fide dealer. Such is not the case set-up by the respondents. As regards avoidance of the tax, since the goods are not being imported in the State of Uttar Pradesh and the territory of the State of Uttar Pradesh is being used only for transport of goods, no tax leviable under the U.P. Trade Tax Act or the Central Sales Tax Act by the authorities in U.P. can be avoided as no such tax is leviable. In our view, therefore, the seizure of the goods only because the description thereof slightly differed was not permissible. The appropriate course for the respondent was to mention in the trip sheets, their opinion about the quality of the goods and if necessary, to take samples of the goods to ensure that the same passed through the exit check-post.
9. Learned Standing Counsel for the respondents contended that the petitioner's application under Section 13-A(6) of the Act has been dismissed by the Assistant Commissioner and the petitioner has a right of an appeal under Section 10 of the Act. No doubt under the Act, the petitioner has a right of an appeal, but we find that the action of the respondents in detaining the tanker at the check-post for a long time is absolutely unjustified and without jurisdiction. Transport vehicles are the lifeline of the nation and should not be detained beyond a reasonable period. Since the action of the respondents is without jurisdiction and unjustified, we do not consider the existence of an alternative remedy as sufficient cause for not exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
10. In the result the writ petition is allowed. The seizure order dated November 25, 1999 and the order dated December 8, 1999 passed under Section 13-A(6) of the Act by the Assistant Commissioner (Sahayata Kendra) Trade Tax, Naubatpur (Chandauli), Varanasi are hereby quashed. The respondents are directed to release the goods of the petitioner forthwith. It would, however, be permissible to them to take samples of the oil and to take appropriate action to ensure the proper surrender of the trip sheet at the exit check-post.
11. Let a copy of this order be furnished to the learned counsel for the petitioner on payment of usual charges.