TMI Blog1989 (5) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... to Bombay, Punjab or other States and have to pass through the State of Haryana. Similarly, these vehicles bring goods from various States to Delhi. The main thrust of the attack is that while the vehicles carry goods on the inter-State routes, they merely pass through the State of Haryana and do not unload the goods in the territory of that State. They also do not pick up goods therefrom. Even then these vehicles are stopped at the various check-posts set up by the State of Haryana on its borders and on the pretext of checking and search, the goods are unloaded, the consignments are broken open and many times the contents in the packets are damaged. The authorities seize the goods and documents carried by the trucks. Despite the protest by the drivers of the vehicles who carry all the requisite prescribed documents, relating to the vehicles and the goods carried, with them, the authorities seize the goods or tamper with the consignments and just harass the transporters, keep the vehicles detained at check-posts and barriers for 10 to 12 hours and sometimes for days together. The opening of the consignments causes irreparable loss to the petitioners as consignees refuse to take de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the State, such owner or person shall furnish in duplicate to the officer-incharge of the check-post or barrier of his entry into the State, a declaration in the prescribed form and obtain from him a copy thereof duly verified. The person in charge of the goods carrier shall deliver within twentyfour hours the said copy to the officer-in-charge of the check-post or barrier at the point of his exit from the State, failing which he shall be liable to pay a penalty, to be imposed by the officer-in-charge of the check-post or barrier of the entry, not exceeding two thousand rupees or twenty per centum of the value of the goods, whichever is greater. It is pleaded that these provisions are necessary and helpful in detecting evasion of tax payable under the Act, deterring the transporters or owners of goods from evading their liability to pay tax. Sometimes goods in excess of the goods mentioned in the documents are transported and those goods are unloaded in the State of Haryana. Sometimes goods are loaded within the State without documents. These practices lead to evasion of tax. Many cases of attempts at evasion of tax had been detected, where goods were under transport, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this Act in any place or places in the State, the State Government, considers it necessary so to do, it may, by notification direct the establishment of a check-post or the erection of a barrier or both, at such place or places as may be notified. (2) The owner or person in charge of the goods and, when the goods are carried by a goods carrier, the driver or any other person in charge of the goods carrier, shall carry with him a goods carrier record, a trip sheet or log-book, as the case may be, along with a bill of sale in respect of the goods meant for the purpose of trade and are carried by him or in the goods carrier and produce the same before an officer-in-charge of a check-post or barrier or any officer of the department not below the rank of an Assistant Excise and Taxation Officer or such other officer, as the State Government may, by notification, appoint, for checking the goods carrier at any place. (3) At every check-post or barrier or at any other place, when so required by any officer referred to in sub-section (2) in this behalf, the owner or person in charge of the goods shall stop and the driver or any other person in charge of the goods carrier, enterin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, failing which he shall be liable to pay a penalty, to be imposed by the officer-in-charge of the check-post or barrier of the entry, not exceeding two thousand rupees or twenty per cesium of the value of the goods, whichever is greater: Provided further that no penalty shall be imposed unless the person concerned has been given a reasonable opportunity of being heard: Provided further that where the owner or person in charge of the goods or the driver or other person in charge of the goods or carrier bound for any place inside the State has to pass through another State, such owner or person or the driver or other person shall furnish, in duplicate, to the officer-in-charge of the check-post or barrier of his exit from the State, a declaration in the prescribed form and obtain from him a copy thereof duly verified and shall deliver the same to the officer-in-charge of the check-post or barrier of his entry into the State, within four hours of his exit from the previous barrier or check-post in the State, failing which he shall be liable to pay a penalty to be imposed by the officer-in-charge of the check-post or barrier of his entry, not exceeding two thousand rupees or tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he shall, by order, impose on the owner of the goods and in case the owner is not forthcoming or his identity is not disclosed by the person in charge of the goods or the driver or person in charge of the goods carrier, in which goods are being carried, on the person in charge of the goods or the goods carrier or the driver, a penalty of not less than ten per cent and not more than twenty-five per cent of the value of the goods, and in case he finds otherwise, he shall order the release of the goods: Provided that no penalty shall be imposed unless the owner of the goods or his representative or person in charge of the goods or the goods carrier or the driver has been given a reasonable opportunity of being heard. (7) If the owner of the goods or his representative or the driver or other person in charge of the goods carrier does not furnish security or execute the bond as required by sub-section (5) within ten days from the date of detaining the goods or goods carrier, the officer referred to in that sub-section may order further detention of the goods, and in the event of the owner of the goods not paying the penalty imposed under subsection (6) within twenty days from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale or otherwise disposed of the goods, to the owner of the goods. (14) At every station of transport of goods, bus stand or any other station or place of loading or unloading of goods, other than a post office, when so required by the Commissioner or any other person appointed to assist him under sub-section (1) of section 3, the owner or person in charge of the goods or the driver or other person in charge of the goods carrier shall produce for examination transport receipts and all other documents and account books concerning the goods carried, transported, loaded, unloaded, consigned or received for transport, to be maintained by him in the prescribed manner and the Commissioner or the person so appointed shall have, for the purpose of examining that such transport receipts and other documents and account books are in respect of the goods carried, transported, loaded, unloaded or consigned or received for transport, the power to break open any package or packages of such goods. If the Commissioner or the person so appointed is satisfied that it is necessary for the purposes of investigation or verification, he may seize the transport receipts, documents or account books so pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther officer appointed by the State Government. The language of sub-section (2) is clear and unambiguous. The mandate contained therein is applicable to all the drivers or persons in charge of the goods carriers who happen to enter or pass through the State of Haryana. For the purposes of this sub-section, it is immaterial whether a carrier has brought goods to the State of Haryana or is in the process of carrying goods in the State of Haryana or other State or Union Territory or whether it is only passing through the territory of Haryana. The requirement for carrying the above-mentioned documents cannot be termed to be arbitrary. The driver or the person in charge of the goods carrier can be asked to keep the documents pertaining to the carrier or the goods carried therein in his custody. This will undoubtedly apply to the vehicles which have only to pass through the State of Haryana and have not to unload or load goods therefrom. There is nothing in this sub-section to exclude its application to the vehicles carrying goods which have just to pass through the State of Haryana. Provisions of sub-section (3) obligate the driver or any other person in charge of the goods carrier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aryana. They can continue their journey after furnishing the prescribed declaration in duplicate and have to complete that journey within the State within 24 hours. Otherwise, they expose themselves to a penalty. This, however, does not mean that the main provisions of sub-section (4) or for that matter other sub-sections of section 37 will not be applicable to the goods carriers passing through the State of Haryana without unloading or loading goods. It is true that the apex Court in Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai AIR 1966 SC 459, has held that the proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause. But occasionally in a statute a proviso is unrelated to the subject-matter of the preceding section, or contains matters extraneous to that section, and it may have then to be interpreted as a substantive provision, dealing independently with the matter specified therein, and not as qualifying the main or the preceding section. But, in the present case, the context, the setting, the language employed and the object sought to be achieved negate any inference that ..... 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