The main legal point established in the judgment is that section 45A of the Kerala General Sales Tax Act, 1963, is not ultra vires and unconstitutional. The court emphasized the inbuilt element of mens rea or mental element in the section and highlighted that the burden of proof under explanation I of section 45A is only in the realm of evidence and not a rule of substantive law.

K. S. PARIPOORNAN, J. - Common questions arise for consideration in this batch of cases. The important aspect canvassed in this batch of cases is that section 45A of the Kerala General Sales Tax Act, 1963, (in short, "the Ac") is unconstitutional and violative of article 14 of the Constitution of India. In O.P. Nos. 7361 of 1990 and 6316 of 1990 a subsidiary point is also raised to the effect that the authorities have levied the maximum penalty arbitrarily and in a mechanical manner, and have totally failed to act judicially.

2. Writ Appeal No. 108 of 1990 is preferred against the judgment in O.P. No. 351 of 1990, dated January 15, 1990. The petitioner in the O.P. (O.P. No. 351 of 1990), appellant in the writ appeal, is a firm. According to it, it is keeping true and complete accounts of its business transactions. A search was made of the business premises of the firm on March 8, 1988. Exhibit P1 records were seized. By exhibit P2 dated September 29, 1989, the appellant was directed to produce the accounts for the year 1987-88 for verification, falling which, penalty under section 45A(1)(e) of the Act was threatened. The appellant filed his reply, exhibit P3, dated October 7, 1989, before the Intelligence Officer, who issue exhibit P2. By exhibit P4, dated November 2, 1989, the appellant was again requested to produce the day-book, stock book and all sale and purchase bills. The books seized as per exhibit P1 dated March 8, 1988, were not returned. The appellant filed O.P. No. 9768 of 1989 for the return of the books and the other documents seized. It was allowed by exhibit P5 judgment dated December 6, 1989. Thereafter the 1st respondent, by exhibit P6 dated December 15, 1989, served a notice on the appellant proposing to levy a penalty of Rs. 1,39,944, being twice the amount of tax due on the turnover. According to the Revenue, the firm had not maintained true and correct accounts of its transactions and thereby violated section 27 of the Act. The appellant filed a reply dated January 10, 1990, evidenced by exhibit P7. The very basis of the initiation of proceedings under section 45A, evidenced by exhibit P6 notice, dated December 15, 1989, was questioned. Proceedings were attacked as unauthorised, mala fide and arbitrary. Incidentally in paragraph 6 of exhibit P7 objection the appellant raised a question that section 45A itself is unconstitutional and violative of article 14 of the Constitution of India as it confers unbridled and uncanalised power on the officer to impose the penalty. The appellant has stated therein that mere satisfaction of the officer attracts penalty without any material or evidence and this is opposed to well recognised principles of law. It has also attacked the vires of section 45A on the ground that the burden of proof is cast on the dealer to prove that it has not committed any offence under the Act and this is against all the procedures known to law. Pending adjudication of the said objections, the appellant filed O.P. No. 351 of 1990 and assailed the notices, exhibits P2, P4 and P6. The appellant also prayed for the grant of a declaration that section 45A of the Act is ultra vires and unconstitutional. The learned single Judge by judgment dated January 15, 1990, held that the validity of exhibits P2, P4 and P6 notices is pending consideration before the statutory authorities and so the O.P. is premature. The petition in the O.P. has come up in writ appeal.

3. The facts in the connected O.Ps. are as follows : In O.P. No. 7361 of 1990 the petitioner is a firm. It is carrying on business in cycles. There was a shop inspection of the business premises on April 23, 1987. Certain slips and documents were seized during the inspection. The books seized showed stock variation. Proceedings under section 45A for non-maintenance of true and correct accounts and violation of section 27 of the Act were initiated against the firm. To the notices so sent, the petitioner filed exhibits P17 and P19 repli