WP/27149/2005 of TCS Jammiched, Vs The Prohibition and Excise, on 26 December 2005

ORDER:

Seeking a Mandamus, declaring the proceedings of the 1[st] respondent, dated 17.12.2005 in Cr.No.D/1743/2005, as illegal and arbitrary, thepresent writ petition is filed.

Heard the learned counsel for the petitioner and the learned Government Pleader forProhibition and Excise.

The petitioner is a Toddy Tappers Cooperative Society of Jammiched, GadwalMandal of Mahabubnagar District. It is stated that the shop of the petitioner wasinspected by the 2[nd] respondent on 09.07.2005 at about 3.15 P.M. and found thetoddy was adulterated with Chloral Hydrate in the spot test, and accordinglysamples were drawn in accordance with Rule 24 of A.P.Excise (Arrack and ToddyLicences General Conditions) Rules, 1969. Thereafter, based on the spot test itself,the license of the petitioner was suspended by order dated 14.07.2005. Thesamples, sent through the Court to the Chemical Examiner for Prohibition andExcise, Regional Prohibition and Excise Laboratory, Hyderabad, was tested andreport dated 28.10.2005 was sent stating that the sample found adulterated withChloral Hydrate. As against the said suspension order, the petitioner filedW.P.No.21074/2005, which was disposed of on 27.09.2005 directing to completethe enquiry in accordance with law. Thereafter, a show cause notice was issued on30.11.2005, for which an explanation was submitted by the petitioner on 08.12.2005disputing the alleging inspection itself in respect of the petitioner’s shop stating thatregistering a case itself is illegal, and suspension of license, even before sendingone of the samples to the Chemical Examiner is also illegal and arbitrary. Thepetitioner further stated that on the writ petition filed by him, this Court directed tocomplete the enquiry within three weeks from the date of receipt of report from theChemical Examiner, and subsequently the enquiry was conducted by the 2[nd]respondent and submitted his report, stating that the President and members of thepetitioner Society are not responsible for adulteration of the toddy, but A1- Parasuramaman Goud alone was responsible for adulteration of toddy, andaccordingly, the petitioner requested to drop the cancellation proceedings andpermit him to do the business. The said representation/explanation dated08.12.2005 was rejected by the 1[st] respondent vide proceedings in CR.No.D/1743/2005, dated 17.12.2005.

The learned counsel for the petitioner submits that under Section 31(1) of theA.P.Excise Act, 1968, there cannot be intermediary proceedings, one proceedingrejecting the application of the petitioner and another followed by the order ofcancellation of license. He further submits that the impugned order itself amounts tocancelling the toddy license. The learned counsel further submitted that once theexplanation is rejected, nothing remains on the file of the 1[st] respondent to considerin the final order of the cancellation and any order passed cancelling the licenseamounts to without considering the explanation of the petitioner. I am unable toaccept the said contentions. Merely because the explanation of the petitioner hasbeen rejected, it cannot be said that there is no explanation filed which is availableon the file of the

Conclusion

1[st] respondent. But, however, I am of the opinion that the method and mannerfollowed by the 1[st] respondent is not in accordance with Section 31(1) of theA.P.Excise Act, 1968 and he cannot reject the explanation by one proceeding andfollowed by another order cancelling the licensing of the toddy shop. Therefore, I amof the opinion that it is a matter to be looked into by the Commissioner of Prohibitionand Excise for giving suitable and necessary training and instructions to thelicensing authority in passing orders under Section 31(1) of the A.P.Excise Act, 1968and also take appropriate proceedings against the 1[st] respondent in passing suchorders which are not in accordance with Section 31(1) of the A.P.Excise Act, 1968.As final order has not been filed, I am not inclined to interfere with the said order, asadmittedly, at the time of inspection the toddy was found adulterated with ChloralHydrate and the second bottle of sample sent to the Government ChemicalExaminer was also found adulterated with Chloral Hydrate, and whether A1 is amember of the society or not and without knowledge of the petitioner’s societywhether any toddy was sold in the premises of the toddy shop of the petitioner, is amatter to be decided by the licensing authority and pass appropriate final orders,giving sufficient reasons.

Accordingly, the Writ Petition is disposed of, directing the 1[st] respondent to pass final orders, taking into consideration the explanation of thepetitioner dated 08.12.2005, in accordance with law. No order as to costs.

Dated: 26.12.2005

Dsr

________________

V.ESWARAIAH,J

Note:

Mark a copy to the Commissioner of

Prohibition and Excise, A.P. at Hyderabad Note:

Issue CC in two days

B/o

Dsr