WP/34947/2023 of Toddy Tappers Cooperative Society (TICS), Chintalbasthi Vs The State of Telangana on 29 December 2023

ORDER:

This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the follorving relief:

"..to issue a uril, order or direction, more particularly one inthe nature of writ of Mandamus declaring the proceedings of3.d respondent vide No Cr.No.B2/427 12023 /DP&,EO(H\,dated t3. I2 2023, suspending the Iicensc for retail sale ofToddy of Banjara Hills Shop license of thc petitioner's toddyshop, Banjara Hills on rhe ground of adulteration of toddy, sillegal, arbitrary, unreasonable \\,ithout following theprinciples of natural [justice ]and contrar)' to the provisions olTS Excisc Act,l968 and set aside the same-.."

2. Learned counsel for the petitioners would submit that the issue involved in this Writ Petition is squarely covered by theorder passed by this Court in W.P.No.33871 of 2023, dated15.12.2023.

3. Learned Assistant Government Pleader for Prohibitionand Excise appearing lor responden[s does not dispute the same.

4. In view of the said submissions and for the reasonsalike in the said order, dated 15.12.2023 passcd in W.P.No.33871 of2023, this Writ Petition is also disposed of in terms of the saidorder. There shall be no order as to costs.

Arguments

Miscellaneous petitions, if any, pending in this writ petitionsha,ll stand closed.

SD/. MOHD. SANAULLAH ANSARIASSISTANT RISTRAR//TRUE COPY//SECTIONFFICER

1. The Principal Secretary, Prohibition [and Excise Department, Secretariat,]State of Telangana at Hyderabad.State of Telangana at Hyderabad.

2. The Commissioner, Prohibition [and Excise, Prohibition and ][Excise ][Complex]Nampally Station Road, [Nampally, at Hyderabad.]Nampally Station Road, [Nampally, at Hyderabad.]

3. The Diskict Prohibition and Excise Excise Oflicer, Hyderabad.

Prohibition and Excise Excise Oflicer, Hyderabad.4. The Station House Officer, Nampallv. HrOL.rtJ-*

5. rwo cCs ro Gp FoR pRoHtg]Tto( nt\ioEibrse, High Cou( for the Srate\6. ^ ^ Two CCs [[of Telangana at ]]to Gp FOR Gp FOR FOR [[Hyderabad. ]]HOME, [[[OUTJ]]Court for the State of Tetangana

6. ^ ^ Two CCs [[of Telangana at ]]to Gp FOR Gp FOR FOR [[Hyderabad. ]]HOME, [[[OUTJ]]High Court for the State of Tetangana atHyderabad. [OUlHyderabad. [OUl 8 1 9n" QQ [t9 ][Sri ][N.Vishat, ][Advocate ]lopUCI

1 9n" QQ 8 1 Two CD Copies8 1 Two CD Copies SA(Along with a copy of common order dated 15.12.2023 in W.p. No. 33g11 of 2023)

GJ

HIGH COURT

DATED:2911212023

ORDER

WP.No.34947 of 2023

DISPOSTNG OF TTIE W.PWITHOUT COSTS.WITHOUT COSTS.

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THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDYWRIT PETITTON No.33871 of 2o23ORDER:

This Writ Petition is filed seeking the following relief:

"... to issue a Writ, order or direction, more particularly onein the nature of Writ of Mandamus declaring tl.re proceedingsof respondent No.3, vide No.Cr.No.B6l8 t2/2023/Dp & EO(H) dated 06.12.2023, suspending the licencc for retail saleof Toddy of Kulsumpura Shop licence o[ the petitioner,stoddy shop, Kulsumpura on the ground of adulteration oftoddy, as illegal, arbitrary, unreasonable without followrngthe principles of natural justice and contrary to theprovisions of the Telangana State Excise Act, I96g and setaside the same.."

2. Heard Sri P.Vishnu Vardhana Reddy, learned counselfor the petitioners, learned Government pleader forProhibition and Excise appearing for respondent Nos.l to 3,Iearned Assistant Government pleader for Home appearingfor respondent No.4 and perused the record.

3. This Writ Petition is filed questioning the proceedings,dated O6. 12.2023, issued by respondent No.3 suspendinglicence No.O2, dated 08.O1.2O15, of Toddy Shop ofKulsumpura, premises bearing No. l3-6-830 /A/21, Ramsinghpura, Karwan, [Hyderabad, ][on the ][ground ][of]Adulteration of [Toddy ][with ]['Alprazolam'']

4. It is thc case of [the pctitioners ][that petitioner ][No'2 is ][a]President of Toddy [Tappers ][Cooperative ][Society ][(TTCS)']Pulekona, which [is ][a ][Society ][registered ][under ][the provisions]of the Telangana [Cooperative ][Societies Act, ][1964 ][(for ][short']'the Act, 1964'1. [The case of ][the petitioners is ][that petitioner]No.1-Society [is ][formed ][under the provisions ][of ][the ][Act, ][1964]for the purpose [of ][promoting ][the ][welfare ][of ][the ][Toddy]Tappers and also [its ][Members. ][It ][is ][further ][case ][of ][the]petitioners that the said [society ][is running for ][past ][several]years and it also obtained [Licence ][No ][02, ][dated ][08'01'20 ][15']issued by responCent [No.3 to ][run ][Toddy ][depot' It ][is ][further]case of the [petitioners ][that ][the ][entire ][Members ][of ][the]pctitioncr-society arc depending [on ][toddy tapping ][and]number of workers [working ][in ][the ][above ][said licensed ][shop]is more than [100 ]and [tappers are 50, who ][are ][the ][Members]of the Cooperative [Society ][and ][they ][are ][solely ][depending]their livelihood [on ][the earnings of ][sale of ][toddy']

5. While the matter stood thus, on 02.11.2023at O6:OO PM, on creditable information, the lnspector ofPolice, Kulsumpura Police Station, Hyderabad, along withhis staff, has inspected the petitioner-society and havingfound sale of Toddy in the premises bearing No. 13_6-83O/A/21, Ramsinghpura, Karwan, Hyderabad, and afterobtaining necessary permission from the authoritiesconcerned, conclucted a raid and thereafter samples weresent for chemical examination. On enquiry, it is revealedthat the toddy was adulterated and the same was seized inempty bottles and requested to take appropriate action forregistration of crime. Acting on the said complaint, a case inCrime No.35O of 2023 on the hle of Mangathat policeStation, Hyderabad, has been registered for the offencepunishable under Section 37 (a) of the Telangana StateExcise Act, 1968 (for short, the Act, 196g). Thereafter, itwas alleged that samples were sent for chemical analysis toState F orensic Science Laboratories and after testing thesaid samples, it was found that the said samples contained" Alprazolam", a psychotropic substance along with Ethyl Alcohol, which are [prohibited ][for ][human ][consumption']Therefore, acting [on ][the ][said reports, ][a ][show-cause notice]was issued in [proceedings Cr.No'86 ]l8l2 [12O23/DP&EO](H), dated 06.12.2023, [suspending Licence ][No'02' ][dated]08.01.20 15, of [Toddy ][Shop ][of ][Kulsumpura ][in ][respect of]premises bearing [No. ][13-6-830 ]I [Al2l ], Ramsinghpura'Karwan, Hyderabad.

6. A reading of [the ][impugned ][order ][reveals ][that ][the]of [Kulsumpura ][in ][respect ][of ][premises bearing]Toddy Shop No.13-6-830 lAl21 , [Ramsinghpura, ][Karwan, ][Hyderabad']Licence No.02, [which is valid upto ][30 ]['O9 ]['2027 ]' [is]suspended on the [grouncl ][of ]['Adulteration ][of ][Toddy ][with]which [is ][injurious ][to ][health ][and ][contrary ][to]Aiprazolam', Rule 16 of the [Tclangana ][State ][Excise ][(Grant of ][Licence ][to]Sell Toddy, Conditions [of ][lice ][nce ][and ][tapping ][of ][Excise]Trees) Rules , [2OO7 ][(for ][short, ]['the ][Rules, 2OO7\ ][and]punishable under Section [8 ][(c) ][read ][wtrb ][22 ][of ][the ][Narcotic]Drugs and Psychotropic [Substances ][Act, ][1985']

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7. Sri P.Vishnu Vardhana Reddy, learned counselappearing lor the petitioners vehemently contended thatRuIe 3 of the Telangana Excise (Powers and Duties) Rules,1972 issued in G.O.Ms.No.1O94, Revenue, dated29.O9.1972, confers the powers, to arrest without warrant,to seize articles liable for confiscation and to make searchesby any Excise Officer not below the rank of Sub- Inspector,any Police Officer of and above the rank of an Inspector andany Officer of the Revenue Department of and above therank of a Deputy Tahsildar having jurisdiction over theplace may seize and detain any excisable or other articles,which he has reason to believe to be liable to confiscationunder thc Act or any other law for the time being in forcerelating to excise revenue and detain and search any personupon whom and any vessel, raft, vehicle, animal package,receptacle or covering in or upon which he may havereasonable cause to suspect any such article. Contrary tothe said Rules, 1 972 the Sub-Inspector of Police is notauthorized to conduct any search or seizure since theOfficer concerned is not having any power and therefore, the impugned order of suspension is [liabie ][to ][be ][set ][aside ][on]the ground of not having [jurisdiction.]

8. I-earned counsel further argued [that ][the ][respondent]authorities have not [followed ][thc ][procedure ][as ][contemplated]under the Rules, 20O7, [issued ][in ][G.O.Ms.No.7228, ][Revenue]dated 09 [-O9 ][-2OO7 ](Ex.II) Department, , [to ][enable ][the]petitioners to make a representation [for ][sending ][three]sample bottles under [Rule ][27 of ][L]ne ][Rules, ][2O07 ][for]chemical analysis.

9. As per Rule 27 of the [Rules, ][2OO7 ][any ][Prohibition ][and]Excise Officer, not below [the rank ][of ][Sub-Inspector of]Prohibition and Excise or [Food ][Inspector ][appointed ][under]the Prevention of Food Adulteration [Act, ][1954, ][shall ][be]competent to inspect at any [time and to take ][samples ][from]the toddy possessed by [the ][licensee ][or any ][other ][person, ][for]the purpose of analysis, such [officer ][shall take ][three ][(3)]samples in the [presence ]of thc [liccnsee ][or ][his ][agent ][or other]person in charge of the licensed [premises ][or ][who ][is ][found]

selling toddy in the said premises, after conductingapanchanama.

10. According to the learned counsel, the Inspector ofpolice is not competent and it is only prohibition and ExciseInspector not below the rank of Sub-Inspector of prohibitionand Excise or Food Inspector appointed under thePrevention of Food adulteration Act, 1954 is the competentauthority for the purpose of sending samples for chemicalanalysis. In the absence of following procedure, asprescribed under the Rules, the entire proceedings arevitiated and also amount to violation of principles of naturaljustice and accordingly, prayed to set aside the impugnedorder.

1 1. Learned Government Pleader for Home appearing forrespondent No.4 vehemently contended that any policeofficer having received credible information is entitled to setinto motion criminal law by registering the crime underSection 154 of Cr.P.C. Therefore, there is nothing wrong onthe part of Su b-[nspector of Police in registering crime,

conducting [panchanama ][and ][sending ][samples ][for ][chemical]analysis, which amount [to ][foltowing ][the ][procedure under]the Rules and therefore, [this ][Court while ][exercising ][the]jurisdiction under Article 226 ol [the ][Constitution ][o[ ][India ][is]not empowered to [suspend ][the ][impugned ][proceedings]pending enquiry. [He also placed reliance ][on ][a Full ][Bench]Judgment of this [Court ][reported ][in ][the ][case ][of ][Tappers ][Co-]operatlve Society, [Maddur ][v. ][Superintendent ][of ][Excise']Mahaboobnagarr, [wherein ][this ][Court held thus:]

"45. However, [we must ][rnake ][it ][clear ][that ][this]incidental or ancillary [powers ][cannot ][be ][exercised ][in ][a]routine way or as a [matter ][of ][course The ][Iicensing]authority is bound [to ][excrcise ][the discretlon ][rcasonably']bona-fide and [without ][negligence ][considcring ][the]circumstances of the [case ][whcn such ][intension]suspension is necessary' [If it is ][possible ][to ][givc ][an]opportunity to the [pctitiolrcr ][and the ][circumstances ][do]not warrant such [a ][drastic ][step, the licensing ][authority ][is]bound to afford an [opportunity ][and thc ][power ][o[]suspension [pending ][enquiry should ][not ][be ][exercised ][as]an invariable rule or [nrode ][of ][making ][an ][cnquiry]Further the suspension [pending ][the ][enquily ][should ][not]be allowed to continue [for ][an ][unduly ][long ][period ][Thc]authorities arc bouncl [to completc the ][enquiry ][as ][carly ][as]possible and any undue [delay ][when ][it ][collstilrrtes ][abuse]

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of power makes the order liable to be set side. Whetherthe suspension of licence must be preceded by notice oropportunity must depend upon various factors such as,degree of urgency involved, the duration of suspension,the nature of the breach, public damage to be avoided,and other sim ilar circumstances which warrant animmediate action where it is not feasible or possible oreven advisable to give an opportunity to the holders ofthe licences before passing interim orders of suspension."

12. This Court after careful consideration of the materialplaced on record and the counter-affidavit filed theby respondents, without expressing any opinion on the meritsof the matter whether the respondents have followed theprocedure in accordance with the Rules, 1972 or Sub-Inspector of Police is having jurisdiction under Rule 3 (3) ofthe Rules, 7972 fralrred in G.O.Ms.No. 1O94, Revenue, dated29.09.1972, and since the petitioner is having statutoryremedy of appeal under Section 63 (1) of the Act, 1968, theWrit Petition is disposed of relegating the petitioner to file anappeal/revision, as may be available, under the provisionsof the Act, 1968 and in case the petitioners files anyappeal/revision, the same shall be disposed of by thecompetent authority, within a period of four (4) weeks from the date of hling of such [appeal/ ][revision. ][The ][impugned]

proceedings issued by respondent No.3 uideCr.No.B6l812l2023lDP & [EO ][(H), dated ][o6.12.2023, ][are]suspended for a [period ][of ][two ][(2) weeks ][to ][enable ][the]petitioners to file an appeal/revision [before ][the ][competent]authority. There shall [be ][no ][order ][as ][to ][costs.]

13. Miscellaneous Petitions, if [any, ][pending ][in ][this ][writ]petition shall stand closed JUSTICE C.V.BHASKAR [REDDY]

L5.L2.2023

Note:Issue C.C.in two [days.](B/ o)gkv/ rev