WP/35160/2023 of Amabala Shankar Goud Vs The State of Telangana on 29 December 2023

ORDER:

This Writ Petition is filed seeking the following reliet "... to issue a Writ, order or direction, more particularly onein the nature of Writ of Mandamus setting aside theproceedings bearing No.Bt /854 /2023 /Dp & ED (H), dated27 .12.2023 suspending the licence of the petitroner toddyshop and rhe show-cause notice No. Bl/gS4/2O23/Dp & ED(H), dated 2T .t2.2O23 issued for cancellation of petitioner,stoddy shop pursuant to the case in F.I.R.No.g7O of 2O23 onthe file of the p.S. S,R.Nagar, Hyderabad, as illegal,unconstitutional, arbitrary a:nd against the principles ofnatural justice... "

2. Heard Sri M.Murtuza Ali Faruqui, learned counsel for the petitioner, learned Government pleader for prohibitionand Excise appearing for respondent Nos. I to 4 andperused the record.

3. This Writ [petition ]is filed questioning the proceedings,dated 27.L2.2O23, issued by respondent No.4 suspendinglicence No.t2/2014-15, dated 08.01.2015 of Toddy Shop ofSwamy Talkies, Erragadda premises bearing No.7_2_LO87/9/1, BK Guda, Santhanagar, Hyderabad, on theground of Adulteration of Toddy with Alprazolam,.

CVBRJvp J5r60 2021

4. It is the case [of ][the ][petitioner ][that ][he ][is ][the ][President]of Toddy [Tappers ][Cooperative Society ][(TTCS)' Erragadda']which is a [Society registered ][under ][the ][provisions ][of ][the]Telangana [Cooperative ][Societies ][Act' ][1964 ][(for ][short' ]['the]Act, 1964'). [The ][case of ][the ][petitioner ][is ][that ][the ][Society ][is]formed under [the ][provisions ][of ][the ][Act' ][1964 ][for ][the]purpose of [promoting ][the ][welfare of ][the ][Toddy Tappers and]alsoitsMembers.Itisfurthercaseofthepetitionerthatthesaid society [is ][running ][for ][past ][several ][years ][and ][it ][also]obtained [Licence ][No.l2 ]I [2Ol4-15, dated ][08'01'2015' ][issued]by respondent [No.3 ][to ][run ][Toddy ][depot' ][It ][is ][further ][case ][of]the petitioner [that ][the ][entire ][Members ][of the ][society ][are]depending [on ][toddy tapping ][and ][number ][of ][workers working]in the above [said licensed ][shop ][is ][more ][than ][106 ][members]' apart from the Tappers, who are [enrolled ][as ][Associate]Members and [they ][are ][solely depending ][their ][livelihood ][on]the earnings [of ][sale ][of toddy']

5. While [the ][matter ][stood ][thus, ][on]02.11.2023, [orr]credibleinformation,theSub-InspectorofPolice'S'R'NagarPolice Station, [Hyderabad, ][along ][with his staff' ][has]

inspected the petitioner-society and having found sale ofToddy in the premises bearing No.T-2-lOgZ /91I, BK Guda,Santhanagar, Hyderabad, and after obtaining necessarypermission from the authorities concerned, conducted araid and thereafter samples were sent for chemicalexamination. On enquiry, it is revealed that the toddy wasadulterated and the sarne was seized in empty bottles andpermission from the authorities concerned, conducted araid and thereafter samples were sent for chemicalexamination. On enquiry, it is revealed that the toddy wasadulterated and the sarne was seized in empty bottles andrequested to take appropriate action for registration ofcrime. Acting on the said complaint, a case in Crime No.g70of 2023 on the l-rle of S.R.Nagar [police ]Station, Hyderabad,has been registered for the offence punishable underof 2023 on the l-rle of S.R.Nagar [police ]Station, Hyderabad,has been registered for the offence punishable underSection 37 (a) of the Telangana State Excise Act, 196g (forshort, 'the Act, 1968J. Thereafter, it was alleged thatsamples were sent for chemical analysis to State ForensicScience Laboratories and a_fter testing the said samples, itwas found that the said samples contained "Nprazolam", apsychotropic substance along with Ethyl Alcohol, which areprohibited for human consumption. Therefore, acting on thesaid reports, a show-cause notice was issued in proceedingsCr.No.Bl/854/2023/DP&EO (H), dated 27.t2.2O23,was found that the said samples contained "Nprazolam", apsychotropic substance along with Ethyl Alcohol, which areprohibited for human consumption. Therefore, acting on thesaid reports, a show-cause notice was issued in proceedingsCr.No.Bl/854/2023/DP&EO (H), dated 27.t2.2O23, suspending [Licence ][No'l2l2Ola-15' ][dated 08'01'2015' ][of]Toddy Shop [of ][Swamytalkies, ][in ][respect of premises bearing]No.7-2- 1087 I [g ]I [l, ][BK Guda, ][Santh ][arlagar' Hyderabad']

6. A reading [of ][the ][impugned ][order ][reveals ][that ][the]Toddy Shop [of ][Swamytalkies, ][Erragadda ][in ][respect ][of]premises bearing [No.7-2-1087 ]lgll'BK [Guda' ][Santhanagar']IS renewedHyderabad,[Licence ][No.l2 ][I ][2Ol4-2105, ][which]from time to [time,]1Ssuspended [on ][the ][ground ][of]'Adulteration [of ][Toddy ][with ][Alprazolam" ][which ][is ][injurious]to health [and ][contrary ][to ][Rule ][16 ][of ][the ][Telangana ][State]Excise [(Grant of ][Licence ][to ][Sell ][Toddy' Conditions ][of ][licence]and tapping [of ][Excise Trees) ][Rules ]' [2OO7 ][(for ][short' ]['the]Rules, 2OO7J [and ][punishable ][under ][Section ][8 ][(c) ][read ][with]22 of the [Narcotic Drugs and ][Psychotropic Substances Act']1985.

T.SriM.MurtuzaAliFaruqui,learnedcounselappearlngfor the petitioner [vehemently ][contended ][that ][Rrrle ][3 ][of ][the]Telangana Excise [(Powers ][and Duties) ][Rules' ][1972 issued ][in]tr'"G.o. Ms.No. [1 ]094, [Revenue, ][dated ][29'og' ][197 ][2' ]-1o19t:

powers, to arrest without warrant, to seize articles liable forconhscation and to make searches by any Excise Officer notbelow the rank of Sub- Inspector, any police Officer of and.above the rank of al Inspector and any Ofhcer of the.above the rank of al Inspector and any Ofhcer of theRevenue Department of and above the rank of a DeputyTahsildar having jurisdiction over the place may seize andTahsildar having jurisdiction over the place may seize anddetain any excisable or other articles, which he has reasonto believe to be liable to confiscation under the Act or anyother law for the time being in force relating to exciseto believe to be liable to confiscation under the Act or anyother law for the time being in force relating to exciserevenue and detain and search any person upon whom andany vessel, raft, vehicle, animal package, receptacle orcovering in or upon which he may have reasonable cause tosuspect any such article. Contrary to the said Rules, 1972the Sub-Inspector of Police is not authorized to conduct anyany vessel, raft, vehicle, animal package, receptacle orcovering in or upon which he may have reasonable cause tosuspect any such article. Contrary to the said Rules, 1972the Sub-Inspector of Police is not authorized to conduct anysearch or seizure since the Officer concerned is not havingany power and therefore, the impugned order of suspensionis liable to be set aside on the ground of not havingjurisdiction.any power and therefore, the impugned order of suspensionis liable to be set aside on the ground of not havingjurisdiction.

8. Learned counsel further argued that the respondentauthorities have not followed the procedure as contemplated CVBR,Jwp 35160_202J

under the [Rules, ][20O7, ][issued ][in ][G'O'Ms'No'1228' ][Revenue](Ex.II) DePartment,dated O}.O9.2OO7, [to ][enable ][the]petitioner to [make]a representation [for ][sending ][three]sample bottles [under]Rule 27 of the [Rules, ][2007 ][for]chemical analYsis.

As per Rule 27 per Rule 27 Rule 27 27 [of ][the ][Rules, ][2OO7 ][any ][Prohibition ][and]

9As per Rule 27 per Rule 27 Rule 27 27 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]to [inspect ][at ][any ][time ][and ][to take ][samples from]competent the toddy [possessed ][by the ][licensee ][or ][any ][other person' ][for]the purpose of [analysis, ][such ][officer ][sha1l ][take ][three ][(3)]samples in the [presence ][of ][the ][licensee ][or ][his ][agent or ][other]person in charge [of ][the ][licensed premises ][or who is ][found]selling toddy in [the ][said ][premises, aJter conducting ][a]panchanama.

10. According [to ][the ][learned counsel, ][the ][Inspector ][of]police is not competent [and ][it ][is ][only Prohibition and ][Excise]not [below ][the ][rank ][of ][Sub-Inspector ][of ][Prohibition]Inspector c!'Bta.Jrp_Jst60 _202J

arrd 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 l Learned Government pleader for prohibition andExcise appearing for the respondents vehemently contendedthat any police officer having received credible informationis entitled to set into motion criminal law by registering thethat any police officer having received credible informationis entitled to set into motion criminal law by registering thecrime under Section 154 of Cr.p.C. Therefore, there isnothing wrong on the part of Sub-Inspector of police inregistering crime, conducting panchanama and sendingregistering crime, conducting panchanama and sendingsamples for chemical analysis, which amount to followingthe procedure under the Rules and therefore, this Courtwhile exercising the jurisdiction under Article 226 of thethe procedure under the Rules and therefore, this Courtwhile exercising the jurisdiction under Article 226 of theConstitution of India is not empowered to suspend theimpugned proceedings pending enquiry. He also placedimpugned proceedings pending enquiry. He also placed (.\,BR.Jwp lsr60 [202J]

relianceonaFullBenchJudgmentofthisCourtreportedinthe case [of ][Tappers ][Co-operative ][Society' ][Maddur ][v]Superintendent [of ][Excise, ][Mahaboobnagarr ]' [wherein this]Court held [thus:]

"45. However, [we ][must ][make ][it ][clear ][that ][this]incidental [or ][ancillary ]Powers [cannot ][be ][exercised ][in ][a]routine [way ][or ][as ][a ][matter ][of ][course' The ][licensing]authority [is ][bound to ][exercise ][the ][discretion ][reasonably']bona-fide and [without ][negligence ][considering ][the]circumstances [of the ][case ][when ][such ][intension]is [necessary ][lf it is ][possible ][to ][give ][an]suspension opportunity [to ][the ][petitioner and the ][circumstances ][do]not warrant [such ][a ][drastic ][step, ][t}le ][licensing ][authority ][is]bound to [alford ][an ][opportunity ][and ][tlle ][power ][of]suspension [pending ][enquiry should ][not ][be ][exercised ][as]an invanable [rule ][or ][mode ][of ][mahng ][an ][enqurry']Further [the ][suspension pending ][the enquiry should ][not]be allowed [to ][continue ][for an ][unduly ][long period' ][The]authorities [are ][bound ][to ][complete ][the enquiry ][as early ][as]possible and [any undue ][delay ][when ][it ][constitutes ][abuse]of power [makes ][the ][order ][liable to ][be ][set side' ][Whether]the suspension [of ][licence ][must ][be ][preceded ][by notice or]oppoftunity [must ][depend ][upon ][various ][factors ][such ][as']of [urgency involved, ][the duration of ][suspension']degree the nature [of ][the ][breach, ][public ][damage ][to ][be ][avoided']and other [similar ][circumstances ][which warrant ][an]immediate [action ][where ][it ][is ][not ][feasible ][or ][possible ][or]

' [rgaa ][(z) ][(FIc)]

CVERJrP_Jsl60 2023

even ad\risable 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 arrd 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, l9Z2 framed in G.O.Ms.No.1O94, Revenue, dated29.09.1972, and since the petitioner is having statutoryremedy of appeal under Section 63 (l) of the Act, 196g, theWrit Petition is disposed of relegating the petitioner to file anappeal/revision, as may be ava able, under the provisionsof the Act, 1968 and in case the. petitioner files anyappeal/revision, the same shall be disposed of by thecompetent authoritSr, within a period of four (4) weeks fromthe date of Iiling of such appeal/revision. The impugnedproceedings issued by respondent No.4 ulde proceedingsNo.Bl/854/2O23/Dp & ED (H), dated 22.r2.2O23, aresuspended for a period of two (2) weeks to enable the to file [[an ][aPPeaI/ ]][[aPPeaI/ ]][revision][ before ][the ][competent]

to file [[an ][aPPeaI/ ]][[aPPeaI/ ]]petitlonerThere [shall ][be ][no order ][as ][to ][costs']authority.

13. [Miscellaneous ][Petitions' ][if ][any' ][pending ][in ][this ][writ]

petition [shall stand ][closed']

Ass*?Dliftvc:3,8+itR

/ITRUE coPY/t

VSECTION [OFFICER]

to',. ,n" Prl Secretary Revenue Excise Govt of Telangana The State ofTelanqana, [[HYderabad]]Telanqana, [[HYderabad]]

Telanqana, [[HYderabad]]z. iili'ctii'rriiii1oi"i, [Ftniuition ][and Excise ][Telansana Abkari ][Bhavan]

a +il:"J'."t"ty [commissioner, ][Prohibition ][and ][Excise Hvderabad Abkari ][Bhavan]HvderabadHvderabad4. it;"Di.iffi [prohibition and ][Excise ][officer, ][Hyderabad, ][Abkari ][Bhavan]Hvderabad.Hvderabad.S.*s$ii%IB;H,iffYffi [il'Efl ][i.xY'i',,6f, ]['3Sil"'L?''^'"gtateorreransana']at HYderabad [OUTIat HYderabad [OUTI

7. Two CD CoPies

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HIGH COURT

C C TODAY

DATED:29112|2023

ORDER

WP.No.35160 of 2023

STAI€ o1[$E]:NllsEt)'[o]3toJr*DEPA1

DISPOSING OF THE WRIT PETITIONWITHOUT COSTS.

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