WP/35168/2023 of Toddy Tappers Cooperative Society (TICS) Vs The State of Telangana on 29 December 2023

1. Toddy Tappers Cooperative Society (TICS), Gowlipura, Rep. by its President,B. Suresh Goud, S/o. Yadagiri, Aged about 55 years, Occ. President, TICSGowlipura, O/o. H.No.18-7-181/A, Gowlipura, Hyderabad -500053.B. Suresh Goud, S/o. Yadagiri, Aged about 55 years, Occ. President, TICSGowlipura, O/o. H.No.18-7-181/A, Gowlipura, Hyderabad -500053.2. B. Suresh Goud, S/o. Yadagiri, Aged about 55 years, Occ. President, ToddyTappers Cooperative Society (TICS) O/o. H.No.1 8-7-1811A, Gowlipura,Hvderabad -500053' Tappers Cooperative Society (TICS) O/o. H.No.1 8-7-1811A, Gowlipura,Hvderabad -500053'

...pETrroNERS

AND

1. The State of Telangana, Rep. by its Principal Secretary, Prohibition andExcise Department, Secretariat, Hyderabad.Excise Department, Secretariat, Hyderabad.

2. The Commissioner, Prohibition and Excise, Prohibition and Excise ComplexNampally Station Road, Nampally, at Hyderabad.Nampally Station Road, Nampally, at Hyderabad.

3. The Deputy Commissioner of Prohibition and Excise, Hyderabad Division,Hyderabad at Nampally.Hyderabad at Nampally.

4. The District Prohibition and Excise Officer, Hyderabad.

5. The Station House Officer, Excise Department. Charminar, Hyderabad.

6. The Station House Officer, L and O, Chatrinaka, Hyderabad

...RESPONDENTS

Petition under Article 226 of lhe Constitution of lndia praying that in thecircumstances stated in the affidavit filed therewith, the High Court may bepleased to issue a Writ, order or direction, more particularly one in the nature ofWRIT OF MANDAMUS declaring the proceedings of 4rd respondent vide No.Cr.No.B5/855/2O23|DP and EO(H), daled 27.12.2023, suspending the license forretail sale of Toddy of Gowlipura Shop license of the [petitioner's ]toddy shop,Gowlipura on the ground of adulteration of toddy as illegal, arbitrary,unreasonable without following the [principles ]of natural [justice ]and contrary to theProvisions of TS Excise Act, ['1968 ]and set aside the same !A t{O:1 OF 2o23

Petition under Section 151 CPC praying that in the circumstances stated inthe affidavit filed in support of the petition, the High Court may be pleased tosuspend the proceedings issued by 4th respondent vide Cr.No.B5/855/2O23|DPand EO(H), daled 27.12.2023, pending disposal of the writ petition Counsel for the Petitioner: M/s. SNEHA BACHANABOINA

Counsel for the Respondent Nos. 1to4: GP FOR PROHIBITION EXCISE

Counsel for the Respondent Nos. 5&6: GP FOR HOME

The Court made the following: ORDER

THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDYWRIT PETITION No.35168 of2023ORDER:

This Writ Petition is filed seeking the following relief:

"... to issue a Writ, order or direction, rrrore particularly onein the nature of Writ of Mandamus declaring the proceedingsof respondent No.4, vide No.Cr.No.B5/85512023/DP e, EO(H) dated 27.12.2023, suspending the licence for retail saleof Toddy of Gowlipura Shop licence of the petitioner's toddyshop, Gowlipura on the ground of adulteration of toddy, asillegal, arbitrary, unreasonable without following theprinciples of natural justrce and contrar]r to the provisions ofthe Telangana State Excise Act, 1968 and set aside thes6une..

2. Heard Ms.B.Sneha, learned counsel for the petitioners, learned Government Pleader for Prohibition andExcise appearing for the respondents and perused therecord.

3. This Writ Petition is hled questioning the proceedings,dated 27.12.2023, issued by respondent No.4 suspending$licence No.O7, dated 13.01.2O15, of Toddy Shop ofGowlipura, premises bearing No.18-7-181/A, Gowlipura,Hyderabad,onthe ground of Adulteration of Toddy with'AIprazoIam'.

4. It is the case of the petitioners that petitioner No.2 [is ][a]President of Toddy Tappers Ccoperative Society [(TTCS),]Gowlipura, which is a Society registered under [the]provisions of the Telangana Cooperative Societies Act, 1964(for short, 'the Act, 1964). The case of the petitioners isthat petitioner No.l-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 arld it also obtained Licence No.O7, dated13.01.2015, issued by respondent No.4 to run Toddy [depot.]It is further case of the petitioners that the entire Membersof the petitioner-societ5r are depending on toddy [tapping ][and]number of workers working in the abbve said licensed [shop]is more than l0O and tappers are 50, who are the Membersof the Cooperative Society and they are solely dependingtheir livelihood on the earnings of sa.le of toddy.

5. While the matter stood thus, on O2.1L.2O23at 06:0O PM, on credible information, the Sub-lnspector ofPolice, Chatrinaka Police Station, Hyderabad, along with his z', staff, has inspected the petitioner-societ5r and having foundsale of Toddy in the premises bearing No.l8-7-181/A,Gowlipura, Hyderabad, and a_fter obtaining necessaryGowlipura, Hyderabad, and a_fter obtaining necessarypermission from the authorities concerned, conducted araid and thereafter samples were sent for chemicalraid and thereafter samples were sent for chemicalexamination. On enquiry, it is revealed that the toddy wasadulterated and the sarne was seized in empty bottles andadulterated 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.385of 2023 on the file of Chatrinaka Police Station, Hyderabad,has been registered for the offence punishable underSection 37 (a) of the Telangana State Excise Act, 1968 (forshort, 'the Act, 1968). Thereafter, it was alleged thatof 2023 on the file of Chatrinaka Police Station, Hyderabad,has been registered for the offence punishable underSection 37 (a) of the Telangana State Excise Act, 1968 (forshort, 'the Act, 1968). Thereafter, it was alleged thatsamples were sent for chemical analysis to State ForensicScience Laboratories and after 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 the impugnedwas 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 the impugnedproceedings, suspending Licence No.O7, dated 13.01.2015, of Toddy [Shop ][of Gowlipura ][in ][respect ][of ][premises bearing]No. 18-7- [181 ]/A, [Gowlipura, ][Hyderabad']

6. A [reading ][of ][the ][impugned ][order ][reveals ][that ][the]Toddy Shop [of ][Gowlipura ][in ][respect ][of ][premises ][bearing]No.18-7-181/A, [Gowlipura, Hyderabad' Licence ][No'07']dated 13.01'2015 [which ][is ][renewed ][from ][time ][to time' ][is]suspended [on ][the ][ground ][of ][Adulteration ][of ][Toddy with]Alprazolam', [which ][is ][injurious ][to ][health and ][contrar5r ][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' ][2007) ][and]under [Section ][8 ][(c) ][read ][with ][22 ][of tlrre ][Narcotic]punishable and [Psychotropic Substances ][Act' ][1985']Drugs Ms.B.Sneha, [[Iearned counsel ]][[appearing ]][[for ]][[the]]

7. Ms.B.Sneha, [[Iearned counsel ]][[appearing ]][[for ]][[the]]petitioners [vehemently contended ][that ][Rule ][3 of ][the]Telangana [Excise ][(Powers ][and Duties) ][Rules' ][1972 ][issued ][in]G.O.Ms.No.1094, [Revenue, ][dated ][29'Og'1972' confers ][the]to arrest [without warrant' ][to ][seize ][articles liable for]powers, confrscation [and ][to ][make ][searches ][by any ][Excise ][Offrcer ][not]

below the rank of Sub- Inspector, any police Officer of andabove the rank of an Inspector and arry Officer 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 conliscation under the Act or anyother law for the time being in force relating to exciseother 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 anycovering 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. lrarned counsel further argued that the respondentauthorities have not followed the procedure as contemplatedunder the Rules, 2007, issued in G.O.Ms.No.1228, Revenue(Ex.II) Department, dated 09 .O9.2OO7 , to enable the C\:BR,J*p--)5168 2021

petitioners to make [a ][representatron]for sending [three]Rules, 2007 [for]bottles [under ][Rule ][27 ][of ][the]sarnple chemical [analYsis.]

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

9As per Rule per Rule Rule Excise Officer, [not ][below ][the rank ][of ][Sub-lnspector ][of]ProhibitionandExciseorFoodlnspectorappointedunderthe 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 ][shall take ][three ][(3)]in [the ][presence ][of ][the ][licensee ][or ][his ][agent ][or ][other]samples in [charge ][of ][the ][licensed premises ][or ][who is ][found]person selling toddy [in ][the ][said ][premises, ][after ][conducting ][a]panchanama.

10. According [to ][the ][learned counsel' ][the ][Inspector ][of]is not [competent ][and ][it ][is ][only Prohibition and ][Excise]police not [below ][the ][rank ][of ][Sub-Inspector ][of Prohibition]Inspector and Excise [or ][Food ][Inspector ][appointed ][under ][the]Prevention of [Food ][adulteration ][Act, ][1954 ][is the ][competent]

CVBRJvp_t5 t6t_202J

authority for the purpose of sending samples for chemicalanalysis. In the absence of followingprocedure,ASprescribed under the Rules, the entireproceedingsaretitiated and also amount to violation of principles of natura-ljustice and accordingly, prayed to set aside the impugned order.

I 1 . lrarned Government pleader for prohibition andExcise appearing for the respondents vehemenfly contendedthat any police officer having received credible informationis entitled to set into motion criminal law by registering theExcise appearing for the respondents vehemenfly contendedthat any police officer having received credible informationis entitled to set into motion criminal law by registering thecrime under Section 1S4 of Cr.p.C. Therefore, there isnothing wrong on the part of sub-rnspector of police inof Cr.p.C. Therefore, there isnothing wrong on the part of sub-rnspector of police inregistering crime, conducting panchanama and sendingsendingsamples for chemical anarysis, which amount to followingthe procedure under the Rules and therefore, this Courtwhile exercising the jurisdiction under Articr e 226 of thethe procedure under the Rules and therefore, this Courtwhile exercising the jurisdiction under Articr e 226 of theConstitution of Indiars not empowered to suspend theimpugned proceedingspending enquiry. He also placedimpugned proceedingspending enquiry. He also placedreliance on a Full Bench Judgment of this Court reported inthe case of f,appers Co_operative Society, Maddur v.Judgment of this Court reported inthe case of f,appers Co_operative Society, Maddur v.

Superintendent [of ][Excise, Mahaboobnagarr' ][wherein ][this]

Court held [thus:]

"45. However, [we ][must ][make ][it ][clear ][that ][this]incidenta-l [or ][ancillarSr ]Powers [cannot ][be ][exercised ][in ][a]routine [way ][or ][as ][a ][matter ][of ][course' ][The ][licenstng]authority [is ][bound to ][exercise ][the ][discretion ][reasonably']bona-fide [and]withoutnegligence [considering ][the]circumstalcesof thecase when [such ][intension]suspension [is]necessaryIf it is Possible [to ][give ][an]opportunity [to ][the petitioner and ][the ][circumstances ][do]not warrant [such ][a ][drastic ][steP, ][the ][licensing ][authority ][is]bound to [alIord ][an ][opportunity ][and ][the ][power ][of]suspension [pending ][enqulry should ][not ][be ][exercised ][as]an invariable [rule ][or ][mode ][of ][making ][an ][enquiry']Further the [suspension pending ][the enquiry should ][not]be allowed [to ][continue ][for an unduly ][loog period' ][The]authorities [are ][bound to ][complete ][the enquiry ][as ][early ][as]possible and aly [undue ][delay ][when ][it ][constitutes ][abuse]of power [makes ][the ][order tiable ][to ][be set side' ][Whether]the suspension [of ][licence ][must ][be-preceded by ][notice or]opportunity [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]even advisable [to ][give ][an ][oPportunity ][to ][tJ:e ][holders ][of]the licences [before passing ][interim ][orders of suspension'"]

L2. This Court after careful consideration of the materia_lplaced on record and the counter_affidavit liled 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, 1972 fratred in G.O.Ms.No. 1094, Revenue, dated29.O9.1972, and since the petitioners are having statutoryremedy of appeal under Section 63 (1) of the Act, 196g, theWrit Petition is disposed of relegating the petitioners to lilean appeal/revision, as may be available, under theprovisions of the Act, 1968 and in case the petitioners filesany appeal/revision, the same shall be disposed of by thecompetent authority, within a period of four (4) weeks fromthe date of filing of such appeal/revision. The impugnedproceedings issued by respondent No.4 uideCr.No.B5/855/2023lDP & EO (H), dated 27.r2.2023, arcsuspended for a period of two (2) weeks to enable thepetitioners to file an appeal/revision before the competentauthority. There shall be no order as to costs.

CVBRJ*p l5l6t l02J

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

petition shall stand [closed]

SD/-A.V.S.PRASADASSISTANT REGISTRAR//TRUE COPY//\ g,SECTloNbFFICER

To,1 . The Principal Secretary, [Prohibition and Excise Department, ][Secretariat,]T.S.,Hyderabad.z. The b6mmissioner, Prohibition [and Excise, Prohibition and ][Excise ][Complex]Nampally Station Road, [Nampally, at ][Hyderabad.]s. ine beputy Commissioner [of prciniuitioh and Excise, Hyderabad ][Division,]Hvderabad at NamDallv.4. The District Prohibiiionand [Excise ][Officer, ][Hyderabad.]5. The Station House Officer, [Excise Department. ][Charminar, ][Hyderabad']6. The Station House [Officer, ][L ][and ][O, ][Chatrinaka, ][Hyderabad]7. r*o bci-to op ron [PRoHlBlrloN ][AND EXCISE ][,High ][court ][for ][the ][State]of Telanoana. at Hvderabad IOUTI8. Two CC; to GP FOR [HOME-,High Court ][forthe ][State ][of ][Telangana,at]Hyderabad [OUT]9. o'ne cc to M/s. SruenR BACHANABOINA, [Advocate ][OPUC]10.Two CD CopiesBMGJP

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II

CC [TODAY]

HIGH [COURT]

DATED:2911212023

ORDER

WP.No.35168 [of ][2023]

6 [STAf4:]1t\kvcoJ00tt7$?3-Lo,r** oESPp.Ic DISPOSING [OF THE ][WRIT ][PETITION]WITHOUT [COSTS]

'11.

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