WP/18399/2004 of S. Seshaiah, Vs The Commissioner for Prohibition and Excise, on 30 December 2004

ORDER:

The petitioner is an IL 24 licencee, who has obtained the licence for retail vending ofIMFL in the name and style of M/s Kanakadurga Wines at Mangalagiri, GunturDistrict. Initially he obtained a licence in the year 1997-98, it was renewed from timeto time and as per the latest renewal, his licence was valid up to the end of theexcise year 2003-2004.

2. During the currency of his latest licence, a case was registered in Crime No. 96 of2003 in the Mangalagiri Town Police Station under Section 304 I.P.C. Wherein thepetitioner was also arraigned as an accused. After investigation, howeverpetitioner’s name was deleted. The Prohibition and Excise Inspector, Mangalagirialso registered a crime against the petitioner for an offence punishable underSection 37(a), 31(1)(b) and 36(c) of A.P. Excise Act, 1968 (for short ‘the Act’) in P.R.No. 68/2003-04.

3. In respect of these offences registered, the third respondent issued a show causenotice to the petitioner on 28.08.2003 seeking his explanation. On receipt of thepetitioner’s explanation, the third respondent passed orders dated 17.09.2003canceling the IL24 licence of the petitioner, under Section 31 of the Act. The reasonsrecorded for such cancellation by the third respondent are that the petitioner’s agent(nowkarnama) at the shop sold “Gold Fine Nip bottle” in loose and allowed theconsumption in the shop premises, which resulted in the death of three persons, asthe liquor sold by the petitioner’s agent was adulterated and poisonous, leading to death. Aggrieved thereby the petitioner preferred an appeal to the secondrespondent, who by the order dated 03.06.2004, declined appellate interference.

4. It requires to be noted that the second respondent recorded that there was nodispute that the deceased consumed IML purchased from the appellant’s shop andthat the liquor was free from any adulteration. The second respondent also held thatthe charge under Section 37(a) of the Act was not attracted; that the deaths werecaused due to mixing of Cyanide in the water which was used by the deceased todilute the IML, after purchasing the liquor from the petitioner’s shop; that this waterwas procured from a cool drinks shop outside the petitioner’s licenced premises;and that there was no evidence whatsoever to come to the conclusion that looseliquor was vended by the petitioner, that consumption was allowed in the shop itselfor that water was made available from the petitioner’s shop. Despite theseconclusions, the second respondent rejected the appeal on the ground that since theappellant’s licence was already cancelled and the lease period was over, nointerference is called for.

5. Aggrieved thereby, the petitioner preferred a further appeal to the first respondent.By the order dated 21.08.2004 the first respondent rejected the appeal on the groundthat the licence granted to the petitioner was only for one year. The firstrespondent/second appellate authority’s order requires to be extracted and it is soextracted to the extent material for the purposes of this Writ Petition, as under:

“8. A perusal of the records reveals that the Inspector of police, CID,Vijayawada after completion of investigation laid a charge sheet underSection 302 r/w 34 IPC before the Hon’ble VIIth Additional Munsif Magistrate,Guntur against the accused Vinjamuri Srinivasarao and .Ravindranath Babu@ Ravi for mixing the cyanide poison with the water with an intention that thecyanide poison will harm liquor consumers and finally stated that theconsumption resulted in the death of deceased persons It is stated in thecharge sheet that both the accused wanted easy money and hatched a planto kill sleeping passengers in running trains by smearing cyanide on their lipsand steal money after their death. Both of them wanted to make a trial test atUrvasi Bar and Restaurant. In furtherance of their common intention theyproceeded to Urvasi Bar & Restaurant, Tadepalli and mixed the cyanide in

the jug of water which was kept on the pail which resulted in four deaths forwhich a case was booked in crime No. 160/2003, under Section 302 I.P.C. ofTadepalli P.S. The three witnesses examined by the Deputy Commissionerof Prohibition and Excise also stated that the deceased persons haveconsumed the IML purchased from the appellant shop after diluting it withwater from the jug kept at the cool drink shop. The Gold Fine Whisky bottleswhich were purchased by the deceased persons were supplied by theA.P.B.C.L. only. As per the report of the Chemical Examiner no adulterationwas found in the liquor on the samples drawn from the shop after the incident.There is no report regarding the arrangements for sitting the consumers toconsume liquor in the licensed premises. It is not even reported that thelicensee provided some amenities like chairs, tables, glasses and snacks etc.The Commissioner of Prohibition and Excise videCr.No.2516/DPE/EX/98/C5, dated 9.10.1998 issued a circular stating that ifthe consumption takes place outside the licensed premises the licensee isnot responsible and the above fact should be brought out very clearly inpanchanama and FIR. It further states that if the consumption is detectedwithin the licensed premises then only case should be booked anddepartmental action as well as criminal action shall be initiated againstlicensee.

9. In the result, the appeal is dismissed since licence was only for oneyear.”year.”

6. Nothing more need be stated except that a even a bare perusal of the secondappellate order of the first respondent would reveal that it is perverse. Theconclusion of the respondents 1 and 2 that the second and first appeals preferred bythe petitioner should be rejected on the ground that the licence period is alreadyover, even though no facts are available on record to support the conclusion of themisconduct of the petitioner qua the charges leveled against him, are conclusionswhich are perverse and which no reasonable person acting in a quasi-judicialcapacity would arrive at.

7. On the above analysis, the Writ Petition is allowed. The order of the thirdrespondent dated 17.09.2003 canceling the petitioner’s licence, as confirmed by theappellate authority the second respondent dated 03.06.2004 as further confirmed bythe first respondent by the order dated 21.08.2004, are all hereby quashed. In thecircumstances of the case, there shall however be no order as to costs.

kvrm

____________

30-12-2004

That Rule Nisi has been made absolute as above.

Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on this Thursday Thirtiethday of December, two thousand and four.

To

1. The Commissioner for Prohibition and Excise, Hyderabad.

2. The Deputy Commissioner of Prohibition and Excise, Guntur.

3. The Prohibition and Excise Superintendent, Guntur.

4. 2 CCs to G.P. for Prohibition and Excise, High court Buildings, Hyderabad (OUT)

5. 2 CD copies.