Patna High Court
Case Details
Patna High Court CWJC No.3602 of 2013 (2) dt.15-03-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3602 of 2013 ====================================================== 1. Jay Ram Yadav Son Of Sri Kapil Muni Yadav Resident Of Khedalpura Bihta, Police Station - Bihta, District - Patna .... .... Petitioner/s Versus 1. The State Of Bihar, Through Principal Secretary, Excise 2. The Member Board Of Revenue, Excise, Bihar, Patna 3. The Excise Commissioner, Bihar, Patna 4. The Collector, Patna, District - Patna 5. The Assistant Commissioner Of Excise, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate. Mr. Ashish Giri, Advocate. For the Respondent/s : Mr. Piyush Lal, AC to AAG-1. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 15-03-2013 We have heard learned counsel for the petitioner and respondents. The petitioner is aggrieved by order dated 29.09.2012 of the Assistant Commissioner, Excise, cancelling his license for running a Bar to sell liquor issued in Form 9 and 10. The challenge further is to the Appellate and Revisional orders dated
Legal Reasoning
20.12.2012 and 30.1.2013 respectively affirming the same.
Legal Reasoning
Learned counsel for the petitioner submits that a show cause notice was issued on 30.8.2012 on three counts alleging violation of the conditions of license. In reply dated 21. 09. 2012 the petitioner did not admit the violations. Each charge was explained. The order for cancellation dated 29.09.2012 is non– Patna High Court CWJC No.3602 of 2013 (2) dt.15-03-2013 speaking and cursorily rejects the explanation as not acceptable only. It is cryptic and displays no application of mind to the cause shown, why the explanation furnished was not acceptable. Reliance was placed on (2010) 13 SCC 427 (0ryx Fisheries Private Ltd. v. Union of India) in support of the submission. Reliance was further placed on (2006) 4 SCC 327 (Kerala Samsthana Chethu Thozhilali v. State of Kerala) to submit that even in cases for grant of license to deal in liquor, the State on the pretext that there can be no absolute privilege to deal in liquor, cannot violate Article 14 of the Constitution by cancelling the license arbitrarily. The original order of cancellation being non- speaking and unreasoned, the illegality cannot be cured by an Appellate or Revisional order. It was next submitted that the search and seizure leading to cancellation of licence was itself illegal and not in accordance with the procedure provided in law. No independent witness was present and had signed the seizure list as required under Section 85 of the Excise Act (hereinafter referred to as the Act) read with Section 100 Cr. P.C. Relying on (1979) 2 SCC (K.L. Subbayyav. State of Karnataka) it was submitted that the seizure itself being in an unauthorized manner, the cancellation of the license ipso facto becomes illegal. It was further submitted that Section 42 of the Act Patna High Court CWJC No.3602 of 2013 (2) dt.15-03-2013 provides for cancellation, suspension and penalty. Section 42(3) provides that in lieu of cancellation, suspension can also be ordered as punishment. There are no guidelines for exercise of these different discretionary powers, rendering it liable to arbitrariness and discriminatory orders in similar circumstances. The last submission was that Section 68 of the Act provides for compounding of offences. The request of the petitioner there under has wrongly been rejected with no reasons assigned. Learned counsel for the State opposing the application submits that there is no procedural infirmity in the decision making process. The reply to the show cause notice has been duly considered. Violation of the conditions of the license is not in dispute. Before the Appellate and the Revisional authority violation of the conditions of license was not denied and compounding was sought .Even if different punishments were prescribed, it was not ipso facto illegal. The subjective decision of the authorities did not call for interference in absence of any allegations for arbitrariness. It was lastly submitted that the cancellation of license presently was in exercise of powers under Section 42 (1) (c) of the Act for violation of the conditions of the license. The issue raised with regard to alleged illegality in seizure relates to criminal prosecutions initiated for violation under Section 47 of the Act when Section 85 shall come into play. Patna High Court CWJC No.3602 of 2013 (2) dt.15-03-2013 Presently there is no criminal prosecution. Compounding under section 68 is not permissible for offenses under section 42(1) (c) of the Act which stands excluded by legislative intendment. We have considered the submissions on behalf of the parties. The show cause notice was specific on allegations for violation of the conditions of the license. (a) Indian made foreign liquor was being sold in bottles of 180 ml and 375 ml. (b) The stock registers was not Updated. (c) Liquor was being served in bottles at the table instead of in pegs. The petitioner in reply to allegation (a) did not deny availability and sale in the licensed premises of 180ml and 375 ml liquor bottles contrary to the terms of the license. It was sought to be explained as occasioned by his alleged absence and alleged breakdown of a vehicle carrying liquor bottles belonging to another. No name of the owner, description of the vehicle, registration number, or date and time of the breakdown have been mentioned. The explanation being vague, the Court finds no infirmity in its rejection. With regard to (b) the petitioner unequivocally admitted that the stock registers were not up to date but took the defence of illness. Neither the nature of the illness or duration of Patna High Court CWJC No.3602 of 2013 (2) dt.15-03-2013 the illness has been mentioned much less is there any supporting medical evidence. The conclusion of the court is as in the preceding paragraph. On allegation (c) the petitioner contended that bottles were being shown as samples to customers. Presence of bottles on the table of the customer was admitted. There was no denial of the allegation that bottles were found on the tables being consumed directly instead of in pegs. We are satisfied to hold that the petitioner did not deny the allegations but sought to explain them which the authorities have found unsatisfactory. The acceptance of the explanation was the subjective jurisdiction of the authorities. The power of judicial review under Article 226 does not vest in it the jurisdiction to substitute its own views merely because it may be possible to do so. We are unable to arrive at the conclusion that in the facts of the case the order for cancellation is arbitrary because it is non-speaking. A speaking order is a facet of natural Justice. What shall constitute a speaking order will depend on the facts of the case. If the allegations are not denied, it would be sufficient to hold that the explanation given is not to the satisfaction of the authorities. If charges are admitted the passing of a reasoned order on the explanation was an empty ritualistic formality the Patna High Court CWJC No.3602 of 2013 (2) dt.15-03-2013 absence of which cannot vitiate the final order as observed in (1999) 7 SCC 332 (Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal) : “8….Giving of opportunity or an enquiry of course is a check and balance concept that no one's right be taken away without giving him/her opportunity or without enquiry in a given case or where the statute requires. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations? When she admitted she did not join M.Phil. course, she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made? In a case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order.” There can be no dispute with the proposition that even in matters for cancellation of liquor license Article 14 shall apply and the authorities are required to act fairly and reasonably. We have arrived at the conclusion that there has been no arbitrariness in procedure on part of the respondents in cancelling the license. In State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 considering the issue it was observed : Patna High Court CWJC No.3602 of 2013 (2) dt.15-03-2013 “34. But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of the State Government latitude in to its policy of regulating, determining manufacture and trade in liquor…..” Trade in liquor has always been treated as a class apart because of the deleterious effects on health of the individual and the public. Considerations which shall apply to issues with regard to liquor trade cannot be put and has never been put at the same high pedestal, anvil and constitutional protection as may be available to other different trades. In Nashirwar v. State of M.P., (1975) 1 SCC 29 it was observed as follows:-: “35. Trade in liquor has historically stood on a different footing from other trades. Restrictions which are not permissible with other trades are lawful and reasonable so far as the trade in liquor is concerned. That is why even prohibition of the trade in liquor is not only permissible but is also reasonable. The reasons are public morality, public interest and harmful and dangerous character of the liquor. The State possesses the right of complete control over all aspects of intoxicants viz. manufacture, collection, sale and consumption.” Oryx Fisheries (supra) is distinguishable on its own facts. It is related to a show cause notice disclosing a preconceived Patna High Court CWJC No.3602 of 2013 (2) dt.15-03-2013 determination and mind. It was held that a show cause notice is not an empty formality. The cause shown has to be duly considered and disposed by a reasoned and speaking order. The observations at paragraph 40 with regard to importance of reasons hardly need emphasis. But in a case where charges are admitted, giving of reasons would be superfluous. We concur with the submission on behalf of the State that in absence of any criminal prosecution under Section 47 of the Act, the procedure for seizure under Section 85 of the Act has no relevance to a case for cancellation of the license arising from violation of the conditions of the license. Merely because different punishments may be prescribed cannot by itself make the provision invalid. Moreover any challenge on that ground had to be specific in pleadings with a challenge to its vires. There are no such pleadings or specific challenge. If the Legislature while making provision for compounding, under section 68, specifically excluded its applicability to the cancellation of a license for violation of the conditions under section 42 (1 ) (c) of the Act, we see no error in the Appellate and Revisional authorities declining to consider the request for compounding. We find no reason to interfere with the order under Patna High Court CWJC No.3602 of 2013 (2) dt.15-03-2013 appeal. The application is dismissed. (Navin Sinha, J.) (Shivaji Pandey, J.) Md. Ibrarul/-