G. Anka Rao v. The Anti Corruption Bureau

Order

This writ petition is filed seeking to issue a writ more particularly one in the nature of writ of mandamus declaring the action of the respondents 1 to 3 in interfering with the business that is being carried on by the petitioners as per the licences issued in Form A-4 and further in orally instructing the 4th respondent not to release the stocks to the petitioners even though the licences granted in their favour are in force as being illegal, arbitrary, unjust, without jurisdiction and violative of fundamental rights and consequently direct the respondents not to interfere with the business of the petitioners.

2. The case of the petitioners, in brief is as follows:-

3. In exercise of the powers conferred under the Andhra Pradesh Excise (Lease of Right of Selling by Shop and Conditions of Licence) Rules, 2005, for short, “the Rules”, the District Collector, Mahabubnagar issued a gazette notification inviting bids for grant of lease for sale of Indian liquor and foreign liquor by shops and in pursuance thereof, the petitioners participated in the auction and became the highest bidders in respect of the shops shown in Annexure-A, (filed along with this petition) the excise authorities also granted licences in favour of the petitioners for a period of two years from 1-7-2010 to 30-6-2012. As per the Rules, the licensee has to take the liquor and also transport permit from the 4th respondent and the licensee is permitted to sell the same in the licensed premises. The petitioners have not contravened any of the provisions of the AP Excise Act or the Rules made thereunder. The licences granted in favour of the petitioners are valid and still in force.

4. The officials of the ACB conducted searches at several places spread over the entire state of Andhra Pradesh and seized certain records and material and the same was submitted before the II Addl. District Judge for SPE and Special Cases, Hyderabad on 21-12-2011.

After scrutinizing the seized records and material, separate FIRs have been filed basing on the place of alleged offence. The petitioners are not accused in any of the crimes that are registered by the ACB. On the ground of conducting enquiry, the ACB officials are visiting the premises of the petitioners’ business periodically and are coercing the petitioners and their employees to come over to the ACB office. There is no material before the respondents 1 to 3 to implicate the petitioners in the offence. Since the petitioners are not coming over to the office of the ACB, the respondents 1 to 3 gave direction to the 4th respondent not to release the liquor stocks to the petitioners. The action of the respondents 1 to 3 in directing the 4th respondent not to release the stocks to the petitioners for sale in their licensed premises is not legal and the same is arbitrary and contrary to the provisions of the AP Excise Act and the Rules made thereunder. As per the Rules, the stock of liquor has to be taken by the licensee or his noukarnama holder from the 4th respondent and as long as the licence granted in favour of the petitioners is in force, the 4th respondent is obligated to release the stocks in favour of the petitioners who are the licensees or to their noukarnama holders. When the noukarnama holders of the petitioners visited the depot of the 4th respondent, the staff of the 4th respondent refused to release the stocks on the ground that they received oral instructions from the officials of the ACB not to release the stocks in favour of the petitioners’ shops. The respondents 1 to 3 are insisting for the presence of the petitioners or their noukarnama holders to visit their office for the purpose of enquiry. The action of the respondents 1 to 3 in insisting for the presence of the petitioners or their noukarnama holders for the purpose of enquiry is wholly illegal and arbitrary and contrary to the provisions of AP Excise Act and the Rules made thereunder.

5. The respondents 1 to 3 filed counter affidavit in connected writ petition being WP No.13640 of 2012 and the same counter is to be read for the present writ petition also. The 3rd respondent filed counter affidavit on his behalf and also on behalf of the respondents 1 and 2. Their case is that they never directed the 4th respondent not to release the liquor stock to the petitioners and that allegation is absolutely false. The 3rd respondent has only addressed a letter to the Depot Manager, APBCL to issue the stocks to the licensees and not to other persons. The said letter has been addressed only to secure the presence of the licensees their examination in connection with the ongoing investigation as the licensees could not be traced in their available addresses in spite of the best efforts made by respondent no.3. Several irregularities have taken place in the auction process for A-4 wine shops in Mahaboobnagar district and searches were conducted at Excise Superintendents Offices at Gadwal, Nagarkurnool and Mahaboobnagar of Mahaboobnagar District on 5-3-2012 and records pertaining to auction of A4 wine shops for the excise policy period 2010-2012 were seized under a cover of panchanama in Cr.No.2/RCO/ACB/HR/2012 of ACB, Hyderabad Range. On scrutiny of records related to auction of A-4 wine shops, disclosed that several irregularities took place in the auction process in Mahaboobnagar District. Tenders of benami persons were accepted, which is against the Rules and the same were got filed by the influential persons, who are financially sound and to have control over the wine shops during the auction conducted for the lease period 2010-

2012. The Joint Collector (CS), Mahaboobnagar District furnished information that out of 169 licence holders of A4 wine shops in the district, 75 licence holders belong to other districts. On enquiry, 19 persons belonged to Gurajala of Guntur district and they hold the licence in their names. The Joint Collector (CS), Guntur district has furnished information that out of 19 licence holders of wine shops, 10 licence holders are having white ration cards and whose income does not exceed Rs.75,000/- per annum.

6. All the licence holders who are possessing white ration cards have quoted the bid amount ranging from Rs.73 lacs to Rs.213 lacs. Some persons/syndicates accomplished their object of gaining control over most of A4 shops in the district by the above mentioned methodology with the active assistance and collusion of the officials of the Excise department right from the stage of auction and doing business in which the turnover is running to lacs of rupees. As per the circular of the Managing Director, APBCL, the licensee or nowkarnama holder of the wine shop has to lift the liquor stock from the APBCL depots. But the representatives of the syndicate leaders are coming to APBCL Depots and lifting the liquor stock. That to identify, the actual person behind the syndicate, the Manager of APBCL, Mahaboobnagar, was requested to insist for the presence of licencee or his nowkarnama holder while lifting the liquor stocks. Though the petitioners participated in auction of A-4 wine shops and became the successful bidders for the lease period 2010-2012 and paid the licence fee as per the Rules, in fact, all the petitioners are benamidars of some other persons who are maintaining the syndicate and at no point of time, the petitioners came to APBCL Depot for drawing the liquor stock and therefore the Depot Manager APBCL was asked to follow the guidelines as intimated in the circular issued by the Managing Director of APBCL. During the course of investigation, it came to light that most of the licencees were in possession of white ration cards (BPL cards) and therefore inquiry is being made to know the actual person in maintaining the liquor syndicate who is having wine shops on benami names and doing the business. The collusion, nexus and conspiracy between the white ration card holders, liquor syndicate leaders and excise officials involved is being probed. As per their information the licensee or his nowkarnama holder was not lifting the stock from the Depot of APBCL, a letter dated 23-4- 2012 was addressed to the Depot Manager, APBCL, stating that while issuing the liquor stock, the presence of the licensees may be insisted and stocks should not be released to the persons other than the licensees so as to secure the presence of the licensees for recording their statements as part of the investigation process. Their request was tune with the Circular No.K/92/2006/Exciselease/2010- 12/946102, dated 26-6-2010 issued by the Managing Director of APBCL, that stocks shall have to be issued only to the licence holder or their nowkurnama holder of the respective shop. The presence of A4 shops’ license holders is to be secured and they are to be examined to elicit the required facts. As per the letter addressed by the Joint Collector (CS), Mahabubnagar district, out of 169 licence holders of A4 wine shops in the district, 75 license holders of A4 wine shops are outsiders of Mahabubnagar Distirct and they are the residents of Nalgonda, Ranga Reddy, Hyderabad City, Kurnool and Guntur Districts and as a consequence of this, the petitioners presence could not be secured for their examination. The petitioners 1 to 3 who are holding white ration cards participated in the auction and stood as highest bidders for licence of A4 wine shops for Rs.88,09,999/- and Rs.73,09,999/- respectively. As per the letter of Collector (CS), the white cards will be issued only to persons who’s annual income is Rs.75,000/-. That a person who’s annual income is less than Rs.75,000/- whether he could be in a position to invest such huge amount towards bid amount and this aspect of the matter has to be investigated by them and there is no necessity for the petitioners to virtually close the business. As per the circular issued by the APBCL, the licensee or nowkarnama has to be present for lifting the stock from the APBCL and insisting the presence of the petitioner or their nowkarnama is not at all against any law or the circular issued by the APBCL.

7. The 4th respondent filed counter affidavit wherein the 4th respondent denied that respondents 1 to 3 have directed him not to release the stocks to the petitioners. It is stated that respondents 1 to 3 have only instructed the 4th respondent to properly scrutinize the indent placed and inform them in the event of any discrepancy and that the 4th respondent never refused to release the stocks to petitioners when their naukarnama holders visited the depot on 3-5-2012. It is stated that the respondent no.4 released the stocks pertaining to the petitioners 1 and 4 on 4-5-2012 and the stocks pertaining to the petitioners 2 and 3 on 8-5- 2012 and as on the date of filing the writ petition, there are no indents placed by the writ petitioners pending with the 4th respondent. It is further stated that the allegation that the 4th respondent refused to release the stocks is totally false.

8. Sri Vedula Venkata Ramana, learned senior counsel representing Sri C. Subodh, learned counsel for the petitioners, strenuously contended that so far as the licenses granted to the petitioners have not been cancelled and when there is no allegation of violation of any of the provisions of the AP Excise Act or the Rules made thereunder, the respondents 1 to 3 are not justified in directing the 4th respondent not to release the stocks to the petitioners. It is also contended that the petitioners are not the persons falling under any of the clauses stipulated under Rule 8 of the Rules as to prevent them from lifting the stocks.

9. On the other hand, Sri R. Ramachandra Reddy, learned Standing Counsel-cum-Spl. Public Prosecutor for ACB Cases, submitted that the petitioners are not the genuine persons doing the business, but they are the benamies of some persons as the benamies do not have the fiscal capacity to pay the licence fee. It is further submitted that when the respondents 1 to 3 could not trace the residential addresses of the licencees or the addresses of their noukarnama holders, they have asked the 4th respondent to insist for the presence of the licencees or their noukarmams holders at the time of lighting the liquor stocks, which was in fact in tune with the circular issued by the APBCL. Learned Standing Counsel further stated that even in the present writ petition, the petitioners have not furnished their residential addresses but they have given the addresses of the wine shops. It is also submitted that the petitioners have not placed any indent and no indent is pending with the 4th respondent and, therefore, the allegation that the 4th respondent has refused to release the liquor stocks is incorrect. In support of his contention that the petitioners are benamies, learned Standing Counsel has also shown the photographs across the bar and photographs produced it is evident that some of the petitioners are living in small sheds.

10. As seen from the counter affidavit filed by the 3rd respondent, the Joint Collector (CS), Mahaboobnagar District, furnished information that out of 169 licence holders of A4 wine shops in the district, 75 licence holders belonged to other districts and on enquiry it came to light that 19 licence holders are from to Gurajala of Guntur district and out of them 10 licencee holders are having white cards. As per the set norms, a person is given white card only if his income does not exceed Rs.75,000/- per annum. It is incomprehensible as to how some of the licencee holders who are white card holders became the highest bidders in the auction and paid huge licence fee. There is also no answer forth coming from the learned counsel for the petitioners. Learned Standing Counsel for the respondents 1 to 3 submitted that most of the petitioners who are white card holders are banamies and have no means to pay the licence fee and the entire transaction is being done benami.

11. The learned counsel for the petitioners contended that if at all the respondents 1 to 3 came to the conclusion that there is some incriminating material against the petitioners, they ought to have issued summons under Section 91 CrPC and summon the petitioners to their office and ought to have proceeded as per law.

12. The only point that arises for consideration is whether there are any merits in the writ petition ?

13. In this connection, it is relevant to refer to Rule 9 of the Rules. Rule 9 of the Rules, reads thus:- “9. Benami tenders not allowed:--No person shall submit tender on behalf of any other person unless he holds a power-of- attorney from such person.”

14. A reading of the above rule coupled with the writ affidavit averments and also the counter affidavits filed by the respondents 1 to 3 and the 4th respondent it is clear that some of the persons who have no financial status and capacity to participate in the auction for award of liquor shop on licence have been pressed into service as benamies by vested interested persons. It is the duty of the concerned officials, excise officials and investigating agency to verify whether the licences are genuine and whether the licences were obtained contrary to Rule 9. The petitioner should furnish all their particulars such as residential address and particulars of their financial status, their source of income, i.e., whether they had capacity to pay the required amount for obtaining licences. They should prove that they are genuine licensees. Unless they prove the same, the authorities are justified in not releasing the stocks. Along with the indents, they must furnish all the required information. There is nothing wrong with the excise officials in supplying the copies of such documents or showing their information to the ACB officials. In fact, there should be proper cooperation and coordination between the various departments in preventing or continuing the offences of any nature. If at all the petitioners are not the genuine licensees, they must furnish the required information as to the person who actually invested the amount and doing business in their name. Every citizen is bound to cooperate with the investigating agency and furnish true and correct information. The ultimate goal should be to find out the truth.

15. The circumstances under which every person is bound to assist the Magistrate or the Police Officer reasonably demanding his aid are enumerated under Section 37 and 38 Cr.P.C. Section 39 of Cr.P.C. envisages that every person aware of the Commission of, or of the intention of any other person to commit, any offence punishable under certain sections shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such Commission or intention. Section 40 of the Cr.P.C. envisages that every officer employed in connection with the affairs of a village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever is nearer, any information which he may possess relating to certain offences. Section 91 of Cr.P.C. empowers the investigating officers to summon any person to produce documents or other information required for the purpose of investigation. Similarly, they can approach the authorities for letters, postcards, telegram or other document or any parcel or thing which are in the custody of the postal or telegraph authorities under Section 92 Cr.P.C.

16. Thus, the authorities should exercise the powers under Section 91 and 92 or 94 of Cr.P.C. as and when required in accordance with the procedure. Every investigating officer can question any witnesses and under sub-section 2 of Section 161 Cr.P.C., every such official is bound t o answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

17. An analysis of the facts it is clear that these licensees are not genuine and they are benamies and therefore, Rule 9 of the Rules has been violated. In that case if the 4th respondent insists the licensees to present themselves or their noukarnama holders to place the indent and collect the liquor stocks cannot be said to be illegal or arbitrary. Under Rule 9 of the Rules, it is the duty of the licensees to give their residential address and particulars of their financial status, their source of income etc. Non furnishing their residential addresses and not placing the indent and lifting the stocks personally by the licensees or their noukarnama holders is clear violation of Rule 9 of the Rules. As the stated by the learned Standing Counsel for the respondents 1 to 3, the petitioners have not stated their residential addresses in the cause title of this writ petition and that itself shows that the petitioners have not come to the Court with clean hands. Of course, respondents 1 to 3 in exercise of Section 91 CrPC or under any other provision of law summon the petitioners or the licensees for the purpose of enquiry as it appears prima facie from the report of Joint Collector, the petitioners have been doing the business benami. Since they are white ration card holders, unveiling the curtain becomes necessary when certain incriminating material is available, but the same has to be done in accordance with the rules and established procedure.

18. For the reasons stated supra, I do not find any illegality or irregularity in the action of the respondents 1 to 3 in insisting the presence of the licensees or their noukarnama holders to be present personally to place the indent and lift the stocks. However, if the licensees establish their genuine identity and capacity to obtain licences and if the excise officials are satisfied that Rule 9 of the Rules is not violated, then they may release the stocks as per the indents submitted by the genuine licensees.

19. The writ petition is accordingly dismissed at the admission stage itself. As a sequel, the WPMPs shall stand closed. No order as to costs. ____________________ B. Chandra Kumar, J Dated: 16-5-2012 Nrg.