IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WP(C).No. 28 of 2010(C) ----------------------------------- PETITIONER(S): ------------------------ JAYATHILAKAN, AGED 49 YEARS, S/O.ANANDAN, SATHYALAYAM HOUSE, CHEMMARUTHI MURI, CHEMMARUTHI VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. MR.M.G.KARTHIKEYAN RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REP.BY SECRETARY, TAXES (A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 4. THE EXCISE INSPECTOR, EXCISE RAGNE OFFICE, VARKALA, THIRUVANANTHAPURAM DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER MR.V. MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2010 ALONG WITH WPC NO. 37 OF 2010 AND WPC NO. 38 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28/2010 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CRIME AND OCCURRENCE REPARED IN CR.NO.30/2009 REGISTERED BY THE 4TH RESPONDENT. P2: COPY OF THE CHEMICAL ANALYSIS CERTIFICATE DTD. 28/08/2009 ISSUED BY THE ASST.CHEMICAL EXAMINER TO GOVT. OF KERALA. P3: COPY OF THE NOTIFICATION, G.O.(P) NO.24/2007/TD DTD. 14/02/2007 ISSUED BY THE GOVT. OF KERALA. P4: COPY OF THE NOTIFICATION,G.O.(P) NO.25/2007/TD DTD. 14/02/2007 ISSUED BY THE GOVT. OFKERALA. P5: COPY OF THE INTERIM ORDER DTD. 15/05/2009 IN SLP(C) NOS.11420- 11434/2009 PASSED BY THE HON'BLE SUPREME COURT. P6: COPY OF THE JUDGMENT DTD. 23/09/2009 IN WPC.NO.26744/2009 PASSED BY THIS HON'BLE COURT. P7: COPY OF THE ORDER NO.XA7-21605/2009 DTD. 23/09/2009 PASSED BY THE EXCISE COMMISSIONER. P8: COPY OF THE REPLY DTD. 11/11/2009 SUBMITTED BEFORE THE 2ND RESPONDENT. P9: COPY OF THE HEARING NOTICE DTD. 4/11/2009 ISSUED BY THE 2ND RESPONDENT. P10: COPY OF THE LETTER DTD. 19/11/2009 SUBMITTED BEFORE THE 2ND RESPONDENT. P11: COPY OF THE ORDER DTD. 9/11/2009 IN SLP(C) NO.27603/2009 PASSED BY THE HON'BLE SUPREME COURT OF INDIA. P12: COPY OF THE JUDGMENT DTD. 9/12/2009 IN WPC.NO.35521/2009 PASSED BY THIS HON'BLE COURT. P13: COPY OF THE ORDER NO.XA7-21605/09 DTD. 19/12/2009 PASSED BY THE 2ND RESPONDENT. P14: COPY OF THE ORDER DTD. 21/03/2007 IN WPC.NO.9037/2007 PASSED BY THIS HON'BLE COURT. P15: COPY OF THE NOTIFICATION NO.20076/LEG.A2/2009/LAW DTD.7/12/2009 ISSUED BY THE GOVT. OF KERALA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) Nos.28,37 & 38 OF 2010 -------------------------------------------------- Dated this the 1st day of February, 2010 J U D G M E N T The issue raised in these writ petitions being common, the cases were heard and disposed of by common judgment. 2. For convenience, I shall refer to the facts in WP(c). No.28/2010. 3. Petitioner herein was one of the licensees of toddy shop No.10 in Group No. II of Varkala Excise Range. Sample of toddy was taken from the shop on 17.8.2009, and on chemical analysis, it was found to contain 9.11% of ethyl alcohol. Based on this, on the allegation that Rule 9(2) of the Abkari Shops Disposal Rules, 2002, which was introduced with effect from 14.2.2007 was violated, Crime No.30/2009 was registered against the petitioner and his employees for offences under Section 57(a) and 56(b) of the Abkari Act. 4. Thereupon, the accused in the aforesaid case filed a writ petition was filed before this court challenging the validity of Rule 9(2) and the registration of the Crime No.30/2009. In the meantime, in the judgment in Komalan V. State of Kerala WPC.No. 28/2010 & Conn. :2 : (2009(2) KLT 744), the validity of the Rule was upheld by this Court. Following the judgment in Komalan's case, by Ext.P6 judgment the writ petition filed by the petitioner and others was dismissed. Against Ext.P6 judgment, a special leave petition was filed before the Apex Court. In the meantime, Special Leave Petition was also filed against the judgment in Komalan V. State of Kerala relied on in Ext.P6 judgment and in Ext.P5 interim order, the Apex Court had stayed the prosecution in regard to the violation prior to the filing of the writ petition by the respective petitioners therein. Similarly, in the SLP filed by the petitioner and others, Ext.P11 order was passed granting interim stay of prosecution, in regard to any violation prior to the filing of the writ petition. The aforesaid civil appeals are pending before the Apex Court. 5. While so, Ext.P7 show cause notice was issued to the petitioner, calling upon him to show cause why the licence shall not be cancelled under Section 26(b) of the Abkari Act read with Rule 5(19) and Rule 7(31) of the Kerala Abkari Shops Disposal Rules, 2002. Pending finalisation of the proceedings initiated by Ext.P7, the license was also ordered to be suspended. On receipt WPC.No. 28/2010 & Conn. :3 : of Ext.P7 notice, petitioner submitted Ext.P8 reply, explaining about the previous litigations resulting in Ext.P6 judgment, the appeal that is pending and also about Ext.P11 order passed by the Apex Court. He also sought time for production of certified copy of Ext.P11 order and requested that in the meanwhile licence may not be cancelled and that the suspension be revoked. 6. The respondent issued Ext.P9 notice requiring the petitioners to appear for personal hearing on 11.11.2009. Accordingly, petitioner appeared before the 2nd respondent and submitted Ext.P10, enclosing a certified copy of Ext.P11 order and requested that suspension of lien may be revoked and all proceedings be dropped. Thereafter, complaining that final orders were not passed pursuant to Ext.P7, petitioner approached this court and filed WP(c).No.35521/2009 resulting in Ext.P12 judgment by which the 2nd respondent was ordered to finalize Ext.P7 proceedings within 2 weeks of receipt of a copy of the judgment. In compliance with Ext.P12 judgment, the 2nd respondent passed Ext.P13 order dated 19.12.2009, the relevant portion of which reads as under. WPC.No. 28/2010 & Conn. :4 : “On careful examination of the case, two proceedings are initiated against the licensees. One is the criminal proceedings initiated against them under Section 57(a) & 56(b) of the Abkari Act. The said proceedings contemplates criminal prosecution to be adjudicated before a criminal court, conviction of which may lead to criminal guilt and imposition of punishment prescribed therein. It is these proceedings that the Hon'ble Supreme Court has stayed by its interim order staying the prosecution in regard to the violations. The other proceedings initiated against the licensee by the Commissioner of Excise is under Section 26(b) of the Abkari Act, read with Rule 5(19) and Rule 7(31) of the Kerala Abkari Shops Disposal Rules, 2002. Though the cause of action in respect of the criminal prosecution under section 57(a) & 56(b) of the Abkari Act and the suspension of licence under Section 26(b) of the Abkari Act is one and the same and the proceedings contemplated therein stands entirely as different footings. This is to mean that the order of stay of prosecution does not in any way give any right to the licensees to get the suspension of licenses revoked. In the above circumstances, considering the gravity of the offence and as recommended by Deputy Commissioner of Excise, Thiruvananthapuram the privilege and licence granted to the Toddy Shop Nos.7,8,9,10,11 & 12/09-10, included in Group NO.II/09-10 of Varkala Range are hereby cancelled as per section 26(b) of the Abkari Act and rule 5(19) & 7(31) of the Kerala Abkari Shops Disposal Rules, 2002. The Deputy Commissioner of Excise, Thiruvananthapuram is hereby directed to take WPC.No. 28/2010 & Conn. :5 : urgent steps to resale the Toddy shops as per rules.” 7. It is this order which is under challenge in this writ petition. 8. The main contention raised by the learned Sr. counsel appearing for the petitioner is that since the prosecution is stayed by the Apex Court as per Ext.P11 order referred to above, the petitioner is not disqualified from holding the licence. He also relied on paragraph 13 of Ext.P14 common order passed by this court in WP(c).No.9037/2007 and connected cases. For these reasons according to him, the impugned order calls for interference. 9. The learned Government Pleader appearing for the respondents resists the contentions of the petitioner. According to the learned Government Pleader, the interim order against the cancellation of licence was one of the prayers sought for by the petitioner in the civil appeal in which Ext.P11 order was passed. It is stated that the Apex Court having passed the interim order confining itself only to stay of prosecutions, it is not open to the WPC.No. 28/2010 & Conn. :6 : petitioner to seek any order against Ext.P12 in a writ petition filed before this court. It is also his contention that Ext.P14 order was passed in the context of the judgment in State of Kerala V. Unni(2007(1) KLT 151), invalidating Rule 9(2) as it stood then and that Rule 9(2) as it presently stands, having been introduced with effect from 14.2.2007, Ext.P14 order can have no relevance at this distance of time. It was also contended that upholding the validity Rule 9(2) as it presently stands, a Division Bench of this court in Komalan's case (supra) held that if ethyl alcohol, though a natural ingredient, exceeds the prescribed limit, the excess quantity is deemed to have been added and that it being a foreign substance, which increases the intoxicating quality, the reasonable view that can be taken in terms of Section 57(a) is that the substance added is a foreign ingredient. It is stated that a Division Bench of this court having held that in a case of this nature Section 57(a) is attracted, this court should abide by the said judgment. Reliance was placed on the judgment of this court in Abdu Rahiman V. District Collector, Malapppuram (2009 (4) KLT 485) to contend that this court shall follow the Division Bench judgment even if the said judgment has been stayed by WPC.No. 28/2010 & Conn. :7 : the Apex Court. 10. In reply the learned Senior Counsel for the petitioner pointed out that Ext.P14 order referred to supra is not merely an interim order but has attained finality for the reason that writ petitions were later disposed of in terms of the interim order and that the judgment was confirmed by the Division Bench and also the Apex Court. 11. In my view there are two hurdles against the petitioner. First one is that, in the SLP filed by the petitioners before the Apex Court against Ext.P6 judgment, an interim order preventing the State from canceling the licence was sought. A copy of the Special Leave petition made available by the learned Government Pleader shows, as grounds for interim relief, that the following pleadings have been raised in the special Leave petition. “In view of the registration of crime for offence punishable under Section 57(a) & passing of the impugned judgment, the petitioners licenses will be cancelled by the Government since proceedings under Section 57(a) is a disqualification for getting a license under the Rules. Apart from that the petitioners will have to face prosecution in view of the registration of crime against them under Section 57(a). The interim licenses issued to the petitioners will expire on 30.6.2009 and allotment will be started WPC.No. 28/2010 & Conn. :8 : on 22.6.2009. If the operation of the impugned judgment is not stayed, the licenses of the petitioners may not be renewed though all other licenses will get the renewal. Therefore it is in the interest of justice that this Hon'ble including the suspension/cancellation of license of toddy shops of the petitioners, pending disposal of the above SLP.” 12. It was considering the aforesaid pleadings and prayer that the Apex Court passed Ext.P11 interim order confining the said order only against prosecutions. Therefore this is a case where the petitioner had sought an interim order from the Apex Court protecting himself against cancellation of licence and the Apex Court did not pass any interim order as sought for. Therefore, if at all petitioner has to seek an interim order against cancellation of licence, he will have to move an appropriate application before the Apex Court itself and when the Apex Court is seized of the matter, it is impermissible for this court to entertain a prayer as now sought for in this writ petition. 13. The 2nd hurdle that the petitioner has is the judgment in Komalan V. State of Kerala(2009(2) KLT 744) Rule 9(2) of the Disposal Rules 2002 as it now stands has been upheld by this court in that judgment. In that judgment the Division Bench WPC.No. 28/2010 & Conn. :9 : has held that if ethyl alcohol exceeds the permissible limit notified by the Government, it amounts addition of a foreign substance attracting Section 57(a) of the Abkari Act. Although, the Apex Court has passed Ext.P11 order, as far as this court is concerned this judgment rendered by the Division Bench being a binding precedent, this court is bound to follow that judgment. It has so held by the division Bench of this court in Abdu Rahiman V. District Collector, Malapppuram (2009(4) KLT 485). For that reason also this court will not be justified in entertaining this writ petition. 14. For the above two reasons, I decline to entertain these writ petitions and the contentions raised by the petitioners in these writ petitions in all other respects are left open to be urged in appropriate proceedings. Writ Petitions fail and are dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 28/2010 & Conn. :10 :