IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.13303 of 2010 Date of decision: 29.7.2010 Rajesh. -----Petitioner. Vs. State of Haryana and others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Arun Yadav, Advocate for the petitioner. --- ADARSH KUMAR GOEL, J. 1. This petition seeks quashing of order imposing penalty of Rs.19 lac, as upheld by the appellate authority vide order dated 10.6.2010, Annexure P-20, under the Punjab Excise Act, 1914 (for short, “the Act”), as applicable to the State of Haryana. 2. Case of the petitioner is that he was allotted liquor vend at Dabri Anangpur in the year 2009. Since the petitioner faced difficulty in running the vend at Lakkarpur Phatak, which was near the temple, he shifted the vend at Khasra No.12 which was within the revenue limits of Village Anangpur. He was served with notice Annexure P-4, alleging unauthorised storage of liquor in violation of the rules and calling upon the petitioner to show CWP No.13303 of 2010 cause why penalty be not imposed under Section 61(1)(i) of the Act for contravention of provisions of the Act and why liquor recovered be not confiscated. After considering the reply of the petitioner, order dated 16.7.2009, Annexure P-12, was passed imposing penalty of Rs.19 lac and confiscating the liquor unauthorisedly stored. Following findings were recorded:- “I have gone through all the record, statement of the above named offenders and examined the issue from Sr. No.1 to 3 above meticulously. It is pertinent to discuss here that Mr. Rajesh has simply signed on the letters which are drafted by other or signature may be of someone else as there is difference in signature. The signature vary from letter to letter. He is new to this place and has applied for the first time as per his reply. Connivance of Mr. Rajesh, Girwar, Davender Gupta and Kusum Aggarwal is proved from the detailed facts and circumstances. Shri Gagan Deep was looking after this stock as he was their employee. The main plan was to establish vend at the location of Shooting Range which the original licencee did not operate as MCF had demanded a hefty sum of about Rs. 45 lacs as rent @ 15% of the licence fee of Rs.2.92 Crores. Letter of Shooting Range licensee is placed on the file as Annexure-7. Seeing the area as empty Sh.Rajesh has tried to open the vend at shooting range road earlier which was closed by Sh.R.S.Nain, EL on 19.4.2009 and Forest Department also issued notice to him as per his version. This vend is of Rs.39,90,000/-where as shooting range vend was of Rs.2.92 Crore. On the vend of shooting range road eight tenders were received whereas Sh.Rajesh 2 CWP No.13303 of 2010 was only tender of Dabri Anangpur vend. The reserve price of L-2, Shooting Range Road was fixed by the department at Rs.1.26 Crore against which higher tender was of Rs.2.92 Crore whereas, the reserve price of Dabri Anangpur was fixed at Rs.39.50 Lac. Had it been the location of the Shooting Range Road as per his claim the reserve price must have been higher and there must have been a number of tenders and that too far about Rs.2.92 Crore but that was not the case. Every one knew that what is the location of Shooting Range Vend and what is the location of Dabri Anangpur. Dabri Anangpur has also functioned for the last 10 years at a place near Delhi Border near Lakarpur Chungi No.3 near D Block of Lal Kund where there was a Dabri (Pond- Pokhar) and that is why the place is popularly known as “Dabri Anangpur”. After close of the vend at Shooting Range Road on 19.4.2009 he submitted site plan for vend in Anangpur near Lakarpur near Dayal Bagh at Delhi Border where his vend was running successfully but as per his version licence of L-2, Dayal Bagh has closed and locked his vend and even after this incident he purchased liquor from Sh.Davender Gupta which strongly leads me to the conclusion that Sh.Davender Gupta or his wife Kusum Aggarwal has either ulnofficially opurchased L-2 Vend of Dabri Anangpur or major share from Mr. Rajesh that is why Sh.Davender Gupta has taken so much interest and stocked liquor at an un-approved place and his employee was looking after the stock. Thereafter, Sh.Davender Gupta joined hands with Mr. Rajesh and choose the lucrative site of Shooting Range and stocked liquor there which is clear from the statement 3 CWP No.13303 of 2010 of Gagan Deep Salesman of Kusum Aggarwal, L-1. In the event the stock was not seized by the department they could approach the Civil Court and obtain interim stay by misleading the Court as Smt. Kusum Aggarwal has done earlier for two vends during 2008- 09 and for one vend in 2009-10. The reply submitted by above named persons, all of them have failed to give the satisfactory explanation on any of the issues. The liquor seized from the plot is not the location of L- 2 Licencee Dabri Anangpur nor the site has been approved. The application dated 8.6.2009 for change of location stands filed. Storage of liquor even by a licencee at an unauthorised place without any approval from the Excise Authorities is an offence punishable under Section 61(1)(i) of the Punjab Excise Act, 1914 being unlawful possession at an unlawful premises for contravention of provisions of Section 61(1)(aaa) of the Act. If Sh.Davender Gupta had no relation with the liquor then why he threatened the inspecting officials not to seize the liquor from the plot. Sh.Davender Gupta also could not explain that why he has stored the liquor in a vacant plot as stated by Gagan Deep in his statement. It also give suspicion that when the L-2 Vend was sealed by L-2 licencee of Dayal Bagh which is in the name of Kusum Aggarwal wife of Davender Gupta why he did not approach the police and file a complaint against her. As per reply of Sh.Rajesh and photocopy of L-34 Sr. No.284 dated 7.6.2009 he has purchased liquor from Kusum Aggarwal, L-1, A-One Wine Sale Agency, Faridabad who is also L-2 licencee of Dayal Bagh aznd had sealed the vend of Mr. Rajesh, L-2 Licencee of Dabri Anangpur illegally. When Smt. Kusum 4 CWP No.13303 of 2010 Aggarwal L-2 licensee of Dayal Bagh had scaled his vend then why he has made purchased from Kusum Aggarwal, L-1, licencee even when the permit No.050/3519 was originally in the name of Om Parkash Singla, L-1 Licence. Neither Shri Davender Gupta and Kusum Aggarwal for whom Shri Gagan Deep was looking after the stock of liquor in his possession and has stated that he is saleman of Kusum Aggarwal L-1 nor Shri Rajesh L-2 Licensee of Dabri Anangpur who had later on claimed that Gagan Deep was his saleman from 1.4.2009, have produce Gagan Deep nor have given his address. This may be due to their fear that truth may not come out. All the facts and incidents lends me to the conclusion that offence No.2, 3 & 4 are not telling the truth and are involved in hatching the plot of illegal storage of liquor at an un-approved place and all four offenders are involved in an offence of illegal possession of liquor and have committed offence under4 Section 61(1) (aaa) and thus, have rendered themselves liable for penal action under clause (i) of Sec.61(1) of the Punjab Excise Act, 1914.........” 3. On appeal, the said findings were affirmed. During pendency of appeal, the petitioner filed suit for injunction with application for interim injunction, to restrain the department from interfering with the vend at the alleged unauthorised location. Though the trial Court granted injunction by order dated 20.10.2009, the said order was vacated by the appellate Court with the following observations:- 5 CWP No.13303 of 2010 “10. It is undisputed that plaintiff is licencee to run the L-2 Vend of Dabri Anangpur within revenue limits of Dabri Anangpur at Delhi Border. There may be very large area within the revenue limit of Dabri Anangpur at Delhi Border, but it does not mean that the licencee can be allowed to run the vend in that area at his whims. The site where the vend can be run within that area, is to be approved by the Excise Department. Learned lower Court overlooked the contention of defendant appellant that L-2 Vend of Dabri Anangpur i.e. the vend allotted to the plaintiff-respondent had been functioning earlier, near Chungi No.3, D Block, Lal Kuan, near Delhi Border for the last 10 years, which the plaintiff knew very well. Though, he opened the vend at the location but due to some local resentment, plaintiff submitted a site plan (Annexure D1) to run the vend at a place near Dayal Bagh. Said site was approved by the Department. The site plan (Annexure D1) reveals that it duly bears the signatures of plaintiff. Once a site plan submitted by the plaintiff was approved by the department he cannot be allowed to change the location, without approved by the department he cannot be allowed to change the location, without approval of the department. The site plan Annexure M on which plaintiff is allegedly running his vend at place marked by letter ABCD, is entirely different from the site shown in site plan Annexure D1, which was approved by the department i.e. defendant. This site shown by letters ABCD in Annexure -M may be falling within the revenue estate of Anangpur as reported by the Patwari, but this does not mean that plaintiff can be allowed to run the vend for that spot, without the 6 CWP No.13303 of 2010 approval of the defendants. It is specific stand of defendant-appellants that said Khasra No.12 as shown in site plan Annexure M falls within the location of another L-2 Village, location of which is fixed from Delhi Border Police Check Post upto Hill View Hotel on Shooting Range Road. 11. In fact, the pleadings of the plaintiff would reveal that he knew very well that the site as shown by him in Annexure M falls within the limit of shooting Range Vend, as he has taken the plea that he was allowed to run the vend from vend as the Shooting Range Vend had not been allotted to anyone nor it was objected by anyone. However, he has failed to place on record the approval granted to him to run the vend from the site shown in Annexure M. The site plan Annexure M does not bear signatures of any of the officer of the defendants department. On the other hand, the site which was approved by the department i.e. Annexure D1 bears the signatures of the plaintiff as well as the DETC. 12. Plaintiff tried to take benefit of an order dated 6.8.2009 of Excise and Taxation Commissioner, Haryana, however, perusal of the said order (Annexure P) reveals that it was sent to DETC (Excise) Faridabad and he was requested to direct L-2 Licence of Dabri Anangpur to strictly operate his vend from location allotted to him, which is within revenue limits of Dabri Anangpur at Delhi Border. The said letter instead of supporting the case of plaintiff goes against him as DETC had been directly by way of this letter to ensure that the plaintiff runs the vend from the allocated place. 7 CWP No.13303 of 2010 13. Having regard to the aforesaid discussion, I am of the considered view that learned lower Court fell in grave error by ignoring the site plan (Annexure D1) submitted by the plaintiff and approved by the appellants-defendants, on which plaintiff was allowed to run the vend.” 4. We have heard learned counsel for the petitioner. 5. It is not disputed that the order of the appellate Court in Civil Suit became final before decision of the appeal. The same has been relied upon by the appellate authority. It has been concurrently found by the departmental authorities as well as by the appellate Court in Civil Suit that the petitioner violated the statutory provisions. The said findings are not shown in any manner to be erroneous on facts or in law. In these circumstances, no ground is made out to interfere with the impugned orders. The petition is dismissed. (ADARSH KUMAR GOEL) JUDGE July 29, 2010 ( AJAY KUMAR MITTAL ) ashwani JUDGE 8