IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 2ND SEPTEMBER, 2008 / 10TH BHADRA 1930 WP(C).No. 25085 of 2008(J) -------------------------- PETITIONER: ------------ SISUPALAN, AGED 46YEARS, S/O NARAYANAN, SARASWATHY VILASAM, POTHENCODE, KEEZHTHONACKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.NIREESH MATHEW SRI.M.G.KARTHIKEYAN RESPONDENTS: ------------- 1. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 2. THE ASST. EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE CIRCLE INSPECTOR OF EXCISE, NEDUMANGADU, THIRUVANANTHAPURAM DISTRICT. 4. THE SUB INSPECTOR OF POLICE, NEDUMANGADU POLICE STATION, THIRUVANANTHAPURAM DISTRICT. BY GOVERNMENT PLEADER FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON 2/9/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.25085/2008 ----------------------------------------------------------- Dated this the 2nd day of September, 2008 JUDGMENT Challenge in this writ petition is against Ext.P5. By Ext.P5, following the direction contained in Ext.P4 judgment, the first respondent has finalised the proceedings confirming the cancellation of the licenses of four toddy shops in group No.1 of Aryanad Excise Range, of which the petitioner and others are the licensees. 2. The facts of the case are that, the licence in respect of T.S.Nos.1 to 4 of group No.1 of Aryanad Excise Range was granted to the petitioner and two others. The shops were all closed by the 3rd respondent for the reason that the licensees were not tapping 50 coconut trees for each of the shops. It is stated that Ext.P1 is a report given by the 3rd respondent on 2.5.2008 before the second respondent WP(c).No.25085/2008 2 stating that the shops are closed for the aforesaid reason. 3. According to the petitioner, while the shops were thus remaining closed, on 4.5.2008, the Sub Inspector of Police, Nedumangadu and party detected an abkari case from the premises of shop No.2 at about 7.55 p.m and seized 32 liters of coloured spirit and 78 liters of artificial toddy. Based on the seizure as above, Crime No.351/2008 of Nedumangadu Police Station was registered under Sections 8(1)(2) and 57(a) of the Abkari Act and four persons were arrested. 4. Based on the registration of the crime as above, Assistant Excise Commissioner recommended cancellation of the privilege that was granted and on that basis, Ext.P2 order was issued by the first respondent, suspending the privilege and licence of the toddy shops in Group No.1 and a show cause notice was issued to the licensees and requiring them to show cause why the licence should not be canceled under Section 26(b) of the Abkari Act read with WP(c).No.25085/2008 3 Rule 5(19) of the Kerala Abkari Shops Disposal Rules, 2002. On receipt of Ext.P3, the licensees submitted Ext.P3, their reply to the show cause notice. 5. Complaining of delay in finalising the proceedings initiated by Ext.P3, petitioner approached this court and filed WP(c).No.16160/2008. That writ petition was disposed of by Ext.P4 judgment directing that the first respondent shall finalise the proceedings pursuant to Ext.P2 order of suspension. Accordingly the first respondent initiated action and on behalf of the petitioner, his counsel was heard. In the meantime, the samples of the seized article were sent for analysis and the chemical analysis certificates dated 7.7.2008 were also obtained. Based on the materials available and taking into account the submissions made, the first respondent issued Ext.P5 order accepting the recommendation of the Assistant Excise Commissioner Thiruvananthapuram and considering the gravity of the offence and the violations committed by the licensees, WP(c).No.25085/2008 4 cancelled the licence of the shops in group No.1 of Aryanad excise range, issued in favour of the petitioner and others. It is challenging this order that the writ petition is filed. 6. Counsel for the petitioner contended that since admittedly the shop was remaining closed on 4.5.2008, and as recovery was effected from strangers, petitioner should not have been made liable. It is also his contention that rule 9(2) of the Kerala Abkari Shop Disposal Rules, has been stayed by this court and therefore this impugned proceedings placing reliance on this rule is invalid. Lastly it was argued that any rate, cancellation of licence of all the shops in the group is illegal and is disproportionate. 7. As far as the contention that since the shop was remaining closed on 4.5.2008, the licensee should not have been made liable for the recovery effected by the police party is concerned, admittedly Excise Department had ordered closure of the shop during the relevant time. But petitioner admits that recovery has been effected and there WP(c).No.25085/2008 5 is also no dispute that the recovery effected was from the licensed premises of T.S.No.2 of Group No.1 of Aryanad Excise Range. He has also no case that he did not have possession or control over the licensed premises. Therefore the fact of recovery, place of recovery and the article recovered is undisputed. 8. Question is whether in such circumstances a licensee can be proceeded against. In my view, once the aforesaid factual issues are established, as in this case, there is nothing illegal in proceeding against the concerned licensee and he alone is liable for the recovery effected from the licensed premises. That the shop was remaining closed on 4.5.2008 is immaterial, since admittedly recovery has been effected from the licensed premises, which is within the exclusive possession and control of the licensees only. The further plea that those arrested are strangers is also without any substance, so long as, recovery is from the licensed premises. WP(c).No.25085/2008 6 9. Yet another plea raised by the counsel for the petitioner is that Rule 9(2) of the Rules has been stayed by this Court. In my view, once the fact of recovery and the article recovered is spirit and artificial toddy from the licensed premises is accepted and that too, at a time when the shop was not functioning, that by itself should be sufficient for initiating proceedings against the licensee. In such a case, the chemical examination report and the conclusions therein, may be only additional materials. Relying on Ext.P6 judgment it was contended that unless the licensee is “charged with an offence”, he cannot be proceeded against. I cannot accept this plea, since in my view, judgment only lays down that unless a person is charged with an offence, he cannot be excluded from being granted the privilege and nothing more. In this case, the recovery effected is subsequent to grant of licence and therefore, the judgment does not come to the rescue of the petitioner. WP(c).No.25085/2008 7 10. It was contended that at any rate the licence of all shops ought not have been canceled. Once violation has been found and since the licensees are jointly and severally liable for the same it is for the authorities to consider the gravity of the misconduct and pass orders in the matter. Ext.P5 order and the statement filed in this case shows that considering the gravity of the offence found, cancellation of licence of all the shops was ordered by the respondent. I do not find any perversity or illegality in the view taken, warranting interference with that factual finding, under Article 226 of the Constitution of India. Writ Petition fails and is dismissed. ANTONY DOMINIC JUDGE vi. WP(c).No.25085/2008 8