CWP No. 528 of 2010 1 In the High Court of Punjab and Haryana, Chandigarh. CWP No. 528 of 2010 (O&M) Date of Decision: 04.03.2010 Ashoka Distillers & Chemicals Pvt. Ltd. ....Appellant. Versus State of Haryana and others ....Respondents. Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Sandeep Goyal, Advocate for the appellant. Ms. Ritu Bahri, Sr. DAG, Haryana for the respondents. ... Alok Singh, J. 1. By way of present writ petition, the petitioner is invoking jurisdiction of this Court under Article 226 of the Constitution of India, challenging order dated 16.5.2007 (Annexure P-11), 26.9.2007 (Annexure P-16) and 1.4.2009 (Annexure P-18) passed by the Excise and Taxation Commissioner, Haryana – respondent No.4. 2. Brief facts of the present case are that the petitioner is a State revenue oriented unit physically controlled and supervised by the Excise Department. The petitioner is engaged in the manufacturing and sale of potable and non-potable siprit and in its course, country liquor is also prepared as per the specification provided by the Excise Department. The CWP No. 528 of 2010 2 Excise and Taxation Officer (Karnal) granted excise permit No.94 in Form No.32 dated 16.4.2002 in favour of Manoj Kumar, L-13 Licencee for import and transport of 2700 PL of country liquor from the petitioner – distillery. Manoj Kumar, L-13 Licencee armed with excise permit No.94 L-13 in Form No.32 approached the petitioner – company to purchase and transport 2700 PL country liquor and paid Rs.13,500/- towards excise duty. The petitioner – company prepared necessary Invoice No.155 dated 24.4.2007, indicating therein total 600 cases, which included 350 cases quarts, 100 cases pints and 150 cases nips. Along with invoice, GR was also issued from M/.s Parkash Transport bearing No.2045 dated 24.4.2007 for transportation of excise goods from Hathin to Karnal. Excise pass was also obtained by Manoj Kumar – respondent No.5 from the Assistant Excise and Taxation Officer, deputed in the distillery by the excise authority in Form No.D-20-A as per Rule 14 of the Punjab Distillery Rules, 1932 for supply of 2700 PL of country liquor. Lorry containing 2700 PL of country liquor was issued outward gate pass dated 24.7.2007 by the petitioner - distillery. On 25.4.2009, the Assistant Excise and Taxation Officer, Karnal, checked the vehicle and detained the vehicle on the ground that the vehicle has reached the destination 9 hours late than the time prescribed; on physical verification of the goods, Batch numbers of pints and nips were found different in the excise pass than the liquor loaded in the vehicle. The petitioner was served a notice dated 25.4.2007, asking the petitioner to appear on 7.5.2007. It was clarified by the Excise and Taxation Department that a certificate was issued by officer in charge, Ashoka Distillers and Chemical Pvt. Ltd., who is an officer of the rank of AETO in the Excise and Taxation Department, clarifying that due to oversight mistake batch CWP No. 528 of 2010 3 No.14 was not mentioned in the said pass, which may be included row. However, vide order dated 16.5.2007, penalty of Rs.9 lacs under Section 61 (aaa) of the Punjab Excise act, 1914 (hereinafter referred to as the 1914 Act) was imposed on the ground that the petitioner has evaded excise duty on 250 cases of country liquor and also made an attempt to cover up the gap of 250 cases, which created purposely at l-13, Faridabad. 3. Aggrieved by the order passed by the DETC dated 16.5.2007, appeal was preferred before the Excise and Taxation Commissioner. The petition was not heard by the appellate authority. However, copy of order dated 26.9.2007 purportedly having been passed by the appellate authority was sent to the petitioner. The appellate authority vide order dated 26.9.2007 not only confirmed the order of penalty but also directed the DETC (Excise), Faridabad/Karnal to lodge an FIR against the officer of the petitioner - company who had wrongfully issued certificate dated 24.4.2007. Review petition against the order of the appellate authority was also dismissed vide order dated 1.4.2009. All these orders are under challenge in the writ petition. 4. Learned counsel for the petitioner argued that penalty under Section 61 (aaa) of the 1914 Act can be imposed on a person who is in possession of or causing movement any intoxicants without a valid license. As per learned counsel for the petitioner, the petitioner was not found in possession of the liquor at the time of alleged checking. The petitioner was not involved in the movement of liquor. Petitioner's job was over the moment invoices and necessary documents in accordance with law were given to respondent No.5 L-13 Licencee. Learned counsel for the petitioner also argued that the gate pass was issued by the Inspector of the Excise and CWP No. 528 of 2010 4 Taxation Department, who is not an employee of the petitioner – company and hence, the petitioner cannot be held guilty for any lapse or oversight mistake. 5. Learned State counsel refuted the contention of the petitioner and argued that since lorry started from the factory of the petitioner and most of the cases of the country liquor were admittedly issued from the petitioner – company, hence for different batch number thereon, the petitioner – company is liable to be penalized and the penalty was rightly imposed. 6. Section 61 of the 1914 Act reads as under: -- “61. Penalty for unlawful import, export, transport, manufacture, possession etc. (1) Whoever in contravention of any section of this Act or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act :- [(a) manufactures or collects any intoxicant ;or (aa) imports, exports, transports or possesses any intoxicant other than liquor; or (aaa) imports, exports, transports or possesses any liquor; or (b) constructs or works any distillery or brewery; or (c) uses, keeps or has in his possession any materials, still, utensil, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari; (i) shall, for offences covered by clause (aaa) be liable to payment of penalty not less than fifty rupees and not more than one hundred and twenty rupees per bulk litre of liquor in CWP No. 528 of 2010 5 respect of which offence is committed, which may be imposed by Collector in the manner prescribed; and (ii) shall for other offences, which shall be triable by Court, with imprisonment for a term which may extends to three years and with fine not less than one thousand rupees and more twenty thousand rupees. Provided that in the case of an offence relating to the possession of:- (i) a working still for the manufacture of any intoxicant, such imprisonment shall not be less than one year and such fine shall not be less than ten thousand rupees; (ii) lahan, such imprisonment shall not be less than six months and such fine shall not be less than five thousand rupees; (1A) A penalty imposed under clause (i) sub-section (1) shall be recoverable by an excise officer in the manner prescribed. (2) Whoever in contravention of any section other than Sections 29 and 30 of this Act or of any rule, notification issued or given there under or order made or of any license, permit or pass granted under this Act- (a) sells any intoxicants ; or (b) cultivates the hemp plant; or (c) removes any intoxicant from any distillery, brewery or ware house established or licensed under this Act; or (d) bottles any liquor for the purposes of sale; or (e) taps or draws tari form any tari-producing tree; shall be punishable with imprisonment for a term which may CWP No. 528 of 2010 6 extend to two years and fine which may extend to two thousand rupees.” 7. After perusal of Section 61(aaa) of the Act and the grounds to impose penalty on the petitioner, it can safely be said that the petitioner – Distillery was neither guilty of importing nor guilty of exporting, nor found transporting nor found in possession of any intoxicant or liquor. Liquor was found in possession of the L-13 Licencee, which undisputedly is other than the petitioner. 8. Undisputedly, the petitioner has sold liquor to respondent No.5 L-13 Licencee having perused Excise Permit No.94 in Form 32 dated 16.4.2007 after issuing invoice No.155 dated 24.4.2007. Undisputedly, at the time of taking out the liquor from the premises of the petitioner, it was checked and relevant entries were made by the Assistant Excise and Taxation Officer, deputed in the distillery and relevant entries were made in Form D-20-A as per Rule 114 of Punjab Distillery Rules, 1932. 9. In view of the above, the petitioner cannot be held guilty under Section 61(aaa) of the Act and penalty imposed on the petitioner is outcome of exercise of the jurisdiction not vested in the authorities. 10. Writ petition is allowed. Impugned orders dated 16.5.2007 (Annexure P-11), 26.9.2007 (Annexure P-16) and 1.4.2009 (Annexure P- 18) are quashed. No order as to costs. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) Judge 04.03.2010 sk.