IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 WP(C).No. 5539 of 2008(H) ------------------------------------ PETITIONERS: -------------------- 1. V.P.DILEEP, S/O KUTTINARAYANAN VALIYAPARAMBIL HOUSE, P.O.CHERUKATTUPULAM VANIYAMKULAM, OTTAPALAM, PALAKKAD DISTRICT. 2. M.RAJAN, S/O.NARAYANAN,MANGALASSERY HOUSE, P.O. PANNIYAMKURUSSI, CHERPULASSERY PALAKKAD DISTRICT. 3. C.K.MOHANDAS,S/O. RAVUNNI, CHEERAKKAL HOUSE, P.O.KARALAMANNA,CHERPULASSERY . BY ADV. RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SARITHA DAVID CHUNKATH SMT.SMITHA GEORGE RESPONDENTS: ---------------------- 1. THE STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, EXCISE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, PALAKKAD. 4. THE EXCISE INSPECTOR,CHERPULASSERY RANGE, PALAKKAD DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON 31/03/2008 DELIVERED THE FOLLOWING: WP(C) NO: 5539/2008 H APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE LICENCE NO. 110/07-08 DT. 6/4/07 BY R1. EXT.P2. COPY OF THE NEWS ITEM APPEARED IN THE MALAYALA MANORAMA DAILY DT. 15/10/2007. EXT.P3. COPY OF THE NEWS ITEM APPEARED in the MALAYALA MANORAMA 10/10/2007. EXT.P4. COPY OF THE ORDER DT. 07/11/07 IN WPC NO. 32069/07 OF THIS COURT. EXT.P5. COPY OF THE ORDER NO. XA2/28828/07 DT. 27/11/07 OF THE EXCISE COMMISSIONER. EXT.P6. COPY OF THE JUDGMENT DT. 5/12/2007 IN WPC NO. 35969/2007. EXT.P7. COPY OF THE APPEAL FILED BY THE PETITIONERS BEFORE THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. EXT.P8. COPY OF THE WRITTEN NOTES SUBMITTED BY THE PETITIONERS FOR THE COMMISSIONER. EXT.P9. COPY OF THE ORDER NO. XA2/28828/07 DT. 6/2/08 PASSED BY THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS EXT.R2A. COPY OF THE LICENCE DT. 26/4/07. EXT.R2B. COPY OF THE PERMANENT AGREEMENT EXECUTED BY THE PETITIONER IN RESPECT OF GROUP NO. III. True copy tga THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.5539 of 2008-H = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 31st day of March, 2008. JUDGMENT 1.Petitioners are licensees of toddy shops in Group No.III of Cheruplassery. Ext.P1 is the licence issued to them in relation to Shop No.40 in that group. The Assistant Excise Commissioner closed Toddy Shop No.40 following the drawal of certain samples from among the materials from that shop and the issuance of a certificate by the Forensic Science Laboratory that the sample contained diazepam. This Court issued Ext.P4 order permitting the running of the shop for a period of two weeks leaving open to the competent authority to suspend the licence under powers available to it. Ext.P5 was, thereafter, issued by the Excise Commissioner suspending the licence and directing to show cause against cancellation WP(C)5539/08 -: 2 :- of licence. The suspension as per Ext.P5 was ordered by this Court in Ext.P6 to be confined to Toddy Shop No.40 and the Excise Commissioner was directed to hear the objections filed by the petitioners pursuant to Ext.P5 show cause notice. Ext.P7 objections were placed and Ext.P8 written notes of defence are stated to have been submitted before the Excise Commissioner. Thereafter, the impugned Ext.P9 has been issued, whereby the licences of toddy shops included in Group Nos.III and IV of Cheruplassery Range and toddy shop included in Group No.X of Ottappalam Range are cancelled and licence fee forfeited to Government. 2.The petitioners challenge the aforesaid action on the ground that only one of the licences in Cheruplassery Range is subject matter of the proceedings of the Excise Officials, i.e., the licence in relation to Toddy Shop No.40 and therefore, there can be no action against the WP(C)5539/08 -: 3 :- other shops in the same group and also in the other groups. The next plea is that the impugned order has been passed without reference to the submissions of the petitioners and hence, there is no application of mind. According to the petitioners, the Government have issued orders permitting issuance of licence even to persons who add diazepam. 3.Counter affidavit is filed by respondents 3 and 4 stating that Toddy Shop No.40 is among those shops in Group No.III along with other toddy shops in that group and following the Abkari Policy for the year 2007-08, the shops in the group were sold to the petitioners and the petitioners have executed Ext.R2(b) agreement in respect of Group III shops and that Ext.P1[Ext.R2 (a)] licence was issued for the purpose of Toddy Shop No.40. The sample drawn from Toddy Shop No.40 on 1-7-2007 was forwarded for chemical analysis and diazepam, a psychotropic substance WP(C)5539/08 -: 4 :- was detected in that sample of toddy, going by the chemical analysis report dated 10-9-2007. Following that, a case has been registered as Crime No.25/2007 under the N.D.P.S.Act and under the Abkari Act and the matter informed accordingly to the Excise Commissioner seeking ratification of the action of closure of Toddy Shop No.40 temporarily. The detection of Diazepam shows the commission of a grievous offence and mixing of diazepam with toddy is a violation of the licence condition and still further, the consumption of toddy mixed with diazepam is very dangerous to human health. Reference is made to Section 8 of the Narcotic Drugs and Psychotropic Substances Act, apart from the provisions of the Abkari Act and the Kerala Abkari Shops Disposal Rules, 2002 and it is pointed out that the petitioners have committed offences punishable under Section 57A of the Abkari Act and Section 22 of the NDPS Act. WP(C)5539/08 -: 5 :- 4.The fact that the toddy shops, including Toddy Shop No.40 in Group III of Cheruplassery Village were sold to the petitioners as a group is not in dispute. The fact that either of or any of them is involved in conducting the shop in Group X is also not in dispute. The learned senior counsel appearing for the petitioners argued that the liability for cancellation of licence could, at the best, be only in relation to Toddy Shop No.40 from where the incriminating substance was recovered and the penal provisions in the Abkari Act are also only as against a licensee. It is pointed out that the Rules contemplate only “a licensee” and do not apply to any group of licences or licensees. 5.The learned Senior Government Pleader appearing on behalf of the respondents pointed out that the issue in hand is covered by the judgment of this Court in WP(C).33498/2007 laying down that the liability for cancellation of a licence is not WP(C)5539/08 -: 6 :- severable and the licence cannot be dissected to segregate it to be partly in favour of each individual who joined to be the group of individuals for the purpose of Rule 3(1) of the Kerala Abkari Shops Disposal Rules as amended in 2007 and that a person, who is thus a licensee in relation to the toddy shop where the incriminating material has been seized (Toddy Shop No.40 in the case in hand), is an offender wherever he is and therefore, the licences of which he is also a participant in a group are liable to be cancelled. 6.The learned senior counsel appearing for the petitioners attempted to draw a distinction by stating that the said decision has been rendered without noticing that the penal provisions in the Rules are only as against “a licensee” and therefore, the licensee has to be determined with reference to “a shop”. WP(C)5539/08 -: 7 :- 7.In the case in had, admittedly, all the three petitioners are licensees in Group III. As found in W(C).33498/2007, Section 26 of the Abkari Act provides a power to cancel any licence on breach of any of the terms and conditions of such licence by the holder of such licence. Section 38 of the General Conditions of the Licence enjoins that the licensee shall obey all Abkari Laws. In terms of Clauses 31 and 32 of the General Conditions, the licence shall be liable for cancellation, if any conditions of the Rules or terms of licence are violated and such cancellation will be without prejudice to prosecution and other provisions in the Abkari law. The availability of diazepam, a psychotropic substance in toddy as certified by the Forensic Science Lab is sufficient for the Excise Commissioner to conclude that the toddy available in Shop No.40 was one in violation of Abkari laws. The fact that such toddy was for being sold cannot but be inferred and presumed. So much so, WP(C)5539/08 -: 8 :- Abkari laws stand violated as regards Toddy Shop No.40. The licence granted is following sale in a group and such sale is in favour of all the three petitioners jointly. That is not severable and the mere issuance of a licence in a form on a shop-wise basis does not take away the joint liability of the petitioners under Ext.R2(b) and does not provide the opportunity to them to escape cancellation of licence of the group as a whole. If all or any of them is a licensee of Group 10, which fact is not disputed, the licence for that group also would go because, as held in paragraph 4 of the judgment in WP(C).33498/2007, an offender is one so wherever he is. 8.For the aforesaid reasons, I do not find any ground to hold that the judgment in WP(C). 33498/2007 does not apply to the facts of the case in hand or that the said judgment requires reconsideration, as attempted to be pointed out on behalf of the petitioners. WP(C)5539/08 -: 9 :- 9.Ext.P9 has been issued after hearing the petitioners. It has been issued by the authority who has jurisdiction to do so. The contentions raised before the authority have been adverted to and considered. The analysis report and other materials have been adverted to. The statutory provision empowering cancellation and the fact that the licence has been issued for the group, have been appropriately analyzed. The impugned order, therefore, cannot be treated as arbitrary. 10.For the foregoing reasons, the writ petition fails. The same is accordingly dismissed. No costs. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/290308