IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FOURTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION NO : 18273 of 2009 Between: Toddy Tappers Cooperative Society Prashanth Nagar, H.No.6-39/1, Prashanthnagar, Balanagar Mandal, Kukatpally, Rangareddy District, represented by its President M.Sekhar Goud, S/o K.Balraj Goud, age 48 years, Tappers President, R/o Sangeethnagar, Kukatpally, R.R.District. ..... PETITIONER AND 1 The Prohibition & Excise Superintendent, Mecchal, Rangareddy District, Govt. of A.P., Hyderabad and another. .....RESPONDENTS THE HON'BLE MR JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.18273 of 2009 ORDER: This writ petition is filed seeking a Writ of Mandamus declaring CR.No.E3/1101/2009 dated 24.08.2009 of the 1st respondent, as illegal and arbitrary and consequently sought for a direction to the respondents to send one of the samples drawn in COR.No.144/2009-10 dated 10.08.2009 of P&EI, SHO, Balanagar to an independent laboratory i..e, Institute of Preventive Medicine Public Health Laboratory @ State Food Laboratory Nacharam, Hyderabad, and also not to take any coercive steps till the report is received. The petitioner is a Toddy Tappers Co-operative society carrying on business in toddy as per the conditions of licence No.85 dated 01.10.2007. The 2nd respondent, on suspicion, visited the business premises of the petitioner and registered a case in Crime NO.144/2009-10 dated 10.08.2009 and collected three samples of toddy as provided for under Rule 27 of the A.P. Excise (Grant of Licence to Sell toddy, Conditions of Licence and Tapping of Excise Trees) Rules 2007 (hereinafter called as “Rules”). One of the samples of toddy was sent to the Excise Department Laboratory for analysis and the analyst opined that it is adulterated with diazepam and alprazolam. After coming to know of the said report, the petitioner filed an application on 22.08.2009 along with a demand draft towards requisite fee before the 1st respondent requesting to send the second sample of toddy to an independent laboratory i.e., Institute of Preventive Medicine Public Health Laboratory alias State Food Laboratory Nacharam, Hyderabad. . However, the said application was rejected by the 1st respondent vide proceedings dated 24.08.2009 in CR.No.E3/1101/2009 stating that the application is time barred. Hence the present writ petition. The main contention of the learned Counsel for the petitioner is that it is only after coming to know of the analyst report the petitioner has filed an application as provided for under Rule 27 of the Rules. But, however, it is the contention of the learned Assistant Government Pleader for Prohibition & Excise that the said application shall be from the date of communication of drawl of samples. According to the learned Assistant Government Pleader, the petitioner was informed about the drawl of sample on 15.08.2009 itself and from then if the time is computed it should be within seven days, as the petitioner or his Nowkarnama were absent at the time of taking of sample. According to the learned Assistant Government Pleader, if the time is calculated the petitioner should have filed an application before 22.08.2009, whereas the demand draft and the application are on 22.08.2009 and, therefore, it is time barred. In this context it is apt to refer Rule 27 of the Rules, which deals with drawl of the samples: “Any Prohibition and Excise Officer, not below the rank of Sub-Inspector of Prohibition and Excise or Food Inspector appointed under the prevention of Food Adulteration act, 1954, shall be competent to inspect at any time and to take samples from the toddy possessed by the Licensee or any other person, for the purpose of analysis. Such Officer shall take three (3) samples in the presence of the Licensee or his Agent or other person in charge of the Licenced premises or who is found selling toddy in the said premises, after conducting a panchanama. The samples shall be sent to the Court having jurisdiction with a requisition to send, one of the samples expeditiously to the Chemical Examiner of the Prohibition and Excise Department having jurisdiction in the region, in which licenced premises are situated or to any independent laboratory as instructed by the Commissioner for Chemical Examination. If the sample sent to the Chemical Examiner/Laboratory is damaged, in transit or otherwise before the completion of the analysis, the Court may be requested by the concerned officer to send a second sample to the Chemical Examiner/Laboratory. If the Licensee desires that the sample should be sent for analysis to an independent laboratory he may apply to the Prohibition and Excise Superintendent within three (3) days of the drawl of sample. In case, where Licensee or any one of his Nowkarnama holder was not present at the time of taking of sample, the Licensee may apply to the concerned Prohibition and Excise Superintendent within seven (7) days from the date of communication of drawl of sample. The application should be accompanied by a demand draft for an amount sufficient to cover the analysis charges. If no such application is filed within the requisite time limit the Licensee shall not be entitled to seek analysis thereafter. On receipt of the application within the time and with requisite demand draft, the concerned officer shall request the Court to send a sample to the independent laboratory”. I do not think an interpretation as contended by the learned Assistant Government Pleader for Prohibition & Excise can be given to the aforesaid provision of law. The first sample of toddy will automatically be sent to the analyst for his opinion. If the analyst opines that there is no need of requesting the authorities to send the second sample to an independent laboratory for fresh analysis and it is only when the analyst opines that the said sample does not conform to the standards, then only the question of sending second sample to the second agency arises. No doubt, in the said Rule, the word that is used is “Licensee may apply to the concerned Prohibition and Excise Superintendent within seven days from the date of communication of drawl of sample”. It does not mean that the time shall be reckoned either from the date of drawl of sample or communication of sample. It shall only be from the date when the analyst opines that the toddy, as the case may be, is adulterated. Here is a case where the analyst by his proceedings dated 20.08.2009 opined that the sample does not conform to the standards and it is adulterated with diazepam and Alprazolam and that the petitioner made an application on 22.08.2009 requesting to send the second sample of toddy to an independent Laboraoty. In my considered view, the period of three days or seven days, as the case may be, as mentioned in Rule 27 of the Rules shall be computed only from the date of said analyst report. From the above, it is clear that the petitioner complied with the provisions of Rule 27 of the Rules and the respondents ought not to have rejected the application filed by the petitioner saying that it is time barred. Now that the application is rejected and the demand draft was returned to the petitioner, the 1st respondent is hereby directed to receive the application of the petitioner along with demand draft towards requisite fee and send the second sample of toddy to an independent laboratory i.e., Institute of Preventive Medicine Public Health Laboratory alias State Food Laboratory Nacharam, Hyderabad. The Writ Petition is accordingly allowed. No costs. ____________________________ (GOPALA KRISHNA TAMADA, J) 14-09-2009 Note: Issue in one week. (Bo) Gsn.