THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.23626 of 2009 Dated: 03.03.2010 Between Toddy Tappers Cooperative Society, Rep., by its President, Rangareddy District. … Petitioner And The Prohibition and Excise Superintendent, Medchal and another. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.23626 of 2009 O R D E R : The petitioner is a Toddy Tappers Cooperative Society. On 10.08.2009, the Prohibition Excise Inspector, Balanagar surprised the petitioner’s toddy shop and tested the toddy available with required chemicals. Though the toddy was found to be not adulterated with Chloral Hydrate, on suspicion that that the sample was adulterated with Diazepam and Alprazolam, a case was registered under Rule 27(1) of A.P. Excise (Grant of Licence to Sell the Toddy Conditions of Licence and Tapping of Excise Trees) Rules, 2007 (for short ‘the Rules’). Subsequently, on analysis of one of the samples, the Government Chemical Examiner for Prohibition and Excise, Regional Prohibition and Excise Laboratory, Hyderabad by report dated 20.08.2009 opined that the sample was fermented toddy adulterated with Alprazolam. Since sale of such adulterated toddy with Alprazolam is injurious to the public health and amounts to contravention Rule 16 of A.P. Excise Rules, apart from Section 8(c) r/w Section 22 of NDPS Act, 1985, while initiating departmental proceedings under Section 31(1)(b) of the A.P. Excise Act, 1968, the petitioner’s licence was suspended pending enquiry in the interest of public health by proceedings dated 24.08.2009. Challenging the said order, the petitioner filed W.P.No.22353 of 2009 contending that the analysis of the second sample sent to the Chief Analyst, State Food Laboratory, Hyderabad at the request of the petitioner-society revealed that the toddy was not adulterated with Alprazolam and therefore, the suspension of licence was not warranted. It was also contended that though the petitioner made a representation dated 15.10.2009 requesting to revoke for revocation of the suspension order, the respondents failed to consider. The said writ petition was disposed of at the stage of admission with a direction to the Prohibition and Excise Superintendent, Medchal to look into the representation of the petitioner dated 15.10.2009 and pass appropriate orders thereon in accordance with law. Pursuant thereto, the Prohibition and Excise Superintendent, Medhcal passed the impugned order dated 26.10.2009 directing the petitioner to submit the chemical analyst report issued by the independent laboratory dated 13.10.2009 as well as the petitioner’s application requesting the Commissioner of Prohibition and Excise to compound the offence by imposing fine so as to consider the petitioner’s case in terms of Rule 39 of the Rules. Aggrieved by the said proceedings, dated 26.10.2009, the present writ petition is filed. Learned counsel for the petitioner contended that having regard to the analysis report of the independent laboratory stating that the toddy was not adulterated with Alprazolam, the question of compounding the case did not arise at all and the impugned proceedings dated 26.10.2009 which were issued without application of mind to the facts and circumstances were arbitrary and illegal. In the counter affidavit filed on behalf of the respondents it is stated that the contention that as per the second sample analysis report the toddy was free from adulteration was not correct and even the said report shows that the toddy was adulterated and therefore, the suspension proceeding were justified. The learned Government Pleader while relying upon Rule 27(1) of the Rules, contended that even where two conflicting reports are received from two different laboratories, it is for the authorities to take appropriate decision for cancellation or suspension of the licence. In support of the said submission, learned Government Pleader relied upon a decision of this Court in TODDY TAPPRS COOPERATIVE SOCIETY GROUP, KHAMMAM TODDY SHOP V. PROHIBITON AND EXCISE SUPERINTNDENT, KHAMMAM AND OTHERS[1], wherein it was held that by having two conflicting representations from two different laboratories at best a doubt may arise with regard to the quality of the sample which could possibly be a defence in criminal proceedings but a doubt with regard to the quality of the sample of toddy in a departmental proceedings resulting in cancellation of licence should go in favour of the consumers rather than in favour of the licensee. There can be no dispute about the settled law that it is for the licencing authority in a given case to take an appropriate decision basing on the relevant material for suspension or cancellation of licence in the departmental proceedings and such order cannot be revoked merely on the ground that two conflicting reports were received from two different laboratories. However, in the instant case, the contention of the respondents is that even according to the chemical analysis report of the independent laboratory, the sample was found to be adulterated. In the circumstances, though it is open to the respondents to proceed with the departmental proceeding pending against the petitioner following due process of law and arrive at an appropriate conclusion, there is no justification in directing the petitioner to make an application to the Commissioner of Prohibition and Excise for compounding the case by imposing fine. The impugned action apparently amounts to pre-determining the issue without giving an opportunity of hearing to the petitioner. The procedure followed by the respondents is also not in accordance with the directions of this Court in W.P.No.22353 of 2009. Hence, the impugned order is hereby set aside and the Writ Petition is disposed of with a direction to the respondents to reconsider the petitioner’s application to revoke the order of suspension as directed by this Court in W.P.No.22353 of 2009 and pass appropriate orders in accordance with law after giving an opportunity of hearing to the petitioner as expeditiously as possible, preferably within a period of four weeks from the date of receipt of this order. No costs. ______________ G. ROHINI, J. Date: 03.03.2010 KLP [1] 2001 (5) ALT 793