IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 WP(C).No. 26945 of 2009(K) -------------------------- PETITIONER: --------------- KRISHNAKUMAR S/O. NATARAJAN, KUNNATHARA HOUSE, PAZHAYANNUR VILLAGE, THALIPPILLI TALUK, THRISSUR DIST. BY ADV. SRI.B.GOPAKUMAR RESPONDENTS: --------------- 1. STATE OF KERALA REP. BY THE COMMISSIONER OF EXCISE THIRUVANANTHAPURAM. 2. CIRCLE INSPECTOR OF EXCISE IRINJALAKUDA. 3. CIRCLE INSPECTOR OF POLICE IRINJALAKUDA, THRISSUR DIST. 4. DEPUTY COMMISIONER OF EXCISE THRISSUR. 5. THANKAPPAN, ASSISTANT SUB INSPECTOR OF POLICE. 6. J.M.MATHEW, SUB INSPECTOR OF POLICE PAZHAYANNUR THRISSUR. GOVERNMENT PLEADER SRI.I.V.PRAMOD FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26945 of 2009(K) I N D E X PETITIONER'S EXHIBITS EXT.P1:TRUE COPY OF THE DOCUMENT IN LICENCE NO.83/08-09 TS NO. 12/2008-09- VENNOOR. EXT.P2:TRUE COPY OF THE EXTRACT IN LICENCE NO.84/08-09 TS NO.13/2008 – KUMBALAKKODU. EXT.P3:TRUE COPY OF THE EXTRACT IN LICENCE NO.85/08-09 TS NO.14/2008 – KUNNAMPULLI. EXT.P4:TRUE COPY OF THE EXTRACT IN LICENCE NO.86/08-09 TS NO.15/2008 – KALLEPPADAM. EXT.P5:TRUE COPY OF THE EXTRACT IN LICENCE NO.308/08-09 TS NO.16/2008 – PAZHAYANNUR. EXT.P6:TRUE COPY OF THE EXTRACT IN LICENCE NO.87/08-09 TS NO.17/2008-09 – CHELAKKODU. EXT.P7:TRUE COPY OF THE EXTRACT IN LICENCE NO.88/08-09 TS NO.18/2008–09 – VADAKKUMKONAM. EXT.P8:TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER TO THE 4TH RESPONDENT. EXT.P9:TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER TO THE 4TH RESPONDENT. EXT.P10:TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER TO THE 4TH RESPONDENT. EXT.P11:TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER TO THE 4TH RESPONDENT. EXT.P12:TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER TO THE 4TH RESPONDENT. EXT.P13:TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER TO THE 4TH RESPONDENT. EXT.P14:TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER TO THE 4TH RESPONDENT. EXT.P15:TRUE COPY OF THE NOTICE NO.R5/900/09 DT.30.06.09. EXT.P16:TRUE COPY OF THE TODDY TRANSPORT PERMIT NO.518/09-10/ID/I HY DT.2.7.09. EXT.P17:TRUE COPY OF THE SHOW CAUSE NOTICE NO.XA2-19300/09 DT.26.08.09. EXT.P18:TRUE COPY OF THE LETTER DT.9.9.09. WP(C).No. 26945 of 2009(K) -2- EXT.P19:TRUE COPY OF THE LETTER DT.15.09.2009. EXT.P20:TRUE COPY OF THE ORDER NO.XA2/19300/09 DT.8.9.09. EXT.P21:TRUE COPY OF THE JUDGMENT IN W.P(C) NO.8096/09 F DT.17.06.09. EXT.P22:TRUE COPY OF ORDER IN BAIL APPLICATION NO.4338/2009 DT.14.08.09 IN THIS COURT GRANTED IN FAVOUR OF PETITIONER. EXT.P23:TRUE COPY OF CHARGE SHEET DRAWN UP BY 6TH RESPONDENT DT.17.07.2009 IN C.P.NO.138/09 OF JFMC, WADAKKANCHERRY. EXT.P23(a):TRUE COPY OF SEIZURE MAHAZAR DT.16.07.09 PREPARED BY 6TH RESPONDENT. EXT.P24:TRUE COPY OF LICENCE NO.700/09-10 DT.08.10.09 IN FAVOUR OF PETITIONER. EXT.P24(a):TRUE EXTRACT COPY OF LICENCE NO.701/09-10 DT.08.10.09 IN FAVOUR OF PETITIONER. EXT.P24(b):TRUE EXTRACT COPY OF LICENCE NO.702/09-10 DT.08.10.09. EXT.P24(c):TRUE EXTRACT COPY OF LICENCE NO.703/09-10 DT.08.10.09 IN FAVOUR OF PETITIONER. EXT.P24(d):TRUE EXTRACT COPY OF LICENCE NO.704/09-10 DT.08.10.09 IN FAVOUR OF PETITIONER. EXT.P24(e):TRUE EXTRACT COPY OF LICENCE NO.705/09-10 DT.08.10.09 IN FAVOUR OF PETITIONER. EXT.P24(f):TRUE EXTRACT COPY OF LICENCE NO.706/09-10 DT.08.10.09 IN FAVOUR OF PETITIONER. EXT.P25:TRUE COPY OF THE JUDGMENT DT.12.10.09 IN WPC.NO.24886 OF 2009 OF THIS HON'BLE COURT. /TRUE COPY/ THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.26945 of 2009-K = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of December, 2009. JUDGMENT 1.The petitioner, who was conducting toddy shops for the last around seven abkari years, was given the privilege to vend toddy for the current abkari year also. In terms of Rue 7(15) of the Kerala Abkari Shops Disposal Rules, 2002, for short, the “Disposal Rules”, the petitioner is obliged to conduct the shop and to keep it open in terms of that sub rule. Admittedly, no order of closure, either temporary or permanent, was issued by the competent authority. But, Ext.P17 show cause notice for cancellation of licence in terms of Section 26(b) of the Abkari Act read with Rule 7(15) of the Disposal Rules is issued on the admitted fact that the petitioner had not commenced operations from the shops in question and they were kept closed. WPC26945//09 -: 2 :- 2.Respondents 5 and 6 are police officers. They are attributed with malafides in as much as, according to the petitioner, on account of certain illegal gains that the said persons would make from third parties and because of prejudice towards the petitioner, he was falsely implicated in a criminal case for offences allegedly punishable under Sections 55(a) and (i) of the Abkari Act. The allegation against the petitioner in the criminal case is that a car was intercepted and the petitioner was apprehended, it having been found that the car was loaded with about 72 litres of spirit which could be gainfully employed for utilisation as liquor which would be spurious and prohibited in terms of the Abkari Act in the State of Kerala. 3.The petitioner was granted bail by this Court. On his application seeking a vigilance enquiry against the conduct of respondents 5 and 6, this Court issued Ext.P25 judgment recording the WPC26945//09 -: 3 :- submission of the Government that the matter is being looked into. The respondents do not contradict the petitioner's assertion that all his previous years as an abkari licensee remained unblemished. 4.While the learned Government Pleader appears on behalf of the officials of the Excise Department, the fact of the matter remains that respondents 5 and 6, who are impleaded in person, have not placed any counter affidavit controverting the personal allegations levelled against them. May be that, such course is being adopted by them on appropriate advice, having regard to the undertaking given by the Government before this Court that the complaint against them is being looked into through the Vigilance Department. 5.After issuing Ext.P17 show cause notice and hearing the petitioner on the basis of Exts.P18 and P19, the Commissioner of Excise issued the impugned Ext.P20 ordering resale of the shops at WPC26945//09 -: 4 :- the risk and loss of the writ petitioner. Though Ext.P17 was issued on the ground of rule 7(15) of the Disposal Rules only, when it reached at the stage of final order, Ext.P20 was issued making reference to Rule 7(15), 7(33) and 5(3)(i) of the Disposal Rules. The Commissioner, in issuing Ext.P20, also took note of the fact that prosecution proceedings are pending against the petitioner in a court of law and there is no provision of law under which the Commissioner could condone the delay in filing application to get the shops licensed. Accordingly, Rule 5(3)(i) of the Disposal Rules was specifically referred to, to state that the petitioner is ineligible to have privilege to vend toddy. It is accordingly that the impugned order was issued for resale and forfeiture in terms of Rule 7(31). 6.The show cause notice (Ext.P17) was issued solely on the ground that the shops remained closed and were not opened within a period of one month. The explanation given by the petitioner to that, was WPC26945//09 -: 5 :- the fact that he was under detention following the arrest in connection with the criminal case. Even in Ext.P18, the petitioner had criticised the police officers of having acted malafide and to harass the petitioner on account of animosity generated by his refusal to concede to the request of the police officers for continued utilisation of private cars etc. belonging to the petitioner. When it came to the stage of final order (Ext.P20), the fact remains that the criminal court had numbered the case as C.P.138/2009. The statement in the counter affidavit is that the Judicial Magistrate of First Class, Wadakkanchery had issued process calling upon the accused persons to appear on 4.12.2009. In the impugned order, the Commissioner noted that the proceedings are pending before a court of law. The learned Government Pleader appears to be justified in saying that Rule 5(3)(i) of the Disposal Rules operates not only in relation to cases where the court has framed charge but would also relate to WPC26945//09 -: 6 :- cases where prosecution proceedings are pending before the criminal courts. By judgment dt.1.12.2009 in WP(C).31562/2009, it was held that commencement of prosecution proceedings is different from the framing of charge and the ratio in Vijayan's case, 2002 (3) KLT 646, would apply only to cases where the question of framing a charge by court is to be relevant vis-a-vis the registration of a first information report by the police. 7.In the case in hand, it is quite obvious that the Commissioner of Excise had not taken into consideration the time spent by the petitioner in police custody. It may be true that prosecution proceedings are pending against him and the petitioner may face the wrath of Rule 5(3)(i) of the Disposal Rules. But, equally important is the fact that the police officers are accused in person with allegations of unlawful gains and the allegations against them are, as of now, following Ext.P25 judgment, being looked into by WPC26945//09 -: 7 :- the Vigilance Department. The petitioner, even going by the counter affidavit, has an unblemished past of about seven continued years as licensee under the State of Kerala. 8.A reading of Ext.P20 and Ext.P17 would show that the decision of the Commissioner is fundamentally on the ground that the petitioner did not start operations within a month of the grant. The other findings are quite incidental and may require even a second look, having regard to the allegations against the police officers. Having regard to what is aforesaid, this writ petition is ordered directing that Ext.P20 will be treated as a fresh show cause notice referable to grounds which are not stated in Ext.P17 and the Commissioner will hear the petitioner again after obtaining the views of the authority looking into the complaints against the police officers following Ext.P25 judgment. The licences granted to the petitioner in terms of the interim WPC26945//09 -: 8 :- order granted at the time of admission and issued as per Exts.P24 series will continue to be applicable till the Commissioner takes a decision de novo in the light of what is stated above. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/0712