IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF NOVEMBER, TWO THOUSAND AND ELEVEN PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.33559 of 2010 Between: Toddy Tapper Cooperative Society Malkapur Village, Kondapur Mandal, Medak District. … Petitioner And The Prohibition & Excise Superintendent, Sanga Reddy, Medak District. … Respondent Counsel for the petitioner: Sri M. Damodar Reddy Counsel for the respondent: AGP for Prohibition & Excise This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.33559 of 2010 ORDER:- This Writ Petition is filed for a Mandamus to set aside proceedings in Cr.No.B2/340/2009, dated 16.12.2010, whereby the respondent has called upon the petitioner to show cause why the licence of his toddy depot and his constituent shops shall not be cancelled for the rest of the period under Section 31(2) of the A.P. Excise Act, 1968 (for short, “the Act”) and under Section 22 of the NDPS Act, 1985. The petitioner is a tappers cooperative society whose toddy depot was inspected on 27.08.2009 and toddy samples were seized. The sample sent to the laboratory at Hyderabad was found containing Alphrazolam, which is a Narcotic drug. At the request of the petitioner, another sample was sent to an independent laboratory for analysis. Even before the report on the said sample was received, a show cause notice was issued on 22.03.2010 by the respondent for cancellation of the licence. The petitioner filed Writ Petition No.9180 of 2010 questioning the said show cause notice. This Court disposed of the said Writ Petition by quashing the show cause notice and directing the respondent to await receipt of report on the second sample before initiating further proceedings. Accordingly, a fresh show cause notice is issued, wherein the respondent has proposed cancellation of the licence. This notice is questioned in this Writ Petition on two grounds, namely; (i) that the laboratory at Hyderabad has no jurisdiction to examine the toddy sample, as, under the Rules, for Medak the laboratory at Nizamabad is the designated laboratory and that (ii) the second sample was found free from adulterated and therefore all further action is liable to be dropped. In the counter affidavit filed by the respondent, it is inter alia stated that since the laboratory at Nizamabad does not have the facility to test Narcotic and Psychotropic substances, the sample was sent to Hyderabad laboratory and that even though in the show cause notice it is stated that the report on the second sample shows nil adulteration, what the respondent meant to convey was that the sample does not contain Narcotic substance and that the report reveals that the sample does not conform to the standards of alcoholic content, total acid as tartaric acid and volatile acid as acetic acid and that hence it is adulterated. As regards the first submission of the learned counsel for the petitioner, it has earlier filed two Writ Petitions, namely; Writ Petition Nos.5795 and 9180 of 2010. In both these Writ Petitions, the petitioner did not raise the objection relating to sending the seized sample to laboratory at Hyderabad. Having not raised the said plea, the petitioner is barred from raising such a plea in the present Writ Petition. Moreover, the explanation offered by the respondent for sending the sample for analysis to the laboratory at Hyderabad is convincing. Therefore, I do not find any substance in the first contention of the learned counsel for the petitioner. As regards the second submission of the learned counsel that in view of the report on the second sample, the respondent ought not to have issued the show cause notice and the same is liable to be rejected, a Division Bench of this Court in Toddy Tappers Cooperative Society Group, Khammam vs. Prohibition and Excise Superintendent, Khammam District and others[1] held that the opinion on the second sample is not conclusive and binding on the licensing authority and that such a report is merely a piece of evidence, which may or may not be accepted in a given case on given facts and that when there are two conflicting reports 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 a criminal proceedings, but a doubt with regard to the quality of the sample of toddy in a departmental proceedings in question resulting cancellation of licence should go in favour of the consumers rather than in favour of a licensee. The learned Assistant Government Pleader for Prohibition and Excise has drawn my attention to Rule 27 of the A.P. (Grant of Licence to Sell Toddy, Conditions of Licence and Tapping of Excise Trees) Rules, 2007. The first proviso thereof envisaged that any adverse analysis report would constitute sufficient cause for the purpose of exercising power under Section 31 of the Act by the authority granting licence. From the facts noted above, it appears that there is a controversy as to whether the report on the second sample was in favour of the petitioner or not. Even though in the show cause notice the respondent has stated that the said report revealed nil adulteration, in the counter affidavit he has explained the position. Therefore, it is for the respondent to examine the contents of the report on the second sample before taking a decision. From the legal position that was discussed above, what emerges is that even if second sample is found free from adulteration, the same does not ipso facto absolve the petitioner from the further action for cancellation of the licence. As per the first proviso, referred to above, any adverse analysis report is enough to constitute sufficient cause for taking action. As held by the Division Bench it is for the licensing authority to analyse the reports on the facts of each case and take a decision on the action to be taken in the face of the conflicting reports. Therefore, it is premature for this Court to examine the grievances of the petitioner as he has approached this Court at the stage of show cause notice. In my opinion, this is not a case where the respondent inherently lacks jurisdiction in issuing the impugned show cause notice. The contentious issues raised by the petitioner in this Writ Petition need to be agitated by him before the respondent, who shall thereupon decide on the action to be taken in the light of the two reports. Accordingly, interference with the impugned show cause notice is declined. The petitioner is permitted to raise all the legally permissible grounds in the explanation that may be offered by him to the show cause notice. The petitioner is permitted to submit his explanation within a period of two weeks from today. Within four weeks thereafter, the respondent shall pass a final order and communicate the same to the petitioner. Subject to the above direction, the Writ Petition is disposed of. As a sequel, WPMP.No.42541 of 2010 and WVMP.No.2237 of 2010 are disposed of as infructuous. ____________________________ C.V.NAGARJUNA REDDY, J Date: 21.11.2011 ES [1] 2001 (6) ALD 309 (DB)