IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NO : 12216 of 2008 Between: Kagita Venkata Sivudu S/o.Subba Rao Licencee of M/s. Varalakashmi Restaurant and Bar Situated at Door No.6-144 Srinivasa Centre Ward No.10 Bhimavaram W.G District ..... PETITIONER AND 1. The Government of Andhra Pradesh Rep.by Commissioner of Prohibition & Excise Hyderabad 2 The Deputy Commissioner of Prohibition & Excise at Eluru West Godavari District 3 The Prohibition and Excise Sub-Inspector Bhimavaram West Godavari District .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ of Mandamus or any other appropriate writ or direction declaring the proceedings of the 2nd respondent issued in Rc No.468/2007/A4 dt.11-6-2008 as illegal arbitrary and in violation of principles of natural justice. Counsel for the Petitioner:MR.O.MANOHER REDDY Counsel for the Respondent No.: GP FOR PROHIBITION & EXCISE The Court made the following : THE HON’BLE SRI JUSTICE V.ESWARAIAH WRIT PETITION NO.12216 OF 2008 ORDER: The petitioner was granted Bar licence No.22/2006-07 in Form 2-B to run the Bar and Restaurant under the name and style of M/s.Varalakshmi Restaurant and Bar, Bhimavaram, West Godavari District under the provisions of the A.P.Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2005 (for short “the Rules”) in the year 2006, which was renewed on 29-06-2007 for the year 2007-08 and the said licence is going to be expired by 30-06-2008. There is a right of renewal if the licence is subsisting. While so, the licencing authority i.e., the Deputy Commissioner of Prohibition and Excise, West Godavari District issued a show cause notice dated 26-5-2008 alleging that the Station House Officer, Prohibition and Excise Station, Bhimavaram along with his staff inspected the petitioner’s Bar and Restaurant and drawn the samples of loose liquor of the branch of Madra Malt Whisky and Men’s Club fine whisky. Samples were sent to the Chemical Examiner, Kakinada on 13-9-2007 for analysis and obtained the report vide C.E.No.780/2007 dated 14-9-2007, in which the chemical examiner opined that the liquor is diluted Indian Made Liquor and contains 34.5 U.P. as against the actual 25 U.P. Thus, it is the case of the Excise Department that the petitioner is selling diluted liquor. Accordingly, he was called upon to show cause as to why the lience of the petitioner shall not be cancelled. Explanation of the petitioner was received by the second respondent on 3-06-2008 and after considering the explanation, the second respondent cancelled the licence of the petitioner by the impugned order dated 11-6-2008 after giving reasonable opportunity to the petitioner on personal hearing. It is stated that the chemical analysis report proves the dilution of liquor and therefore the licencee has violated the provisions of Section 31(1(b) of the A.P. Excise Act, 1968( for short “the Act”), which is contrary to the provisions of Rule 23 of the Rules and licence condition 10 of 2B Bar Licence conditions and accordingly cancelled the licence in exercise of the powers vested in him under section 31(1)(b) of the Act. Under Section 31(1)(b) of the Act, the licencing authority is entitled to cancel the licence after giving reasonable opportunity in the event of any breach by the holder of the licence i.e., if there is any breach of conditions of Rules or the provisions or the licence, it is open for the licencing authority to cancel the licence. The alleged breach in the instant case is Rule 23 of the Rules. Under Rule 23, the sale of the liquor shall not be substandard, deteriorated, spurious or adulterated and there shall not be any alteration of quality, nature or quantity. The learned counsel appearing for the petitioner submits that only one sample has been taken depriving the valuable right of the petitioner to question the Chemical Examiner’s report. The perusal of the show cause notice and cancellation order goes to show that samples have been taken and therefore, it is not known whether only one sample has been taken or more than one samples have been taken and the reply to the show cause notice shows that necessary samples have been taken. However, it is not the case of the petitioner to the show cause notice that only one sample has been taken and his right to get the other sample tested and analysed by the independent agency has been deprived. I am not inclined to express any opinion with regard to the contentions as the petitioner has got an effective alternate remedy to question the impugned order before the appellate authority i.e., the Commissioner of Prohibition and Excise, Hyderabad. Having regard to the facts and circumstances of the case as the violation of conditions of licence is trivial in nature and it is not known whether the samples have been taken from the sealed bottle or open bottle and however, it is not the case of the Excise Department that the seized liquor is adulterated and the allegation is only the sample drawn is a diluted one, it cannot be said that consumption of diluted liquor is injurious to public health. Without there being any expert opinion or material, it cannot be said that the diluted liquor affects the public health. It is common knowledge that nobody drinks liquor with the same strength of the sealed bottle and generally liquor will be mixed with water, soda or ice. Therefore, I am of the opinion that it is just and proper to direct the petitioner to file an appeal before the Commissioner of Prohibition and Excise, Hyderabad against the impugned order within one week from the date of receipt of copy of this order and on filing such an appeal, there shall be stay of the cancellation order pending disposal of the appeal and if such an appeal is filed, the same may be considered and disposed of as expeditiously as possible. The writ petition is disposed of accordingly. _______________ V.ESWARAIAH,J Dated: 13.06.2008 Shr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. The Government of Andhra Pradesh Rep.by Commissioner of Prohibition & Excise Hyderabad 2 The Deputy Commissioner of Prohibition & Excise at Eluru West Godavari District 3 The Prohibition and Excise Sub-Inspector Bhimavaram West Godavari District 4. . 2CCs to 5. 2CD copies