IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 33844 of 2010(E) --------------------------------------- PETITIONER(S): ----------------------- 1. SHAJI MATHEW, S/O.MATHEW, KANDATHIL HOUSE, MANKOMBU KARA, MUNNILAVU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. P.P. SREENIVASAN NAIR, S/O.PARAMESWARA KAIMAL, PANCHIPLACKAL HOUSE, ELIKKULAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. 3. K.M. SASIDHARAN, S/O.MADHAVAN NAIR, KARANAMKUNNEL HOUSE, ELIKKULAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. 4. T.S. MOHANAN, S/O.SREEDHARAN, THEKKILAKKATTU HOUSE, KARINILAM KARA, ERUMELI VADAKKU VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. 5. V.K. VIJAYAN, AGED 58 YEARS, S/O.KUNJAPPAN, VELIKKAKATH HOUSE, ELIKKULAM VILLAGE, URULUKUNNAM KARA, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, ADV. MR.M.G. KARTHIKEYAN, MR.NIREESH MATHEW. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP.BY SECRETARY, TAXES(A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. WP(C) NO. 33844/2010-E 2. THE EXCISE COMMISSIONER, COMMISSIONERATARE OF EXCISE, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, COLLECTORATE P.O., KOTTAYAM. 4. THE CIRCLE INSPECTOR OF EXCISE, PONKUNNAM, (KANJIRAPPALLY), KOTTAYAM DISTRICT. 5. THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, KANJIRAPPALLY, KOTTAYAM DISTRICT. R1 TO R5 BY GOVT. PLEADER MR.V. MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 33844/2010-E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CRIME AND OCCURRENCE REPORT IN CR.NO.54/2010 PREPARED BY THE 5TH RESPONDENT. EXT.P2: COPY OF THE MAHAZAR DATED 02/10/2010 PREPARED BY THE 4TH RESPONDENT. EXT.P3: COPY OF THE ORDER DATED 08/10/2010 IN CRL.MC.NO.4049/2010 PASSED BY THIS HONOURABLE COURT. EXT.P4: COPY OF THE ORDER NO.XA7-25606/10 DATED 14/10/2010 PASSED BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE REPLY DATED 27/10/2010 SENT TO THE 2ND RESPONDENT. EXT.P6: COPY OF THE ORDER NO.XA7-25606/2010 DATED 03/11/2010 PASSED BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE ABKARI (AMENDMENT) ACT 2010, ACT 3 OF 2010. EXT.P8: COPY OF THE CHALAN EVIDENCING THE PAYMENT OF TREE TAX DATED 01/10/2010. EXT.P9: COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED 02/10/2010. EXT.P10: COPY OF THE CHALAN EVIDENCING THE PAYMENT OF TREE TAX DATED 14/10/2010. EXT.P11: COPY OF THE ORDER DATED 18/11/2010 IN CRL.MC.NO.4049/2010 PASSED BY THIS HONOURABLE COURT. EXT.P12: COPY OF THE PETITION DATE 28/04/2010 SUBMITTED TO THE EXCISE COMMISSIONER BY THE LICENSEES OF KANJIRAPPALLY EXCISE RANGE. EXT.P13: COPY OF THE PETITION DATED 16/10/2010 SUBMITTED TO THE EXCISE COMMISSIONER BY THE LICENSEE OF KANJIRAPPALLY EXCISE RANGE. EXT.P14: COPY OF THE STATEMENT FILED BY THE ASST. COMMISSIONER OF EXCISE, KOTTAYAM IN CRL.MC.NO.4049/2010 BEFORE THIS HONOURABLE COURT. EXT.P15: COPY OF THE APPLICATION DATED 30/09/2010 FOR GETTING NECESSARY CHALAN FOR REMITTING THE TREE TAX SHOWING THE NAME OF THE REGISTERED WORKERS. EXT.P16: COPY OF THE ORDER DATED 23/03/2010 IN CRL.MC.911/2007 PASSED BY THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 33844 OF 2010 -------------------------- Dated this the 2nd day of December, 2010 J U D G M E N T The petitioners are the joint licencees of toddy shop Nos. 57 to 61 in Group No.X of Kanjirappally Excise Range. Pursuant to a surprise inspection conducted by the Circle Inspector of Excise, Kanjirappally in shop No.61 on 2.10.2010, Crime No.54 of 2010 was registered against the petitioners and two workers of the toddy shop alleging commission of the offences punishable under sections 55 (a), 55(i), 56(b) and 58 of the Abkari Act (hereinafter referred to as 'the Act' for short). Thereupon, the Excise Commissioner passed Ext.P4 order dated 14.10.2010 suspending the licence issued to the petitioners to run toddy shop Nos.57 to 61 in Group No.X of Kanjirappally Excise Range. The petitioners were also called upon to show cause why the licences issued to them to run the aforesaid toddy shops should not be cancelled. 2. The petitioners had in the meanwhile filed Crl.M.C. No.4049 of 2010 in this Court seeking to quash the registration of the case against them for the offences punishable under sections 55(a), 55(i) and 58 of the Act contending that even if the entire allegations are taken as true, section 56(b) alone would be attracted WPC No.33844/2010 2 and they cannot be said to have committed offences under sections 55(a), 55(i) and Section 58 of the Act. By Ext.P3 interim order passed on 8.10.2010 in Crl.M.C. No.4049 of 2010, a learned single Judge of this Court observed that petitioners are at liberty to move the trial Magistrate for bail and that if such an application for bail is filed, the learned Magistrate shall consider the same taking note of the fact that only the offence under section 56(b) of the Act will be attracted. Thereupon, two of the workers of the petitioners who are accused No.1 and 2 moved for bail and were released on bail. In the meanwhile, petitioners filed Ext.P5 reply to Ext.P4 and produced along with it a copy of Ext.P3 order. The Excise Commissioner thereafter passed Ext.P6 order dated 3.11.2010 cancelling the licences issued to the petitioners to run toddy shop Nos. 57 to 61 in Group No.X of Kanjirappally Excise Range. Ext.P6 is under challenge in this writ petition. 3. The main contention raised by the petitioners is that they were not heard before Ext.P6 order was passed and that the Excise Commissioner has not taken note of the effect of Ext.P3 interim order passed by this Court and the various contentions set out in Ext.P5 reply to the show cause notice. The petitioners contend that Ext.P6 WPC No.33844/2010 3 has been passed mechanically and without application of mind. It is contended that even if the entire allegations in the occurrence report are taken as true, it would only attract the offence under section 56 (b) of the Act which is compoundable and therefore the Excise Commissioner erred in cancelling the licence. 4. When the writ petition came up for hearing today, the learned Senior Advocate appearing for the petitioners contended relying on Ext.P11 judgment of this Court in Crl.M.C. No.4049 of 2010 produced along with the reply affidavit that a learned single Judge of this Court has by judgment delivered on 18.11.2010 held that petitioners can be prosecuted only for the offence punishable under section 56(b) of the Act and therefore Ext.P6 is liable to be set aside. The learned Senior Advocate contended relying on section 5 (1)(a) of the Abkari Shops Disposal Rules 2002 that on the terms of the said rule, petitioners are entitled to preference in the matter of grant of privilege to run the toddy shop even if they are prosecuted for the offence punishable under section 56(b) of the Act and therefore the mere fact that a crime has been registered is not a reason to cancel the licence. The learned senior counsel also contended that exoneration in the criminal case after the registration WPC No.33844/2010 4 of the crime is also a relevant factor and as the offence alleged is compoundable, no grounds exist to cancel the licence. 5. Per contra, Sri. V.Manu, the learned Government Pleader contended relying on the second sentence in rule 5(1)(a) of the Abkari Shops Disposal Rules, 2002 that only those licencees who are subsequently exonerated are entitled to preference and that as the petitioners are not exonerated of the offence punishable under section 56, they are not entitled to contend that their licence cannot be cancelled. The learned counsel contended that second sentence of rule 5(1)(a) itself contemplates a situation where the licences can be cancelled for registration of offence under section 56 also and that even if the offence is compounded it is not an exoneration by a court and therefore the petitioners cannot claim privilege. The learned Senior Advocate appearing for the petitioners contended relying on sub section (8) of section 320 of the Code of Criminal Procedure that once the compounding application is allowed, it will have the effect of acquittal and that the second sentence in rule 5(1)(a) is meant to cover offences other than under section 56 of the Act. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. In my opinion, it is not WPC No.33844/2010 5 necessary for me at this stage to go into the question whether the registration of an offence against the petitioners which falls under section 56 of the Act should entail cancellation of the licence primarily for the reason that the Excise Commissioner has not considered the said question. It is not in dispute that before Ext.P6 order was passed, the Commissioner of Excise did not hear the petitioners. Further, the order passed by this Court in Crl.M.C. No.4049 of 2010 was delivered only on 18.11.2010, two weeks after Ext.P6 order was passed. A reading of Ext.P6 also indicates that the Excise Commissioner has not considered the explanation offered by the petitioners in Ext.P5 reply for not remitting the tree tax in time. In such circumstances, I am of the opinion that the Excise Commissioner should reconsider the issue with reference to the decision of this Court in Crl.M.C No. 4049 of 2010 and after adverting to the contentions raised by the petitioners in Ext.P5 reply. In view of the fact that the licences issued to the petitioners were suspended on 14.10.2010 and nearly one and a half months have passed thereafter, interest of justice require that the Excise Commissioner should pass revised orders in the matter within 10 days from today. In the view that I have taken, I allow the writ petition, quash WPC No.33844/2010 6 Ext.P6 and direct the Excise Commissioner to reconsider the matter having due regard to the observations and findings of this Court in the order dated 18.11.2010 in Crl.M.C No.4049 of 2010. The Excise Commissioner shall also consider the explanation offered by the petitioners in Ext.P5 reply for not remitting the tree tax in time and pass revised orders after adverting to the contentions raised by the petitioners. In order to enable the Excise Commissioner to act as directed above, I direct that the petitioners or their authorised representatives or the counsel appointed by them shall appear before the Excise Commissioner at 11 am on 6.12.2010 along with a certified copy of this judgment. The Excise Commissioner shall hear them on that day itself or on a date to be fixed by him and pass revised orders in the matter within 10 days from today. The contentions of both sides on the merits are kept open. The Excise Commissioner shall after orders are passed, communicate copies thereof to the petitioners. P.N.RAVINDRAN, (JUDGE) vps WPC No.33844/2010 7 WPC No.33844/2010 8 WPC No.33844/2010 9 WPC No.33844/2010 10 WPC No.33844/2010 11 WPC No.33844/2010 12 WPC No.33844/2010 13 WPC No.33844/2010 14