IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 WP(C).No. 5824 of 2010(C) ------------------------- PETITIONER(S): --------------- 1. BIJU, KOLAKKAL PADINJATTATHIL HOUSE, KARIKKODE, T.K.M.C. P.O., KOLLAM DISTRICT. 2. MATHEWKUTTY, MARUTHAMPADY THEKKEKARA PUTHENVEETTIL, EDAMULAKKAL P.O., PATHANAPURAM, KOLLAM DISTRICT. 3. SHYJIN, SHINE NIVAS, EZHUKONE P.O., KOTTARAKARA, KOLLAM DISTRICT. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY RESPONDENT(S): --------------- 1. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 2. THE EXCISE INSPECTOR, EXCISE SPECIAL SQUAD, KOLLAM. GOVERNMENT PLEADER SRI. V. MANU FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.5824 OF 2010-C -------------------------------------------------- Dated this the 9th day of March, 2010 J U D G M E N T The first petitioner is the salesman and petitioners 2 and 3 are the licensees of toddy shop No.13 of Kollam Excise Range for the year 2009-2010. The second respondent registered Crime No.141/2009 in which petitioners are accused Nos.1 to 3 for offences punishable under Sections 55(a) and 56(b) of the Abkari Act. Ext.P2 is the mahazar that was prepared. 2. Following Exts.P1 and P2, Ext.P3 show cause notice was issued by the first respondent, calling upon the petitioners to show cause why the privilege and licence granted in respect of the toddy shop Nos.12 to 16 in Group No.3 of Kollam Exchange Range shall not be cancelled under Section 26(bb) of th Abkari Act read with Rule 5(19) and 7(31) of the Kerala Abkari Shops Disposal Rules, 2002. It was also stated that considering the gravity of the offence licence has been suspended. Ext.P4 reply was submitted by the petitioners and finally Ext.P6 order was issued canceling the licence in respect of the toddy shop Nos.12 to 16 of Group No.3 of Kollam Excise Range. It is challenging WPC.No. 5824/2010 :2 : Ext.P6 that this writ petition is filed. 3. A statement has been filed by the learned Government Pleader where it is stated that on inspection of the toddy shop the rectified spirit kept for mixing with toddy was recovered and that it was on that basis case was registered and the proceedings culminating in Ext.P6 canceling the licence were issued. 4. During the course of the hearing, learned counsel appearing for the petitioners raised two contentions. First contention raised by the learned counsel is that all that has been done by the respondents against the petitioners is that a crime has been registered as Crime No.141/2009. According to him, mere registration of crime cannot be the basis for cancelling the licence and that cancellation could be ordered only after offence is charged against the accused. In support of this contention, the learned counsel for the petitioners mainly relied on the judgment of this court in WP(c).No.9080/08 and connected cases and also the order passed in WP(c).9037/07 and connected cases. 5. However, the proceedings for cancellation of the licence have been initiated against the petitioners under Section 26(bb) of the Abkari Act. Section 26(bb) provides that the Commissioner WPC.No. 5824/2010 :3 : may cancel or suspend any licence granted under the Abkari Act in the event of the breach by the holders of such licence or his servant or by anyone acting with his implied or express permission on his behalf in terms of the conditions of licence or permit. Rule 5(19) and 7(31) are also relied on against the petitioners and Rule 7(31) is a general condition of license in respect of the toddy shops and it provides that infraction of the rules or the conditions of licence either by licensee or by any person in his employment, shall entail on the licensee the forfeiture of deposit/annual rental and cancellation of licence. 6. These two provisions of the Act and Rules show that the Excise Commissioner is competent to cancel the licence. As already seen allegation on the basis of which cancellation has been ordered is that the accused had possessed spirit for the purpose of mixing with toddy to sell through the toddy shops. This fact if proved is certainly a violation of the licence conditions as contained in Chapter VIII of the Abkari Shops Disposal Rules,2002 and if the same is proved consequence as provided in Section 26 (bb) and Rule 7(31) will follow. WPC.No. 5824/2010 :4 : 7. As far as the contention raised by the counsel for the petitioners that only crime has been registered and in the absence of accused being charged with the offence, proceedings for cancellation of licence cannot be initiated is concerned, I should confess that I am not in a position to accept the said contention. This is first of all for the reason that the operation of Section 26(bb) or Rue 7(31) is not dependent upon the offence being charged with. In the absence of the legislature having not made operation of the aforesaid provision, dependent upon anything more than a finding of violation of licence conditions, this court will not be justified in interpreting the section and adding to it something more, which the the legislature in its wisdom has not chosen to add. 8. In so far as the judgment in WP(c).No.9080/08 relied on by the petitioner is concerned, in that judgment this court was concerned with clause 11 of the abkari policy for the year 2008- 09 which provided that persons “charged with” abkari offences other than under Section 56 will not be granted licence. Interpreting this provision and referring to the earlier judgment in Vijayan V. Excise Commissioner(2002(3) KLT 646) this court WPC.No. 5824/2010 :5 : held that unless charge has been framed by the court for an Abkari offence against a person in terms of Section 211 of Cr.P.C a person cannot be said to be charged with abkari office, to be excluded from being granted licence under the Abkari Act. The order in WP(c).No.9037/07 and connected cases is also to the similar effect. As I have already said Section 26(bb) of the Act or Rule 7(31) are not dependent upon the person being charged with offence. In such a case, the said judgment and the order is of no relevance in determining the validity of Ext.P6. 9. The other contention raised by the learned counsel for the petitioners is by referring to Ext.P5. That was a case where proceedings were initiated against a licensee on seizing of 462 liters of spirit from the premises of toddy shop No.11 of Kizhzkketheruvu in Kottarakkara range. However, a reading of this order show that, the Commissioner of Excise accepted the contention on behalf of the licensee that the person who has arrayed as an employee was not an employee and that the confession given by such a person has no evidentiary value. Reference is also made by the Apex Court judgment in State of Tamil Nadu V. J. Jayalalitha (2000(5) SCC 440). WPC.No. 5824/2010 :6 : 10. In my view, although it is true that the quantify of spirit recovered in that case is much larger than what is involved in this case, having regard to the finding of the Excise Commissioner as contained in Ext.P5, the said order is not comparable with the case of the petitioner. Even if it is assumed that Ext.P5 order reflects a wrong decision that also can come to the advantage of the petitioner, whose case is to be decided on the facts alleged against them. Therefore, in my view, petitioner cannot take advantage of Ext.P5 nor can they plead discrimination relying on the said order. 11. Therefore, I do not find any illegality in Ext.P6 order for invalidating the same. Writ petition fails and is dismissed. It is clarified that the findings in this judgment will not stand in the way of the respondents in considering the petitioner's claim, preference at the time of resale, if the petitioner is otherwise eligible for the same. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 5824/2010 :7 :