IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.22994 of 2011 BETWEEN Sri Lakshmi Srinivasa Wines and another. ... PETITIONERS AND The Commissioner of Proh. & Excise, AP, Nampally. ...RESPONDENT Counsel for the Petitioners: MR. S. SRINIVAS REDDY Counsel for the Respondent: GP FOR PROHIBITION & EXCISE The Court made the following order: ORDER: Heard the learned counsel for the petitioner and the learned Government Pleader for Prohibition and Excise. 2. The subject matter of this writ petition relates to the proceedings of the Commissioner of Prohibition and Excise in Cr.No.765/2009/DOE/C2 dated 25.07.2011 rejecting the request of the petitioner for grant of “through transport permits” (TTP’s). 3. The facts, in brief, are as follows: (a) Petitioner is a holder of wholesale and retail license for sale of Indian Made Foreign Liquor (IMFL) and Beer issued by the Deputy Commissioner of Excise, Yanam, Government of Puducherry and by virtue of the said licence; petitioner is authorized to sell IMFL and Beer within the territory of Yanam. As there are no manufacturing units at Yanam, the petitioner has to necessarily obtain IMFL and beer from outside Yanam and for that purpose, when the consignment passes through the State of Andhra Pradesh, he has to obtain TTP’s under Rule 16(5) of the Rules, framed under the Andhra Pradesh Excise Act, 1968 (for short ‘the Act’), which are described as the Andhra Pradesh Excise (Import, Export and Transport of Indian Liquor and Foreign Liquor – Permits) Rules, 2005 (for short ‘the Rules’). (b) It is pointed out that substantive power for regulating the transportation is traceable to Section 11 of the Act and without the permit issued under Section 12 of the Act, the transportation of any kind of intoxicant is not permissible. Petitioner, therefore, approached the Commissioner of Prohibition and Excise seeking TTP’s to be issued with reference to consignment of IMFL, which he seeks to transport to Yanam through Andhra Pradesh from the distilleries located in Puducherry. Petitioner has paid an amount of Rs.30 lakhs to the Government of Puducherry and he was issued the necessary transport permits for transportation of liquor from agencies/distilleries at Puducherry to Yanam through the State of Andhra Pradesh. On the application made by the petitioner, permit Nos.18, 19, 20 and 21/DCEY/2011-12 dated 05.05.2011 valid up to 25.05.2011 were issued and it is being extended from time to time and the latest extension granted in favour of the petitioner is produced along with the reply affidavit showing that under proceedings of the Deputy Commissioner of Excise, Yanam dated 18.08.2011 the aforesaid permits were extended up to 07.09.2011. 3. There were various other proceedings, which intervened between but it is not necessary to give details thereof in this order, suffice it to state that in WP.No.20708 of 2011 filed for similar relief, this Court had earlier passed interim direction, which is extracted below: “Heard the learned Counsel for the petitioner and the learned Government pleader. The latest application of the petitioner for Through Transport Permit is pending with the Commissioner since 20.7.2011. The petitioner states in the affidavit and documents filed in support thereof that the permit would expire by 27th July, 2011 and there is urgency in the matter as on the basis of transport permit the consignments have to be transported within the date of validity of authorization. This Court in W.P.No.22035 of 2005 had considered similar question relating to the petitioner only and disposed of the W.P. directing the respondent-Commissioner to take appropriate decision on the petitioner’s application within four days. Since the petitioner’s application is already pending with the Commissioner for the last two days, there shall be interim direction to the Commissioner to pass appropriate orders thereon in accordance with law on or before 25.7.2011” 4. In pursuance of the said interim direction, the Commissioner of Prohibition and Excise has under the impugned order considered the petitioner’s request for grant of TTP and for the reasons stated in the impugned proceedings the TTP’s were refused on the ground that it would result in illegal inflows into Andhra Pradesh and also on the ground that the petitioner has already lifted substantial quantities of IMFL as well as beer during the year 2011. The said rejection on the aforesaid grounds is questioned in this writ petition. 5. Counter affidavit filed by the respondent reiterates the reasoning as found in the impugned order. In addition to that the learned Government Pleader places reliance upon Sections 11 and 12 of the Act as well as the statistics mentioned in the impugned order that such high consumption of liquor in Yanam is improbable and there is every likelihood of the said liquor finding place in Andhra Pradesh though illegal means. Learned Government Pleader, therefore, justifies the impugned order on the ground that it was passed only to ensure that the illegally transported liquor does not leak into Andhra Pradesh. 6. I have considered the contentions of the learned counsel for the petitioner and the learned Government Pleader. In my view, a conjoint reading of Section 11 and 12 of the Act as well as Rule 16, particularly sub- clause (5) thereof, would unmistakably point out that the competent authority i.e. the Commissioner in the present case, has power to grant TTP’s as a regulatory power and for that purpose he is empowered to take appropriate steps and impose appropriate conditions to ensure that the transportation of liquor/beer is not in contravention of any law for the time being in force and also to ensure that no part of the liquor/beer, so permitted to be transported, is unloaded within Andhra Pradesh. The regulatory mechanism to be devised by the Commissioner to ensure the twin objectives, as above, however, cannot justify the total prohibition of issuing TTP’s as sought to be done in the present case by the Commissioner, for the simple reason that the power to regulate does not include a power to prohibit altogether. The Supreme Court i n HIMAT LAL K. SHAH v. COMMISSIONER OF POLICE, AHMEDABAD[1] has interpreted the word ‘regulate’ as used under the Bombay Police Act and paragraphs 51 and 52 thereof would be useful to be extracted here, as the word ‘regulate’ used under Section 11 of the Excise Act is required to be interpreted in the same manner. 51. What the Sub-section provides is making of rules for 'regulating' the conduct and behavior, or action of persons constituting assemblies. The Sub-section presupposes an assembly and authorises the making of rule for regulating the conduct, behavior or action of the persons who are members thereof. Rule 7 impliedly gives power to the Commissioner to refuse permission to hold a public meeting and, when a meeting is prohibited, there is no question of regulating the conduct, behavior or action of persons constituting assembly, as, ex-hypothesi, no assembly has been constituted. The Sub-section does not authorise framing of rules to regulate the conduct, behavior or action or persons before an assembly is constituted. Before an assembly is constituted, every member of the public is a potential member of it. because every such member, if he so choose, might become a member of the assembly. Does, then, the Sub-section authorise the making of rules to regulate the conduct, behavior or action of every such member, before he becomes a member of the assembly? I think not. 52. A power to "regulate" docs not normally include a power to prohibit (see Toronto v. Virao [1896] A.C. 88, Ontario v. Canada [1896] A.C. 348. A power to regulate implies the continued existence of that which is to be regulated (see Birmingham and Midland Motor Omnibus Co. Ltd. v. Worcestershire County Council [1967] 1 W.LH. 409. If Rule 7 authorises the Commissioner to prohibit a public meeting, is it consistent with the Sub-section which authorizes only "regulating the conduct...."? When the Legislature wanted to give the rule making authority a power to frame rules prohibiting an activity, it has taken care to do so by the appropriate word. For instance, Sub- section (p) of Section 33(1) speaks of "prohibiting the hanging or placing of any cord or pole across a street....", Sub-Section (q) of Section 33(1) relates to "prohibiting .the placing of building materials in any street". In these sub- sections, the word 'prohibit' is used to show that the rule making authority has power to pass a rule prohibiting the activities therein mentioned. Similarly Sub-section (x) of Section 33(1) provides for "regulating or prohibiting the sale of any ticket ". The juxtaposition of these words is a further indication to show that the legislature intended different connotations to the words. I am not saving that a power to regulate can never include a power to prohibit. But the context here does not compel such a reading…” 7. In the present case, the apprehensions, as mentioned by the Commissioner in the impugned order, may or may not be justified but in a given case on a hypothetical possibility, the issuance of TTP’s cannot altogether be denied, as the said transportation is necessitated by the petitioner through Andhra Pradesh in view of the geographical location of Yanam where the petitioner holds a wholesale and retails licence. The petitioner’s right to carry on the trade, therefore, cannot be totally prohibited or affected by rejections of his application for “through transport permits” (TTP’s) through Andhra Pradesh. 8. In my view, therefore, it is one thing to say and impose required conditions for execution of TTP’s through Andhra Pradesh and it is a totally different thing to say that no TTP’s will be granted because there is a possibility of transported liquor coming back to Andhra Pradesh in future. The mechanism which the Commissioner has to devise for ensuring that there is no unloading of such liquor into Andhra Pradesh is entirely within the discretion of the Commissioner and for that purpose the Commissioner is duly empowered to take appropriate steps and impose appropriate conditions as he deems necessary. However, that does not justify his refusal to grant TTP’s to the petitioner on assumptions and possibilities, which may or may not exist in a given case. 9. I am, therefore, constrained to set aside the impugned order and direct the Commissioner to reconsider the petitioner’s application for TTP’s in accordance with law. It is made clear that on such reconsideration, if the Commissioner is otherwise satisfied with the grant of TTP’s, it is for the Commissioner to impose appropriate conditions or restrictions in terms of compliance with Rule 16(5) of the Rules, referred to above. Since the petitioner’s transport permits were extended by the authorities of the Government of Puducherry up to 07.09.2011, it would be just and appropriate to direct the Commissioner to pass appropriate orders on the application of the petitioner for grant of TTP’s expeditiously, preferably within a period of one week from today. The writ petition is accordingly allowed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J August 25, 2011 Note: Furnish C.C. of the order by 27.08.2011 (B/o) DSK [1] AIR 1973 SC 87