THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.16080 of 2009 DATE:06.08.2009 Between: Toddy Cooperative Society, Group Jogipet,Medak District, rep. By its President. ... Petitioner and The Prohibition & Excise Superintendent, Sangareddy, Medak District and another ... Respondents THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.16080 of 2009 ORDER: This writ petition is filed by the petitioner society seeking a Writ of Mandamus to declare the order dated 18.07.2009 in Cr. No.B1/202/2009 passed by the 1st respondent suspending its licence bearing No.14 in respect of Shop No.6 at Posanipet, and also the order dated 23.07.2009 in Cr.No.B1/203/2009 passed by the 1st respondent rejecting its application to send the second sample for analysis as per Rule 27 of the A.P. (Excise (Grant of Licence to sell Toddy Conditions of Licence and Tapping of Excise Trees) Rules, 2007 (for short 'the Rules'), as illegal and arbitrary. 2. The brief facts of the case are that the petitioner society is registered under the provisions of the A.P. Cooperative Societies Act. The main livelihood of its members is to tap toddy trees and sell toddy. The petitioner society has obtained licences to run shops in various villages and one of such licences issued by the Prohibition & Excise Superintendent, Sangareddy, Medak District - 1st respondent is bearing No.14, dated 20.10.2007, and it is valid upto 30.09.2012. While so, the Prohibition & Excise Sub Inspector, Andole, Medak District - 2nd respondent along with the Prohibition & Excise Inspector, Andole, Medak District, has inspected the shop No.6 at Posanipet of the petitioner society on 09.07.2009, drawn samples of toddy in three bottles, having come to a conclusion that the toddy is adultered, registered a case in Crime No.145 of 2009-2010 under Rule 27 of the Rules, and seized the toddy. Thereafter, the 2nd respondent sent one of the samples to the Prohibition & Excise Department Laboratory, Hyderabad for opinion and the analyst sent his report dated 16.07.2009 opining that the sample was adulterated with diazepam. On receipt of the report of the analyst, the 1st respondent has suspended the licence No.14 in respect of shop No.6 at Posanipet belonging to the petitioner society, by order dated 18.07.2009 in Cr.No.B1/202/2009. Disputing the correctness of the analyst report dated 16.07.2009, the petitioner society filed an application before the 1st respondent on 21.07.2009 requesting him to send the second sample for further analysis and the same was rejected by the 1st respondent, by order dated 23.07.2009 in Cr.No.B1/203/2009. The petitioner society, being aggrieved by the same, filed this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader for Prohibition and Excise. 4. The learned counsel for the petitioner society has contended that the very seizure of toddy is contrary to the provisions of the Prohibition and Excise Act and the Rules framed thereunder and the 1st respondent ought not have rejected the application dated 21.07.2009 filed by the petitioner society and should have sent the second sample to an independent agency for further analysis. 5. So far as the order of suspension of lincence of the petitioner society is concerned, this Court is of the view that this writ petition is mis-conceived, for the reason that as against the order of suspension of licence, the petitioner society has a right of appeal, but without exhausting the said remedy, it filed this writ petition questioning the order of suspension of its licence. If the petitioner society so chooses, it may approach the appellate authority and question the order of suspension of its licence. Hence, the claim of suspension of order of the petitioner's licence is hereby rejected. 6. Coming to the aspect as to whether the petitioner society is entitled to request the 1st respondent to send the second sample of toddy for analysis to an independent agency, I find force in the submission of the learned counsel for the petitioner society. In this connection, it may be necessary to refer to Rule 27 of the Rules, which shows that if the licensee desires that the sample should be sent for analysis to an independent laboratory, he may apply to the Prohibition Excise Superintendent, within three days of the drawal of the sample. In case, where licensee or anyone of his nowkarnama holder was not present at the time of taking sample, the licensee may apply to the concerned Prohibition and Excise Superintendent, within seven days from the date of communication of the drawal of the sample. 7. Apparently, the inspection and seizure of toddy has taken place on 09.07.2009. If the said provision of law is applied in stricto senso, the petitioner society has to make an application, within a period of three days, i.e. on or before 12.07.2009. But, this Court is of the view that such an interpretation may not be possible for the reason that on the date of inspection and seizure of toddy, there may not be any test and there may not be any finding that the seized toddy is adulterated. Whether the seized toddy is adulterated or not would be known, only when the same is sent for analysis and the report is sent by the analyst. In this case, immediately after the seizure of toddy on 09.07.2009, a sample was sent to the analyst and the analyst sent his report on 16.07.2009 opining that the seized toddy was adulterated. Coming to know as to the opinion of the analyst, the petitioner society has made an application before the 1st respondent on 21.07.2009 requesting to send the second sample for further analysis. Then, what is to be seen is, whether the petitioner society applied within the time provided for or not. According to the petitioner society, the report of the analyst was not communicated to it, at any point of time, and only after coming to know about the same, it submitted an application before the 1st respondent. From the above, it can be inferred that the petitioner society has submitted the application dated 21.07.2009 within the time provided for under the Rule 27 of the Rules. 8. Further, the very purpose of taking three samples and preserving one of such samples with the Authority is, only for the purpose of sending the preserved sample to an independent agency, as and when required. Otherwise, there is no need for the Authority to collect three samples. A right to request the Authority to send a sample to an independent agency is very much available, under the Prevention of Adulteration Act, and in my considered view, here also, the petitioner society has a right to request the Authority to send the second sample to an independent agency. A reading of Rule 27 of the Rules also makes it amply clear that the petitioner society has a right to request the Authority to send the second sample to an independent agency. 9. Now, the only question in this case is, whether the petitioner society made the application dated 21.07.2009 within the time provided for or not. As stated supra, the report of the analyst is dated 16.07.2009 and the application of the petitioner society is dated 21.07.2009. Nowhere it is mentioned that the report of the analyst was communicated to the petitioner society on 16.07.2009 or on any date thereafter. In the light of the above, it can definitely be inferred that the petitioner has made the application dated 21.07.2009 within a period of three days as provided for under Rule 27 of the Rules. 10. In the result, this writ petition is allowed in part. The order dated 23.07.2009 in Cr.No.B1/203/2009 passed by the 1st respondent is hereby set aside, and accordingly, the 1st respondent is hereby directed to send the second sample of seized toddy to an independent agency for further analysis, within a period of two (2) weeks from the date of receipt of a copy of this order. The rest of the claim with regard to the order dated 18.07.2009 in Cr. No.B1/202/2009 passed by the 1st respondent suspending the licence bearing No.14 in respect of shop No.6 at Posanipet belonging to the petitioner society, is hereby dismissed. There shall be no order as to costs. _________________________ GOPALA KRISHNA TAMADA, J 6th August, 2009 NOTE: Furnish CC by four days (b/o) CBS THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.16080 of 2009 (Allowed in part) 6th August, 2009 NOTE: Furnish CC by four days (b/o) CBS