IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27733 of 2010(N)
1. AYYAPPAN, AGED 60 YEARS, S/O.AYYAPPAN
... Petitioner
Vs
1. STATE OF KERALA, REP.BY SECRETARY,
... Respondent
2. THE COMMISSIONER OF EXCISE,
3. THE DEPUTY COMMISSIONER OF EXCISE,
4. THE EXCISE INSPECTOR,
5. THE CIRCLE INSPECTOR OF EXCISE,
For Petitioner :SRI.M.G.KARTHIKEYAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :07/09/2010
O R D E R
P.N.RAVINDRAN, J.
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W.P(C).No.27733 of 2010
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Dated this the 7th day of September, 2010
JUDGMENT
The petitioner is a licensee of toddy shop Nos.18 to 23 in
group No.IV of Sulthan Batheri Excise Range. In this writ petition
he challenges Ext.P1 order dated 27.8.2010 issued by the
Commissioner of Excise suspending the licence issued to him in
respect of the aforesaid toddy shops and calling upon him to show
cause why the licence/privilege granted to him should not be
cancelled. The Commissioner of Excise has issued Ext.P1 order
for the reason that Crime No.39/2010 under section 57(a) and 56
(b) of the Abkari Act has been registered against the petitioner on
12.5.2010. The petitioner contends that the sample of toddy
taken from toddy shop No.12 on 14.6.2007 was subjected to
analysis, that Ext.P3 analysis report was obtained way back on
28.6.2007 and that the instant crime was registered only three
years later and therefore, that cannot form the basis of an order
of suspension. It is also contended that in the case of
Sri.N.N.Kunju, the licensee of toddy shops of Peumbavoor Excise
W.P(C).No.27733 of 2010
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Range, where a sample of toddy was recently taken and found not to
conform to the standards prescribed by the rules, the Excise
Commissioner has only issued a show cause notice and that the
licences were not suspended. It is contended that the decision taken
by the Excise Commissioner to suspend the licence issued to the
petitioner is arbitrary and discriminatory.
2. I heard Sri.M.G.Karthikeyan, learned counsel appearing for
the petitioner and Sri.V.Manu, the learned Government Pleader
appearing for the respondents. I have also gone through Ext.P1 and
the reasons stated therein. In my opinion the mere fact that the
officers of the Excise Department, who were responsible for taking due
action on receipt of the chemical analysis report, failed to act in time
and to register a case against the petitioner is not a good ground to
hold that the Commissioner of Excise is disabled from suspending the
licence issued to the petitioner or from proceeding against him. The
delay and laches on the part of the officers would render them liable
for disciplinary action and cannot be a ground for the petitioner to
contend that no action can be taken against him for selling toddy
which does not conform to the prescribed standards especially having
regard to the frequent liquor tragedies in the State of Kerala including
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the recent one that took place in Malappuram District. I am therefore
not impressed with the submission of the learned counsel for the
petitioner that the delayed registration of a crime based on the
inspection held on 14.6.2007 cannot form the basis for the order of
suspension. The delayed registration of the crime even after receipt of
the analysis report on 28.6.2007 can at best be raised only as a
defence in the criminal case and cannot, in my opinion, stand in the
way of the Excise Commissioner from initiating other proceedings
against the petitioner. It cannot also be said that the Commissioner of
Excise has acted arbitrarily in issuing Ext.P1 merely for the reason that
he did not suspend the licence issued to Sri.N.N.Kunju. By Ext.P1 the
petitioner was also called upon to show cause why the licence/privilege
should not be cancelled for violation of the provisions of the Abkari Act
and the Kerala Abkari Shops Disposal Rules, 2002. It is for the
petitioner to submit an appropriate reply to Ext.P1 and to show cause
why notwithstanding the recitals therein, the licence/privilege issued to
him is not liable to be cancelled. In my opinion the petitioner ought to
have awaited the outcome of the proceedings initiated by the Excise
Commissioner before seeking the intervention of this Court.
I accordingly hold that there is no merit in the writ petition. The
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writ petition fails and is dismissed with the observation that nothing
contained in this judgment will stand in the way of the petitioner from
showing cause as to why the licence issued to him should not be
cancelled. In the event of the petitioner submitting an appropriate
representation in reply to Ext.P1 show cause notice dated 27.8.2010,
the Excise Commissioner shall take a decision in the matter
expeditiously and in any event within one month from the date of
receipt of such a representation, after affording the petitioner a
reasonable opportunity of being heard.
P.N.RAVINDRAN,
Judge.
ahg.
P.N.RAVINDRAN, J.
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W.P(C).No.27733 of 2010
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JUDGMENT
7th September, 2010