IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28 of 2010(C)
1. JAYATHILAKAN, AGED 49 YEARS,
... 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,
For Petitioner :SRI.M.G.KARTHIKEYAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :01/02/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) Nos.28,37 & 38 OF 2010
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Dated this the 1st day of February, 2010
J U D G M E N T
The issue raised in these writ petitions being common, the
cases were heard and disposed of by common judgment.
2. For convenience, I shall refer to the facts in WP(c).
No.28/2010.
3. Petitioner herein was one of the licensees of toddy shop
No.10 in Group No. II of Varkala Excise Range. Sample of toddy
was taken from the shop on 17.8.2009, and on chemical
analysis, it was found to contain 9.11% of ethyl alcohol. Based on
this, on the allegation that Rule 9(2) of the Abkari Shops Disposal
Rules, 2002, which was introduced with effect from 14.2.2007
was violated, Crime No.30/2009 was registered against the
petitioner and his employees for offences under Section 57(a)
and 56(b) of the Abkari Act.
4. Thereupon, the accused in the aforesaid case filed a writ
petition was filed before this court challenging the validity of Rule
9(2) and the registration of the Crime No.30/2009. In the
meantime, in the judgment in Komalan V. State of Kerala
WPC.No. 28/2010 & Conn.
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(2009(2) KLT 744), the validity of the Rule was upheld by this
Court. Following the judgment in Komalan’s case, by Ext.P6
judgment the writ petition filed by the petitioner and others was
dismissed. Against Ext.P6 judgment, a special leave petition was
filed before the Apex Court. In the meantime, Special Leave
Petition was also filed against the judgment in Komalan V.
State of Kerala relied on in Ext.P6 judgment and in Ext.P5
interim order, the Apex Court had stayed the prosecution in
regard to the violation prior to the filing of the writ petition by the
respective petitioners therein. Similarly, in the SLP filed by the
petitioner and others, Ext.P11 order was passed granting interim
stay of prosecution, in regard to any violation prior to the filing of
the writ petition. The aforesaid civil appeals are pending before
the Apex Court.
5. While so, Ext.P7 show cause notice was issued to the
petitioner, calling upon him to show cause why the licence shall
not be cancelled under Section 26(b) of the Abkari Act read with
Rule 5(19) and Rule 7(31) of the Kerala Abkari Shops Disposal
Rules, 2002. Pending finalisation of the proceedings initiated by
Ext.P7, the license was also ordered to be suspended. On receipt
WPC.No. 28/2010 & Conn.
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of Ext.P7 notice, petitioner submitted Ext.P8 reply, explaining
about the previous litigations resulting in Ext.P6 judgment, the
appeal that is pending and also about Ext.P11 order passed by
the Apex Court. He also sought time for production of certified
copy of Ext.P11 order and requested that in the meanwhile
licence may not be cancelled and that the suspension be
revoked.
6. The respondent issued Ext.P9 notice requiring the
petitioners to appear for personal hearing on 11.11.2009.
Accordingly, petitioner appeared before the 2nd respondent and
submitted Ext.P10, enclosing a certified copy of Ext.P11 order
and requested that suspension of lien may be revoked and all
proceedings be dropped. Thereafter, complaining that final orders
were not passed pursuant to Ext.P7, petitioner approached this
court and filed WP(c).No.35521/2009 resulting in Ext.P12
judgment by which the 2nd respondent was ordered to finalize
Ext.P7 proceedings within 2 weeks of receipt of a copy of the
judgment. In compliance with Ext.P12 judgment, the 2nd
respondent passed Ext.P13 order dated 19.12.2009, the relevant
portion of which reads as under.
WPC.No. 28/2010 & Conn.
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“On careful examination of the case, two
proceedings are initiated against the licensees.
One is the criminal proceedings initiated against
them under Section 57(a) & 56(b) of the Abkari
Act. The said proceedings contemplates criminal
prosecution to be adjudicated before a criminal
court, conviction of which may lead to criminal
guilt and imposition of punishment prescribed
therein. It is these proceedings that the Hon’ble
Supreme Court has stayed by its interim order
staying the prosecution in regard to the
violations. The other proceedings initiated against
the licensee by the Commissioner of Excise is
under Section 26(b) of the Abkari Act, read with
Rule 5(19) and Rule 7(31) of the Kerala Abkari
Shops Disposal Rules, 2002.
Though the cause of action in respect of the
criminal prosecution under section 57(a) & 56(b)
of the Abkari Act and the suspension of licence
under Section 26(b) of the Abkari Act is one and
the same and the proceedings contemplated
therein stands entirely as different footings. This
is to mean that the order of stay of prosecution
does not in any way give any right to the
licensees to get the suspension of licenses
revoked.
In the above circumstances, considering the
gravity of the offence and as recommended by
Deputy Commissioner of Excise,
Thiruvananthapuram the privilege and licence
granted to the Toddy Shop Nos.7,8,9,10,11 &
12/09-10, included in Group NO.II/09-10 of
Varkala Range are hereby cancelled as per
section 26(b) of the Abkari Act and rule 5(19) &
7(31) of the Kerala Abkari Shops Disposal Rules,
2002. The Deputy Commissioner of Excise,
Thiruvananthapuram is hereby directed to take
WPC.No. 28/2010 & Conn.
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urgent steps to resale the Toddy shops as per
rules.”
7. It is this order which is under challenge in this writ
petition.
8. The main contention raised by the learned Sr. counsel
appearing for the petitioner is that since the prosecution is stayed
by the Apex Court as per Ext.P11 order referred to above, the
petitioner is not disqualified from holding the licence. He also
relied on paragraph 13 of Ext.P14 common order passed by this
court in WP(c).No.9037/2007 and connected cases. For these
reasons according to him, the impugned order calls for
interference.
9. The learned Government Pleader appearing for the
respondents resists the contentions of the petitioner. According to
the learned Government Pleader, the interim order against the
cancellation of licence was one of the prayers sought for by the
petitioner in the civil appeal in which Ext.P11 order was passed.
It is stated that the Apex Court having passed the interim order
confining itself only to stay of prosecutions, it is not open to the
WPC.No. 28/2010 & Conn.
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petitioner to seek any order against Ext.P12 in a writ petition filed
before this court. It is also his contention that Ext.P14 order was
passed in the context of the judgment in State of Kerala V.
Unni(2007(1) KLT 151), invalidating Rule 9(2) as it stood then
and that Rule 9(2) as it presently stands, having been introduced
with effect from 14.2.2007, Ext.P14 order can have no relevance
at this distance of time. It was also contended that upholding the
validity Rule 9(2) as it presently stands, a Division Bench of this
court in Komalan’s case (supra) held that if ethyl alcohol,
though a natural ingredient, exceeds the prescribed limit, the
excess quantity is deemed to have been added and that it being a
foreign substance, which increases the intoxicating quality, the
reasonable view that can be taken in terms of Section 57(a) is
that the substance added is a foreign ingredient. It is stated that
a Division Bench of this court having held that in a case of this
nature Section 57(a) is attracted, this court should abide by the
said judgment. Reliance was placed on the judgment of this court
in Abdu Rahiman V. District Collector, Malapppuram (2009
(4) KLT 485) to contend that this court shall follow the Division
Bench judgment even if the said judgment has been stayed by
WPC.No. 28/2010 & Conn.
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the Apex Court.
10. In reply the learned Senior Counsel for the petitioner
pointed out that Ext.P14 order referred to supra is not merely an
interim order but has attained finality for the reason that writ
petitions were later disposed of in terms of the interim order and
that the judgment was confirmed by the Division Bench and also
the Apex Court.
11. In my view there are two hurdles against the petitioner.
First one is that, in the SLP filed by the petitioners before the
Apex Court against Ext.P6 judgment, an interim order preventing
the State from canceling the licence was sought. A copy of the
Special Leave petition made available by the learned Government
Pleader shows, as grounds for interim relief, that the following
pleadings have been raised in the special Leave petition.
“In view of the registration of crime for offence
punishable under Section 57(a) & passing of the
impugned judgment, the petitioners licenses will
be cancelled by the Government since
proceedings under Section 57(a) is a
disqualification for getting a license under the
Rules. Apart from that the petitioners will have to
face prosecution in view of the registration of
crime against them under Section 57(a). The
interim licenses issued to the petitioners will
expire on 30.6.2009 and allotment will be startedWPC.No. 28/2010 & Conn.
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on 22.6.2009. If the operation of the impugned
judgment is not stayed, the licenses of the
petitioners may not be renewed though all other
licenses will get the renewal. Therefore it is in the
interest of justice that this Hon’ble including the
suspension/cancellation of license of toddy shops
of the petitioners, pending disposal of the above
SLP.”
12. It was considering the aforesaid pleadings and prayer
that the Apex Court passed Ext.P11 interim order confining the
said order only against prosecutions. Therefore this is a case
where the petitioner had sought an interim order from the Apex
Court protecting himself against cancellation of licence and the
Apex Court did not pass any interim order as sought for.
Therefore, if at all petitioner has to seek an interim order against
cancellation of licence, he will have to move an appropriate
application before the Apex Court itself and when the Apex Court
is seized of the matter, it is impermissible for this court to
entertain a prayer as now sought for in this writ petition.
13. The 2nd hurdle that the petitioner has is the judgment
in Komalan V. State of Kerala(2009(2) KLT 744) Rule 9(2) of
the Disposal Rules 2002 as it now stands has been upheld by
this court in that judgment. In that judgment the Division Bench
WPC.No. 28/2010 & Conn.
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has held that if ethyl alcohol exceeds the permissible limit notified
by the Government, it amounts addition of a foreign substance
attracting Section 57(a) of the Abkari Act. Although, the Apex
Court has passed Ext.P11 order, as far as this court is concerned
this judgment rendered by the Division Bench being a binding
precedent, this court is bound to follow that judgment. It has so
held by the division Bench of this court in Abdu Rahiman V.
District Collector, Malapppuram (2009(4) KLT 485). For that
reason also this court will not be justified in entertaining this writ
petition.
14. For the above two reasons, I decline to entertain these
writ petitions and the contentions raised by the petitioners in
these writ petitions in all other respects are left open to be urged
in appropriate proceedings.
Writ Petitions fail and are dismissed.
(ANTONY DOMINIC)
JUDGE
vi/
WPC.No. 28/2010 & Conn.
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