IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26945 of 2009(K)
1. KRISHNAKUMAR S/O. NATARAJAN,
... Petitioner
Vs
1. STATE OF KERALA REP. BY THE COMMISSIONER
... Respondent
2. CIRCLE INSPECTOR OF EXCISE
3. CIRCLE INSPECTOR OF POLICE
4. DEPUTY COMMISIONER OF EXCISE THRISSUR.
5. THANKAPPAN, ASSISTANT SUB INSPECTOR OF
6. J.M.MATHEW, SUB INSPECTOR OF POLICE
For Petitioner :SRI.B.GOPAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :02/12/2009
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P.(C).No.26945 of 2009-K
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Dated this the 2nd day of December, 2009.
JUDGMENT
1.The petitioner, who was conducting toddy shops
for the last around seven abkari years, was given
the privilege to vend toddy for the current
abkari year also. In terms of Rue 7(15) of the
Kerala Abkari Shops Disposal Rules, 2002, for
short, the “Disposal Rules”, the petitioner is
obliged to conduct the shop and to keep it open
in terms of that sub rule. Admittedly, no order
of closure, either temporary or permanent, was
issued by the competent authority. But, Ext.P17
show cause notice for cancellation of licence in
terms of Section 26(b) of the Abkari Act read
with Rule 7(15) of the Disposal Rules is issued
on the admitted fact that the petitioner had not
commenced operations from the shops in question
and they were kept closed.
WPC26945//09 -: 2 :-
2.Respondents 5 and 6 are police officers. They are
attributed with malafides in as much as,
according to the petitioner, on account of
certain illegal gains that the said persons would
make from third parties and because of prejudice
towards the petitioner, he was falsely implicated
in a criminal case for offences allegedly
punishable under Sections 55(a) and (i) of the
Abkari Act. The allegation against the petitioner
in the criminal case is that a car was
intercepted and the petitioner was apprehended,
it having been found that the car was loaded with
about 72 litres of spirit which could be
gainfully employed for utilisation as liquor
which would be spurious and prohibited in terms
of the Abkari Act in the State of Kerala.
3.The petitioner was granted bail by this Court. On
his application seeking a vigilance enquiry
against the conduct of respondents 5 and 6, this
Court issued Ext.P25 judgment recording the
WPC26945//09 -: 3 :-
submission of the Government that the matter is
being looked into. The respondents do not
contradict the petitioner’s assertion that all
his previous years as an abkari licensee remained
unblemished.
4.While the learned Government Pleader appears on
behalf of the officials of the Excise Department,
the fact of the matter remains that respondents 5
and 6, who are impleaded in person, have not
placed any counter affidavit controverting the
personal allegations levelled against them. May
be that, such course is being adopted by them on
appropriate advice, having regard to the
undertaking given by the Government before this
Court that the complaint against them is being
looked into through the Vigilance Department.
5.After issuing Ext.P17 show cause notice and
hearing the petitioner on the basis of Exts.P18
and P19, the Commissioner of Excise issued the
impugned Ext.P20 ordering resale of the shops at
WPC26945//09 -: 4 :-
the risk and loss of the writ petitioner. Though
Ext.P17 was issued on the ground of rule 7(15) of
the Disposal Rules only, when it reached at the
stage of final order, Ext.P20 was issued making
reference to Rule 7(15), 7(33) and 5(3)(i) of the
Disposal Rules. The Commissioner, in issuing
Ext.P20, also took note of the fact that
prosecution proceedings are pending against the
petitioner in a court of law and there is no
provision of law under which the Commissioner
could condone the delay in filing application to
get the shops licensed. Accordingly, Rule 5(3)(i)
of the Disposal Rules was specifically referred
to, to state that the petitioner is ineligible to
have privilege to vend toddy. It is accordingly
that the impugned order was issued for resale and
forfeiture in terms of Rule 7(31).
6.The show cause notice (Ext.P17) was issued solely
on the ground that the shops remained closed and
were not opened within a period of one month. The
explanation given by the petitioner to that, was
WPC26945//09 -: 5 :-
the fact that he was under detention following
the arrest in connection with the criminal case.
Even in Ext.P18, the petitioner had criticised
the police officers of having acted malafide and
to harass the petitioner on account of animosity
generated by his refusal to concede to the
request of the police officers for continued
utilisation of private cars etc. belonging to the
petitioner. When it came to the stage of final
order (Ext.P20), the fact remains that the
criminal court had numbered the case as
C.P.138/2009. The statement in the counter
affidavit is that the Judicial Magistrate of
First Class, Wadakkanchery had issued process
calling upon the accused persons to appear on
4.12.2009. In the impugned order, the
Commissioner noted that the proceedings are
pending before a court of law. The learned
Government Pleader appears to be justified in
saying that Rule 5(3)(i) of the Disposal Rules
operates not only in relation to cases where the
court has framed charge but would also relate to
WPC26945//09 -: 6 :-
cases where prosecution proceedings are pending
before the criminal courts. By judgment
dt.1.12.2009 in WP(C).31562/2009, it was held
that commencement of prosecution proceedings is
different from the framing of charge and the
ratio in Vijayan’s case, 2002 (3) KLT 646, would
apply only to cases where the question of framing
a charge by court is to be relevant vis-a-vis the
registration of a first information report by the
police.
7.In the case in hand, it is quite obvious that the
Commissioner of Excise had not taken into
consideration the time spent by the petitioner in
police custody. It may be true that prosecution
proceedings are pending against him and the
petitioner may face the wrath of Rule 5(3)(i) of
the Disposal Rules. But, equally important is the
fact that the police officers are accused in
person with allegations of unlawful gains and the
allegations against them are, as of now,
following Ext.P25 judgment, being looked into by
WPC26945//09 -: 7 :-
the Vigilance Department. The petitioner, even
going by the counter affidavit, has an
unblemished past of about seven continued years
as licensee under the State of Kerala.
8.A reading of Ext.P20 and Ext.P17 would show that
the decision of the Commissioner is fundamentally
on the ground that the petitioner did not start
operations within a month of the grant. The other
findings are quite incidental and may require
even a second look, having regard to the
allegations against the police officers.
Having regard to what is aforesaid, this writ
petition is ordered directing that Ext.P20 will
be treated as a fresh show cause notice referable
to grounds which are not stated in Ext.P17 and
the Commissioner will hear the petitioner again
after obtaining the views of the authority
looking into the complaints against the police
officers following Ext.P25 judgment. The licences
granted to the petitioner in terms of the interim
WPC26945//09 -: 8 :-
order granted at the time of admission and issued
as per Exts.P24 series will continue to be
applicable till the Commissioner takes a decision
de novo in the light of what is stated above.
THOTTATHIL B.RADHAKRISHNAN,
JUDGE.
Sha/0712