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2003 DIGILAW 136 (AP)

Geetanjali Wines, Nalgonda v. P. Bhaskar Reddy

2003-01-24

GHULAM MOHAMMED

body2003
GHULAM MOHAMMED, J. ( 1 ) SINCE the controversy involved in these writ petitions is interconnected, both the writ petitions are being disposed of by this common order. ( 2 ) WRIT Petition No. 18302 of 2002 is filed assailing the action of the respondents 1 and 2 in seizing the petitioner s IL-224 wine shop and stocks on 17-9-2002 vide FIR No. 353 of 2002-03, as bad in law, violative of principles of natural justice and contrary to the judgment of this Court reported in 2002 (1) alt 108 (D. B.) and consequently direct the respondents 1 and 2 to restrain themselves from illegally visiting/harassing the petitioner without following the due process of law and also for a further direction to the respondents 3 and 4 to initiate disciplinary proceedings against respondents 1 and 2 in the interest of justice. ( 3 ) THE complaint of the petitioner in this writ petition is that the Inspector, and the sub-Inspector of Nalgonda Excise Station, respondents 1 and 2 herein came to his shop with two persons on 16-9-2002 and also bought with them two bottles of whisky and they kept the same in the shop and made the nowkarnama holder to sign on the blank papers and thereafter the shop was locked with the their own lock and key. It is further stated that on the next day the respondents 1 and 2 seized the stocks and kept them under their custody and registered a false case vide FIR No. 353/2002-03, under sec. 36 (c) of the A. P. Excise Act, 1968 r/w. Rule 17 (2) of the A. P. Excise Rules, 1993, against the licence holder on the alleged ground of possession spurious liquor in the licensed premises and as consequence thereof, the licence of Geetanjali Wines, was suspended by order dated 21-9-2002. The petitioner categorically asserts that respondents 1 and 2 have resorted to this recourse, solely for the reason that the petitioner was not giving them mamools/ bribe . The petitioner categorically asserts that respondents 1 and 2 have resorted to this recourse, solely for the reason that the petitioner was not giving them mamools/ bribe . ( 4 ) WRIT Petition No. 19013 of 2002 is filed questioning the order of suspension of the licence, until further orders, on the ground that the action of the 3rd respondent in suspending the licence as illegal and contrary to the judgment of this Court reported in 2002 (1) ALT 108 (D. B.) and consequently direct the respondents to allow the petitioner to run his ship without any hindrance in the interest of justice. ( 5 ) IN view of the specific allegation that the respondents 1 and 2 have seized the stocks from the petitioner s wine shop and locked the same with their own keys as they were not given mamools/bribe , this Court by order dated 23-9-2002 directed that the matter be examined by the Director, ACB, a. P. , Hyderabad, and to submit a report on the allegations made by the petitioner in the writ petition. In pursuance of the directions issued, a report dated 23-10-2002 is submitted. In the report it is staled that payment of maniool by the licensees to the excise Officers is prevalent in Nalgonda district and that it is not uncommon that the licensees are harassed by the Excise Officials for non-payment of bribes. ( 6 ) IN the counter-affidavit filed by the 1st respondent-Prohibition and Excise inspector, SHO Nalgonda, it is stated that the allegations made against them are false and concocted for the purpose of filing the writ petition and to gain favourable orders. It is also stated that in pursuance of the instructions given by the Dy. Commissioner of Prohibition and Excise, a check was conducted on the petitioner s shop on 17-9-2002 and found two nips of (180 ML) spurious liquor of Officers Choice whisky and on interrogation the vendor stated that he had purchased one carton containing (48 bottles) from an unknown person for a sum of Rs. 1,440. 00 and sold away all the stocks except two bottles which were seized from the premises. It is further stated that the statement of the said person was recorded in the presence of the mediators and accordingly seized the spurious liquor and thereafter a case was registered against the licencee. 1,440. 00 and sold away all the stocks except two bottles which were seized from the premises. It is further stated that the statement of the said person was recorded in the presence of the mediators and accordingly seized the spurious liquor and thereafter a case was registered against the licencee. The 1st respondent also denied the allegation that the nowkamama holder was made to sign on the blank papers, It is also stated that the petitioner made a presentation dated 1-10-2002 to ire Dy. Commissioner of Prohibition and Excise, mahaboobnagar Division, seeking to compound the offence, and, therefore, there are no merits in the writ petition and the same is liable to be dismissed, ( 7 ) HEARD the learned councel for the petitioner, learned Government Pleader for Probition and Excise and mr. G. Chandariah for party respondents. ( 8 ) THE contention of learned counsel for the petitioner is that a false case was booked against the petitioner for non-payment of monthly mamool to the Excise Officers. It is further contended that the so-called spurious liquor bottles were planted in the petitioner s shop with a mala fide intention. It is also stated the mediator to the search and seizure, during their examination denied to have been present throughout proceedings and also denied to have seen the recovery of the spurious liquor bottle in the petitioner s shop and therefore the action of the respondents 1 and 2 in seizing the stocks and locking the shop and the action of the 3rd respondent in suspending the licence is illegal, arbitrary and is nothing but colourable exercise of power to harm and harass the licensees for their own ends. ( 9 ) ON the other hand, learned government Pleader for Prohibition and excise submits that the seizure of the stocks and the consequential suspension of the licence of the petitioner s wine shop was effected as per the provisions of the A. P. Excise Act, 1968 and the Rules made thereunder. It is further stated that a mediators report was drawn to the effect that two bottles of spurious liquor was seized from the shop resulting to the seizure of the stock. It is further stated that the petitioner being a IL-24 licensee has violated the conditions of licence by selling spurious liquor and therefore the licence of the petitioner was suspended, until further orders. It is further stated that the petitioner being a IL-24 licensee has violated the conditions of licence by selling spurious liquor and therefore the licence of the petitioner was suspended, until further orders. It is stated that the Division Bench judgment of this in K. Srinivasa Reddy v. Superintendent, Prohibition and Excise is not applicable to the facts of the case as in this case the petitioner s IL-24 licence is not suspended as a measure of punishment and it is only suspension, pending enquiry. ( 10 ) THE grievance made in Writ Petition no. 18302 of 2002 is that the respondents 1 and 2 are harassing him and depriving him from doing his business, without following the due process of law, as the petitioner is not paying monthly mamools/bribe to them. However, no acceptable material is placed before this Court by the petitioner to infer that the respondents 1 and 2 have resorted to this recourse as the petitioner failed to pay mamools/bribe as demanded by them. As seen from the report dated 23-10-2002 submitted by the Director, ACB, a. P. Hyderabad, it is clear that payment of mamools/bribes by the licensees to the excise officials is prevalent in Nalgonda, but none of the licencees who stated to have paying mamools/bribes came forward to give evidence, may be fearing reprisal by the excise officials. Whether the respondents 1 and 2 have demanded mamools/bribes as alleged by the petitioner and whether the seizure of stocks is in consequence thereof, are all questions of fact, which cannot be adjudicated by this Court under Article 226 of the Constitution. ( 11 ) IN the circumstances, the 4th respondent-Commissioner Excise and prohibition, A. P. , Hyderabad, is directed to cause an enquiry into the matter by appointing a senior official from the department and take appropriate effective measures based on the report to be submitted by the said officer to prevent abuse of statutory power conferred on the excise officers, more particularly in the lower rung. ( 12 ) INSOFAR as the relief sought in Writ petition No. 19013 of 2002, inasmuch as the petitioner has an effective alternative remedy by way of filing an appeal as against the impugned order dated 21-9-2002, to the deputy Commissioner, under Section 63 of the A. P. Excise Act, 1968, without going into the merits of the case, the petitioner is permitted to file an appeal under Section 63 of the A. P. Excise Act, 1968, within a period of one week from the date of receipt of a copy of this order and on such an appeal being filed by the petitioner, the Deputy commissioner, Prohibition and Excise, concerned, is directed to dispose of the appeal within a period of two weeks thereafter after considering the matter objectively and after giving opportunity of making representation to the petitioner in the matter. ( 13 ) THE writ petitions are disposed of with the above directions. No costs.