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2008 DIGILAW 1186 (ORI)

RAMESH KUMAR GUPTA v. STATE OF ORISSA

2008-12-24

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - The Petitioner in his writ application challenges the order passed by the Collector, Mayurbhanj in Annexure-8 recommending for cancellation of the licences granted in favour of the Petitioner in respect of five IMFL "Off shops at Karanjia Golei Chhak, Bisoi, Jashipur, Sukruli and Chandabhol, the order passed by the Excise Commissioner in Annexure-9 recommending for cancellation of the licence of the said shops, the order in Annexure-11 cancelling the licences of the said shops for the remaining period of 2008-2009 as well as the seizure of some liquor bottles and other articles under Annexure-12 series. 2. The Petitioner is an exclusive privilege licence in respect of IMFL Off shops at five places namely, Karanjia Golei Chhak, Bisoi, Jashipur, Sukruli and Chandabhol. All the licences are valid up to 30th September, 2008. The Petitioner claims to have paid the consideration money for a period of four months in respect of each shop which has been kept as security and such money is to be adjusted towards monthly consideration for the last four months i.e. from December, 2008 to March, 2009. Apart from the above, the Petitioner claims to be paying monthly consideration amount each month as per the terms and conditions of the licence. The further case of the Petitioner is that though he has been operating the licences for last three years without any blemish, on 6.5.2008 the Sub-Inspector of Excise EI & EB, Unit II, Cuttack sealed one of the shops situated at Karanjia Golai Chhak. On the said date, the Petitioner was not present but when one of the authorized sales man came to the shop at 9.30 A.M., he found the same to have been sealed and on enquiry he learnt that it had been sealed by the Excise authorities. Having come to know about the above, the Petitioner made a representation to the Collector on 9.5.2008 praying for communication of the reasons for closing the shops by putting a seal thereon. Though there was no response to such representation, upon further enquiry, it came to the knowledge of the Petitioner that a team of Excise Officers conducted a raid in the house of Debendra Kumar (brother of the Petitioner) and found some incriminating materials. Though there was no response to such representation, upon further enquiry, it came to the knowledge of the Petitioner that a team of Excise Officers conducted a raid in the house of Debendra Kumar (brother of the Petitioner) and found some incriminating materials. It is the case of the Petitioner that the said Debendra Kumar was living separately for a considerable length of time and they do not pull on well and there are disputes between them. Taking advantage of such relationship, the said Debendra Kumar falsely implicated the Petitioner by stating that the Petitioner is also involved in sale of duplicate liquor. On the bass of such statement, not only the shop at Karanjia was sealed, but also steps for cancellation of licence in respect of all the five OFF shops were taken and ultimately a written order was passed canceling the licence granted in favour of the Petitioner in respect of five 'IMFL OFF' shops. 3. Shri Ashok Mohanty, the learned senior counsel appearing for the Petitioner assails the orders on two grounds. The first ground taken by the learned Counsel is that no incriminating material has been seized from any one of the shops of the Petitioner and, therefore, the licence in respect of any one of the shops could not have been cancelled merely on the statement of the brother of the Petitioner with whom he has family disputes. The other ground taken by the learned senior counsel appearing for the Petitioner is that if the Excise authorities were of the view that the Petitioner was involved in sale of duplicate liquor his shop at Karanjia could be sealed and steps could be taken for cancellation of licence of that shop, but there was no reason for the Excise authorities to cancel licence in respect of all the five shops for the last three years without any allegation whatsoever from any quarter. 4. The learned Counsel for the State with reference to the counter affidavit submitted that u/s 42 of the Bihar and Orissa Excise Act, it is permissible to cancel all the licences, if there is violation of terms and conditions of such licences in respect of one shop. 4. The learned Counsel for the State with reference to the counter affidavit submitted that u/s 42 of the Bihar and Orissa Excise Act, it is permissible to cancel all the licences, if there is violation of terms and conditions of such licences in respect of one shop. It was also contended by the learned Counsel for the State that in view of the statement of Debendra Kumar, who is admittedly the brother of the Petitioner, there can not be any doubt in mind that the Petitioner was also involved in selling duplicate liquor, specifically considering the fact that some duplicate liquor bottles were also seized from the Karanjia shop. 5. So far as first ground taken by the learned Counsel appearing for the Petitioner is concerned, we find from the explanation submitted by the Petitioner in Annexure-6 that the following statement has been made by the Petitioner in pagagraph-4 of his explanation: That, it is further humbly submitted that the fact remains one Debendra Kumar Gupta has been arrested and forwarded to the Court. As it is learnt that the said Debendra Kumar has been falsely arrested by S.I. of Excise E.I. & E.B. Unit-II, Orissa Cuttack and from alleged house where contraband articles were seized does not belong to the Debendra Kumar and he has not dealt with any liquor business. It is further learnt that due to rivalry in business the said case has been falsely instituted by Excise department being instigated by some local businessman and inimical person and in other words no incriminating articles has been seized from exclusive conscious possession of the Debendra Kumar. More to say so far the knowledge of the notice that Sri Debendra Kumar being inhabitant of village Sarubali and by profession is a transporter and his deals only with transporting business. Further to the best of knowledge of the notice Sri Debendra Kumar never involve in any illegal act during his life time nor any short of criminal case is pending or sub-judice against him. As such, if any judicial proceeding in connection the licence shop of the notice is fabricated or foisted only for legal harassment and humiliation instrumentalising this judicial proceeding for the various extraneous reasons. 6. As such, if any judicial proceeding in connection the licence shop of the notice is fabricated or foisted only for legal harassment and humiliation instrumentalising this judicial proceeding for the various extraneous reasons. 6. It is clear from the above that though in the writ application it is stated that the Petitioner has family disputes with the said Debendra Kumar, he has tried his best to defend the said Debendra Kumar in his explanation. We are therefore of the view that the first ground taken by the learned Counsel for the Petitioner has no substance. 7. From the seizure list, Annexure-5, it appears that some bottles of liquir had been seized from the Karanjia shop of the Petitioner which did not have the company label supplied by the State of Orissa and it was prima facie found to be duplicate liquor. Therefore, the contention of the learned Counsel for the Petitioner that no incriminating material had been seized from any one of the shops of the Petitioner is not based on record and from one shop i.e. at Karanjia some bottles of liquor were seized having no company label or the label supplied by the State Government to the pasted on the bottles. Section 42 of the Bihar and Orissa Excise Act empowers the State Government to cancel or suspend the licence in the event there is contravention of terms and conditions of licence. There is nothing in the section to show hat in the event, the State Government intends to cancel all the licences of a particular licence because of contravention of the terms and conditions of licence in respect of one shop, an opportunity of hearing has to be given in respect of other shops for which there is no allegation of contravention terms and condition of the licence. Sub-section (2) of Section 42 clearly provides that when an exclusive privilege, licence, permit or pass held by any person is cancelled, the authority may also cancel any other exclusive privilege, licence, permit or pass granted to such person and such action can be taken in a composite order instead of passing separate orders for each exclusive privilege, licence, permit or pass. We, therefore do not find any substance in the second contention of the learned Counsel appearing for the Petitioner. 8. We, therefore do not find any substance in the second contention of the learned Counsel appearing for the Petitioner. 8. There being materials on record to show that seizure had been made in respect some liquor bottles having no company label or the label supplied by the State Government from one of the shops and prima facie the same having found to be duplicate, we are of the view that the State had competency u/s 42 of the Act to cancel the licences in respect of all the five shops and there is no illegality in the orders impugned before us. Accordingly, we do not find any merit in the writ application and dismiss the same. Final Result : Dismissed