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2009 DIGILAW 1059 (KER)

Chacko v. Taluk Supply Officer

2009-11-05

P.N.RAVINDRAN

body2009
JUDGMENT : The petitioner is the licencee authorised to run ARD No. 194 of Kunnathunadu Taluk. The licensed premises bears door No. 1/401 of Puthencruz Grama Panchayat. Formerly the door number was 2/373. Late in the night of 19.6.2009, the petitioner was arrested by the Sub Inspector of Police, Ambalamedu, and Crime No. 419 of 2009 of Ambalamedu Police Station was registered against him under Ss.3 and 7 of the Essential Commodities Act and Cl.5(a) of the Kerala Rationing Order, 1966 on the allegation that four bags of rationed rice were transported by him in an autorickshaw. He was enlarged on bail and released from custody by about 5 p.m. on 20.6.2009. After the petitioner was arrested, the premises where he was running ARD No. 194 was sealed by the Police on 19.6.2009 itself and Ext. P9 mahazar was prepared. While the petitioner was in custody, the fourth respondent inspected the business premises of the petitioner without notice to him. He thereafter issued Ext. P3 order dated 22.8.2009 stating that on inspection there was shortage of 500 kgms of BPL raw rice and 452 litres of kerosene besides certain other minor defects. On that ground, the Taluk Supply Officer suspended the licence issued to the petitioner to run ARD No. 194 under Cl.45(8) of the Kerala Rationing Order, 1968. In this Writ Petition, the petitioner challenges Ext. P3 order. He contends that before Ext. P3 order was passed, he was not put on notice or heard. He further submits that his business premises was inspected on 20.06.2009 while he was in the Police custody and therefore, the findings based on the inspection conducted on 20.6.2009 cannot be used against him. The petitioner also challenges the competence of the Taluk Supply Officer to suspend or cancel the licence issued to him. 2. The first respondent has filed a counter-affidavit justifying the action taken by the fourth respondent. It is stated that when the petitioner's business place was inspected on 20.6.2009, 452 litres of kerosene and 500 kgms of raw rice were found in a room adjacent to the ration depot. On noticing this irregularity, the licence issued to the petitioner was suspended. The first respondent has filed a counter-affidavit justifying the action taken by the fourth respondent. It is stated that when the petitioner's business place was inspected on 20.6.2009, 452 litres of kerosene and 500 kgms of raw rice were found in a room adjacent to the ration depot. On noticing this irregularity, the licence issued to the petitioner was suspended. Relying on the last portion of second limb of Cl.45 of the Kerala Rationing Order, it is contended that when the licence issued to the authorised distributor is temporarily suspended pending enquiry, no notice or opportunity of being heard is contemplated. Reliance is placed on the decision of a learned Single Judge of this Court in Abdul Azees Kunju v. District Supply Officer ( 1999 (3) KLT 303 ) in support of the said contention. 3. I heard Sri. G. Krishna Kumar, the learned counsel appearing for the petitioner and Sri M.R.Sabu, the learned Senior Government Pleader appearing for the respondents. I have also gone through the files leading to Ext. P3, that was made available as directed by this Court. Ext. P3 order was preceded by an inspection conducted at 11.15 a.m. on 20.6.2009. At that time the petitioner was admittedly in police custody. He was enlarged on bail only in the evening of that day. Therefore it is evident that before the inspection was conducted, the petitioner was not put on notice. Nor was the inspection conducted in his presence. In the report prepared after inspection on 20.06.2009 it is stated that in the room adjoining the licensed premises (the licenced premises bears door No.1/401 and the adjoining room bears door No.1/400) 500 Kgms of raw rice and 452 litres of kerosene were found. In Ext. P9 mahazar prepared by the Police before the business premises of the petitioner was sealed it is stated that the licensed premises bears door No. 1/400. It is also stated that the room lying to the south of the business premises bears door No. 1 MOO and the room further south bears door No. 1/399. However the mahazar does not state that there are separate entrances to the said rooms from the main road which passes along the western side of the building. It is evident from the inspection report and also from Ext. P9 mahazar prepared by the Police that the licenced premises bears door No. 1/401. The allegation in Ext. However the mahazar does not state that there are separate entrances to the said rooms from the main road which passes along the western side of the building. It is evident from the inspection report and also from Ext. P9 mahazar prepared by the Police that the licenced premises bears door No. 1/401. The allegation in Ext. P3 order is that in the room adjoining the licensed premises (the adjoining room bears door No. 1/400) 500 kgms of raw rice and 452 litres of kerosene were kept. 4. As noticed earlier, the inspection report and mahazar are silent as to whether there is a separate entrance to the room bearing door No. 1/400 from the road on the western side. On the other hand, the inspection report prepared on 20.06.2009 would reveal that the building bearing door No. 1/400 (the adjoining room) is accessible from the licenced premises bearing door No. 1/401. Apart from the statements in the inspection report which admittedly was prepared in the absence of the petitioner and at a time when he was in police custody, there is no material to show that as claimed therein and in Ext. P3 order rationed articles were stored in building bearing door No. 1/400. If the articles alleged to have been kept in room bearing door No. 1/400 are also taken into account, there is really no shortage of BPL raw rice or kerosene. As per the statement in Ext. P3 and in the inspection report, the shortage is of 500 kgms of BPL raw rice and 452 litres of kerosene. In the inspection report it is stated that 500 kgs of raw rice and 452 litres of kerosene are stored in the adjoining room. If the said quantity of rationed articles is taken into account, there will be no shortage as claimed by the respondents. 5. In the inspection report it is stated that 500 kgs of raw rice and 452 litres of kerosene are stored in the adjoining room. If the said quantity of rationed articles is taken into account, there will be no shortage as claimed by the respondents. 5. Clause 45(8) of Kerala Rationing Order stipulates that if the District Collector or any officer of the Civil Supplies Department not below the rank of a Taluk Supply Officer finds on his own inspection that there is any shortage or excess in the quantity of rationed articles or any irregularities in the accounts or detects non-compliance with any of the directions, issued by the competent authorities, he may after giving the authorised retail distributor an opportunity of stating his case and for reasons to be recorded in writing amend, vary, suspend or cancel his appointment and/or order forfeiture of the whole or any part of the amount deposited by the authorised retail distributor as security. The second limb of Cl.45(8) further stipulates that if considered necessary, the said officer may suspend the appointment of the authorised retail distributor temporarily pending enquiry. A learned Single Judge of this Court has in Abdul Azees Kunju v. District Supply Officer ( 1999 (3) KLT 303 ) interpreted the said provision and held that to exercise the power of suspension temporarily pending enquiry, no notice is required to be issued. A Division Bench of this Court has in Kumaranellur Co-operative M. Society v. V.B.K.Menon (1985 KUC 177) held interpreting Cl.51(8) which is pari materia with Cl.45(8) that the power to suspend can be exercised only with notice to the licencee. It was held that before action under Cls. 51(8) and 51(9) is taken, the dealer is entitled to an opportunity to present his case. It was held that an order which is issued without notice and opportunity to the dealer is void being one issued in violation of the principles of natural justice. The decision of the Division Bench was not brought to the notice of the learned single Judge who decided Abdul Azees Kunju v. District Supply Officer (supra). 6. In the instant case, it is not in dispute that the inspection conducted on 20.06.2009 was without notice to the petitioner and at a time when he was in Police custody. The decision of the Division Bench was not brought to the notice of the learned single Judge who decided Abdul Azees Kunju v. District Supply Officer (supra). 6. In the instant case, it is not in dispute that the inspection conducted on 20.06.2009 was without notice to the petitioner and at a time when he was in Police custody. Even going by the statements in the inspection report it is evident that there was in fact no shortage of rationed articles. Shortage is sought to be established by stating that in the room adjoining the licensed premises some items of rationed articles are kept. The statement in the inspection report that rationed articles were kept in the adjoining room cannot in my opinion be held out against the petitioner for the reason that the inspection was without notice to him. Further, the report is signed only by the Rationing Inspector. There are no independent witnesses to the inspection report. Though it is stated that the Sub Inspector of Police was present through out the inspection, the Sub Inspector has not subscribed his signature to the inspection report. In my opinion as the inspection was conducted behind the petitioner's back and in the presence of the Sub Inspector of Police, no reliance can be placed on the statement in the inspection report that in the adjoining room the petitioner had kept rationed articles. If the said articles are also taken into account, there is really no shortage worth mentioning apart from the difference in stock of a few kilograms of rice. I am therefore persuaded to hold that the inspection report which was prepared behind the back of the petitioner and without notice to him at a point of time when he was in Police custody, cannot be relied on to suspend his licence. Further after the petitioner was arrested on 19.06.2009 his business place was sealed by the police on the very same day. It was inspected in the morning of 20.06.2009 by the Rationing Inspector. He could have waited till the evening of that day or the next day and conducted the inspection in the presence of the petitioner. The respondents were aware that he was in Police custody. Even though he was in police custody, with the assistance of the Police the respondents could have brought him to the premises to conduct the inspection. He could have waited till the evening of that day or the next day and conducted the inspection in the presence of the petitioner. The respondents were aware that he was in Police custody. Even though he was in police custody, with the assistance of the Police the respondents could have brought him to the premises to conduct the inspection. I am therefore persuaded to hold that the order suspending the licence issued to the petitioner to run ARD 194 cannot be sustained. 7. In the result, I allow this Writ Petition, quash Ext. P3 and direct the respondents to forthwith restore the licence issued to the petitioner to run ARD No.194 to the petitioner. Necessary steps in that regard shall be taken and completed within one week from the date on which the petitioner produces a certified copy of this judgment before the Taluk Supply Officer, Kunnathunadu Taluk.