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2019 DIGILAW 2353 (RAJ)

Mangi Bai v. Union of India

2019-09-02

DINESH MEHTA

body2019
JUDGMENT : Dinesh Mehta, J. 1. As all these writ petitions involve common facts and questions, they are being decided by this common order. 2. Facts of S.B. Civil Writ Petition No. 5545/2019 (Smt. Mangi Bai Vs. Union of India & Ors.) are taken into consideration, as a lead case. 3. The petitioner was granted a license for cultivation of opium by the District Opium Officer - respondent No. 9 for the crop year 2016-2017. After cultivation, a sample of 50 gm was drawn and his produce/crop was sent by the District Opium Officer, Division-I, Chittorgarh to Govt. Opium and Alkaloid Factory, Ghazipur (UP). Said sample of 50 gm was however sent to respondent No. 5 - Government Opium & Alkaloid Factory, Neemuch. 4. When the petitioner's sample from the container was examined at Ghazipur factory, it was found to be containing less than 9% Morphine and thus, treated to be inferior in quality. A communication/notice dated 13.10.2017, was issued by the District Opium Officer, intimating the petitioner that his crop was found inferior in quality and, thus, the sample of 50 gm already drawn would be examined at Govt. Opium & Alkaloid Works at Neemuch. 5. Petitioner was advised and was thus present, when the sample drawn from his crop was examined at Neemuch. It was found to be containing 13.39% Morphine and, thus, good in condition and a report dated 24.10.2017 was prepared in this regard. 6. The Chief Controller of Factories at Neemuch, however, got re-examination of petitioner's produce done at Ghazipur, without intimating the petitioner. The result of re-examination at Ghazipur again showed that petitioner's container did not conform to the requisite standard. 7. Meanwhile, petitioner applied for license to produce opium for next year i.e. Crop Year 2017-18. Said application was refused in light of the notification dated 15.05.2017. 8. The petitioner preferred an appeal under Rule 28(1)(a) of the Narcotic Drugs and Psychotropic Substance Rules, 1985 against refusal of his license for the crop year 2017-18. 9. Petitioner's aforesaid appeal came to be rejected by the appellate authority, vide its order dated 10.10.2018. Said application was refused in light of the notification dated 15.05.2017. 8. The petitioner preferred an appeal under Rule 28(1)(a) of the Narcotic Drugs and Psychotropic Substance Rules, 1985 against refusal of his license for the crop year 2017-18. 9. Petitioner's aforesaid appeal came to be rejected by the appellate authority, vide its order dated 10.10.2018. The appellate authority affirmed the decision of the respondent No. 3 and held that the petitioner is not eligible and entitled for license for the Crop Year 2017-18, while observing that "the petitioner's product (opium) has been found to be inferior twice, on the basis of the sample taken from containers in factory". 10. Petitioner has preferred instant writ petition challenging both the orders : the order of appellate authority dated 10.10.2018, so also the order of rejection of her sample. 11. Mr. Dinesh Godara, learned counsel for the petitioner firstly, challenging communication dated 19.03.2018, Annexure-14 (rejecting petitioner's sample), contended that as per the settled/past practice, once the Ghazipur factory finds the quality of the produce of a cultivator inferior, sample at Neemuch factory is examined and the certificate given by the factory at Neemuch is taken as conclusive. He invited Court's attention towards the communication dated 24.08.2017, and argued that as per the communication written by the Assistant Narcotics Commissioner, the re-test of the sample drawn, is in the nature of conformity test, and the same is to be considered final. 12. He further submitted that indisputably petitioner's sample was found in order by the Neemuch factory, hence, respondent No. 3 was not justified in re-testing the sample at his own accord and that too behind petitioner's back. 13. He showed concern that it was because of the second test, that petitioner's application for the subsequent year (2017-18) too has been rejected, while branding such action to be arbitrary and contrary to settled practice. 14. Mr. N.K. Rai, learned counsel appearing for the respondent - District Opium Officer, submitted that since the petitioner's sample was found inferior in quality, on two occasions, rejection of her produce so also refusal to grant license for the crop year 2017-2018 was justified. He added that petitioner's sample has been rightly rejected on both the occasions, as the sample/produce of the petitioner was found to be containing less than 9% Morphine. 15. Mr. He added that petitioner's sample has been rightly rejected on both the occasions, as the sample/produce of the petitioner was found to be containing less than 9% Morphine. 15. Mr. Nrapen Shanker Acharya, learned counsel appearing for the respondent Union of India submitted that the petitioner's reliance upon communication dated 24.08.2017, is misplaced, inasmuch as, the communication dated 24.08.2017 is only an intermediary communication in the series of communications which led final order/notification dated 11.12.2017 of the Govt. of India, Ministry of Finance, Department of Revenue. He pointed out that said order dated 11.12.2017 clearly provided that "the cultivators whose opium has been found to be inferior twice on the basis of samples taken from containers in factory should be declared as inferior". 16. After arguing for some time, learned counsel for the petitioners chose not to press these writ petitions, realising that as the relief claimed for rejection of license for crop year 2017-18 has been rendered academic. 17. Inviting attention of the Court towards notification dated 15.05.2017, he submitted that two years' period (from 2016-17) has since lapsed and having suffered rejection for crop year 2017-18 for the purported failure to maintain the quality, petitioners would look forward for grant of license for year 2019-2020. He however, prayed that the respondents be directed to consider petitioners' applications for crop year 2019-20 in accordance with law, uninfluenced by the fact that their samples during year 2016-17 had been rejected. 18. In opinion of this Court, writ petitions qua rejection of their sample and applications for grant of license for crop year 2017-2018 have been rendered infructuous. This Court however does not find any impediment in petitioners' way of getting license for crop year 2018-19 in teeth of allegation or finding of samples being inferior for the crop year 2016-17. The notification dated 15.05.2017 clearly provides that if a sample for the crop year 2016-2017 is found to be adulterated or classified as 'inferior', such producers will not be eligible for license in the next crop year 2017-2018. It will not be out of place to reproduce relevant part of the notification dated 15.05.2017, which reads thus: "(iv) Cultivators whose opium for the crop year 2016-17 is found to be adulterated or classified as 'inferior' by the Government Opium & Alkaloid Works Neemuch or Ghazipur will not be eligible for license in the next crop year 2017-18. It will not be out of place to reproduce relevant part of the notification dated 15.05.2017, which reads thus: "(iv) Cultivators whose opium for the crop year 2016-17 is found to be adulterated or classified as 'inferior' by the Government Opium & Alkaloid Works Neemuch or Ghazipur will not be eligible for license in the next crop year 2017-18. The Government Opium and Alkaloid Works Neemuch or Ghazipur will declare the opium to be 'inferior' if the morphine strength of opium is less than 9% on dry basis." 19. Petitioners may apply for grant of license for crop year 2019-20. The respondent shall decide their applications in accordance with law, dispassionately, unfazed and uninfluenced by the fact that their samples for the crop year 2016-17 were rejected and writ petitions their against have been withdrawn. 20. Mr. N.K. Rai, learned counsel for the respondent - District Opium Officer assured that the respondent(s) shall obviously proceed in accordance with law and no vindictive action shall be taken against the petitioners. 21. The writ petitions are thus disposed of, so also the stay petitions.