Telangana High Court
D.Suresh vs State Of Telangana And 7 Others on 28 July, 2022
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition No.30678 of 2022
ORDER:
This Writ Petition is filed for issue of a Writ of Mandamus declaring the order passed by the 4th respondent dt.27.05.2022 cnacelling the licence issued in favour of the petitioner bearing No.NIR026/2021-23 dt.16.12.2021 valid from 01.12.2021 to 30.11.2013 by invoking the powers vested in him under Section 31(1)(b) of the Telangana Excise Act, 1968 (for short, 'the Excise Act'), as illegal, arbitrary and in violation of Articles 14 and 19 (1)(g) of the Constitution of India, apart from contrary to the provisions of the Excise Act and the Telangana Excise (Grant of Licence of Selling by Shop and Conditions of Licence) Rules, 2012 (for short, 'the Rules').
2. Heard Sri V.Ravi Kiran Rao, learned Senior Counsel, appearing for Sri V.Rohith, learned counsel for the petitioner, and learned Government Pleader for Prohibition and Excise and perused the record.
3. The petitioner, by drawing the attention of this Court to proceedings dt.16.05.2022, under which the petitioner's licence was suspended, would contend that the 4th respondent had conducted search at the petitioner's premises on 16.05.2022 at 9.30 p.m., wherein it is alleged that the petitioner is selling IFML, which is non- 2 duty paid liquor, and permitted to be sold only in Goa in his A4 licence shop under the Excise Act, thereby, contravened the provisions of the Excise Act.
4. Learned Senior Counsel would contend that the respondent authorities having conducted search at the premises of the petitioner on 16.05.2022 at 9.30 p.m., could not have issued proceeding suspending the licence on the same day, which clearly goes to show that the action is premeditated action; that based on the said proceeding, the 4th respondent had issued the impugned proceeding, whereby the licence granted to the petitioner for the period from 01.12.2021 to 30.11.2013 was cancelled. Thus, it is contended that the entire action of the respondent authorities is vitiated.
5. Learned Senior Counsel would further contend that the authorities under the Excise Act have power to compound offence and by drawing the attention of this Court, in specific to Section 47A of the Excise Act, would submit that even in case where a crime is registered under Section 34(a) and 34(1) of the Excise Act, the power to compound is vested with the Commissioner and thus, even before the petitioner seeking for compounding of such offence, the impugned cancellation proceeding is issued, depriving the petitioner of his right to seek for compounding of the offence alleged against him. By the said 3 action, the respondents have interfered with the petitioner's right to carry on trade, violating Article 19(1)(g) of the Constitution of India.
6. Learned Government Pleader for Prohibition and Excise appearing for the respondents submits that on 16.05.2022, the petitioner's premises were searched, wherein it was found that the petitioner was selling non-duty paid liquor in contravention of the provisions of the Excise Act, in particular Section 31(1) and 34(a) of the Excise Act, and the offence alleged against the petitioner is a grievous one, and thus, the action of the authorities in cancelling the licence of the petitioner, is justified.
7. However, learned Government Pleader does not dispute the power conferred under Section 47 and 47A of the Excise Act on the authorities for compounding offences specified therein, which includes the offence under Section 31(1) and 34(a) of the Excise Act and the contingencies envisaged therein. He would further submit that the petitioner had already invoked the jurisdiction of the Commissioner by filing an application under Section 47A of the Excise Act seeking compounding of the offence, on 03.06.2022, and thus, he cannot be permitted to ride on two boats simultaneously.
8. I have taken note of the submissions made by the learned counsel appearing for the parties.
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9. Without going into various contentions urged with regard to the impropriety of the order of suspension of licence passed by the 4th respondent and the subsequent cancellation of A4 licence granted to the petitioner by the impugned proceeding, since the petitioner has already made an application on 03.06.2022 to the Commissioner, this Court is of the view that the said application can be directed to be considered as an application under Section 47A of the Excise Act and the Commissioner is directed to take a decision thereon.
10. Further, since it is contended that the application is not explicit with all the details and the relief being sought, this Court is of the view that the petitioner also can be permitted to file additional/ supplementary representation to the said application made on 03.06.2022 within a period of one week from today. Upon the petitioner making such additional/supplementary application, the 2nd respondent, who is empowered under Section 47A of the Excise Act, to decide the same within a further period of two weeks therefrom, after affording an opportunity of personal hearing to the petitioner, and communicate its decision to him.
11. Subject to the above direction, the Writ Petition is disposed of. No order as to costs.
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12. Consequently, miscellaneous petitions pending, if any, shall stand closed.
_________________ T. VINOD KUMAR, J Date:28.07.2022 Note:
Issue C.C. by 30.07.2022.
(B/o) GJ