Madras High Court
Vasnatha Meena Enterprises vs Baskaran on 6 June, 2011
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 6.6.2011
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
Contempt Petition No.1563 of 2010
Vasnatha Meena Enterprises
rep. by its Proprietrix, N.M.Sathammai
W/o.V.Meenakshi Sundaram
16-D, 3rd Floor, Postal Audit Colony
Chinmaya Nagar, Chennai 92. .. Petitioner
Vs.
1. Baskaran
Director of Drugs Control
DMS Complex, Chennai 6.
2. Vijayalakshmi
Assistant Director of Drugs Control
Zone-III, DMS Compound
Chennai 6.
3. Bharani Kumar
Deputy Superintendent of Police, CBCID
SIDCO Electronic Complex
Block-3, 1st Floor, Industries Estate
Guindy, Chennai 32. .. Respondents
PRAYER : Petition under Section 11 of the Contempt of Courts Act praying to punish the respondents for their wilful act of committing contempt of the court in disobeying the order of this Court dated 18.8.2010 made in W.P.No.11239 of 2010.
For Petitioner : Mr.N.Jothi
for Mr.M.C.Govindan
For Respondents : Mr.P.Wilson
Additional Advocate General
assisted by Mr.G.Sankaran
Special Govt. Pleader
and Mr.K.Balasubramanian
Special Govt. Pleader
ORDER
The contempt complained of is in respect of the order dated 18.8.2010 passed in W.P.No.11239 of 2010.
2.1. The said writ petition (W.P.No.11239 of 2010), which has been filed by Vasantha Meena Enterprises, which is a proprietary concern represented by its Proprietrix, was taken for disposal along with another writ petition in W.P.No.11240 of 2010 filed by Meena Health Care (P) Limited, which is a company registered under the Companies Act, represented by its Managing Director, V.Meenakshisundaram, who is the husband of N.M.Sathammai. The said writ petitions were filed challenging the orders of the second respondent, viz., the Assistant Director of Drugs Control, Zone-III, directing to appear for an enquiry and for a direction against the second respondent to grant sufficient time to answer the show cause notice dated 20.3.2010.
2.2. According to the petitioner, her family, including her husband, who is the Manager of the petitioner/proprietary concern, has been doing the business in medicine and drugs after obtaining permission, licence, etc. in the name of Vasantha Enterprises, Vasanthameena Enterprises and Meena Health Care Private Limited. The licence has been granted by the authorities under the Drugs and Cosmetics Act, 1940 (for brevity, "the Act") and the Drugs and Cosmetics Rules, 1945 (for brevity, "the Rules") framed thereunder.
2.3. It is stated that based on a complaint given by the Drugs Inspector, Perambur Range against her husband, he surrendered before the police authorities on 23.3.2010 and was taken into custody as a detenu under Act 14 of 1982. It is based on the complaint lodged by the Drugs Inspector, Perambur Range against the petitioner's husband, it is stated that the petitioner's business premises was also sealed by the third respondent herein, who was the fourth respondent in the writ petition. It was against the same, the petitioner has filed W.P.No.7986 of 2010.
2.4. In the meantime, the second respondent/licensing authority, through the Drugs Inspector (G.Ammukutty) has issued a show cause notice and the said show cause notice is stated to have been attempted to be served on the premises which has been sealed by the third respondent and in spite of the authorization given by the husband of the petitioner to her advocate, Mr.S.Sudalaikani to obtain the copy of the show cause notice, the second respondent has not issued the same and therefore, the petitioner's husband has filed W.P.No.9162 of 2010 and when the writ petition was moved for admission, an officer from the first respondent's office appeared and on a direction from this Court, the copy of the show cause notice was handed over to the counsel and there was a direction in the writ petition to reply to the show cause notice by 21.5.2010.
2.5. In the meantime, certain interim common orders were passed on 30.4.2010 in W.P.No.7986 of 2010 along with another writ petition filed by her husband in W.P.No.7985 of 2010 in respect of locking of the premises, taking of inventory and filing of report, with a specific direction to keep the premises open in the presence of the representatives of the petitioners for taking inventory/list of articles available in the premises. A further direction was given permitting the petitioners to operate the bank accounts and they were directed to file accounts for the amounts taken from the accounts by 6.5.2010, posting the case on 6.5.2010.
2.6. It is stated that inventory is being carried out and in the meantime, the second respondent has issued a proceeding dated 21.5.2010 directing the petitioner to offer further explanation in person on 25.5.2010 at 3 P.M. in the office of the Assistant Director of Drugs Control, Zone-III, Chennai 6, as a final chance, ignoring the interim reply sent by the petitioner and her husband on 19.5.2010 stating that unless the show cause notice has been completely replied, any truncated reply cannot be a ground to proceed with the enquiry, which will amount to violation of the principles of natural justice and they also sought the report of inspection made by G.Ammukutty, Drugs Inspector, Ashok Nagar Range, Zone-III, Chennai-6.
2.7. It was in those circumstances, the said writ petition in W.P.No.11239 of 2010 was filed by the petitioner challenging the proceedings of the second respondent dated 21.5.2010 directing to appear on 25.5.2010 and also for a direction to give sufficient time to answer the show cause notice dated 20.3.2010 after completion of the inventory by the third respondent herein.
2.8. Both the writ petitions were disposed of by this Court by a common order dated 18.8.2010. While passing the order, this Court has set aside the communication of the second respondent dated 21.5.2010 and directed the second respondent to furnish the copies of the documents relied upon in the show cause notice within two weeks from the date of receipt of that order and thereafter, the petitioners were directed to give a final reply to the show cause notice within four weeks from the date of furnishing of documents and removal of seal from the premises of the petitioners, leaving it open to the second respondent to pass final orders on merits and in accordance with law. It is apposite to extract the following paragraphs of the order dated 18.8.2010:
"8. These writ petitions are posted before me along with W.P.Nos.7985 and 7986 of 2010. The respondents have filed counter affidavit and raised various contentions. Since the writ petitions are being disposed of not on merits, it is not necessary to traverse into the grounds raised in the writ petitions as well as in the counter affidavits.
9. The learned counsel for the petitioners submitted that the business premises of the petitioners are sealed by the Police on 16.3.2010; the show cause notice was served to the counsel for the petitioners in the open Court on 28.4.2010 when a complaint was made while hearing the writ petitions; petitioners gave preliminary objections and required documents to furnish effective reply after getting access to the records and computer as the business premises including their offices are sealed. The learned counsel also submitted that the notice dated 21.5.2010 was posted on 22.5.2010 and the same were served on the petitioners/representative of the petitioners on 23.5.2010 and only one day time was given to submit objections that too without furnishing copies of the documents as sought for by the petitioner by their interim reply dated 19.5.2010 and therefore the petitioners rushed to this Court and filed these writ petitions and challenged the communication dated 21.5.2010. The learned counsel further submitted that the licences granted to the petitioners are for five years and the said licences are expiring only in the year 2011. The Inspection report dated 10.3.2010 said to have been submitted by one G.Ammukutty, Drugs Inspector, Ashok Nagar Range, Zone-III, Chennai 6, though was sought for, was not furnished, which is the basis for issuing show cause notice and denial of the said document is in violation of the principles of natural justice.
10. The learned Advocate General in answer to the said submissions submitted that the seal put up by the Police in the premises of the petitioners will be removed in terms of the order to be passed in W.P.7985 and 7986 of 2010 today and therefore there may not be any impediment to the petitioners to get access to the records and computers to prepare detailed explanation and copy of the Inspection report dated 10.3.2010, relied on in the show cause notice will also be furnished to the petitioners. The learned Advocate General further submitted that reasonable time may be given to the petitioners to submit detailed explanation to the show cause notice. The said submissions made by the learned Advocate General are recorded.
11. In the light of the said submissions made by the learned counsel for the petitioners as well as learned Advocate General, these writ petitions are disposed of by setting aside the communication dated 21.5.2010 and the second respondent is directed to furnish copy of the documents relied on in the show cause notice, within a period of two weeks from the date of receipt of copy of this order and on receipt of the same, the petitioners are directed to give final reply to the show cause notices dated 20.3.2010 within a period of four weeks from the date of furnishing of the said documents and removal of seals from the petitioners' business premises and on receipt of the same, it is open to the second respondent to pass orders on merits strictly in accordance with law, in the action initiated through the show cause notice dated 20.3.2010. This order shall not be construed as approving the show cause notices, on merits."
2.9. It is the case of the petitioner that in spite of the said order having been passed on 18.8.2010, the seal of the premises has not been removed and the premises has not been handed over to the petitioner. However, the third respondent is making verifications and segregation of drugs at intermittent days in a casual manner. According to the petitioner, the direction given in the writ petition means to remove the seal once for all, since the petitioner has to get accessibility to the computers wherein the details are stored. During the time when the seal is removed by the third respondent along with the Drugs Inspector (Ammukutty), it is stated that the petitioner is not allowed to have access to the computers, ledgers, etc. and is thereby deprived of an opportunity to give detailed explanation as per the order of this Court.
2.10. It is stated that even on the date of filing of the contempt petition accessibility has not been given to the computer system and the petitioner learnt that an order of cancellation has been passed, which will be contrary to the order passed by this Court dated 18.8.2010. It is stated that by not granting proper opportunity by giving access to the computers and other records and thereby preventing the petitioner from replying to the show cause notice, and by opening the seals on intermittent days without proper opportunity to the petitioner and taking advantage of the period fixed by this Court for taking inventory, the second respondent has chosen to take steps to cancel the licence as if the petitioner has not given its reply as per the direction of this Court. It is in these circumstances the present contempt petition is filed to punish the respondents for the wilful act of contempt committed by them in respect of the order dated 18.8.2010 passed in W.P.No.11239 of 2010.
3.1. In the counter affidavit filed by the second respondent, it is stated that the second respondent has scrupulously followed the order of this Court dated 18.8.2010 and therefore, the contempt petition is liable to be dismissed.
3.2. It is stated that the second respondent by exercising the power under Rule 66(1) of the Rules has already passed an order of cancellation of licence on 21.10.2010 and the contempt petition is filed only to circumvent the said order without challenging the same and the intention is to arm-twist the authorities for initiating genuine legal and statutory action to enforce, maintain and safeguard the public health and safety as per the provisions of the Act.
3.3. It is stated that credible information was received to the effect that during the month of March, 2010, certain expired drugs like "Renerve" have been re-circulated by altering the date of expiry, date of manufacturing, batch number, etc. by certain persons and that a team of Drug Inspectors of Drugs Control Department, Chennai was constituted to find out the illegal activities and on preliminary investigation, it was revealed that a gang of unscrupulous persons are involved in these illegal activities with the aid of licensed dealers in Chennai like Meena Health Care Private Limited, Vasantha Meena Enterprises, and others, and on 10.3.2010, it was found by the Drugs Inspector, Ashok Nagar Range that the petitioner has purchased and sold Renerve capsules, which is a spurious drug as per Section 17B(e) of the Act, and hence, a show cause notice was issued for cancellation of licence in Forms 20B and 21B.
3.4. It was challenging the said show cause notice, writ petition in W.P.No.11239 of 2010 was filed. It is stated that there was an interim order passed by this Court on 18.8.2010, as follows:
"The second respondent is directed to furnish the copies of the documents relied on in the show cause notice within 2 weeks from the date of receipt of the copy of this order. On receipt of the same the petitioner are directed to give final reply to the show cause notices dated 20.3.2010 within a period of four weeks from the date of furnishing of the said documents and removal of seals from the petitioners' business premises. On receipt of the same, it is open to the second respondent to pass orders on merits strictly in accordance with law in the action initiated through the show cause notice dated 20.3.2010."
3.5. It is stated that as per the said direction copies of the documents were sent to the petitioner on 3.9.2010 by speed post and according to the second respondent, the delivery has been effected on 6.9.2010. It is stated that the sealed premises was opened by the third respondent on 18.9.2010 in the presence of the Drugs Inspector concerned and the petitioner and therefore, the petitioner had sufficient opportunity to give plausible explanation. It is stated that the computer with software and hard disk is not required for furnishing the carbon copies of the sales bills and that for having purchased and sold spurious drugs and for not having raised sales bills, no explanation was offered by the petitioner within the period of four weeks from the date of removal of seal.
3.6. It is stated that the Drugs Inspector has also approved the sales of few drugs on 7.10.2010 under nine sales bills pertaining to Meena Healthcare Private Limited, which is the sister concern of the petitioner, however in respect of the petitioner concern there was no request made for approval of sale of drugs. It is stated that the petitioner has neither replied within the stipulated time nor such communication has been received and therefore, the second respondent has passed the cancellation order and he has acted as per the provisions of the Act and the Rules.
4.1. In the counter affidavit filed by the third respondent, it is stated that, pursuant to the order of this Court dated 18.8.2010, the third respondent has received the keys of the sealed premises on 17.9.2010 and he has sent intimation to the petitioner on the said date requesting her or her representative to be present in the said premises on 18.9.2010. On 18.9.2010, the third respondent along with the Drugs Inspector (Ammu Kutty) proceeded to Chinmaya Nagar and opened the sealed premises of all the three premises Vasantha Meena Enterprises, Meena Health Care Private Limited and Vasantha Enterprises at 1130 Hrs, 1615 Hrs and 1630 Hrs respectively in the presence of the petitioner and her representatives. It is stated that the premises did not have electricity supply due to non payment of electricity bills and the supply was restored in the afternoon after clearing the arrears bills by the petitioner. Cleaning work was done at Vasantha Meena Enterprises and due to the shortage of company staff, the work could not be continued at the premises and at the request of the petitioner, the premises were locked at 1645 Hrs, 1650 Hrs and 1730 Hrs respectively and it is stated that the petitioner assured to make arrangement for manpower to continue the work on 20.9.2010.
4.2. It is stated that, on 20.9.2010, the process of segregation was continued and the valid, expiry and short expiry medicines were segregated in the presence of the petitioner, her representatives and the Drugs Inspector. It is stated that in deference to the order of this Court, on 7.10.2010, the petitioner was permitted to sell the valid medicines worth about ` 2,400/-, after obtaining clearance from the Drugs Inspector. It was stated that access was provided to the petitioner to further produce purchase bills, but the petitioner and her representatives did not produce any purchase bills before the Drug Authorities for the sale of the segregated valid medicines.
4.3. It is stated that, on 22.10.2010, a fax message was received from the Director of Drug Control by the ADGP, CBCID, Chennai for cancellation of licence of Meenakshisundaram and therefore, the said Meenakshisundaram has instructed the representatives of the petitioner not to sell any medicines. It is stated that the process of segregation was completed at the said premises in the presence of the petitioner, Drugs Control authorities and police.
5. Similar is the case of the first respondent in the counter affidavit filed by him.
6.1. Mr.N.Jothi, learned counsel appearing for the petitioner would submit that when this Court has passed an order on 18.8.2010 by setting aside the order dated 21.5.2010 directing the respondents to furnish the documents relied on in the show cause notice, permitting the petitioner to give reply within four weeks from the furnishing of documents and removal of seal from the petitioner's premises and thereafter enabling the second respondent to pass orders, it means that, on opening the premises, proper access must be given to the petitioner for the purpose of enabling the petitioner to submit her explanation to the show cause notice and for the purpose of giving proper explanation, it is necessary for the petitioner to have access to the internet and that has not been given.
6.2. He would also bring to the notice of this Court that even as per the counter of the third respondent, the petitioner's premises was opened at 1130 Hrs on 18.9.2010 and was closed at 1645 Hrs and segregation work was done in respect of the medicine on 20.9.2010 and therefore, it was only on these two days the seal was opened and it was not sufficient for the petitioner to give her explanation and that fact was known to the respondents and in spite of it, hurriedly, only for the purpose of counting the days given by this Court, they waited for passing an order of cancellation, which according to the learned counsel for the petitioner, is patently not only illegal, but also a gross disobedience of the order of this Court.
6.3. He would also submit that even the order passed by this Court on 18.8.2010 is a consent order, wherein the learned Advocate General has consented that access will be given to the records and computers, so as to enable the petitioner to give detailed explanation to the show cause notice and inasmuch as such access to the computers has not been given to the petitioner, it is disobedience of the order of this Court and the intention of the respondents is to cancel the licence somehow or other and therefore, they should be dealt with severely in accordance with law.
6.4. The order dated 18.8.2010 has to be read in the light of the concept of the principles of natural justice, since the show cause notice issued has to be given proper reply and that requires materials to be collected and inasmuch as such opportunity has not been given, there is a statutory violation and in this regard, he would rely upon the judgment in Uma Nath Pandey and others v. State of Uttar Pradesh and another, [2009] 12 SCC 40.
6.5. The passing of the order by the second respondent dated 21.10.2010, which, according to the petitioner, has not even been communicated to him, cancelling the licence without even giving opportunity to the petitioner to give reply to the show cause notice is liable to be set aside. He would also rely upon the judgment of the Allahabad High Court in Amit Kumar Verma v. State of U.P. and another, 2011 (1) Crimes 127 (All.).
7.1. Per contra, it is the submission of the learned Additional Advocate General that the documents have been served as per the direction of the Court and it was the duty of the petitioner to give proper explanation to the show cause notice.
7.2. He would refer to the various provisions of the Rules referring to the powers of the authority in dealing with the licences and he would submit that the order cancelling the licence has been passed on 21.10.2010 in accordance with Rule 66(1) of the Rules, in view of the non-compliance of the order of this Court by the petitioner. He would submit that even otherwise there is no deliberate violation of the order of this Court. He would rely upon the decisions of the Supreme Court in Indian Airports Employees' Union v. Ranjan Chatterjee, [1999] 2 SCC 537, Jhareswar Prasad Paul v. Tarak Nath Ganguly, [2002] 5 SCC 352, Anil Ratan Sarkar v. Hirak Ghosh, [2002] 4 SCC 21.
7.3. It is his submission that the petitioner having not given explanation has only otherwise intended to have the order of cancellation set aside in the contempt petition, which cannot be permitted.
8. Admittedly, the second respondent/licensing authority, through the Drugs Inspector (G.Ammukutty), has issued a show cause notice to the petitioner on 20.3.2010 for cancellation of licence on the ground of sale of spurious drugs by the petitioner. Such notice was given under Rule 66(1) of the Rules, which enables the licensing authority, viz., the second respondent, after giving the licensee an opportunity, to show cause why such order should not be passed cancelling the licence. It is true that such proceedings for cancellation of licence are quasi judicial in nature. Rule 66 of the Rules is as follows:
"Rule 66. Cancellation and suspension of licences.-
(1) The Licensing Authority may, after giving the licensee an opportunity to show cause why such an order should not be passed by an order in writing stating the reasons therefor, cancel a licence issued under this Part or suspend it for such period as he thinks fit, either wholly or in respect of some of the substances to which it relates, if in his opinion, the licensee has failed to comply with any of the conditions of the licence or with any provisions of the Act or Rules thereunder:
Provided that, where such failure or contravention is the consequence of an act or omission on the part of an agent or employee, the licence shall not be cancelled or suspended if the licensee proves to the satisfaction of the licensing authority:-
(a) that the act or omission was not instigated or connived at by him or, if the licensee is a firm or company by a partner of the firm or a director of the company, or
(b) that he or his agent or employee had not been guilty of any similar act or omission within twelve months before the date on which the act or omission in question took place, or where his agent or employee had been guilty of any such act or omission the licensee had not or could not reasonably have had, knowledge of that previous act or omission, or
(c) if the act or omission was a continuing act or omission, he had not or could not reasonable have had knowledge of that previous act or omission, or
(d) that he had used due diligence to ensure that the conditions of the licence or the provisions of the Act or the Rules thereunder were observed.
(2) A licensee whose licence has been suspended or cancelled may, within three months of the date of order under sub-rule (1), prefer an appeal against that order to the State Government, which shall decided the same."
10. The show cause notice also speaks about the contravention of Section 17B(e) of the Act, which says "if it purports to be the product of a manufacturer of whom it is not truly a product" and also Section 18(a)(i), which says "any drug which is not of a standard quality, or is misbranded, adulterated or spurious" and in respect of that, under the show cause notice, the second respondent/licensing authority, through the Drugs Inspector, has given certain details regarding the purchases, etc., which are as follows:
Sl.No. Name of the Drugs with Batch No. Invoice No., Dated & Supplier Name Quantity purchased Stock on Hand Quantity Sold 1 Renerve Caps 205887 4197 dt:23/12/09 Sree G.H.Pharma, Ch-06 380 x 10's NIL 380 x 10's 2 Neosporin Eye Ointment BA415 4197 dt:23/12/09 Sree G.H.Pharma, Ch-06 2560 x 5 gms NIL 2560 x 5 gms 3 Renerve BT. Caps 205799 4197 dt:23/12/09 Sree G.H.Pharma, Ch-06 60 x 15's Caps.
NIL 60 x 15's Caps.4
Renerve plus BT. Caps 205894 4830 dt:16/1/2010 Sree G.H.Pharma, Ch-106 88 x 10's Cap NIL 88 x 10's Cap
11. The case of the petitioner was that such show cause notice was not served and when a writ petition in W.P.No.9162 of 2010 was filed, at that time, the copy of the show cause notice was served on the counsel and an interim reply was given on 19.5.2010 and without receiving the full reply, the second respondent/licensing authority on 21.5.2010 has sent a letter directing the petitioner to appear on 25.5.2010 and that letter was stated to have been received by the petitioner on 23.5.2010 only and it was in those circumstances, considering the validity of the said letter dated 21.5.2010, this Court, in the order dated 18.8.2010, has set aside the letter dated 21.5.2010 with an intention that the petitioner must be given proper opportunity to give explanation to the show cause notice, giving directions, as elicited above.
12. It is true that the learned Advocate General at the time of disposal of the writ petition has agreed to give the petitioner access to records and computers to prepare detailed explanation and consequent to that, the operative order has been passed in paragraph (11) by this Court in the order dated 18.8.2010. It is relevant to reproduce paragraph (11) once again for the purpose of better appreciation of the case:
"11. In the light of the said submissions made by the learned counsel for the petitioners as well as learned Advocate General, these writ petitions are disposed of by setting aside the communication dated 21.5.2010 and the second respondent is directed to furnish copy of the documents relied on in the show cause notice, within a period of two weeks from the date of receipt of copy of this order and on receipt of the same, the petitioners are directed to give final reply to the show cause notices dated 20.3.2010 within a period of four weeks from the date of furnishing of the said documents and removal of seals from the petitioners' business premises and on receipt of the same, it is open to the second respondent to pass orders on merits strictly in accordance with law, in the action initiated through the show cause notice dated 20.3.2010. This order shall not be construed as approving the show cause notices, on merits."
13. In respect of the sealing of the premises which was challenged in W.P.Nos.7985 and 7986 of 2010, by an interim order dated 30.4.2010, this Court has permitted the petitioner to operate the bank accounts and the respondents were directed to take inventory and it is true that in order to enable the petitioner to give a detailed reply to the show cause notice, the second respondent was directed to furnish the documents to the petitioner.
14. As far as the furnishing of documents is concerned, on the pleadings in the contempt petition, there is no dispute by the petitioner. The basic dispute that is raised is that when the premises was opened by removing the seal, there was no adequate notice given to the petitioner and it is true, as stated in the counter affidavit of the third respondent, that the premises concerned was opened at 1130 Hrs on 18.9.2010 and was closed at 1645 Hrs, however stated to be at the instance of the petitioner and again it was opened on 20.9.2010 and on these two days, it is not in dispute that the petitioner or her representatives have been present. But the complaint is that they were unable to have access to the computers, so as to find out the particulars relating to various vouchers.
15. On the other hand, it is the case of the licensing authority that as per the Rules, especially Rules 65(5)(1) and 65(5)(2) of the Rules, which are as follows:
"Rule 65. Condition of licences.- Licences in Form 20, 20-A, 20-B, 20-F, 20-C, 21, and 21-B shall be subject to the conditions stated therein and to the following general conditions-
(1) to (4) *** (5)(1) Subject to the other provisions of these rules the supply of a drug by wholesale shall be made against a cash or credit memo bearing the name and address of the licensee and his licence number under the Drugs and Cosmetics Act in which the following particulars shall be entered-
(a) the date of sale.
(b) the name, address of the licensee to whom sold and his sale licence number. In case of sale to an authority purchasing on behalf of Government, or to a hospital, medical, educational or research institution or to a Registered Medical Practitioner for the purpose of supply to his patients the name and address of the authority, institution or the Registered Medical Practitioner as the case may be,
(c) the name of the drug, the quantity and the batch number,
(d) the name of the manufacturer.
(e) the signature of the competent person under whose supervision the sale was effected.
(2)Carbon copies of cash or credit memos specified in clause (1) shall be preserved as records for a period of three years from the date of the sale of the drug."
it is the duty of the petitioner to preserve the carbon copies of the cash or credit memos specified clause (1) for a period of three years and therefore, on these two days when the premises was opened by removing the seal, the petitioner should have produced those carbon copies.
16. On the other hand, it is the case of the petitioner that after coming into effect of the accounting system through computers, there is no question of keeping the carbon copies and the said rules have become practically impossible to be performed and therefore, unless and until a chance is given to the petitioner to have access to the computers, there is no possibility to give proper explanation to the show cause notice.
17. It is not in dispute on the facts of the present case that the petitioner was unable to have access to the computers for the purpose of obtaining particulars and the petitioner could not produce carbon copies as contemplated under the Rules, which are in existence in the statute book as on date. Since it is not known as to whether the Rule has become outdated or not and as it is presumed that as long as the Rule is in the statute book the same has to be followed, the question to be decided is about the deliberate conduct on the part of the second respondent in not giving the petitioner access to the computer system.
18. On the face of it, it is the case of the second respondent that she has followed the Rules in the statute book scrupulously and therefore, was of the view that the vouchers should have been produced by the petitioner on the two days when the premises was opened. While, on the other hand, the petitioner has been under the impression that an effective reply could be given only if she is given access to the computer system. Therefore, these are the difference of views between the licensing authority and the petitioner and both views may be correct based on the facts and circumstances, which cannot be decided in contempt proceedings. In contempt proceedings, the only question to be decided is as to whether there is a deliberate disobedience of the order of the Court by the second respondent or for that matter the other respondents also.
19. Access to computer system may be necessary for the petitioner to make a substantial defence when the cancellation of licence is challenged in appropriate forum. This Court cannot decide the validity or otherwise of the order of cancellation of licence stated to have been passed by the second respondent on 21.10.2010. The petitioner has adequate remedy available in respect thereof.
20. The reliance placed by Mr.N.Jothi, learned counsel for the petitioner on the judgment of the Allahabad High Court in Amit Kumar Verma v. State of U.P. and another, 2011 (1) Crimes 127 (All.) has no application to the facts and circumstances of the present case. That was a case where the validity about the search and seizure from premises under Sections 22 and 23 of the Act was considered by the High Court.
21. The contention of the learned counsel for the petitioner by relying upon the judgment of the Supreme Court in Uma Nath Pandey and others v. State of Uttar Pradesh and another, [2009] 12 SCC 40, wherein the Supreme Court emphasized about the importance of the compliance of the principles of natural justice in adjudication process by relying upon various English judgments, is no doubt an established rule of law. But, unfortunately, that is not going to be of any help to the petitioner in contempt proceedings, wherein the only question to be considered is as to whether there is any deliberate conduct on the part of the respondents.
22. The law is well settled that in cases of contempt, there must be a wilful disobedience and flouting of the court order. The mere misinterpretation cannot be construed to be a deliberate violation of the court order, as it was held in Indian Airports Employees' Union v. Ranjan Chatterjee, [1999] 2 SCC 537. The Supreme Court, in the said judgment, has held as follows:
"7. It is well settled that disobedience of orders of the court, in order to amount to civil contempt under Section 2(b) of the Contempt of Courts Act, 1971 must be wilful and proof of mere disobedience is not sufficient (S.S. Roy v. State of Orissa, AIR 1960 SC 190). Where there is no deliberate flouting of the orders of the court but a mere misinterpretation of the executive instructions, it would not be a case of civil contempt (Ashok Kumar Singh v. State of Bihar, AIR 1992 SC 407)."
23. Again, in Jhareswar Prasad Paul v. Tarak Nath Ganguly, [2002] 5 SCC 352, it was held by the Supreme Court that the Court dealing with the contempt jurisdiction is primarily concerned with the conduct of the party as follows:
"11. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contempt of court is a special power vested under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court exercising the jurisdiction to punish for contempt does not function as an original or appellate court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt of court jurisdiction that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts."
24. It was held in Anil Ratan Sarkar v. Hirak Ghosh, [2002] 4 SCC 21 that in cases where there are two interpretations of an aspect which are possible, the act of the contemnor in following one such interpretation cannot be held to be contumacious in nature. The Supreme Court held as follows:
"14. Similar is the situation in Mrityunjoy Das v. Sayed Hasibur Rahaman, [2001] 3 SCC 739 and as such we need not dilate thereon further as to the burden and standard of proof vis-`-vis the Contempt of Courts Act suffice it to record that powers under the Act should be exercised with utmost care and caution and that too rather sparingly and in the larger interest of the society and for proper administration of the justice delivery system in the country. Exercise of power within the meaning of the Act of 1971 shall thus be a rarity and that too in a matter on which there exists no doubt as regards the initiation of the action being bona fide.
15. It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a civil contempt within the meaning of Section 2(b) of the Act of 1971 the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise."
25. For the foregoing reasons, even though there is a scope to conclude that sufficient opportunity could have been given to the petitioner to give explanation to the show cause notice dated 20.3.2010, I am of the considered opinion that that by itself is not sufficient to hold the respondents guilty of contempt. Accordingly, I am of the view that it is for the petitioner to workout her remedy against the order of cancellation of licence stated to have been passed by the second respondent on 21.10.2010 and she is not entitled to any relief in this contempt petition.
In the result, the contempt petition stands dismissed. No costs. Consequently, Sub Application No.510 of 2010 is closed.
sasi