- When an explanation of any irregularity on the part of a licensee or salesman is called for with a view to proceedings and is found to be unsatisfactory, an order sheet should be attached to the office copy of the notice and the case entered in the register of miscellaneous cases. When irregularities are detected during inspection the notice may be delivered by the inspecting officer on the spot and a copy signed by the licensee or salesman in token of receipt filed with the record. All papers concerned with the subsequent proceeding should be filed with the record and orders should be recorded on the order sheet.An order inflicting a monetary penalty under Section 70 of the Excise Act, or Rule 46 under the Opium Rules, is one of composition of the offence, and the order should be that the licence will be cancelled, or the offender be prosecuted unless a certain sum is deposited on a date to be fixed. If payment is not made on the date fixed or when any time allowed has passed, the case should be submitted to the Collector for orders as to whether the offender should be prosecuted or the licence cancelled or suspended.A licence can be suspended or cancelled under Section 29(1 )(b) of the Eastern Bengal and Assam Excise Act, 1910, or Rule 45 ( l)(b) of the Assam Opium Rules, 1945, in the event of any breach by the holder thereof, or by any of his servants or Dy any one acting on his behalf with his express or implied permission, or any of the terms of the licence. If the Collector decides to prosecute the offender, he should, unless there are strong reasons to the contrary, suspend the licence. If the offender is convicted the licence should then be finally cancelled under Section 29 (1 )(c) of the Excise Act, or Rule 45 (1) (c) of the Opium Rules. The cancellation should be made after the period of appeal, if any, be allowable has elapsed. Meanwhile the shop should only be provisionally resettled.The prosecuting officer should draw the attention of the Court to circumstances in which the prosecution was initiated, and should press for the infliction of a penalty not less than that proposed to be imposed by the Collector. If the Collector decides not to prosecute, he may, and in serious cases should, cancel the licence, provided that either-(a)the licence is expressly stated to be cancellable at will; or(b)the licence expressly provides for cancellation if the licensee is held by the Collector to have committed by himself, or by his servants or by anyone acting on his behalf, with his express or implied permission, a breach of any of its terms or conditions; or(c)the fact that the conditions of the licence have been infringed admits of no denial.If there is any doubt in a case falling under Clause (c) as to the commission of an offence or the breach of a condition of the licence, the offender should properly be prosecuted. He can be prosecuted under Section 58 of the Excise Act for breach of condition of a licence granted under the said Act.Similar considerations apply when an offender is prosecuted. The licence may be cancelled outright for breach of a condition, provided one of the above conditions (a), (b) or (c) is satisfied.When ordering a prosecution and suspension of the licence the Collector should withhold refund of the security deposit pending disposal of the case.
