Telangana High Court
Toddy Tappers Cooperative Society Tics vs The State Of Telangana on 28 December, 2023
THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY
WRIT PETITION No.34899 of 2023
ORDER:
This Writ Petition is filed seeking the following relief:
"... to issue a Writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring the proceedings of respondent No.3, vide No.Cr.No.B4/1780 /2017, dated 22.12.2023, suspending the licence for retail sale of Toddy of Patel Nagar Shop licence of the petitioners' toddy shop, Patel nagar on the ground of adulteration of toddy, as illegal, arbitrary, unreasonable without following the principles of natural justice and contrary to the provisions of the Telangana State Excise Act, 1968 and set aside the same.."
2. Heard Sri R.Vamshi Krishna, learned counsel for the petitioners, learned Government Pleader for Prohibition and Excise appearing for respondent Nos.1 to 3, learned Assistant Government Pleader for Home appearing for respondent No.4 and perused the record.
3. This Writ Petition is filed questioning the proceedings, dated 22.12.2023, issued by respondent No.3 suspending licence No.21, dated 31.03.2015, of Toddy Shop of Patel Nagar, premises bearing No.2-3-606, Patelnagar, Amberpet, 2 CVBR,J wp_34899_2023 Hyderabad, on the ground of Adulteration of Toddy with 'Alprazolam'.
4. It is the case of the petitioners that petitioner No.2 is a President of Toddy Tappers Cooperative Society (TTCS), Patel Nagar, which is a Society registered under the provisions of the Telangana Cooperative Societies Act, 1964 (for short, 'the Act, 1964'). The case of the petitioners is that petitioner No.1-Society is formed under the provisions of the Act, 1964 for the purpose of promoting the welfare of the Toddy Tappers and also its Members. It is further case of the petitioners that the said society is running for past several years and it also obtained Licence No.21, dated 31.03.2015, issued by respondent No.3 to run Toddy depot. It is further case of the petitioners that the entire Members of the petitioner-society are depending on toddy tapping and number of workers working in the above said licensed shop is more than 100 and tappers are 50, who are the Members of the Cooperative Society and they are solely depending their livelihood on the earnings of sale of toddy. 3
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5. While the matter stood thus, on 02.11.2023 on creditable information, the Sub-Inspector of Police, Amberpet Police Station, Hyderabad, along with his staff, has inspected the petitioner's society and having found sale of Toddy in the premises bearing No.2-3-606, Patelnagar, Amberpet, Hyderabad and after obtaining necessary permission from the authorities concerned, conducted a raid and thereafter samples were sent for chemical examination. On enquiry, it is revealed that the toddy was adulterated and the same was seized in empty bottles and requested to take appropriate action for registration of crime. Acting on the said complaint, a case in Crime No.542 of 2023 on the file of Amberpet Police Station, Hyderabad, has been registered for the offence punishable under Section 37 (a) of the Telangana State Excise Act, 1968 (for short, 'the Act, 1968'). Thereafter, it was alleged that samples were sent for chemical analysis to State Forensic Science Laboratories and after testing the said samples, it was found that the said samples contained "Alprazolam", a psychotropic substance along with Ethyl Alcohol, which are 4 CVBR,J wp_34899_2023 prohibited for human consumption. Therefore, acting on the said reports, a show-cause notice was issued in proceedings Cr.No.B4/1780/2017, dated 22.12.2023, suspending Licence No.21, dated 31.03.2015, of Toddy Shop of Patelnagar, Amberpet in respect of premises bearing No.2-3- 606, Patelnagar, Amberpet, Hyderabad.
6. A reading of the impugned order reveals that the Toddy Shop of Patelnagar in respect of premises bearing No.2-3-606, Patelnagar, Amberpet, Hyderabad, Licence No.21, which is valid upto 30.09.2027, is suspended on the ground of 'Adulteration of Toddy with Alprazolam', which is injurious to health and contrary to Rule 16 of the Telangana State Excise (Grant of Licence to Sell Toddy, Conditions of licence and tapping of Excise Trees) Rules, 2007 (for short, 'the Rules, 2007') and punishable under Section 8 (c) read with 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
7. Sri R.Vamshi Krishna, learned counsel appearing for the petitioners vehemently contended that Rule 3 of the 5 CVBR,J wp_34899_2023 Telangana Excise (Powers and Duties) Rules, 1972 issued in G.O.Ms.No.1094, Revenue, dated 29.09.1972, confers the powers, to arrest without warrant, to seize articles liable for confiscation and to make searches by any Excise Officer not below the rank of Sub- Inspector, any Police Officer of and above the rank of an Inspector and any Officer of the Revenue Department of and above the rank of a Deputy Tahsildar having jurisdiction over the place may seize and detain any excisable or other articles, which he has reason to believe to be liable to confiscation under the Act or any other law for the time being in force relating to excise revenue and detain and search any person upon whom and any vessel, raft, vehicle, animal package, receptacle or covering in or upon which he may have reasonable cause to suspect any such article. Contrary to the said Rules, 1972 the Sub-Inspector of Police is not authorized to conduct any search or seizure since the Officer concerned is not having any power and therefore, the impugned order of suspension is liable to be set aside on the ground of not having jurisdiction.
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8. Learned counsel further argued that the respondent authorities have not followed the procedure as contemplated under the Rules, 2007, issued in G.O.Ms.No.1228, Revenue (Ex.II) Department, dated 09.09.2007, to enable the petitioners to make a representation for sending three sample bottles under Rule 27 of the Rules, 2007 for chemical analysis.
9. As per Rule 27 of the Rules, 2007 any Prohibition and Excise Officer, not below the rank of Sub-Inspector of Prohibition and Excise or Food Inspector appointed under the Prevention of Food Adulteration Act, 1954, shall be competent to inspect at any time and to take samples from the toddy possessed by the licensee or any other person, for the purpose of analysis, such officer shall take three (3) samples in the presence of the licensee or his agent or other person in charge of the licensed premises or who is found selling toddy in the said premises, after conducting a panchanama.
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10. According to the learned counsel, the Inspector of police is not competent and it is only Prohibition and Excise Inspector not below the rank of Sub-Inspector of Prohibition and Excise or Food Inspector appointed under the Prevention of Food adulteration Act, 1954 is the competent authority for the purpose of sending samples for chemical analysis. In the absence of following procedure, as prescribed under the Rules, the entire proceedings are vitiated and also amount to violation of principles of natural justice and accordingly, prayed to set aside the impugned order.
11. Learned Government Pleader for Home appearing for respondent No.4 vehemently contended that any police officer having received credible information is entitled to set into motion criminal law by registering the crime under Section 154 of Cr.P.C. Therefore, there is nothing wrong on the part of Sub-Inspector of Police in registering crime, conducting panchanama and sending samples for chemical analysis, which amount to following the procedure under the Rules and therefore, this Court while exercising the 8 CVBR,J wp_34899_2023 jurisdiction under Article 226 of the Constitution of India is not empowered to suspend the impugned proceedings pending enquiry. He also placed reliance on a Full Bench Judgment of this Court reported in the case of Tappers Co- operative Society, Maddur v. Superintendent of Excise, Mahaboobnagar 1, wherein this Court held thus:
"45. However, we must make it clear that this incidental or ancillary powers cannot be exercised in a routine way or as a matter of course. The licensing authority is bound to exercise the discretion reasonably, bona-fide and without negligence considering the circumstances of the case when such intension suspension is necessary. If it is possible to give an opportunity to the petitioner and the circumstances do not warrant such a drastic step, the licensing authority is bound to afford an opportunity and the power of suspension pending enquiry should not be exercised as an invariable rule or mode of making an enquiry. Further the suspension pending the enquiry should not be allowed to continue for an unduly long period. The authorities are bound to complete the enquiry as early as possible and any undue delay when it constitutes abuse of power makes the order liable to be set side. Whether the suspension of licence must be preceded by notice or opportunity must depend upon various factors such as, degree of urgency involved, the duration of suspension, the nature of the breach, public damage to be avoided, 1 1984 (2) (HC) 9 CVBR,J wp_34899_2023 and other similar circumstances which warrant an immediate action where it is not feasible or possible or even advisable to give an opportunity to the holders of the licences before passing interim orders of suspension."
12. This Court after careful consideration of the material placed on record and the counter-affidavit filed by the respondents, without expressing any opinion on the merits of the matter whether the respondents have followed the procedure in accordance with the Rules, 1972 or Sub- Inspector of Police is having jurisdiction under Rule 3 (3) of the Rules, 1972 framed in G.O.Ms.No.1094, Revenue, dated 29.09.1972, and since the petitioner is having statutory remedy of appeal under Section 63 (1) of the Act, 1968, the Writ Petition is disposed of relegating the petitioner to file an appeal/revision, as may be available, under the provisions of the Act, 1968 and in case the petitioners files any appeal/revision, the same shall be disposed of by the competent authority, within a period of four (4) weeks from the date of filing of such appeal/revision. The impugned proceedings issued by respondent No.3 vide Cr.No.B4/1780/2017, dated 22.12.2023, are suspended for 10 CVBR,J wp_34899_2023 a period of two (2) weeks to enable the petitioners to file an appeal/revision before the competent authority. There shall be no order as to costs.
13. Miscellaneous Petitions, if any, pending in this writ petition shall stand closed.
__________________________________ JUSTICE C.V.BHASKAR REDDY 28.12.2023 Note:
Issue C.C.in two days.
(B/o) gkv