Shriram Jaiswal vs State Of U.P. And 3 Others on 16 July, 2019

[Cites 14, Cited by 1]

Allahabad High Court

Shriram Jaiswal vs State Of U.P. And 3 Others on 16 July, 2019

Bench: Saumitra Dayal Singh





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						A.F.R.
 

 
Court No. - 1
 

 
Case :- WRIT TAX No. - 142 of 2019
 

 
Petitioner :- Shriram Jaiswal
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Abhishek Sharma,Neeraj Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saumitra Dayal Singh,J.

1. The present writ petition has been filed against the order dated 25/27.10.2015 passed by the District Magistrate/Licensing authority. By that order, the petitioner's license for retail vend of country liquor has been cancelled; stock of lawful/unlawful liquor confiscated; holograms, wrappers and corks, basic license fee, advance security and cash Rs. 17,530/- forfeited. That order is disclosed to have been passed with reference to the powers vested in that authority under Section 34 and Section 72(c) of the United Provinces Excise Act, 1910 (hereinafter referred to as the Act) and Rule 21 of the U.P. Excise (Settlement of Licenses for Retail Sale of Country Liquor) Rules, 2002 (hereinafter referred to as the Rules).

2. Challenge has also been raised to the order dated 05.05.2016 passed by Excise Commissioner, U.P. dismissing the appeal filed by the petitioner against the order dated 27.10.2015. Further, challenge has been raised to the order dated 27.09.2018 passed by the State Government rejecting the revision filed by the petitioner against the appellate order dated 05.05.2016. Thus, the cancellation of license as also forfeiture and confiscation of basic license fee, security deposit, advance security deposit, lawful/unlawful stock of liquor, wrappers, cash and other items discovered during the inspection/survey dated 21.09.2015 has been confirmed.

3. Heard Sri Neeraj Sharma assisted and Sri Abhishek Sharma learned counsel for the petitioner and Sri A.C. Tripathi, learned Standing Counsel for the revenue.

4. At the outset, Sri Neeraj Sharma has confined the submissions and prayer made in the present writ petition against the forfeiture and confiscation of advance security, lawful stock of liquor and cash Rs. 17,530/-. Challenge has not been pressed to the other part of the impugned orders whereby country liquor license of the petitioner has been cancelled; unlawful stock of liquor and basic license fee for the excise year 2015-16 had been forfeited.

5. Learned counsel for the petitioner first states, upon the inspection conducted on 21.09.2015, no seizure of stock of liquor etc. had been made. However, a wholly false FIR had been lodged against the petitioner on the same day. About a week thereafter, on 29.09.2015, a show cause notice had been issued to the petitioner in exercise of power under Rule 21(2) of the Rules to show cause why the petitioner's license may not be cancelled. The petitioner had furnished his reply to that show cause notice. In that reply, he objected to the proposed forfeiture of the lawful stock of country liquor; cash; as also advance security deposit.

6. Placing heavy reliance on the language of the Rule 21(2) and (3) of the Rules as also the judgment of the learned single judge of this Court in Writ Tax No. 356 of 2014, Chandra Pal Singh Vs. State of U.P. & 4 Ors., decided on 27.05.2014, it has been submitted, though the order cancelling the country liquor license is not being challenged in the present proceedings, however, there could not have been any forfeiture of security, cash money found in the shop and confiscation stock of lawfully procured liquor.

7. First, it has been submitted, under Rule 21(2) and (3) of the Rules, the licensing authority could have required the petitioner to show cause against proposed cancellation of license and forfeiture of security or basic license fee or license fee, alone. No action could have been taken under that provision of law to forfeit the security money or confiscate the stock of lawfully procured liquor or cash. The proceedings under Rule 21 of the Rules are distinct and different from those under Section 72 of the Act. While proceedings for suspension and cancellation of license may arise in accordance with Rule 21 of the Rules read with Section 34 of the Act, those proceedings have to be drawn up by the licensing authority. On the other hand, the proceedings for confiscation, as contemplated under Section 72 of the Act have to be drawn up by the Collector after seizure of items/animals, etc that may be subjected to confiscation proceedings. In the present case, only one notice had been issued (dated 29.09.2015), by the licensing authority. No other notice was issued by the Collector in exercise power under Section 72 of the Act. Therefore, it has been submitted, the mandatory requirement of the Act had been violated. The confiscation of the valid stock of liquor and cash could not have been made by the licensing authorities while exercising powers under Rule 21 of the Rules.

8. It is his further submission, in any case, unamended Rule 21(3) of the Rules did not contemplate or provide for forfeiture of security amount. This Rule was amended by Ninth Amendment, 2018 w.e.f. 01.04.2018 whereby the words "security amount deposited by him" were added after the words "basic license fee and license fee" appearing in the unamended rule. Therefore, no security amount could not have been forfeited prior to 01.04.2018.

9. Also, it has been submitted, in any case, even under Section 34(3) of the Act, the word "deposit" only refers to the license fee that may have been paid by the licensee. For that reason also, there was no jurisdiction or authority whereby, prior to 01.04.2018, the security deposit furnished by the petitioner could be forfeited. The words "in respect thereof" appearing at the end of the sub-section (3) of Section 34 of the Act, clearly go to indicate that the word "deposit" appearing in that provision of law refers only to license fee that may have been deposited.

10. Opposing the present petition, learned Standing Counsel submits, in the first place, the powers of the licensing authority and the Collector (two authorities under Rule 21 of the Rules and Section 72 of the Act) are wielded by one and the same officer who discharges those functions in twin capacities. The District Magistrate, appointed by the State Government, also functions as the Collector and the licensing authority under the Act. In any case, no objection appears to have been raised before the original authorities or before the appeal authorities, as to lack of jurisdiction. Therefore, that plea may not be entertained, at this belated stage.

11. Second, it has been submitted, in the facts of the present case, the notice dated 29.05.2015 makes it plain that the same had been issued in dual capacity of the District Magistrate as the Collector and also as the Licensing Authority. Therefore, there was never any defect in the exercise of the jurisdiction.

12. Third, again as a fact, the notice makes a clear mention of the proceedings being initiated. First, the notice refers to Rule 21 of the Rules and proposes to cancel the license of the petitioner in light of the infractions of the law committed by the petitioner. Also, the notice proposes to forfeit/confiscate the basic license fee and security deposit as also the entire stock of lawful/unlawful liquor being 7552 bottles of country liquor of Rs. 17,530/- in cash. Not only does the notice refer to the above, it also draws the attention of the petitioner to the provisions of the Section 72(c) of the Act viz a viz the proposed action to forfeit the basic license fee, security deposit as also to confiscate the entire stock of lawful and unlawful liquor and cash. Therefore, it has been submitted, the show cause notice dated 29.09.2015 did not suffer from any jurisdictional, legal and factual errors.

13. Then, referring to the Rule 21(2) of the Rules, it has been submitted, authority was fully empowered to seek cancellation of license and forfeiture of security, even in the light of the unamended Rule 21 of the Rules. Here, reference has been made to the provisions of Rule 21(2) of the Rules, which provides for issuance of a show cause notice to cancel the license and also to forfeit security money. Besides the above, reliance has been placed on Section 34(3) of the Act to submit, under that provision of law, upon suspension or cancellation of his license, the petitioner lost his right to claim refund of any fee paid or deposit made with respect to the country liquor license (that had been earlier issued to him), and which became the subject matter of suspension and cancellation proceedings. The words "in respect thereof" do not restrict the word "deposit" to any fee paid but they restrict the word "deposit" and relate it to the country liquor license against which such deposit may have been made.

14. Last, referring to Section 72(c) of the Act, it has been submitted, once the petitioner was found to have committed the offence punishable under the Act, every quantity of intoxicant whether in his lawful or unlawful possession was exposed to confiscation proceedings. The fact that the petitioner did not file any appeal against that part of the order before the District Judge as provided under the Act, does not make any difference to the merits of the order.

15. Having heard learned counsel for the parties and having perused the record, in the first place, it has to be recognized that the Act does separately provide for suspension and cancellation of country liquor license, forfeiture and for confiscation. While making such separate provisions, it also appears that the power to cancel and suspend licenses has been conferred on the licensing authority while the power for confiscation has been vested in the Collector. Though the word "Collector" has not been defined under the Act, under Section 3(2) of the Act, the Excise Officer has been defined to mean a Collector or any officer or person appointed under Section 10 of the Act. On the other hand, under Rule 2(k) of the Rules, "licensing authority" is defined to mean a Collector or the District Magistrate. In the present case, the District Magistrate was the licensing authority under the Act.

16. Thus, in absence of any case that the issuing authority/District Magistrate was not the Collector, it remains undisputed, even if separate notices had to be issued, one under Section 34 read with Rule 21 of the Rules for cancellation of license and another under Section 72(5) of the Act for confiscation of items, those two notices would still have been issued by the same signatory in different capacities.

17. Then, factually, in the present case, the notice dated 29.09.2015 specifically refers to both Section 34 and Section 72(c) of the Act as well as Rule 21 of the Rules. Also, the subject matter of the notice refers to both Section 34 of the Act read with Rule 21 of the Rules as also Section 72(c) of the Act. In other words, the said notice speaks both, of the proposal to cancel the country liquor license as also to forfeit security money and confiscate, stock of lawful and unlawful liquor as also cash. Thus, it cannot be the case of the petitioner that he had not been issued any prior show cause notice before the proceeding for forfeiture were undertaken. The action of confiscation of stock of liquor and cash and forfeiture of security is found to have been preceded by a notice issued under Section 34 of the Act read with Rule 21 of the Rules and section 72(c) of the Act. There is no procedural defect in the same.

18. Coming to the other objection raised on behalf of the petitioner, first, the statutory provisions may be taken note of. The provision of Rule 21(2) and (3) of the Rules, both prior to and after the amendment may, first be noted as below:

Column-I Existing rule Column-II Rule as hereby substituted

2) The licensing Authority shall immediately suspend the license and issue a show cause notice for cancellation of license and forfeiture of security the licensee shall submit his explanation within 7 days of the receipt of notice. There after the licensing authority shall pass suitable orders after giving due opportunity of hearing to the licensee.

Provided that the procedure of suspension and cancellation of license related to relevant matter as adduced in the sub paragraph (f) of the aforesaid rule-21(1) shall be executed in accordance with the rule-14.

(3) In case the license is cancelled the basic license fee, license fee deposited by him shall stand forfeited in favour of the Government and the licensee shall not be entitled to claim any compensation or refund. Such licensee may also be blacklisted and debarred from holding any other excise license.

(2) The licensing Authority shall immediately suspend the license and issue a show cause notice for cancellation of license and forfeiture of security the licensee shall submit his explanation within seven days of the receipt of notice. There after the licensing authority shall pass suitable orders after giving due opportunity of hearing to the licensee.

(3) In case the license is cancelled the basic license fee, license fee and security amount deposited by him shall stand forfeited in favour of the Government and the licensee shall not be entitled to claim any compensation or refund. Such licensee may also be blacklisted and debarred from holding any other excise license.

19. For a proper consideration of the submission advanced by the learned counsel for the parties, it is also necessary to take note of the language of Section 34 of the Act and Section 72 of the Act. Thus, provisions of Section 34 of the Act are noted below:

"34. Power to cancel or suspend licences, etc.- (1) Subject to such restrictions, as the State Government may prescribe, the authority granting any licence, permit or pass under this Act may cancel or suspend it

(a) if any duty or fee payable by the holder thereof be not duly paid; or

(b) in the event of any breach by the holder of such licence, permit or pass or by his servants, or by any one acting on his behalf with his express or implied permission of any of the terms or conditions of such licence, permit or pass; or

(c) if the holder thereof is convicted of any offence punishable under this Act or any other law for the time being in force relating to revenue, or of any cognizable and non-bailable offence, or of any offence punishable under the [Dangerous Drugs Act, 1930,] or under the Merchandise Marks Act, 1889, or of any offence punishable under Sections 482 to 489 (both inclusive) of the Indian Penal Code; or

(d) where a licence, permit or pass has been granted on the application of the grantee of an exclusive privilege under this Act, on the requisition in writing of such grantee; or

(e) if the conditions of the licence or permit provide for such cancellations or suspension at will.

(2) When a licence, permit and pass held by any person is cancelled under clauses (a), (b) or (c) of sub-section (1), the authority aforesaid may cancel any other licence, permit or pass granted to such person by, or by the authority of the State Government under this Act or under any other law for the time being in force relating to excise revenue or under the Opium Act, 1878.

(3) The holder shall not be entitled to any compensation for the cancellation or suspension of his licence, permit or pass under this section nor to a refund of any fee paid or deposit made in respect thereof."

20. Also, relevant to the issue at hand, the provisions of Section 72 of the Act are noted below:

72. What things are liable to confiscation.- (1) Whenever an offence punishable under this Act has been committed-

(a) every intoxicant in respect of which such offence has been committed;

(b) every still, utensil, implement or apparatus and all materials by means of which such offence has been committed;

(c) every intoxicant lawfully imported, transported, manufactured, held in possession or sold along with or in addition to any intoxicant liable to confiscation under clause (a);

(d) every receptacle, package and covering in which any intoxicant as aforesaid or any materials, still, utensil, implement or apparatus is or are found, together with the other contents (if any) of such receptacle or package; and

(e) every animal, cart, vessel or other conveyance used in carrying such receptacle or package shall be liable to confiscation.

(2) Where anything or animal is seized under any provision of this Act, the officer seizing and detaining such property shall, within three working days from the date of such seizure and detention; produce a detailed report for confiscation along with such seized property, seizure memo and other relevant documents before the Collector. The Collector shall, upon receiving the said report along with seizure memo and seized property, immediately order for safe custody and storage of goods as he may deem fit. The Collector, if satisfied for reasons to be recorded that an offence has been committed due to which such thing or animal has become liable to confiscation under sub-section (1), he may order confiscation of such thing or animal whether or not a prosecution for such offence has been instituted:

Provided that in the case of anything (except an intoxicant) or animal referred to in sub-section (1), the owner thereof shall be given an option to pay in lieu of its confiscation such fine as the Collector thinks adequate, not exceeding its market value on the date of its seizure.

(3) Where the Collector on receiving report of seizure or on inspection of the seized things, including any animal, cart, vessel or other conveyance, is of the opinion that any such things or animal is subject to speedy wear and tear or natural decay or it is otherwise expedient in the public interest so to do, he may order such things (except an intoxicant) or animal to be sold at the market price by auction or otherwise.

(4) Where any such things or animal is sold as aforesaid, and-

(a) no order of confiscation is ultimately passed or maintained by the Collector under sub-section (2) or on review under sub-section (6); or

(b) an order passed on appeal under sub-section (7) so requires; or

(c) in the case of a prosecution being instituted for the offence in respect of which the thing or the animal is seized, the order of the court so requires;

the sale proceeds after deducting the expenses of the sale shall be paid to the person found entitled thereto.

(5) (a) No order of confiscation under this section shall be made unless the owner thereof or the person from whom it is seized is given-

(i) a notice in writing informing him of the grounds on which such confiscation is proposed;

(ii) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice; and

(iii) a reasonable opportunity of being heard in the matter.

(b) Without prejudice to the provisions of clause (a), no order confiscating any animal, cart, vessel, or other conveyance shall be made if the owner thereof proves to satisfaction of the Collector that it was used in carrying the contraband goods without the knowledge or connivance of the owner, his agent, if any, and the person in-charge of the animal, cart, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use.

(6) Where on an application in that behalf being made to Collector within one month from any order of confiscation made under sub-section (2), or as the case may be, after issuing notice on his own motion within one month from the order under the sub-section refusing confiscation to the owner of the thing or animal seized or to the person from whose possession it was seized to show cause why the order should not be reviewed, and after giving him a reasonable opportunity of being heard, the Collector is satisfied that the order suffers from the mistake apparent on the face of the record including any mistake of law, he may pass such order on review as he thinks fit.

(7) Any person aggrieved by an order of the confiscation under subsection (2) or sub-section (6) may, within one month from the date of the communication to him of such order, appeal to such judicial authority as the State Government may appoint in this behalf and the judicial authority shall, after giving opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against.

(8) Where a prosecution is instituted for the offence in relation to which such confiscation was ordered the thing or animal shall subject to the provisions of sub-section (4) be disposed of in accordance the order of the Court.

(9) No order of confiscation made by the Collector under this section shall prevent the infliction of any punishment to which the person affected thereby may be liable under this Act.]

21. For the purpose of giving true meaning for the language of Rule 21 (2) and (3) of the Rules, both before the amendment and after amendment, first notice must be had to the language of the principal legislation. Here, it appears, under Section 34(1) of the Act, the legislature has authorized the licensing authority to cancel or suspend a license (that may have been granted under the Act). Subject to any restriction placed by the State Government, the contingencies wherein the license may be suspended or cancelled are provided under Section 34(1)(a) to (e) of the Act. Insofar as the cancellation of the license of the petitioner has not been questioned, no further discussion is required to be made as to the contingency for cancellation. So far as the Section 34(2) of the Act is concerned, it provides for consequences for cancellation of the license on other license/s as may be existing in favour of such person. Again, that is not the issue involved in the present case.

22. Then, sub-Section (3) of Section 34 refers to the effect that a cancellation order would have on the rights of the licensee that may have otherwise existed in view of the license granted to him. Here, it appears the legislature has clearly provided, upon cancellation of a license, the licensee would lose all rights or entitlement to seek compensation for cancellation or suspension of the license, permit or pass, that may have been issued to him. Further, he would lose his right or entitlement to claim refund or any fee paid or deposit made. The words "in respect thereof" are clearly not suffixed or used to confine the word 'deposit' to the words "fee paid".

23. While providing the consequence and the effect of cancellation on the right of the licensee, the legislature appears to have clearly provided, the licensee would lose all rights that he may otherwise claim on the strength of his license. It is in light of that concept and it is in that context that his right to claim compensation has been done away. Upon the occurrence of cancellation of his license, the licensee's right to claim refund of any fee paid or deposit made has been taken away. There is no suggestion contained in the statutory language as may confine the use of word 'deposit' to the words "fee paid". The word "or" used between the words "fee paid" and "deposit" appearing in sub-Section (3) of Section 34 of the Act also mitigates against the interpretation being offered by the learned counsel for the petitioner.

24. Here, it is relevant that under Rule 21(2) of the Rules, the licensing authority was always authorized to issue a show-cause notice to cancel the license and to forfeit the security and to pass final order providing for such confiscation. That power arises under the first part of Rule 21(2) of the Rules that obligates the licensing authority to issue a show-cause notice for cancellation of license and forfeiture of security.

25. Sub-Rule (3) of Rule 21 of the Rules would in any case remain consequential to sub-Rule (2) of Rule 21 of the Rules i.e. it would come into play as soon as cancellation order is passed. Therefore, under the amended law, once the licensing authority, who was duly empowered to issue a notice, amongst others, to forfeit the security [under Rule 21(2) of the Rules] had acted in exercise of that power and he was fully enabled [under that sub-rule itself] to pass an order after hearing the licensee to forfeit the security as well. It is not possible to accept the contention advanced by the learned counsel for the petitioner that merely because the word "security amount" did not appear in the unamended text of sub-Rule (3) of Rule 21 of the Rules and since those words had been added by the amendment w.e.f. 01.04.2018, therefore, prior to that amendment, there did not exist any power to forfeit security amount. That interpretation would render the earlier part of Rule 21(2) of the Rules redundant.

26. In fact, true reading of sub-Rule (3) of Rule 21 of the Rules makes it clear, even prior to the amendment to that Rule, by way of direct and mandatory consequence of cancellation of license, the basic license fee and the license fee deposited by a licensee would be forfeited as a consequence of cancellation of license. However, if the licensing authority wanted to forfeit the "security amount" it had a discretion in terms of sub-Rule (2) of Rule 21 of the Rules. By virtue of amendment made w.e.f. 01.04.2018, the consequence of mandatory confiscation has been extended to "security amount" as well.

27. Therefore, post amendment to Rule 21(3) of the Rules, a simple order of cancellation of the license would result in the licensee losing his rights over the security amount along with basic license fee and the license fee, that may have been deposited by him. It is only with respect to other consequences such as black-listing and debarring the licensee to hold any other license that sub-Rule (3) leaves a discretion with the licensing authority. However, we are not concerned with that aspect of the matter. That effect and differentiation is further accentuated by use of the words "shall" (while providing for confiscation) and "may" (while providing for black-listing).

28. In view of the above, I am unable to accept the contention advanced by the learned counsel for the petitioner that prior to the amendment made to sub-Rule (3) of Rule 21 of the Rules, there did not exist any power with the licensing authority to forfeit the security amount. That power is found to be pre-existing, by virtue of sub-Rule (2) of Rule 21 of the Rules. The introduction of the words "security amount" by amendment made to sub-Rule (3) has the effect of making confiscation of "security amount", a mandatory consequence of an order of cancellation of license.

29. In the facts of the present case, the forfeiture was proceeded by a specific show cause notice, in terms of section 34 of the Act read with Rule 21(2) of the Rules and section 72(c) of the Act. The order for forfeiture of advance security deposit as has been passed is referable only to sub-Rule (2) and not to the sub-Rule (3) of Rule 21 of the Rules. Sub-Rule(3) only provides for the mandatory and other consequences of cancellation of the license. It does not authorize the licensing authority to pass an order. That power is contained completely in sub-Rule (2). One is therefore not required to look into sub-Rule (3) for the purposes of the decision of the present case.

30. Insofar as Section 72 of the Act is concerned, sub-Section (1) provides for confiscation of different items and also animals, carts and vessels or other conveyance in the event of offence punishable under the Act being committed. Sub-Section (2) provides for confiscation of any animal. Under sub-Section (3) and (4), the Collector upon receiving the report of seizure or upon inspection of seized things or animal etc may, if such seized items or animal is subject to speedy or other decay provide for its disposal. Sub-Section (5) provides for issuance of show-cause notice to the owner of the thing or animal, etc. that may be made subject matter of confiscation proceeding. The owner has thus been given a statutory right to object in writing and also to be heard before confiscation order may be passed. Sub-Section (6) provides for a power of limited review in certain circumstances, while sub-Section (7) gives the right to the person from whom such any property may have been seized, a right to appeal to a duly appointed judicial authority. Sub-Section (8), on the other hand, relates for disposal of the thing or animal in the event of prosecution being instituted. Sub-Section (9) provides that confiscation would not act as a bar on punishment which may otherwise be imposed on the offender.

31. Thus, relevant for our purpose, under Section 72(1)(c) of the Act, any intoxicant, whether lawfully imported or not is made liable to confiscation in the event of offence punishable under the Act being found committed.

32. Though, a right of appeal given to the owner, under Section 72 of the Act is separate and distinct from the right of appeal under section 11 of the Act that a licensee may have against an order passed in terms of Rule 21 of the Rules, it may not necessarily imply that the original authority must therefore pass two separate orders, though he was otherwise vested with both the power to suspend or cancel the license and also the power to confiscate. The fact that he exercised the power compositely may only make a difference on the remedy that the petitioner may have against the order.

33. Thus, against the impugned order dated 05.05.2016, the petitioner may have had a right to appeal before the Appeal Authority, which was the Commissioner under Section 11 of the Act, insofar as that order related to the cancellation of license and denial of refund of security amount, but he may also have had a separate right of appeal against the other part of the order which relates to confiscation of lawful stock of liquor and cash. However, that difference of appeal forum made available to the petitioner would not lead to a different conclusion insofar as the interpretation is to be given to the language of Rule 21(3) of the Rules.

34. The submission of the learned counsel for the petitioner that no proceedings was instituted under Section 72 of the Act and therefore forfeiture of liquor is illegal is also found unacceptable in view of the reasoning given above. The show cause notice dated 29.9.2015 was a composite notice, both seeking cancellation of license and forfeiture of license fee and security deposit as also for confiscation of liquor. The petitioner also appears to have replied to that notice and participated in the proceedings. His reply, on merits, was considered and decided. In absence of any inherent lack of jurisdiction with the issuing authority, merely because the proceedings for confiscation of liquor are provided under Section 72 of the Act to be undertaken by the Collector, it would make no real difference since, as noted above the District Magistrate was the Collector and the Licensing Authority. The objection being raised by the petitioner is found to be cosmetic in nature and substantially unreal. Thus, as a fact the show cause notice was issued by the proper authority. It was replied to and thereafter the order had been passed in the prescribed manner after by following the procedure contemplated under Section 72 of the Act. Therefore, the proceeding did not suffer from defect of jurisdiction.

35. In view of the above, neither I consider it a proper or a fit case to now relegate the petitioner for the remedy of appeal before the District Judge in respect to the confiscation of lawful and unlawful stock and liquor. To that extent, I decline to exercise jurisdiction of Article 226 of the Constitution of India in view of the facts that have transpired and the proceedings that the petitioner had already availed. Also, substantially the claim of the petitioner is found to be lacking on merit. Once the cancellation order has been accepted on merits, the petitioner lost all rights to deal with lawful or unlawful stock of liquor.

36. Insofar as the decision in the case of Chandra Pal Singh Vs. State of U.P. & 4 Ors. (supra) is concerned from a bare perusal of the order dated 27.05.2014, it appears that the State could not point out any provision of law to resist that petition. Though the SLP against that decision has been dismissed, the submissions similar to those advanced by the learned Standing Counsel, in the present case, appear to have been raised (in that case), only upon review petition being filed. It came to be rejected on a technical plea that the same would fall outside the scope of review. Thus since the decision in Chandra Pal Singh Vs. State of U.P. & 4 Ors. (supra) was based, practically on the concession made by the State, the further fact that the SLP therefrom may have been dismissed would not amount to any declaration of law, that may bind the Court. That decision would remain a decision on facts.

37. However, there is no provision of law which the learned Standing Counsel could refer to as may enable the excise authorities or the Collector to confiscate any amount of cash that may have been found at the time of inspection or survey. The cash found is clearly not excisable goods and there is no allegation or finding against the petitioner that the same were proceeds of unlawful trade in liquor. In view of the above, the amount of Rs. 17,530/- is liable to be refunded to the petitioner forthwith, in accordance with law. To that extent, the petition must succeed. It is declared that the excise authorities or the Collector had no authority to confiscate the cash Rs. 17,530/-.

38. Accordingly, the petition is partly allowed.

Order Date :- 16.7.2019 Prakhar/Saif

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