Smt. S. Pushpalatha vs The Excise Commissioner, The Deputy Commissioner and The Deputy Commissioner of Excise

H.N. Nagamohan Das, J.—In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the order dated 02.12.2009 passed by the respondent No. 2 as per Annexure-C and the order dated 26.03.2010, Annexure-D and the order dated 17.06.2011 in Appeal No. 201/2010 passed by the Karnataka Appellate Tribunal, Annexure-E and for other reliefs. Petitioner was running a Bar and Restaurant under a license in form CL-9 issued under the Karnataka Excise Act. On 19.09.2009 the Inspector of Excise conducted a search on the business premises of the petitioner and registered a case in FIR 27/2009-10 for violation of Sections 32, 34, 36, 41 and 43 of Karnataka Excise Act. On 14.10.2009, the licensing authority issued a show cause notice to the petitioner alleging that 2.800 ltrs. of suspected duplicate liquor was found in drinking water bottles. Petitioner submitted reply denying the allegations. The licensing authority vide order dated 02.12.2009 cancelled the license of petitioner as per Annexure-C. Petitioner being aggrieved by the impugned order filed an appeal before the first respondent Excise Commissioner u/s 61(2) of Karnataka Excise Act. The appellate authority under the impugned order dated 26.03.2010, Annexure-D dismissed the appeal. Thereafter the petitioner filed an appeal before the Karnataka Appellate Tribunal in appeal No. 201/2010. Under the impugned order dated 17.06.2011 as per Annexure-E, the appellate Tribunal dismissed the appeal. Hence this writ petition.

Heard arguments on both the side and perused the entire writ papers.

Respondent No. 2 - Deputy Commissioner while passing the impugned order dated 02.12.2009 - Annexure C mainly relied on the report of the Investigating Officer and the report of chief Chemist, Central Chemical Laboratory stating that the appellant had indulged in sale of duplicate liquor. The report of chemical analysis was not furnished to the petitioner before passing the impugned order. Further in the show cause notice dated 14.10.2009 there is no reference with regard to the chemical analysis report. It is obligatory on the part of respondent No. 2 - Deputy Commissioner to inform the petitioner at the stage of show cause notice about the report of chemical analysis so that she can take her defence and prove her innocence. On this ground the impugned order passed by the respondent No. 2-Deputy Commissioner and the consequent orders are liable to be set aside as the same are opposed to principles of natural justice.

In the impugned order the respondent No. 2 Deputy Commissioner had casually observed that the defence taken by the petitioner in her reply dated 20.10.2009 as not satisfactory. In her reply the petitioner had requested for securing one more chemical report from a different laboratory. Respondent No. 2 had sought for clarification in this regard from the concerned authorities and he has stated in the order that he has not received any clarification from the concerned authorities even after lapse of one month. Respondent No. 2-Deputy Commissioner is duty bound to consider the defence taken by the petitioner and the evidence in support of it. In the instant case the respondent No. 2-Deputy Commissioner did not bestow any serious attention to the contentions urged by the petitioner. No reasons are assigned to reject the defence taken by the petitioner. On this ground the impugned order is liable to be set aside.

It is not in dispute that the respondent Excise Department initiated criminal proceedings and also the enquiry proceedings under the Karnataka Excise Act. Admittedly the criminal proceedings initiated against the petitioner ended in acquittal. It is obligatory on the part of the respondent No. 2 - Deputy Commissioner to examine whether the excise department relied on the same charges and same set of evidence both in criminal proceedings and in the enquiry proceedings. In the instant case the respondent No. 2 - Deputy Commissioner had not undertaken any such exercise and on this ground the impugned orders are liable to be set aside. For the reasons stated above, the following;

ORDER

i. Writ petition is hereby allowed.

ii. The impugned orders dated 02.12.2009 passed by respondent No. 2 as per Annexure-C and the order dated 26.03.2010, Annexure-D and the order dated 17.06.2011 in Appeal No. 201/2010 passed by the Karnataka Appellate Tribunal, Annexure-E are hereby quashed.

iii. The matter is remanded to respondent No. 2-Deputy Commissioner for fresh disposal in accordance with law after providing an opportunity to the petitioner. Ordered accordingly.