Sri. K. Rajanna 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

04.12.2008 passed by the respondent No. 2 as per Annexure-C and the order dated 18.06.2008, Annexure D and the order dated 21.06.2011

in Appeal No. 524/2009 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 30.09.2008 the Inspector of Excise conducted a search on

the business premises of the petitioner and registered a case in FIR 6/2008-09 for violation of Section 37, 11 and 13 and for the offences

punishable under Sections 32 of Karnataka Excise Act. On 04.10.2008, the licensing authority issued a show cause notice to the petitioner alleging

that he was unauthorisedly selling liquor and was storing duplicate liquor. Petitioner submitted his reply denying the allegations. The licensing

authority vide order dated 04.12.2008 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 18.06.2008, Annexure-D dismissed the appeal. Thereafter the petitioner filed an appeal before the Karnataka Appellate Tribunal in

appeal No. 524/2009. Under the impugned order dated 21.06.2011 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 in the impugned order dated 04.12.2008-Annexure C mainly relied on the report of investigating

officer and the report of chemical analysis. This report of chemical analysis was not furnished to the petitioner before passing the impugned order.

Further in the show cause notice dated 04.10.2008 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 he

can take his defence and prove his 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 has not properly considered the defence taken by the petitioner in his reply

dated 17.10.2008. 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 04.12.2008 passed by respondent No. 2 as per Annexure-C and the order dated 18.06.2008, Annexure-D and

the order dated 21.06.2011 in Appeal No. 524/2009 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.