SAID AHMAD Vs. DY NARCOTICS COMMISSIONER

JUDGEMENT

(1.) K. C. Bhargava, J. The petitioner has filed this petition praying for quashing the order, dated 16-2-1993 passed by the Deputy Narcotics Commis sioner, Lucknow, opposite-party No. 1, contained in Annexure 11 to tbe writ petition and for a direction to. the opposite-parties to grant licence to the petitioner for the year 1992- 93 for cultivation of opium poppy.

(2.) THE facts, stated in brief, are that the petitioner is an old license for growing opium for the last 25 years and bis licence has been renewed from year to year. Lastly his licence was renewed for the year 1991-92. THE petitioner was also appointed and designated as Opium Lambardar Mukhiya under Rule 10 of the Narcotics Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as the Rules ). THEreafter the petitioner applied for renewal of his licence for the year 1992-93 and the same was refused by order dated 3-11-1993, vide Annexure 4 to the writ petition, on the ground that his son has been arrested under the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act ). THEreafter, the petitioner moved an application to the Superintendent of Police, Barabanki to make enquiry into the matter that the son of the petitioner, Laiq Ahmad, was residing separately from his father and the petitioner has no concern with his son. THE Superintendent of Police, Barabanki vide his report, dated 20-11-1992 reported that the petitioner wag residing separately from his son for the last ten years and that their ration cards were also separate. THE petitioner preferred an appeal against refusal to renew his licence which was dismissed by order dated 1-12-1992, contained in Annexure 9 to the writ petition. THEreafter, the petitioner filed Writ Petition No. 17 (M/s) of 1992, Said Ahmad v. Deputy Narcotics Commissioner, Lucknow, which was allowed by this Court vide order dated 12-1-1993, contained in Annexure 10 to the writ petition, with a direction to the Deputy Narcotics Commissioner for determi nation of tbe appeal with specking order. On 16-2-1993 the appeal was dismissed by the Deputy Narcotics Commissioner on the ground that tbe petitioner has failed to prove separate economic interest from that of his son who was involved in an offence relating to narcotic drugs. It is alleged that this order is illegal because the NDPS Act does not provide that if any relation of the licensee has been arrested under the NDPS Act his licence will be refused. THE father and son are living separately from each other. THE son of the petitioner is neither living in the house of the petitioner nor has he got any common economic interest with the petitioner, on similar tacts in Writ Petition No. 2808 (M/s) of 1992, Hari Prasad v. District /regional Opium Officer, Barabanki, the opposite-parties were directed to gram licence. In that case the brother of the petitioner was arrested under the NDPS Act.

(3.) NOW the learned Counsel for the petitioner has argued that unless conviction is recorded against the son of the petitioner it cannot be said that he has been prosecuted under the NDPS Act. NOW we have to see as to what the word "prosecuted" as used in para 108 (5) (ii) of the Opium Manual, means. This matter came up for consideration before the Hon'ble Supreme Court in Thomas Dana v. State of Punjab, AIR 1959 SC 375, In para 11 of the judgment the Hon'ble Supreme Court held as under :- Prosecution" means a proceeding either by way of indictment or information in the criminal courts in order to put an offender upon his trial. "