N.MALLA REDDY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THIS case has had a chequered history. The petitioner has invoked the jurisdiction of this Court, by way of the present Writ Petition, for the fourth time in a span of two months. Facts, to the extent necessary, are that on 14.03.2013 the petitioner's A -4 shop was inspected at 11.00 A.M in the presence of the petitioner and two others; the officers found 11 boxes of IML liquor kept on one side of the shop and, on verification, found 48 bottles of 180 ml. in each box; on examination they found that all the excise adhesive labels (EALs) thereon were fake; and their enquiry revealed that the petitioner, along with his partner, had entered into an agreement with one Sri Venkateswarlu for supply of the said non -duty paid liquor.  The petitioner's license was suspended pending enquiry on 15.03.2013 and a case, in COR No.683/2012 -13, was registered by the Station House Officer, Medchal for offences under Section 34(a) and Sections 36(b) & (c) of the A.P. Excise Act, 1968 (hereinafter called the "Act") on the same day.  The show cause notice dated 15.03.2013, for cancellation of the petitioner's A -4 shop license, was served on the nowkarnama of the petitioner, on 18.03.2013 granting a week's time for the petitioner to submit his reply thereto; and, on the ground that no reply was submitted by the petitioner to the show cause notice, an order of cancellation was passed on 26.03.2013.  Aggrieved thereby the petitioner invoked the jurisdiction of this Court, and filed W.P. No.11227 of 2013.  During the pendency of the said Writ Petition wherein, among other grounds, he disputed the allegation of non -duty paid liquor being found in his premises, the petitioner also preferred a statutory appeal against the order of cancellation dated 26.03.2013.In its order, in W.P. No.11227 of 2013 dated 22.04.2013, this Court noted that the petitioner was willing for compounding of the offence under Section 47 of the Act; and he had placed reliance on a Division Bench judgment of this Court in V. Srinivasa Reddy v. Commissioner of Excise, Government of A.P. Hyderabad (1998(1) ALD 16 (DB) wherein it was held that the power of compounding the offence was conferred on the authorities, including the Commissioner, to facilitate the license holder to conduct their business so that they do not sustain loss due to closure of their business.  This Court also noted the submission of the Learned Government Pleader for Prohibition & Excise that, even though Section 47 included Section 31(a) & (b) of the Act, a fair amount of discretion vested in the 2nd respondent whether or not to accept compounding; and, having regard to the gravity of the act indulged in by the petitioner, this was not a compoundable offence.  The Writ Petition was disposed of holding that the question whether the petitioner was entitled for compounding of the offence, under Section 47 of the Act read with the A.P. Excise (Compounding of offences) Rules, 1973 (hereinafter called the "Compounding Rules"), did not arise for consideration at that stage and, as the petitioner had already made a request in the pending appeal for compounding of the offence, interest of justice would be served if the 4th respondent was directed to consider the petitioner's request for compounding the offence in terms of Section 47 of the Act read with the compounding Rules and in the light of the Division Bench judgment.  The 4th respondent was directed to give an opportunity of being heard to the petitioner, and take an appropriate decision on this aspect within ten days of receipt of a copy of the order.   The petitioner filed an application for compounding the offence under Section 47 of the Act.  By his proceedings dated 03.05.2013, the 4th respondent held that the contraband seized was 11 cartons of whisky which was non -duty paid liquor; seizure of non -duty paid liquor, from the licenced premises, clearly established that the appellant -licensee had intentionally indulged in sale of non -duty paid liquor flouting the Rules and the conditions governing the license; this activity, if allowed, would not only erode government revenue but would also put the health of consumers at risk since the liquor was illegally manufactured and supplied; and, in the greater interest of government revenue and in public health, he deemed it fit not to grant the relief sought for, and was upholding the order of the Prohibition & Excise Superintendent, Medchal cancelling the shop license. The petitioner's appeal was, accordingly, dismissed.Aggrieved thereby, the petitioner filed W.P. No.14205 of 2013 questioning the validity of the order of cancellation dated 26.03.2013 as confirmed in appeal by the order of the 4th respondent dated 03.05.2013.

(2.) THIS Court, in its order dated 08.05.2013, observed that Section 47 of the Act stipulated the manner in which the authority was required to pass orders in lieu of cancellation etc; and the impugned order was not sustainable.  The impugned order dated 03.05.2013 was set aside and the matter was remitted for the reconsideration of the 4th respondent who was directed to give notice to the petitioner, hear and decide the matter, and pass appropriate orders in terms of the directions of this Court and Section 47 of the Act, preferably within a week from the date of the order.

(3.) AGGRIEVED by the order passed by the 4th respondent dated 13.05.2013, the petitioner again invoked the jurisdiction of this Court.  In its order in W.P. No.14997 of 2013 dated 22.05.2013 this Court, while noting the submission of the Learned Government Pleader for Prohibition & Excise that it was the Commissioner of Excise who was the competent authority to take an appropriate decision on the appeal filed by the petitioner, set aside the impugned order dated 13.05.2013 and directed the Commissioner of Prohibition & Excise to take an appropriate decision on the appeal filed by the petitioner, strictly in accordance with Section 47 of the Act, within one week of receipt of a copy of the order.The 2nd respondent, by his proceedings dated 03.06.2013, rejected the petitioner's request for compounding of the offences under Section 47 of the Act holding that the case pertained to Cr. No.683 of 2012 -13, under Section 36(b)&(c) and Section 34(a) of the Act, of the Excise Station Medchal; both Sections 34(a) and 36(b) & (c) were non -compoundable as per Section 47 of the Act; the license of the shop was cancelled on 26.03.2013 vide Cr. No.E5/360/2013; in view of the law laid down in K. Penchal Reddy v. Special Chief Secretary to Govt. of A.P. (2005(4) ALT 305), the offence under Section 36(c) was not a compoundable offence; once the license was cancelled, there was no power to compound the offence; only trivial offences were compoundable before cancellation or suspension of the license; the contraband of 11 carton bottles was illegal, and had not been routed through known manufacturers or APBCL; in the present case, in addition to the loss of revenue, there was the possibility of public health being jeopardized; and, therefore, the application for compounding the case was being rejected.  Aggrieved thereby the present Writ Petition.This Court, by its order in W.P.M.P. No.21085 of 2013 in W.P. No.17358 of 2013 dated 19.06.2013, noted the submission of the both Learned Senior Counsel appearing on behalf of the petitioner on the scope of Section 47 of the Act and the Learned Government Pleader for Prohibition & Excise that evasion of excise duty, being a serious offence, did not fall under Section 47 of the Act.  This Court was, prima facie, of the view that the phrase "any duty" in Section 31(1)(a) of the Act comprehended excise duty as well; and, as long as the violation was made compoundable under Section 47 of the Act, the 2nd respondent had no option but to accept the licensee's request for compounding such a violation.  As the new Excise year was to commence from 01.07.2013, the 2nd respondent was directed to receive the maximum compounding fee of Rs.1,00,000/ - from the petitioner towards the alleged violation of being in possession of non -duty paid liquor. The 5th respondent was directed, on the petitioner making such payment, to renew his license for the excise year 2013 -14 which was to be subject to further orders.  Time was granted to the respondents to file a counter affidavit.