K RANGAPPA Vs. DEPUTY COMMR OF EXCISE

JUDGEMENT

(1.) This writ petition is filed questioning the order of the first respondent i.e., the Deputy Commissioner of Excise, Ananthapur, dated 2-3-1994 in his proceedings bearing Re. No. 166/94/B1 and the order of the second respondent ie., the Excise Superintendent, Ananthapur, dated 15-1-1994 in his proceedings bearing Re. No. 60/94/B3.

(2.) By order dated 15-1-1994, the second respondent herein suspended the TFT licence of the petitioner on the ground that during inspection of the TFT counter of the petitioner on 6-1-1994 the excise staff found on spot test the toddy that was being sold at the petitioner's counter was found mixed with Chloral Hydrate. Samples were drawn for analysis. A case was also registered against the petitioner under Section 37 (a) of the Andhra Pradesh Excise Act, 1968. One of the samples was sent for chemical analysis as per the directions of the learned Judicial First Class Magistrate at Kalyandurg, in Crime No. 27/93-94 relating to the petitioner. The analysis report showed that the sample of toddy was free from "Chloral Hydrate and Diazepam". As the suspension was not lifted after the chemical analysis report was received,t he petitioner approached the first respondent herein by way of appeal against the order of suspension passed by the second respondent. The first respondent in his order dated 2-3-1994 informed the counsel for the appellant as follows : "that the department is in practice of sending second sample to an independent laboratory. Pending receipt of the second opinion of the Chemical Examiner, the plea to set aside the orders of respondent in Re. No. 60/94/B3 dated 15-1-1994 is rejected. The case is posted to 21-3-1994 for hearing, as Chemical Examiner's report is expected by then."

(3.) The learned Government Pleader for Excise accepts that there is no such practice and the same is not authorised by the rules under the Andhra Pradesh Excise Act, 1968. On that basis in W.P.M.P. No. 5085 of 1994 in the present writ petition this Court on 19-3-1994 directed the respondents to allow the petitioner to operate his TFT counter and not to interfere with the same, except in accordance with law, until further orders. No counter was filed on behalf of the respondents by that day. Subsequently, the first respondent herein gave his counter dated 12-4-1994. Therein be accepts that the petitioner was granted TFT licence by the Excise Superintendent, Ananthapur on 23-10-1993 and that the same is valid upto 30-9-1994. He also accepts the licence of the petitioner was suspended by the Excise Superintendent by his impugned proceedings dated 5-2-1994? pending investigation into the matter and that the department also sent one sample for chemical analysis report and that the Chemical Examiner of the Excise Department submitted his report dated 5-2-1994 stating that the sample of toddy drawn was free from Chloral Hydrate and Diazepam. However, he states: "The spot test conducted for Chloral Hydrate is quite fool-proof and there are no chances of getting a negative report from the Chemical Examiner. When once the spot test proves mixing of Chloral Hydrate, and even if a negative report is received from the Chemical Examiner, it requires re-checking. In such cases, the department approaches the concerned Court by filing a memorandum in the Court for sending the second sample for chemical analysis to an independent laboratory. It is a fact that pending receipt of Chemical Examiner's report, the Excise Superintendent, Ananthapur, has issued notice, vide Re.No. 60/94/B3 dated 5-2-1994, for cancellation of TFT licence of Sri K. Rangappa of Vepulaparthy" (the petitioner herein).