SRINIVASA GOUD Vs. DEPUTY COMR OF EXCISE

JUDGEMENT

(1.) All these writ petitions give rise to a common question of law. It will be convenient to dispose them of together. I have heard the Counsel for the petitioners, M/s. Subhashan Reddy, Rama Krishna Reddy, Eswaraiah, and others. I have also heard the learned Government Pleader Sri Sitarama Raju.

(2.) In all these cases, the licences held by the petitioners for the sale of toddy were cancelled on the ground that on chemical examination the toddy being sold by the petitioners was found adulterated either with Chloral Hydrate or Diazepan. Inspections of the shops were made and on suspicion that the toddy which was being sold at the counters was adulterated, samples were taken in two bottles. These two bottles were sealed and deposited in the Court of the Judl. I Class Magistrate having jurisdiction over the respective petitioners. Thereafter, a requisition was sent to the Court to send one of the sample bottles tor chemical examination by the Government Chemical Examiner for Excise. A report, in due course, was sent by the Examiner to the effect that on analysis it was found that the toddy was adulterated either with Chloral Hydrate or Diazepan. Thereupon, notices were issued to the petitioners to show cause why their licences should not be cancelled, as the petitioners committed violation of the conditions of licence by selling adulterated toddy. The petitioners denied the allegation contained in the show cause notice and required the Superintendent, Excise, to forward the second sample bottle to an independent Chemical Examiner for analysis and report. The Excise Superintendent declined to accept the petitioners request on the ground that Rule 24 of the A.P. Excise (Arrack and Toddy Licences General Conditions) Rules, 1969, (hereinafter referred to as 'the General Conditions Rules) does not provide for a sample being sent to an independent Chemical Analyst on a requisition by the licensee. In that view of the matter, the Excise Superintendent acted on the report already furnished by the Chemical Examiner for the Excise Department and cancelled the licences of the petitioners. The orders passed by the Excise Superintendent cancelling the licences are assailed by the petitioners. In several cases appeals were filed against the orders of the Excise Superintendent before the Deputy Commissioner of Excise who upheld the orders of the Excise Superintendent cancelling the licences. In all such cases, the orders of the Deputy Commissioner of Excise are challenged before this Court. The grounds of attack against the orders of the Excise Superintendent and also the orders of the Deputy Commissioner of Excise, are identical. The main attack is that the amended Rule 24 of the General Conditions Rules, which came into force on 12-8-1987, was void to the extent that it did not provide for an opportunity to the licensees to establish that the toddy Was not adulterated. Prior to the amendment of Rule 24, such an opportunity was available to the licensees and the denial of such an opportunity in the amended rule is violative of the Article 14 and Art. 21 of the Constitution of India. This basically is the challenge in all the writ petitions.

(3.) In order to appreciate the contention of the petitioners, it would be relevant to consider Rule 24 as it existed prior to the amendment on 12-8-1987 and the amended rule which came into force on 12-8-1987. Old Rule Amended Rule Rule 24 : Samples : Any Excise Officer/Police Officer not below the rank of Sub-Inspector, Food Inspector, appointed under the Prevention of Food Adulteration Act 1954 shall be competent at any time, to take samples of arrack, or toddy in the possession of the licensee for purpose of analysis. Three samples should be taken by the officer personally in the presence of the licensee or his authorised agent under a Panchariama. One of the samples shall be delivered to the licensee or his agent under acknowledgement, the second shall be sent to the Court and the third shall be sent for Chemical Examination, wherever necessary. Drawal of samples : -Any Excise Officer not below the rank of a Sub-Inspector of Excise or Food Inspector appointed under the Prevention of Food Adulteration Act, 1954, shall be competent at any time to take samples of arrack or toddy in the possession of licensee or any other persons storing arrack or toddy for purposes of analysis. Such officer shall take two samples in the presence of the licensee or his agent under a Panchanama. Both the samples shall be sent to the Court with a requisition to send one of the samples to the C. E. for Chemical Examination expeditiously. Only in the event of the sample sent to the C. E. being damaged in transit or otherwise before the analysis is concluded the said officer shall approach the Court to send the second sample bottle deposited with the Court to the Chemical Examiner."