RAMNATH PRASAD Vs. COLLECTOR OF DARBHANGA

JUDGEMENT

(1.) In this case the petitioner Ramnath Prasad has obtained a rule from the High Court asking the respondents to show cause why a writ in the nature of certiorari should not be issued to call up and quash an order of the Collector of parbhanga dated 4-9-1953, cancelling a licence of a country liquor shop and forfeiting the security deposit in respect thereof. Cause has been shown by the Advocate General on behalf of the Collector of Darbhanga- and the other respondents.

(2.) The petitioner is a licensee of a country liquor shop located at Samastipur in the district of Dar- bhanga. The petitioner had obtained licence for the period from 1-4-1953 to 31-3-1954. On 11-6-1953 the Superintendent of Excise, Mr. S. K, Sinha, made a surprise visit to the country liquor shop and upon inspection found thirty-three bottles containing diluted liquor and in short measure. Nine of these bottles were kept on the counter and twenty-four bottles of liquor were in two baskets on the verandah of the liquor shop. It appears that these baskets were being attempted to be removed from the shop by a man called Sadhu Saran during the course of the inspection but the Excise peon, Umaiant Jha, prevented Sadhu Saran from taking away the baskets and upon inspection the two baskets were found to contain twenty-four bottles of liquor. The Superintendent of Excise found also that all the 33 bottles bore the label of the shop and contained diluted liquor in short measure. The petitioner was absent at the time of inspecition but, his employees, Ganesh Prasad and Nagina Prasad were present at the time. The Superintendent of Excise called upon the petitioner to show cause why the licence should not be cancelled. On 20-7-1953, the petitioner showed cause but his explanation was not accepted by the Superintendent of Excise who reported to the Collector that the licence should be cancelled and the security deposit of the petitioner should be forfeited. On 29-7-1953, the petitioner filed an application before the Collector alleging that the liquor bottles were planted in his shop by his enemies and praying that he should be permitted to cross examine the Superintendent of Excise. The Collector did not permit the petitioner to cross-examine the Superintendent of Excise or other witnesses in the case. On 31-8-1953 the Collector heard the submissions of the petitioner through his lawyer. On 4-9-1953, the Collector passed orders that the licence of the country liquor shop should be cancelled and the security deposit of Rs. 7,750 made in respect thereof should be forfeited to the Government. The petitioner took an appeal to the Commissioner of Excise from the order of the Collector but the appeal was dismissed and the Commissioner of Excise confirmed the order passed by the Collector. The petitioner then moved the Board of Revenue in revision. The Board of Revenue dismissed the revisional application and confirmed the order of the Collector subject to the modification that instead of Rs. 7,750/- only a sum of Rs. 5000 was forfeited to Government. It is alleged on behalf of the petitioner that the Collector of Darbhanga should have given an opportunity to the petitioner to cross-examine the Superintendent of Excise and other witnesses in the case. It is stated on petitioner's behalf that there has been denial of natural justice and that the order of the Collector of Darbhanga dated 4-9-1953 is illegal and void for this reason. It is further alleged on behalf of the petitioner that the amount of Rs. 5,000 which is forfeited was not a deposit in respect of the licence of the country liquor shop of Samastipur and neither the Collector nor his superior authorities were entitled to forfeit that amount under Section 42 of the Bihar and Orissa Excise Act.

(3.) Two counter-affidavits have been filed on behalf of the respondents controverting the allegations made by the petitioner. It is specifically stated in the counter-affidavits that the amount of Rs. 7,750/- was security deposit in respect of the country liquor shop of the petitioner at Samastipur and the Excise authorities were competent to forfeit this money under the provisions of Section 42 of the Bihar and Orissa Excise Act. It is also stated on behalf of the respondents that the petitioner was given, a fair opportunity to meet the allegations both before the Superintendent of Excise and before the Collector of Darbhanga. The petitioner had made a request to the Superintendent of Excise for cross-examination of the Excise peon and other witnesses, viz., Sadhu Saran, Ganesh Prasad and Nagina Prasad. The Superintendent of Excise granted permission to the petitioner to cross-examine the peon but the petitioner did not avail himself of the opportunity. As regards the other three persons the Superintendent was of opinion that their cross-examination was not necessary as their statements were more or less in favour of the petitioner. It is contended therefore on behalf of the respondents that the order of the Collector of Darbhanga was a legal and valid order and cannot be quashed in this proceeding.