DALCHAND SUWALKA Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the order of the Commissioner, Excise and Taxation, Rajasthan, Udaipur dated 26.9.60 whereby he modified the order of the Asstt. Commissioner, Excise and Taxation dated 11.2.60. The circumstances which have given rise to this revision in brief are that the Excise Inspector Sirohi in the presence of the Assistant Commissioner, Excise, raided Shop No. 1 of the applicant Shri Dalchand of Udaipur at Sirohi on 18.7.60. The following incriminating articles were recovered in the presence of one Shri Bansilal who was admittedly the agent of the applicant working at that shop: - 1. Adulterated country liquor in bottles. 2. 393 one lb. sealed bottle of belladonna. 3. Hydrometer for testing the strength of alcohol. 4. Rubber seal used for sealing cork, lables. 5. Instrument for re-tightening crown cork. 6. A tense containing nearly 10 bottles of adulterated liquor. A recovery memo was prepared and statements of a number of witnesses including One Shri Banshilal an employee of the applicant was recorded then and there. The applicant was served with a notice on 28th July, 1960, to show cause why his licence should not be cancelled, and the advance deposited by him or part of it be not forfeited from the breach of the conditions No. 5, 6, 15 and 19 of his license issued under the Rajasthan Excise Act. Originally three days time was given to the applicant but this was extended upto 10 days on his request. The Assistant Excise Commissioner after considering explanation of the applicant cancelled the licence and also ordered that Rs. 2000/- be forfeited from the advance money deposited by him. An appeal was filed against this order before the Excise Commissioner, who held that it could not be denied that the bottles and the articles were found in the licensee's store room and the licensee was responsible for them but due to certain extenuating circumstances, (which we shall discuss later) the severest punishment to the license which is cancellation of his contract was not justified though such practices in whatever form and by whatever means have to be discouraged. On the basis of this reasoning the learned Commissioner set aside the order of the Assistant Commissioner only with regard to the cancellation of the license of the applicant, the other punishments proposed by the Assistant Commissioner were upheld. It is against this order that a revision has been filed under sec. 9(1) of the Rajasthan Excise Act in this court.

(2.) WE have heard the counsel for the parties and have examined the record. The main points urged before us by the learned counsel for the applicant were - (1) that the fact that the Assistant Commissioner, Sirohi raided the shop and he also decided the case flouted the principle of natural justice; (ii) that the applicant was not given any opportunity to examine the defence witnesses or to cross-examine witnesses on behalf of the Excise Deptt. in fact there was no trial at all and the applicant has been condemned unheard; (iii) the story itself explains that the articles were placed by some one else, and when the Commissioner reached at the conclusion that there was a possibility of implanting these articles he should have set aside the order of the Assistant in toto; (iv) that belladonna and most of the other articles found are not 'excisable articles; (v) that the applicant could not be held liable for an accidental act of omission by his servant (vi) that for a breach of conditions Nos.5, 6, 15 19 and 24 of the license, it was necessary that a continued cause of contravention be established. WE shall examine these contentions in the reverse order. It appears to us that the recovery of these articles will indicate breach of conditions No. 6 and 19 only though in the notice issued to the applicant breach of condition of license 5, 6, 15, 19 and 24 has been mentioned. It is nobody's case that the applicant brought excise liquor bottle from the other license holder or that he was selling excise liquor not in sealed bottles but in open bottles. Clause 6 says that the license holder shall not open for sale any other excise articles except the liquor of the strength approved by the Excise Department. He shall not change its composition or adulterate it in any way. Clause 19 provides inter alia that the licensing authority shall be competent to cancel the license if he is satisfied that the license holder was running his shop so carelessly as to result in a loss to Government revenues, or he surreptitiously keeps or sells illicit liquor, opium or other excisable articles. The contention of the learned counsel for the applicant that for breach of conditions Nos. 6 and 19 a continuous contravention should be established is in our opinion untenable. The plain reading of both the clauses indicates that if a license holder is found in possession of any liquor other than that approved by the Excise Department he contravenes the condition No. 6 of the license. On the other hand we think that in the absence of the proof to the contrary the recovery of illicit liquor in a large quantity would raise a presumption that the license holder habitually sells the excise liquor. There is nothing in the plain reading of clause 5 or 12 to indicate that continuous possession of incriminating excise articles must be proved for the breach of conditions.