ARVIND KUMAR UPADHYAY Vs. EXCISE COMMISSIONER AND OTHERS

JUDGEMENT

(1.) The defect pointed out by the office is waived on the application. The application is allowed.

(2.) Mr. R.P. Singh, Senior Counsel appearing with Mr. Achintya Kaushik for the petitioner has submitted that a licence was issued to the petitioner under the form NDPSL-7 of the Rajasthan Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter 'the Rules of 1985'). Clause 6 provided that on breach of any of the conditions of the licence or any provision of the NDPS Act, 1985 and/ or the NDPS Rules 1985 or any order or instruction issued from time to time, the licence would be liable to be revoked by the Additional Commissioner in addition to other punishment which may be inflicted under the provisions of the Act of 1985. The proviso to clause 6 however provided that if an application were to be made in respect of a breach of the licence, if the Excise Commissioner were to be satisfied that the breach was minor in nature, it would be condoned imposing a penalty as prescribed therein. Senior Counsel submitted that from a holistic reading of clause 6 of the form NDPSL-7, it is thus evident that minor breaches were to be compounded/ condoned, and every breach did not inevitably entail revocation of the licence. It was further submitted that even otherwise as clear from the word "liable" in clause 6 aforesaid, revocation of the licence could result only subsequent to an enquiry conducted in accordance with the principles of natural justice and a fair conclusion that revocation was the appropriate consequence for the breach found. Mr. R.P. Singh submitted that in these circumstances, where an application had been made for condoning/ compounding the alleged breach, by the petitioner qua the alleged, albeit quite vague, breach it ought to first have been addressed by the authority and a decision taken thereon, prior to revoking the licence after due process and not peremptorily as has been done. It has been submitted that in fact vide notice dated 20-11-2015 the Additional Excise Officer had himself required the petitioner to seek compounding accordingly the petitioner had moved an application for condonation/ compounding on 22-11-2015.

(3.) On the specific facts of the case it was submitted that the licenced goods (Lanced Poppy Straw) stored by the petitioner as a licencee were allegedly found to be mixed with ..[VERNACULAR TEXT OMITTED].. but neither the nature of the said ..[VERNACULAR TEXT OMITTED].. was set out nor its quantity disclosed. But importantly in terms of the report dated 30-10-2015 under Section 293 Cr.P.C., 1973 in regard to the licenced LPH the Assistant Chemical Analyst wrote to the Excise Inspector Jhalawar and confirmed that the goods in issue were of standard quantity. It was submitted that, thus, evidently, the breach alleged, if any was minor. Yet without addressing the petitioner's application for condonation/ compounding filed by him on 22-11-2015, the licence was peremptorily revoked vide order dated 7-1-2016. An appeal there against has also been mechanically dismissed on 25-1-2016. It has been submitted that now the revision petition filed under Rule 60 of the Rules of 1985, is not likely to be addressed in the near future, for the reason that no Revising Authority has been designated/ appointed by the State Government and by default the matter is to address it. However, for reason of heavy schedule of the concerned Minister, who happens to be the Chief Minister by virtue of holding the charge of the Excise department, it is not likely that the revision will be heard in the near future. Meanwhile the LPH purchased by the petitioner as a wholesaler licencee continues in the custody of the excise department is likely to be completely wasted with efflux of time for the reason that vide order dated 19-2-2016 under Section 74 of the Act of 1985 the business of LPH is to cease completely effective 31-3-2016. No market transaction in LPH thereafter are permissible. The sale/ disposal of the LPH in issue has therefore to be completed by 31-3-2016 failing which the petitioner will be gravely prejudiced to the benefit of none: even the State. The petitioner's rights have already been contravened by the Additional Excise Commissioner, the competent authority in failing to address his application for condoning/ compounding of the alleged breach.