The petitioner in this writ petition is challenging the order dated 08/10.4.2013 whereby his liquor license has been cancelled, the order dated 12.08.2013 dismissing his appeal and the order dated 26.11.2013 dismissing his revision.
The petitioner is stated to be a vendor of country made liquor for which he was granted a license for retail sale of country made liquor at Dohri Ghat (Khatik Tola), District-Mau in the year 2009-10 under the U.P. Excise (Installment of Licenses for Retail Sale of Country Made Liquor) Rules, 2002 (hereinafter referred to as the Rules, 2002). According to the petitioner a raid was conducted at his shop on 26.03.2013 on a day when the shop was closed under the orders of the District Magistrate due to the Holi festival. The said raid is stated to have been conducted by the local police on the instructions of Deputy Commissioner, Excise, Azamgarh. During the raid 125 boxes of illegal liquor, 282 boxes of legal bottled liquor, 5 sacks containing 2,500 plastic bottles, 8,500 duplicate wrappers, about 10,000 lids, 805 duplicate Holograms, one bottle of Caromil liquid, one bottle of essence, two Jericans of 20 liters each containing a total of 25 liters Spirit mixed with Urea, Nausadar etc. one tank of 5 liters with a tap at its bottom and Rs. 44,960/- being the price of illegally sold liquor have been recovered. One Ram Ujagar Dubey, who is stated to be the seller of the illegal consignment was arrested and a case registered against him under Section 60 read with section 72 of the U.P. Excise Act, 1910 and under Sections 419, 420, 467, 468, 471, 472, 272, 273 of the IPC being Case Crime No.83 of 2013 and the consignment of legal liquor was also seized in exercise of powers under Section 72-C of the U.P. Excise Act, 1910. Thereafter by the order dated 10.04.2013 impugned in the present writ petition the liquor license of the petitioner was cancelled and the license fee as well as security money has also been seized and a Case Crime No.98 of 2013 has also been initiated against the petitioner against the aforesaid sections.
Aggrieved by the said order dated 10.04.2013 the petitioner preferred an appeal under Section 11 (1) of the U.P. Excise Act, 1910 which has also been rejected and the order dated 08/10.04.2013 has been upheld, subject to the modification that the license fee which has been deposited by the petitioner-appellant for the year 2013-14 alongwith security money shall not be confiscated. Aggrieved by the appellate order dated 12.08.2013 the petitioner preferred a revision which has also been rejected by the Special Secretary.
I have heard Ms. Madhumita Bose, learned counsel for the petitioner and Sri Sanjieva Shankhdhar, learned counsel for the respondent-Excise Department and perused the documents on record.
The contention of the learned counsel for the petitioner is that the raid was conducted on the shop of the petitioner on a date on which it was closed under the orders of the District Magistrate for the Holi festival after breaking its locks in the absence of the owner as well as the approved salesman of the shop and thereafter the alleged consignment is stated to have been seized. Reference has been made to the provisions of Section 48 of the U.P. Excise Act and it is submitted that under Section 48 the Excise Commissioner, Collector, or any Officer of the Excise Department not below such rank as stated may be prescribed or any police officer duly empowered in that behalf may enter and inspect at any time by day or by night, any place in which any license manufacturer carries on the manufacture of or stores any intoxicant and may enter and inspect at any time "within the hours during which the sale is permitted" and at any other time during which the same may be open and may examine, test, measure or weigh any materials, stills utensils, implements, implements. Apparatus or intoxicant found in such place; and may seize any measures, weights or testing instruments which he has reason to believe to be false.
The submission of the learned counsel, therefore, is that such a raid by the Excise Authorities in exercise of powers under Section 48 of the Act, 1910 could only have been conducted within the hours during which the sale is permitted or as the Section 48 states at any other time during which the same may be open. It is submitted that the admitted position is that the raid was conducted on the night of 26.03.2013 when the shop was closed for the Holi festival under the orders of the District Magistrate and therefore such a raid could not have been conducted in the first place nor could any material be seized unless the authority had reason to believe the same to be false. It is also submitted that no reason has been recorded by the Deputy Commissioner, Excise, Azamgarh who authorised such a raid and at least no reasons have either been mentioned in the order of suspension of the license or in the impugned order by which the license of the shop has been cancelled or in the counter affidavit or short counter affidavit filed on behalf of the respondents. Therefore, it is submitted that the entire action taken against the petitioner by the respondents was in contravention of the statutory provisions of Section 48 of the Act, 1910 and therefore illegal and liable to be quashed.
Learned counsel for the petitioner further submitted that even assuming without admitting that any material was seized from the premises in question it cannot be said that the same constitute any of the offences inviting penalty under Section 60 of the Act, 1910.
Rebutting the submissions of the learned counsel for the petitioner, Sri Sanjieva Shankhdhar, learned counsel for the respondent submitted that the raid was conducted on the order of the Deputy Excise Commissioner, Azamgarh and during the raid 125 boxes of illegal liquor, 282 boxes of legally bottled liquor, 5 sacks containing 2,500 plastic bottles, 8,500 duplicate wrappers, about 10,000 lids, 805 duplicate Holograms, one bottle of Caromil liquid, one bottle of essence, two Jericans of 20 liters each containing a total of 25 liters Spirit mixed with Urea, Nausadar etc. one tank of 5 liters with a tap at its bottom and Rs. 44,960/- being the price of illegally sold liquor. was seized and in this connection with one Ram Ujagar Dubey was arrested and a case registered against him under Section 60 read with section 72 of the U.P. Excise Act, 1910 and under Sections 419, 420, 467, 468, 471, 472, 272, 273 of the IPC being Case Crime No.83 of 2013 and the consignment of legal liquor was also seized in exercise of power under Section 72-C of the U.P. Excise Act, 1910 and therefore the order cancelling the license of the petitioner was absolutely correct and did not call for any interference.
In the counter affidavit filed on behalf of the respondents it is also stated that Holograms which were recovered from the petitioner's shop were sent for examination and the laboratory test report dated 13.04.2013 confirmed that the Holograms are fake. It has also been stated that since the appellate authority has modified the order of the District Magistrate cancelling the license of the petitioner and has directed that the license fee and the security money for the year 2013-14 which has been seized by the authorities could not have been seized. The license of Rs. 3,50,060/- for the year 2014 shall be refunded to the petitioner and the requisite bill for that purpose has already been submitted to the treasury office. So far as the security money is concerned, in paragraph 9 of the counter affidavit it has been stated that for the year 2012-2013 the petitioner had deposited security money amounting to Rs.2.28,165/- but for the year 2013-14 the security money was enhanced to Rs.2,80,048/- but the petitioner instead of depositing the said amount, sought adjustment of the same with the security deposit of the year 2012-13. However, since the petitioner did not deposit that differential amount of security for the year 2013-14 and had contravened the provisions of the statutory Rules in respect of the financial year 01.04.2012-31.03.2013 therefore the security deposited for the year 2012-13 had been forfeited which does not require any interference by this Court. It is also stated that the petitioner had not deposited any security money for the year 2013-14 and therefore question of refund of the same did not arise.
This Court by its order dated 23.04.2014 had directed the Standing Counsel to bring on record the reasons recorded by the competent authority to authorise the raid on the petitioner's premises. A short counter affidavit has been filed on behalf of the respondents and in para 8-A of the said affidavit it has been stated that since the petitioner was found violating the directions of the District Authorities in keeping the shop open on a day which was declared as a holiday due to Holi Festival and on having conducted search at the place of sale/store of liquor, i.e. the petitioner's retail shop, illicit liquor and fake Holograms were recovered and the inspection was conducted in terms of the Section 48 of the Excise Act, 1910 and therefore, the requirement of reasons as contemplated under Section 53 of the Act, 1910 is not applicable in the present case.
The learned counsel for the petitioner, however, submitted that the provisions of Section 48 of the Act, 1910 are mandatory and before conducting any raid in the retail shop of the petitioner reasons were required to be recorded by the said authorities. Reliance has been placed upon a decision of this Court in the case reported in 1987 EFR 743, Criminal Revision No.1801 of 1984 decided on 10.07.1987, Jagdish Kewat and another Vs. State of U.P. and Others, wherein a learned single judge of this Court interpreting the provisions of Section 53 of the Excise Act, 1910 has placed reliance upon a judgment of the Supreme Court reported in AIR 1979 SC 311, K.L. Subhayya Vs. State of Karnatka, wherein the Supreme Court was interpreting the provisions of Section 54 of the Mysore Excise Act, which was pari materia to Sections 53 of the U.P. Excise Act and it was held that in case the Inspector who searched the car had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car this would render the entire search without jurisdiction and vitiate the conviction. The learned Single Judge of this Court, therefore, held that there was a proviso to Section 53 of the Act, 1910 which required that though the police officer may carry out a search without a search warrant being issued from the Collector but that can only be done when there is no time to obtain the search warrant but in view of the proviso to Section 53, in such a case, the police officer would have to record the grounds for his belief for making the search.
However in the present case, we are not concerned with the provisions of Section 53 of the Act, 1910 as the respondents in their short counter affidavit have themselves stated that the requirement to record reasons was contained in the proviso to Section 53 and the Section 53 was not applicable in the present case and that the inspection was conducted in terms of Section 48 of the Excise Act, 1910.
We are concerned with the provisions of Section 48 of the Excise Act and not Section 53 of the Excise Act, 1910.
Section 48 of the Excise Act, 1910 reads as follows:
48. Power to enter and inspect places of manufacture and sale.- The Excise Commissioner, a Collector, or any [Officer of the Excise Department] not below such rank as the [State Government] may prescribe, or any police officer duly empowered in that behalf, may enter and inspect, at any time by day or by night, any place in which any licensed manufacturer carries on the manufacture of or stores any [intoxicant] and may enter and inspect at any time within the hours during which sale is permitted, and at any other time during which the same may be open, any place in which any [intoxicant] is kept for sale by any licensed person, and may examine test, measure or weight any materials, stills, utensils, implements. Apparatus, or [intoxicant] found in such place; and may seize any measures, weight or testing instruments which has reason to believe to be false.
The section clearly places an obligation upon the authorities prescribed therein to enter inspect any place in which any licensed manufacturer carries on the manufacture of or stores any intoxicant but such entry and inspection can only be made within the hours during which sale is permitted, and at any other time during which the same may be open, the authority has to record his reasons. In the present case the raid was admittedly conducted during the period when the shop was required to be closed and even if the shop was found open in the middle of the night recording of reasons by the authority was necessary.
None of the impugned orders indicate that any reasons were recorded by the competent authority and therefore, in my opinion the recording of reasons under Section 48 being absolutely mandatory and the same have not been complied with the entire action in cancelling the liquor license of the petitioner as well as the appellate order and the revisional order are illegal and without jurisdiction. The impugned orders therefore cannot survive and are accordingly quashed.
The writ petition stands allowed.
Order Date :- 25th September, 2014 N Tiwari