2002 Supreme(AP) 1263

Andhra Pradesh High Court
Judges : T.MEENA KUMARI
Toddy Tappers Co-operative Society.Mahaboobnagar District - Appellant
Versus
Deputy Commissioner of Prohibition and Excise, Enforcement, A.P., hyderabad - Respondent
Decided On : 11-05-02

Headnote:

A. P. Excise Act, 1968 - Sections 31 (l) (b) and 36 (c) – Indian Penal Code,1860 - Sections 448 and 379 - A. P. Excise Crapping of Trees and Toddy Shops Special Conditions of Licenses) Rules, 1969 - sub-rule (2) of Rule 14 - A. P. Rectified Spirit Rules, 1971 - Rule 24, Rule 18 - Petitioner society, consisting of 43 members, is a registered society and society has been granted separate licenses on by Excise department for establishing toddy depot and also group of shops numbering 8 for retail sale of toddy at Gadwal Town - Members of petitioner society are seeking out their livelihood by running toddy shops - It is alleged by petitioner that Praveen and their henchmen belonging to rival group of petitioner society ransacked all toddy shops of petitioner society on and snatched away sale proceeds of all of shops of that day, amounting to highhandedly creating a horror among customers of petitioner society and other residents of locality - Complained of by petitioner-society to Sub- Inspector of Police, who in turn registered a case in under Sections 448 and 379 of IPC against above mentioned persons - It is alleged by petitioner that police except registering case, did not move further in matter - It appears that petitioner society made an application on to sub-Divisional Prohibition and Excise Officer, seeking protection in- light of alleged incident by rival party who in turn addressed a letter to the Sub-Inspector of Police, Gadwal (Rural) requesting him to provide protection to petitioner society. Having found no progress in situation, petitioner -society has approached this Court by way of W. P wherein this Court while disposing of same directed respondents-police officers therein to consider application of petitioner society for police protection - In spite of the Court order, it is alleged by petitioner-society, rival groups once again attempted to disturb vending operations of shops belonging to it and thereby they have created law and order problem - In circumstances, petitioner appears to have closed down business - Contended that since there are complaints of selling adulterated toddy in Town and surrounding villages, excise officials have organized raids and during course of such action, they have raided shops of petitioner- society - Learned counsel further contends that though petitioner was asked to appear before Dy. Commissioner he did not appear - Learned Government Pleader further contended that by closing down shops petitioner-society violated Excise (Tapping of trees and Toddy Shops Special Conditions of Licenses) Rules, 1969 - According to him, under sub-rule (2) of Rule 14 of Excise (Trapping of Trees and Toddy shops Special conditions of Licenses) Rules, licensee shall ensure that toddy is available in shop every day for sale and if he fails to do so the license shall be liable for cancellation -Held, Court view that of Majority is that authorities may suspend license if circumstances warrant in cases of urgency - In this case excise officials have taken samples of toddy sold in toddy shops of said society from time to time as contemplated under Rule 24 of A. P. Excise (Arrack and Toddy Licenses General Conditions) Rules, 1969 for analysis and ultimately found that toddy is adult and thus, excise officers have cancelled license of petitioners therein - But in case of hand, no sample was drawn nor was it sent for chemical analysis - Said decision has no application to case on hand - Under above circumstances petitioner-society was forced to close down its shops. It is also to be further noted that no material is placed before this court by respondents that they have followed Rule 24, sub-rule (2) of Rule 34, Rule 36 of A. P. Excise Arrack and Licence General Conditions Rules, 1969 - Action of respondents is not following rules as stated above and also subsequent action of respondents in suspending license without affording any opportunity invoking provisions under Section 31 (l){b) of A. P. Excise Act is held to be contrary to law and hence liable to be set aside - Learned Government Pleader contends that an appeal under section 63 (1) lies against impugned order of Dy. Commissioner and petitioner without availing said remedy has approached this Court. Section 63 (1) says that any person aggrieved by an order passed by any officer, other than Commissioner or Collector, under this Act, may, within forty- five days from date of communication of such order, appeal to Deputy commissioner - However, learned counsel for petitioner contends that since appellate authority, Dy. Commissioner, himself participated in raid, no useful purpose would be served and it is not an efficacious remedy and, therefore, petitioner cannot be compelled to file and appeal before Deputy Commissioner - Court find some force in contention of learned counsel for petitioner, as Deputy Commissioner cannot be a judge of his own case - Writ Petition Allowed.