Sinha, J.

1. This is an application under Articles 226 and 227 of the Constitution of India for quashing the order passed by Mr. U.K. Ghose, Deputy Commissioner, Santhal Parganas, Dumka, on 28-10-1953,

2. The petitioner is a licensee of Sakri Gall Country Spirit Shop in the Santhal Paraganaa since August, 1952. The licence, which has been cancelled, was granted to him on 1-4-1953, for a period of one year and was to expire on 31-3-1954, the number of his licence is 119. On 4-6-1953 the Inspector of Excise, Sri Ramdeo Prasad Shahi, visited his shop along with one Jagarnath Singh, who, according to the petitioner, was his salesman but had been dismissed from service long time before.

According to the petitioner, one Rameshwar Prasad was his salesman during the licence year as mentioned in the license itself whereas, according to the Inspector of Excise, Jagarnath Singh was the agent and salesman of the petitioner. The Inspector found three bottles of country liquor with short measure and one bottle of weak liquor. He sealed all the four bottles, and took a receipt from the said Jagarnath Singh. He tested the liquor and found the strength to be 62.3 U. P. and 70.9 U. P., and asked the petitioner to submit his explanation to the Superintendent of Excise on 20-6-1953, along With all these four bottles sealed by him.

On 20-7-1953 (wrongly mentioned as 20-6-1953 in the petition), the petitioner submitted his explanation to the Superintendent of Excise. The case started upon the report dated 4-6-1953, was numbered as case No. 63 of 1953-54. On 21-8-1953, the Inspector again visited the shop of the petitioner, and made a report on three counts, namely, (1) that the petitioner was charging excess prices; (2) that liquor was sold before pre-scribed hours; and (3) that the accounts for 20-6-1953, had not been written up.

The case started on this report was numbered as case No. 72 of 1953-54. The petitioner, in his explanations to the Superintendent of Excise on 20-7-1953, disputed the allegations made in the reports. In his explanations, the petitioner submitted that he was suffering from malaria for some time past and the salesman was in charge of the gaddi during the period of his illness; that the Inspector had seized the bottles; from the possession of customers who had already consumed a part of the liquor in their respective bottles and that was why the liquor was found to be a little less than what it ought to have been, namely, 20 Oz.

He further said that, on 20-6-1953, the Inspector had found two persons, at some distance from his shop, drinking their own liquor purchased on the previous day, that there was no sale at 7 a.m. or before the prescribed hours, and that the price charged was not excessive inasmuch as the price charged was Re. 1-3-6 which included the price of the bottle and the price of the bottle was to be refunded to the customers on their returning the bottles to the petitioner. The petitioner also filed a petition along with his explanation dated 4-6-1953, signed by three customers, supporting the explanation submitted by the petitioner regarding the complaints mentioned in the report dated 4-6-1953. It appears that, on 17-9-1953, the Superintendent of Excise in case No. 72 of 1953-54, asked the Inspector of Excise whether he had taken any statement of the customers, the consumers and the salesman.

In reply thereto on 29-9-1953, the Inspector reported that he had questioned two customers named Charo and Poosa of village Harischandra-pur in presence of the licensees man, but they refused to give anything in writing or to put their left thumb impressions; the salesman also had refused to give anything in writing.

The strength of the spirit was tested by the Superintendent of Excise, and it was found to be 61.1 U. P. as against 62.3 U. P. reported by the Inspector. This was the result of test on 23-7-1953. When it was re-tested on 16-9-1953, he found the strength to be 60.6 U. P., the difference being of .6 o