The power to cancel or suspend a license under Section 42(1) of the Bihar & Orissa Excise Act, 1915 is by way of punishing the delinquent licensee, and therefore, the licensee is entitled to an opportunity to show cause before the license can be suspended.

N.L. Untwalia, J.

1. The petitioner has obtained a rule from this Court under Articles 226 and 227 of the Constitution of India against the respondents to show cause why the ORDER :of suspension of his licence of Kaidrabad country spirit shop standing in his name, made by the Collector on 1st September, 1967 (Annexure 'A') as affirmed in appeal by the Commissioner of Excise on 7th. October, 1967, (Annexure 'B') as also in revision by the ORDER :of the Member, Board of Revenue dated 8th January, 1968 (Annexure 'C') be not called up and quashed by grant of an appropriate writ. It appears that due to the alleged recovery of twenty drums of spirit of very high strength from certain premises appertaining to that of the petitioner's shop, his licence has been suspended by the Collector by his ORDER :dated 1st September, 1967. When the petitioner went up in appeal before the Commissioner of Excise he took three points before him (i) that the appellant should have been asked to show cause against the proposed suspension by the Collector, (ii) that the place of recovery has not been fixed on the licence, and, (iii) that since prosecution has been launched under Section 47(a) of the Excise Act, action under Section 42 of the Act should have been taken only after the disposal of the criminal case. The learned Commissioner has rejected the first point thinking that the ORDER :of suspension of the licence of the petitioner has been by way of interim measure and opportunity will have to be given to him to present his case when cancellation proceedings are started after due investigation. On the second point he does not seem to have recorded a definite finding but has expressed an opinion against the petitioner and on the third point his view is that suspension ORDER :can be made during the pendency of the prosecution case under Section 47 of the Bihar & Orissa Excise Act, 1915 (hereinafter called the 'Act'). The learned Member, Board of Revenue, seems to have rejected all the points argued before him on behalf of the petitioner and held that the petitioner had a fair opportunity of having his say before his licence was suspended and the Collector had the power to suspend his licence. No clear finding seems to have been recorded by him in support of the ORDER :of suspension.

2. On behalf of the petitioner his learned counsel has submitted on the basis of a Bench decision of this Court in (1) Ramnath Prasad V. The Collector of Darbhanga and others (A.I.R. 1955 Pat 345) that no ORDER :of suspension of the petitioner's licence could be made without giving him an opportunity of showing cause in the matter and that the Collector had no power to suspend. Learned counsel developed the second point with reference to Clause (d) of Sub-section (1) of Section 42 of the Act that before conviction the licence could not be suspended. Subsection (i) of Section 42 says--

Subject to such restrictions as the State Government may prescribe, the authority who granted any licence, permit or pass under this Act may cancel or suspend it" on any of the grounds mentioned in Clauses (a) to (g) of this Sub-section. I may quote two of the clauses therefrom, namely, Clauses (c) and (d):

(c) In the event of any breach by the holder thereof, or by any of his servants, or by anyone acting on his behalf with his express or implied permission, of any of the terms or conditions thereof; or (d) if the holder thereof is convicted of any offence punishable under this Act or any other law for the time being in force relating to revenue, or of any cognizable and non-bailable offence, or of any offence punishable under the Dangerous Drugs Act, 1930 or under the Merchandise Mark Act, 1889, or under any section which has been introduced into the Indian Penal Code by Section 3 of that Act; or

No restrictions have been prescribed by the State Government as envisaged in Sub-section (1) of Section 42 of the Act nor any rule could be brought to our notice to show that the ORDER :of s