HIGH COURT OF ANDHRA PRADESH
RAMESH RANGANATHAN, J.
N. Malla Reddy
Versus
State of A.P. rep., by its Secretary, Revenue Prohibition & Excise Secretariat Buildings & Others
Writ Petition No. 17358 of 2013
Decided On : 30-08-2013
B) A.P. Excise Act 1968 - Section 31 (1) Proviso –Service on the Nowkarnama is not a service of show cause notice to the license holder and a license cannot be cancelled without a show cause notice. [AP. Excise (Grant of Licence of Selling by Shop and Conditions of Licence) Rules 2012, Rules 2(j), 2(k) and 44(1)-(4)] [Para 16)
C) A.P. Excise Act 1968 - Section 47:- A limited discretion is bestowed on the competent authority to compounding of offence under Section 47 without payment of compounding fees as prescribed fees. [Para 28]
D) A.P. Excise Act 1968 - Section 47.:- Where the show-cause notice issued on 15-5-2013 alleging that petitioner had violated S.31 (1) (b), impugned order, canceling petitioner’s license, passed on 26-3-2013, that is, within 11 days after date of show-cause notice is illegal and hence set aside because the petitioner had a right to file an application for compounding the offence under Section 47 up to 15 days. [Para 18, 25, 29, 30]
E) A.P. Excise Act 1968 - Sections 31 (1)(b), 34 (a), 36(b) and (c) –As criminal cases are registered under Section 34 (a) and 36(b) for violations under Section 31(1)(b) and were kept pending subject to the withdrawal of the writ petition against it, held it was abuse of the process of the court and held the petitioner has the option of proceeding under Contempt of Courts Act, 1971. [Contempt of Courts Act 1971, Section 2] [Para 31-33]
F) INTERPRETATION OF STATUTES – All the words used in a provision should be given effect and at no word shall be left as a dead letter. A.P. Excise Act 1968, Sections 47(1) and 47-A shall be harmoniously constructed so for it does not violate the language of the provisions. [Para 20 and 21]
G) Evidence Act 1872 - Section 115 – Waiver is implicit in estoppels and both are questions of fact to be construed from conduct.
This case has had a chequered history. The petitioner has invoked the jurisdiction of this Court, by way of the present Writ Petition, for the fourth time in a span of two months. Facts, to the extent necessary, are that on 14.03.2013 the petitioner’s A-4 shop was inspected at 11.00 A.M in the presence of the petitioner and two others; the officers found 11 boxes of IML liquor kept on one side of the shop and, on verification, found 48 bottles of 180 ml. in each box; on examination they found that all the excise adhesive labels (EALs) thereon were fake; and their enquiry revealed that the petitioner, along with his partner, had entered into an agreement with one Sri Venkateswarlu for supply of the said non-duty paid liquor. The petitioner’s license was suspended pending enquiry on 15.03.2013 and a case, in COR No.683/2012-13, was registered by the Station House Officer, Medchal for offences under Section 34(a) and Sections 36(b) & (c) of the A.P. Excise Act, 1968 (hereinafter called the “Act”) on the same day. The show cause notice dated 15.03.2013, for cancellation of the petitioner’s A-4 shop license, was served on the nowkarnama of the petitioner, on 18.03.2013 granting a week’s time for the petitioner to submit his reply thereto; and, on the ground that no reply was submitted by the petitioner to the show cause notice, an order of cancellation was passed on 26.03.2013. Aggrieved thereby the petitioner invoked the jurisdiction of this Court, and filed W.P. No.11227 of 2013. During the pendency of the said Writ Petition wherein, among other grounds, he disputed the allegation of non-duty paid liquor being found in his premises, the petitioner also preferred a statutory appeal against the order of cancellation dated 26.03.2013.In its order, in W.P. No.11227 of 2013 dated 22.04.2013, this Court noted that the petitioner was willing for compounding of the offence under Section 47 of the Act; and he had placed reliance on a Division Bench judgment of this Court in V. Srinivasa Reddy v. Commissioner of Excise, Government of A.P. Hyderabad (1998(1) ALD 16 (DB) wherein it was held that the power of compounding the offence was conferred on the authorities, including the Commissioner, to facilitate the license holder to conduct their business so that they do not sustain loss due to closure of their business. This Court also noted the submission of the Learned Government Pleader for Prohibition & Excise that, even though Section 47 included Section 31(a) & (b) of the Act, a fair amount of discretion vested in the 2nd respondent whether or not to accept compounding; and, having regard to the gravity of the act indulged in by the petitioner, this was not a compoundable offence. The Writ Petition was disposed of holding that the question whether the petitioner was entitled for compounding of the offence, under Section 47 of the Act read with the A.P. Excise (Compounding of offences) Rules, 1973 (hereinafter called the “Compounding Rules”), did not arise for consideration at that stage and, as the petitioner had already made a request in the pending appeal for compounding of the offence, interest of justice would be served if the 4th respondent was directed to consider the petitioner’s request for compounding the offence in terms of Section 47 of the Act read with the compounding Rules and in the light of the Division Bench judgment. The 4th respondent was directed to give an opportunity of being heard to the petitioner, and take an appropriate decision on this aspect within ten days of receipt of a copy of the order. The petitioner filed an application for compounding the offence under Section 47 of the Act. By his proceedings dated 03.05.2013, the 4th respondent held that the contraband seized was 11 cartons of whisky which was non-duty paid liquor; seizure of non-duty paid liquor, from the licenced premises, clearly established that the appellant-licensee had intentionally indulged in sale of non-duty paid liquor flouti
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