Allowed

K.S.Sanu v. the Excise Inspector

Kerala HC6 Aug 2012WP(C)/765/2012

Case brief

AI extract

What is this about?

Petitioners challenging expulsion due to a sample showing high alcohol content, which was later reduced by a second analysis. Court directed confirmation of allotted shops pending outcome of criminal case.

What did the court decide?

Toddy shops allotted to petitioners pursuant to the order dated 25th July, 2012 shall be confirmed subject to procedural formalities and the outcome of the pending criminal case.

K.S.Sanu Vs the Excise Inspector — Kerala HC (2012) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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MONDAY, THE 6TH DAY OF AUGUST 2012/15TH SRAVANA 1934

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WP(C).No. 765 of 2012 (U)

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PETITIONER(S):

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1. K.S.SANU,

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S/O.SUDHEEDRAN, MADHAVAM, THANNEERMUKKAM P.O.

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CHERTHALA, DIST. ALAPPUZHA, PIN - 688 524.

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2. SATHYAKAMAN,

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S/O.NARAYANAN, KOCHUKARIYIL, KOKKOTHAMANGALAM P.O.

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CHERTHALA, DIST. ALAPPUZHA, PIN - 688 524.

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BY ADVS.SRI.K.REGHU KOTTAPPURAM SRI.R.MAHESH (KOTTAPPURAM) SRI.M.MUKESH

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RESPONDENT(S):

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1. THE EXCISE INSPECTOR,

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EXCISE RANGE OFFICE, CHERTHALA

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DIST. ALAPPUZHA, PIN - 688 524.

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2. THE CIRCLE INSPECTOR OF EXCISE,

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CHERTHALA, DIST. ALAPPUZHA, PIN - 688 524.

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3. THE DEPUTY COMMISSIONER OF EXCISE

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ALAPPZUHA DIVISION, ALAPPUZHA, PIN - 688 001.

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4. THE EXCISE COMMISSIONER

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COMMISSIONERATE OF EXCISE, GOVT. OF KERALA

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THIRUVANANTHAPURAM, PIN-695 001.

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5. THE STATE OF KERALA

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REPRESENTED BY SECRETARY TO GOVT.,

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TAXES DEPARTMENT,THIRUVANANTHAPURAM, PIN-695 001.

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R1 TO R5 BY GOVT. PLEADER SMT. SUNITHA VINOD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...2/-

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WP(C).No. 765 of 2012 (U)

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APPENDIX

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PETITIONERS' EXHIBITS :

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EXHIBIT-P1. TRUE COPY OF CERTIFICATE NO.14112 DATED 14/10/2009.

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EXHIBIT-P2. TRUE COPY OF CRIME AND OCCURRENCE REPORT NO.116/2011.

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EXHIBIT-P3. TRUE COPY OF THE IST AND LAST PAGE OF THE LICENCE IN RESPECT OF TS NO.30.

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EXHIBIT-P4. TRUE COPY OF THE IST AND LAST PAGE OF THE LICENCE IN RESPECT OF TS NO.31.

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EXHIBIT-P5. TRUE COPY OF THE IST AND LAST PAGE OF THE LICENCE IN RESPECT OF TS NO.32.

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EXHIBIT-P6. TRUE COPY OF THE IST AND LAST PAGE OF THE LICENCE IN RESPECT OF TS NO.33.

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EXHIBIT-P7. TRUE COPY OF THE IST AND LAST PAGE OF THE LICENCE IN RESPECT OF TS NO.34.

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EXHIBIT-P8. TRUE COPY OF THE IST AND LAST PAGE OF THE LICENCE IN RESPECT OF TS NO.35.

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EXHIBIT-P9. COPY OF APPLICATION VIDE C.M.P. NO. 1296/2012 DATED 13-2-2012.

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EXHIBIT-P10. COPY OF OFFICE MEMORANDUM NO. 4907/2011 DATED 1-12-2011.

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EXHIBIT-P11. COPY OF ORDER NO. XA 7-656/2012 DATED 15-2-2012.

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EXHIBIT-P12. COPY OF ORDER DATED 17-2-2012 IN C.M.P. NO. 1297/2012.

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EXHIBIT-P13. COPY OF INTERIM ORDER DATED 23-2-2012.

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EXHIBIT-P14. COPIES OF THE LASTPAGES OF EXHIBIT P3 TO P8 LICENCES CONTAINING ENDORSEMENT OF EXTENSION TILL 31-7-2012.

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EXHIBIT-P15. COPY OF ANALYSIS REPORT NO. 1598 DATED 22-3-2012 CERTIFYING THAT THE ETHYL ALCOHOL CONTENT IN 2ND SAMPLE TAKEN FROM T.S. NO. 34.

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EXHIBIT-P16. COPY OF ORDER VIDE G.O.(M.S.) NO. 130/2012 DATED 19-7-2012.

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EXHIBIT-P17. COPY OF ORDER DATED 25-7-2012 IN I.A. NO. 10084/2012 IN WP(C) 765/2012.

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EXHIBIT-P18. COPIES OF CERTIFICATE NO. mC.C.2/2012-C.C. -12-13 DATED 27-7-2012.

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EXHIBIT-P19. COPY OF ORDER NO. C.C. 2/2012 DATED 27/7/2012.

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EXHIBIT-P20. COPY OF DEMAND DRAFT DATED 25-7-2012.

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EXHIBIT-P21. COPY OF CHELLAN NO. 6 DATED 25-7-2012.

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RESPONDENTS' EXHIBITS : NIL

//TRUE COPY//

P.S. TO JUDGE

ANTONY DOMINIC, J.

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W.P.(C) NO.765 OF 2012(U)

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--------------------------------------------------

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Dated this the 6^th day of August, 2012

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J U D G M E N T

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Petitioners were the licensees of toddy shop Nos.30 to 35 of

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group No.VI of Cherthala Exchange Range. During 2009, sample of toddy was drawn from Toddy Shop No.34 and in Ext.P1 certificate of analysis, it was certified that the sample contained 8.37% Ethyl Alcohol. On that basis, CR.No.116/2011 was registered as per Ext.P2 and the matter is pending before the Judicial First Class Magistrate Court, Cherthala.

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By Ext.P9 application made by the petitioners, they requested the trial court to send another sample for analysis. Accordingly, the learned Magistrate passed Ext.P12 order, allowing the petition and the second sample was sent for analysis. While the report pursuant to Ext.P12 was awaited, petitioners filed this writ petition challenging Ext.P2, whereby crime was registered against them, for offences under the Abkari Act.

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During the pendency of the writ petition, the second sample sent for analysis pursuant to Ext.P12 was analysed and Ext.P15

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WPC.No. 765/2012

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certificate was issued to the effect that the sample contained only 7.51% of Ethyl Alcohol.

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Subsequently, petitioner filed I.A.No.10084/2012 contending that in view of Ext.P15 report, certifying the presence of Ethyl Alcohol much below the permissible limit of 8.1% notified by the Government, they shall not be denied preference as contemplated under the Abkari Shops (Disposal in Auction) Rules of 2002. That request of the petitioner was considered and by order dated 25^th July 2012 this court directed that the petitioners will be permitted to participate in the allotment of toddy shops for the years 2012-13, without any disqualification on account of the pendency of the criminal case against them. Accordingly, preference was granted to the petitioners and the shops in question were also allotted to them. Despite the allotment, apparently for want of orders from this court, the allotment has not been confirmed so far and complaining of the above, I.A.No.10609/2012 has been filed.

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I heard the counsel for the petitioner and also the Government Pleader appearing for the respondents.

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WPC.No. 765/2012

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Registration of Ext.P2 OR was on the strength of Ext.P1 certificate to the effect that the sample contained 8.37% of ethyl alcohol. Petitioners now rely on Ext.P15, a second report obtained and as per this report, the presence of ethyl alcohol is only 7.51%. If Ext.P15 is accepted, the outcome of Ext.P2 OR will be in favour of the petitioners. It was in that view of the matter that this court passed the order dated 25^th of July, 2002.

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In such circumstances, I see no reason why, the toddy shops allotted to them shall not be confirmed in favour of the petitioners and in so far as the criminal case that is now pending before the Judicial First Class Magistrate Court, Cherthala is concerned, it is for the petitioners to move that court for orders pursuant to Ext,.P15. In that view of the matter, I dispose of the writ petition with the following directions.

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i. Toddy shops allotted to the petitioners pursuant to the order dated 25^th July, 2012 shall be confirmed, subject to the petitioners complying with all procedural formalities in that behalf.

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ii. Such confirmation shall be subject to the outcome of the criminal case pending before the Judicial First Class Magistrate

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WPC.No. 765/2012

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Court, Cherthala and it shall be open to the petitioners to seek appropriate orders in that case, in view of Ext.P15 certificate of analysis referred to above

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(ANTONY DOMINIC) JUDGE

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vi/

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WPC.No. 765/2012

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:5 :

K.S.Sanu v. the Excise Inspector

Case brief

What is this about?

What did the court decide?

K.S.Sanu v. the Excise Inspector

Case brief

What is this about?

What did the court decide?

What the court decided

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