TMI Blog2016 (4) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences under Sections 56(b) and 57(a) of the Act. Indeed, indisputably a crime registered under Section 56(b) of the Act does not disentitle the licencee from claiming privilege. The crime registered against the fifth respondent is also for the alleged offence under Section 57(a) of the Act. A perusal of the above provision makes it manifestly clear that the offence made punishable is adulteration in its various nuances. If a person mixes with the liquor sold or manufactured by him any other drug or ingredient likely to add to its actual or apparent intoxicating quality, etc., the liquor thus mixed and sold by the licencee is an adulterated one attracting the penal provision. In both the crimes registered against the fifth respondent, the allegation is that the toddy being sold by him is adulterated. In other words, a foreign substance has been added to enhance the intoxicating potency of the toddy. Prima facie, it cannot be denied that the allegation in the crime attracts Section 57(a) of the Act, and consequently the crime falls within the mischief of Rule 5(1)(a) of the Rules. On 05.03.2014, the department put in auction the privilege to vend toddy. On the same day, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied to an existing licencee, until the issue is resolved conclusively, the subsequent allottee can have licence unhindered so long as the cloud on the previous licencee's right has not been dispelled. To that extent alone his right is indefeasible. Even after the finality of the proceedings confirming the privilege in the new licencee's favour, if the previous licencee is exonerated or acquitted at a later point of time, his right to preference gets restored. In sum and substance, viewed from any perspective, it cannot be held that new licencee has any indefeasible right and that the confirmation can be denied only on account of his failure rather than the success of the previous licencee. - Decided against the petitioner - WP (C). No. 20619 of 2015 (B) - - - Dated:- 29-1-2016 - Dama Seshadri Naidu, J. For the Petitioner : Sri. A. Sudhi Vasudevan (SR.) For the Respondent : Sri. K. C. Vincent JUDGMENT The issue that falls for consideration in this writ petition is whether the subsequent events or developments after the allotment of the privilege to vend toddy could be taken into account to determine retroactively the rights of the participants in the auction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that abkari year, the licence was extended periodically, on three occasions, till 31.04.2014. 10. As it emerges from the record, pending those two writ petitions, the fifth respondent filed Crl.M.C.No. 1606/2013 under Section 482 of Cr.P.C., before this Court seeking a direction to the Investigating Agency to expedite the investigation and file a final report on the crimes registered against him. Through an order dated 28.06.2013, this Court directed the investigating agency to complete the investigation at the earliest. 11. Later, in February 2014, the fifth respondent is said to have come to know that in both the crimes the investigating agency had filed its final report. In that context, the fifth respondent on 19.02.2014 obtained a certified copy of the final report and filed petitions for his discharge on the premise that the final reports did not contain even a whisper about the chemical analysis reports of B-Samples, leave alone any challenge to their correctness. 12. The Judicial First Class Magistrate through Exhibit R5(k) dated 25.03.2014 and this Court through Exhibit R5(i) order discharged the fifth respondent and other accused from the crimes. In the interim, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.02.2014 and fixed 05.03.2014 to have the auction held. Despite the fact that the fifth respondent was fully aware of the steps being taken by the Government, he remained silent till the penultimate day. He approached this Court only on 04.03.2014. He has further submitted that this Court consciously did not stymie the entire process; instead, it only directed that there should not be any confirmation of sale. 19. According to the learned counsel, had this Court been even prima facie satisfied that there was any merit in the fifth respondent's claim, it would have stalled the entire process instead of granting limited relief that the sale should not be confirmed. 20. The learned counsel has made extensive submissions concerning the statutory mandate under Rule 5 of the Rules. According to the learned counsel, it is by the date the allotment took place, indisputably there was a crime registered against the fifth respondent. He thus earned a disqualification. 21. In the alternative, the learned counsel has submitted that the petitioner, despite the availability of sufficient time, did not approach the authorities on time to obtain any preference certificate. Though he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstances have taken recourse to gross abuse of process. To begin with, he has submitted that the officials initially pressed into service Exhibit R5(d) chemical analysis report dated 21.12.2012 to register a crime and suspend the petitioner's licence. When this Court interfered with the process and stayed the orders of the Commissioner on the strength of the report of B-Sample in Exhibit R5(e), yet again the officials pressed into service a report which had been obtained earlier on 19.10.2012. 27. The learned counsel has further submitted that, in both instances, even before the final report could be filed, the reports of B-Sample were very much available, and the findings were in petitioner's favour. For the reasons not fathomable, the respondent officials, contends the learned counsel, filed final reports entirely disregarding the B- Sample reports. Under those circumstances, the Judicial First Class Magistrate has discharged the fifth respondent from the crime. 28. The learned counsel, addressing the issue whether the fifth respondent had been indolent in his approach, has submitted that in 2013-2014, the Government had no clear policy as regards the renewal of lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Commissioner had taken into account the rival pleas and rendered his findings, especially based on the binding judicial pronouncements of this Court. 34. The learned counsel lays specific emphasis on the fact that all the judgments he has referred to, the Excise Commissioner himself is a party. They squarely bind him. The learned counsel has further contended that on the very 05.03.2014, when the allotment had to take place, the fifth respondent made a complaint to the District Collector about the officials' efforts to disentitle him to have the benefit of privilege, as is evident from Exhibit P15 in W.P.(C)No. 6324/2014. 35. In reply, the learned counsel for the petitioner has tried to refute the contentions of the fifth respondent. He has submitted that to decide the right of the petitioner to have the confirmation of the allotment, all that the authorities have to examine is the situation prevailing as on the date of allotment, but not the subsequent developments. According to the learned counsel, any such consideration, otherwise, would lead to incongruity and uncertainty. 36. It is also the specific contention of the learned counsel for the petitioner that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 56 of the Abkari Act. The licensees who have conducted the shops during 2002-03 and subsequent years and whose licences cancelled due to registration of Abkari cases and subsequently exonerated by the Courts and those Licensees who could not complete the preceding three years on account of the closure of shops shall also be given preference. 40. An analysis of the above provision reveals the following: (1) While extending the privilege to vend toddy, preference shall be given to those licencees who have conducted the toddy shops during the preceding three consecutive years; (2) The incumbent licencee shall not have any crime registered against him under any provision of the Act other than Section 56 thereof; and (3) If the incumbent licencee has not been preferred because of his facing criminal charges, any subsequent exoneration should revive his claim to preference. 41. In the present instance, the fifth respondent admittedly is the incumbent licencee, who, nevertheless, has a crime registered against him for the alleged offences under Sections 56(b) and 57(a) of the Act. Indeed, indisputably a crime registered under Section 56(b) of the Act does not disentitle t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured by him any other drug or ingredient likely to add to its actual or apparent intoxicating quality, etc., the liquor thus mixed and sold by the licencee is an adulterated one attracting the penal provision. In both the crimes registered against the fifth respondent, the allegation is that the toddy being sold by him is adulterated. In other words, a foreign substance has been added to enhance the intoxicating potency of the toddy. Prima facie, it cannot be denied that the allegation in the crime attracts Section 57(a) of the Act, and consequently the crime falls within the mischief of Rule 5(1)(a) of the Rules. 46. As has already been adverted to, much turns upon the aspect whether the crime has been validly registered. In the present instance, initially the reports of chemical analysis concerning A-Samples turned out to be positive. The reports relating to B-Samples, obtained at the behest of the fifth respondent, both turned out to be negative. 47. In fact, on the strength of the B-Sample reports, the fifth respondent has been discharged from both the crimes. Chronologically examined, the samples were drawn in and around December 2012. The two crimes were regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ought to be a validly registered case. True, their Lordships have, in a measure, felt persuaded by the fact that the very Excise Commissioner in that case expressed doubt on the genuineness of the case. The fact, however, remains that their Lordships have laid down as a proposition of law that the crime ought to have been validly registered. 53. In Exhibit R5(c) judgment, another learned Division Bench has considered a case somewhat similar to the one present before me. Considering the impact of the second analysis report, their Lordships have observed that even if a criminal case has been registered and still pending, once the second analysis report is in the negative, the very crime becomes untenable and will have to end in acquittal. Their Lordships have also tellingly observed that the fact that a criminal case is pending, in such circumstances, cannot be taken advantage of by the officials to deny the claim of the incumbent licencee for preference as contemplated under Rule 5(1)(a) of the Rules. Incidentally, the learned Division Bench, while arriving at the above conclusion, has placed reliance on Exhibit R5(a) judgment, too. 54. Without much cavil, I am required, rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion of proceedings; in other words, if it is a declaration on a pure question of law, it persuades--if not binds. 60. It is too well settled to be ignored that there can be no precedent based on the facts; equally true is the converse proposition that no ratio can be said to have been laid down divorced from the facts of a particular case. At the same time, once a proposition of law has been propounded by a competent judicial forum, and the said proposition can be applied under varied circumstances, without doing violence to the principles of ratio decidendi; in my considered view, a judgment even at the interlocutory stage, at least to the extent of a pure question of law, has the persuasive effect. 61. As Exhibits R5(a) and R5(c) judgments fall within the exceptions indicated above, I justifiability feel persuaded to follow the dictum, for the judicial priority demands. 62. Without hesitation, we may accept that in Exhibit R5(a) judgment the learned Division Bench, while holding that a crime ought to have been registered, has inter alia taken into account the observation of the Commissioner of Excise that there is something amiss in the authorities' registering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f preference to an existing licencee. I, therefore, consider the issue in the backdrop of the said policy. That accepted, it emerges that the existing licencee has a privilege conferred on him to have his licence renewed or his right to preference reckoned subject to his fulfilling all the conditions. In the same reckoning, it follows that the right of any other person is dependent on, if not subservient to, the right of the existing licencee. 69. The legislature is conscious that once a policy of preference is to be operational, until the right under the said policy has been conclusively rejected, the right of any other person is only contingent. In other words, if there is any dispute, bona fide, concerning the preference denied to an existing licencee, until the issue is resolved conclusively, the subsequent allottee can have licence unhindered so long as the cloud on the previous licencee's right has not been dispelled. To that extent alone his right is indefeasible. 70. A word of caution may be necessary here: provisional may be the licence, but it is not a Damocles sword hanging forever. Once the confirmation is made and by then the crime against the previous licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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