Page No.# 1/9 vs The State Of Assam And 8 Ors
2025 Latest Caselaw 7779 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam And 8 Ors on 14 October, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                    Page No.# 1/9

GAHC010066102025




                                                              2025:GAU-AS:13695

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/1770/2025

         SURAJIT DEY
         S/O- LATE RANJIT KUMAR DEY, R/O- VILL. AND P.O.- DIMORUGURI, P.S.
         AND DIST- NAGAON, PIN- 782003, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 8 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, DEPARTMENT OF EXCISE, DISPUR,
         GUWAHATI-6, KAMRUP METRO, ASSAM

         2:THE ADDITIONAL CHIEF SECRETARY
         TO THE GOVERNMENT OF ASSAM
          HOME AND POLITICAL DEPARTMENT
          DISPUR
          GUWAHATI-6
          KAMRUP (M)
         ASSAM

         3:THE DISTRICT MAGISTRATE
          OFFICE OF THE DISTRICT MAGISTRATE
          NAGAON
         ASSAM
          PIN- 782001.

         4:THE DIRECTOR GENERAL OF POLICE
         ASSAM POLICE
         AP HQ
          ULUBARI
          GUWAHATI-781007
          KAMRUP (M)
         ASSAM
                                                          Page No.# 2/9


5:THE COMMISSIONER OF EXCISE
 HAVING ITS OFFICE AT HOUSEFED COMPLEX
 DISPUR
 GUWAHATI-781006
ASSAM

6:THE SUPERINTENDENT OF POLICE
 NAGAON
ASSAM
 PIN- 782001.

7:THE SUPERINTENDENT OF EXCISE
 NAGAON
 OFFICE OF THE SUPERINTENDENT OF EXCISE
 NAGAON
ASSAM
 PIN- 782001 (NEAR CHILDREN HOME).

8:SWAPNANEEL DEKA
 OFFICE OF THE SUPERINTENDENT OF POLICE
 NAGAON
ASSAM
 PIN- 782001.

9:SUSHIL CHETRY
 OFFICER-IN-CHARGE OF THE ITACHALI POLICE OUT POST UNDER THE
NAGAON SADAR PS
 NAGAON
 PIN- 782001




                       BEFORE
        HON'BLE MR. JUSTICE DEVASHIS BARUAH


 Advocates for the petitioner    :    Mr. NJ Khataniar


 Advocates for the respondents   :   Mr. RR Gogoi

Standing Counsel Excise Deptt.

                                      Mr. G Bokolial
                                                             Page No.# 3/9

                                 Govt. Advocate, Assam


          Date of hearing & judgment     :    14.10.2025


                     JUDGMENT & ORDER(ORAL)

Heard Mr. NJ Khataniar, the learned counsel appearing on behalf of the petitioner. Mr. RR Gogoi, the learned Counsel, who appears on behalf of the Excise Department, Govt. of Assam and Mr. G Bokolial the learned Government Advocate, who appears on behalf of the State of Assam.

2. The petitioner herein is aggrieved by the order dated 16.12.2024 issued by the District Magistrate, Nagaon whereby in exercise of the powers conferred under Section 52 of the Assam Excise Act, 2000 (hereinafter for short referred to as ' the Act of 2000' ) whereby the petitioner's business premises in the name and style of M/s. Greenland Bar and Restaurant was closed for preservation of public peace with immediate effect and until further orders.

3. The record reveals that the petitioner herein had obtained an IMFL On license bearing No.31/2010-2011 on the basis of which the petitioner was running a business premises in the name and style of M/s. Greenland Bar and Restaurant. The petitioner admittedly had Page No.# 4/9

been paying the license fee from time to time and as on the date on which the impugned order was passed the petitioner's license was valid and fees were paid up to date.

4. It is the case of the petitioner that the petitioner's elder brother and his wife on account of personal animosity had filed a complaint pursuant to an FIR lodged by the petitioner against them. This complaint which was submitted to the District Magistrate by the petitioner's elder brother and his wife was enquired into by the Additional District Magistrate, who submitted an Inquiry Report on 19.08.2023 thereby giving the petitioner a clean shit. Being unsuccessful in the said pursuit, the brother and sister-in-law of the petitioner took further attempt so that the petitioner's Bar and Restaurant could be closed down and in that process had filed a Civil Suit before the Court of the learned Civil Judge, Junior Division Nagaon which was registered and numbered as Title Suit No.26/2024 along with an injunction application being registered and numbered as Misc.(J)Case No. 11/2024, however, no injunction was granted.

5. It is the further case of the petitioner that being unsuccessful in that pursuit also at the instigation of the brother and the sister-in-law of the petitioner certain FIRs were filed before the Nagaon Police Station which was registered and numbered as Nagaon Sadar Police Page No.# 5/9

Station Case No.1076/2024 and Nagaon Sadar Police Station Case No.1063/2024. The petitioner had further alleged that the respondent Nos.8 and 9 have been personally made parties to the instant proceedings on the ground that they have also acted with malicious intent.

6. It is the further allegation of the petitioner that based upon certain reports being submitted by the respondent No.8, the District Magistrate, Nagaon by the impugned order dated 16.12.2024 has closed down the petitioner's business premises wherein the petitioner's residential premises was attached and it is under such circumstances, the instant writ petition has been filed challenging the order dated 16.12.2024.

7. The record reveals that the petitioner has also submitted representation before the Commissioner of Excise challenging the order dated 16.12.2024, but, however, as nothing was done in that regard, the petitioner had been compelled to approach this Court.

8. This Court duly takes note of that there are various affidavits which have been filed on behalf of the respondents. In the affidavit filed by the respondent No.7, which is of relevance, certain reports have been enclosed. A perusal of the reports enclosed to the said Page No.# 6/9

affidavit shows that certain enquiries have been carried out pursuant to various complaints being filed before the Excise Authorities. In the report submitted by the Assistant Commissioner of Excise, Nagaon along with the Inspector of Excise dated 29.05.2025, it reveals that there were altogether six allegations made against the petitioner's business premises. However, all these allegations did not amount to contravention of the Act of 2000 as well as the Rules framed thereinunder.

9. This Court further takes note of that subsequent thereto, the Superintendent of Police, Nagaon had also submitted another report to the Additional District Commissioner raising allegations that persons below 21 years were employed in the business premises of the petitioner.

10. In the backdrop of the above, this Court had duly heard the learned counsels appearing on behalf of the parties.

11. The prime contention of the petitioner herein is that the impugned order cannot survive the scrutiny of law, inasmuch as, the order which was passed in terms with Section 52(1) of the Act of 2000 was without issuance of notice and, therefore, amounted to contravention of the very provision of Sub-Section (1) of Section 52 of the Act of Page No.# 7/9

2000.

12. Mr. RR Gogoi, the learned counsel appearing on behalf of the Excise Department though submitted that for urgent reasons powers can be exercised under Sub-Section (2) of Section 52 of the Act of 2000, but a closer scrutiny of the impugned order reveals that the closure of the business premises of the petitioner was beyond the period of 48 hours, and, therefore, the impugned order was made in exercise of the powers conferred by Sub-Section (1) of Section 52 of the Act of 2000. In that perspective, this Court finds it pertinent to take note of Sub-Section (1) of Section 52 of the Act of 2000 which being relevant is reproduced hereunder:

"52. The closing of retail shops for the preservation of public peace - (1) The District or Sub-Divisional Magistrate may, by notice in writing to the licensee, require that any shop in which any intoxicant is sold by retail shall be closed at such times or for such periods as such Magistrate may deem necessary for the preservation of the public peace.

(2) If any riot or unlawful assembly is apprehended or occurs in the vicinity of any such shop, any Magistrate or any Police Officer above the rank of constable who is present may order the person in charge thereof to keep it closed for such period as the Magistrate or Police Officer may think necessary:

Provided that no shop shall be kept closed under this sub-section for a longer period than 48 hours without the order of a Magistrate.

(3) When any Magistrate or Police Officer make a requisition or direction under sub-section (1) or sub-section (2), he shall forthwith report the fact to the Collector Page No.# 8/9

having jurisdiction in the local area in which the shop is situated.

(4) The State Government may grant to the licensee of a shop kept closed under sub-sections (1) or (2) such compensation as it may think fit."

13. A perusal of the above-quoted provisions and, more particularly Sub-Section (1) of Section 52 of the Act of 2020 would clearly show that the power can be exercised by the District Magistrate to close the business premises of an IMFL On licence only after issuance of a notice in writing to the licensee.

14. The materials on record show that there was no notice being issued to the petitioner prior to the issuance of the impugned order dated 16.12.2024. It is a well settled principle of law that when the statute stipulates a thing to be done in a particular manner, the same has to be done in that manner or not at all. Keeping the said principle in mind, in the opinion of this Court, if the District Magistrate was required to pass an order in pursuance to Section 52 of the Act of 2000, there was a requirement of issuance of notice.

15. Under such circumstances, it is, therefore, the opinion of this Court that the impugned order dated 16.12.2024 is in conflict with Sub-Section (1) of Section 52 of the Act of 2000 and, therefore, requires interference.

16. Accordingly, this Court, therefore, disposes of the instant writ Page No.# 9/9

petition with the following observation(s) and direction(s):

(i). The order dated 16.12.2024 passed by the District Magistrate Nagaon, thereby directing closure of the petitioner's business premises in the name and style of M/s. Greenland Bar and Restaurant is set aside and quashed.

(ii). The setting aside and quashing of the impugned order dated 16.12.2024, however, shall not preclude the District Magistrate to exercise powers under Section 52 of the Act of 2000 if in the circumstances, the need so arises, but by following the mandate of Section 52 of the Act of 2000.

(iii). This Court further observes that carrying on a business of liquor is not a right, but a privilege and under such circumstances, the petitioner herein would be bound to comply with the terms and conditions of the license as well as the provisions of the Act of 2000 and the Rules framed thereinunder.

17. With the above, the writ petition stands disposed of. There shall be no order as to costs.

JUDGE

Comparing Assistant