Sajimon K.K vs The Excise Commissioner
2021 Latest Caselaw 4090 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                       WP(C).No.893 OF 2021(J)


PETITIONERS:

      1        SAJIMON K.K
               AGED 51 YEARS
               S/O.SREEDHARAN, KUNNATH HOUSE,
               KOOTTIKKAL VILLAGE, KANJIRAPPALLY,
               KOTTAYAM DISTRICT

      2        K.A.JIMMY
               AGED 60 YEARS
               S/O. ABRAHAM, KAITHAPADAM HOUSE,
               ARPOOKKARA (P.O), KOTTAYAM DISTRICT

      3        SHALIJA SUNDARESHAN
               AGED 54 YEARS
               W/O. SUNDARESHAN, KAMBIYIL HOUSE,
               PONKUNNAM (P.O), KOTTAYAM DISTRICT

               BY ADVS.
               SRI.C.C.THOMAS (SR.)
               SRI.NIREESH MATHEW

RESPONDENTS:

1 THE EXCISE COMMISSIONER COMMISSIONER OF EXCISE, EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM,PIN-695 033

2 THE DEPUTY COMMISSIONER OF EXCISE, KOTTAYAM DIVISION, COLLECTORATE (P.O), KOTTAYAM,PIN-686 002

3 THE CIRCLE INSPECTOR OF EXCISE, PONKUNNAM CIRCLE, PONKUNNAM (P.O) KOTTAYAM DISTRICT, PIN-686 121

4 THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, ERATTUPETTAH (P.O) KOTTAYAM DISTRICT, PIN-686 121 W.P(C).893 and 1689 of 2021

5 RAJEEV SALU, AGED 40 YEARS S/O. SALU, MAPRAYIL HOUSE, CHOTTUTHODU (P.O), KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN-686 508

R1-4 BY GOVERNMENT PLEADER:SRI K P HARISH

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.02.2021, ALONG WITH WP(C).1689/2021(I), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P(C).893 and 1689 of 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

WP(C).No.1689 OF 2021(I)

PETITIONERS:

       1       SAJIMON K.K.
               AGED 51 YEARS
               S/O. SREEDHARAN, KUNNATH HOUSE,

KOOTTIKKAL VILLAGE, KANJIRAPPALLY, KOTTAYAM DISTRICT.

       2       K.A JIMMY,
               AGED 60 YEARS
               S/O. ABRAHAM, KAITHAPADAM HOUSE,

ARPOOKKARA (PO0, KOTTAYAM DISTRICT

3 SHALIJA SUNDARESHAN AGED 54 YEARS W/O. SUNDARESHAN, KAMBIYIL HOUSE, PONKUNNAM (PO), KOTTAYAM DISTRICT

BY ADVS.

SRI.C.C.THOMAS (SR.) SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW

RESPONDENTS:

1 THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, EXCISE HEADQUARTERS, NANDAVANAM, THIRUVANANTHAPURAM, PIN 695 033

2 THE DEPUTY COMMISSIONER OF EXCISE, KOTTAYAM DIVISION, COLLECTORATE (PO) KOTTAYAM PIN 686 002

3 THE CIRCLE INSPECTOR OF EXCISE, PONKUNNAM CIRCLE, PONKUNNAM (PO), KOTTAYAM DISTRICT PIN 686 121 W.P(C).893 and 1689 of 2021

4 THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, ERATTUPETTAH (PO), KOTTAYAM DISTRICT PIN 686 121

5 THE DISTRICT COLLECTOR, COLLECTORATE (PO) KOTTAYAM DISTRICT PIN 686 002

6 STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001

R1-6 BY GOVERNMENT PLEADER

OTHER PRESENT:

SR.GP K.P HARISH

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.02.2021, ALONG WITH WP(C).893/2021(J), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P(C).893 and 1689 of 2021

COMMON JUDGMENT

The petitioners along with one Rajeev Salu were the joint licensees

of all toddy shops in Group VI in Kanjirappilly excise range for Abkari

year 2020-2021. They were the licensees during the previous year and

hence got preference for allotment as per Rule 5(1)(a) of the Kerala

Abkari Shops Disposal Rules, 2002. While so, Rajeev Salu was found at a

public place in possession of a 1.650 milli litre plastic bottle containing

450.0ml illicit liquor on 14.11.2020 at 5.30p.m. Alleging that, he was

engaged in the sale of liquor, he was intercepted and items were seized.

He ran away from the spot. Ext.P1 in W.P(C).1689 of 2021 is the crime

and occurrence report. Due to the registration of crime involving a

partner, license for running toddy shop was suspended and by Ext.P4

later cancelled by Ext.P6 order. Ext.P4 and P6 are under challenge in

W.P(C).No.893 of 2021. The shops are now notified for resale. The

petitioners gave request for giving preferential certificate under Rule

5(2). Since it was not issued, W.P(C).No.1689 of 2021 was filed.

2. Heard the learned Senior Counsel and the learned Senior

Government Pleader, who opposed both Writ Petition.

3. The contention of the learned senior counsel was that the

alleged crime took place outside the limits of the shops of the petitioners,

that the petitioners were not involved and that offence, if any, committed

by Rajeev Salu was not one which amounted to breach of terms of license. W.P(C).893 and 1689 of 2021

It was contended that, by virtue of Ext.P3 order produced in

W.P(C).No.893 of 2021, Rajeev was granted anticipatory bail, which

shows that, prosecution did not even had a prima facie case. It was

contended that cancellation of license was without adverting to the above

facts and liable to be set aside. In W.P(C).No.1689 of 2021, the

petitioners sought for preference in the sale and accordingly, sought a

direction for issuing the certificate for eligibility of preference.

3. To advance the above arguments the learned counsel for the

petitioners relied on the last paragraph in Rarichan George v.

Commissioner of Excise (2008(2) KLT 726) where, it was held that

the involvement of a partner in a crime will not stand in the way of

remaining partners in claiming preference. It was vehemently contended

by the learned senior Government Pleader, who opposed the prayer in the

Writ Petition that, the above judgment was passed by the learned Single

Judge, without noticing the second clause of Rule 5(1)A of the Kerala

Abkari Shops Disposal Rules, 2002. The contention of the counsel was

that, had that Rule been taken note of, the relief would not have been

granted. It was further contended that the decision in Rarichan itself is

the authority for holding that involvement in a crime by one of the

partners can be a reason for cancellation of license.

4. Evidently, the crime is registered under Ss.58 and 55(i) of the

Abkari Act. It amount to breach of license condition also in the light of

S.26(b) and S.26(bb) of the Abkari Act read with Rule 31 of Kerala Abkari

Shops Disposal Rules, 2002. In the light of above, the decisions in W.P(C).893 and 1689 of 2021

Gopidas v. Shibu Mathew (2004(1) KLT 570) and Rarichan's case

(supra) relied by the petitioners will not help the petitioners.

5. The learned Senior Government Pleader referred to the

Division Bench decision in Sudheesh v. Excise Commissioner ((2019)1

KLT 976) which squarely applies to the facts of the case. It was held

that, an infringer of Rules and conditions of license should not get a

preferential treatment in subsequent auctions. In the light of above, I feel

that the reliefs sought in both Writ Petition cannot be granted.

6. In the course of hearing, the learned Senior Government

Pleader took strong exception to the assertions in Exts.P12 and P13 of

W.P(C).No.1689 of 2021 that, in the course of hearing learned

Government Pleader submitted that the petitioners are entitled to

participate without preference, since they were not involved in any NDPS

or Abkari case. The learned Government Pleader contended that, he had

not made any such submission. The learned Government Pleader is

justified in his submission.

Hence, reliefs as sought in Writ Petitions cannot be granted. This

will not preclude the petitioners from participating individually or in

combination, if they are not otherwise disqualified.

Writ Petitions fail and are dismissed.

Sd/-

                                                    SUNIL THOMAS

Sbna                                                   JUDGE
 W.P(C).893 and 1689 of 2021





               APPENDIX OF WP(C) 893/2021
PETITIONER'S EXHIBITS:

EXHIBIT P1               TRUE PHOTOCOPY OF THE CRIME AND OCCURRENCE
                         REPORT DATED 15.11.2020

EXHIBIT P2               TRUE   PHOTOCOPY   OF   THE   MAHAZAR   DATED
                         14.11.2020

EXHIBIT P3               TRUE PHOTOCOPY OF THE ORDER PASSED BY THE
                         SESSIONS      COURT,       KOTTAYAM    IN

CRL.M.P.NO.1513/2020 DATED 22.12.2020

EXHIBIT P4 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 23.11.2020

EXHIBIT P5 TRUE PHOTOCOPY OF THE REPLY SUBMITTED BY THE PETITIONERS DATED 30.11.2020

EXHIBIT P6 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 08.01.2021 W.P(C).893 and 1689 of 2021

APPENDIX OF WP(C) 1689/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOCOPY OF THE CRIME AND OCCURRENCE REPORT DATED 15-11-2020 IN CRIME NO. 65/2020

EXHIBIT P2 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE SESSIONS COURT, KOTTAYAM IN CRL.M.P NO. 1513/2020 DATED 22-12-2020

EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 23-11-2020

EXHIBIT P4 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE 91ST RESPONDENT DATED 08-01-2021

EXHIBIT P5 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT

EXHIBIT P6 TRUE PHOTOCOPY OF THE PETITION SUBMITTED BY THE PETITIONERS TO THE 3RD RESPONDENT DATED 11-01-

EXHIBIT P7 TRUE COPY OF THE REQUEST SUBMITTED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT DATED 17-01-

EXHIBIT P8 TRUE COPY OF THE REQUEST SUBMITTED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT DATED 17-01- 20219

EXHIBIT P9 TRUE COPY OF THE REQUEST SUBMITTED BY THE 3RD PETITIONER TO THE 3RD RESPONDENT DATED 17-01-

EXHIBIT P10 PHOTOCOPY OF THE LETTER DATED 27.01.2021 SUBMITTED BEFORE THE 2ND AND 5TH RESPONDENTS.

EXHIBIT P11 PHOTOCOPY OF THE LETTER DATED 27.01.2021 SUBMITTED BEFORE THE 3RD RESPONDENT BY THE 1ST PETITIONER.

EXHIBIT P12 PHOTOCOPY OF THE LETTER DATED 27.01.2021 SUBMITTED BEFORE THE 3RD RESPONDENT BY THE 2ND PETITIONER.

EXHIBIT P13 PHOTOCOPY OF THE LETTER DATED 27.01.2021 SUBMITTED BEFORE THE 3RD RESPONDENT BY THE 3RD PETITIONER.