Rosiline Mathew vs State Of Kerala
2024 Latest Caselaw 27211 Ker

Kerala High Court

Rosiline Mathew vs State Of Kerala on 11 September, 2024

Author: Dinesh Kumar Singh

Bench: Dinesh Kumar Singh

                                                       2024:KER:70517

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH

   WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946

                        WP(C) NO. 16130 OF 2023

PETITIONER/S:

          ROSILINE MATHEW,
          AGED 50 YEARS
          W/O. MATHEW SCARIA, AGED 50 YEARS, FL-3 LICENSE NO. FL-
          3-D17/2002-03, HOTEL THUSHARA INTERNATIONAL,
          KODANCHERY, KOZHIKODE DISTRICT, RESIDING AT ADACKAPARA
          HOUSE, KODANCHERY P.O., KOZHIKODE DISTRICT –
          673580, REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR.
          RAMUNNI NAIR, S/O. MADHAVAN NAIR, AGED 70 YEARS,
          RESIDING AT THEKKEPULIYOLI HOUSE, KARANTHUR P.O.,
          KUNNAMANGALAM, KOZHIKODE DISTRICT, PIN - 673571


          BY ADVS.
          M.U.VIJAYALAKSHMI
          BRIJESH MOHAN
          K.JAJU BABU (SR.)




RESPONDENT/S:

    1     STATE OF KERALA,
          REPRESENTED BY THE SECRETARY TO GOVERNMENT (TAXES),
          GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN -
          695001

    2     THE EXCISE COMMISSIONER,
          OFFICE OF THE COMMISSIONER OF EXCISE, BAKERY JUNCTION
          ROAD, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM, PIN -
          695034

    3     THE DEPUTY COMMISSIONER OF EXCISE,
          PM SANAVAS ROAD, NEAR CIVIL STATION, CALICUT H.O.,
          KOZHIKODE, PIN - 673001
                                                            2024:KER:70517
WP(C) NO. 16130 OF 2023

                                   2
            BY ADVS.
            GOVERNMENT PLEADER
            PUBLIC PROSECUTOR



            SRI. BINOY DAVIS-GP


     THIS   WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
11.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                        2024:KER:70517
WP(C) NO. 16130 OF 2023

                                 3


                            JUDGMENT

The present writ petition has been filed impugning the

orders in Ext.P9 and Ext.P11 passed by the Excise Commissioner,

the licensing authority and the State Government, whereby the

petitioner's FL-3 licence for Hotel Thushara International located

at Kodanchery in Kozhikode District was cancelled.

2.The petitioner is the FL-3 licencee and owner of the

hotel. The petitioner set to have left to USA on 18.06.2021 and her

husband also left to USA on 14.09.2021. The hotel staffs including

the General Manager were running the hotel including the Bar. In

pursuance to the Government Order because of Covid instructions,

the Hotel was closed and thereafter when the restrictions were

removed, the Hotel was re-opened on 26.09.2021. On 07.11.2021,

the Excise Officers conducted a raid on the licence premises and

found no disparity in the stock and in the stock register.

3.However on 08.11.2021, on the basis of a secret

information that spurious liquor was kept and sold from the hotel,

the excise Circle inspector of Thamarassery along with other

Excise officials conducted inspection at the said Bar hotel and 2024:KER:70517 WP(C) NO. 16130 OF 2023

found 150 litres of coloured spirit, which look like foreign liquor

kept in five plastic cans of 30 litres each, stored in a room near to

the A/C bar room on the second floor and 917 litres of hooch in 917

pet bottlesone liter of each of the labels of liquor like Jawan XXX

Rum, Old Chef VSOP Indian Brandy, Old Chef XXX Rum are

printed on bottles. Total of 1067 litres of spurious liquor, a

machine used to fix metal caps on bottles and fake hologram

stickers were also seized from the premise.

4.Criminal case No. 158/2021 under Section 55(a), 55(G),

55(h),55(D), 55(C) & 56(b)of Abkari Act was registered against the

petitioner and others including the General Manager. The Excise

Commissioner on the recommendation made by the Deputy Excise

Commissioner, Kozhikode for cancellation of the licence of Hotel

Thushara International for production and sale of spurious liquor,

issued notice to the petitioner and after considering their response

in view of the provisions of Section 26 of the Abkari Act and Rule

34 of the Foreign Liquor Rules, cancelled the FL-3 licence issued

to the petitioner. Aggrieved by the said decision in Ext.P9 by the

Excise Commissioner, petitioner filed a revision through the State

Government and the State Government by the impugned order in 2024:KER:70517 WP(C) NO. 16130 OF 2023

Ext.P11 has rejected the revision upholding the order passed by

the Excise Commissioner, cancelling the FL-3 licence of the

petitioner.

5.The learned counsel for the petitioner has submitted

that the spurious Liquor was not recovered from the licence

premises of the hotel but they recovered from a near by room and

therefore, it cannot be said that the spurious liquor had been sold

from the FL-3 licence premises. The second submission of the

learned counsel for the petitioner is that, the petitioner was away

in USA and the petitioner cannot be held responsible for the acts of

her employees and there is nothing on record to suggest that the

petitioner had authorised the hotel employees to store and sell the

spurious liquor. He, therefore, submits that, the conditions as

prescribed under Section 26 of the Abkari Act are not attracted to

the facts and circumstances of the case and therefore, the

impugned orders in Exts. P9 and P11 are to be set aside.

6. On the other hand, the learned Government Pleader has

submitted that the spurious liquor in large quantity was recovered

from the adjacent room near to the Bar and said liquor had been

sold from the bar to the consumers risking the health and life of 2024:KER:70517 WP(C) NO. 16130 OF 2023

the consumers. The offences committed by the hotel and the

petitioner and her employees attract punishment upto 10 years. He

therefore, submits that as the liquor was recovered from a room

which is adjacent to the bar premises, it cannot be said that liquor

was not stored in the licence premises.

7.He further submits that the employees of the hotel are

the employees of the petitioner. The acts for the petitioner and any

act or misconduct committed by the employees of the petitioner in

running the bar and the hotel are to be considered as the act or

misconduct of the petitioner and the petitioner along with her

employees would be jointly and severely liable for any offence or

misconduct. He therefore, submits that both conditions as

prescribed under Section 26 of the Abkari Act are attracted

towards the present case. He further submits that the Excise

Commissioner as well as the Government had considered each and

every aspect of the matter and the impugned orders passed do not

suffer from any illegality which require this court to interfere in

exercise of its jurisdiction under Article 226 of the Constitution of

India.

8.Section 26 of the Abkari Act on reproduction reads as 2024:KER:70517 WP(C) NO. 16130 OF 2023

under:--

"26. Power to recall licenses, etc. The [Commissioner] [Substituted for 'Superintendent' by Section 2 of Act III of 1106.]may cancel or suspend any license or permit granted under this Act:-

:-(a)if [any fee, duty, tax or rental][Substituted for the words 'any fee or duty' by Section 11(i) of Presidents Act 1 of 1964.]payable by the holder thereof be not duly paid; or

(b)in the event of any breach by the holder of such license or permit or by his servant, or by any one acting with his express or implied permission on his behalf, of any of the terms and conditions of such license or permit; or (bb)[ if the holder thereof or his servant, or any one acting with his express or implied permission on his behalf, sells or stores for sale liquor in any place other than the licensed premises; or,][Inserted by section 2 of Act 12 of 1995.]

(c)[ if the holder thereof is convicted of any offence against this Act or of any cognizable and non-bailable offence or of any offence under the Dangerous Drugs Act, 1930, or under the Trade and Merchandise Marks Act, 1958, or under Sections 478 to 489 of the Indian Penal Code; or][Substituted by Act No. 10 of 1967.]

d)where a license or permit has been granted on the application of the holder of an exclusive or other privilege or of a [farmer under Section 20][Substituted for the words 'farmer of duties under this Act' by Section 11(ii) of President's Act 1 of 1964.]on the requisition in writing of such person; or

(e)if the conditions of the license or permit provide for such cancelment or suspension at will."

9.From the perusal of Section 26 of the Abkari Act, it is

evident that, in the event of any breach by the holder of such

license or permit or by his servant, or by any one acting with his

express or implied permission on his behalf, of any of the terms

and conditions of such license or permit licence granted is liable to

be cancelled. It is further provided in the provisions of Section 26

that, if the holder thereof or his servant, or any one acting with his

express or implied permission on his behalf, sells or stores for sale 2024:KER:70517 WP(C) NO. 16130 OF 2023

liquor in any place other than the licensed premises would also

attract cancellation of licence.

10.In the present case, the petitioner cannot say that the

employees in the hotel were not acting with her express or implied

consent. The hotel employees are the employees of the petitioner.

The petitioner cannot get away from the misconduct of her

employees on the ground that petitioner was not available in India

when the raid was conducted and spurious liquor was found in the

hotel premises or the room situated near to the bar.

It not in dispute that the spurious liquor in large quantity

was recovered from a room which is near to the BAR. In view

thereof, the condition in clause b and (bb) of Section 26 of the

Abkari Act are fully attracted in the facts and circumstances of the

case. I, therefore, find no error of law or jurisdiction committed by

Excise commissioner and the State Government in passing the

impugned orders.

Thus, the writ petition is dismissed, however without cost.

Sd/-

DINESH KUMAR SINGH JUDGE SJ 2024:KER:70517 WP(C) NO. 16130 OF 2023

APPENDIX OF WP(C) 16130/2023

PETITIONER EXHIBITS

Exhibit-P1 TRUE COPY OF THE GOVERNMENT LETTER BEARING NO. 24312/A2/02/TD DATED 09.12.2002 ISSUED TO THE EXCISE COMMISSIONER AND THE LICENSE ISSUED BY THE EXCISE COMMISSIONER WITH CONSEQUENTIAL ORDER ISSUED BY THE DEPUTY COMMISSIONER, ENCLOSED ALONG WITH THE COMMUNICATION.

Exhibit-P2 TRUE COPY OF THE FL-11 LICENSE DATED 02.04.2015 ISSUED IN FAVOUR OF THE PETITIONER'S HOTEL.

Exhibit-P3 TRUE COPY OF THE PROCEEDINGS OF THE EXCISE COMMISSIONER BEARING ORDER NO.

EXC/2895/2018/XC1-DATED 03.07.2018 ALONG WITH COVERING LETTER NO.D6-3373/2018 DATED 03.07.2018 ISSUED BY THE DEPUTY EXCISE COMMISSIONER

Exhibit-P4 COPY OF THE PROCEEDINGS ISSUED IN THAT REGARD BEARING ORDER NO. D6-1513(A)/2018 DATED 21.08.2018 BY THE 3RD RESPONDENT

Exhibit-P5 TRUE COPY OF THE PROCEEDINGS BY WHICH LICENSE WAS ISSUED IN FAVOUR OF THE PETITIONER BY THE EXCISE AUTHORITIES BEARING NO. E.X.C./2231/ 2020/X.C.1 DATED 27.11.2020

Exhibit-P6 COPY OF THE MAHAZER DATED 08.11.2021

Exhibit-P7 TRUE COPY OF THE ORDER NO.EXC/4863/2021-XC1 DATED 10.11.2021 ISSUED BY THE 2ND RESPONDENT

Exhibit-P8 TRUE COPY OF THE SAID EXPLANATION DATED 20.11.2021 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT

Exhibit-P9 TRUE COPY OF THE ORDER NO.EXC/ 4863/2021-XC1 DATED 27.01.2022 ISSUED BY THE 2ND RESPONDENT.

2024:KER:70517 WP(C) NO. 16130 OF 2023

Exhibit-P10 TRUE COPY OF THE SAID REVISION PETITION NUMBER NIL FILED BY THE PETITIONER BEFORE THE GOVERNMENT OF KERALA DATED 15.02.2022

Exhibit-P11 TRUE COPY OF THE SAID GOVERNMENT ORDER BEARING G.O.(RT) NO.187/ 2023/TAXES DATED 16.03.2023.

Exhibit-P12 True copy of the F.L.3 license granted to Scaria S. Adakkapara, Proprietor, Hotel Thushara by the Assistant Excise Commissioner, Kozhikode on 13.12.2002

Exhibit-P13 True copy of the rent agreement dated 11.08.2014 entered between Mr. Scaria and Mr. P.T Varghese

Exhibit-P14 True copy of the license dated 1.4.2022 issued to P.T Varghese by the Kodencherry Grama Panchayat.

Exhibit-P15 True copy of the lease agreement between Scaria with the Managing Director of Muthoot dated 21.6.2010

Exhibit-P16 True Copy of lease agreement dated 20.1.2016 between Mr. Scaria and Franklin George

Exhibit-P17 True copy of the license dated 1.4.2022 issued to Franklin George issued by the Kodenchery Panchayat

Exhibit-P18 True copy of the Order No. XC1-29443/12/D. Dis dated 20.11.2012 issued by the Assistant Excise Commissioner

Exhibit-P19 True copy of FL-3 license renewal certificate dated 31.3.2021 issued by the Deputy Excise Commissioner

Exhibit P20 TRUE COPY OF THE STATEMENT DATED 18.11.2021 OF 3RD ACCUSED IN CR.NO.158/2021 OF EXCISE RANGE OFFICE, THAMARASSERY

Exhibit P21 TRUE COPY OF THE STATEMENT DATED 18.11.2021 OF 4TH ACCUSED IN CR.NO.158/2021 OF EXCISE 2024:KER:70517 WP(C) NO. 16130 OF 2023

RANGE OFFICE, THAMARASSERY ALONG WITH TYPED COPY

Exhibit P22 TRUE COPY OF THE INVOICE NO.598 DATED 28.10.2021 SHOWING THE PURCHASE

Exhibit P23 TRUE COPY OF THE INVOICE NO.660 DATED 06.11.2021 SHOWING THE PURCHASE