Vikash Kumar vs The State Of Bihar And Ors
2023 Latest Caselaw 2099 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No.6873 of 2017
     ======================================================

Vikash Kumar Son of Shri Lalji Prasad Singh Resident of Village-

Bhagwanpur Deshua, P.S. Ujjiyarpur, District - Samastipur.

... ... Petitioner/s

Versus

1. The State of Bihar through the Secretary to the Government of Bihar,

Department of Excise & Prohibition, Vikash Bhawan, Patna.

2. The Commissioner of Excise, Bihar, Patna.

3. The Collector, Samastipur.

4. The Superintendent of Excise, Samastipur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Satyabir Bharti, Advocate

For the Respondent/s : Mr. P.K. Shahi, AG

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD)

Date : 04-05-2023

Heard learned counsel for the petitioner and learned

counsel for the State.

2. The petitioner is aggrieved by cancellation of his

license and forfeiture of his advance license fee based on

order of the Collector, Samastipur, dated 14.02.2012, duly

affirmed by the Appellate Authority on 24.11.2014, in Excise Patna High Court CWJC No.6873 of 2017 dt.04-05-2023

Appeal Case No. 7 of 2012. The petitioner's revision

application before the Board of Revenue has also been

rejected under order dated 07.09.2015.

3. It is submitted by Mr. Satyabir Bharti, learned

counsel appearing on behalf of the petitioner, that solely

relying upon verification of stock register, the impugned

action has been taken pursuant to an alleged sale of liquor on

a dry day, for which raid was conducted by the police

authorities on 07-11-20211.

4. The petitioner lodged a complaint dated 09.11.2011,

before the District Collector, Samastipur, regarding his false

implication by the police on extraneous considerations.

5. On 01.12.2011, the Superintendent of Excise,

Samastipur under communication, bearing letter No. 1467,

placed on record in the criminal case, decisions of the

Commissioner Excise that, if any shop was found open after

the business hours, as per license, then intimation was

required to be sent by the police to the Collector or Assistant

Commissioner Excise for taking appropriate action. The

Superintendent Excise, accordingly, requested for having the

seal removed from the petitioner's composite liquor shop, so

that the liquor in the shop could be tallied with the brand and Patna High Court CWJC No.6873 of 2017 dt.04-05-2023

batch number supplied to the petitioner by the Bihar State

Beverages Corporation Limited (for brevity 'BSBCL').

6. The Sub-Divisional Officer, Patori, has also found in

an inquiry conducted by him that on 07.11.2011 the

petitioner's shop was closed. The inquiry, therefore, belies

the allegation levelled by the police authorities.

7. A show-cause dated 19.01.2012, was served upon

the petitioner by the Superintendent Excise, Samastipur,

allowing the petitioner to file his response, so that the matter

could be placed before the Collector. In view of inaction on

the part of the Authorities thereafter petitioner was

constrained to file a writ petition bearing C.W.J.C. No. 434

of 2012. The same was disposed of directing the Collector,

Samastipur to consider the show-cause and decide the same

forthwith.

8. The orders impugned in the writ petition were

passed thereafter, which are perverse, without reference to

any material on record and show total non-application of

mind.

9. The penal consequences arising out of such orders

are unsustainable and liable to be quashed.

10. The learned counsel for the State, on the other Patna High Court CWJC No.6873 of 2017 dt.04-05-2023

hand, has opposed the prayer in the writ petition. It is

submitted that the petitioner's shop was found open on a dry

day. Upon physical verification of the stock, the Authorities

have come to the conclusion regarding business being carried

on even on a dry day and after due opportunity to the

petitioner, the impugned orders have been passed, which

require no interference by this Court.

11. On considering the rival submissions, this Court

would find that order of the Collector dated 14.02.2012, does

not take into consideration any of the submissions, which

were advanced on behalf of the petitioner. The submissions

have merely been recorded in the earlier order of the

Collector dated 09.02.2012. Order of the Collector shows

total non-application of mind to the explanation submitted by

the petitioner and the Collector, merely relying upon the

alleged stock verification and allegations made in the police

case, which precipitated action against the petitioner has

proceeded to direct for cancellation of the petitioner's license

and forfeiture of the license fee etc. deposited by the

petitioner. It is also pertinent that there was no show cause

issued for the alleged defects, which were the grounds for

cancellation.

Patna High Court CWJC No.6873 of 2017 dt.04-05-2023

12. The Appellate Authority as well as Revisional

Authority have also passed orders thereupon affirming the

order of the Collector.

13. The Appellate Authority instead of considering

any material in support of the allegations which it was

required to do has held that the petitioner's explanation

appears to be misleading and untenable .

14. The Revisional Authority has committed the same

mistake and also affirmed the order on the premise that the

petitioner has not put forth any acceptable or legally tenable

facts and circumstances.

15. The order of the Collector in the above facts and

circumstances is ex facie, suffering from non-application of

mind, showing no consideration of the plea set forth by the

petitioner in his explanation and perverse, being

unsustainable in the eyes of the law.

16. The orders of the Appellate Authority and

Revisional Authority affirming the illegal order of the

Collector are also unsustainable for the reasons noted above.

17. This Court would quash the three orders dated

14.02.2012 passed by the Collector, Samastipur, order dated

24.11.2014 passed by Excise Commissioner in Excise Appeal Patna High Court CWJC No.6873 of 2017 dt.04-05-2023

No. 7 of 2012 and order dated 07.09.2015 passed by the

Revisional Authority and direct the respondent-Authorities to

ensure refund to the petitioner of his license fee and other

deposit/s, expeditiously and positively within eight (8)

weeks' from the date of receipt/production of a copy of this

order.

18. Accordingly, the writ application is allowed.

(K. Vinod Chandran, CJ)

(Madhuresh Prasad, J)

rajkishore/-

AFR/NAFR                  N/A
CAV DATE                  N/A
Uploading Date            11.05.2023.
Transmission Date         N/A