P.S. JIBIN v. Excise Commissioner, Commissionerate of Excise, Thiruvananthapuram; Deputy Excise Commissioner, Thrissur; Circle Inspector of Excise, Wadakkanchery; PANGU

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937 WP(C).No. 20503 of 2015 (K) --------------------------------------------- PETITIONER: P.S.JIBIN, S/O. SUDHAKARAN, AGED 26 YEARS, PUTHUPULLY HOUSE, CHERPU POST, CHENAM DESOM, VILLAGE PARALAM, THRISSUR DISTRICT. BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.JAI GEORGE SMT.DAISY A.PHILIPOSE RESPONDENTS: 1. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM - 695 033. 2. THE DEPUTY EXCISE COMMISSIONER, THRISSUR - 680 001. 3. THE CIRCLE INSPECTOR OF EXCISE, WADAKKANCHERY, THRISSUR DISTRICT - 680 001. 4. PANGU, AGED 70 YEARS, S/O.CHOZHI, KUZHIPARAMBIL HOUSE, KADANGODU, THEKKUMURI DESOM, KADANGODU VILLAGE, THALAPILLY TALUK 680 002. R4 BY ADV. SRI.N.P.PRAJEESH R1 TO R3 BY SR. GOVT. PLEADER SRI.K.C.VINCENT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN WP(C).No. 20503 of 2015 (K)** PETITIONER'S EXHIBITS: EXHIBIT-P1-A TRUE COPY OF THE OCCURANCE REPORT AND THE MAHAZAR IN CR NO. 72/2013. EXHIBIT-P2-A TRUE COPY OF THE CRL.M.A.NO.7679/2013 IN CRL.M.C 4299/2013 DATED 03/10/2013. EXHIBIT-P3-A TRUE COPY OF THE REPORT OF CHEMICAL EXAMINER OFFICER, ERNAKULAM DATED 12/11/2013. EXHIBIT-P4-A TRUE COPY OF THE CHALLAN DATED 05/03/2014 EVIDENCING THE PAYMENT OF RS.93,000/- TOWARDS ABKARI WORKERS WELFARE FUND FOR THE YEAR 2014-15 EXHIBIT-P5-A TRUE COPY OF THE JUDGMENT DATED 02/04/2014 IN W.P(C) 6359/2014. EXHIBIT-P6-A TRUE COPY OF THE ARGUMENT NOTE DATED 28/04/2014. EXHIBIT-P7-A TRUE COPY OF THE ORDER NO.XA2-23391/2013 DATED 24/05/2014 PASSED BY THE IST RESPONDENT. EXHIBIT-P8-A TRUE COPY OF THE JUDGMENT DATED 09/03/2015 IN W.P(C) 13758/2015 EXHIBIT-P9-A TRUE COPY OF THE ARGUMENT NOTES DATED 11.5.2015 EXHIBIT-P10-A TRUE COPY OF THE ORDER NO.XA2-23391/2013 DATED 29.6.2015 PASSED BY THE FIRST RESPONDENT RESPONDENT'S EXHIBITS: EXT. R4(a) PHOTOCOPY OF THE JUDGMENT DATED 22.3.2010 IN W.A.NO. 530/2010 PASSED BY THIS HON'BLE COURT EXT. R4(b) PHOTOCOPY OF THE DECISION REPORTED IN ANILKUMAR V. STATE OF KERALA 2013 (3) KLT 358 EXT. R4(c) PHOTOCOPY OF THE JUDGMENT DATED 25.3.2014 IN W.A.NO. 482/2014 PASSED BY THIS HON'BLE COURT EXT. R4(d) PHOTOCOPY OF THE DECISION REPORTED IN SOBHANAN & OTHERS V. STATE OF KERALA 2011 (2) KHC 962 EXT. R4(e) PHOTOCOPY OF THE DECISION REPORTED IN RAJAN & OTHERS V. STATE OF KERALA & ANOTHER 2010 (3) KLJ 461 EXT. R4(f) PHOTOCOPY OF THE ORDER DATED 29.10.2013 IN CRL.M.A.NO. 7679/2013 IN CRL.M.C.NO.4299/2013 PASSED BY THIS HON'BLE COURT /TRUE COPY/ P.S. TO JUDGE Dama Seshadri Naidu, J. ---------------------------------------------- W.P.(C)No.20503 of 2015 K ----------------------------------------------- Dated this the 29[th] day of January, 2016 ## **JUDGMENT** The petitioner, a successful bidder in the auction of the privilege to vend toddy in Shop Nos.12 to 17 of Group No.III for the abkari year 2014-2017, is aggrieved by the subsequent cancellation of the provisional allotment. 2. Briefly stated, the facts are that the fourth respondent was the licencee of the shops in question for the abkari year 2013-14. As things turned out, on 24.08.2013, a squad of the Excise Department ('the Department') raided a nearby building in the fourth respondent's possession and found 1,150 litres of toddy, which was said to be not fit for human consumption. As a result, they registered Crime No. 72/2013 for an abkari offence under Section 55(a)(i) of the Abkari Act, Exhibit P1 being the crime and occurrence report. WPC 20503/15 2 3. Aggrieved, the fourth respondent challenged Exhibit P1 in Crl.M.C.No.4299/2013 invoking the inherent powers of this Court under Section 482 of Code of Criminal Procedure and obtained Exhibit P2 stay of all further proceedings. 4. At any rate, on 05.03.2014, in the auction held, the fourth respondent could not participate to claim his preferential right in terms of Rule 5 of the Abkari Rules. Under those circumstances, in the lots drawn, the petitioner was successful. Later, questioning the denial of preference, the fourth respondent filed W.P.(C)No.6359/2014 and invited Exhibit P5 judgment, through which this Court directed the first respondent to consider the petitioner's claim for confirmation of the licence as well as that of the fourth respondent for preferential right. 5. As a result, the first respondent through Exhibit P7 order cancelled the provisional allotment made in the petitioner's favour and upheld the fourth respondent's WPC 20503/15 3 preferential right. This time, it was the petitioner's turn to be aggrieved. He filed W.P.(C)No.13758/2014 and invited Exhibit P8 judgment, through which this Court set aside Exhibit P7 order and remitted the matter to the first respondent. Eventually, on 29.06.2015 the first respondent passed Exhibit P10 order reiterating his earlier stand in Exhibit P7 order. Finally, assailing Exhibit P10, the petitioner, again, approached this Court by filing the present writ petition. 6. In the above factual background, Sri.S.Sreekumar, the learned Senior Counsel for the petitioner, has strenuously contended that the fourth respondent has not at all been entitled to any privilege. In elaboration, the learned Senior Counsel, first, contended that at the earliest point in time, when the Government declared its policy in February 2014, the fourth respondent was very much aware of the impending auction of the privilege to vend toddy. Second, despite it, he made no efforts to secure any certificate from WPC 20503/15 4 the authority concerned so as to participate in the auction to press for his preferential claim. In the alternative, the learned Senior Counsel has submitted that if the fourth respondent had got the certificate from the officials concerned, he could have, at least, participated in the auction and had his protest recorded. 7. Laying specific emphasis on Rule 5 of the Rules, the learned Senior Counsel would further contend that the provision is emphatic to the effect that mere registration of crime is sufficient. He has also submitted that before the fourth respondent's obtaining Exhibit P2 order in the quash petition, he had sought specific relief concerning recognition of his preferential right, too. This Court, however, consciously omitted to grant any relief in that regard. Thus, contends the learned Senior Counsel that since Exhibit P2 order has not been challenged, the fourth respondent is estopped from re-agitating the issue of preferential right. WPC 20503/15 5 8. The learned Senior Counsel has also drawn my attention to Exhibit P1 to lay stress on the fact that evidently the crime was registered under Section 55(a)(i) of the Act; it disentitles the fourth respondent to take any advantage of Rule 5 of the Rules. Thus, according to the learned Senior Counsel, Rules 5(i)(a)(3) and (4) of the Rules come in the way of the fourth respondent's claiming any preferential right. In the process of his submissions, the learned Senior Counsel has placed reliance on **Devidasan v. Excise Commissioner, Tvm and others**[1] , **State of Kerala & others v. Komalam**[2] , **Anil Kumar v. State of Kerala**[3] , **Sabu & another v. Excise Commissioner, Trivandrum & another**[4] , and **Gopalan v. State of Kerala**[5] . 9. Summing up his submissions, the learned Senior Counsel has submitted that viewed from any perspective, the fourth respondent is disentitled to have any preferential > 1 2015(4) KHC 1 > 2 2010(2) KHC 310 > 3 2013(3) KLT 358 > 4 2015 (2) KHC 66 > 5 2010(2) KLT 255 WPC 20503/15 6 claim. 10. Per contra, Sri.M.G.Karthikeyan, the learned counsel for the fourth respondent, has contested the claims of the petitioner with equal vehemence. To begin with, the learned counsel has submitted that it is not a question of mere registration of a crime. It should, in fact, have been validly registered. To hammer home his contention concerning what is said to be a valid registration of crime, the learned counsel has placed reliance on Exhibit R4(a), a judgment rendered by a learned Division Bench. 11. The learned counsel has laid specific emphasis on Exhibit P3 chemical analysis report. According to him, it is the report of the first sample, rather than a contradictory report at the behest of the accused in a second sample. In the face of unequivocal findings by the expert in Exhibit P3 that the toddy is unadulterated, assuming that there were to be any offence, it would be only concerning the violation of the licensing conditions under Section 56(b) of the Act. In WPC 20503/15 7 other words, the fourth respondent, without prejudice, could be prosecuted, if at all, for the alleged offence of violating the licence conditions, namely storing toddy in unauthorized premises. In that regard, the learned counsel has placed reliance on Exhibits R4(d) and R4(e) judgments. 12. The learned counsel has drawn my attention to Exhibit R4(c) judgment of a learned Division Bench to contend that once the chemical analysis report is available, and it is evident from the said report that the toddy stored does not contain any spurious element, willy-nilly the authorities could prosecute the fourth respondent, if at all, only for the alleged offence under Section 56(b) of the Act. 13. Concerning non-participation of the fourth respondent in the auction, the learned counsel has drawn my attention to Exhibit P10 order of the first respondent, wherein it has been observed that the fourth respondent initially approached the Circle Inspector for the purpose of obtaining certificate to participate, but he could not WPC 20503/15 8 succeed as it was rejected. Under these circumstances, according to the learned counsel, the fourth respondent was unable to take part in the auction to press his claim for preferential right. 14. In support of Exhibit P10 order of the first respondent, the learned counsel for the fourth respondent has further submitted that the first respondent has strictly followed the due procedure and rendered the order in compliance with not only the judgment of this Court, but also in the light of the extant statutory provisions. 15. Summing up his submissions, the learned counsel has contended that in the light of the definitive judicial pronouncements in Exhibits R4(a) and R4(c), inescapably the authorities ought to treat the crime as having been registered under Section 56(b) of the Act and extend the benefit of privilege to the fourth respondent in terms of Rule 5 of the Rules. WPC 20503/15 9 16.mIn reply, the learned Senior Counsel has contended that Exhibit P3 is at best an opinion of an expert, and an opinion—still. According to him, it is a subject matter of trial, and it cannot be put on the pedestal of a proven fact. The learned Senior Counsel has further submitted that notwithstanding Exhibit P3 report of chemical analysis, the department officials, the prosecuting agency, in fact, went ahead and filed a charge sheet on 30.01.2014, i.e., subsequent to Exhibit P3 report. 17. At this juncture, the learned counsel for the fourth respondent has intervened and submitted that initially in Exhibit P2, this Court had issued stay of all further proceedings. Indeed, the prosecution went ahead and filed a charge sheet in violation of the judicial directive. Under those circumstances, this Court, according to the learned counsel, treated that to be willful contempt on the officials' part and sought an explanation. Eventually, the official concerned filed a written unconditional apology WPC 20503/15 10 before the Court, apart from placing the necessary proof regarding the efforts the prosecution has been making to withdraw the charge sheet from the file of the trial court until Crl.M.C.No.4299/2013 is disposed of. 18. Heard the learned counsel for the petitioner and the learned counsel for the fourth respondent, as well as the learned Government Pleader, apart from perusing the record. 19. In the judgments rendered in W.P.(C)No. 20619/2015 and 20871/2015, the cases having arisen out of the common order of the Commissioner of Excise, this Court has dealt with all the issues elaborately. As such, this Court disposes of the present writ petition applying the ratio as contained in the judgments referred to above. 20. Nevertheless, in this writ petition the petitioner has raised one additional issue that requires resolution. According to the learned Senior Counsel, in the petition filed by the fourth respondent under Section 482 Cr.P.C., he WPC 20503/15 11 sought a direction that the authorities recognise his preferential right, apart from seeking the quashing of the crime. This Court, at any rate, in Exhibit P2 only stayed the criminal proceedings. 21. In the above context, the learned Senior Counsel has laid emphasis on the principle of res judicata or estoppel that the fourth respondent cannot be permitted to re-agitate the issue of privilege. 22. Attractive as the submission is, I am afraid it rings shallow on a deeper scrutiny. Under Section 482 Cr.P.C., this Court, while exercising its inherent powers, unlimited and undefined as they are, can only issue judicial directives with a view to preventing any abuse of penal process. The power is more in the manner of a shield, rather than a sword. So long as the proceedings under Section 482 Cr.P.C., are not capable of yielding the relief the fourth respondent has prayed for; the very proceedings cannot amount to either estoppel or res judicata, as the case may be. WPC 20503/15 12 23. Viewed from another perspective, to attract the hurdle of res judicata, the conditions to be fulfilled are as follows: (1) the litigating parties must be the same; (2) the subject-matter of the lis also must be identical; (3) the matter must be finally decided between the parties; and (4) the lis must have been decided by a court of competent jurisdiction (vide **Ramchandra Dagdu Sonavane v. Vithu Hira Mahar** (2009) 10 SCC 273). In **P.M.Ninan v. Executive Officer, Anikad**[6] , this Court has held that if an issue was raised in proceedings this Court had jurisdiction to deal with, and there was an express decision in the said proceedings, the said decision operates as res judicata against the writ petitioners. 24. Incidentally, in P.M.Ninan (supra) the petitioner questioned the vires of Rule 10 of the Kerala Food Adulteration Rules in proceedings under Section 482 Cr.P.C., and the Court rendered an express finding in that > 6 AIR 1979 KER. 18 (FB) WPC 20503/15 13 regard. When the petitioner sought to re-agitate the issue in a proceedings under Article 226 of the Constitution of India, this Court has held that the proceedings are hit by res judicata. In the present instance, Exhibit P2 is only an interim order. So long as the issue raised by the fourth respondent, namely his entitlement to the privilege, has not been considered and finally decided, the obstacle of res judicata cannot be placed in the fourth respondent's redressal path. As a result, the writ petition is dismissed; no order as to costs. SDama Seshadri Naidu, Judge tkv/rv ## **'C.R.'**