Narasimulu Goud v. The State Of Telangana,
HONOURABLE SRI JUSTICE CHALLA KODANDA RAM WRIT PETITION No. 6677 of 2017 ORDER:
Heard the learned counsel for the petitioner and learned Government Pleader for Prohibition and Excise (Telangana Area). The grievance of the petitioner is that the request made by him on 24.12.2016 for sending the second sample for independent chemical examination not being considered as violative of principles of natural justice.
The facts of the case are not in dispute. On 30.09.2016, a check was made with respect to the petitioner's TFT toddy shop and found that toddy was adulterated, and collected three samples in terms of Rule 27 of the Andhra Pradesh (Grant of licence to sell Toddy, Conditions of Licence and Tapping of Excise Trees) Rules 2007 (for short 'the Rules'). The chemical examiner's report revealed that toddy was adulterated. The petitioner came to be aware of the chemical examiner's report on 30.10.2016. On 24.12.2016, the petitioner requested that the second sample be sent for independent laboratory for chemical analysis, and enclosed demand draft for Rs.500/-.
Learned Government Pleader for Excise submits that licence of the toddy shop of the petitioner has already been cancelled on 02.03.2017, and the petitioner has an alternative remedy of appeal before the Commissioner.
Having considered the submissions, the question before this Court is whether the second sample not being sent for independent examination is violative of any of the rules or violative of principles of natural justice.
Rule 27 of the Rules reads as under:
27. (1) Drawal of the samples:- Any Prohibition & Excise Officer, not below the rank of SubInspector of Prohibition & Excise or Food Inspector appointed under the prevention of Food Adulteration Act, 1954, shall be competent to inspect at any time and to take samples from the toddy possessed by the Licensee or any other person for the purpose of analysis. Such Officer shall take three (3) samples in the presence of the licensee or his Agent or other person in charge of the Licenced premises or who is found selling toddy in the said premises.
After conducting a panchanama the samples shall be sent to the Court having jurisdiction with a requisition to send one of the samples expeditiously to the Chemical Examiner of the Prohibition & Excise Department having jurisdiction in the region, in which licensed premises are situated or to any independent laboratory as instructed by the Commissioner for Chemical Examination. If the sample sent to the Chemical Examiner/Laboratory is damaged in transit or otherwise before the completion of the analysis, the Court may be requested by the concerned officer to send a second sample to the Chemical Examiner/Laboratory.
(3) days of the drawal of sample. In case, where Licensee or any one of his Nowkarnama holder was not present at the time of taking of sample, the Licensee may apply to the concerned Prohibition & Excise Superintendent within seven (7) days from the date of communication of drawal of sample. The application should be accompanied by demand draft for an amount sufficient to cover the analysis charges. If no such application is filed within the requisite time limit, the Licensee shall not be entitled to seek analysis thereafter. On receipt of the application within the time and with requisite Demand Draft, the concerned officer shall request the court to send a sample to the independent laboratory; Provided that any adverse analysis report will constitute sufficient cause for the purpose of exercising the power under Section 31 of the Act, by the authority granting licence or permit to safeguard the public health.
Provided further that the officer requesting the court to send a sample to an independent laboratory on the application of the Licensee has to indicate the name of the independent laboratory to the Court Explanation: Independent Laboratory means any laboratory over which the Government of Andhra Pradesh has no control. A bare reading of the Rule 27 of the Rules discloses that the right of shop owner for sending second sample has to be exercised within three days from the date of seizure. However, if the seizure
or inspection has been effected in the presence of nowkarnama, the application has to be made within seven days. In the case on hand, it is not clear whether seizure has been effected in the presence of petitioner or nowkarnama. Even assuming that seizure has been effected in the presence of nowkarnama, the application made on 24.12.2016 is much beyond the prescribed time. This Court can also take judicial note of the fact that, toddy being a consumable item, its quality deteriorates over a period of time. It is virtually not possible for ascertaining the true character on account of delay.
In the circumstances, the action of the respondents in not sending the second sample for chemical examination cannot be found fault with.
The Writ Petition fails and is, accordingly, dismissed. Miscellaneous petitions pending, if any, shall stand dismissed. No order as to costs.
______________________________ CHALLA KODANDA RAM,J Date: 06.03.2017 usd