M/S. Jnrp Bar And Restaurant And ANR v. The Excise Commissioner And ANR

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/634/2024 M/S. JNRP Bar and Restaurant and Another Vs.

The Excise Commissioner and Another Mrs. Anjili Nag, Sr. Adv.

Mr. Vishal Kumar Biswas ... for the petitioners Mr. Shatadru Chakraborty, Sr. Adv.

Mr. Rakesh Kumar Mr. Dibesh Dwivedi ... for the respondents March 20, 2025 [AKB] Item No.2 1.

The present writ petition has been filed, inter alia, challenging the order dated 11th June, 2024 passed by the Excise Commissioner (Secretariat) whereby he had while setting aside the order No. 571 dated 18th January, 2022 passed by the Deputy Commissioner, North and Middle Andaman District had reverted the case back to the Deputy Commissioner, North and Middle Andaman District for him to review the matter based on fresh assessment after giving opportunity of hearing to the petitioner or the authorized representative and to dispose of the same by passing a speaking order. The petitioner is aggrieved by the portion of the order by which the Deputy commissioner has been directed to make 'fresh assessment'.

2.

In order to appreciate the controversy involved it is necessary to note down the facts leading to filing of the instant writ petition.

3.

The petitioner no. 2 is the proprietor of the petitioner no. 1 which is a Bar cum Restaurant run under the name and style of M/s JNRP Bar and Restaurant situated at Keralapuram, Diglipur. 4.

In usual course the petitioner Nos. 1 and 2 had applied for bar license before the Deputy Commissioner, North and Middle Andaman District, Mayabunder who upon considering all documents and upon being satisfied had issued a bar licence in favour of the writ petitioners on 12th June, 2012. The said bar licence was extended from time to time and lastly extended till 13th March 2022 vide order dated 8th June, 2021.

5.

According to petitioners on 15th July, 2021 a show cause notice was issued to the petitioners by the Assistant Director, Andaman and Nicobar Administration asking the petitioners to show cause within three days from the date of receipt of such notice as to why bar licence of the petitioners shall not be cancelled. Although, the petitioners had duly responded to the show cause the Deputy Commissioner by an order dated 18th January, 2022 had cancelled the bar licence, inter alia, on the ground that there had been apparent unlawful handling of liquor which constitute a major offence under Section 34 (A) of the Andaman and

Nicobar Islands Excise Regulation, 2012 (hereinafter referred to be as the said Regulation). Such order of cancellation was issued in terms of Section 18(1)(c) of the said Regulation.

6.

Records would revealed that the petitioners had challenged the said order before the appellate authority being the Excise Commissioner who by an order dated 21st November, 2022 had on the basis of powers vested in him under Section 76 (2) of the said Regulation levied a penalty of Rs. 28,05,000/- being five times of the value of the liquor i.e. Rs. 5,61,000/-. It was further provided in such order that upon payment of penalty, the appellant shall be at liberty to apply for fresh grant of bar licence on the same property irrespective of any change of name of restaurant by the proprietor or through any other modus operandi.

7.

Challenging the jurisdiction and authority of the Excise Commissioner to levy penalty as an appellate authority, a writ petition was filed before this Hon'ble Court which was registered as WPA/460/2023. A Coordinate Bench of this Hon'ble Court by noting that the provisions of section 76 (2) and 77 (2) of the said Regulation was of the view that the penalty imposed by the first appellate authority was by misconstruing and misinterpreting the aforesaid regulation and had while setting aside the impugned order remanded the matter

back to the first appellate authority for passing a fresh order in accordance with law.

8.

Pursuant to the aforesaid, the appellate authority after giving opportunity of hearing to the petitioners by an order dated 11th June, 2024 by noting the scope of Section 76 (2) and Section 77 (2) of the said Regulation, set aside the order No. 571 dated 18th January 2022 passed by the Deputy Commissioner, North and Middle Andaman and reverted the matter back to the Deputy Commissioner, North and Middle Andaman to review the same based on fresh assessment after giving a reasonable opportunity of hearing to the petitioner and by passing a speaking order, within three weeks from the date of issue of such order.

9.

Challenging the aforesaid order to the extent the same directed the Deputy Commissioner to make a 'fresh assessment' the instant writ petition has been filed.

10.

Mrs.

Anjili Nag, learned senior advocate representing the petitioners by drawing attention of this Court to the provisions of Section 18, 34, 41, 42, 43, 44, 46 and 63 of the said Regulation would submit that there is no power or authority vested in the Deputy Commissioner to impose penalty. She would submit that in the event of a major offence as enumerated in Section 34 of the said Regulation read with Section 60 thereof, the Deputy Commissioner can at best

communicate the same to the Exercise commissioner for him to launch prosecution before Courts of ordinary jurisdiction or special Court as the case may be. 11.

Insofar as minor offences are concerned the same can, however, be adjudicated by the Adjudicating Officer as provided in Section 61 of the said Regulation. According to her since the Deputy Commissioner does not enjoy the power of making any assessment as regards imposition of penalty, no direction could have been issued by the appellate authority to make a fresh assessment. Having regard thereto, it is submitted that the direction to the aforesaid extent should be read down by this Court.

12.

Mr.

Shatadru Chakraborty, learned senior advocate representing the respondents on the other hand would submit that admittedly in this case the petitioners were found to have committed major offence. Accordingly, the bar licence of the petitioners was cancelled. The petitioners choose not to challenge the jurisdiction of the Deputy Commissioner to cancel the bar licence or to hold out that the petitioners had committed major misconduct. The petitioners in fact had preferred an appeal. What was set aside by the Hon'ble Court was the imposition of penalty by the appellate authority by invoking the powers under Section 76 (2) and Section 77 (2) of the said Regulation. The same cannot and does not take away the

jurisdiction of the appellate authority to revert the matter back to the Deputy Commissioner for review and fresh assessment. He would submit as and when a decision is taken by the Deputy Commissioner the petitioners would be entitled to challenge the same. At this stage it is entirely premature for the petitioners to object to mode and the manner in which the above determination shall be made. According to him, there is ample power vested with the Deputy Commissioner to impose penalty as per the Regulation. In support of his contention, he has placed reliance on relevant provisions of the Regulation.

13.

Heard the learned advocates appearing for the respective parties and considered the materials on record. It would transpire from the records that although, the petitioners had been accorded a bar licence, however, on the basis of enquiry conducted by the Deputy Commissioner by an order dated 18th January 2022 the same was cancelled by holding that the petitioners had acted in violation of the terms and conditions of licence and there had been apparent unlawful handling of liquor which also constitute a major offence, which was not compoundable by imposition of penalty.

14.

Challenging the said order an appeal was filed. The appellate authority, however, by purportedly assuming jurisdiction under the provisions of Section

76 (2) of the said Regulation had imposed a penalty of Rs. 28,05,000/- and further provided that upon payment of penalty the appellant shall be entitled to apply for fresh grant of licence.

15.

The aforesaid order was challenged before this Court and the Coordinate Bench of this Hon'ble Court having found that the appellate authority was incompetent to impose any penalty under the provisions of Section 76 (2) of the said Regulation had set aside the same and had remanded the matter back to the appellate authority.

16.

The appellate authority had since, determined the above issue and has passed an order dated 11th June, 2024, whereby the appellate authority while setting aside the order dated 18th January 2022 has reverted the matter back to the Deputy Commissioner, North and Middle Andaman District, so as to review the matter based on fresh assessment. Ordinarily though, the appellate authority was obliged to give reasons why the matter has been reverted back no such reasons are available.

17.

Be that as it may since the matter has been reverted back to the Deputy Commissioner for review, at this stage in my view it would be premature to consider what order the Deputy Commissioner would pass. At the same time I may note that although Mrs. Anjili Nag, learned Senior Advocate has expressed an

apprehension that the Deputy Commissioner may while holding that the petitioners have conducted a major offence, impose a penalty having regard to the direction issued by the Excise Commissioner, I am of the view that a perusal of the provisions of the said Regulation especially, Section 34 read with Section 60 thereof, leaves no room for doubt that in the event the Deputy Commissioner is of the view that the matter pertains to major offence then in such circumstances the Deputy Commissioner shall be bound to communicate his decision to the concerned Excise Commissioner who shall launch prosecution before a Court of ordinary jurisdiction or Special Court as the case may be. To more fully appreciate the same the relevant provision of Section 34, Section 60 and Section 61 are reproduced herein below:

"34. (1) Whoever, in contravention of this Regulation or of any rule, notification or order made, or condition of licence or permit granted or issued thereunder,一 (a) manufactures, imports, exports, transports or removes any liquor (b) constructs or works any manufactory or warehouse;

(c) bottles any liquor for purposes of sale;

(d) uses, keeps or possesses any materials, still, utensils, implements or apparatus whatsoever for the purposes of manufacturing any liquor other than toddy or tari;

(e) possesses any material or film either with or without Union Territory logo or wrapper or any other thing in which liquor can be packed, or any apparatus or implement or machine for the purpose of packing any liquor, or (f) sells, transports, possesses or buys any liquor beyond prescribed quantity, shall be punishable- (A) in the case of an offence falling under clause (а), - (i) where the liquor involved in the offence is less than prescribed value, with imprisonment for a term which shall not be less than one year, but which may extend to five years and shall also be liable to fine which shall not be less than fifty

thousand rupees or five times of the value of liquor, whichever is higher, (ii) where the liquor involved in the offence exceeds the prescribed value, with imprisonment for a term which may extend to seven years and with fine which may extend to one lakh rupees or five times of the value of liquor, whichever is higher; (B) in the case of an offence falling under clause (b), with imprisonment for a term which may extend to three years and also with fine which may extend to fifty thousand rupees;

(C) in the case of an offence falling under clause (c), with imprisonment for a term which may extend to one year and also with fine which may extend to one lakh rupees or five times of the value of liquor, whichever is higher; (D) in the case of an offence falling under clause (d), with imprisonment for a term which may extend to six months and also with fine which may extend to twenty thousand rupees;

(E) in the case of an offence falling under clause (e), with imprisonment for a term which may extend to three months and also with fine which may extend to fifty thousand rupees;

(F) in the case of an offence falling under clause (f), with imprisonment for a term which may extend to three months and also with fine which may extend to one lakh rupees or five times of the value of liquor, whichever is higher.

(2) If any, offence punishable under sub-section (1) is committed by a person not holding valid licence or permit under this Regulation, he shall be liable to twice the penalty prescribed for the said offence.

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60. (1) The authorized Excise Officer shall after Investigation of any offence committed under this regulation, send his report to the Deputy Commissioner

(2) The Deputy Commissioner after scrutiny of the investigation report shall decide as to whether alleged offence is major or minor and in the case of major offences, he shall decide within such period as may be prescribed, as per the gravity of offence, whether the matter be referred to- (a) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term which may extend to three years; or (b) a special court in case of offences punishable with imprisonment for a term exceeding three years where such special court is established, and in case no special court is established, such cases shall be tried by a court of ordinary jurisdiction.

(3) The Deputy Commissioner shall communicate his decision to concerned "Excise Officer" who shall launch prosecution before courts of ordinary jurisdiction of special court, as the case may be.

61. (1) All minor offences shall be adjudicated by an Adjudicating officer under this regulation.

(2) the Administrator shall, by notification, appoint an officer not below the rank of an Additional District Magistrate of the District where the alleged offence is committed, to be the Adjudicating officer for adjudication in the manner as may be prescribed.

(3) The Adjudication officer shall, after giving the person a reasonable opportunity for making representation in the matter, and if, on such inquiry, he is satisfied that the person has contravened the provisions of this Regulation or the rules made thereunder, impose such penalty as he thinks fit in accordance with the provision relating to the offence.

(4) The Adjudicating Officer shall have the powers of a civil court and - (a) all proceedings before him shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code;

(b) shall be deemed to be a court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.

(5) While adjudicating the quantum of penalty under this Chapter, the Adjudicating Officer shall have due regard to the guidelines specified in section 63."

18.

Having regard thereto, there may be no scope for the Deputy Commissioner to independently impose any penalty. However, the same does not take away the power of the Adjudicating Officer under the Regulation to impose penalty in respect of minor offences. In any event I am of the view that the matter is only under review at this stage and it would be premature to presume the outcome of such proceedings.

19.

Having regard thereto, I am of the view that the matter can be disposed of by directing the Deputy Commissioner to act in accordance with the directions issued by the Excise Commissioner dated 11th June, 2024, and to complete the process of review within a period of two months from date and the direction for

making a "fresh assessment" as provided in the order dated 11th June 2024 should be construed as a fresh assessment on facts and not as an authority to independently impose penalty dehors the provisions of the act.

20.

With the above observations and directions, the writ petition WPA 634 of 2024 stand disposed of. 21.

There shall be no order as to costs.

(Raja Basu Chowdhury, J.)