1. The petitioner-Society sought for a writ of mandamus or any other appropriate writ , Order or direction declaring the action of the respondents, in not sending second sample bottle of toddy drawn in PRNo.280/97-98 dated 18-6-1998 of Prohibition and Excise Sub-Inspector, Karimnagar to an independent laboratory namely, State Food Laboratory, Nacharam and in suspending the licences of toddy shop Nos.1 to 5 in respect of T.C.S. Karimnagar Group No.III under Section 31(l)(b) of Andhra Pradesh Excise Act (for short, the Act), as illegal, void and contrary to law.
2. In the affidavit filed in support of the petition it is staled by the President of the Petitioner-Society that the first respondent granted licences bearing Nos.19, 20, 21, 22 and 23 dated 1-2-1997 for five shops for a period of five years i.e. upto 30-9-2001 for retail sale of toddy and separate ration has been allotted for each toddy shop and all the shops have been distributed among various groups of members, who are managing the same. It is positively asserted by the President that the society has been carrying on the business strictly in conformity with the provisions of law and bye-laws of the Society and it never came to adverse notice of the Excise authorities.
3. Whileso, there was an inspection in respect of toddy shop No.l bearing licence No.19 by the Prohibition and Excise Sub-Inspector, Karimnagar and samples of toddy were drawn in PRNo.280/97-98 dated 18-6-1998 and it is alleged that the test conducted on the spot did not disclose any incriminating material. However, the authorities have been alleging that the petitioner-Society is selling adulterated toddy. Since there is an apprehension that the licence may be suspended, an application was made on 30-7-1998 requesting the respondents to send the second sample bottle to an independent laboratory i.e. State Food Laboratory, Nacharam, Hyderabad. A Demand Draft for the requisite fee for getting the second sample tested and analysed by the independent laboratory is also enclosed to the application. When the respondents refused to consider the above application the petitioner is constrained to approach this Court. In the mean time, the respondents served a show-cause notice in Rc.No.2560/98/P&E/A7 dated 28-7-1998 to show cause as to why the licence of shop No.l be not cancelled under Section 31-B of the Act and in the same proceedings respondent No.1 also suspended the licence of shop Nos.2 to 5. Insofar as shop Nos.2 to 5 are concerned, it is asserted that no samples have been drawn from those shops and the impugned order has been passed without any notice and without providing any opportunity. Hence, this writ petition. The petitioner also filed WPMP No.26703 of 1998 seeking a direction to the respondents to send the second sample bottle to the independent laboratory namely State Food Laboratory, Nacharam, Hyderabad keeping in abeyance the proceedings in Rc.No.2560/ 98/P&E/A7 dated 28-7-1998 with a specific allegation that the first sample bottle said to have been sent to departmental laboratory is only a manipulation. This Court accordingly directed the second sample drawn in the impugned proceedings to an independent analyst if the petitioner had complied with the requirements of making an application and furnishing Demand Draft within the time etc.
4. The petitioner also filed WPMP No.27704 of 1998 seeking a direction to the Prohibition and Excise Superintendent, Karimnagar, to send the second sample forthwith to the State Food Laboratory, Nacharam and not to take any further action of cancellation of licence till the receipt of report from the independent agency. By Order dated 17-8-1998 this Court once again directed the respondents to send the second sample taken from shop No.1 to State Food Laboratory, Nacharam for report forthwith, and suspension of licence in respect of shop No.l from which samples were drawn alone would subsist and the cancellation of licence in respect of other shops is however, suspended. Thus, second sample bottle has been sent to an independent Laboratory namely State Food Laboratory, Nacharam, Hyderabad for analysis.
5. An additional affidavit has been filed by the President of the petitioner-Society. It is noteworthy that a representation dated 4-12-98 has been given to respondent No.l stating that the second sample report dated 4-11-98 is received from the State Food Laboratory, Nacharam, Hyderabad and as per that report the toddy is not adulterated either with Chloral Hydrate or Diazapam and since both the intoxicants are absent the petitioner-Society requested respondent No.l to revoke the suspension order dated 27-8-1998 and to drop all further proceedings pursuant to show-cause notice dated 27-8-1998. A copy of the representation is filed besides a copy of second sample report dated 4-11-1998.
6. Learned Counsel for the petitioner strenuously contended that the test conducted on the spot did not disclose any incriminating material whereas the sample said to have been sent to the departmental laboratory., showed that it contains Diazapam whereas the second sample bottle sent to independent laboratory pursuant to the orders of this Court in WPMP No.26703 of 1998 dated 5-8-i998 and in WPMP No.27704 of 1998 dated 17-8-1998 discloses that Diazapam is absent and Chloral Hydrate is also absent. It is further contended that in a similar case where a second sample analysis discloses that there was no Diazapam, the Commissioner of Prohibition and Excise dropped further proceedings in Cr.No.31894/ 94/E4 dated 31-5-1996 and hence the petitioner-Society is entitled for the same relief. A copy of the above proceedings is made available to this Court. He also filed another proceedings of Prohibition and Excise Superintendent, Ranga Reddy District in CR.No.C2/4905/98/Proc. dated 17-11-1998 which is also based on similar second analysis report. Thus, it is contended that the writ petition may be allowed and the action of the respondents in seeking to cancel the licence of the petitioner-Society may be declared as illegal, arbitrary and contrary to law.
7. Learned Government Pleader for Prohibition and Excise is also heard.
8. On a perusal of the second sample report dated 4-11-1998, I am satisfied that the second sample is free from either Diazapam or such other adulterant. It is not in dispute that the test conducted on the spot did not disclose that the toddy was adulterated with Diazapam, but it is strange that the first sample sent to departmental laboratory was found to contain Diazapam. It was in these circumstances that the petitioner approached this Court for a direction to send the second sample bottle to independent laboratory. As already narrated above this Court was satisfied for sending second sample bottle to an independent laboratory and accordingly the report dated 4-11-1998 has been received. Whenever there is a difference between the analysis report of the departmental agency and report of independent agency it is the second report that has to be accepted. The petitioner has made some allegations against the respondents, but it is not necessary to go into those allegations, since the matter has reached this stage. Suffice it to say that on the basis of the second sample analysis report of the independent agency there is every reason to believe that the sample drawn from shop No.1 in proceedings dated COR No.280/97-98 dated 18-6-1998 is not adulterated toddy. In that view of the matter, there is no reason for the authorities to proceed against the petitioner-Society with the threat of cancellation of licences. There is no other contravention alleged against the Society and hence this writ petition is merited.
9. In the resull, the writ petition is allowed and the relief sought for is granted and the show-cause notice dated 28-7-1998 in Rc. No.2560/98/P&E/A7 and the suspension order dated 28-7-1998 are quashed. There will be no order as to costs.