ORDER
N.K. Patil, J.
1. The petitioner is assailing the legality and the validity of the impugned orders vide Annexure-D passed by the 3rd respondent dated 14-6-2002 in No. DTCR 468 of 2001-02, Annexure-E passed by the 1st respondent dated 7-9-2002 in No. ECS 27 APP 2002 and Annexure-F, dated 20-12-2002 in No. 662 of 2002 passed by the Karnataka Appellate Tribunal.
2. The petitioner is the CL-2 licensee and was engaged in the business of carrying on the business of retail sale of liquor at Karenahally Village of Hassan District. She was granted with the licence for the excise year 2001-2002. On 31-1-2002, the Sub-Inspector of Excise, Hassan Range, Hassan, gave a surprise visit to the petitioner's premises and found that the servants of the petitioner were manufacturing the illicit liquor and that even though there was no permit obtained for importing of the liquor, the Raja Whisky of 180 ml was found with the manufacturing date as 21-1-2002 and thereby 10,800 litres of liquor was locked in the premises which was non-duty paid and that at the time of inspection, the account books, permits and invoices were not produced by the petitioner. After registering a case, the Sub-Inspector of Excise drew a mahazar and seized the entire stock. Thereafter, he referred the same to the 2nd respondent. In pursuance of the report submitted by the Sub-Inspector of Excise, the 2nd respondent initiated proceedings under Section 29(b) of the Karnataka Excise Act and issued show-cause notice dated 6-5-2002 to the petitioner questioning as to why the licence granted to her should not be cancelled. The petitioner filed her objections on 24-5-2002. The 3rd respondent, on 14-6-2002, after considering the objections filed by the petitioner and after verifying the other material available on record viz., FIR, Mahazar etc., has passed an order cancelling the licence granted in favour of the petitioner with immediate effect. Assailing the said order, the petitioner filed an appeal before the Commissioner of Excise in Appeal No. ECS 27 APP 2002. The Commissioner of Excise, after considering the oral and documentary evidence on record, on 7-9-2002, dismissed the appeal confirming the order passed by the 3rd respondent. Feeling aggrieved by the said order, the petitioner filed an appeal before the Karnataka Appellate Tribunal in Appeal No. 662 of 2002. The Karnataka Appellate Tribunal, after hearing both the parties, after considering the material on record and after thorough verification of the original records, dismissed the appeal confirming the orders passed by respondents 1 and 3. Feeling aggrieved by the orders passed by the respondents, the petitioner has presented this writ petition.
3. The principal submission canvassed by the learned Counsel for the petitioner is that, the proceedings initiated by the respondents is contrary to the material on record and that unless the allegations made against the petitioner is proved, the provision of Section 29 cannot be invoked by the respondents. Further, he vehemently contended that the respondents have not initiated appropriate proceedings against the petitioner and that the petitioner was ready to compound the offence and pay penalty as required under Section 45 of the Act. Instead of considering the said submission/request, the authorities have proceeded to cancel the licence granted in her favour and initiated proceedings under Section 29 of the Act. Further, he pointed out that the alleged manufacturing of liquor by the servants of the petitioner was in a premises which is neither the part of the licensed premises nor the licensed premises and therefore the alleged manufacture of duplicate liquor cannot be fastened to the petitioner unless and until the same has been proved before the Competent Court. He also submitted that in the chemical report referred to by respondent 1 in the course of his order on the basis of the records of respondents 2 and 3, it is very clear that the chemical report supports the case of the petitioner that there was no illicit liquor manufactured in the licensed premises of the petitioner. Further, he pointed out that there was no search warrant obtained by the Inspector of Excise before entering the premises of the petitioner and therefore, the proceedings initiated by him is vitiated. The respondents, without appreciating these material facts, have passed the impugned orders and therefore the same are liable to be set aside.
4. Per contra, the learned Government Pleader appearing for the respondents, inter alia, contended and justified the impugned orders. He submitted that the petitioner herself has given a statement in writing in unequivocal terms that her servants have committed a mistake and behaved irresponsibly and for that mistake, she is ready and willing to pay the penalty and the value of the seized commodity. In view of the admission made by her, the respondents proceeded to pass the impugned orders strictly as envisaged under Section 29 of the Karnataka Excise Act, after affording sufficient opportunity to the petitioner. Further, he submitted that in view of the concurrent finding recorded by all the three authorities, this Court cannot interfere with the impugned orders under Article 226 of the Constitution of India and hence the writ petition is liable to be dismissed.
5. I have heard the learned Counsels for the petitioner and the learned Government Pleader appearing for the respondents at considerable length of time and re-evaluated the entire material available on the file with the assistance of the learned Counsels appearing for the parties.
6. On 31-1-2002, the Sub-Inspector of Excise visited the premises of the petitioner and found that the servants of the petitioner were manufacturing the illicit liquor and that even though there was no permit obtained for importing of the liquor, the Raja Whisky of 180 ml was found with the manufacturing date as 21-1-2002 and thereby 10,800 litres of liquor was locked in the premises which was non-duty paid and that at the time of inspection, the account books, permits and invoices were not produced by the petitioner. After registering a case, the Sub-Inspector of Excise drew a mahazar and seized the entire stock. Thereafter, he referred the same to the Competent Authority. The Competent Authority has initiated proceedings under Section 29(b) of the Act, which reads as under:
'29, Power to cancel or suspend licence etc.--(1) Subject to such restrictions as the State Government may prescribe, the authority granting any licence or permit under this Act may cancel or suspend it.-
xxx xxx xxx (b) in the event of any breach by the holder thereof, or by any of his servants or by any one acting on his behalf with his express or implied permission, of any of the terms and conditions thereof.
Thereafter, show-cause notice was issued to the petitioner. The petitioner filed objections and requested that proceedings may be dropped. Further, she has stated that she has not committed any illegality or violated the terms and conditions of the licence granted to her and that her vendor has committed the said mistake in a room which is 50 mtrs. away from the licensed premises and she is no way concerned with the same. The said stand taken by her before the authorities in writing in pursuance of the show-cause notice is contrary to her own admission made on 12-2-2002 which is as under:
In the said letter, she has admitted unequivocally that she is ready and willing to pay penalty and the value of the seized commodity and the said order be revoked and permission be given to her to continue the business. The said statement is contrary to the stand taken by her in the objections. Further, the learned Counsel for the petitioner has taken a specific ground in the writ petition that the chemical report submitted by the experts is in favour of the petitioner. The said ground is contrary to the report dated 4-4-2002 which is found in the order of the Deputy Commissioner at page 20. It reads as follows:
7. It further reveals from the specific finding given by the Commissioner of Excise that it is a fact that the duplicate liquor and the non-duty paid liquor were found in the storeroom belonging to the CL-2 licensed premises. Therefore, to make a distinction that the same was few metres away from the licensed premises does not hold much water. Further, he has given a specific finding that whether to compound the offence or cancel the licence is the subjective satisfaction of the Deputy Commissioner who is the licensing authority and this authority cannot interfere in the same and after perusing the provisions of Section 29(b) of the Karnataka Excise Act, he has passed a well-considered order dismissing the appeal filed by the petitioner. The Karnataka Appellate Tribunal also dismissed the appeal holding that as per Section 29, it is very much evident that if any of the servants who is acting on behalf of the licensee either with his express or implied permission, then also the licence is liable to be cancelled or suspended. Therefore, it cannot be held that the servants are responsible for the crime and not the licensee. Section 29(b) of the Karnataka Excise Act gives sufficient powers to the licensing authority to cancel the licence for breach of licence condition.When once the Competent Authorities have recorded a concurrent finding of fact, this Court cannot exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. At one stage, the petitioner herself has admitted in unequivocal terms in writing that her servant has committed a mistake and she is ready to pay the penalty and the value of the commodity seized. Thereafter, she changed her version in the objections filed to the show-cause notice. In my opinion, such a stand should not be entertained. Further, in view of the well-settled law of the Apex Court and the High Court in similar circumstances, the petition is liable to be dismissed.
8. Having regard to the facts and circumstances of the case as stated above, I do not find any error of law or material irregularity in the impugned orders nor the petitioner has made out any prima facie case to interfere with the same. Accordingly, writ petition is dismissed.
9. The learned Government Pleader is permitted to file his memo of appearance within four weeks from today.