- (1.) K. C. Bhargava, J. The petitioner has filed this petition praying for quashing the order, dated 16-2-1993 passed by the Deputy Narcotics Commis sioner, Lucknow, opposite-party No. 1, contained in Annexure 11 to tbe writ petition and for a direction to. the opposite-parties to grant licence to the petitioner for the year 1992- 93 for cultivation of opium poppy.
(2.) THE facts, stated in brief, are that the petitioner is an old license for growing opium for the last 25 years and bis licence has been renewed from year to year. Lastly his licence was renewed for the year 1991-92. THE petitioner was also appointed and designated as Opium Lambardar Mukhiya under Rule 10 of the Narcotics Drugs and Psychotropic Substances Rules, 1985 (hereinafter referred to as the Rules ). THEreafter the petitioner applied for renewal of his licence for the year 1992-93 and the same was refused by order dated 3-11-1993, vide Annexure 4 to the writ petition, on the ground that his son has been arrested under the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act ). THEreafter, the petitioner moved an application to the Superintendent of Police, Barabanki to make enquiry into the matter that the son of the petitioner, Laiq Ahmad, was residing separately from his father and the petitioner has no concern with his son. THE Superintendent of Police, Barabanki vide his report, dated 20-11-1992 reported that the petitioner wag residing separately from his son for the last ten years and that their ration cards were also separate. THE petitioner preferred an appeal against refusal to renew his licence which was dismissed by order dated 1-12-1992, contained in Annexure 9 to the writ petition. THEreafter, the petitioner filed Writ Petition No. 17 (M/s) of 1992, Said Ahmad v. Deputy Narcotics Commissioner, Lucknow, which was allowed by this Court vide order dated 12-1-1993, contained in Annexure 10 to the writ petition, with a direction to the Deputy Narcotics Commissioner for determi nation of tbe appeal with specking order. On 16-2-1993 the appeal was dismissed by the Deputy Narcotics Commissioner on the ground that tbe petitioner has failed to prove separate economic interest from that of his son who was involved in an offence relating to narcotic drugs. It is alleged that this order is illegal because the NDPS Act does not provide that if any relation of the licensee has been arrested under the NDPS Act his licence will be refused. THE father and son are living separately from each other. THE son of the petitioner is neither living in the house of the petitioner nor has he got any common economic interest with the petitioner, on similar tacts in Writ Petition No. 2808 (M/s) of 1992, Hari Prasad v. District /regional Opium Officer, Barabanki, the opposite-parties were directed to gram licence. In that case the brother of the petitioner was arrested under the NDPS Act. Counter-affidavit has been filed on behalf of opposite-parti, s in which it is alleged that for grant of licence of a particular crop year a culti vator should satisfy the general conditions relating to grant of licence for that year as may be fixed by the Central Government under Rule 8 of the NDPS Rules, 1985. The renewal of the licence was refused to the petitioner to accordance with the provisions of law. The enquiry which was conducted by the local police is not binding on the Narcotics Department. The son of the petitioner, namely, Mohd. Atique, was arrested under the NOPS Act and the petitioner could not prove his separate economic entity and living from his son, Mohd. Atique, by means of any independent evidence, therefore, the petitioner was refused licence under the provisions of the NDPS Act and the Rules. In the appeal the evidence led by the parties was evaluated and considered. Learned Counsel for the petitioner as well as learned Counsel for the opposite-parties have been heard. The only question which requires determi nation in the present case is as to whether the licence for growing opium can be refused to a person whose relation has been charged with an offence under the NDPS Act. In the present case, it is admitted fact that the petitioner was an old licensee to grow opium crop aad that his son has been involved in case under the NDPS Act for smuggling narcotic substance. Learned Counsel for the petitioner has argued that as the economic interest and living of the petitioner is separate from his son, therefore, even if his son has been arrested in connection with certain offences under the NDPS Act the licence to the petitioner to grow opium crop cannot be refused. From the appellate order dated 16-2-1993 passed by the Deputy Narcotics Commissioner, Lucknow it will be clear that the petitioner has failed to prove on record by means of documentary evidence that he has separate economic interest from his son and that his son is doing separate business from his father. He has mentioned that merely living separately from his father will not go to show that they have separate economic interest. It was for the petitioner to prove before the authority concerned that he has got separate economic interest by filing docu ments which were available with the petitioner. It may be mentioned that para 108 (5) (ii) of the Opium Manual deels with the situation obtaining in the present case. It provides that where a relation of a cultivator has been prosecuted, the question, whether or not the cultivator himself should be licensed, would be decided by the Deputy/assistant Narcotics Commissioner on merits and that for deciding this matter the following factors should be considered i- (i) closeness of the relationship of the licensee with the person who has been prosecuted ; (ii) whether the two were residing together ; and (iii) whether they were in joint prosecution of the land. In the present case, it is an admitted fact that the case has been instituted against the son of the petitioner under the NDPS Act.
(3.) NOW the learned Counsel for the petitioner has argued that unless conviction is recorded against the son of the petitioner it cannot be said that he has been prosecuted under the NDPS Act. NOW we have to see as to what the word "prosecuted" as used in para 108 (5) (ii) of the Opium Manual, means. This matter came up for consideration before the Hon'ble Supreme Court in Thomas Dana v. State of Punjab, AIR 1959 SC 375, In para 11 of the judgment the Hon'ble Supreme Court held as under :- Prosecution" means a proceeding either by way of indictment or information in the criminal courts in order to put an offender upon his trial. " Thus, in view of the above said case-law it is clear that prosecution in the present case will start from the date when the first information report under the NDPS Act was filed against the petitioner's son. Therefore, as the petitioner's son is being prosecuted under the provisions of the NDPS Act it is a valid ground for refusal to grant licence to grow opium crop to the peti tioner under the provisions of para 108 (5) (ii) of the Opium Manual. There is a categorical finding of the Appellate Authority that both the father, that is the petitioner, Said Ahmad, and the son, Atique, have common economic interest although they may be living separately. Separate living does not mean that two persons cannot join in a business and canot have common econorric interest. It is also on the record that the son of the petitioner who is being prosecuted has no separate field of his own to grow opium crop. Therfore, in view of these facts it cannot be said that refusal to grant licence to the petitioner by the opposite-parlies to grow opium crop can, in any way, be called to be an arbitrary action. The Appellate Authority has taken into consideration all the relevant facts and the evidence on record of the case.;