- (1.) THIS revision is directed against the order of the Commissioner, Excise and Taxation, Rajasthan, Udaipur dated 26.9.60 whereby he modified the order of the Asstt. Commissioner, Excise and Taxation dated 11.2.60. The circumstances which have given rise to this revision in brief are that the Excise Inspector Sirohi in the presence of the Assistant Commissioner, Excise, raided Shop No. 1 of the applicant Shri Dalchand of Udaipur at Sirohi on 18.7.60. The following incriminating articles were recovered in the presence of one Shri Bansilal who was admittedly the agent of the applicant working at that shop: - 1. Adulterated country liquor in bottles. 2. 393 one lb. sealed bottle of belladonna. 3. Hydrometer for testing the strength of alcohol. 4. Rubber seal used for sealing cork, lables. 5. Instrument for re-tightening crown cork. 6. A tense containing nearly 10 bottles of adulterated liquor. A recovery memo was prepared and statements of a number of witnesses including One Shri Banshilal an employee of the applicant was recorded then and there. The applicant was served with a notice on 28th July, 1960, to show cause why his licence should not be cancelled, and the advance deposited by him or part of it be not forfeited from the breach of the conditions No. 5, 6, 15 and 19 of his license issued under the Rajasthan Excise Act. Originally three days time was given to the applicant but this was extended upto 10 days on his request. The Assistant Excise Commissioner after considering explanation of the applicant cancelled the licence and also ordered that Rs. 2000/- be forfeited from the advance money deposited by him. An appeal was filed against this order before the Excise Commissioner, who held that it could not be denied that the bottles and the articles were found in the licensee's store room and the licensee was responsible for them but due to certain extenuating circumstances, (which we shall discuss later) the severest punishment to the license which is cancellation of his contract was not justified though such practices in whatever form and by whatever means have to be discouraged. On the basis of this reasoning the learned Commissioner set aside the order of the Assistant Commissioner only with regard to the cancellation of the license of the applicant, the other punishments proposed by the Assistant Commissioner were upheld. It is against this order that a revision has been filed under sec. 9(1) of the Rajasthan Excise Act in this court.
(2.) WE have heard the counsel for the parties and have examined the record. The main points urged before us by the learned counsel for the applicant were - (1) that the fact that the Assistant Commissioner, Sirohi raided the shop and he also decided the case flouted the principle of natural justice; (ii) that the applicant was not given any opportunity to examine the defence witnesses or to cross-examine witnesses on behalf of the Excise Deptt. in fact there was no trial at all and the applicant has been condemned unheard; (iii) the story itself explains that the articles were placed by some one else, and when the Commissioner reached at the conclusion that there was a possibility of implanting these articles he should have set aside the order of the Assistant in toto; (iv) that belladonna and most of the other articles found are not 'excisable articles; (v) that the applicant could not be held liable for an accidental act of omission by his servant (vi) that for a breach of conditions Nos.5, 6, 15 19 and 24 of the license, it was necessary that a continued cause of contravention be established. WE shall examine these contentions in the reverse order. It appears to us that the recovery of these articles will indicate breach of conditions No. 6 and 19 only though in the notice issued to the applicant breach of condition of license 5, 6, 15, 19 and 24 has been mentioned. It is nobody's case that the applicant brought excise liquor bottle from the other license holder or that he was selling excise liquor not in sealed bottles but in open bottles. Clause 6 says that the license holder shall not open for sale any other excise articles except the liquor of the strength approved by the Excise Department. He shall not change its composition or adulterate it in any way. Clause 19 provides inter alia that the licensing authority shall be competent to cancel the license if he is satisfied that the license holder was running his shop so carelessly as to result in a loss to Government revenues, or he surreptitiously keeps or sells illicit liquor, opium or other excisable articles. The contention of the learned counsel for the applicant that for breach of conditions Nos. 6 and 19 a continuous contravention should be established is in our opinion untenable. The plain reading of both the clauses indicates that if a license holder is found in possession of any liquor other than that approved by the Excise Department he contravenes the condition No. 6 of the license. On the other hand we think that in the absence of the proof to the contrary the recovery of illicit liquor in a large quantity would raise a presumption that the license holder habitually sells the excise liquor. There is nothing in the plain reading of clause 5 or 12 to indicate that continuous possession of incriminating excise articles must be proved for the breach of conditions. The second contention of the learned counsel for the applicant is that he could not be held liable for an accidental act of omission by a servant. In the first place, it cannot be said on the facts of the case, that this recovery of so many incriminating articles was only an accidental act of omission by a servant. The responsibility of the license holder for the act of his servant is clearly laid down in condition 24 of the license. Under this condition any breach of any conditions of the license by a servant or an agent would make it competent for a licensing authority to cancel the license, forfeit the advance deposit and re-auction the shop. Sec. 6 of the Excise Act further makes it clear that where any excisable article is in the possession of a servant on account of any person, it shall for the purpose of the Excise Act be deemed to be in possession of that person. It is, therefore, clear that under the Excise Act recovery of incriminating excisable articles while the servant was in charge of the shop and while the license holder was absent would definitely render the license holder responsible for it. So far as the contention regarding belladonna was concerned, it was conceded by the learned counsel for the opposite party that he would not press against it. We therefore, need not discuss whether the belladonna bottles were excisable articles or not. We may, however, remark in passing that in such cases it is necessary for the Excise Department to have the contents of such bottles chemically analysed independently so that under the cover of false lables they may not contain prohibited excisable articles, or the person found in possession of them may not suffer prosecution or departmental proceedings unnecessarily. The contention of the learned counsel for the applicant that when the Commissioner reached the conclusion that there was a possibility of 'framing up' behind the back of the applicant in order to injure him, he should have dismissed the case in full, is also without any force. We have carefully gone through the judgment of the learned Commissioner and we must say that the phraseology used therein is not as clear or happy as it should be. But it does not warrant the conclusion that the commissioner at any stage held that there was a possibility of any 'framing up' behind the back of the applicant in order to injure him. It appears to us that the learned Commissioner was finding reasons for toning down the punishment awarded by the Asstt. Commissioner The reasons given by him were: that stock was lying unopened and nothing was used, that there was no other case against the licensee all this period, that the sales during his time had gone much above last year, that the servant was working and the licensee was not there, may be the servant mixed up with some interested parties and landed the master in trouble. These reasons do not indicate at all that the Commissioner ever found that the incriminating articles had been implanted in anyway. All he meant to say was that even if there were a possibility of the servant mixing up with interested parties and landing the master in trouble, the license holder was still responsible. As the incriminating articles were found from his shop he could not avoid his responsibility under cl. 24 of the condition of the license though, in the opinion of the Commissioner, this deserved a lenient view. The main contention which was argued at length before us was that in this case no proper trial took place and the basic principle of natural justice have been flouted. The applicant it was alleged, was not allowed to confront any witness nor was he allowed to produce any defence. As this contention raised an important point of law we would like to examine it in a little detail. It is evident that the Rajasthan Excise Act, 1950 does not lay down any procedure in respect of cancellation of excise license on breach of any of its conditions nor such a procedure is prescribed under any other law for the time being in forre. The learned Assistant Commissioner as we have stated above, examined a number of witnesses and asked the license holder to show cause why the proposed punishment should not be awarded to him and considered his explanation in detail itemwise. It, therefore, cannot be said that any procedure laid down in the Excise Act, was violated. The only question for consideration before us is whether in the present case any principle of natural justice has been violated, and how far such a principle will be applicable in the case of proceedings, such as the ones present before us. The learned counsel for the applicant referred us to some observations of the Supreme Court in 1958 A.I.R.S.C. page 406 which we may quote. Though the Act and the rules do not, in express terms, require reasoned orders to be recorded, yet, in the context of the subject matter of the rules, it becomes necessary for the several authorities to pass what are called 'speaking orders' Where there is a right vested in an authority created by statute, be it administrative or quasijudicial, to hear appeals and revisions, it becomes its duty to hear judicially that is to say, in an objective manner, impartially and after giving reasonable opportunity to the parties concerned in the dispute, to place their respective cases before it." We have all respect for these observations though we may state that they were made in a case of an appeal and revision by an administrative or quasi judicial body. There is however, no doubt in our mind that when an administrative body has to take any proceedings which affect the property and rights of the individual it must act judicially by which is meant that it must preserve a judicial tamper and perform its duties conscientiously with a proper feeling of responsibility. It must deal with the question referred to it without bias, and it must give to each of the parties the opportunity of adequately presenting its case. It, however, does not follow that such an administrative body is bound to abide by the procedure which is prescribed for a court of law under any statute. A similar question came up before the Patna High Court in Ramnath Vs. Collector, Darbhanga, 1955 Patna 345. The facts of that case were more or less similar to the facts of the present case. The point urged before their Lordships of the Patna High Court was that there had been no trial and the principal of natural justice had been flouted in as much as the petitioner had not been given an opportunity to cross-examine the witnesses. His Lordship Ramaswami J. delivering the judgment of the Court observed 'the principle is clearly enunciated by Lord Selborne in Spackman Vs. Plumstead District Board of Work', (1885) 10 AC 229 at p. 240(A): No doubt, in the absence of special provision as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case' and their view. Thus where no procedure is prescribed an authority acting under a statute must comply with the substantial requirements of natural justice and need not worry about its form. The party being proceeded against should only get a fair opportunity of prsenting its case. What would be a fair opportunity would have to be determined having regard to the particular facts of the case. No general test can govern all conditions. The question therefore boils down to whether a fair opportunity of presenting his case has been given stated above an enquiry to the applicant with reference to the facts in the present case. As was held by the Asstt. Commissioner, Excise in which he had examined a number of witnesses in the presence of the employee of the applicant. After that enquiry the Assistant Commissioner asked the applicant to show cause why the license should not be cancelled. It was at this stage upto the applicant to ask for the examination of his defence witnesses or to ask for the cross-examination of the witnesses produced and examined by the Asstt. Commissioner, Excise. It appears to us that he made no such request. The entire trend of his explanation shows that his employee Banshilal had rigid instructions to act in accordance with the terms and conditions of the licence, that as a result of which sales have increased, that incriminating articles found explained how jealous others were of the efficient working of his shop. In the end he prayed that the notice may be vacated and the shop be restored to him even pending enquiry and that he was prepared to compromise if ultimately any default was found against him. At the bar our attention was drawn to his application to the (Excise Commissioner in para 6 whereof he has stated that license had been suspended and the shop had been taken over, behind his back without affording him any opportunity for defence. It obviously referred to the order of suspension and the complaint was to the Excise Commissioner. The applicant made no request to Assistant Commissioner to allow him to produce any defence witnesses or to cross-examine any of the witnesses produced before the Excise Commissioner in these proceedings. He cannot now take up this question in revision that no opportunity was given to him for the purpose. As a matter of fact node was asked for. If he had asked for such an opportunity and if it had been refused it would have been a different matter. The Asstt. Commissioner could not anticipate that the applicant wanted to produce any defence or cross-examine any witness. As it is, his contention that no fair opportunity was given to him is without substance. It was also urged before us that the learned Assistant Excise Commissioner could not have conducted these proceedings because he was also a witness to the recovery and therefore he was prejudiced in the conduct of these proceedings. As we have stated above the Assistant Commissioner was not a court of law and this fact should not be lost sight of. Under the Excise Act he is the licensing authority and he could also organise any raid on an excise shop. As only a licensing authority is competent to cancel a license, the Assistant Commissiner therefore, had to take these proceedings himself. There is, however, no warrant for the proposition that because he had a dual capacity he was prejudiced in the conduct of these proceedings. There are a number of officers exercising their powers both administratively and judicially. It would be too farfetched a conclusion that there was a real or a reasonable apprehension of bias in all these cases. There must be a real likelihoodof bias and not a mere suspicion or even a possibility. The Assistant Commissioner did witness the recovery bat the recovery is not contested. We therefore, do not think that the proceedings were in any way vitiated on this ground. In view of reasons given above we are of the opinion that this revision has no force and is therefore rejected.;