THAKKO CHOUDHARY Vs. THE STATE OF BIHAR AND 3 ORS.

JUDGEMENT

(1.) The petitioner has obtained a rule from this Court under Articles 226 and 227 of the Constitution of India against the respondents to show cause why the order of suspension of his licence of Kaidrabad country spirit shop standing in his name, made by the Collector on 1st September, 1967 (Annexure 'A') as affirmed in appeal by the Commissioner of Excise on 7th. October, 1967, (Annexure 'B') as also in revision by the order of the Member, Board of Revenue dated 8th January, 1968 (Annexure 'C') be not called up and quashed by grant of an appropriate writ. It appears that due to the alleged recovery of twenty drums of spirit of very high strength from certain premises appertaining to that of the petitioner's shop, his licence has been suspended by the Collector by his order dated 1st September, 1967. When the petitioner went up in appeal before the Commissioner of Excise he took three points before him (i) that the appellant should have been asked to show cause against the proposed suspension by the Collector, (ii) that the place of recovery has not been fixed on the licence, and, (iii) that since prosecution has been launched under Sec. 47(a) of the Excise Act, action under Sec. 42 of the Act should have been taken only after the disposal of the criminal case. The learned Commissioner has rejected the first point thinking that the order of suspension of the licence of the petitioner has been by way of interim measure and opportunity will have to be given to him to present his case when cancellation proceedings are started after due investigation. On the second point he does not seem to have recorded a definite finding but has expressed an opinion against the petitioner and on the third point his view is that suspension order can be made during the pendency of the prosecution case under Sec. 47 of the Bihar & Orissa Excise Act, 1915 (hereinafter called the 'Act'). The learned Member, Board of Revenue, seems to have rejected all the points argued before him on behalf of the petitioner and held that the petitioner had a fair opportunity of having his say before his licence was suspended and the Collector had the power to suspend his licence. No clear finding seems to have been recorded by him in support of the order of suspension.

(2.) On behalf of the petitioner his learned counsel has submitted on the basis of a Bench decision of this Court in (1) Ramnath Prasad V. The Collector of Darbhanga and others ( : A.I.R. 1955 Pat 345) that no order of suspension of the petitioner's licence could be made without giving him an opportunity of showing cause in the matter and that the Collector had no power to suspend. Learned counsel developed the second point with reference to Clause (d) of Sub -section (1) of Sec. 42 of the Act that before conviction the licence could not be suspended. Subsection (i) of Sec. 42 says - -