TaxTMI 
TaxTMI 
2016 (4) TMI 1028
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....ample taken from one of the shops of the fifth respondent. Consequently, on 20.02.2013, the authorities registered a crime against the fifth respondent for offences under Sections 57(a) and 56(b) of the Abkari Act ('the Act' for brevity). As a natural corollary, the Excise Commissioner suspended the petitioner's licence through an order dated 17.03.2013. 5. Under those circumstances, the fifth respondent approached the Judicial First Class Magistrate and had the B-Sample sent for analysis. Eventually, on 19.03.2013, through Exhibit R5(e), the chemical analysis report of B- Sample was made available. The result was negative: it was in favour of the fifth respondent. 6. Armed with Exhibit R5(e), the chemical analysis report of B-Sample, the petitioner filed W.P.(C)No.8094/2013 challenging the Excise Commissioner's order of suspension- cum-show cause dated 17.03.2013. In fact, the fifth respondent obtained an interim stay on 22.03.2013 and continued his business. 7. Soon thereafter, based on the chemical analysis report dated 19.10.2012, obtained on a sample sent earlier, the Excise Department, however, on 04.04.2013 registered another crime, Crime No.23/2013 ....
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....n 05.03.2014, perhaps oblivious of the interim order, the authorities went ahead and declared that the petitioner was successful to have the privilege for the year 2014-2015. 14. This Court eventually disposed of W.P.(C)No. 6324/2014 through Exhibit P6 common judgment. Since there were other writ petitions involving the same issue of granting the privilege, the direction in Exhibit P6 judgment was to the Excise Commissioner to consider the rival claims of the incumbent licencees and the new allottees. 15. In compliance with Exhibit P6 judgment, the Excise Commissioner, having considered the issue, passed Exhibit P7 order upholding the claim of the fifth respondent that he was entitled to preference in terms of Rule 5(1) of the Kerala Abkari Shops Disposal Rules ('the Rules' for brevity). Thus, had the allotment in his favour. 16. Aggrieved, the petitioner filed W.P.(C) No. 13868/2014 and obtained Exhibit P8 order that the allotment in fifth respondent's favour shall not be confirmed. A perfect case of poetic justice. On earlier occasion, the fifth respondent obtained a stay against the confirmation in petitioner's favour; this time, it was the petitioner....
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....he fifth respondent to raise an objection contending that he was entitled to the privilege. 23. The learned counsel has also drawn my attention to the finding rendered by the Excise Commissioner in Exhibit P10. In that context, the learned counsel would urge that the entire order was blissfully silent about the rights of the petitioner; on the contrary, it only speaks about the alleged entitlement of the fifth respondent. 24. In elaboration of his submissions, the learned counsel has submitted that the provisional allotment is subject to the confirmation in terms of Rule 5(15) of the Rules. He contends that any disqualification or objection to having the allotment confirmed must be attributable to the lapses or latches on the petitioner's part. In this case, even in Exhibit P10, the Excise Commissioner, avers the learned counsel, has not found any shortcoming or any statutory violation or non-compliance by the petitioner. It is, therefore, axiomatic that the provisional allotment in favour of the petitioner ought to have been confirmed. 25. The learned counsel has summed up his submissions as follows: (1) that the fifth respondent had been indolent in obtaining any pre....
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....9. It is the specific contention of the learned counsel for the fifth respondent that only under those circumstances, as the rejection was just a couple of days prior to the date fixed for allotting the privilege, did the fifth respondent rush to the Court and seek its intervention. 30. The learned counsel has laid a heavy stress on twin aspects: First, in the light of the B-Sample reports, it ought to be concluded that the crime has not been validly registered. In support of his submissions, the learned counsel has placed reliance on Exhibit R5(a) judgment rendered by a learned Division Bench of this Court. Second, he has urged that since the B-Samples were conclusive, they even resulted in the fifth respondent's discharge from both the crimes. 31. According to the learned counsel, the authorities have been left with no other alternative than taking note of the B-Sample reports and hold that the fifth respondent has not violated any of the statutory provisions. As a consequence, without much ado, contends the learned counsel, the privilege statutorily recognised in fifth respondent's favour automatically springs into action. In support of his submissions, the learned....
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....ot contain any valid reasons why the petitioner is not entitled to confirmation, apart from rendering a finding that the fifth respondent is entitled to privilege. 38. Concerning Exhibit R5(a) judgment, the learned counsel would contend that in that case, the entire judgment turned upon the fact that the very Excise Commissioner had expressed doubt about the manner of registering the crime. According to the learned counsel, no such situation prevails in the present instance as the registration of crime against the fifth respondent had not been doubted. As regards Exhibit R5(c) judgment, the learned counsel would contend that it was rendered at an interlocutory stage. On these grounds, the learned counsel has urged this Court to allow the writ petition. Issues: I. What is the true scope and intend of Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002? II. Whether discharge of the licencee from the crime for the alleged offences under the provisions other than Section 56 of the Act entails him to the preference even after the conclusion of the proceedings concerning granting the privilege? III. Whether the provisional licenceee who has been extended the privi....
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....ach the stigma of disqualification to the incumbent licencee, a crime ought to have been validly registered. 43. The issue, thus, turns upon the expression "validly registered". Indeed, the learned counsel for the petitioner has submitted that ex facie the crime has been registered for the offences under the provisions other than Section 56 of the Act. And it is also his contention that the Commissioner of Excise is not a competent authority to adjudicate an issue; namely, whether the crime has been registered validly. It is, on the contrary, within the competence of a competent criminal court. In other words, any collateral adjudication by any forum other than the jurisdictional Magistrate, before whom the crime is pending, that the crime has not been validly registered renders the issue fait accompli and the criminal trial a mere mockery, or rather otiose. 44. In the light of the above rival claims, it is apposite for us to examine Section 57(a) of the Act. The said provision to the extent relevant reads as follows: "57. For adulteration, etc., by licensed vendor or manufacturer.- Whoever being the holder of a licence for the sale or manufacture of liquor or of any intox....
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....r the rival claims of the petitioner--a new allottee--and the fifth respondent, the incumbent licencee. 49. As is evident from the record, when the Excise Commissioner passed Exhibit P7 order upholding the fifth respondent's claim that he was entitled to preference, the said order was once again called into question by the petitioner. And it resulted in another direction from this Court to the Excise Commissioner to re-consider the issue afresh. Eventually, in Exhibit P10 order the Commissioner has reiterated his earlier findings. 50. Viewed narrowly, it can be held that Rule 5(1)(a) contemplates registration of a crime to be a pre-condition to disentitle an existing licencee to the privilege of renewal. However, the crime thus registered ought to be under any other provision than Section 56 of the Act. Indeed, crime was registered for the alleged offences under not only Section 56 but also Section 57. The pre-condition provided in Rule 5(1)(a), therefore, has come to be fulfilled. At any rate, does a mere registration of a crime suffice? 51. The B-Sample reports have turned out to be negative. And on the strength of those reports, the fifth respondent has come out cle....
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.... R5(a) and R5(c) do not have any precedential value because they were rendered in interlocutory mattes. 56. Appealing as the submission made by the learned counsel for the petitioner may be, there cannot be, to me, any invariable principle that any adjudication vis-a-vis an interlocutory order and thereby any ratio laid down in relation thereto has to be completely ignored. There is no gainsaying the fact that an interlocutory order is an order that does not finally determine the rights, duties, and obligations of the parties to a proceeding. 57. In Vishnu Traders v. State of Haryana 1995 Supp (1) SCC 461, the Apex Court has held that in the matters of interlocutory orders, the principle of binding precedent cannot be said to apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment require that all similar matters should receive similar treatment except where factual differences require a different treatment; so that there is assurance of consistency, uniformity, predictability, and certainty of judicial approach. ....
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....e. In the present instance, the fifth respondent, I believe, stands on a better footing. It is not a case of any pending criminal proceedings in the face of a negative second sample report; on the contrary, it is the case of a clean discharge. Validly Registered Crime: 64. Coming back to the issue of registering a crime validly, I may have to tread carefully for any sweeping observation in this regard may have far-reaching consequences, especially if the crimes are still pending adjudication before competent criminal courts. As has been rightly contended by the learned counsel for the petitioner, any declaration of law collaterally should not defeat the rights of the parties in principal proceedings. 65. Thus, applying in a narrow compass the ratio that crime ought to have been registered validly, I may observe that if the previous licencee obtains an acquittal or a discharge subsequent to the confirmation of the privilege in favour of a new licencee, it may not affect the new licencee's right to continue with the licence. 66. Following the last limb of Rule 5(1)(a), I may further observe that exoneration of the previous licencee may enure to his benefit in the followi....