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TMI Blog2017 (8) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus be difficult to conclude with absolute certainty as to whether the request was bona fide or a ruse to delay the proceedings. We are nevertheless of the view that some time should have been granted if the request for adjournment had been made. It was the first request and granting some time even of a few days would not have affected the proceedings. Declining the request on the first date itself would not be in consonance with the principles of natural justice. This is more so when the maximum penalty of ₹ 500/- per bottle has been imposed upon the petitioners. The oral statements of the driver and others and various documents are being relied upon by the authorities without any reply thereto which has certainly prejudiced the petitioners. The case is remanded to the Collector to decide afresh within three months after granting opportunity to petitioners to file reply - appeal allowed by way of remand. - CWP No. 821 of 2017 (O&M) - - - Dated:- 9-8-2017 - MR. S.J. VAZIFDAR AND MR. ANUPINDER SINGH GREWAL, JJ. For The Petitioners : Sandeep Goyal, Advocate ORDER Anupinder Singh Grewal, J. The petitioners have sought quashing of order dated 26. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the statement of the driver. Upon inspection, the IMFL of following description and quantity was recovered. Brand No. of cases Besto Whisky Besto Dry gin (Nips) 553 For sale in Arunachal Pradesh Episode Whisky (Quarts) 9 McDowell Whisky (Quarts) 3 Imperial Blue (Quarts) 2 Officers Choice Blue (Pints) 1 Brand No. of cases Officers Choice Blue (Nips) 2 4. Based on the statement of the driver, a show cause notice under Rule 6 of the Haryana Imposition and Recovery of Penalty Rules, 2003 (hereinafter referred to as the Rules of 2003) read with section 61(aaa) of Punjab Excise Act, 1914 (hereinafter referred to as the Act of 1914) (Annexure P-1) for penalty was issued and served upon the petitioners on 19.09.2014 asking them to appear before the Collector on 26.09.2014. The respondents-authorities also traced the ownership of the truck to Umed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een given adequate opportunity and 7 days' notice was furnished to them in terms of Rule 5 of the Rules of 2003 and in case further time had been granted to the petitioners it could have resulted in destruction of evidence. 7. It would be necessary to set out Sections 61(1), 61(1)(a), (aa), (aaa), (c) and (i) of the Act of 1914 as applicable to the State of Haryana:- Section 61 for Haryana ( 1) Whoever, in contravention of any section of this Act or any rule, notification issued or given there under or order made, or of any licence permit or pass granted under this Act. [( a) manufactures or collects any intoxicant; or ( aa) imports, exports, transports or possesses any intoxicant other than liquor; or [( aaa) imports, exports, transport or possesses any liquor; or] ( b) xxx xxx xxx xxx xxx xxx xxx xxx ( c) uses, keeps or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari, (i) shall, for offences covered by clause (aaa), be liable to payment of penalty of not less than fifty rupees and not more than five hundred rupees per bott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulates that import, export, transport or possession of liquor in contravention of the Act, rules or licence would invite penalty of not less than ₹ 50 and not more than ₹ 500 per bottle of 750 mili litres or part thereof. Thus minimum penalty of ₹ 50 per bottle can be imposed for minor violation while in cases of grave or serious nature the penalty upto ₹ 500 per bottle can be levied. 10. Rule 5 of the Rules of 2003 provides that the Collector after reference to him shall issue notice to the alleged offender to attend the proceedings not later than 7 days either in person or through an authorised agent to produce evidence in his support. The notice of not less than 7 days in effect provides an outer limit of 7 days in order to expedite the proceedings. One of the objects could be that the evidence should not be destroyed or manufactured by the offender. It is, however, important to note that excise authorities cannot be helpless in case some more time is granted to the alleged offender to produce his defence as nothing stops them from raiding any premises or apprehending any suspects in the meantime. If the time sought for producing defence is utilis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than 7 days is directory and in appropriate cases more time could be granted by the Collector in furtherance of the principles of natural justice. 13. In the case of it has been held by the Supreme Court that fair hearing is one of the pre-requisites of natural justice and there may be situations where the absence of hearing would not have caused any prejudice to the person against whom action is taken. The validity of such orders has to be tested by the Court on the touchstone of prejudice. It is not for the authority to dispense with opportunity of hearing to the affected party by holding it would make no difference or no prejudice shall be caused to it. It is only for the Court to consider as to whether any purpose would be served in remanding case keeping in mind whether any prejudice is caused to the person against whom the action is taken. 14. We now proceed to refer to case put up by the petitioners before the appellate authority and response thereto by the respondents only for the purpose of determining whether it was necessary for the Collector to consider the reply before imposition of penalty and whether in the absence of opportunity to file reply prejudice ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sproportionate to the approved manufacturing capacity, case for unauthorised removal of liquor would not be made out. The periodic inspection was carried out by the Excise officials and they did not observe any irregularity in the functioning of the distillery. It was further stated that the penalty under Sections 61(aaa) of the Act of 1914 read with Rules 5 and 6 of the Rules of 2003 can be imposed upon a person, who is in possession of any liquor or causing movement of any intoxicants without a valid licence. The petitioners were not found to be in possession of any alleged illicit liquor at the time of checking. The petitioners had also taken several other grounds including that the alleged brands are not related to their distillery and that others had manufactured them illegally at unauthorised places without any knowledge of the petitioners. The department has not provided any sample of the confiscated bottles or liquor and imposed the penalty without opportunity of hearing and it has solely relied upon the statements of the truck driver and cleaner, who are not in employment of the petitioners nor is the truck registered in the name of the petitioners. It is also stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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