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Judgment
P. Jyothimani, J.—The contempt complained of is in respect of the order dated 18.8.2010 passed in W.P. No. 11239 of 2010.
2.1. The said writ petition (W.P. No. 11239 of 2010), which has been filed by Vasantha Meena Enterprises, which is a proprietary concern
represented by its Proprietrix, was taken for disposal along with another writ petition in W.P. No. 11240 of 2010 filed by Meena Health Care (P)
Limited, which is a company registered under the Companies Act, represented by its Managing Director, V. Meenakshisundaram, who is the
husband of N.M. Sathammai. The said writ petitions were filed challenging the orders of the second Respondent, viz., the Assistant Director of
Drugs Control, Zone-III, directing to appear for an enquiry and for a direction against the second Respondent to grant sufficient time to answer the
show cause notice dated 20.3.2010.
2.2. According to the Petitioner, her family, including her husband, who is the Manager of the Petitioner/proprietary concern, has been doing the
business in medicine and drugs after obtaining permission, licence, etc. in the name of Vasantha Enterprises, Vasanthameena Enterprises and
Meena Health Care Private Limited. The licence has been granted by the authorities under the Drugs and Cosmetics Act, 1940 (for brevity, ""the
Act"") and the Drugs and Cosmetics Rules, 1945 (for brevity, ""the Rules"") framed thereunder.
2.3. It is stated that based on a complaint given by the Drugs Inspector, Perambur Range against her husband, he surrendered before the police
authorities on 23.3.2010 and was taken into custody as a detenu under Act 14 of 1982. It is based on the complaint lodged by the Drugs
Inspector, Perambur Range against the Petitioner''s husband, it is stated that the Petitioner''s business premises was also sealed by the third
Respondent herein, who was the fourth Respondent in the writ petition. It was against the same, the Petitioner has filed W.P. No. 7986 of 2010.
2.4. In the meantime, the second Respondent/licensing authority, through the Drugs Inspector (G. Ammukutty) has issued a show cause notice and
the said show cause notice is stated to have been attempted to be served on the premises which has been sealed by the third Respondent and in
spite of the authorization given by the husband of the Petitioner to her advocate, Mr. S. Sudalaikani to obtain the copy of the show cause notice,
the second Respondent has not issued the same and therefore, the Petitioner''s husband has filed W.P. No. 9162 of 2010 and when the writ
petition was moved for admission, an officer from the first Respondent''s office appeared and on a direction from this Court, the copy of the show
cause notice was handed over to the counsel and there was a direction in the writ petition to reply to the show cause notice by 21.5.2010.
2.5. In the meantime, certain interim common orders were passed on 30.4.2010 in W.P. No. 7986 of 2010 along with another writ petition filed
by her husband in W.P. No. 7985 of 2010 in respect of locking of the premises, taking of inventory and filing of report, with a specific direction to
keep the premises open in the presence of the representatives of the Petitioners for taking inventory/list of articles available in the premises. A
further direction was given permitting the Petitioners to operate the bank accounts and they were directed to file accounts for the amounts taken
from the accounts by 6.5.2010, posting the case on 6.5.2010.
2.6. It is stated that inventory is being carried out and in the meantime, the second Respondent has issued a proceeding dated 21.5.2010 directing
the Petitioner to offer further explanation in person on 25.5.2010 at 3 P.M. in the office of the Assistant Director of Drugs Control, Zone-III,
Chennai 6, as a final chance, ignoring the interim reply sent by the Petitioner and her husband on 19.5.2010 stating that unless the show cause
notice has been completely replied, any truncated reply cannot be a ground to proceed with the enquiry, which will amount to violation of the
principles of natural justice and they also sought the report of inspection made by G. Ammukutty, Drugs Inspector, Ashok Nagar Range, Zone-III,
Chennai-6.
2.7. It was in those circumstances, the said writ petition in W.P. No. 11239 of 2010 was filed by the Petitioner challenging the proceedings of the
second Respondent dated 21.5.2010 directing to appear on 25.5.2010 and also for a direction to give sufficient time to answer the show cause
notice dated 20.3.2010 after completion of the inventory by the third Respondent herein.
2.8. Both the writ petitions were disposed of by this Court by a common order dated 18.8.2010. While passing the order, this Court has set aside
the communication of the second Respondent dated 21.5.2010 and directed the second Respondent to furnish the copies of the documents relied
upon in the show cause notice within two weeks from the date of receipt of that order and thereafter, the Petitioners were directed to give a final
reply to the show cause notice within four weeks from the date of furnishing of documents and removal of seal from the premises of the Petitioners,
leaving it open to the second Respondent to pass final orders on merits and in accordance with law. It is apposite to extract the following
paragraphs of the order dated 18.8.2010:
These writ petitions are posted before me along with W.P. Nos. 7985 and 7986 of 2010. The Respondents have filed counter affidavit and
raised various contentions. Since the writ petitions are being disposed of not on merits, it is not necessary to traverse into the grounds raised in the
writ petitions as well as in the counter affidavits.
The learned Counsel for the Petitioners submitted that the business premises of the Petitioners are sealed by the Police on 16.3.2010; the show
cause notice was served to the counsel for the Petitioners in the open Court on 28.4.2010 when a complaint was made while hearing the writ
petitions; Petitioners gave preliminary objections and required documents to furnish effective reply after getting access to the records and computer
as the business premises including their offices are sealed. The learned Counsel also submitted that the notice dated 21.5.2010 was posted on
22.5.2010 and the same were served on the Petitioners/representative of the Petitioners on 23.5.2010 and only one day time was given to submit
objections that too without furnishing copies of the documents as sought for by the Petitioner by their interim reply dated 19.5.2010 and therefore
the Petitioners rushed to this Court and filed these writ petitions and challenged the communication dated 21.5.2010. The learned Counsel further
submitted that the licences granted to the Petitioners are for five years and the said licences are expiring only in the year 2011. The Inspection
report dated 10.3.2010 said to have been submitted by one G. Ammukutty, Drugs Inspector, Ashok Nagar Range, Zone-III, Chennai 6, though
was sought for, was not furnished, which is the basis for issuing show cause notice and denial of the said document is in violation of the principles
of natural justice.
The learned Advocate General in answer to the said submissions submitted that the seal put up by the Police in the premises of the Petitioners
will be removed in terms of the order to be passed in W.P. 7985 and 7986 of 2010 today and therefore there may not be any impediment to the
Petitioners to get access to the records and computers to prepare detailed explanation and copy of the Inspection report dated 10.3.2010, relied
on in the show cause notice will also be furnished to the Petitioners. The learned Advocate General further submitted that reasonable time may be
given to the Petitioners to submit detailed explanation to the show cause notice. The said submissions made by the learned Advocate General are
recorded.
In the light of the said submissions made by the learned Counsel for the Petitioners as well as learned Advocate General, these writ petitions
are disposed of by setting aside the communication dated 21.5.2010 and the second Respondent is directed to furnish copy of the documents
relied on in the show cause notice, within a period of two weeks from the date of receipt of copy of this order and on receipt of the same, the
Petitioners are directed to give final reply to the show cause notices dated 20.3.2010 within a period of four weeks from the date of furnishing of
the said documents and removal of seals from the Petitioners'' business premises and on receipt of the same, it is open to the second Respondent
to pass orders on merits strictly in accordance with law, in the action initiated through the show cause notice dated 20.3.2010. This order shall not
be construed as approving the show cause notices, on merits.
2.9. It is the case of the Petitioner that in spite of the said order having been passed on 18.8.2010, the seal of the premises has not been removed
and the premises has not been handed over to the Petitioner. However, the third Respondent is making verifications and segregation of drugs at
intermittent days in a casual manner. According to the Petitioner, the direction given in the writ petition means to remove the seal once for all, since
the Petitioner has to get accessibility to the computers wherein the details are stored. During the time when the seal is removed by the third
Respondent along with the Drugs Inspector (Ammukutty), it is stated that the Petitioner is not allowed to have access to the computers, ledgers,
etc. and is thereby deprived of an opportunity to give detailed explanation as per the order of this Court.
2.10. It is stated that even on the date of filing of the contempt petition accessibility has not been given to the computer system and the Petitioner
learnt that an order of cancellation has been passed, which will be contrary to the order passed by this Court dated 18.8.2010. It is stated that by
not granting proper opportunity by giving access to the computers and other records and thereby preventing the Petitioner from replying to the
show cause notice, and by opening the seals on intermittent days without proper opportunity to the Petitioner and taking advantage of the period
fixed by this Court for taking inventory, the second Respondent has chosen to take steps to cancel the licence as if the Petitioner has not given its
reply as per the direction of this Court. It is in these circumstances the present contempt petition is filed to punish the Respondents for the wilful act
of contempt committed by them in respect of the order dated 18.8.2010 passed in W.P. No. 11239 of 2010.
3.1. In the counter affidavit filed by the second Respondent, it is stated that the second Respondent has scrupulously followed the order of this
Court dated 18.8.2010 and therefore, the contempt petition is liable to be dismissed.
3.2. It is stated that the second Respondent by exercising the power under Rule 66(1) of the Rules has already passed an order of cancellation of
licence on 21.10.2010 and the contempt petition is filed only to circumvent the said order without challenging the same and the intention is to arm-
twist the authorities for initiating genuine legal and statutory action to enforce, maintain and safeguard the public health and safety as per the
provisions of the Act.
3.3. It is stated that credible information was received to the effect that during the month of March, 2010, certain expired drugs like ""Renerve
have been recirculated by altering the date of expiry, date of manufacturing, batch number, etc. by certain persons and that a team of Drug
Inspectors of Drugs Control Department, Chennai was constituted to find out the illegal activities and on preliminary investigation, it was revealed
that a gang of unscrupulous persons are involved in these illegal activities with the aid of licensed dealers in Chennai like Meena Health Care
Private Limited, Vasantha Meena Enterprises, and others, and on 10.3.2010, it was found by the Drugs Inspector, Ashok Nagar Range that the
Petitioner has purchased and sold Renerve capsules, which is a spurious drug as per Section 17B(e) of the Act, and hence, a show cause notice
was issued for cancellation of licence in Forms 20B and 21B.
3.4. It was challenging the said show cause notice, writ petition in W.P. No. 11239 of 2010 was filed. It is stated that there was an interim order
passed by this Court on 18.8.2010, as follows:
The second Respondent is directed to furnish the copies of the documents relied on in the show cause notice within 2 weeks from the date of
receipt of the copy of this order. On receipt of the same the Petitioner are directed to give final reply to the show cause notices dated 20.3.2010
within a period of four weeks from the date of furnishing of the said documents and removal of seals from the Petitioners'' business premises. On
receipt of the same, it is open to the second Respondent to pass orders on merits strictly in accordance with law in the action initiated through the
show cause notice dated 20.3.2010.
3.5. It is stated that as per the said direction copies of the documents were sent to the Petitioner on 3.9.2010 by speed post and according to the
second Respondent, the delivery has been effected on 6.9.2010. It is stated that the sealed premises was opened by the third Respondent on
18.9.2010 in the presence of the Drugs Inspector concerned and the Petitioner and therefore, the Petitioner had sufficient opportunity to give
plausible explanation. It is stated that the computer with software and hard disk is not required for furnishing the carbon copies of the sales bills and
that for having purchased and sold spurious drugs and for not having raised sales bills, no explanation was offered by the Petitioner within the
period of four weeks from the date of removal of seal.
3.6. It is stated that the Drugs Inspector has also approved the sales of few drugs on 7.10.2010 under nine sales bills pertaining to Meena
Healthcare Private Limited, which is the sister concern of the Petitioner, however in respect of the Petitioner concern there was no request made
for approval of sale of drugs. It is stated that the Petitioner has neither replied within the stipulated time nor such communication has been received
and therefore, the second Respondent has passed the cancellation order and he has acted as per the provisions of the Act and the Rules.
4.1. In the counter affidavit filed by the third Respondent, it is stated that, pursuant to the order of this Court dated 18.8.2010, the third
Respondent has received the keys of the sealed premises on 17.9.2010 and he has sent intimation to the Petitioner on the said date requesting her
or her representative to be present in the said premises on 18.9.2010. On 18.9.2010, the third Respondent along with the Drugs Inspector (Ammu
Kutty) proceeded to Chinmaya Nagar and opened the sealed premises of all the three premises Vasantha Meena Enterprises, Meena Health Care
Private Limited and Vasantha Enterprises at 1130 Hrs, 1615 Hrs and 1630 Hrs respectively in the presence of the Petitioner and her
representatives. It is stated that the premises did not have electricity supply due to non payment of electricity bills and the supply was restored in
the afternoon after clearing the arrears bills by the Petitioner. Cleaning work was done at Vasantha Meena Enterprises and due to the shortage of
company staff, the work could not be continued at the premises and at the request of the Petitioner, the premises were locked at 1645 Hrs, 1650
Hrs and 1730 Hrs respectively and it is stated that the Petitioner assured to make arrangement for manpower to continue the work on 20.9.2010.
4.2. It is stated that, on 20.9.2010, the process of segregation was continued and the valid, expiry and short expiry medicines were segregated in
the presence of the Petitioner, her representatives and the Drugs Inspector. It is stated that in deference to the order of this Court, on 7.10.2010,
the Petitioner was permitted to sell the valid medicines worth about Rs. 2,400/-, after obtaining clearance from the Drugs Inspector. It was stated
that access was provided to the Petitioner to further produce purchase bills, but the Petitioner and her representatives did not produce any
purchase bills before the Drug Authorities for the sale of the segregated valid medicines.
4.3. It is stated that, on 22.10.2010, a fax message was received from the Director of Drug Control by the ADGP, CBCID, Chennai for
cancellation of licence of Meenakshisundaram and therefore, the said Meenakshisundaram has instructed the representatives of the Petitioner not
to sell any medicines. It is stated that the process of segregation was completed at the said premises in the presence of the Petitioner, Drugs
Control authorities and police.
Similar is the case of the first Respondent in the counter affidavit filed by him.
6.1. Mr. N. Jothi, learned Counsel appearing for the Petitioner would submit that when this Court has passed an order on 18.8.2010 by setting
aside the order dated 21.5.2010 directing the Respondents to furnish the documents relied on in the show cause notice, permitting the Petitioner to
give reply within four weeks from the furnishing of documents and removal of seal from the Petitioner''s premises and thereafter enabling the
second Respondent to pass orders, it means that, on opening the premises, proper access must be given to the Petitioner for the purpose of
enabling the Petitioner to submit her explanation to the show cause notice and for the purpose of giving proper explanation, it is necessary for the
Petitioner to have access to the internet and that has not been given.
6.2. He would also bring to the notice of this Court that even as per the counter of the third Respondent, the Petitioner''s premises was opened at
1130 Hrs on 18.9.2010 and was closed at 1645 Hrs and segregation work was done in respect of the medicine on 20.9.2010 and therefore, it
was only on these two days the seal was opened and it was not sufficient for the Petitioner to give her explanation and that fact was known to the
Respondents and in spite of it, hurriedly, only for the purpose of counting the days given by this Court, they waited for passing an order of
cancellation, which according to the learned Counsel for the Petitioner, is patently not only illegal, but also a gross disobedience of the order of this
Court.
6.3. He would also submit that even the order passed by this Court on 18.8.2010 is a consent order, wherein the learned Advocate General has
consented that access will be given to the records and computers, so as to enable the Petitioner to give detailed explanation to the show cause
notice and inasmuch as such access to the computers has not been given to the Petitioner, it is disobedience of the order of this Court and the
intention of the Respondents is to cancel the licence somehow or other and therefore, they should be dealt with severely in accordance with law.
6.4. The order dated 18.8.2010 has to be read in the light of the concept of the principles of natural justice, since the show cause notice issued has
to be given proper reply and that requires materials to be collected and inasmuch as such opportunity has not been given, there is a statutory
violation and in this regard, he would rely upon the judgment in Uma Nath Pandey and Others Vs. State of U.P. and Another,
6.5. The passing of the order by the second Respondent dated 21.10.2010, which, according to the Petitioner, has not even been communicated
to him, cancelling the licence without even giving opportunity to the Petitioner to give reply to the show cause notice is liable to be set aside. He
would also rely upon the judgment of the Allahabad High Court in Amit Kumar Verma v. State of U.P. and Anr. 2011 (1) Crimes 127 (All.).
7.1. Per contra, it is the submission of the learned Additional Advocate General that the documents have been served as per the direction of the
Court and it was the duty of the Petitioner to give proper explanation to the show cause notice.
7.2. He would refer to the various provisions of the Rules referring to the powers of the authority in dealing with the licences and he would submit
that the order cancelling the licence has been passed on 21.10.2010 in accordance with Rule 66(1) of the Rules, in view of the non-compliance of
the order of this Court by the Petitioner. He would submit that even otherwise there is no deliberate violation of the order of this Court. He would
rely upon the decisions of the Supreme Court in Indian Airport Employees Union Vs. Ranjan Chatterjee and another, Jhareswar Prasad Paul and
Another Vs. Tarak Nath Ganguly and Others, Anil Ratan Sarkar and Others Vs. Hirak Ghosh and Others,
7.3. It is his submission that the Petitioner having not given explanation has only otherwise intended to have the order of cancellation set aside in the
contempt petition, which cannot be permitted.
Admittedly, the second Respondent/licensing authority, through the Drugs Inspector (G. Ammukutty), has issued a show cause notice to the
Petitioner on 20.3.2010 for cancellation of licence on the ground of sale of spurious drugs by the Petitioner. Such notice was given under Rule
66(1) of the Rules, which enables the licensing authority, viz., the second Respondent, after giving the licensee an opportunity, to show cause why
such order should not be passed cancelling the licence. It is true that such proceedings for cancellation of licence are quasi judicial in nature. Rule
66 of the Rules is as follows:
Rule 66. Cancellation and suspension of licences.-(1) The Licensing Authority may, after giving the licensee an opportunity to show cause why
such an order should not be passed by an order in writing stating the reasons therefor, cancel a licence issued under this Part or suspend it for such
period as he thinks fit, either wholly or in respect of some of the substances to which it relates, if in his opinion, the licensee has failed to comply
with any of the conditions of the licence or with any provisions of the Act or Rules thereunder:
Provided that, where such failure or contravention is the consequence of an act or omission on the part of an agent or employee, the licence shall
not be cancelled or suspended if the licensee proves to the satisfaction of the licensing authority:
(a) that the act or omission was not instigated or connived at by him or, if the licensee is a firm or company by a partner of the firm or a director of
the company, or
(b) that he or his agent or employee had not been guilty of any similar act or omission within twelve months before the date on which the act or
omission in question took place, or where his agent or employee had been guilty of any such act or omission the licensee had not or could not
reasonably have had, knowledge of that previous act or omission, or
(c) if the act or omission was a continuing act or omission, he had not or could not reasonable have had knowledge of that previous act or
omission, or
(d) that he had used due diligence to ensure that the conditions of the licence or the provisions of the Act or the Rules thereunder were observed.
(2) A licensee whose licence has been suspended or cancelled may, within three months of the date of order under Sub-rule (1), prefer an appeal
against that order to the State Government, which shall decided the same.
The show cause notice also speaks about the contravention of Section 17B(e) of the Act, which says ""if it purports to be the product of a
manufacturer of whom it is not truly a product"" and also Section 18(a)(i), which says ""any drug which is not of a standard quality, or is misbranded,
adulterated or spurious"" and in respect of that, under the show cause notice, the second Respondent/licensing authority, through the Drugs
Inspector, has given certain details regarding the purchases, etc., which are as follows:
Sl. No. Name of the DrugsDated & Supplier Name Quantity Stock on Hand
with Batch No. purchased Quantity Sold
Invoice No.,
1 Renerve Caps dt: 23/12/09 Sree G.H. Pharma, NIL 380 x 10''s
205887 4197 Ch-06 380 x 10''s
2 Neosporin Eye dt: 23/12/09 Sree G.H. Pharma, NIL 2560 x 5 gms
Ointment BA415 Ch-06 2560 x 5
4197 gms
3 Renerve BT. Caps dt: 23/12/09 Sree G.H. Pharma, NIL 60 x 15''s Caps.
205799 4197 Ch-06 60 x 15''s
Caps.
4 Renerve plus BT. dt: 16/1/2010 Sree G.H. Pharma, NIL 88 x 10''s Cap
Caps 205894 4830 Ch-106 88 x 10''s
Cap
The case of the Petitioner was that such show cause notice was not served and when a writ petition in W.P. No. 9162 of 2010 was filed, at
that time, the copy of the show cause notice was served on the counsel and an interim reply was given on 19.5.2010 and without receiving the full
reply, the second Respondent/licensing authority on 21.5.2010 has sent a letter directing the Petitioner to appear on 25.5.2010 and that letter was
stated to have been received by the Petitioner on 23.5.2010 only and it was in those circumstances, considering the validity of the said letter dated
21.5.2010, this Court, in the order dated 18.8.2010, has set aside the letter dated 21.5.2010 with an intention that the Petitioner must be given
proper opportunity to give explanation to the show cause notice, giving directions, as elicited above.
It is true that the learned Advocate General at the time of disposal of the writ petition has agreed to give the Petitioner access to records and
computers to prepare detailed explanation and consequent to that, the operative order has been passed in paragraph (11) by this Court in the
order dated 18.8.2010. It is relevant to reproduce paragraph (11) once again for the purpose of better appreciation of the case: ""11. In the light of
the said submissions made by the learned Counsel for the Petitioners as well as learned Advocate General, these writ petitions are disposed of by
setting aside the communication dated 21.5.2010 and the second Respondent is directed to furnish copy of the documents relied on in the show
cause notice, within a period of two weeks from the date of receipt of copy of this order and on receipt of the same, the Petitioners are directed to
give final reply to the show cause notices dated 20.3.2010 within a period of four weeks from the date of furnishing of the said documents and
removal of seals from the Petitioners'' business premises and on receipt of the same, it is open to the second Respondent to pass orders on merits
strictly in accordance with law, in the action initiated through the show cause notice dated 20.3.2010. This order shall not be construed as
approving the show cause notices, on merits.
In respect of the sealing of the premises which was challenged in W.P. Nos. 7985 and 7986 of 2010, by an interim order dated 30.4.2010,
this Court has permitted the Petitioner to operate the bank accounts and the Respondents were directed to take inventory and it is true that in
order to enable the Petitioner to give a detailed reply to the show cause notice, the second Respondent was directed to furnish the documents to
the Petitioner.
As far as the furnishing of documents is concerned, on the pleadings in the contempt petition, there is no dispute by the Petitioner. The basic
dispute that is raised is that when the premises was opened by removing the seal, there was no adequate notice given to the Petitioner and it is true,
as stated in the counter affidavit of the third Respondent, that the premises concerned was opened at 1130 Hrs on 18.9.2010 and was closed at
1645 Hrs, however stated to be at the instance of the Petitioner and again it was opened on 20.9.2010 and on these two days, it is not in dispute
that the Petitioner or her representatives have been present. But the complaint is that they were unable to have access to the computers, so as to
find out the particulars relating to various vouchers.
On the other hand, it is the case of the licensing authority that as per the Rules, especially Rules 65(5)(1) and 65(5)(2) of the Rules, which are
as follows:
Rule 65. Condition of licences.- Licences in Form 20, 20-A, 20-B, 20-F, 20-C, 21, and 21-B shall be subject to the conditions stated therein and
to the following general conditions-
(1) to (4) ***
(5)(1) Subject to the other provisions of these rules the supply of a drug by wholesale shall be made against a cash or credit memo bearing the
name and address of the licensee and his licence number under the Drugs and Cosmetics Act in which the following particulars shall be entered-
(a) the date of sale.
(b) the name, address of the licensee to whom sold and his sale licence number. In case of sale to an authority purchasing on behalf of
Government, or to a hospital, medical, educational or research institution or to a Registered Medical Practitioner for the purpose of supply to his
patients the name and address of the authority, institution or the Registered Medical Practitioner as the case may be,
(c) the name of the drug, the quantity and the batch number, (d) the name of the manufacturer. (e) the signature of the competent person under
whose supervision the sale was effected.
(2) Carbon copies of cash or credit memos specified in Clause (1) shall be preserved as records for a period of three years from the date of the
sale of the drug."" it is the duty of the Petitioner to preserve the carbon copies of the cash or credit memos specified Clause (1) for a period of three
years and therefore, on these two days when the premises was opened by removing the seal, the Petitioner should have produced those carbon
copies.
On the other hand, it is the case of the Petitioner that after coming into effect of the accounting system through computers, there is no question
of keeping the carbon copies and the said rules have become practically impossible to be performed and therefore, unless and until a chance is
given to the Petitioner to have access to the computers, there is no possibility to give proper explanation to the show cause notice.
It is not in dispute on the facts of the present case that the Petitioner was unable to have access to the computers for the purpose of obtaining
particulars and the Petitioner could not produce carbon copies as contemplated under the Rules, which are in existence in the statute book as on
date. Since it is not known as to whether the Rule has become outdated or not and as it is presumed that as long as the Rule is in the statute book
the same has to be followed, the question to be decided is about the deliberate conduct on the part of the second Respondent in not giving the
Petitioner access to the computer system.
On the face of it, it is the case of the second Respondent that she has followed the Rules in the statute book scrupulously and therefore, was of
the view that the vouchers should have been produced by the Petitioner on the two days when the premises was opened. While, on the other hand,
the Petitioner has been under the impression that an effective reply could be given only if she is given access to the computer system. Therefore,
these are the difference of views between the licensing authority and the Petitioner and both views may be correct based on the facts and
circumstances, which cannot be decided in contempt proceedings. In contempt proceedings, the only question to be decided is as to whether there
is a deliberate disobedience of the order of the Court by the second Respondent or for that matter the other Respondents also.
Access to computer system may be necessary for the Petitioner to make a substantial defence when the cancellation of licence is challenged in
appropriate forum. This Court cannot decide the validity or otherwise of the order of cancellation of licence stated to have been passed by the
second Respondent on 21.10.2010. The Petitioner has adequate remedy available in respect thereof.
The reliance placed by Mr. N. Jothi, learned Counsel for the Petitioner on the judgment of the Allahabad High Court in Amit Kumar Verma v.
State of U.P. and Anr. 2011 (1) Crimes 127 (All.) has no application to the facts and circumstances of the present case. That was a case where
the validity about the search and seizure from premises under Sections 22 and 23 of the Act was considered by the High Court. 21. The
contention of the learned Counsel for the Petitioner by relying upon the judgment of the Supreme Court in Uma Nath Pandey and Others Vs. State
of U.P. and Another, wherein the Supreme Court emphasized about the importance of the compliance of the principles of natural justice in
adjudication process by relying upon various English judgments, is no doubt an established rule of law. But, unfortunately, that is not going to be of
any help to the Petitioner in contempt proceedings, wherein the only question to be considered is as to whether there is any deliberate conduct on
the part of the Respondents.
The law is well settled that in cases of contempt, there must be a wilful disobedience and flouting of the court order. The mere misinterpretation
cannot be construed to be a deliberate violation of the court order, as it was held in Indian Airport Employees Union Vs. Ranjan Chatterjee and
another, . The Supreme Court, in the said judgment, has held as follows:
It is well settled that disobedience of orders of the court, in order to amount to civil contempt under Contempt of Courts Act, 1971 (b) of the
Contempt of Courts Act, 1971 must be wilful and proof of mere disobedience is not sufficient ( S.S. Roy Vs. State of Orissa and Others, Where
there is no deliberate flouting of the orders of the court but a mere misinterpretation of the executive instructions, it would not be a case of civil
contempt Ashok Kumar Singh and others Vs. State of Bihar and others,
Again, in Jhareswar Prasad Paul and Another Vs. Tarak Nath Ganguly and Others, it was held by the Supreme Court that the Court dealing
with the contempt jurisdiction is primarily concerned with the conduct of the party as follows:
The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by
the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is
undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the
people in general for true and proper administration of justice in the country. The power to punish for contempt of court is a special power vested
under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It
should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court
exercising the jurisdiction to punish for contempt does not function as an original or appellate court for determination of the disputes between the
parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court
and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is
not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the
applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order
should have contained. At the cost of repetition, be it stated here that the court exercising contempt jurisdiction is primarily concerned with the
question of contumacious conduct of the party, which is alleged to have committed deliberate default in complying with the directions in the
judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions
issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of
the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court
passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts exercising contempt
of court jurisdiction that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper
adjudication of the dispute in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially
affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order
and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.
It was held in Anil Ratan Sarkar and Others Vs. Hirak Ghosh and Others, that in cases where there are two interpretations of an aspect which
are possible, the act of the contemnor in following one such interpretation cannot be held to be contumacious in nature. The Supreme Court held as
follows:
Similar is the situation in Mrityunjoy Das and Another Vs. Sayed Hasibur Rahaman and Others, and as such we need not dilate thereon further
as to the burden and standard of proof vis- Rs. -vis the Contempt of Courts Act suffice it to record that powers under the Act should be exercised
with utmost care and caution and that too rather sparingly and in the larger interest of the society and for proper administration of the justice
delivery system in the country. Exercise of power within the meaning of the Act of 1971 shall thus be a rarity and that too in a matter on which
there exists no doubt as regards the initiation of the action being bona fide.
It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a ""civil contempt"" within the
meaning of Section 2(b) of the Act of 1971 the element of willingness is an indispensable requirement to bring home the charge within the meaning
of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation the act
or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised,
question of success in a contempt petition would not arise.
For the foregoing reasons, even though there is a scope to conclude that sufficient opportunity could have been given to the Petitioner to give
explanation to the show cause notice dated 20.3.2010, I am of the considered opinion that that by itself is not sufficient to hold the Respondents
guilty of contempt. Accordingly, I am of the view that it is for the Petitioner to workout her remedy against the order of cancellation of licence
stated to have been passed by the second Respondent on 21.10.2010 and she is not entitled to any relief in this contempt petition.
In the result, the contempt petition stands dismissed. No costs. Consequently, Sub Application No. 510 of 2010 is closed.