Judgment :- U.P. Singh, CJ. These Original Petitions have been referred to a Division Bench in view of the importance of the questions involved. 2. The Abkari Act (1 of 1077) is the legislation which consolidates and amends the law relating to the import, export, transport, manufacture, sale and possession of intoxicating liquor and intoxicating drugs in the State of Kerala. Sale of arrack (an item of liquor) was prohibited with effect from 1.4.1996 and all arrack shops were closed from 1.4.1996. There was no auction of arrack shops from 1.4.1996. 3. In spite of the serious steps taken by the authorities under the Act, manufacture and sale of illicit arrack were rampant. It was also found that other forms of liquor were adulterated and sold. This resulted in many tragedies. Often it was the poor section of the population who fell prey to such spurious liquor. The study made by the authorities revealed that the existing provisions under the Act were not sufficient and deterrent to prevent such commission of offences under the Act. The offences were bailable and compoundable. The punishment and penalty imposed were very low. The money earned from the illicit business in liquor was such that the penalty and punishment imposed were trivial. Thus, the Government was concerned with adopting effective measures to stop the recurrence of such offences under the Act. With this end in view, the Governor of Kerala issued Ordinance 7/97 amending certain provisions of the Act. The Ordinance was promulgated on 2.6.1997 bringing out certain amendments whereby, (a) All offences under the Act were made cognizable. (b) The punishment for various offences were increased. The maximum punishment for transporting, possession, etc. of illicit liquor was increased to 10 years imprisonment and a fine of Rs. 1 lakhs. (c) B ail conditions were made more stringent. All offences liable to be punished for a term of less than three years were made bailable and for offences liable to be punished for three years and above, the conditions were made more stringent. After the promulgation of the Ordinance and as a result of searches and raids, the authorities could unearth serious and flagrant violations of the Abkari Act committed by the contractors and their men resulting in initiation of criminal proceedings. The petitioners then filed Original Petitions challenging Ordinance 7/97. After the promulgation of the Ordinance and as a result of searches and raids, the authorities could unearth serious and flagrant violations of the Abkari Act committed by the contractors and their men resulting in initiation of criminal proceedings. The petitioners then filed Original Petitions challenging Ordinance 7/97. During the pendency of the proceedings on 2nd August 1997 another Ordinance was promulgated as Ordinance 13/97. This Ordinance repealed Ordinance 7/97. Under Cl. 32(2) thereof any action taken under the Principal Act as amended by Ordinance 7/97was deemed to be taken under the Principal Act as amended by Ordinance 13/97. Ordinance 13/ 97 contained the same provision as Ordinance 7/97. After promulgation of Ordinance 13/97, the provisions of the said Ordinance were also challenged. Ordinance 7/97 would have expired on 4.8.1997, if it had not been repealed on 2.8.1997. The petitioners challenged certain provisions of the Act as amended by Ordinance 13/97 as well as the continuance of the criminal proceedings which were initiated in accordance with the provisions of Ordinance 7/97. 4. The learned counsel Sri. Kapil Sibal appearing for the petitioners raised the following points for our consideration: (1) Whether the criminal proceedings initiated as per Ordinance No. 7/97 could be continued under Ordinance No. 13/97 and whether the promulgation of Ordinance No. 13/97 was a colourable exercise of power and a fraud on the Constitution? (2) Whether the conditions for granting bail under the Act as amended by Ordinance No. 13/97 are unconstitutional being violative of Arts.19 and 21 of the Constitution? (3) Whether the provisions imposing punishments under Ss.8(2) and 55(2) of the Act are unconstitutional and disproportionate to the offences alleged to have been committed? Whether the simultaneous prosecution under S.8(2) and S.55(1) of the Act are unconstitutional and violative of Arts.14 and 20(2) of the Constitution of India? Whether the definition of 'arrack' is vague and arbitrary and, therefore, the penalty proposed under S.8(2) is also arbitraty and unconstitutional? 5. We shall deal with the points raised in the same order: Point No. (1) : Whether the criminal proceedings initiated as per Ordinance No. 7/97 could be continued under Ordinance No. 13/97 and whether the promulgation of Ordinance No. 13/97 was a colourable exercise of power and a fraud on the Constitution? 5. We shall deal with the points raised in the same order: Point No. (1) : Whether the criminal proceedings initiated as per Ordinance No. 7/97 could be continued under Ordinance No. 13/97 and whether the promulgation of Ordinance No. 13/97 was a colourable exercise of power and a fraud on the Constitution? In exercise of his power under Art.213(1) of the Constitution of India, the Governor of Kerala promulgated Ordinance 11 97 to amend certain provisions of the Abkari Act. This Ordinance came into force on 3.6.1997. As already stated, by this Ordinance, the Abkari Act 1 of 1077 (M.E.) was amended temporarily. The amendment relates to the enhancement of punishment for the offence under the Act, providing stringent conditions in regard to the grant of bail to persons liable to be punished for more than three years and making all offences under the Abkari Act as cognizable one. On 2.8.1997, the Governor of Kerala promulgated Ordinance 13/97, called the Kerala Abkari (Amendment) Ordinance 1997. The Ordinance states that a bill to replace Ordinance 7/97 by an Act of Legislature could not be introduced and passed by the Legislative Assembly of the State of Kerala during its session which commenced on 23rd June, 1997 and ended on 29th July, 1997. It further states that the State would face difficulties if the provisions of the said Ordinance are not kept alive and therefore, Ordinance 13/97 was issued. It contained the same provision as the one in Ordinance 7/97. Clause 32 of the second Ordinance is the repealing section stating that: "(1) The Abkari (Amendment) Ordinance 1997 is hereby repealed. (2) Notwithstanding such repeal anything done or deemed to have been done or any action taken or deemed to have been taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Ordinance". 6. As already stated, certain criminal proceedings had been initiated against a few persons as per Ordinance 7/97 which were pending and are being continued as per Ordinance 13/97. It was contended that the Ordinance was issued by the Governor under Art.213(1) of the Constitution of India when the Assembly was not in session. As per the provisions of Art.213 of the Constitution of India, a bill to replace the Ordinance has to be placed before the Assembly. It was contended that the Ordinance was issued by the Governor under Art.213(1) of the Constitution of India when the Assembly was not in session. As per the provisions of Art.213 of the Constitution of India, a bill to replace the Ordinance has to be placed before the Assembly. The Ordinance will automatically lapse at the expiration of six weeks from the re-assembly of the Legislature. According to the petitioners, Ordinance 7/97 lapsed on 4.8.1997. It was further contended that the Governor has no power to issue successive Ordinances and such exercise of power is a fraud on the Constitution of India. It was submitted that the Ordinance is a temporary Act. Since Ordinance 7/97 did not contain any provision for continuance of the proceedings initiated under it, those proceedings will automatically come to an end, once the Ordinance lapsed. The inclusion of saving clause in Ordinance 13/97 could not save the proceedings which had already lapsed on the expiry of Ordinance 7/97. 7. Art.213 of the Constitution of India deals with the Ordinance making power of the Governor of a State. It reads as follows: "213. (1) If at any time, except when the Legislative Assembly of a State is, in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if - (a) a B ill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or (b) he would have deemed it necessary to reserve a B ill containing the same provisions for the consideration of the President; or (c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had reached the assent of the President. (2) An ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance (a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the houses and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the council; and (b) may be withdrawn at any time by the Governor". 8. Thus, the Governor is empowered to issue an Ordinance when the Legislative Assembly is not in session. Under Art.213 (2) of the Constitution of India, an Ordinance promulgated shall have the same force and effect as an Act of Legislature of the State. The Article provides certain restrictions with regard to the issue of Ordinance. According to him, the Ordinance has to be placed before the Legislative Assembly and would cease to be operative on the expiration of six weeks from the reassembly of the Legislature or before the expiration of that period i f a resolution of disapproval is passed by the Assembly or when it is withdrawn by the Governor at any time. 9. Under the Constitution of India, the separation of powers among the three organs of the Government, viz., Legislature, Executive and judiciary, is clearly demarcated. Arts.123 & 213 of the Constitution are exceptions to this Rule. The Legislative power is given to the Legislature. But under Art.213 of the Constitution, this power has been given to the Executive to be exercised by the Governor. This power is made use of only in the case of emergency. It has the force of law as an Act passed by the Assembly. The power of making Ordinances is subject to the same restrictions as to the power of the Legislature to make laws. Ordinance is to remain in force for a maximum period of 71/2 months. In any event, it will have no force after six weeks of the reassembly of the Legislature. The power of making Ordinances is subject to the same restrictions as to the power of the Legislature to make laws. Ordinance is to remain in force for a maximum period of 71/2 months. In any event, it will have no force after six weeks of the reassembly of the Legislature. On the basis of the above, it was contended that the life of an Ordinance is restricted and hence it is a temporary Act. There cannot be successive Ordinances, because an Ordinance is promulgated to meet an emergency and the Ordinance has to be placed before the Assembly as soon as it meets. 10. In this connection, the learned counsel for the petitioners relied on the decision of the Supreme Court in the case of D. C. Wadhwa v. State of Bihar - (1987) 1 SCC 378. In that case, the Supreme Court was considering a public interest litigation which brought to the notice of the court the practice of the Government of Bihar to go on promulgating Ordinances from time to time on a massive scale in a routine manner. All Ordinances were being repromulgated. And 25 6 such Ordinances were repromulgated successively. There were Ordinances which were promulgated more than 10 times. The Supreme Court was considering the question whether the Governor could exercise power in such a way as to deprive the Legislature of exercising its legitimate Legislative power. Considering this aspect, the Supreme Court held "The startling facts show that the executive in Bihar had almost taken over the role of the legislature in making laws, not for a limited period, but for years together in disregard of the constitutional limitations. This was clearly contrary to the constitutional scheme and was improper and invalid": The Court held that such exercise of power was colourable exercise and fraud on the Constitution. In paragraph 7 thereof, the court further said: "The repromulgation of the Ordinance may not be open to attack when it is not possible for the Government to introduce and push through in the Legislature a B ill containing the same provisions as in the ordinance, because of too much legislative business in a particular session or limited time at the disposal of the legislature in a particular session" Thus, the Court has justified repromulgation of the Ordinance in certain circumstances. 11. 11. In the present case, a fresh Ordinance was issued before the earlier Ordinance expired. In paragraph 14 of the counter affidavit filed in O.P. No. 13910/97, the promulgation of the new Ordinance was justified for the following reasons: "That the Assembly session which started on 23rd June 1997 went on for 22 days. During the period, with the bonafide intention of introducing the Bill in the Assembly, the bill amending the Abkari Act was prepared and printed. During this Assembly session the Finance Bill containing the annual budget for the State was taken up for discussion and the entire assembly session was taken up by the discussions on the Finance Bill and passing of supplementary demands etc. During the session one Hon'ble Minister passed away and one member of the Legislative Assembly also died. These unfortunate happenings' also reduced the working days of the Assembly. During this Session of 22 days only the Finance Bill was considered and passed. The Rules of Business Committee of the Assembly which includes opposition members of the Legislative Assembly, decided dial there was no time for the introduction of the bill amending the Abkari Act in this section. It is under the aforesaid circumstances dial Ext. P1 Ordinance was not placed before the Legislative Assembly". 12. In the facts and circumstances as disclosed above, we do not find any reason to hold that the promulgation of the second Ordinance 13/97 was a colourable exercise of power. 13. The ancillary question whether the criminal proceedings initiated against certain persons, under Ordinance 7/97 could be continued as per Ordinance 13/97, it is obvious that by virtue of S.32 of Ordinance 13/97, the earlier Ordinance 7/97 stood repealed and all actions taken under the repealed Ordinance would be deemed to have been taken under the present Ordinance and the proceedings initiated under Ordinance 7/97 are continued. 14. Sri. Kapil Sibal, the learned senior counsel appearing for the petitioners contended that the proceedings could not be continued after the expiry of the earlier Ordinance. It was contended that an Ordinance is a temporary Act and after the expiry of a temporary Act it ceases to have any operation. Any proceedings started under the temporary Act, which were not completed before the expiry of that Act, could not be continued after the expiry of the temporary Act. It was contended that an Ordinance is a temporary Act and after the expiry of a temporary Act it ceases to have any operation. Any proceedings started under the temporary Act, which were not completed before the expiry of that Act, could not be continued after the expiry of the temporary Act. It was stated that if a saving provision was introduced in the temporary Act, then the proceedings could be continued even after the expiry of the temporary Act. 15. The learned counsel brought to our notice the decisions rendered in the case of 5. Krishnan & Ors. v. State of Madras & anr. - AIR 1951 SC 301, State of Orissa v. Bhupendra Kumar - AIR 1962 SC 945 and T. Venkata Reddy v. State of A.P. AIR 1985 SC 724. There cannot be any dispute that the life of an Ordinance is limited as per the provisions of Art.213 of the Constitution and the Ordinance will cease to have operation on expiration of six weeks from the date of reassembly of the Legislature. As per the Constitution an Assembly has to meet once in six months. So, the maximum life of an Ordinance is 71/2 months. 16. 'Craies' on Statute Law states what is a temporary Act at page 407, Seventh Edition: "If an Act contains a proviso that it is to continue in force only for a certain specified time, it is called a temporary Act". Once it is a temporary Act, then what is the result at its expiration. The same author, at page 409 in the same volume states: " As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired, no proceedings can be taken upon it, and it ceases to have any further effect". 17. In the case of 5. Krishnan v. State of Madras - AIR 1951 SC 301- Patanjali Sastri, J. (as he then was) cited the extract from'Craies on Statute Law' to hold that proceedings taken under the temporary statute will ipso facto terminate as soon as the statute expires. The Supreme Court had the occasion to deal with such a question in the case of Mohammed Iqbal Madar Sheikh & Ors v. The State of Maharashtra - JT 1996 (1) SC 114. The Supreme Court had the occasion to deal with such a question in the case of Mohammed Iqbal Madar Sheikh & Ors v. The State of Maharashtra - JT 1996 (1) SC 114. In that case, their Lordships were considering the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987. The argument was that after the expiry of the period mentioned in the Act, the proceedings initiated under the Act could not be continued. The said Act itself provided that the expiry shall not affect the investigation of legal proceedings which existed and that they could be continued. It was held: " As such what will be the effect of expiry of a Temporary Act, has to be examined on the provisions of that Act itself, without any aid from S.6 of the General Clauses Act. That is why after expiry of a temporary Act, often a question arises in connection with the legal proceedings whether they can be continued? In many temporary Acts a saving provision in the nature of S.6 of the General Clauses Act is enacted. If there is no provision in the temporary Act similar to S.6 of the General Clauses Act, the normal rule is that the proceedings initiated under that Act shall ipso facto come to an end with the expiry of the Act. If there is no saving provision, after the expiry of the Act, a person who was being prosecuted under the said Act, cannot be prosecuted". 18. Thus, it is clear that unless a temporary Act contains a saving provision to continue the proceedings initiated under the Act, such proceedings come to an end on the expiry of the Act. It is true that Ordinance 7/97 does not contain any saving provision. Hence, if the Ordinance expired, the proceedings initiated under the Ordinance could not have been continued. But that is not the position here. Ordinance 7/97 was to expire on 3.8.1997. On 2nd August, 1997, the Governor of Kerala promulgated Ordinance 13/97 by which Ordinance 7/97 was repealed. There is a saving provision in Ordinance 13/97 which provided the action taken under the earlier ordinance to be continued under the new Ordinance. 19. In the present case, Ordinance 7/97 lapsed only on 4.8. 1997. Before it could lapse, a new Ordinance was promulgated repealing the earlier Ordinance. The question raised is whether such a procedure is possible. There is a saving provision in Ordinance 13/97 which provided the action taken under the earlier ordinance to be continued under the new Ordinance. 19. In the present case, Ordinance 7/97 lapsed only on 4.8. 1997. Before it could lapse, a new Ordinance was promulgated repealing the earlier Ordinance. The question raised is whether such a procedure is possible. For this purpose, we shall have to refer to the 'Interpretation and General Clauses Act' 1125 (M.E.) (since we are dealing with the State Act), S.2(3) of the said 'Interpretation and General Clauses Act defines the word "Act" as follows: "Act" shall mean a Proclamation or Act of Travancore or Cochin, an Act or-Ordinance of Travancore-Cochin, an Act passed by the Legislature of the State of Kerala, an Ordinance promulgated by the Governor under Art.213 of the Constitution or, where with respect to the State of Travancore Cochin or Kerala the power to make laws is vested in the President or other authority under sub-clause (a) of Clause (1) of Art.357 of the Constitution, any law made in exercise of such power". It includes Ordinance promulgated by the Governor under Art.213 of the Constitution. Thus, the provisions of the Interpretation and General Clauses Act apply to the Ordinance also. Therefore, the Ordinance could repeal another Ordinance and in such a situation it could not be said that the Governor is without any power to save the proceedings continued under the earlier Ordinance. Further, Art.213 of the Constitution itself says that the Ordinance promulgated shall have the same force and affect as that of an Act of the Legislature. Thus, the Ordinance has got the same affect and characteristics of an Act as passed by the Legislature. It is well established principle that an Ordinance can be given a retrospective effect. An Ordinance can amend a permanent Act. An ordinance can amend another Ordinance.. 20. In the case of Tabavak Khan v. Province, of Bihar - AIR 1950 Patna 228 - a Division Bench of the Patna High Court was considering the question arising out of the Bihar Maintenance of Public Order (No. 2) Ordinance (IV(4) of 1949). The Bench had to consider the Ordinances issued under S.88(2) of the Government of India Act, 1935 which is in pari materia with Art.213 of the Constitution of India. The Bench had to consider the Ordinances issued under S.88(2) of the Government of India Act, 1935 which is in pari materia with Art.213 of the Constitution of India. In paragraph 11 of the aforesaid judgment their Lordships were dealing with the contention relating to amendment of the Ordinance, and the contention raised was: "that the Governor of Bihar had no power to amend the Ordinance. He argued that under S.88, Government of India Act, the power of the Governor to legislate was a limited authority. He argued that once an Ordinance was enacted by the Governor, be could neither repeal nor amend it". The above contention was negatived by the Division Bench and it was held: "In my opinion, the power to enact laws in a legislative authority contains within it the inherent power to repeal or amend an enacted law. Clause (c) of S.88(2) in my opinion, is merely an enabling provision by which the Governor could by some order withdraw an Ordinance duly promulgated by him without having recourse to promulgating a fresh Ordinance repealing the previous Ordinance. This does not mean that if the Governor wished to amend an Ordinance already promulgated by him, it was not within his competence to do so by duly promulgating an Ordinance under S.88, Government of India Act". In this context, it would be relevant to refer to the observations of Harries, C. J. (as he then was) in the Full Bench decision in the case of Jnan Prasanna v. Province of West Bengal - AIR 1949 Cal.1 wherein it was said: "Section 88(2) also provided that an Ordinance promulgated under that section shall have the same force and effect as an Act of the Provincial Legislature assented to by the Governor, and it appears to me that what the Provincial Legislature could do the Governor can do by Ordinance in a proper case. The Provincial Legislature could undoubtedly amend the existing Provincial law and that being so the Governor can do so by Ordinance if circumstances exist justifying the promulgation of such Ordinance". It was held that an Ordinance could be passed retrospectively since an Act can also be passed with retrospective effect. In Haran Chandra v. State of West Bengal -AIR 1952 Calcutta 907 - the legislative power of the Governor under S.88(1) of the Government of India Act 1935 was considered. It was held that an Ordinance could be passed retrospectively since an Act can also be passed with retrospective effect. In Haran Chandra v. State of West Bengal -AIR 1952 Calcutta 907 - the legislative power of the Governor under S.88(1) of the Government of India Act 1935 was considered. The Court held as follows: "The legislature power conferred on the Governor under S.88 is very wide and the Ordinance passed is an effective as an enactment of the Provincial Legislature. There is no restriction put on this legislative power except as to its duration. It is also well settled that an Ordinance can amend an Act of the Legislature". 21. Thus, there is nothing legally wrong in repeal of an Ordinance by another Ordinance. But while construing such a repeal one has to look into the provisions of Art.213 of the Constitution regarding the time limit as also the observations of the Supreme Court in Wadhwa 's case. If these repeals are clearly made with a view to avoid the Legislature whose functions is to pass Acts then such repeals will not be approved by the Court. Here, Ordinance 13/97 contains the saving clause, which was necessary because it had repealed the earlier Ordinance. If there would have been no saving clauses, then the action taken under the earlier Ordinance could not be continued. This power is derived from S.4 of the Interpretation of Statutes and General Clauses Act. The learned counsel for the petitioners then brought to our notice the observations of the Supreme Court in the case of State of Orissa v. Bhupendra Kumar - AIR 1962 SC 945. In Paragraph 19 thereof, the Supreme Court observed: "That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effects of which is in some respects similar to that of S.6 of the General Clauses Act. Incidentally, we ought to add that, it may not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by Art.213 (2)(a)". 22. In the aforesaid case the Supreme Court was considering whether the right created by a temporary statute and vested in a person could be taken away because the statute by which it was created had expired. 22. In the aforesaid case the Supreme Court was considering whether the right created by a temporary statute and vested in a person could be taken away because the statute by which it was created had expired. The Court held that if a penalty has been imposed under the statute, the imposition of penalty will survive the expiration of the statute. So the question whether a saving clause in the Ordinance could be provided did not arise for consideration. Further, if we look at the decision in Wadhwa's case their Lordships of the Supreme Court have approved the repromulgation of an Ordinance in certain circumstances. That impliedly approves the continuance of proceedings. Repromulgation of Ordinances are usually done to continue the proceedings initiated on the issue of first Ordinance. Further in the present case, we find that before the expiring of the first Ordinance, a second Ordinance was issued repealing the earlier Ordinance. The second Ordinance provided for the continuance of all the proceedings initiated under the earlier Ordinance. 23. Hence, we are of the view that the proceedings initiated under Ordinance 11 97 can be continued under Ordinance 13/97. Before we conclude our discussion on this point, we wish to observe that we have justified the promulgation of the second Ordinance because of the circumstances enumerated in the counter affidavit. It may not be taken as a green signal for issuing successive Ordinances amending the Abkari Act without taking appropriate steps in placing before the next session of the Assembly. The amendments introduced by the Ordinance are of a serious nature. The punishment has been enhanced and the bail conditions have been made more stringent. In such circumstances, we hope and trust that the State shall take proper initiative in placing the bill before the next Assembly session and shall not resort to the recourse of issuing successive Ordinances. The first contention is thus negatived. Point No. (2) : Whether the conditions for granting hail under the Act as amended by Ordinance 13/97 are unconstitutional being violative of Art.19 and 21 of the Constitution of India? 24. Earlier, before the impugned Ordinance, the offence under the Abkari Act were bailable. Under the present Ordinance the offences punishable for a term of less than 3 years have been made bailable while those punishable for a term more than 3 years have been made non-bailable. 24. Earlier, before the impugned Ordinance, the offence under the Abkari Act were bailable. Under the present Ordinance the offences punishable for a term of less than 3 years have been made bailable while those punishable for a term more than 3 years have been made non-bailable. Ss.41 and 41A are the relevant Sections. The provisions of Ss.41 and 41A may be noticed: - Section 41: "When any person accused of or suspected of the commission of an offence punishable with imprisonment which may not extend to three years under this Act is arrested Or brought under the provisions of S.40, he may be released on bail, if sufficient bail be tendered for the appearance before an Abkari Inspector or before a Magistrate, as the case may be, but shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with imprisonment which may extend to three years or more".; S.41A : "(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974): (a) every offence punishable under this Act shall be cognizable. (b) no person accused of an offence punishable for a term of imprisonment of three years of more under this Act shall be released on bail or on his own bond unless - (i) the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor or the Assistant Public Prosecutor, as the case may be, oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and mat he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-s.(1) are in addition to the limitation under the Code of Criminal Procedure, 1973, or any other law for the time being in force on granting of bail". 25. According to the petitioners, the conditions imposed for granting bail are most stringent and that no person would he entitled to get bail. 25. According to the petitioners, the conditions imposed for granting bail are most stringent and that no person would he entitled to get bail. It was contended that in view of the amended S.41 if a person is accused of an offence or is suspected to have committed an offence which is punishable for three years or more, he will not be granted bail under the Act. This does not appear to be correct. If we read Ss, 41 and 41A together, it is clear that there is no basis for such an assumption. The offences, which are punishable for a term of less than three years are bailable and those which are punishable for three years or more are not bailable. So far as the offences which are punishable for less than three years are concerned, there is no difficulty and S.41 itself says that they shall be released on bail. It is true that the last sentence in S.41 gives an impression that if the accused person is guilty of an offence punishable with imprisonment which may extend to three years or more, he shall not be released on bail. But both the Ss.41 and 41A are to be read together and harmonious construction is required to be given. As per S.41 A, bail can be granted by the Court, but before granting bail, the court is required to hear the Public Prosecutor and it shall release the accused on bail provided there are reasonable grounds for believing that he is not guilty of such offences and further that he is not likely to commit any offence while continuing on bail. Sub-s.(2) of S.41A is specific that the limitations imposed under clause (b) of sub-s.(1) are in addition to the limitations provided under the Code of Criminal Procedure, 1973 or any other law for the time being in force. 26. The first challenge against S.41A is that it is confined only to a person accused of an offence punishable for a term with imprisonment of three years on more and it does not make any provision about a person who is suspected of the commission of an offence punishable with imprisonment which may extend to three years or more. 26. The first challenge against S.41A is that it is confined only to a person accused of an offence punishable for a term with imprisonment of three years on more and it does not make any provision about a person who is suspected of the commission of an offence punishable with imprisonment which may extend to three years or more. The learned Advocate General pointed out that there appears to be an omission in S.41A and according to him, S.41A covers not only a person accused of an offence punishable for imprisonment of three years or more, but also includes a person suspected of an offence which is punishable for three years or more and is also liable to be released on bail, if the conditions mentioned in S.41A are satisfied. Thus, S.41A has to be read as inclusive of a person also suspected of an offence. 27. It was next contended that a person accused of an offence means a person against whom process has been issued. It means that before the process is issued under S.202 of the Code of Criminal Procedure such a person will not be entitled to bail. The learned counsel for the petitioners relied on the decision of this court in the case of State of Kerala v. Balakrishnan -1991 (2) KLT 323. The learned Advocate General disputed the aforesaid contention and submitted that the person accused of an offence does not mean that it is a person against whom a formal enquiry is initiated. It does not require a formal accusation by issue of a process of the Court. Thus when the Abkari Inspector or the police produces any person in court on the basis of the information garnered that the said person has committed an offence under the Abkari Act, the said person is entitled to move for bail. The learned Advocate General referred to S.437 of the Code of Criminal Procedure wherein the same expression appears "a person accused of an offence". It is well known that the bail proceedings are primarily intended for the smooth investigation of an offence of which a person is accused. The person should be made available for the purpose of investigation. The court has the discretion to grant bail after taking into account the attending circumstances in a given case. 28. It is well known that the bail proceedings are primarily intended for the smooth investigation of an offence of which a person is accused. The person should be made available for the purpose of investigation. The court has the discretion to grant bail after taking into account the attending circumstances in a given case. 28. The term'accused of an offence' has come up for interpretation before the Supreme Court in many other cases, especially under Art.20(3) of the Constitution of India. It has been made clear that formal accusation by issue of a process is not necessary and that a person will be accused of an offence from the moment he is named in the First Information Report - See Sarma v. Satish - (1954) SCR 1077. So also it has been held that if a person has been named in the First Information Report which would in the normal course result in prosecution or that a show cause notice is issued under the Foreign Exchange Regulations or an F.I.R. is registered under the Foreign Exchange Regulation Act, 1947, the person will be deemed to be accused - See Ramanlal v. Gupta-MR 1973 SC 1196. Thus, it is not necessary that for moving a bail application the person who is under custody should wait till the process is issued under S.202 of the Code of Criminal Procedure. As soon as the person is arrested and produced before the Magistrate, he is entitled to move an application for bail. 29. The decision cited by the learned counsel for the petitioners in the case of State of Kerala v. Balakrishnan -1991 (2) KLT 323 - has no relevance in so far as the question in issue is concerned. In the said case, this court held that after the Abkari Inspector reports under S.50 of the Act, the Magistrate shall enquire into such offence and try the person accused in the like manner, as if the complaint had been filed before him as prescribed in the Code of Criminal Procedure. It is for the Magistrate to enquire into such offence and try the same in accordance with the provisions of the Code. The Magistrate shall conduct an enquiry under the proviso to S.202(2) of the Code of Criminal Procedure. It is for the Magistrate to enquire into such offence and try the same in accordance with the provisions of the Code. The Magistrate shall conduct an enquiry under the proviso to S.202(2) of the Code of Criminal Procedure. If the complaint filed under S.50 of the Abkari Act discloses an offence exclusively triable by the Sessions Court, the Magistrate shall conduct the mandatory enquiry contemplated under the proviso to S.202(2) of the Code of Criminal procedure by calling upon the complaint to produce all the witnesses and examine them on oath. Thereafter, the case shall be committed to the Sessions Court. There, this court was only considering the procedure to be adopted by the Magistrate before committing the case to the Sessions Court and held that only after a mandatory enquiry contemplated under the proviso to S.202(2) of the Code was conducted, the case shall be committed to the Sessions Court. But it is not necessary for the purpose of considering the application for bail. 30. It was further submitted on behalf of the petitioners that the subordinate criminal courts are taking the view that on account of the stringent provision under S.41A, the accused is not entitled to bail once the Public Prosecutor opposes the application for bail. A few orders passed by the subordinate courts were brought to our notice whereby the bail was refused simply because the Public Prosecutor opposed the application. It was pointed out that the provision contained in S.41 A(1)(b)(ii) whereby the Court is empowered to grant bail only when there are reasonable 'grounds for believing that the accused person is not guilty of such offence is contrary to the provisions of S.437 of the Code of Criminal Procedure and therefore, illegal. The, learned Advocate General contended that Cl. (b)(ii) has to be read along with clause (2) of S.41A which says that the conditions mentioned in Cl. (b)(i) and (ii) are in addition to the conditions mentioned in S.437 of the Code of Criminal Procedure, Thus, for granting bail, the court has to take into consideration the conditions mentioned in S.41A(b)(2) as also the conditions mentioned in S.437 of the Code of Criminal Procedure. The validity of similar clauses akin to S.41A(b)(2) came up for consideration before the Supreme Court in the case of Kartar Singh v, State of Punjab - (1994) 3 SCC 569. The validity of similar clauses akin to S.41A(b)(2) came up for consideration before the Supreme Court in the case of Kartar Singh v, State of Punjab - (1994) 3 SCC 569. It was considering the provisions of the TADA Act. In that case, a Bench of five judges of the Supreme Court was considering the constitutional validity of different provisions of the TAD A Act. Ss.20(8) and 20(9) of the TADA Act deal with the provisions for granting bail. "20(8). Notwithstanding anything contained in the Code, no person accused of; an offence punishable under this Act or any rule made there under shall, if in custody, be released on bail or in his own bond unless: (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is likely to commit an offence while on bail. (9) The limitation on granting of bail specified in sub-s.(8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail". After considering the validity of the contentions in Paragraph 349, Pandian, J. observed: "The conditions imposed under S.20(8)(b), as rightly pointed out by the Additional Solicitor general, are in consonance with the conditions prescribed under Cl. (i) and (ii) of sub-s.(1) of S.437 and clause (b) of sub-s.(3) of that section. Similar to the conditions in clause (b) of sub-s.(8), there are provisions in various other enactments - such as S.35(1) of Foreign Exchange Regulation Act and S.104(1) of the Customs Act to the effect that any authorised or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the condition that "there are grounds for believing that he is not guilty of an offence", which condition in different form is incorporated in other Acts such as cl. (i) of S.437(1) of the Code and S.35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Art.21 of the Constitution". 31. (i) of S.437(1) of the Code and S.35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Art.21 of the Constitution". 31. Thus, we do not find any merit in the various contentions advanced by the petitioners challenging the validity of S.41 and S.41A of the Amendment Act. They are constitutionally valid. The Criminal Court has to consider the bail application in advance with the provisions contained in Ss.41 and 41A read with S.437 of the Code of Criminal Procedure and the attending circumstances of each individual case. The bail application is not to be dismissed merely because the Public Prosecutor opposes it. Point No. (3): Whether the provisions imposing punishments under S.8(2) and S.55(2) of the Act are unconstitutional and disproportionate to the offences alleged to have been committed? Whether the simultaneous prosecution under S.8(2) and S.55(1) of the Act are unconstitutional and violative of Arts.14 and 20(2) of the Constitution of India? Whether the definition of 'arrack' is vague and arbitrary and, therefore, the penalty proposed under S.8(2) is also arbitrary and unconstitutional? - 32. One of the contentions raised by the petitioners was that the punishment sought to be imposed has no nexus proportionality with the offence alleged to have been committed. According to the petitioners, penalty for the offences under the Act has been enhanced considerably by the present Ordinance. Particular attack was made with regard to S.8(2) according to which if any person acts contrary to any provisions of sub-s.(1), he shall be punishable with imprisonment for a term which may extend to 10 years and with a fine which shall not be less than Rs .'1 lakh. Under S.8(1) there is a prohibition in manufacturing, dealing or in possessing any quantity of arrack. Similarly under S.55, the punishment has been increased to 10 years when, originally, it was only two years. The punishment of six months and fine has been increased to five years with fine of Rs. 25,000/-. The contention is that under Art.21 of the Constitution, the procedure established by law has to be maintained in respect of the life of a citizen. It was submitted that till 1996 arrack was consumable. The consumption was prohibited in 1996. The punishment of six months and fine has been increased to five years with fine of Rs. 25,000/-. The contention is that under Art.21 of the Constitution, the procedure established by law has to be maintained in respect of the life of a citizen. It was submitted that till 1996 arrack was consumable. The consumption was prohibited in 1996. No doubt, after the imposition of prohibition, trade in arrack has been prohibited and the authorities are well within their right to enforce the prohibition. But the sentence imposed should be commensurate to achieve this object. The Act itself defines arrack as a potable liquor. Hence to impose punishment of 10 years for the possession of even a small quantity of arrack would be unjustified. 33. The learned Advocate General contended that the quantum of punishment is a matter for the Legislature and the law making authority. This court will got enter into the sufficiency or otherwise of the punishment unless it finds that it is shockingly disproportionate, arbitrary or inhumane. It was contended that what is provided by the Ordinance is the maximum punishment and the court has to impose punishment taking into account the particular facts of each case. Even though the punishment is prescribed by the Legislature, the sentence is to be awarded by the Court and it is not expected that the court will impose disproportionate punishment on any individual accused. The prohibition policy' has to be strictly enforced by the State. With this end in view, more stringent steps were taken by the State. It was brought to our notice that frequent tragedies occurred due to consumption of illicit and adulterated liquor. It is to prevent such recurrence of these offences that the law making authority, in its own wisdom, decided to provide harsh punishment. 34. On the contrary, the petitioners referred to the decision of the Supreme Court reported in Mithu v. State of Punjab - AIR. 1983 SC 473. That was a case where the Supreme Court was considering the validity of S.303 of the Indian Penal Code. That Section provides punishment for murder by life convict stating that if a person, being under sentence of imprisonment for life commits murder, shall be punished with death. No discretion is left to the court in awarding punishment. 1983 SC 473. That was a case where the Supreme Court was considering the validity of S.303 of the Indian Penal Code. That Section provides punishment for murder by life convict stating that if a person, being under sentence of imprisonment for life commits murder, shall be punished with death. No discretion is left to the court in awarding punishment. The court struck down S.303 and held as follows: "Section 303 of the Penal Code violates the guarantee of equality contained in Art.14 as also the right conferred by Art.21. of the Constitution that no person shall be deprived of his life or personal liability except according to procedure established by law. The section was originally conceived to discourage assaults by life-convicts on the prison staff, but the Legislature chose language which far exceeded its intention. The section also assumes that life-convicts are a dangerous breed of humanity as a class. That assumption is not supported by any scientific data". In that case, on behalf of the State, the decision in Bachan Singh v. State of Punjab - AIR 1980 SC 898 - was cited for saving the provision of S.303. In Bachan Singh's case, the validity of death sentence was upheld. While considering that decision, the learned Chief Justice Chandrachud observed: "It may be recalled that S.302 provides for the sentence of death as an alternative sentence which may be imposed. The normal sentence for murder is life imprisonment; and if the death sentence has to be imposed, the court is under a legal obligation under S.354(3) of the Cr. P.C. to state the special reasons for imposing that sentence. That explains why, in Bachan Singh, Sarkaria, J. who spoke for the majority, under -scored the words "alternative" and "may" in Para 19 of the judgment whilst observing that the Penal Code prescribed death as an alternate. punishment to which the offender may be sentenced in cases relating to seven kinds of offences. That explains why, in Bachan Singh, Sarkaria, J. who spoke for the majority, under -scored the words "alternative" and "may" in Para 19 of the judgment whilst observing that the Penal Code prescribed death as an alternate. punishment to which the offender may be sentenced in cases relating to seven kinds of offences. The majority concluded mat S.302 of the Penal Code is valid for three main reasons: Firstly, that the death sentence provided for by S.302 is an alternative to the sentence of life imprisonment; secondly, that special reasons have to be stated if the normal rule is departed from and the death sentence has to be imposed; and thirdly, because the accused is entitled, under S.235(2) of the Criminal P.C. to be heard on the question of sentence. The last of these three reasons becomes relevant, only because of the first of these reasons. In other words, it is because the court has an option to impose either of the two alternative sentences, subject to the rule mat the normal punishment for murder is life imprisonment, that it is important to hear the accused on the question of sentence. If the law provides a mandatory sentence of death as S.303 of the Penal Code does, neither S.235(2) nor S.354(3) of the Code of Criminal Procedure can possibly come into play. If the court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question of sentence and it becomes superfluous to state the reasons for imposing the sentence of death. The blatant reason for imposing the sentence of death in such a case is that the law compels the court to impose that sentence". 35. In Maneka Gandhi's case - AIR 1978 SC 597 - the Supreme Court observed that "No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law". These decisions have expanded the scope of Art.21 in a significant way and it is now too late in the day to contend that it is for the Legislature to prescribe the procedure and for the courts to follow it and it is for the Legislature to provide the punishment and for the Courts to impose it. These decisions have expanded the scope of Art.21 in a significant way and it is now too late in the day to contend that it is for the Legislature to prescribe the procedure and for the courts to follow it and it is for the Legislature to provide the punishment and for the Courts to impose it. Chief Justice Chandrachud made the following illustrations in the case: "Two instances, undoubtedly extreme, may be taken by way of illustration for the purpose of showing how the courts are not bound, and are indeed not free to apply a fanciful procedure by a blind adherence to the letter of the law or to impose a savage sentence. A law providing that an accused shall not be allowed to lead evidence in self-defence will be hi t by Arts.14 and 21 Similarly, if a law were to provide that the offence of theft will be punishable with the penalty of the cutting of hands, the law will be bad as violating Art.21. A savage sentence is anathema to the civilized jurisprudence of Art.21. These are, of course, extreme illustrations and we need have no fear that our legislatures will ever pass such laws". 36. But similar is not the case here. Here, it is only fixes the maximum punishment. The Criminal Procedure Code is made applicable. Under S.235(2) of the Code of Criminal Procedure, in the trial before the Sessions Court if the accused is convicted, the judge shall, unless he proceeds in accordance with the provisions of S.360, hear the accused on the question of sentence and then pass sentence on him according to law. So also in the trial before the Magistrate in warrant cases where the Magistrate finds that the accused is guilty, he shall, after hearing the accused under S.242(2) on the question of sentence, pass sentence on him according to law. Thus, an opportunity is given to the accused to explain any mitigating circumstances for awarding a less or sentence. In so far as this provision exists, we don't think that an accused should be given any punishment disproportionate to the offence committed. 37. It cannot be said that fixing of higher punishment is arbitrary and violative of the Constitution of India. There is a presumption in favour of the constitutionality of an enactment. In so far as this provision exists, we don't think that an accused should be given any punishment disproportionate to the offence committed. 37. It cannot be said that fixing of higher punishment is arbitrary and violative of the Constitution of India. There is a presumption in favour of the constitutionality of an enactment. The following observations of Stewart, J. in Gregg, v. Georgia - 428 U.S.153 - are worth mentioning: "We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people. This is true in part because the' constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. In a democratic society legislatures, not courts, are constituted to resort to the will and consequently the moral values of the people. 38. The contention that there is no nexus between the punishment and the object sought to be achieved by the amendment is not correct. There are valid and sufficient reasons providing for severe punishment under the Abkari Act. The World Health Organisation has determined that alcohol causes 3 to 4% of global death and disability and is 5 times more severe than illegal drugs in terms of the impact on global health. A true copy of a document titled ' a summary of alcohol policy and public good'- a guide for action published by Oxford University Press in Association with World Health Organisation - has been placed on record marked Ext. R1 (c). This details the individual and social harm caused by alcohol and establishes that alcohol inflicts a costly and unwelcomed burden on the majority of societies especially in the developing world. It focuses on the problems in the community generated alcohol. In meeting with the changing trends, the Government in the interests of the health of its people have thought it prudent and advisable to provide stringent measures to combat illegal trade in liquor and adulteration of liquor. It was stated that past experience has shown that the profitability in the liquor trade being very high, ordinary punishments provided in the Abkari Act had no effect on the offenders. It was stated that past experience has shown that the profitability in the liquor trade being very high, ordinary punishments provided in the Abkari Act had no effect on the offenders. The low fines and the present terms coupled with the fact that the offences could be compounded resulted in the unabated violation of the laws with impunity. The organised trade in illicit and adulterated liquor generates very large amounts of black money and is used to pay up the fines and also provide assistance to the families of the employees who are caught and punished under the Abkari Act. The perpetrators of the pernicious offences always keep away from the clutches of the law and if at all caught, manage to get the offence compounded by payment of money. The constitutional mandate of Art.47 enjoins upon the Government to bring about prohibition. It is in the aforesaid circumstances that the Government took a policy decision to provide for stringent and deterrent punishment for abkari offences. The wisdom of the Government providing stringent punishment is not unreasonable or arbitrary in view of Art.47 of the Constitution. There is no fundamental right in any one to trade in or to consume liquor under our Constitution. The contention of the petitioners that even if a man is caught with 100 ML of liquor in excess of permissible quantity he would be punished with imprisonment for 10 years and a fine of Rs.1 lakh does not appear to be correct. The possession of illegal or adulterated liquor is in itself an offence. The quantity of liquor found to be in the possession of the offender is in it self not an indicator of the gravity of the offence. The intention of the Government is to eradicate the evil of trade in illegal and adulterated liquor. The trade in illegal and adulterated liquor is carried on using large number of individuals who in themselves may only be carrying shall quantities of illegal or adulterated liquor. 39. The next contention urged is that in accordance with the amendment a person can be prosecuted for the same offence under S.8(2) and S.55(1) of the Act. Thus, he is liable to be punished under both these Sections. 39. The next contention urged is that in accordance with the amendment a person can be prosecuted for the same offence under S.8(2) and S.55(1) of the Act. Thus, he is liable to be punished under both these Sections. In order to appreciate the contention, it is relevant to notice the provisions of Ss.8(2) and 55(1) of the Act: "8(2) If any person contravenes any provisions of sub-s.(1) he shall be punishable with imprisonment for a term which may extend to ten years and with a fine which shall not be less that rupees one lakh". "55. For illegal import, etc: -Whoever in contravention of this Act or of any rule or order made under this Act or of any licence or permit obtained under this Act. (a) imports, exports, transports, transits or possessess liquor or any intoxicating drug; or (b) manufactures liquor or any intoxicating drug: (c) cultivates the hemp plant Cannabis Saliva or collects any portion of such plant from which an intoxicating drug can be manufactured; or (d) taps or causes to be tapped any toddy-producing tree, or (e) draws or causes to be drawn toddy from any tree; or (f) constructs or works any distillery, brewery, winery or other manufactory in which liquor is manufactured; or (g) uses, keeps or has in his possession any materials, still, utensils, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; or (h) bottles any liquor for purposes of sale; or (i) sells liquor or any intoxicating drug; shall on conviction before a Magistrate be punished - (1) for any such offence, other than an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fide which may extend to one lakh rupees". A reading of Ss.8(2) and 55(1) of the Act shows that the offence under S.8(2) is also covered and included under S.55(1) of the Act. Manufacture, transport, export and import of arrack is prohibited under S.8(1) of the Act. So, the violation of the provisions of S.8(1)is also included and covered under S.55(1) of the Act. The learned Advocate General submitted that it was by way of abundant caution that S.8(2) of the Act was introduced. It is only from the year 1996 that the prohibition in the export, import, transport, etc of arrack was introduced. So, the violation of the provisions of S.8(1)is also included and covered under S.55(1) of the Act. The learned Advocate General submitted that it was by way of abundant caution that S.8(2) of the Act was introduced. It is only from the year 1996 that the prohibition in the export, import, transport, etc of arrack was introduced. So, by way of abundant caution S.8(2) of the Act was also introduced so as to obviate any argument that violation of S.8(1) does not come under S.55(1) of the Act. We find that reading the two Sections 8(2) and 55(1) of the Act together, the offence under S.8(1) is also included and covered under S.55(1) of the Act, and the maximum punishment are the same. Therefore, the apprehension that a, person will be punished under both Ss.8(2) and 55(1) of the Act for the same offence is unwarranted. 40. The next contention is whether the definition of arrack' is vague and arbitrary and, therefore, the penalty proposed under S.8(2) is also arbitrary and unconstitutional ? 'Arrack' is defined in S.3(6A) as follows.: "Arrack means any potable liquor other than Toddy, Beer, Spirits of Wine, Wine, Indian made spirit, foreign liquor and any medicinal preparation containing alcohol manufactured according to a formula prescribed in a pharmacopoeia approved by the Government of India or the Government of Kerala, or manufactured according to a formula approved by the Government of Kerala in respect of patent and proprietary preparations or approved as a bona fide medicinal preparation by the Expert Committee approved under S.68A of the Act". The contention raised on behalf of the petitioners is that the definition of arrack under the Kerala Abkari Shops (Disposal in auction) Rules 1974 as it stood earlier means spirit manufactured from molasses or from jaggerry in any approved distilleries in India not coloured or flavoured and reduced to 25° UP (under proof). Again R.2 of the Foreign Liquor Rules as it stood earlier, provided that the minimum strength at which imported and Indian made Foreign Liquor can be sold at 35° UP for minimum 25° UP for all other kinds of spirits. So also in the case of coconut toddy arrack which was coloured, flavoured and bottled in the licensed distilleries in the State shall also conform to the minimum of 25° UP. So also in the case of coconut toddy arrack which was coloured, flavoured and bottled in the licensed distilleries in the State shall also conform to the minimum of 25° UP. Now, no such standard has been either fixed by the Act or the Rules in the case of the so-called arrack for which there is now the new penal provision. The term has to be defined in positive terms as to what arrack is and what it should be. The citizen has got a right to know what exactly the prohibited act constitutes as an offence. So creating of an offence with vagueness is illegal, arbitrary and unconstitutional for its vagueness and uncertainty. According to the petitioners, a minimum strength ought to have been prescribed for arrack in order to make its possession or manufacture penal. We cannot accept such a contention. Legislature in its wisdom has defined 'arrack' as a potable liquor other than toddy, beer, etc. The intention of the Legislature appears to be to prohibit arrack of any strength. Hence, it cannot be said that the definition of arrack is vague, since no minimum strength is prescribed. An enactment is void for vagueness if its prohibition is not defined - See Kartar Singh v. State of Punjab - (1994) 3 SCC 569. In that case the Supreme Court was dealing with the definition of 'abet' in S.2(1)(a)(i) of the Terrorist and Disruptive Activities (Prevention) Act. S.2(1)(a)(i) is as follows: "2(1). In this Act, unless the context otherwise requires: (a) 'abet' with its grammatical variations and cognate expressions, includes - (i) the communication or association with any person or class of persons who. is engaged in assisting in any manner terrorists or disruptionists". The argument before the Supreme Court was that even a person who is entirely innocent of any terrorist or disruptive activity may be punished. In paragraph 128 of the judgment, the Supreme Court observed as follows: "Therefore, when the substantive provisions of the Act expressly require the intention as an essential ingredient to constitute an offence, can it be said that the ingredient of definition should be excluded on the part of the abettor who abets those substantive offences. In paragraph 128 of the judgment, the Supreme Court observed as follows: "Therefore, when the substantive provisions of the Act expressly require the intention as an essential ingredient to constitute an offence, can it be said that the ingredient of definition should be excluded on the part of the abettor who abets those substantive offences. In other words, can it be said that the abettor has abetted the substantive offence without any guilty mind (means real or without actual knowledge as to what would be the consequence of his designed Act". Finally the Court held that the abettor should be shown to have actual knowledge or to have reason to believe that the person or class of persons with whom he is charged to have communicated or associated is engaged in assisting in any manner the terrorists and disruptionists. After considering the arguments of the parties and in the light of the decision in Kartar Singh's case, we do not find any vagueness in S.3(6A) which defines 'arrack'. Hence, we do not find any merits in the contention urged under Point No. (3) and the same is rejected. In the result, these petitions are disposed of with the directions indicated above.