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2002 DIGILAW 453 (KER)

S. Balan v. State of Kerala

2002-07-11

G.SASIDHARAN

body2002
Judgment :- G.Sasidharan, J. The maximum quantity of Indian made foreign liquor one can possess as per the notification G.O. (P) No.22/99/TD (S.R.O.No.127/99) dated 5.2.1999 issued by the Government of Kerala under Sections 10 and 13 of the Abkari Act is 1.5 litres. The same notification fixes the maximum quantity of toddy, beer, wine, foreign made foreign liquor and coco brandy one can possess. The table appended to the notification gives the details in that respect and the table is shown below: 2. The petitioner is an ex-serviceman. He after retirement from the Military Service, is now working as a civilian driver in the Military Engineering Services at the Naval Base, Kochi. Petitioner was made an accused in the crime alleging that he was found keeping in his possession in a big shopper 4 bottles each containing 450 ml. of Indian made foreign liquor. Crime 56 of 2002 was registered against him in Harbour Police Station alleging that he was found keeping in his possession Indian made foreign liquor in excess of the quantity he can possess as per the notification mentioned above. According to the petitioner, he did not commit any offence because he is an ex-serviceman who can possess 6 units of liquor at a time. The submission made for and on behalf of the petitioner is that the canteen permit issued to him says that he can purchases 6 units of liquor in a month. On the strength of the canteen permit issued to him the petitioner can purchase 6 units from the canteen at a time and hence he says that he can take home the 6 units of Indian made foreign liquor. The learned counsel appearing for the petitioner would point out Rule 13(8) of the Foreign Liquor Rules which says that licenses in Form FL 8 shall be issued by the Assistant Excise Commissioner on payment of an annual fee of Rs. 50/- and that the issue of every such license shall be protected to the Excise commissioner. The learned counsel appearing for the petitioner would point out Rule 13(8) of the Foreign Liquor Rules which says that licenses in Form FL 8 shall be issued by the Assistant Excise Commissioner on payment of an annual fee of Rs. 50/- and that the issue of every such license shall be protected to the Excise commissioner. Condition No.1 in Form FL8 license reads as follows: "The privilege extends only to the possession, sale and distribution of foreign liquor, Indian made foreign liquor and beer brewed in India to the personnel attached to the unit and the ex-service men." The argument advanced is that in condition No.1 special privilege is given to ex-service men for possession of Indian made foreign liquor and that privilege is as per the license issued under Rule 13(8) of the foreign Liquor Rules. It is true that Rule 13(8) says about issueance of license in Form FL8 by the Assistant Excise Commissioner on payment of annual fee. Petitioner cannot be said to be a person in whose favour license in Form FL8 was issued by the Assistant Excise Commissioner. FL8 license is issued for possession, distribution and sale of Indian made foreign liquor and beer brewed in India in Canteen/Mess attached to Military Units. Here, the license was granted under Form FL8 to the Military Canteen from which the petitioner can purchase Indian made foreign liquor or beer on the strength of the canteen permit issued to him. That does not mean that an ex-serviceman can possess more than the quantity fixed by the notification issued by the Government of Kerala. 3. Coming to Condition No.1 in FL8 license, what is said in that condition is that the privilege extends only to the possession, sale and distribution of foreign liquor, Indian made foreign liquor and beer brewed in India. The possession, sale and distribution made mention of in Condition No.1 is by the unit to which FL8 license is issued. In Condition No.1 the term "and ex-servicemen" was inserted by S.R.O.780/75 dated 9-9-1975. The attempt made by the learned counsel appearing for the petitioner is to establish that by inserting the above term in Condition No.1 in 1975 it was made clear that ex-servicemen can also, possess foreign liquor, Indian made foreign liquor and beer under Condition No.1. In Condition No.1 the term "and ex-servicemen" was inserted by S.R.O.780/75 dated 9-9-1975. The attempt made by the learned counsel appearing for the petitioner is to establish that by inserting the above term in Condition No.1 in 1975 it was made clear that ex-servicemen can also, possess foreign liquor, Indian made foreign liquor and beer under Condition No.1. But a close reading of Condition No.1 would go to show that the privilege to possess, sell and distribute foreign liquor is given to the unit to which FL8 license is issued. Before the insertion of the term and ex-servicemen what was there in Condition No.1 was that the distribution of foreign liquor, Indian made foreign liquor and beer brewed in India could be to the personnel attached to the Unit. In 1975 the words and the ex-servicemen were inserted for the purpose of making it clear that from that day distribution of liquor can be to the ex-servicemen also. Before the insertion of the above words what Condition No.1 said was that sale and distribution of liquor could be to the personnel attached to the Unit. So, the insertion of the words and ex-servicemen in 1975 was not for the purpose of giving the privilege of possession of Indian made foreign liquor by ex-servicemen. What Condition No1 says is that sale and distribution of liquor and beer could be to the personnel attached to the Unit and ex-servicemen. That condition does not, in any way, authorize personnel attached to the Unit and ex-servicemen to possess any quantity of liquor or beer. Sale and distribution of liquor and beer in Condition No.1 can be only by the unit to which FL8 license is issued. On the strength of Rule 13(8) of the Foreign Liquor Rules and Condition No.1 in Form FL8 license an ex-serviceman cannot say that he can possess liquor in excess of the quantity mentioned in the notification issued by the Government of Kerala. 4. Condition No. 3 in form FL8 license says that liquor shall be sold, distributed or served only to full-time defence personnel attached to the unit mentioned in condition at that scale fixed for each for consumption on the premises and to ex-servicemen. The ex-servicemen have to produce non-transferable canteen stores permits issued to them and the Discharge Certificates at the time of making purchase. The ex-servicemen have to produce non-transferable canteen stores permits issued to them and the Discharge Certificates at the time of making purchase. Liquor will be sold to ex-servicemen only at the scale fixed in the Canteen Stores permit. In Condition No.3 it is stated that liquor shall not be issued for consumption outside the premises provided that married full-time officers while on duty or while they are residing at a military station during leave and ex-servicemen can take liquor to their residences for personal consumption. The above condition does not say what is the quantity of liquor ex-servicemen can take to their residence for personal consumption. In condition No.3 provision is made that ex-servicemen can take liquors to their residence for personal consumption because it is also mentioned in that condition that liquor shall not be issued for consumption outside the premises. The provision that married full-time officers while on duty or while they are residing at a military station during leave and ex-servicemen can take liquors to their residences for personal consumption is made as a provisio to the general statement that liquor shall not be issued for consumption outside the premises. It may be that an ex-serviceman can purchase 6 units of liquor as per the Canteen Stores permit. What is said in the permit is that 6 units is the quantity of liquor given to ex-serviceman in a month. The submission made is that from the canteen ex-servicemen will be allowed to purchase only once in a month and he has to purchase the entire quantity of 6 units at that time and hence he can take the entire 6 units of liquor purchased by him to his residence for personal consumption. The arrangements that the entire quantity of liquor an ex-serviceman can purchase in a month has to be purchased by him at a time does not permit him to violate the conditions in the notification issued by the Government of Kerala that the maximum quantity of Indian made foreign liquor one can possess is 1.5 litres. The arrangements that the entire quantity of liquor an ex-serviceman can purchase in a month has to be purchased by him at a time does not permit him to violate the conditions in the notification issued by the Government of Kerala that the maximum quantity of Indian made foreign liquor one can possess is 1.5 litres. When the notification says that the maximum quantity of Indian made foreign liquor one can possess at a time is 1.5 litres, the procedure regarding sale of liquor from the military canteen has to be modified so that the person, who purchases the same for the purpose of taking it home, may not violate the provisions of law and also rules issued and notifications made by the Government in exercise of the powers conferred as per the provisions of law. Defence personnel attached to the Unit mentioned in the conditions in Form FL8 license and ex-servicemen cannot possess more thatn 1.5 litres of Indian made foreign liquor. There is no reason for quashing the first information report in Crime 56 of 2002 of Harbour Police Station. This petition dismissed.