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Kerala High Court · body

2003 DIGILAW 259 (KER)

Unni v. State of Kerala

2003-03-31

A.K.BASHEER

body2003
Judgment :- 1. Bacchus, if he were alive today, might have relished and enjoyed a goblet of toddy from the God's own country. But the short question that has come up for consideration in this Original Petition would have definitely rattled and bamboozled Bacchus. 2. The question : Is the licensee of a toddy shop liable to be prosecuted under S.57(a) of the Kerala Abkari Act (for short 'the Act') if the toddy kept for sale in the shop is found to have contained alcohol in excess of the permissible limit of 8.1 % v/v? 3. It is admitted that the sample of toddy taken from the toddy shop of the licensee (petitioner No.2) is found to have contained 9.5% by volume of ethyl alcohol in Ext.P1 Report of Chemical Examiner. On the basis of the above Report of Analysis Petitioner No.2, the licencee of the toddy shop and petitioner No.1, his employee were proceeded against and a crime was registered against them under S.56(b) and 57(b) of the Act. The gravamen of the charge levelled against the petitioners as revealed from Ext.P2 Crime and Occurrence Report is that the sample of toddy taken for analysis from the toddy shop belonging to petitioner No.2 is found to have contained 9.50% v/v of ethyl alcohol and thereby the licencee and his employee have committed offences punishable under S.56(b) and 57(a) of the Kerala Abkari Act. 4. S.3(8) of the Act defines toddy: "3(8) Toddy : 'Toddy" means fermented or unfermented juice drawn from coconut, palmyra, date, or any other kind of palm tree". R.2(b) of the Kerala Rectified Spirit Rules, 1972 defines alcohol: "2(b) "alcohol" means ethyl alcohol of any strength and purity having the chemical composition C2 H2 OH". 5. R.9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 (for short the Rules) which is relevant for the purpose of this case reads as follows: "9(2) : No toddy other than that drawn from the coconut, palmyrah or choondappana palms shall be sold by the licencees. All toddy kept or offered for sale should be of good quality and unadulterated. Nothing shall be added to it to increase its intoxicating power or for any other purpose. All toddy kept or offered for sale should be of good quality and unadulterated. Nothing shall be added to it to increase its intoxicating power or for any other purpose. The ethyl alcohol content of toddy kept or offered for sale drawn from coconut, palmyrah and choondappana palms should not exceed 8.1% v/v, 5.2% v/v and 5.9% v/v respectively." It can be seen from sub-r.(2) of R.9 of the Rules that the ethyl alcohol content of toddy drawn from coconut tree should not exceed 8.1% v/v. Ext.P1 report of Chemical Analysis shows that the sample taken from the premises of the toddy shop of the petitioners contained 9.5% v/v of ethyl alcohol. It is apparent that the ethyl alcohol content permissible for toddy drawn from coconut tree having exceeded the permissible limit of 8.1 % v/v, the petitioners have violated one of the "special conditions applicable to licencees for the privilege of vending toddy in independent shops" as provided under Chap.VIII of the Rules. 6. It is pertinent to note that the strength of ethyl alcohol was prescribed in the Rules for the first time with effect from 1.4.2000. Even before introduction of the maximum content of ethyl alcohol in toddy (8.1% v/ v), the Excise Manual had categorised toddy as a fermented liquor along with beer, wine, etc. Paragraph 6(a) of Chap.V of Volume II of the Excise Manual defines fermented liquors, which reads as follows: "6(a) Fermented liquors:- Toddy, Beer, Wines, etc. come under the category of fermented liquors. The maximum self-generated alcohol content that will be present in a Fermented liquor, which is not fortified is only 12% by volume. Because when alcohol reaches this volume, the yeast responsible for the fermentation is destroyed by its own by-product and no further alcohol formation is possible." Toddy is dealt with in Chap.10 of Volume II of the Manual. Paragraphs 4,5 and 6 of Chap.10 are extracted hereunder: 4. The toddy yield from each kind of tree and the alcoholic strength of toddy varies according to the season of the year, the time during which it is drawn and other attendant circumstances. The daily average yield for Excise Departmental purposes may be taken as 11/2 litres per coconut tree, 41/2 litres per palmyrah tree and 6 3/4 litres per sago tree. 5. The daily average yield for Excise Departmental purposes may be taken as 11/2 litres per coconut tree, 41/2 litres per palmyrah tree and 6 3/4 litres per sago tree. 5. Alcoholic fermentation of toddy which is self generated by the action of wild yeasts starts in the collecting pot itself and this continues for a limited period - say a maximum period of 3 days. Subsequent to this, bacterial (acetic) fermentation starts, bringing down the alcohol content. The bacteria and pseudo yeasts are responsible for the rather strong smell of toddy and the acidity developed. If toddy is left over a period of time, (without even any other foreign matter being added to it), alcohol content comes down and acetic acid is formed and this is how vinegar (Acetic acid) is manufactured in many of the parts of Kerala. At the peak point of fermentation the average alcoholic strength of fermented toddy may be taken as follows: Table:#1 6. Toddy is claimed to be having considerable nutritive value and is rich in sugars, improves the quality of blood and supplies the necessary vitamins for all the organs, nerves and tissues of the body, that it is a good diuretic and has been utilised effectively in cases of Lithasis, that it is a preventive for the occasional diseases such as silicosis and pneumoconiosic which is a fibrosis of the lungs caused by the inhalation of silicious particles of dust or grit." It can be consumed in reasonable amounts without harm to the system." 7. It has not been disputed that toddy is a fermented liquor. It is also beyond dispute that alcoholic fermentation of toddy which is self generated by the action of wild yeasts starts at the time of its collection itself and it continues for a limited period of a maximum of three days. It is also interesting to note that if toddy is left over a period of time, even without addition of any fermenting agent, the alcohol content comes down after some time and the-resultant by-product is acetic acid. It is also significant to note that the potency of agents like wild yeast which trigger alcoholic fermentation in toddy like the self generative process of fermentation, is only short lived. It is also significant to note that the potency of agents like wild yeast which trigger alcoholic fermentation in toddy like the self generative process of fermentation, is only short lived. There in also no controversy that alcoholic strength of toddy varies according to the season of the year, the time during which it is drawn from the palm and other attendant circumstances. 8. Reference has been made to the above aspects only to stress the fact that alcohol content in toddy can never be a constant factor. As indicated above, variation in the alcohol content of toddy is an accepted phenomenon. Fresh toddy, immediately after its extraction from the palm, is known as sweet toddy. Bitterness sets in as hours go by and fermentation increases. The ethyl alcohol content goes upto a maximum of 12% v/v after which acetic acid is generated. Therefore, R.9(2) of the Rules has to be considered in the above backdrop. 9. The Report of Analysis in this case (Ext.Pl) shows that the ethyl alcohol content in the sample drawn from the petitioners' premises is 9.50% v/v. It is true that the alcohol content above the maximum permissible limit of 8.1 % v/v is prohibited under R.(2). But given the various circumstances mentioned above, like the self generative process of fermentation that takes place in toddy from the moment it is tapped from the coconut tree and also the fact that the alcohol content is likely to vary from season to season and also depending on the time during which tapping is conducted, etc., it may not be safe to hold that a slight variation in the strength of toddy or a marginal increase in the ethyl alcohol content will attract penal consequences. It may also be profitable to note that the maximum self generated alcohol content that will be present in a fermented liquor like toddy which is not fortified, is 12% v/v. As mentioned earlier, when the alcohol content reaches this percent by volume through self generative process, the yeast which is responsible for the fermentation gets destroyed by its own by-product, viz. acetic acid (vinegar is manufactured from this by-product). 10. acetic acid (vinegar is manufactured from this by-product). 10. It is contended by the learned counsel for the petitioners that R.9(2) of the Rules which was introduced with effect from 1.4.2002 fixing the ethyl alcohol in toddy as 8.1% v/v, is totally unreasonable, arbitrary and unworkable and therefore illegal and unsustainable. I find considerable force in this contention especially in view of the indisputable factors with regard to the fermentation and self generative process of alcohol fermentation in toddy. It is trite that a subordinate legislation like the one on hand can be struck down as ultra vires and/or arbitrary if the impact or effect of such legislation is unreasonable or unworkable. A learned judge of this Court in Sunil v. State of Kerala (2002 (2) KLT SN page 117 Case No. 144) had occasion to consider the amendment introduced in R.2 of the Kerala Foreign Liquor Rules, 1953. The controversy in the above case revolved round the permissible variation of ethyl alcohol content in liquor. After an elaborate consideration of the impact of the newly introduced amendment, the learned Single Judge held that unreasonableness or unworkability of a rule brought in by means of subordinate legislation can be a valid ground to declare such a piece of legislation as ultra vires the governing Act or repugnant to the general principles of the laws of the land. In Sunil's case mentioned supra, this Court had struck down the amendment introduced in the Kerala Foreign Liquor Rules as per SRO 225/98, since it was found that the said amendment was exfacie unreasonable and arbitrary. The learned judge had relied on a decision of the Apex Court in Supreme Court Employees Welfare Association v. Union of India (AIR 1990 SC 334) and also on a decision of this Court in Pankajakshy v. George Mathew (1987 (2) KLT 723) while upholding the principle that unreasonableness of a subordinate legislation can be a valid ground to declare it as a bad piece of legislation. 11. 11. In Supreme Court Employees' case mentioned supra, the Apex Court held: "Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or violative of the general principles of the law of the land or so vague that it cannot be predicated with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith." The Supreme Court further held that "rules whether made under the Constitution or a statute, must be intra vires the parent law under which power has been delegated. They must also be in harmony with the provisions of the Constitution and other law. If they do not tend in some degree to the accomplishment of the objects for which power has been delegated to the authority, courts will declare them to be unreasonable and, therefore, void. 12. The observation of the Supreme Court in S.I. Syndicate Ltd. v. Union of India (AIR 1975 SC 460) is also opposite. "Reasonableness, for purposes of judging whether there was an'excess of power' or an 'arbitrary' exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power". 13. Having regard to the various factors relating to the strength of alcohol in toddy like self generation of alcohol that takes place immediately after it is drawn from the coconut tree and also the fact that the alcohol content may vary from season to season and also depending on the variety of the coconut tree from which toddy is extracted, etc., it may not be safe to fix the maximum limit of alcohol in toddy at 8.18% v/v. It is true that it is mentioned in paragraph 5 of Chap.10 of Vol.2 of Excise Manual that at the peak of fermentation the average alcoholic strength of fermented toddy may be taken as 8.1% v/v. However, it may also be remembered that in a fermented liquor like toddy, the maximum self generated alcohol content may go upto 12% v/v even without the aid of any external fermenting agent. Evidently, the strength of alcohol in toddy that is drawn from coconut tree has been fixed at 8.1 % v/v without taking into account the variables that may come into play or factors which are germane to the natural process of self generation of alcohol and also other ecological factors. In the above view of the matter, it cannot be said that the ethyl alcohol content of toddy drawn from coconut palm fixed as 8.1 % v/v in R.9(2) of the Rules is reasonable. Apparently, the rule makers have not taken into account the various factors mentioned above which have a direct bearing on the ethyl alcohol content of toddy drawn from the coconut palm. It is therefore held that R.9(2) of the Rules to the extent it prescribes that the ethyl alcohol content of toddy drawn from coconut palms kept or offered for sale, should not exceed 8.1 % v/v is arbitrary and unreasonable. 14. In this context, the question whether various parameters of scientific data mentioned in Excise Manual can be looked into while considering the vires of R.9(2) of the Rules, may also arise for consideration. In Dominic @ Thankachan v. State (1989 (1) KLJ 446) and also in Alex v. State (2003 (1) KLT SN page 9, case No. 12) this Court has relied on the instructions/ guidelines contained in the Excise Manual. Though the administrative instructions contained in the Excise Manual cannot override the provisions of the Abkari Act, it has been held by this Court that the Excise Manual can be looked into while considering the applicability or implementation of the provisions of the Abkari Act and the ancillary rules. There cannot be any dispute that the scientific data furnished in Chap.5 and 10 of Volume II of the Excise Manual mentioned earlier are being accepted and followed by the Excise Department. Incidentally it may also be noticed that the maximum limit of ethyl alcohol now introduced in R.9(2) of the Rules is mentioned in paragraph 5 of Chap.10 of the Manual. In my view, even if the Excise Manual is not accepted as an aid while considering the workability factor of R.9(2) to the extent it restricts the maximum permissible limit of ethyl alcohol content in toddy, it can be held that the rule making authority was not justified in introducing an inflexible limit to ethyl alcohol content in toddy. In my view, even if the Excise Manual is not accepted as an aid while considering the workability factor of R.9(2) to the extent it restricts the maximum permissible limit of ethyl alcohol content in toddy, it can be held that the rule making authority was not justified in introducing an inflexible limit to ethyl alcohol content in toddy. It could have been understood if some flexibility or variability was introduced in R.9(2) by fixing the minimum and the maximum limits within which the ethyl alcohol content may vary. In the absence of such a flexibility, arbitrariness is writ large in R.9(2) in fixing the maximum permissible limit of ethyl alcohol in toddy. 15. The next question that is to be considered is whether petitioners are liable to be prosecuted under S.57(a) of the Act for the so called violation of R.9(2) of the Rules. S.57(a) of the Act reads as follows: "57. For adulteration etc. by licensed vendor or manufacturer : Whoever being the holder of a licence for the sale or manufacture of liquor or of any intoxicating drug under this Act, (a) mixes or permits to be mixed with the liquor or intoxicating drug, sold or manufactured by him, any drug, other than a noxious drug or any foreign ingredient likely to add to its actual or apparent intoxicating quality or strength, or any article prohibited other than an article which the Government shall deem to be noxious by any rule made under S.29, Clause. (k), when such admixture shall not amount to the offence of adulteration under S.272 of the Indian Penal Code; or (b) ………….. (c) ………….. (d) ………….. shall on conviction before a competent court, be punished for each such offence with imprisonment for a term which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both." 16. It is contended by learned counsel for the petitioner that petitioners cannot be prosecuted, under any circumstances, for an offence punishable under S.57(a) of the Act. It is pointed out by the learned counsel that Ext.P2 Crime and Occurrence Report does not state that petitioners had mixed or permitted to be mixed with the toddy any drug or any foreign ingredient likely to add to its apparent intoxicating quality or strength, or any article prohibited. It is pointed out by the learned counsel that Ext.P2 Crime and Occurrence Report does not state that petitioners had mixed or permitted to be mixed with the toddy any drug or any foreign ingredient likely to add to its apparent intoxicating quality or strength, or any article prohibited. As rightly contended by the learned counsel, what has been mentioned in Ext.P2 occurrence report is that the report of the Chemical Analyst had shown that the sample of toddy contained 9.5% v/v of ethyl alcohol. Of course, the case cannot be decided on the strength of Ext.P2 alone. But necessarily, the primary piece of evidence to be considered is Ext.P1 report of analysis. It is pertinent to note that the Chemical Examiner has categorically stated that the sample in question was found "to be free from noxious ingredient injurious to health". Ext.P1 report does not state that the sample of toddy which was subjected to analysis was either adulterated or that it did not conform to the standards prescribed. Obviously the only violation or infraction that can be attracted is of R.9(2) of the Rules. In other words, if there is no adulteration or admixture as contemplated under S.57(a) of the Act, there is no justification in prosecuting the petitioners for an offence punishable under the Section. R.9(2) is one of the "special conditions applicable to licensees for the privilege of vending toddy in independent shops". If there is any misconduct on the part of the licensee or if there is breach of any of the conditions of licence, obviously S.56(b) of the Act will be attracted. Therefore, learned counsel for the petitioners is eminently justified in contending that the prosecution cannot proceed against the petitioners on a charge under S.57(a) of the Act on the ground that there is adulteration or mixing with toddy, any drug other than a noxious drug or any foreign ingredient, which is likely to add to its actual or apparent intoxicating quality or strength. 17. Learned counsel has also invited my attention to the heading or title given to S.57 namely "For adulteration etc. by licensed vendors or manufacture" and contended that title of the section can also accepted as an aid while considering the applicability of the section. 17. Learned counsel has also invited my attention to the heading or title given to S.57 namely "For adulteration etc. by licensed vendors or manufacture" and contended that title of the section can also accepted as an aid while considering the applicability of the section. In my view, there is no ambiguity in the language of the Section and therefore the title or heading need not be adverted to in order to understand the scope and ambit of the relevant section. In that view of the matter, I do not propose to refer to the decision reported in Bhinka & others v. Charan Singh (AIR 1959 SC 960) or Gokul Chit Funds v. Vareed (1976 KLT 747) and also the judgment of a, learned judge of this Court in Crl. Appeal No.818/02. I am inclined to agree with the learned counsel that the petitioners cannot be prosecuted for an offence punishable under S.57(a) of the Act. 18. The next question is whether petitioners can be prosecuted for an offence punishable under S.56(b) of the Act which read as follows: "56. For misconduct by licensee, etc.:- Whoever, being the holder of a licence or permit granted under this Act or being in the employ of such holder and acting on his behalf (a) (b) wilfully does or omits to do anything in breach of any of the conditions of his licence or permit not otherwise provided for in this Act:" In this case sustainability of the charge under S.56(b) will depend on the question whether there is violation of R.9(2) of the Rules. I have already held that R.9(2) to the extent it prescribes the maximum content of ethyl alcohol in toddy drawn from the coconut palm is arbitrary, unreasonable and unworkable. Therefore, petitioners cannot be proceeded against under S.56(b) of the Act either. There is a further contention by the learned counsel that in an identical situation the Excise Inspector, Kuravilangad had filed a crime and occurrence report in Crime No.1/2001 before the Judicial Magistrate of First Class, Palai against another licensee only for an offence punishable under S.56(b) of the Act. It is therefore contended by the petitioners that there is discrimination. I do not propose to go into that question since I have already found that petitioners are not liable to be prosecuted either under S.57(a) or under S.56(b) of the Act. 19. It is therefore contended by the petitioners that there is discrimination. I do not propose to go into that question since I have already found that petitioners are not liable to be prosecuted either under S.57(a) or under S.56(b) of the Act. 19. Shri. C.C. Thomas, learned counsel for the petitioners has invited my attention to a decision of the Supreme Court and also of this Court to substantiate his contention that when two interpretations are possible about a penal provision, only that interpretation which is less onerous to the accused should be preferred. (M.V. Joshi v. M.U. Shimpi (AIR 1961 SC 1494) and Kumaresan v. Ameerappa (1991 (1) KLT 893)). In my view, in the facts and circumstances of this case, it is not necessary to go into the question of interpretation of the two penal provisions viz., S.56(b) and S.57(a). 20. Learned counsel for the petitioners also addressed the Court stressing on the power of the High Court to quash criminal proceedings in exercise of the power under Arts.226 and 227 of the Constitution of India. Learned counsel placed reliance on a decision of the Supreme Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and Others ((1998) 5 SCC 749) and contended that this Court can, in appropriate cases, invoke its powers and jurisdiction under the above Articles of the Constitution of India to quash the proceedings initiated against the petitioners under Ext.P2. In the above decision, the Supreme Court held as follows: "No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under S.482 of the Code or Art.227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial Provisions of Arts.226 and 227 of the Constitution and S.482 of the Code are devised to advance justice and not to frustrate it." For the foregoing reasons. Ext.P2 is quashed. It is held that petitioners are not liable to be prosecuted for any offence punishable either under S.56(b) or under S.57(a) of the Act. Ext.P2 is quashed. It is held that petitioners are not liable to be prosecuted for any offence punishable either under S.56(b) or under S.57(a) of the Act. It is also declared that R.9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 introduced on 1.4.2000 fixing the strength of ethyl alcohol in toddy drawn from coconut palms as 8.1% v/v is arbitrary and unreasonable and hence illegal and unenforceable. The Original Petition is allowed in the above terms.