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2015 DIGILAW 1210 (KER)

P. G. PRIYAMVADA v. STATE OF KERALA

2015-09-01

DAMA SESHADRI NAIDU

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JUDGMENT : Dama Seshadri Naidu, J. The issue in this writ petition is concerning the confiscation of the petitioner's vehicle carrying certain ayurvedic medicines that allegedly contained some trace of alcohol. The petitioner and her son, being the registered ayurvedic medical practitioners, have the necessary Exts. P. 1 to P. 3 licences to manufacture, process and deal in the ayurvedic medicines. 2. On 26.08.2009, at about 4.15 p.m., the 4th respondent intercepted and seized the Maruti Omni van belonging to the petitioner for the offence of transporting about 131.52 litres of arishtam' and 18 litres of 'asavas' (ayurvedic preparations). Against the petitioner's son, the 4th respondent registered an abkari case in Crime No. 45 of 2009 for the offences under Sections 9 and 10 of the Kerala Spirituous Preparations (Control) Rules, 1969 ('the Rules' for brevity) and also under Sections 56(b) and 67B(a) of the Abkari Act ('the Act' for brevity). In the course of time, the seized vehicle was produced before the authorised officer, who after completing the legal formalities confiscated it under Section 67B of the Act. 3. Insofar as the crime is concerned, the petitioner's son and the petitioner, being accused Nos. 1 and 2 in C.C. No. 620 of 2010 on the file of the Judicial Magistrate of First Class-II, Cherthala, earned a conviction through Ext. P.5 judgment by pleading guilty. The learned Trial Court, in fact, as a measure of sentencing the accused, imposed a fine of 2000/- on them under Section 56(b) of the Act. As regards the seized property, the Court has entrusted it to the third respondent for disposal as per the Rules. 4. Assailing the confiscation of her motor vehicle belonging, the petitioner initially filed an appeal before the third respondent, who, however, dismissed it through Ext. P. 8. Aggrieved, when the petitioner filed a revision before the second respondent, the revisional authority, too, dismissed it through Ext. P.9 order dated 22.09.2011. Eventually, impugning Ext. P. 9, the petitioner filed the present writ petition. 5. Sri. T.A. Shaji, the learned Senior Counsel for the petitioner, has submitted that the petitioner is an ayurvedic doctor rendering yeomen service to the society, especially the poor. He has contended that the petitioner has all the necessary permits and licences as can be seen from Ext. P. 1 to P. 3. 5. Sri. T.A. Shaji, the learned Senior Counsel for the petitioner, has submitted that the petitioner is an ayurvedic doctor rendering yeomen service to the society, especially the poor. He has contended that the petitioner has all the necessary permits and licences as can be seen from Ext. P. 1 to P. 3. The learned Senior Counsel would further contend that the vehicle seized by the authorities had only been transporting bona fide medicinal preparations as have been defined in Rule 3(d) of the Rules. 6. According to the learned Senior Counsel, the provisions of the Abkari Act, including Sections 56(b) and 67B of the Act, do not get attracted to the alleged offence committed by the petitioner and her son transporting the proprietary ayurvedic medicines. In elaboration of his submissions, the learned Senior Counsel would contend that as per Section 3(14) of the Act, unless a drug, assuming to be intoxicating, has been notified by the Government, the question of applying the provisions of the Abkari Act does not arise. 7. The learned Senior Counsel has also drawn my attention to the averments made in the counter affidavit filed by the respondents. He has stressed on what is said to be the admission of the authorities that the petitioner and her son were found transporting genuine ayurvedic drugs. The alleged offence, if any, contends the learned Senior Counsel, is at best a technical transgression of certain Rules concerning the transportation of drugs beyond specified quantity. Eventually, the learned Senior Counsel has also emphasised that in Ext. P. 10 report submitted by the 4th respondent to the second respondent, it is recorded that the petitioner and her son are bona fide medical practitioners, and they are treating poor patients free of cost. Summing up his submissions, the learned Senior Counsel has urged this Court to set aside Ext. P. 9 order in revision and consequently direct the authorities to return the amount deposited by the petitioner while her obtaining the interim custody of the vehicle. 8. Per contra, the learned Government Pleader, on his part, has submitted that even the ayurvedic medicines, in the light of the expansive definition of liquor under Section 3(10) of the Act, are to be treated as liquor, once they contain any alcohol in them. 8. Per contra, the learned Government Pleader, on his part, has submitted that even the ayurvedic medicines, in the light of the expansive definition of liquor under Section 3(10) of the Act, are to be treated as liquor, once they contain any alcohol in them. He has further submitted that the petitioner and her son were found transporting ayurvedic drugs containing alcohol in violation of Rules 9 to 11 of the Rules and also Section 56(b) of the Act. As a result, the initiation of the criminal proceedings and consequential confiscation of the vehicle are unexceptionable. 9. In elaboration of his submissions, the learned Government Pleader would further contend that Ext. P. 8 order passed by the appellate authority and the subsequent Ext. P. 9 order passed by the second respondent could not be found fault with. The fact remains that both the authorities, submits the learned Government Pleader, have concurrently found that the petitioner and her son have violated the statutory provisions. Accordingly, summing up his submissions, the learned Government Pleader has urged this Court to dismiss the writ petition. 10. Heard the learned counsel for the petitioner and the learned Government Pleader, apart from perusing the record. Issues: 1. Whether the petitioner and her son were found transporting any prohibited substance falling within the mischief of the Abkari Act. 2. Whether Ext. P. 9 order of revision, affirming Ext. P. 8 order in appeal, is justified on the ground that the petitioner's vehicle was transporting a prohibited substance in terms of Section 67B of the Act. 11. Indisputably, the expression 'liquor' under Section 3(10) of the Act has been inclusively defined as comprising spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol. In fact, latching on to the last portion of the definition that all liquids consisting of or containing alcohol should also be treated as liquor, the 4th respondent seems to have seized the petitioner's vehicle and subjected the petitioner and her son to criminal proceedings. Evidently, the crime was registered, inter alia, for the offences under Sections 56(b) of the Act. It is profitable to examine Section 56 of the Act to the extent relevant, and it reads as follows: "56. Evidently, the crime was registered, inter alia, for the offences under Sections 56(b) of the Act. It is profitable to examine Section 56 of the Act to the extent relevant, and it reads 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 employment of such holder and acting on his behalf-] (a) fails to produce such licence or permit on the demand of any Abkari Officer or of any other officer duly empowered to make such demand; or (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; or." xxx xxx xxx xxx" (emphasis supplied) 12. Aperusal of the above provision makes it manifestly clear that the person to be guilty of breach of Section 56 of the Act ought to have been, in the first place, a licencee or a permit holder under the very Act. It is not in dispute that the petitioner involved in the preparation of the ayurvedic medicines does not hold any licence or permit under the Abkari Act. Even otherwise, clause (b) of Section 56 of the Act makes it a punishable offence, if the licencee or permit holder willfully does or omits to do anything in breach of any of the conditions of his licence or permit not otherwise provided for in the Act. 13. Once again, it is beyond any cavil that either the commission or the omission of an act shall be in breach of any of the conditions of the licence or permit within the purview of the very Act. If the two limbs of the provision are conjointly read, it is manifest that firstly a person must have a licence of a permit under the Act and the said person ought to have breached any of the conditions of the licence thus obtained under the Act. 14. The petitioner, nevertheless, has Exts. P. 1 to P. 3 licences and permits. On examining those documents, we can find that Ext. P. 1 was obtained under Rule 83 of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. Rule 83 under Chapter VI dealing with licensing concerns itself with the form of application for obtaining a licence for medicinal and toilet preparations. Exts. P. 1 to P. 3 licences and permits. On examining those documents, we can find that Ext. P. 1 was obtained under Rule 83 of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. Rule 83 under Chapter VI dealing with licensing concerns itself with the form of application for obtaining a licence for medicinal and toilet preparations. Exts. P.2 and P.3, on the other hand, were issued under Rule 11 of the Kerala Spirituous Preparations (Control) Rules, 1969 ('the Rules'). 15. Rule 8 of the Rules dealing with 'export' mandates that no spirituous preparation shall be exported out of the State except under cover of an Export Permit in Form SP III granted by the Assistant Excise Commissioner having jurisdiction over the place from which the export is made. In the present instance, it is not in dispute that neither the petitioner nor her son has been accused of any export of the spirituous preparations out of the State. 16. In terms of Rule 9 dealing with transport, the movement of all spirituous preparations in excess of the quantity permitted to be possessed under Rule 10 from one place to another within the State shall be covered by a transport permit in Form SPV issued by the licencee from whom the preparation is transported. The respondent authorities contend that the petitioner does not have valid transport permission. We cannot, at this juncture, lose sight of the fact that the transport permit is required to be obtained from the licencee who prepares the medicines. In the present instance, the petitioner herself is the licencee. 17. Rule 10 deals with the possessory aspect, and Rule 11 concerns itself with the licences to be obtained for sales, either wholesale or retail. Evidently, Exhibits P. 2 and P. 3 have been issued under Rule 11 of the Rules. 18. Indeed, there is no cavilling concerning the fact that the petitioner and her son being the accused confessed to the crime and paid the fine of 2,000/- as being sentence imposed by the learned Judicial Magistrate of the first Class, Cherthala, through Exhibit P. 5 judgment. Mere confession of an accused to having committed a crime does not, ipso facto, convert the alleged deed into a crime unless the statute prescribes the deed as being offensive. Mere confession of an accused to having committed a crime does not, ipso facto, convert the alleged deed into a crime unless the statute prescribes the deed as being offensive. In other words, an admission of an act to having been committed does not transform it to be an offence; rather, an act, admitted or not, becomes an offence only by way of a statutory sanction. 19. Firstly, it is to be determined whether the transportation of ayurvedic medicines, for the preparation of which the petitioner does have a valid licence, amounts to any offence punishable under Section 56(b) of the Act. 20. In my considered view, it is a pre-condition that the person accused of committing an offence under the said provision ought to have had a licence or a permit granted under the very Act. The petitioner has not been statutorily compelled to have any licence under the Act. Further, the omission or commission of anything is to be in breach of any of the conditions of his licence or permit obtained under the Act. Expressed differently, the omission or commission ought not to have been sanctioned by the Act. On this count too, I am afraid, it cannot be said that the petitioner has been guilty of committing any offence under Section 56 of the Act, especially Clause (b) thereof. 21. If one were to assume that the petitioner had breached any provisions of the Kerala Spirituous Preparations (Control) Rules, 1969, that would not, by any stretch, make the person guilty of an offence under Section 56 of the Act. 22. Indisputably, the definition of liquor under Section 3(10) of the Act is quite expansive, being inclusive in its scope. The definition takes into its fold any liquid consisting of or containing alcohol. It is further not in dispute that the petitioner had been transporting certain ayurvedic preparations containing alcohol. The fact, nevertheless, remains that what has been transported is an ayurvedic drug. The respondent officials have also gone on record saying that the ayurvedic drugs transported by the petitioner could be intoxicating, if abused. It is further not in dispute that the petitioner had been transporting certain ayurvedic preparations containing alcohol. The fact, nevertheless, remains that what has been transported is an ayurvedic drug. The respondent officials have also gone on record saying that the ayurvedic drugs transported by the petitioner could be intoxicating, if abused. In fact, the Act has defined intoxicating drug under sub-section 14 of Section 3 to the following effect: "Intoxicating Drug means any intoxicating substance other than a Narcotic drug or a psychotropic substance regulated by the Narcotic Drugs and Psychotropic Substance Act, 1985 (Central Act, 61 of 1985), which the Government may by notification declare to be an intoxication drug." 23. A perusal of the above definition reveals that a drug is required not only to be intoxicating but also to be notified by the Government to attract the provisions of the Act. In the present instance, the drugs transported by the petitioner are not inherently intoxicating. They could at best be intoxicating, if abused or abusively used. On the other hand, there is no gainsaying the fact that the Government has not notified those drugs. 24. It is axiomatic to observe that an enactment is one seamless whole, dealing with a particular subject. The division by means of sections, sub-sections, etc., is only for the sake of convenience and clarity. Thus, the canons of construction have emphasized the need for reading and construing any enactment holistically. In A.G. v. Prince Ernest Augustus of Hanover, [1957] A.C. 436, at A. 63 (H.L.) Viscount Simonds wrote that the elementary rule must be observed that no one should profess to understand any part of a statute or any other document before he has read the whole of it. Until he has done so, he is not entitled to say that it or any part of it is clear and unambiguous. In Canada (Attorney General) v. Kuan, (1994) F.C.J. No. 76 Robertson J.A. opined that a statutory word or expression can be fully grasped only in relation to the whole of which it is a constituent part. 25. The authorities have, in fact, been swayed by the definition of liquor, but have not taken into account the other definition Clause, namely sub-section 14 of Section 10 defining 'intoxicating drug'. In other words, liquor may have been the genus and the intoxicating drug could be the species, clichetic as it may sound. 25. The authorities have, in fact, been swayed by the definition of liquor, but have not taken into account the other definition Clause, namely sub-section 14 of Section 10 defining 'intoxicating drug'. In other words, liquor may have been the genus and the intoxicating drug could be the species, clichetic as it may sound. 26. The ayurvedic medicines being transported by the petitioners undoubtedly are drugs having the potential of intoxication, if at all, thus falling exclusively within the definitional clause of sub - as quoted in Sullivan's, P. 359), section 14 of Section 3 of the Act. 27. When two provisions are in conflict, and one of them deals specifically with the matter in question while the other is of more general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the general; it does not matter which was enacted first. This strategy for the resolution of the conflict is usually referred to by the Latin name generalia specialibus non derogant. The English term "implied exception" is adopted... for, in effect, the specific provision implicitly carves out an exception to the general' one...." (vide Sullivan on the Construction of Statutes, 5th Ed.) 28. I am, for the reasons stated above, prepared to hold, and accordingly hold, that the ayurvedic medicines transported by the petitioner are, perhaps, intoxicating drug, but remain out of the purview of the Act, as they have not been notified. As a natural corollary, I am required to hold that the ayurvedic medicines cannot be treated as liquor as has been defined in sub-section 10 of Section 3 of the Act, or falling within the mischief of Section 56(b) or Section 67B(a) of the Act. 29. The ameliorating circumstances of the case are that the respondent officials themselves have gone on record saying that the petitioner and her son are ayurvedic doctors of repute dealing bona fide in the ayurvedic medicines. In Exhibit P. 10, the officials have gone to the extent of admitting that the petitioner has been rendering laudable service to the poor patients. 30. Any enactment dealing with penal provisions is required to be strictly interpreted. It is trite to observe that in the event of any ambiguity, it is to be resolved in favour of the accused. In Exhibit P. 10, the officials have gone to the extent of admitting that the petitioner has been rendering laudable service to the poor patients. 30. Any enactment dealing with penal provisions is required to be strictly interpreted. It is trite to observe that in the event of any ambiguity, it is to be resolved in favour of the accused. In the present instance, I am of the considered opinion that the transportation of non-notified intoxicating drugs, if they were to be, would not attract Section 56(b) of the Act. Consequently, the question of the petitioner's transportation of drugs through a motor vehicle attracting Section 67B of the Act, too, does not arise at all. 31. On a compendious reading of all the provisions that have been referred to above, the ineluctable conclusion is that the initiation of proceedings especially under Section 67B of the Act to confiscate and the actual confiscation thereof of the petitioner's vehicle is clearly unsustainable. 32. In the facts and circumstances, Exhibit P. 9 is set aside with a consequential direction to the respondent officials to return the amount deposited by the petitioner while her obtaining the interim custody of the vehicle bearing Registration No. KL-05 N. 2901. Needless to observe that the respondent officials shall complete the proceedings of returning the amount deposited by the petitioner as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. This writ petition is allowed as above. No order as to costs. Allowed.