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2017 DIGILAW 265 (KER)

V. R. Prasad v. State of Kerala

2017-02-06

P.B.SURESH KUMAR

body2017
JUDGMENT : P.B. Suresh Kumar, J. The petitioner is the licensee in respect of a few toddy shops under the Thodupuzha Excise Range of the State Government. He purchased the right to vend toddy in the said shops in accordance with the provisions contained in the Kerala Abkari Shops Disposal Rules, 2002 (the Rules). On 02.11.2016, a case was registered against the petitioner by the third respondent under Sections 56(b) and 57(a) of the Abkari Act, alleging that the sample of toddy taken from one of the toddy shops run by the petitioner on 12.09.2016 contained Poly Vinyl Acetate. Ext.P3 is the crime and occurrence report in respect of the said case. The petitioner is not entitled to run toddy shops if a case is registered against him under Section 57(a) of the Abkari Act. As such, immediately upon registration of the case, the licence issued to the petitioner to run the toddy shops was suspended. According to the petitioner, a case cannot be registered against him under Section 57(a) of the Abkari Act on the ground that the sample of toddy contained Poly Vinyl Acetate. It is his case that Poly Vinyl Acetate is neither a drug nor an ingredient which is likely to add the actual or apparent intoxicating quality or strength of the toddy and that therefore, the presence of the said article in the toddy would only amount to adulteration of toddy. According to the petitioner, toddy is a food article coming within the purview of the Food Safety and Standards Act (FSS Act) and since standards have been prescribed for toddy under the FSS Act by virtue of the provisions contained in the Food Safety Standards (Food Products Standards and Food Additives) Regulations, 2011, the standards prescribed for toddy by the State Government under the Abkari Act do not have the force of law any more, especially in the light of the overriding effect given to the standards prescribed for food articles under the FSS Act by virtue of Section 89 of the FSS Act. The case set up by the petitioner is that if the standards prescribed for toddy under the Abkari Act do not have the force of law, there cannot be any prosecution under the said Act for adulteration of toddy. The case set up by the petitioner is that if the standards prescribed for toddy under the Abkari Act do not have the force of law, there cannot be any prosecution under the said Act for adulteration of toddy. The petitioner, therefore, seeks a declaration that a case cannot be registered under Section 57(a) of the Abkari Act on the ground that the toddy offered for sale is adulterated in as much as it contained Poly Vinyl Acetate. The petitioner also seeks orders quashing Ext.P3 crime and occurrence report on that basis. 2. Two statements have been filed by the third respondent in this matter supporting the registration of the case against the petitioner under Section 57(a) of the Abkari Act. 3. Heard Sri. Renjith B. Marar, the learned counsel for the petitioner and Sri. V. Manu, the learned Senior Government Pleader. 4. The learned counsel for the petitioner contended that in so far as the FSS Act is a central statute, the provisions therein would override the provisions in the Abkari Act including the provisions in Section 57(a) to the extent it relates to the adulteration of liquor. Alternatively, the learned counsel contended that in the light of the provisions contained in the FSS Act, especially Section 89, Section 57(a) of the Abkari Act needs to be read down to exclude the act of adulteration of liquor provided for therein. In short, the submission of the learned counsel for the petitioner is that after the promulgation of the FSS Act, prosecution can be launched for adulteration of toddy only in accordance with the FSS Act. 5. Per contra, the learned Senior Government Pleader contended that in the light of Entry 8 of List II of Schedule VII to the Constitution, the State has the power to make laws relating to production, manufacture, possession, transport, purchase and sale of intoxicating liquors and the Abkari Act is a legislation coming within the purview of the said Entry. According to the learned Senior Government Pleader, if a statute relates in 'pith and substance' to a topic assigned to a particular legislature, it will not be invalid merely because it trenches incidentally upon topics coming within another legislative list. According to the learned Senior Government Pleader, if a statute relates in 'pith and substance' to a topic assigned to a particular legislature, it will not be invalid merely because it trenches incidentally upon topics coming within another legislative list. The question of repugnancy under Article 254 of the Constitution, according to the learned Senior Government Pleader, would arise only when a State law is, in its 'pith and substance', a law relating to an entry in the concurrent list on which the Parliament has legislated. In short, the submission of the learned Senior Government Pleader is that the Abkari Act being not a law relating to food, the question of repugnancy between the said statute and the FSS Act does not arise. 6. I have anxiously considered the submissions made by the learned counsel on either side. 7. The relevant portion of Section 57 of the Abkari Act reads thus: "57. For adulteration, etc., by licensed vendor or manufacturer - Whoever being the holder of a license 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 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 section 29, clause (k), when such admixture shall not amount to the offence of adulteration under section 272 of the Indian Penal Code; or xxx xxx xxx xxx 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." It is explicit from the provisions contained in Section 57 that the offence under Section 57(a) gets attracted, if a prohibited article is found in the liquor. 'Toddy' is defined in Rule 2(n) of the Rules thus: "(n) "Toddy" in these rules means fermented juice drawn from any Coconut, Palmyrah, or Choondapana palms and conforming to such specifications and restrictions as may be notified by Government based on scientific studies and Indian Standard Specifications." The relevant portion of the specifications and restrictions of toddy notified by the Government in Rule 2(n) of the Rules by virtue of notification SRO.No.145 of 2007 reads thus: "SRO.No.145/2007:- xxx xxx xxx xxx 4. Toddy shall be free from any added colouring, flavouring, sweetening or other foreign matters; starch; chloral hydrate; paraldsedatives; tranquilizers and any other Narcotic Drugs or Psychotropic substances; and any ingredients injurious to health. It shall be free from Escherichia coli also. xxx xxx xxx xxx." Rule 9(2) of the Rules reads thus: "No toddy other than that drawn from Coconut, Palmyrah, or Choondapana palms and on which tree-tax due under the Act has been paid shall be sold by the licensee. All toddy kept or offered for sale shall be natural and conforming to such specifications and complying to such restrictions as may be notified by Government under clause (n) of rule 2. Nothing shall be added to it to increase its intoxicating quality or strength or to alter its natural composition or for any other purposes." A combined reading of the definition of 'toddy' as contained in the Rules, its specifications as contained in SRO.No.145 of 2007 and the provisions in Rule 9(2) of the Rules would indicate beyond doubt that toddy offered for sale shall contain only its natural ingredients and nothing shall be added in it for any purpose whatsoever. It is, therefore, clear that if any article other than the natural ingredients is found mixed with toddy, the offence under Section 57(a) is made out. According to the petitioner, in so far as Poly Vinyl Acetate is not a drug or an ingredient which is likely to add to the actual or apparent intoxicating quality or strength of toddy, the presence of such articles would only amount to adulteration of toddy and that a prosecution cannot be launched for adulteration of toddy under Section 57(a) of the Abkari Act after the promulgation of the FSS Act. The issue falls for consideration, therefore, is whether a prosecution under Section 57(a) of the Abkari Act on the ground that the toddy offered for sale by the licensee is not one conforming to the specifications prescribed under the Abkari Act would lie after the promulgation of the FSS Act. 8. Article 246 of the Constitution is the source of the Legislative power of the Parliament as also the State Legislatures. Article 246 reads thus: "Subject-matter of laws made by Parliament and by the Legislatures of States - (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"). (2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this constitution referred to as the 'State List'). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List." Merely because Article 246 (3) provides that the exclusive power conferred on the State Legislature to make laws with respect to the matters enumerated in List II is subject to the exclusive power conferred on the Parliament to make laws in respect of matters enumerated in List I and List III of the Seventh Schedule, it cannot be said that the Parliament has the power to Legislate on any of the matters mentioned in List II. [See Security Association of India and another v. Union of India and others [ (2014) 12 SCC 65 ]. [See Security Association of India and another v. Union of India and others [ (2014) 12 SCC 65 ]. The purpose of the said provision is only that the Legislature of a State shall not make any law repugnant to any provision of a law made by the Parliament which the Parliament is competent to enact or to any provision of any existing law with respect to one of the matters enumerated in List III. Article 254(1) of the Constitution clarifies the said aspect providing that subject to clause (2) of Article 254, the law made by Parliament, whether passed before or after the law made by the legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of repugnancy, be void. Clause (2) of Article 254, however, enables the State to protect the law made by its Legislature with respect to one of the matters enumerated in List III containing provisions repugnant to the provisions of an earlier law made by the Parliament or an existing law with respect to that matter, by obtaining the assent of the President for the same. In other words, subject to the limitation provided for in Article 254, the power of the State legislature to make laws in respect of matters enumerated in List II is paramount and supreme. It has to be mentioned here that the source of the Legislative power of the Parliament and the State Legislatures is not the Lists contained in the Seventh Schedule. On the other hand, as noted above, the source of Legislative power of both the Parliament and the State Legislatures is Article 246 of the Constitution. The Entries in the Lists in the Seventh Schedule are only enumeratio simplex of broad categories and the power to legislate as to the principal matter specifically mentioned in an Entry includes within its expance legislation touching incidental and ancillary matters as well. [See State of West Bengal v. Kesoram Industries Ltd. [ (2004) 10 SCC 201 ]. The Entries in the Lists in the Seventh Schedule are only enumeratio simplex of broad categories and the power to legislate as to the principal matter specifically mentioned in an Entry includes within its expance legislation touching incidental and ancillary matters as well. [See State of West Bengal v. Kesoram Industries Ltd. [ (2004) 10 SCC 201 ]. It is trite that in order to ascertain the Entry within which a particular legislation falls, the courts have to apply the rule of pith and substance, that is to say, if a statute is found in substance relating to a topic within the competence of a legislature, it should be held to be intra vires, even though it might incidentally trench on topics within its legislative competence. The extent of encroachment on matters beyond the competence of the legislature may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law on a matter within its competence, the legislature is, in truth making a law on a subject beyond its competence. But, where that is not the position, then the fact of encroachment does not affect the vires of the law even as regards the area of encroachment. In other words, incidental encroachments in the fields of legislation are not altogether prohibited by the Constitution. [See A.S. Krishna v. Madras State ( AIR 1957 SC 297 ) and Life Insurance Corporation of India v. Vishwanath Verma, (1994) 3 SCC 569 ]. It is, therefore, clear that only if the court finds that the provision in a particular statute framed by the State Legislature in pith and substance falls within an Entry in the Seventh Schedule over which the Parliament is competent to enact or any provision to an existing law with respect to one of the matters enumerated in List III, the question of repugnancy arises or needs to be considered. In other words, where a law passed by the State Legislature while being substantially within the scope of the Entries in List II entrenches upon any of the Entries in List I or List III, the Constitutionality of the law has to be upheld by invoking the rule of pith and substance, if on an analysis of the provisions of the Act, it appears that by and large the law falls within the four corners of List II and the encroachment, if any, is purely incidental or inconsequential. This aspect has been clarified by the Apex Court in M. Karunanidhi v. Union of India [ (1979) 3 SCC 431 ], the relevant extract of the judgment reads thus: "Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential." The facts of the case on hand have to be analysed in the light of the aforesaid principles. 9. In Mariamma Sunny v. State of Kerala (ILR 1994 (1) Kerala 477), a Division Bench of this Court has held, in the context of Section 57A of the Abkari Act, which is also a provision relating to adulteration of liquor, that the provisions in the Abkari Act in pith and substance is a legislation coming under Entry 8 of List II. Paragraphs 18 to 21 of the said judgment read thus: "18. To ascertain the true nature and character of the legislation, the Act has to be considered in its entirety as an integral one, and not by dissecting it into its various provisions and examining each to ascertain under which head of legislation it falls. The Act as a whole has to be tested with reference to its objects and scope to locate the head of legislation into which it fits in. The Act as a whole has to be tested with reference to its objects and scope to locate the head of legislation into which it fits in. In Gallagher v. Lynn (1937) 3 Al.E.R. 598, Lord Atkin observed: "It is well established by Russel v. The Queen (1882) 7 AC 829 that you are to look at the 'true nature and character of the legislation .. the pith and substance of the legislation.' If on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if, incidentally, it affects matters which are outside the authorised field." (This decision has been referred to with approval in ate of Bombay v. F.N. Balsara AIR 1951 SC 318 ]. In United Provinces v. Atiqa Begum AIR 1941 FC 16, the Federal Court observed that when the question is whether an Act is within any of the three Lists, the duty of the court is to consider the Act as a whole and decide whether in pith and substance the Act is with respect to particular categories or not. 19. The matter was further explained by Mukherjee, J. in Lakhi Narayan Das v. Province of Bihar AIR 1957 SC 297 , where he said that to ascertain the class to which a particular enactment really belongs, the court is to look to the primary matter dealt with by it, its subject matter and essential legislative feature. It was therefore held that the offences created and the procedure laid down for arrest and trail of offenders under the Bihar Maintenance of Public Order Ordinance, 1949 were only ancillary things without which no effective legislation on public order or preventive detention was possible and therefore the Ordinance was covered by the entries in the Provincial List and the question of having recourse to any entry in the Concurrent List did not arise. The Supreme Court summarised the position as follows in A.S. Krishna v. Madras State AIR 1950 Fed. Court 59 (to which we will have occasion to refer again), where certain provisions of the Madras Prohibition Act, 1937 were under challenge as repugnant to the Indian Evidence Act and the Code of Criminal Procedure. The Supreme Court summarised the position as follows in A.S. Krishna v. Madras State AIR 1950 Fed. Court 59 (to which we will have occasion to refer again), where certain provisions of the Madras Prohibition Act, 1937 were under challenge as repugnant to the Indian Evidence Act and the Code of Criminal Procedure. "When a law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence. It would be quite an erroneous approach to the question to view such then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, mid by that process determine what portions thereof are intra vires, and what are not." 20. As already mentioned, the Act as a whole is one clearly falling within Entry 8 of the State List. The Entry is one of wide import. The words "that is to say" explain or illustrate and do not amplify or limit the words "intoxicating liquors" immediately preceding them and cover the whole field of possible legislation on the subject. Bhola Prasad v. Emperor AIR 1942 PC 17, where Gwyer, C.J. observed that the power to legislate with respect to intoxicating liquors could not well be expressed in wider terms, and State of Bombay v. F.N. Balsara AIR 1951 SC 318 , where the Supreme Court stated that the State Legislature could pass any law inter alia regarding possession and sale of intoxicating liquor. It has been recognised all along that there is no inherent right in a citizen to sell liquor and that the control and restriction over the sale of intoxicating liquors was necessary for the preservation of public health and morals and to raise revenue See Har Shanker v. Deputy Excise and Taxation Commissioner AIR 1975 SC 1121 . It has been recognised all along that there is no inherent right in a citizen to sell liquor and that the control and restriction over the sale of intoxicating liquors was necessary for the preservation of public health and morals and to raise revenue See Har Shanker v. Deputy Excise and Taxation Commissioner AIR 1975 SC 1121 . After discussing the earlier decisions on the point, and the dissentient note struck in Krishna Kumar v. State of Jammu and Kashmir AIR 1967 SC 1368 , the court in the above case, went on to observe: "There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants its manufacture, storage, export, import, sale and possession. In all there manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. In "American Jurisprudence", Volume 30 it is stated that while engaging in liquor traffic is not inherently unlawful, nevertheless it is a privilege and not a right, subject to Governmental control; (page 538). This power of control is an incident of the society's right to self protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime (pp.539, k 540, 541)". In Nashirwar v. State of Madhya Pradesh AIR 1975 SC 360 the Supreme Court cited the police power of the State to enforce public morality and prohibit trades in noxious "or dangerous goods as one of the principal reasons to hold that there is no fundamental right to carry on trade or to do business in liquor." 21. The State is the exclusive owner of rights in regard to intoxicating liquor and its police power extends to prohibition of trades in noxious or dangerous goods. The State is duty bound to protect its citizens against deceptive self destruction by consumption of noxious liquor. The interests of the innocent public require strict control on the sale of liquor lest deleterious stuff finds its way into the market resulting in the killing or disabling of large number of human beings, en masse, which will be beyond repair. The State is duty bound to protect its citizens against deceptive self destruction by consumption of noxious liquor. The interests of the innocent public require strict control on the sale of liquor lest deleterious stuff finds its way into the market resulting in the killing or disabling of large number of human beings, en masse, which will be beyond repair. The very object of the power of controlling the sale of intoxicating liquors being safety of the public, it must necessarily carry with it the power of prescribing punishments for the same of possession of liquor mixed with noxious substances or for omitting to take reasonable precautions against such mixing. As the absolute owner of all rights in respect of intoxicating liquors, it is also open to the State to impose conditions in public interest on the sale of liquor, including conditions regarding its purity and quality and to provide for condign punishments for endangering human beings by breach thereof. This is a necessary concomitant of the field of legislation covered by Entry 8, which as pointed out in Bhola Prasad AIR 1942 PC 17 and Balsara AIR 1951 SC 318 is couched in the widest possible terms, taking within its ambit every possible legislation on the subject. This is apart from the fact that Entries 64 and 65 of the State List confer power on the State legislature to deal with such offences, as also the jurisdiction of courts in such cases. The provisions of Section 57A are provisions required for the effective implementation of the provisions contained in the Abkari Act, from the angle of social morals and the safety of the public. It is necessary in the interests of society at large and flows as part of the control vested in the State and assumed under the Abkari Act. We are of the opinion that Section 57A, and its sequential provision Section 57B are hi pith and substance part of the legislation relating to intoxicating liquors falling under Entry 8 of List II." In the light of the said decision, the question of repugnancy of the provision contained in Section 57(a) of the Abkari Act and the FSS Act does not arise for consideration, even if it trenches on topics coming within Entry 18 of List III within which the FSS Act falls. If the question of repugnancy does not arise, the question of reading down Section 57(a) of the Abkari Act in a manner excluding the adulteration of liquor from the purview of the said provision also does not arise. 22. The writ petition, in the circumstances, is without merits and the same is, accordingly, dismissed.