9911796707
TMI Blog2009 (4) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... ohol in different types of toddy and specifying other incidental matters. W.A.No.2867/2007: 2. This Writ Appeal is treated as the main case for the purpose of referring to the exhibits. This appeal is filed against the judgment in W.P. (C) No.24408/2007. 3. The brief facts of the case are the following: The appellant was the licensee of Toddy Shop No.1 in Thiruvananthapuram Excise Range for the abkari year 2007-08. He is the accused in Crime No.34/2007, registered by the Excise Inspector, Excise Range Office, Thiruvananthapuram, the 4th respondent herein. A sample of the toddy, sold from Toddy Shop No.1, was taken by the Excise officials on 3.5.2007. On chemical analysis, it was found that the sample contained 8.83% volume by volume of ethyl alcohol. A photo copy of the chemical analysis report dated 21.6.2007 is Ext.P2. Based on the said report, Ext.P1 crime has been registered against the appellant for the offence under Section 57(a) of the Abkari Act (hereinafter referred to as "the Act"). Prosecution is launched against him, mainly, relying on a recent amendment brought to Rule 2(n) of the Rules. A photo copy of the notification containing the said amendment is Ext. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of this Court in Unni v. State of Kerala (supra), State of Kerala v. Unni (supra). We were also taken through the decision of the Apex Court in State of Kerala v. Unni (supra). The learned senior counsel made the following submissions: The Government prescribed the permissible percentage of ethyl alcohol in different types of toddy without any scientific basis. The prescription in the Rules was contrary to the prescription concerning the same in the Excise Manual, which said that the alcohol content in the toddy may go up to 12%, as a result of fermentation, whereas the Rule concerned said that the permissible percentage of ethyl alcohol in coconut toddy is 8.1. For Palmyra palm toddy, it is 5.2 and for Sago palm (Choondapana) toddy, it is 5.9. The said prescription made in the Rules was found to be arbitrary, irrational and unworkable by this Court and the Apex Court concurrently. Of course, permission was given for making a scientific study and also for making a proper prescription, based on the said study, by amending the law. But, without taking proper legislative steps and also without conducting any scientific study, the very same standards, which were found unsusta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Advocate General took us through the relevant portions of the judgment under appeal, wherein the contentions of the appellant have been dealt with. The findings on each point are supported by cogent reasoning and therefore, they are liable to be upheld, it is submitted. 10. Before referring to the rival contentions, we will refer to the relevant statutory provisions. Section 3(8) of the Act defines toddy in the following words: "(8) Toddy:- 'Toddy' means fermented or unfermented juice drawn from a coconut, palmyra, date or any other kind of palm tree." Sections 6 to 11 of the Act deal with import, export and transport of liquor. Sections 12 to 16 deal with manufacture, possession and sale of liquor. Sections 17 to 23 deal with duties, taxes and rentals. Sections 30 to 54A deal with the powers and duties of the officers and Magistrates. Sections 55 to 68A deal with penalties for violation of the provisions of the Act. Section 29 deals with power to make rules. 11. Section 57 deals with the punishment for adulteration by a licensee, vendor or manufacturer. Section 57(a), which is relevant for the purpose of this case, is extracted below for convenient refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule (2) of Rule 9 has been substituted by the following sub-rule: "(2) No toddy other than that drawn from Coconut, Palmyra, 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." Apparently, on the strength of the amended definition of toddy, contained in Rule 2(n), the Government issued Ext.P4 notification, specifying the permissible alcohol content in different types of toddy. The said notification reads as follows: "S.R.O. No.145/2007:- Under clause (n) of rule 2 of the Kerala Abkari Shops Disposal Rules, 2002, issued under G.O. (P) No.24/2002/TD dated The 30th March, 2002 and published as S.R.O.No.198/2002 in the Kerala Gazette Extraordinary No.376 dated the 30th March, 2002, the Government of Kerala, based on scientific studies and Indian Standard Specifications in IS 8538/2004, her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int to be considered is the validity of Ext.P4 notification issued under Rule 2(n) of the Rules. Going by the appellant's contentions, we notice that the prescriptions regarding the percentage of alcohol, contained in paragraphs 1 and 3 thereof, are mainly attacked by him. No one has any fundamental right to deal in intoxicating liquor. The power to deal in intoxicating liquors is within the exclusive domain of the State. It grants the privilege to sell liquor, subject to payment of fees, rentals etc. In other words, persons like the appellant and other petitioners get the privilege to vend toddy only under the licence granted by the Government. Their rights are subject to the Abkari law framed and enforced by the State. Of course, if the provisions of the law infringe Article 14 or the actions of the State in the matter of parting with the privilege, violate their fundamental rights under Article 14, such State actions can be successfully challenged. So, we have no doubt that the State has every right to prescribe the maximum permissible percentage of ethyl alcohol in each item of toddy drawn and sold. But, such prescription should pass the test of fairness and reasonableness. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, in the light of the above view expressed by the Apex Court, the prescription will automatically fail to pass the test of reasonableness. 15. It is common case that toddy contains sugar, ethyl alcohol, water and yeast. By fermentation of sugar, alcohol is formed. It is common knowledge that the content of alcohol cannot exceed certain limit because of the limited availability of sugar in the toddy. In other words, the alcohol content cannot go up excessively. Further, the ethyl alcohol formed will be transformed into acetic acid with the passage of time. Normally, toddy drawn on a day will be consumed only on that day. Because, by the next day, it will be containing acetic acid, which is known as vinegar in common parlance and therefore, the toddy will not be potable thereafter. If, after scientific study, the maximum permissible limit of ethyl alcohol in toddy is fixed, the State can definitely prescribe by statutory rule that the same shall be the maximum limit and if ethyl alcohol is found exceeding that limit, it can be treated as added alcohol from outside source. Suppose, if the alcohol content by natural fermentation goes up to 10% and the maximum percentage prescribed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Alcohol Content The ethyl alcohol content of toddy shall be between 5 to 8 percent by volume at 20/20 degree centigrade, when determined according to the method prescribed in 3 of IS 3752. 3.3 Freedom from Harmful Ingredients 3.3.1 Toddy shall be free from any ingredient injurious to health. It shall be free from chloral hydrate when tested by the method given in A-1. 3.3.2 It shall also be free from paraldehyde when tested by the method given in A-2. 3.4 Hygienic Conditions 3.4.1 Toddy shall be tapped, stored and transported under hygienic conditions. The handling equipment shall be clean. 3.4.2 Toddy shall be free from Escherichia coli when tested by the method given in IS 5887 (Part 1). 3.5 Toddy shall also comply with the requirements given in Table 1. Table 1 Requirement for Toddy Sl.No. Characteristic Requirement Method of Test, Ref to Cl No. of IS 3752 (1) (2) (3) (4) i) Total acid as tartaric acid 400 g 6 (expressed in terms of 100 litres of absolute alcohol), Max. ii) Volatile acid as acetic acid 100g 7 (expressed in terms of 100 litres of absolute alcohol), Max iii) Copper, mg/kg. Max 5 14" (Emphasis supplied) The maximum per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and unauthorised. The vendors of such toddy cannot be found fault with, if the percentage of alcohol in the toddy sold by them goes up to 8.1%. 18. The next point to be considered is regarding the validity of para 3 of Ext.P4 notification. Para 3 impugned by the appellant and others says that if the content of ethyl alcohol exceeds the limit prescribed in para 1 thereof, it shall be deemed that extraneous alcohol has been added to such toddy to increase its intoxicating quality or strength. If the maximum permissible limit is fixed, based on a scientific study and if additional strength of alcohol is formed, it can be safely presumed that the additional alcohol present is the extraneous alcohol added. If the notification says that such a presumption can be drawn, we find nothing wrong with it. But, we will add that the presumption under para 3 will be subject to what we have said about the prescription of percentage of alcohol in relation to the toddy drawn from Palmyra palm and Sago palm (Choondapana), hereinabove. 19. The next point to be considered is whether the appellant and others could be prosecuted under Section 57(a) of the Abkari Act, if the alcohol found in the todd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d having regard to the purpose for which that provision is incorporated in the statute, it has to be construed in such a manner that the said object is advanced and the mischief is suppressed. We do agree that in the matter of interpretation of statutes which are not penal, the above proposition finds acceptance as a sound principle of law. Here, the situation is different. It cannot be disputed that ethyl alcohol is an ingredient of toddy. The dictionary meaning of 'foreign' shows that 'anything that is extraneous is foreign'. In our view, ethyl alcohol being an essential ingredient of toddy, there is merit in the contention that it is not as such a foreign ingredient, even if ethyl alcohol may be present in excess of the percentage permitted by the Rule. The object of S.57(a), is to prosecute offenders who commit the offence of mixing or who permit mixing of any foreign ingredient or other materials specifically mentioned therein. Since we have found that the mere presence of ethyl alcohol, even if in excess of the permitted quantity, cannot be treated as a foreign ingredient, the writ petitioners are not liable to be prosecuted under S. 57(a) of the Abkari Act. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be taken as a foreign ingredient. Vagueness, if any, in the law, which subsisted earlier, is no longer available, it was held. 21. The learned senior counsel for the appellant submitted that the appellant is being prosecuted for the violation of Section 57(a) of the Abkari Act. There was no amendment to that Section after the decisions of this Court and the Apex Court. In other words, the legal position concerning the violation of Section 57(a) has not undergone any change. Therefore, the observations of this Court and the Apex Court on the above point hold the field even now. 22. It is one of the fundamental principles of penal law that its injunctions must be clear and specific. It should give clear warning about its bounds to persons of average intelligence. If its prohibitions are not clear and specific, a person may do something unwittingly and thereafter he may be accused ex post facto that what he has done is an offence. The result is that what is an offence will be decided subjectively by the police and Judge from case to case basis, based on the interpretation given to the commissions and omissions of the person concerned. But, we have doubt whether the said salutary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision by the Division Bench and now. Clause (3) of Ext.P4 notification, which we have already extracted above, says that if the ethyl alcohol content in toddy exceeds the prescribed limit, it will be deemed that extraneous alcohol has been added and such added alcohol shall be treated as a foreign ingredient. According to the appellant/petitioners, the said notification does not have any efficacy to remove the vagueness in Section 57(a) and for that, an amendment to the said statutory provision is required. The Abkari Act, the Rules framed thereunder and also the statutory notifications issued in exercise of the powers conferred under the Act and the Rules form the body of Abkari law. Now, Ext.P4 notification forms part of it. Every one is presumed to know the law. At any rate, absence of knowledge of law is not a defence in criminal prosecution. We have no doubt, an amendment of the Act would have been ideal. But, it does not mean that the above notification is insufficient to remove the alleged ambiguity in Section 57(a). The test is what a person of reasonable intelligence will think of it or whether the view canvassed by the prosecution is a reasonable view on the facts. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
