IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 W.P.(C).No.15959 of 2009(S) --------------------------- PETITIONER:- ------------ 1. K.J.ABRAHAM, S/O.JOSEPH, KUNNELLOOR HOUSE, KALKANDY,KALLAMALA VILLAGE, MANNARKKAD TALUK. 2. CHELLAPPA COUNTER,S/O.C.MAYILSWAMI COUNTER, MELINAMATHAMPADI, PUTHUR VILLAGE, AGALI, ATTAPPADI, MANNARKKAD TALUK. 3. V.A.BHAGAVATHY, W/O. SHANTHAKUMARAN, SHIRUVANI HOUSE, VANNANTHARAMETTIL, AGALI VILLAGE. 4. PALANI SWAMI, S/O.MAYILSWAMI, NARASIMUKKU, AGALI VILLAGE, MANNARKKAD TALUK. 5. PARAMASIVAN, S/O.MAYILSWAMI, NARASIMUKKU, AGALI VILLAGE, MANNARKKAD TALUK. 6. THE ATTAPPADI KISSAN FEDERATION, REGISTER NO.CA.339/07, AGALI, REPRESENTED BY ITS PRESIDENT SRI.K.J.ABRAHAM, S/O.JOSEPH, KUNNIMMEL HOUSE, ATTAPPADY. BY ADV. SRI.SUNNY MATHEW SRI.S.R.SREEJITH SRI.BIJU GEORGE (ERNAKULAM) W.P.(C).NO.15959 OF 2009-S - 2 - RESPONDENTS:- -------------- 1. THE ASSISTANT EXCISE COMMISSIONER, EXCISE DIVISION OFFICE, PALAKKAD. 2. THE CIRCLE INSPECTOR OF EXCISE, MANNARKKAD. 3. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI.BENNY GERVASIS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON 27/09/2011 DELIVERED THE FOLLOWING:- W.P.(C).NO.15959 OF 2009-S APPENDIX PETITIONERS' EXHIBITS:- --------------------- EXT.P1 - TRUE COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT DATED 2.9.2008. EXT.P1(a) - TRUE ENGLISH TRANSLATION OF EXHIBIT P1. EXT.P2 - TRUE COPY OF THE LETTER HAVING NO.P5-4712/2008 DATED 13.11.2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS 1 TO 5. EXT.P2(a) - TRUE ENGLISH TRANSLATION OF EXHIBIT P2. RESPONDENTS' EXHIBITS:- NIL. - true copy - J.Chelameswar, C.J. & P.R.Ramachandra Menon, JJ. ---------------------------------------- W.P.(C).No.15959 of 2009-S ---------------------------------------- Dated, this the 27th day of September, 2011 JUDGMENT J.Chelameswar,C.J. This writ petition is filed challenging the constitutionality of certain provisions of the Abkari Act. The prayers are as follows:- “i) To issue a writ of certiorari or any other appropriate writ order or direction striking down Sub Sections 8 and 10 of Section 3 of the Abkari Act in as much as the same includes the sweet juice (Neera) drawn from any coconut trees/palm trees in the definition of toddy and consequently in the definition of liquor. ii) To issue a writ of certiorari or any other appropriate writ order or direction striking struck down Sub Section 1 of Section 12 of the Abkari Act in as much as the same prohibits the tapping of the toddy producing tree. iii) To issue a writ of certiorari or any other appropriate writ order or direction quashing Exhibit P2 order dated 13.11.2008 issued by the 1st respondent. iv) To issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents 1 and 3 to issue licence to the petitioners and members of the 6th petitioner to tap Neera from their coconut/palm trees in their respective properties, possess the same, use the same and sell the same. WP(C).15959 of 2009 - 2 - v) To declare that the petitioners and the other members of the 6th petitioner association has a constitutional right to tap Neera, Neera being an agricultural produce from the coconut trees standing in their respective properties, possess the same and to sell the same. vi) Any other reliefs which may be prayed for from time to time”. 2. The 6th petitioner is a registered Society, of which the first 5 petitioners are members. Each of the first 5 petitioners claim to be owners of a certain extent of lands over which coconut gardens are grown. The details of the individual holdings are mentioned in para 2 of the writ petition. It is averred in the writ petition that the first 5 petitioners made applications before the 1st respondent praying that they may be permitted to tap the coconut trees standing in their respective properties and draw “Neera” and use the same. The application filed by the 1st petitioner is marked as Exhibit P1 to the writ petition. The first respondent, by his proceedings dated 13th November, 2008, informed various people, including some of the petitioners herein, that the applications seeking permission for producing “Neera” by tapping coconut trees cannot be issued as per the existing Abkari laws and, therefore, the applications were rejected. Hence the writ petition. WP(C).15959 of 2009 - 3 - 3. Section 12 of the Abkari Act, which is one of the impugned provisions, reads as follows:- “12 (1) Manufacture of liquor or intoxicating drug prohibited except under the provisions of this Act:- No liquor or intoxicating drug shall be manufactured. no toddy producing tree shall be tapped; no toddy shall be drawn from any tree; no distillery, brewery, winery or other manufactory in which liquor is manufactured shall be constructed or worked; no liquor shall be bottled for sale; and no person shall use, keep or have in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any liquory other than toddy or any intoxicating drug; except under the authority and subject to the terms and conditions of a licence granted by the Commissioner in that behalf, or under the provisions of Section 21; Provided that the Government may, by notification, direct that in any local area it shall not be necessary to take out a licence for the manufacture of liquor for Bona-fide home consumption. Licences granted under this section shall extend to and cover servants and other persons employed by the licencees and acting on their behalf”. It can be seen from the above Section that it prohibits the tapping of any toddy producing tree and also prohibits drawing of toddy from any tree. The expressions “toddy” and “liquor” are defined under WP(C).15959 of 2009 - 4 - Section 3(8) and 3(10) respectively. The said provisions are also challenged as ultra vires the authority of the State's Legislature. Sections 3(8) and 3(10) read as follows:- “Sec.3(8) Toddy:- “Toddy” means fermented or unfermented juice drawn from a coconut, palmyra, date, or any other kind of palm tree”. “Sec.3(10) Liquor:- “Liquor” includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol”. 4. The case of the petitioners is that “Neera” is a sweet juice drawn from coconut palm trees and it is not an intoxicating liquor. “Neera” is also a product of the coconut trees obtained by tapping the said trees. The tapping of Neera is not expressly prohibited by the Act. By including “Neera”, an unfermented juice, in the definition of the expression “toddy”, which is an alcoholic beverage, the Legislature went beyond the authority conferred on it by the Constitution. 5. The learned counsel for the petitioner argued that “Neera” as it is a non-alcoholic liquid (a fact which is even admitted by the respondents) and, therefore, inclusion of “Neera” in the definition of Toddy (which is an alcoholic liquid) and apply the WP(C).15959 of 2009 - 5 - prohibition contained in Section 12 of the Abkari Act for drawing/tapping of Neera is beyond the legislative competence of the State under Entry 8 of List-II* to the Seventh Schedule of the Constitution of India. 6. On the other hand, the learned Senior Government Pleader Shri.Benny Gervasis submits that though Neera itself is a non-alcoholic liquid, it has the potential to get fermented rapidly without any great effort and become an alcoholic liquid. Even according to the petitioner, “Neera”, on fermentation, becomes toddy. The learned Government Pleader brought to our notice the following passage from the Kerala Excise Manual, Vol.II, which deals with “Sweet Toddy”:- “Sweet toddy or Neera or Pathani is toddy which is freshly drawn and is used largely in Kerala State for the manufacture of jaggery and less commonly as beverage. Sweet toddy is supposed to be non-alcoholic. But because of the pollution in the atmosphere which is favourable to rapid fermentation and because the pot in which juice is drawn is almost invariably coated with old ferment, the juice rapidly becomes infected with bacteria and wild yeasts and ----------------------------------------------------------------------------------- *Entry 8, List II - “Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors”. WP(C).15959 of 2009 - 6 - unless proper applications are taken the toddy, even at the time of collection, will be in a state of fermentation. The only occasion when the juice is absolutely free from fermentation is (1) when the temperature is below 60 F., (2) when a new pot is used on a tall tree, (3) when chemicals have been used to arrest fermentation. For practical purposes, therefore it may be taken that fermented natural toddy is not obtainable”. The learned Government Pleader therefore argued that the authority of the State Legislature to legislate with reference to intoxicating liquors takes within its sweep all the necessary and incidental matters which are required to be regulated or otherwise dealt with, if the State is to effectively exercise its legislative authority with respect of intoxicating liquors. It is well established principle of the interpretation of the Constitution that within the fields of legislation entrusted to a legislature the authority of the legislature to deal with the matter is plenary. Such authority necessarily takes within its sweep the authority to legislate with reference to matters which are incidental or ancillary for the purpose of achieving the object of the proposed law. Right from the days of the celebrated decision of Chief Justice Marshall in McCulloch v. Maryland (17 U.S. (4 Wheat.)316, 4 L.Ed.579 (1819), the principle WP(C).15959 of 2009 - 7 - is well established. A Constitution Bench of the Supreme Court in Baldeo Singh v. I.T. Commissioner [AIR 1961 SC 736], while dealing with the Constitutionality of Section 23A of the Income Tax Act, 1922, held at para 20 as follows:- “In spite of all this it seems to us that the legislation was not incompetent. Under entry 54 a law could of course be passed imposing a tax on a person on his own income. It is not disputed that under that entry a law could also be passed to prevent a person from evading the tax payable on his own income. As is well known the legislative entries have to be read in a very wide manner and so as to include all subsidiary and ancillary matters. So entry 54 should be read not only as authorising the imposition of a tax but also as authorising an enactment which prevents the tax imposed being evaded. If it were not to be so read, then the admitted power to tax a person on his own income might often be made infructuous by ingenious contrivances. Experience has shown that attempts to evade the tax are often made”. The Supreme Court was considering the amplitude of Entry 54 of List I of Seventh Schedule to the Government of India Act, 1935, which read “Taxes on income other than agricultural income”. 7. In view of the fact that Neera has the potential to get fermented with least effort and get converted into an alcoholic beverage, it cannot be said that the legislature went beyond its WP(C).15959 of 2009 - 8 - Constitutional authority in bringing “Neera” within the definition of “Toddy”, which is an alcoholic beverage. It is nobody's case that alcoholic beverages are not amenable to the legislation of the State. As already noticed, Entry 8 of List-II to the Seventh Schedule read with Article 246 clearly indicates that the legislature of a State has undoubted authority to deal with intoxicating liquors. In the circumstances, we do not see any merit in this writ petition and the same is, therefore, dismissed. Sd/- (J.Chelameswar) Chief Justice Sd/- (P.R.Ramachandra Menon) Judge vku/- /true copy/