IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 31ST OCTOBER 2007 / 9TH KARTHIKA 1929 Crl.MC.No. 2052 of 2007() ------------------------- C.R.NO.11/07 OF EXCISE RANGE OFFICE, MALLAPPALLY, PATHANAMTHITTA DISTRICT. PETITIONER: ACCUSED NOS.2 & 3 ------------------------------ 1. GIRISH KUMAR, AGED 28 YEARS, S/O. GOVINDANKUTTY, PATHALIL HOUSE, POOTHAKUZHI P.O., PAMPADI, KOTTAYAM DISTRICT. 2. ANANDAVALLI, W/O. PONNAPPAN, PARAYIL HOUSE, MUNDIYAPPALLY P.O., KAVIYOOR VILLAGE, THIRUVALLA, PATHANAMTHITTA DIST. BY ADV. SRI.C.C.THOMAS RESPONDENTS: COMPLAINANT ------------------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, MALLAPPALLY, PATHANAMTHITTA DISTRICT, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/10/2007, ALONG WITH CRMC NO. 2564 OF 2007 WPC NO. 24408 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 ------------------------------------------------- Dated this the 31st day of October, 2007 JUDGMENT Are the amendments to Rule 2(n) and Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 (for short `the Rules') brought in by Ext.P3 Notification consequent to the decision of the Supreme Court in State of Kerala v. Unni (2007 (1) K.L.T. 151) and the later Notification – Ext.P4, legal valid and constitutional? Do they and the consequent prosecutions initiated against the petitioners herein deserve to be quashed? These are the questions that arise for consideration in these proceedings. 2. To the crucial and vital facts first. The petitioners are allegedly the licensees and their employees of toddy shops. They face prosecutions for offences punishable, inter alia, under Secs.57(a) and 56(b) of the Kerala Abkari Act (for short `the Act'). The crux of the allegations raised against them is W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 2 :- that toddy which was allegedly kept in their premises for sale was found to contain ethyl alcohol in excess of 8.1%. The prosecution alleges that the ethyl alcohol present in excess of 8.1% in toddy is not a natural ingredient of toddy and is a foreign ingredient and that the same enhances the intoxicating quality of toddy kept in their possession for sale by the petitioners. It is further alleged that this amounts to violation of the conditions of licence issued to the petitioners for sale of toddy. 3. The definition of 'the concept of 'law' has been a vexing problem of jurisprudence. It may be safe to understand law as a set of rules of human behaviour and conduct, which are enforceable and which represent the quintessence of the trained (not lay) commonsense of the community and which seek to attain the result of harmony in society. Such understanding of the concept of law whether it be constitutional law, statutory law subordinate legislation or precedential law is essential for the law maker, the law enforcer and the law interpreter. One who W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 3 :- attempts to interpret the law whether statutory or subordinate or to subject the same to judicial review cannot undertake the mission without being conscious of what law is and what law ought to be. 4. That takes me to the first point. The soul of the provision of law which is to be interpreted or reviewed judicially has to be understood by the interpreter. The mischief which it seeks to prevent has got to be understood before any attempt is made to interpret the law or subject the same to judicial review. 5. The purpose behind the relevant provisions and the amendments in question are very clear and unambiguous. Notwithstanding Art. 47 of the Constitution, either because of the acceptance of what is regarded as the inevitable nature of the male species of the human being who allegedly loves inebriation or because of monetary considerations of the State anxious to fill its coffers, prohibition has not been introduced and enforced in the State of Kerala. Manufacture, distribution W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 4 :- and sale of liquor is permitted, though under very strict regulations. Such manufacture and sale can only be in strict compliance with the provisions of the regulatory statute – the Kerala Abkari Act. No person has a fundamental right to carry on trade in liquor. The State has the monopoly of controlling the manufacture and sale of liquor. It is the burden of the welfare State to ensure that consumers have the opportunity to get unadulterated and healthy alcoholic beverages, once it chooses to permit such sale under strict regulation and control. 6. Manufacture and sale of arrack stands prohibited in the State of Kerala with the introduction of Sec.8 of the Kerala Abkari Act. Sale of toddy is permitted. With the ban of arrack the common man who cannot afford Indian Made Foreign Liquor has to fall back on toddy to satisfy his thirst for alcoholic drinks. It is submitted at the Bar with the help of facts and figures that the total quantity of toddy that can possibly be produced from the trees from which toddy tapping is licensed will be insignificant and will not be sufficient to satisfy the requirement W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 5 :- of toddy in the State of Kerala. It is further submitted that the total value of such toddy legally produced falls much short of the total kist amount obtained on auction of the right to sell such toddy. These arguments remain as assertions with no tangible material for me to verify. Be that as it may, experience of the working of the Statute reveals that quite often what is sold as toddy is alleged to be not genuine toddy and is only liquor in which alcohol is added externally. 7. To make genuine toddy available for the consumer is the challenge before State. He has to be protected from persons who attempt to vend non-genuine toddy mixed with external alcohol. The history of the implementation of the ban on arrack reveals that it has been a long duel between the State interested in protecting the welfare of the consumer and the greedy abkari lobbies which attempt to sell non-genuine inebriating drinks in the name of toddy. 8. Amendments to Rule 2(n) and 9(2) of the Rules must in this context be looked at and understood in the background of W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 6 :- this mission of the State through law to ensure that genuine toddy and not some inebriating liquid is vended in the name of toddy. The purpose of the mission is absolutely genuine, honest and legal. How the result is achieved is the only problem. 9. The second aspect is about the cannons of interpretation of a penal statute. The golden thread that runs through the entire fabric of criminal jurisprudence in this country is that when two interpretations are possible either on facts or on law, the one favourable to the accused/indictee will have to be accepted. There can be no dispute about this proposition of law. But it is equally well settled that it must be shown that two reasonable views are possible competing with each other. Merely because one argument/interpretation is possible, such view in favour of the accused cannot be accepted. The view in favour of the accused must also be reasonable, consistent with the text, context, purpose and destination. It is by now well settled that the cannons of purpositive interpretation must be followed in attempting to ascertain W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 7 :- whether two reasonable views are possible or not in the interpretation of a penal provision also. Merely because it is possible for the counsel to argue a proposition it cannot be reckoned as a possible reasonable view. Interpretation is the process of ascertaining the mind of the Legislature. The ascertainment of the mind cannot be done sitting in an island, where only the cannons of interpretation in favour of the accused, will inform the interpreter. The nature of the mischief which the Legislation seeks to prevent, the scheme and purpose of the Act, the methodology employed to prevent such mischief, will all have to be taken into consideration to decide whether the competing view is reasonable and possible. I say so because there is strenuous arguments raised in this case based on precedents that the view in favour of the accused is also a possible view. Mere possibility of an interpretation is not the criterion. Whether such interpretation, consistent with the text and context, is reasonable will certainly have to be considered. W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 8 :- 10. The third aspect that I would like to bear in mind is that it must always be inherent in the interpreter also to fight against untruth, injustice, vice and crime. The Judicial Chair can only provide the opportunity, but the interpreter must have a basic sense of justice and the commitment to fight injustice, untruth, corruption and evil. It is such an interpreter who will have to identify whether two views are reasonably possible in a given case. The yearning and desire to prevent the abuse/ mischief must be inherent in any interpreter. The goals and the purpose of the legislation have got to be imbibed by the interpreter also. 11. Fourthly, I would remind myself that the interpreter must have his feet planted firmly in terra firma. It is not mere possibilities and probabilities which will be taken into account while attempting interpretation. Every interpreter is entitled to take note of Section 114 of the Evidence Act which enjoins on the court the duty to have regard to the common course of W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 9 :- natural events, human conduct and private and public business in their relation to the task ahead. 12. Fifthly, this court must take note of the presumption in favour of legality, constitutionality and correctness of the rules. The nature of the presumption may certainly vary depending on the instrument to be interpreted. It is well known that subordinate legislation will not enjoy the same degree of immunity as a legislative act would. But all the same when rules are made and notifications are published, the burden will undoubtedly be on the person, who wants such rule/notification to be set aside to show that it is necessary to declare them null, void or unconstitutional.' 13. I shall now extract the two amendments which are brought in to the Kerala Abkari Shops disposal Rules, 2002. By Ext.P3 rules, Rule 2(n) (not 2(a) as mistakenly printed) and 9 (2) stand amended and the following rules are introduced. I extract Rule 2 in Ext.P3: “2. Amendment of the rules – In the Kerala Abkari Shops Disposal Rules, 2002, - W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 10 :- (1) in rule 2(n) for clause (ii), the following clause shall be substituted, namely:- “(ii) 'Toddy' in these rules means fermented juice drawn from any coconut, palmyra or Choondapana palms and conforming to such specifications and restrictions as may be notified by Government based on scientific studies and Indian Standard Specifications,”; (2) for sub-rule (2) of rule (, the following sub rule shall be substituted, namely:- “(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 Governmnt under clause (n) of rule 2. Nothing shall be added to it to increase its intoxicating quality or strength W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 11 :- or to alter its natural composition or for any other purposes.” 14. These amendments of the rule are followed up by a notification in accordance with the amended Rule 2(n). The said notification – Ext.P4 – is also extracted below: G.O.(P)No.25/2007/TD Dated, Thiruvanan- thapuram, 14th February, 2007. “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 dt. 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, hereby notify that fermented toddy tapped, stored, transported or offered for sale shall conform to the following specifications and comply to the following restrictions, namely - 1. The ethyl alcohol content of coconut toddy shall not exceed 8.1. percent , of Palmyrah toddy, W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 12 :- 5.2 per cent and Sago toddy 5.9 per cent by volume. 2. Toddy shall be un-pasteurized and natural and shall possess the characteristic flavour derived from the sap and fermentation, without addition of any extraneous alcohol. 3. If the ethyl alcohol content of toddy exceeds the limit prescribed above, it will be deemed that extraneous alcohol has been added to such toddy to increase its intoxicating quality or strength. For all purposes, such extraneous alcohol will be treated as a foreign ingredient. 4. Toddy shall be free from any added colouring, flavouring, sweetening or other foreign matters; starch, chloral hydrate; paraldehyde; sedatives, tranquilizers and any other Narcotic Drugs or Psychotropic Substances; and any ingredient injurious to health. It shall be free from Escherichia coli also. 5. Total acid as tartaric acid (expressed in terms of 100 litres of alcohol) shall not exceed 400 grams. W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 13 :- 6. Volatile acid as acetic acid (expressed in terms of 100 litres of absolute alcohol) shall not exceed 100 grams.” 15. I shall now attempt to understand and extract the nature of the challenge that is raised against Ext. P3 amendment and Ext.P4 notification. 16. The counsel contends that Rule 2(n) and 9(2) are invalid and ultra vires. Consequently it is contended that Ext.P4 notification is invalid as not supported by any valid rules. It is in the alternative further contended that Ext.P4 notification deserves to be set aside as unreasonable and unworkable. 17. Lastly, it is contended that, at any rate, Exts.P3 amendment and P4 notification shall have no bearing in a prosecution under Section 57(a) of the Kerala Abkari Act and for the purpose of Section 57(a) the amended rule and the notification have to be ignored. Consequently it is prayed that the prosecutions may be quashed. W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 14 :- 18. I shall first endeavour to consider the contention that Rules 2(n) is not valid. The challenge is raised on the following contentions. (1) Definition of toddy is made in the rule in addition to the definition in the Act. A different definition in the Rule is impermissible. (2) The amended definition of toddy in Rule 2(n) overrides the statutory definition in the Abkari Act. This is ultra vires. (3) The rule suffers from the vice of excessive delegation. 19. The above are the three grounds on which the amendment to Section 2(n) is assailed. Rule 9(2) is further assailed on the ground that it incorporates the amended Rule 2 (n) into the rule 9(2) and is consequently unsustainable. 20. Section 3(8) of the Kerala Abkari Act defines toddy in the following words. W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 15 :- “3(8) Toddy:- “Toddy” means fermented or unfermented juice drawn from a coconut, palmyra, date or any other kind of palm tree. Fermented or unfermented juice drawn from a coconut, palmyra, date or any kind of palm tree would be toddy. Under Section 29(1) of the Kerala Abkari Act the Government is invested with powers to make rules for the purposes of the Act. Section 29(2) enumerates the areas/zone, where the rules can be framed, but specifies that the specification is without prejudice to the generality of the stipulation in Section 29(1) that rules can be made for the purposes of this Act. 21. Toddy must be fermented or unfermented juice drawn from one of the trees specified. If the toddy offered by an Abkari shop is not juice drawn from such tree and instead is made of some other substance which in part may be toddy also, that would certainly be not toddy under Section 3(8). There is need to exclude non-genuine toddy from the sweep of its definition in Section 3(8). It is already excluded. But further clarification is necessary. Specifications to ascertain whether what is offered W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 16 :- as toddy is genuine or non-genuine are necessary. The rule making power under Section 29 must therefore undoubtedly confer on the Government powers to make rules to further amplify the expression toddy, of course, consistent with the definition in Section 3(8). Such rule making power under Section 29 cannot obviously be denied to the Government. The rule can be made “for the purpose of the Act” and it is certainly the purpose of the Act to ensure that the Government permits trade in liquor and regulates the same. That the consumer must get real and genuine toddy is one of the purposes of the Act and therefore the rules can certainly be made to ensure that end. 22. The mere fact that Section 3(8) defines toddy is no reason to assume that the rules cannot be made to make the said definition in Section 3(8) effective and to ensure that the consumer is not given as toddy something that is not genuine juice from the specified trees. Rule 2(n) therefore is perfectly intra vires as what is attempted to be done is to further amplify the expression toddy to ensure that some liquor which may be W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 17 :- intoxicating but is not genuine toddy is not vended in the name of toddy. The purpose is obvious, the rule making power certainly exists under Section 29. Further amplification by Rule 2(n) of the concept of toddy can by no stretch of imagination be held to be beyond the powers conferred under the Act - provided there is no crucial inconsistency with the definition in the parent Act. 23. If the definition of toddy under Section 2(n) runs counter to or destroys the definition in Section 3(8), certainly the contention that the rule is not justified legally will have to be considered. But Rule 2(n) only confers on the Government powers to notify specifications and restrictions regarding toddy on the basis of scientific studies and Indian Standards Specification. Whether the specifications and restrictions in Ext.P4 are unreasonable, unworkable or perverse will be considered when the validity of Ext.P4 is considered. But certainly the rule will not be rendered bad for the reason that Ext.P4 notification is unreasonable, unworkable or perverse. In W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 18 :- such event, the notification will have to be set aside, but certainly not the rule. The argument therefore that the definition again in Rule 2(n) of toddy is ultra vires and beyond the rule making power of the Government under Section 29 cannot be accepted. 24. It is then contended that Rule 2(n) is in direct conflict with Section 3(8) in as much as unfermented juice drawn from the tree will be toddy under the Act, but not under the rules. Unfermented toddy, I must assume, will not be liquor within the definition under Section 2(10) as it does not contain any alcohol. The definition of toddy under the Act takes in unfermented toddy also because a person should not be permitted to tap a tree without paying the tree tax and raise the plea in defence that he has extracted the sap of the tree even before fermentation has started taking place. That is a totally different purpose. Having a different definition on that limited aspect for the purpose of the Kerala Abkari Shops Disposal Rules cannot in any way be said to be bad. Toddy for the purpose of Abkari Act and toddy W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 19 :- for the purpose of the Kerala Abkari Shops and Disposal Rules can and may have different meanings provided that the definition in the rule does not destroy or run counter to the definition in Section 3(8). More over, for the purpose of our dispute, it is not relevant or necessary to go in detail to the question of unfermented juice from the palm tree which may be toddy under Section 3(8) and may not be toddy under Rule 2(n). Unfermented toddy will continue to be toddy notwithstanding the amended Rule 2(n) in as much as it will not contain any alcohol and shall be within the maximum percentage of ethyl alcohol fixed under Rule 2(n). 25. The third contention raised is that the rule is bad for excessive delegation. It was urged initially in the course of arguments that the Government has delegated to itself the powers to make a notification under Section 2(n) and this therefore amounts to excessive impermissible sub-delegation. But in the course of arguments the learned counsel for the petitioner Sri. C.C. Thomas did not press this contention and W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 20 :- therefore it is not necessary for me to go into that contention in any greater detail. The burden, responsibility and duty to make notification is not delegated to any one, but is retained with the Government itself and in these circumstances the plea of excessive delegation which is not pressed need not be considered in any greater detail. 26. The above discussions lead me to the conclusion that the amendment by which a definition of toddy has been introduced in the Kerala Shops Disposal Rules does not at all warrant any interference. The amended rule 2(n) is held to be valid. 27. No independent contention is urged to assail Rule 9 (2). Except to argue that Rule 2(n) is bad and incorporation of the amended Rule 2(n) in Rule 9(2) is consequently invalid, no other grounds are raised. The above discussions lead me to the conclusion that amended Rule 2(n) and 9(2) are perfectly legal and valid and they do not warrant any interference. W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 21 :- 28. We now come to the question whether Ext.P4 notification is legal and valid. I have already extracted Ext.P4 notification earlier. The challenge in this proceedings is directed pointedly against clauses 1 and 3 of the notification, which for immediate reference, is extracted below again: “1. The ethyl alcohol content of coconut toddy shall not exceed 8.1. percent , of Palmyrah toddy, 5.2 per cent and Sago toddy 5.9 per cent by volume. 3. If the ethyl alcohol content of toddy exceeds the limit prescribed above, it will be deemed that extraneous alcohol has been added to such toddy to increase its intoxicating quality or strength. For all purposes, such extraneous alcohol will be treated as a foreign ingredient. (emphasis supplied) If the notification is unreasonable and it makes the operation of the Statute unworkable, undoubtedly the notification can be set aside. The vital question is whether prescription in clause (1) that ethyl alcohol content of coconut toddy, palmyra toddy and sago toddy cannot exceed 8.1%, 5.2% and 5.9% by volume is reasonable and proper. W.P.(c) No.24408 of 2007-E & Crl.M.C.No. 2052 OF 2007 -: 22 :- 29. Heavy reliance is placed on the decisions in Unni v. State of Kerala (2003 (3) KLT 306) (SB), State of Kerala v. Unni (2005 (1) KLT 714) (DB) and State of Kerala v. Unni (2007 (1) KLT 152 )(SC).