IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 Crl.MC.No. 1223 of 2011() ------------------------- C.R.NO.39 OF 2010 OF EXCISE RANGE OFFICE, THIRUVALLA PETITIONER(S): ACCUSED NOS.1 & 2 -------------------------------- 1. K.R.SOMANATHAN, S/O. RAGHAVAN, ANJALI HOUSE, VARANAM, THANNEERMUKKOM NORTH, CHERTHALA TALUK, ALAPPHZHA DISTRICT. 2. M.P.THANKAPPAN,S/O. PADMANABHAN, CHITRAMADAM HOUSE, PULINKUNNU VILLAGE, KUTTANADE TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.S.SREEKUMAR SRI.M.T.SURESHKUMAR SRI.RAJA VIJAYARAGHAVAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1223 of 2011 -------------------------------------- Dated this the 12th day of April, 2011. ORDER Petitioners are accused 1 and 2 in C.R.No.39 of 2010 of the Excise Range Office, Thiruvalla for offences punishable under Sections 56(b) and 57(a) of the Abkari Act (for short, “the Act”). It is alleged that samples of toddy were taken from the shop of petitioners on 30.12.2008. On examination of the sample part it was found to contain 8.78 % by volume of ethyl alcohol. According to the Excise Officials it crossed the permissible limit of 8.1% by volume prescribed by Rule 9 (2) of the Abkari Shops Disposal Rules, 2002 (Kerala) (for short, “the Rules”) brought into effect on 14.02.2007 and thus petitioners committed offences as above stated. The crime and occurrence report is sought to be quashed in this proceeding on the ground that no offence as alleged and at any rate under Section 57(a) of the Act is involved. Learned counsel for petitioners has brought to my notice Annexure-A3, report of the public analyst where percentage of ethyl alcohol in the sample in question is shown as 8.78 % by volume while the permissible maximum limit is 8.1% by volume. It is contended by the learned counsel that toddy is liable for natural fermentation and hence slight variation in percentage of ethyl alcohol cannot be said to be due to any act or omission of petitioners making them liable for prosecution under Section 56(b) of the Act and much less, under Section 57(a) of the Act. Learned counsel has placed heavy reliance on the decision of the Supreme Court in State of Kerala v. Unni Crl.MC No.1223/2011 2 (2007 (1) KLT 151) and in particular paragraphs 20, 44, 50 and 51. It is also contended that there is no case that the substance in question is noxious or injurious to health, that it was mixed by petitioners and hence the question of application of offence under Section 57(a) of the Act does not arise. Learned Public Prosecutor submitted that pursuant to the decision of the Supreme Court referred above the State Government has amended Rule 9(2) of the Rules and that amendment has been upheld by a learned Judge of this Court in Komalan v. State of Kerala (2008(1) KLT 340) which has been confirmed by the Division Bench in Komalan v. State of Kerala (2009 (2) KLT 744). In the circumstances presence of any foreign body in excess of the permissible limit amounts to violation of licence/permit condition and makes out offences punishable under Section 56(b) and 57(a) of the Act. 2. I shall refer to the decision cited by the learned counsel for petitioner. There, in paragraph 50 it is stated that Sections 56 and 57 operate in different fields, they lead to different consequences and provide for different punishments. While Section 56 contemplates penal action in the event the terms and conditions of a licence are found to be violated, Section 57 of the Act speaks of adulteration. In paragraph 51, it is stated that a person may violate the rule, but thereby may not adulterate liquor. Violation of the rule may be intentional or unintentional attracting penal provisions of Section 56 of the Act. But violation of the provisions of Section 57 of the Act rests on existence of mens rea or actus reus on the part of the offender. In a case where extract of juice is subject to automatic fermentation, one does not have to mix anything for Crl.MC No.1223/2011 3 increase of contents of ethyl alcohol. In that case the State had no contention that the licensee had deliberately mixed additional ethyl alcohol in liquor so as to increase the potency thereof. In paragraph 44 it is stated that toddy ferments automatically after sun rise. If it is permitted to be sold within a time frame after toddy is tapped, reasonableness can be inferred; but at what point of time precisely ethyl alcohol content would exceed 8.1% in toddy is not known. In paragraph 20 there is reference to the Excise Manual and it is stated that the maximum self-generated alcohol content that would be present in a fermented liquor which is not fortified is only 12% by volume. It is on the above observations that learned counsel has placed reliance to contend that no offence punishable under Sections 56(b) or 57(a) of the Act and much less the latter is made out. 3. It is useful to refer to the relevant Sections quoted in the crime and occurrence report. Section 56 deals with misconduct by a holder of licence or permit granted under the Act or being in the employ of such holder and action on his behalf and Sub-section (b) deals with any person willfully doing or omitting to do anything in breach of any of the conditions of the licence or permit not otherwise provided for in the Act. Section 57(a) of the Act deals with adulteration, etc. by licensed vendor or manufacturer and states that whoever being the holder of a licence for the sale or manufacture of liquor or of any intoxicating drug under the Act mixes or permits to be mixed with liquor or intoxicating drug, sold or manufactured by him (any drug, other than a noxious drug) or any foreign ingredient likely to add to its actual or apparent intoxicating quality or strength or any article prohibited (other than an article which the Crl.MC No.1223/2011 4 Government shall deem to be noxious) by any Rule made under Section 29(k) of the Act when such admixture shall not amount to the offence of adulteration under Section 272 of the Indian Penal Code. In the present case Annexure-3, certificate shows that presence of ethyl alcohol in the sample of toddy is 8.78% by volume when admittedly the permissible limit is 8.1% by volume. It is also not disputed that after the decision in State of Kerala v. Unni (supra) the State Government amended Rule 9(2) of the Rules which as it now stands states that “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”. In otherwords, going by Rule 9(2) as amended after the decision of the Supreme Court in State of Kerala v. Unni (supra) nothing could be added to toddy to increase its intoxicating quality or strength or to alter its natural composition or for any other purpose. As I stated, in the sample that was collected presence of ethyl alcohol is 8.78% by volume as against the permitted maximum limit of 8.1% by volume. Prima facie it appears that presence of excess ethyl alcohol was intended to increase the intoxicating quality or strength of toddy in question and it altered its' natural composition. That amounted to violation of Rule 9(2) of the Rules. 4. Validity of the said Rule was considered by this Court in Komalan v. State of Kerala (2008(1) KLT 340). There it was held that Crl.MC No.1223/2011 5 if maximum percentage of self generated alcohol in toddy can only be as prescribed in the Rule, anything in excess must certainly be held to be foreign and not natural. The expression 'foreign ingredient' in Section 57(a) of the Act must certainly take in any ingredient which is not natural. That decision has been affirmed by the Division Bench in Komalan v. State of Kerala (2009 (2) KLT 744). The Division Bench held that if the content of ethyl alcohol exceeds the prescribed limit, it shall be deemed that extraneous alcohol has been added to such toddy to increase its intoxicating quality or strength. It was also held that the added alcohol is a foreign ingredient and that it being a substance which increases intoxicating capacity, the reasonable view that could be taken is that it is a foreign ingredient in terms of Section 57(a) of the Act. The Division Bench has also referred to the decision in State of Kerala v. Unni (supra). The presumption under Section 64 of the Act also goes against petitioners and throws the burden to rebut that presumption on them. In the light of the above factual and legal position, contention of petitioners that presence of excess ethyl alcohol is due to natural fermentation or that it is not noxious or injurious to health, there is no case that it was added by petitioners and hence the offences under Sections 56(b) and/or 57(a) of the Act is not attracted, cannot be accepted to quash prosecution against them. 5. Learned counsel for petitioners has a contention that it is without proper reference to the decision of the Supreme Court in State of Kerala v. Unni and in particular the observations in paragraphs 20, 44, 50 and 51 that the decision in Komalan v. State of Kerala is rendered. I am afraid, that Crl.MC No.1223/2011 6 contention cannot be accepted as Komalan v. State of Kerala has considered the decision in State of Kerala v. Unni and particularly as Rule 9(2) was amended as aforesaid after the decision in State of Kerala v. Unni. 6. In the light of my above discussion the prayer to quash proceeding against petitioners cannot stand. Resultantly this Criminal Miscellaneous Case fails. It is dismissed. It is made clear that petitioners can take all appropriate defences as permitted by law before the trial court. THOMAS P.JOSEPH, Judge. cks