Case: State Of Kerala  Vs. Unni

such broad proposition as has been sought to be urged. In Craies on Statute Law (1971 Edn., Chapter 21), the principle regarding penal provisions has been stated as under:"But penal statutes must never be construed so as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptation would comprehend. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument." 58. In Lalita Jalan v. Bombay Gas Co. Ltd. this question was examined in considerable detail and it was held that the principle that a statute enacting an offence or imposing a penalty is to be strictly construed is not of universal application which must necessarily be observed in every case. The Court after referring to Murlidhar Meghraj Loya v. State of Maharashtra, Kisan Trimbak Kothula v. State of Maharashtra, Supdt. and Remembrancer of Legal Affairs to Govt. of W.B. v. Abani Maity and State of Maharashtra v. Natwarlal Damodardas Soni held that the penal provisions should be construed in a manner which will suppress the mischief and advance the object which the legislature had in view. 59. We are, however, dealing with a different situation. Section 57 must also receive strict construction, having regard to the fact that thereby an offence proved would lead to a higher penalty; although on the self-same fact another penal provision involving a minor punishment, viz., Section 56 would be attracted. It has to be read having regard to the constitutional protection available to an accused as also other civil consequences, if any, entailing therefor. While construing a penal statute, in a case of this nature, it is necessary to apply the rule of strict construction. 60. In Standard Chartered Bank and Others v. Directorate of Enforcement and Others [(2005) 4 SCC 530] , yet again a Constitution Bench in a case where two different interpretations were possible, opined : "The counsel for the appellant contended that the penal provision in the statute is to be strictly construed. Reference was made to Tolaram Relumal v. State of Bombay, SCR at p. 164 and Girdhari Lal Gupta v. D.H. Mehta. It is true that all penal statutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. All penal provisions like all other statutes are to be fairly construed according to the legislative intent as expressed in the enactment. Here, the legislative intent to prosecute corporate bodies for the offence committed by them is clear and explicit and the statute never intended to exonerate them from being prosecuted. It is sheer violence to common sense that the legislature intended to punish the corporate bodies for minor and silly offences and extended immunity of prosecution to major and grave economic crimes." 61. The matter may have to be considered from another angle. Renewal of a licence is a valuable right. [See D. Nataraja Mudialiar v. The State Transport Authority, Madras - AIR 1979 SC 114 ]. 62. It is not in dispute that whereas if an offence is committed under Section 56 of the Act, renewal of licence is permissible; but in a case where a licensee faces a prosecution under Section 57, renewal of licence would be denied to him. Consequences of attracting the provisions of Section 57, thus, must also be judged from the said angle.63. Reliance placed by Mr. Bhat upon Sundaram Pillai (supra), in our opinion, is wholly misplaced. The court therein was considering a rent control statute. It laid down law with regard to the interpretation of proviso and explanation. It was while so doing referred to the well-known decision of Seaford Court Estates Ltd. v. Asher [(1949) 2 All ER 155 : (1969) 2 KB 481 (CA)], stating : "It has been observed that statutory provisions must be so construed, if it is possible, that absurdity and mischief may be avoided. Where the plain and literal interpretation of a statutory provision produced a manifestly absurd and unjust result, the court might modify the language used by the Legislature or even do some violence to it so as to achieve the obvious intention of the Legislature and produce rational construction and just results. See in this connection, the observations in the case of Bhag Mal v. Ch. Parbhu Ram. Lord Denning in the case of Seaford Court Estates Ltd. v. Asher has observed :"if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it must not alter the material of which the Act is woven, but he can and should iron out the ceases." 64. Ironing out the creases is possible but not rewriting the language to serve a notation of public policy held by the Judges. Legislature must have legislated for a purpose by Act 23 of 1973 and used the expression "shall be construed" in Explanation in the manner it did. 65. It, however, added a note of caution that a purposive construction can be applied if the statute is read as a whole, requires such application.66. Reliance upon Bhagwan Das Jain (supra), in our opinion, is also misplaced. In fact, upon construction of a statute, we have held that the licensees are not guilty of any adulteration. The said decision has, therefore, no application.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]21. Rule 9(2) of the said Rules, in our opinion, should be given a plain meaning. It should be read in its entirety. It is in two parts. The intention of the legislature must be gathered having regard to the expressions used therein. Rule 9(2) read in its entirety, states the context that thereby what is essentially sought to be prevented is adulteration of toddy. It is aimed at prevention of adulteration. The penal provision contained in first part not only directs that all toddy kept or offered for sale should be of good quality and unadulterated but also provides that nothing shall be added to it to increase its intoxicating power or for any other purpose. If the second part prescribing the contents of the ethyl alcohol in toddy is read in the context of the first part vis-a-vis Section 57(a) of the Act, it would be evident that prohibition is aimed at adulteration by addition of any foreign substance to increase its intoxicating power or for any other purpose.22. Validity of Rule 9(2), therefore, can be saved if the said provision is read in its entirety and rule of harmonious construction is resorted to. If, however, Rule 9(2) is sought to be invoked even for the purpose of initiating a prosecution as against a licensee even he does not add any foreign substance to it, the same, in our opinion, would render the same ultra vires, as would appear from the discussions made hereinafter.23. It is not in dispute that there does not exist any mechanical devise to measure the contents of ethyl alcohol present in toddy. It also stands admitted that contents of ethyl alcohol in toddy would depend upon various factors including weather, season or pot in which it is kept etc.24. Judicial notice can be taken of the fact that each village would not have a chemical laboratory where the process of analysis of ethyl alcohol can be carried out. For example, if a sample is taken in a village, by the time sample is sent for and is analyzed, the volume of ethyl alcohol may increase. Although we are informed that some chemical is mixed when a sample is taken, no material has been placed in that behalf.25. The validity or otherwise of Rule 9.2 must be considered from this point of view.The constitutionality of a statute is presumed in view of the principles laid down in ut rest magis valeat quam pareat. The principles on which constitutionality of a statute is judged and that of a subordinate legislation are different.Unreasonableness is one of the grounds of judicial review of delegated legislation. Reasonableness of a statute or otherwise must be judged having regard to the various factors which, of course, would include the effect thereof on a person carrying on a business.31. While we are not oblivious of the fact that nobody has any fundamental right to carry on business in toddy or liquor, but all the licensees are entitled to be treated equally. If the matter of validity or otherwise of the subordinate legislation is to be considered, Article 14 of the Constitution of India shall be attracted. [See State of Punjab and Another v. Devans Modern Breweries Ltd. and Another (2004) 11 SCC 26 , Ashok Lanka and Another v. Rishi Dikshit and Others (2005) 5 SCC 598  and Ashok Lanka-II v. Rishi Dikshit (2006) 9 SCC 90 ]32. When a statute provides for a condition which is impossible to be performed, unreasonableness of a statute shall be presumed. It would be for the State in such a situation to justify the reasonableness thereof.33. The Division Bench has, in our opinion, posed a wrong question unto itself when it proceeded on the premise that availability of a mechanical instrument to measure the contents of ethyl alcohol is of no moment. When a subordinate legislation imposes conditions upon a licensee regulating the manner in which the trade is to be carried out, the same must be based on reasonable criteria. A person must have means to prevent commission of a crime by himself or by his employees. He must know where he stands. He must know to what extent or under what circumstances he is entitled to sell liquor. The statute in that sense must be definite and not vague. Where a statute is vague, the same is liable to be struck down. [Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Another v. Union of India and Others AIR 1960 SC 554 ].34. The learned Single Judge although did not deal with the matter in details, but was of the opinion that the statute is not workable.35. Workability of a statute vis-a-vis the question as to whether it is vague or otherwise must also be considered having regard to the question as to whether it is at all practical.36. We must state that where two interpretations are possible, having regard to the workability or unworkability of a statute, the one which leads to the workability of the statute must be preferred than the other, keeping in view the principle ut rest magis valeat quam pereat.45. A person may be held to be guilty even if the contents of ethyl alcohol exceed 8.1% marginally. He must, therefore, be in a position to know as to what extent he can go and to what extent he cannot. The matter cannot, thus, be left to an act of nature. A penal provision must be definite. Unless the statutory intention otherwise provides, existence of mens rea must be read into a penal statute. It must be a deliberate act and not an unintentional one, unless the statute says so explicitly or by necessary implication. The Act or the Rules do not say either. It is in that sense vague or unreasonable.46. Once, thus, it is found to be ex facie unreasonable and unworkable, the court would not hesitate to strike down the said rule. We do so.47. We for the reasons aforementioned, hold Rule 9(2) to be unworkable being vague in nature, unless read in the manner as suggested supra.In this case we are satisfied that the High Court was correct in its view that the ingredients of Section 57 of the Act are not attracted in the instant case.We are, however, dealing with a different situation. Section 57 must also receive strict construction, having regard to the fact that thereby an offence proved would lead to a higher penalty; although on the self-same fact another penal provision involving a minor punishment, viz., Section 56 would be attracted. It has to be read having regard to the constitutional protection available to an accused as also other civil consequences, if any, entailing therefor. While construing a penal statute, in a case of this nature, it is necessary to apply the rule of strict construction.It is not in dispute that whereas if an offence is committed under Section 56 of the Act, renewal of licence is permissible; but in a case where a licensee faces a prosecution under Section 57, renewal of licence would be denied to him. Consequences of attracting the provisions of Section 57, thus, must also be judged from the said angle.63. Reliance placed by Mr. Bhat upon Sundaram Pillai (supra), in our opinion, is wholly misplaced. The court therein was considering a rent control statute. It laid down law with regard to the interpretation of proviso and explanation.Ironing out the creases is possible but not rewriting the language to serve a notation of public policy held by the Judges. Legislature must have legislated for a purpose by Act 23 of 1973 and used the expression "shall be construed" in Explanation in the manner it did.It, however, added a note of caution that a purposive construction can be applied if the statute is read as a whole, requires such application.66. Reliance upon Bhagwan Das Jain (supra), in our opinion, is also misplaced. In fact, upon construction of a statute, we have held that the licensees are not guilty of any adulteration. The said decision has, therefore, no application.