State of Kerala vs Unni

K.K. Denesan, J.—Respondents in O.P. No. 25783/2002 are the appellants. The learned Single Judge before whom the case came up for hearing quashed Ext.P2 challenged in the Original Petition holding that the writ petitioners were not liable to be prosecuted for any offence punishable either u/s 56(b) or u/s 57(a) of the Kerala Abkari Act (for short, ''the Act'')- It was also declared that Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 introduced on 1.4.2002 fixing the strength of ethyl alcohol in toddy drawn from coconut palms as 8.1% v/v was arbitrary and unreasonable and hence illegal and unenforceable. Aggrieved, the State of Kerala and the Excise Authorities have filed this Writ Appeal. It is brought to our notice that the judgment of the learned Single Judge in a connected case, Unni Vs. State of Kerala, .

It is pointed out before us that Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 (here-in-after referred to as ''the Rules'') finds a place in the Rules introduced on 1.4.2002, and prior to that, the said Rule was numbered as Rule 8(2) and still prior to that date, it was numbered as Rule 7(2) of the Abkari Shops (Disposal in Auction) Rules, 1974. The excise authorities registered cases against the petitioners, who are licensees under the Act, for offences punishable u/s 56(b), Section 57(a) and Rule 9(2) of the aforesaid Rules. The allegation was that, toddy kept for sale in Toddy Shop No. 5 belonging to the writ petitioners, on chemical analysis, was found to contain more than 8.1% of alcohol. The first petitioner is the employee and the second petitioner is the licensee of Toddy Shop No. 5 in Thiruvananthapuram Excise Range.

Rule 9(2) of the Rules reads as follows:

"No toddy other than that drawn from the Coconut Palmyrah or Choondapana palms shall be sold by the licensees. All toddy kept or offered for sale should be of good quality and unadulterated. Nothing shall be added to it to increase its intoxicating power or for any other purpose. The ethyl alcohol content of toddy kept or offered for sale drawn from Coconut, Palmyrah and Choondapana palms should not exceed 8.1% v/v; 5.2% v/v and 5.9% v/v respectively."

The writ petitioners contended that the prescription in the Rules, that the ethyl alcohol content of toddy kept or offered for sale drawn from coconut shall not exceed 8.1 %, is unscientific and unworkable and therefore, liable to be declared as illegal. It was further contended that the allegation, that there was violation of Rule 9(2) of the Rules, was unsustainable. That being so, the prosecution u/s 56(b) also cannot be sustained. Regarding Section 57(a), the contention was that though the percentage may vary, ethyl alcohol is an essential component or ingredient of toddy and therefore, it cannot be construed as a foreign ingredient and in that view of the matter the alleged presence of ethyl alcohol, notwithstanding its percentage, cannot constitute an offence u/s 57(a), which says that a licensee or any other person who mixes or permits to be mixed any foreign ingredient will be punishable under that provision.

The learned Single Judge, relying on the provisions contained in the Excise Manual, particularly para.6(a) of Chapter V of Volume-II and para.4, 5 and 6 of Chapter X of the Manual, found that the percentage of ethyl alcohol in toddy may go above 8.1% by natural causes and therefore, the prescription that, no toddy which contains ethyl alcohol over 8.1 % shall not be offered for sale is an unworkable provision and therefore, cannot be sustained in law. Paragraph 6(a) of the Excise Manual, which speaks about fermented liquors says that toddy, beer, wines etc., come under the category of fermented liquors and that the maximum self-generated alcohol content that will be present in a fermented liquor, which is not fortified is only 12% per volume. Excise Manual further says that when alcohol reaches the above percentage of volume, the yeast responsible for the fermentation is destroyed by its own bye-product and no further alcohol formation is possible. Paragraphs 4, 5 and 6 of Chapter X of the Volume-II of the Excise Manual were relied on to come to the conclusion that toddy yield from each kind of tree and the alcoholic strength of toddy varies according to the season of the year, the time during which it is drawn and other attendant circumstances. Paragraph 5 says that at the peak point of fermentation, the average alcoholic strength of fermented toddy so far as toddy taken from coconut is concerned would be 8.1% per volume.

We have heard Smt. Vaheeda Babu, the learned Government Pleader for the appellants and Sri. C.C. Thomas, learned counsel for the respondents.

It cannot be disputed that if apiece of subordinate legislation is irrational or totally unworkable it cannot stand the test of law. This principle of law is no more res Integra. Drawing sustenance from the statement of the law by Lord Justice D''plock in Mixam''s Properties Ltd. v. Chertsey Urban District Council (1964 (1) Q.B.515) and its affirmation by the Supreme Court in the Indian Express Case AIR 1986 SC 516, this Court in Narayanan Nair v. State of Kerala 1988 (1) KLT 894 (DB) stated thus:

"Unreasonableness of a statutory rule, uncertain in its language and unworkable in its operation, leading to the reasonable conclusion that it is manifestly arbitrary, can invalidate the rule as beyond the powers conferred under the statute, for "no authority would have intended to give authority to make such rules". This is a question of competence of the authority apart from the violation of a fundamental right under Article 14."

No doubt, Rule 9(2) cannot claim life, it comes within the mischief of the above declaration of law. The question is, does it or does it not? Is Rule 9(2) so unworkable or irrational as to declare it ultra vires? We answer these questions as follows. Rule 9(2) has fixed a maximum limit as regards the ethyl alcohol content in toddy, which can be kept for sale or offered for sale in toddy shops by the licensees or their employees. The percentage thus fixed is 8.1%. Even assuming that, by natural process, the percentage of ethyl alcohol may go on increasing up to 12% or above that percentage, by that reason alone the impugned Rule would not become unworkable. There is nothing wrong or impracticable in the rule making authority fixing a particular limit or standard, as far as the presence of the ingredient of any article is concerned, for the purpose of granting licences for storing, selling, distributing etc, the said article. Among other prescriptions, the Rule insists that toddy which contains more than 8.1% of alcohol shall not be sold or kept for sale in the toddy shops. The contention of the respondents in this appeal is that they do not have any mechanical equipment in their possession to gauge from time to time the percentage of ethyl alcohol content in the toddy. It is also contended that toddy is purchased from different sources, brought by toddy tappers or their agents and by the time the toddy reaches the toddy shop, by sheer lapse of time the percentage of ethyl alcohol automatically increases due to fermentation which is a natural process and therefore, a penal provision in the nature of Rule 9(2) is too harsh and unjust to be sustained. We are not able to agree with this contention. Absence of any scientific instrument or equipment in the possession of the licensee or his employee is no good ground to successfully challenge the validity of the Rule. If by lapse of time, the percentage of alcohol in toddy goes on increasing, even if it is due to a natural phenomenon like fermentation, there is no statutory compulsion on the licensee to store or sell that kind of toddy. It is nobody''s case that force, or coercion is exerted by the statute on anybody to sell any kind of intoxicating liquor. When the licensee chooses to trade in liquor, it is his duty to see that he conforms to the standard prescribed therefore so as to maintain the quality of the liquor as per that standard. He is at liberty to reject such toddy when brought to his shop and he has also got the freedom not to sell such toddy. The licensee cannot be heard to say that he does not have the instrument or equipment to assess the alcohol content in toddy. If he wants to trade in liquor, he must possess the required equipments. The mandate of the Rule that toddy with alcohol content exceeding 8.1% shall not be kept or offered for sale is capable being obeyed in letter and spirit. Therefore, we are not able to appreciate the contention of the respondents herein that Rule 9(2) has imposed a condition which is unworkable and impossible of performance. The finding to the contrary in the impugned judgment is hereby overruled.

The next contention is that the percentage of alcohol prescribed in Rule 9(2) has no scientific basis. However, no scientific data or material is produced by the respondents/writ petitioners in support of the above contention. Even going by the provisions contained in the Excise Manual which were heavily relied on to challenge the vires of Rule 9(2) we notice that the average percentage of alcohol in toddy is 8.1 %, though it also says that the percentage may go up to 12%. If the rule making authority has taken the average percentage of alcohol as the guiding principle to fix the standard and has provided that toddy which contains more than that average percentage of ethyl alcohol shall not be sold through licensed toddy shop, it cannot be said that the prescription of the percentage is unreasonable or irrational. When the writ petitioners challenged the validity of Rule 9(2) on the ground that it is irrational or unscientific, the burden is on them to establish that the Rule is ultra vires, for, it is trite that those who challenge the vires must get over the hurdle of initial burden cast on them that the law made by the competent Legislature has been validly enacted. The writ petitioners have not discharged the burden cast on them; and with the materials available on record, we are not able to say that the standard or parameters fixed by the Rule is unscientific. It follows that the learned Judge was not justified in granting a declaration that Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 fixing the strength of ethyl alcohol in toddy drawn from coconut trees as 8.1 % as arbitrary or unreasonable. In our view the provision is sustainable and capable of being implemented and we hold so.

The respondents in this appeal filed the Original Petition as soon as the Occurrence Report was registered by the Excise Authorities. Since this Court stayed all further proceedings, the Excise Authorities have not conducted further investigation into the matter. Going by Ext.P2 Occurrence Report, the offences alleged against the petitioners are under Sections 56(b) and 57(a) of the Act. The contentions of the respondents/petitioners are that the allegations do not attract offences punishable under Sections 56(b) and 57(a) of the Act. The writ petitioners can successfully attack the prosecution proceedings u/s 56(b), if only it is made out that there was no wilful violation or wilful omission to comply with the conditions of the licence or the permit issued to the 2nd petitioner. It is seen that requirements of Rule 9(2) have been incorporated in the licence and it forms one of the conditions of the licence and if Rule 9(2) is sustainable, then the licensee as well as the employee is liable to be prosecuted u/s 56(b) of the Act. We notice that the learned Single Judge granted the relief prayed for by the writ petitioners with regard to Section 56(b) on the ground that Rule 9(2) was unworkable and illegal. In the light of our finding supra that Rule 9(2) is valid and sustainable in law, the respondents/writ petitioners are not entitled to the relief prayed for in the Original Petition, in respect of the proceedings u/s 56(b) of the Act. It is so held and the relief sought against the proceedings u/s 56(b) in the Writ Petition is declined.

Regarding Section 57(a) of the Act, the contention is that there is absolutely no allegation that any foreign ingredient was mixed or permitted to be mixed in the contraband toddy by the respondents or anybody acting under them. According to the respondents, ethyl alcohol being an essential component or ingredient of toddy, the presence of the above ingredient cannot be said to be a "foreign ingredient'', even if the percentage of that ingredient, viz, ethyl alcohol is in excess of the percentage fixed as the standard as per Rules. According to the counsel for the respondents, Section 57(a) being a penal provision should be construed strictly and since the Legislature by express words or otherwise, has not made it clear that an article which is otherwise an ingredient of toddy will also fall within the mischief of the expression ''foreign ingredient,'' if the same is found in excess of the standard fixed or the permitted quantity or percentage, prosecution of the respondents u/s 57(a) is illegal and liable to be quashed. In the realm of interpretation of the penal statutes when two views are reasonably possible, Courts should adopt that interpretation which is favorable to the accused. We are of the view that the interpretations canvassed by the learned counsel for the respondents is a plausible view, at any rate, not unreasonable. Hence the benefit should go in favor of the person facing prosecution.

Smt. Vaheeda Babu, Government Pleader, submitted that Section 57(a) has got a laudable object and 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 eihyl 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 Section 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 u/s 57(a) of the Abkari Act. We may observe here that if the presence of ethyl alcohol in toddy beyond the percentage permitted by the Rule has to be deemed to be a ''foreign ingredient'' it is for the Legislature to incorporate necessary amendments in the Act. Be that as it may, in the light of the language used in Section 57(a), we hold that the respondents are not liable to be prosecuted for that offence.

In the result, the challenge against the vires of Rule 9(2) of the Abkari Shops (Disposal in Auction) Rules, 2002 is repelled. Prosecution proceedings against the respondents u/s 56(b) of the Abkari Act are not liable to be declared illegal. Proceedings to prosecute the respondents u/s 57(a) of the Act are quashed.

Writ Appeal is partly allowed. No order as to costs.