Kerala High Court
The Excise Commissioner vs K.Sridharan on 10 February, 2021
Bench: C.T.Ravikumar, N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.2451 OF 2018
AGAINST THE JUDGMENT IN WP(C) 3969/2018(U) OF HIGH COURT
OF KERALA
APPELLANTS/RESPONDENTS IN THE WRIT PETITION:
1 THE EXCISE COMMISSIONER
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM-695 033.
2 THE DEPUTY COMMISSIONER OF EXCISE,
KOZHIKODE - 673 020.
SRI.V.MANU, SENIOR GOVT. PLEADER
RESPONDENT/PETITIONER IN THE WRIT PETITION:
K.SRIDHARAN
S/O.KANNAN NAIR, KURUMANNIL HOUSE,
PAYYOLI VILLAGE, KIZHOOR DESOM,
KOYILANDI THALUK, KOZHIKODE DISTRICT-673 522.
BY ADV. SRI.A.SUDHI VASUDEVAN (SR.)
BY ADV. SRI.JOSE JONES JOSEPH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
24.6.2020, ALONG WITH WA.2452/2018 AND CONNECTED CASES,
THE COURT ON 10.2.2021 DELIVERED THE FOLLOWING:
W.A.2451/2018 & Conn. 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.2452 OF 2018
AGAINST THE JUDGMENT IN WP(C) 16059/2018(F) OF HIGH COURT
OF KERALA
APPELLANTS/ RESPONDENTS IN THE WRIT PETITION:
1 STATE OF KERALA,REPRESENTED BY SECRETARY,
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 COMMISSIONER OF EXCISE,
KERALA, BAKERY JUNCTION ROAD, NANDAVANAM,
PALAYAM, THIRUVANANTHAPURAM-695 033.
3 DEPUTY EXCISE COMMISSIONER
WAYANAD, MEENANGADI - 673 122.
SRI.V.MANU, SENIOR GOVT. PLEADER
RESPONDENT/PETITIONER IN THE WRIT PETITION
1 K.V. VISWANATHAN
S/O.KUNHIRAMAN, KULANGARAKANDI HOUSE,
MELUMURINGODI P.O., IRITTY TALUK,
KANNUR DISTRICT, PIN - 670 673.
ADV.SRI.MATHEW KURIAKOSE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
24.6.2020, ALONG WITH WA.2451/2018 AND CONNECTED CASES,
THE COURT ON 10.2.2021 DELIVERED THE FOLLOWING:
W.A.2451/2018 & Conn. 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.2453 OF 2018
AGAINST THE JUDGMENT IN WP(C) 6308/2018(K) OF HIGH COURT
OF KERALA
APPELLANTS/RESPONDENTS IN THE WRIT PETITION::
1 STATE OF KERALA,REPRESENTED BY CHIEF SECRETARY,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 EXCISE COMMISSIONER
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM-695 033.
3 DEPUTY COMMISSIONER OF EXCISE
CIVIL STATION, KOZHIKODE-673 020.
4 EXCISE INSPECTOR
EXCISE RANGE OFFICE, VADAKARA - 673 101,
KOZHIKODE DISTRICT
SRI.V.MANU, SENIOR GOVT. PLEADER
W.A.2451/2018 & Conn. 4
RESPONDENT/PETITIONER IN THE WRIT PETITION
1 T.H.RAJAN,
S/O.KUMARAN, KOYILOTH MEETHAL HOUSE,
VADAKARA VILLAGE, VADAKARA THALUK,
KOZHIKODE DISTRICT.
2 G.PRABHAKARAN
S/O.RAMMUNI, VALLIYA KAYYIL HOUSE,
NADAKUTHAZHA VILLAGE, PUTHUPANNAN,
VADAKARA THALUK, KOZHIKODE DISTRICT.
ADV. SRI.A.SUDHI VASUDEVAN (SR.)
ADV. SRI.JOSE JONES JOSEPH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
24.6.2020, ALONG WITH WA.2451/2018 AND CONNECTED CASES,
THE COURT ON 10.2.2021 DELIVERED THE FOLLOWING:
W.A.2451/2018 & Conn. 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.2454 OF 2018
AGAINST THE JUDGMENT IN WP(C) 3326/2018(M)
APPELLANTS/RESPONDENTS IN THE WRIT PETITION:
1 COMMISSIONER OF EXCISE
OFFICE OF THE COMMISSIONER OF EXCISE,
THIRUVANANTHAPURAM, KERALA - 695 033.
2 DEPUTY COMMISSIONER OF EXCISE
CIVIL STATION (P.O.), KOZHIKODE - 673 020.
3 EXCISE CIRCLE INSPECTOR
CIVIL STATION (P.O.), KOZHIKODE - 673 020.
4 STATE OF KERALA,REPRESENTED BY ITS SECRETARY,
TAXES DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
SRI.V.MANU, SENIOR GOVT. PLEADER
RESPONDENT/PETITIONER IN THE WRIT PETITION:
V.P.ASOKAN,S/O.PERAVAKUTTY, DEEPAK NIVAS,
KARANTHOOR P.O., KOZHIKODE DISTRICT - 673 571.
BY ADV. SRI.MILLU DANDAPANI
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
24.6.2020, ALONG WITH WA.2451/2018 AND CONNECTED CASES,
THE COURT ON 10.2.2021 DELIVERED THE FOLLOWING:
W.A.2451/2018 & Conn. 6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.2455 OF 2018
AGAINST THE JUDGMENT IN WP(C) 4910/2018(K) OF HIGH COURT
OF KERALA
APPELLANTS/RESPONDENTS IN THE WRIT PETITION:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE EXCISE COMMISSIONER
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM-695 033.
3 THE DEPUTY COMMISSIONER OF EXCISE
KASARAGOD - 673 001.
4 THE EXCISE INSPECTOR
HOSDURG EXCISE RANGE,
KASARAGOD DISTRICT-671 315.
SRI.V.MANU, SENIOR GOVT. PLEADER
W.A.2451/2018 & Conn. 7
RESPONDENTS/PETITIONERS IN THE WRIT PETITION:
1 C.V.DAMODHARAN,
S/O.AMBADI, THATTUMMAL EZHAMMAYIL HOUSE
ADENGANAM, KODOM VILLAGE, VELLARIKUNDU TALUK
2 SHAJI E.K.
S/O.E.V.KARUNANKARAN, ERIYODATH,
ELAVAMKUNNEL HOUSE, PULLUR VILLAGE,
HOSDURG TALUK, KASARGOD DISTRICT.
ADV.SRI.M.G.KARTHIKEYAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
24.6.2020, ALONG WITH WA.2451/2018 AND CONNECTED CASES,
THE COURT ON 10.2.2021 DELIVERED THE FOLLOWING:
W.A.2451/2018 & Conn. 8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WA.No.2456 OF 2018
AGAINST THE JUDGMENT IN WP(C) 4811/2018(B) OF HIGH COURT
OF KERALA
APPELLANTS/RESPONDENTS IN THE WRIT PETITION:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
TAXES (A) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE EXCISE COMMISSIONER
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM-695 033.
3 THE DEPUTY COMMISSIONER OF EXCISE
KASARAGOD - 673 001.
4 THE EXCISE INSPECTOR
NEELESWARAM EXCISE RANGE,
KASARAGOD DISTRICT-673 572.
SRI.V.MANU, SENIOR GOVT. PLEADER
RESPONDENTS/PETITIONERS IN THE WRIT PETITION:
1 RAJAN T.V.
S/O.AMBOONI, KOTTUMPURAM DESOM,
NEELESWARAM VILLAGE, KASARAGOD DISTRICT-671314
W.A.2451/2018 & Conn. 9
2 T.K.MUKUNDAN
S/O.KUTTAPPAN, PATTENA DESOM, PEROL VILLAGE,
HOSDURG TALUK, KASARAGOD DISTRICT-671315
3 K.SUKUMARAN
S/O.V.V.AMBOONJI, PALLIKKARA DESOM,
NEELESWARAM VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT-671315
ADV.SRI. A.SUDHI VASUDEVAN (SR.)
ADV.SRI. JOSE JONES JOSEPH
ADV.SRI.M.G.KARTHIKEYAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
24.6.2020, ALONG WITH WA.2451/2018 AND CONNECTED CASES,
THE COURT ON 10.2.2021 DELIVERED THE FOLLOWING:
W.A.2451/2018 & Conn. 10
"C.R"
JUDGMENT
Ravikumar, J.
The captioned writ appeals are directed against a common judgment dated 25.10.2018 in W.P.(C)Nos.16509/2018, 3969/2018, 6308/2018, 4910/2018, 4811/2018 & 3326/2016. The State of Kerala and its officers who were respondents in the writ petitions are the appellants. The respondents herein/the writ petitioners were licensees/workers of toddy shops under different groups in different Excise Ranges. The licensees were permitted to vend toddy through the respective shops up to 31.3.2018. During the currency of their licences, samples of toddy were taken from their respective shops by the competent officers and on analysis, they were found to be adulterated with foreign materials and in the admixture presence of starch was found. Consequently, crime and occurrence reports were registered against the respondents herein, prior to 21.12.2017, under Section 57(a) of the Abkari Act, 1077. Upon registration of abkari offences against them under Section 57(a) of the Abkari Act, the respective licensees were issued with show cause notices as to why licences issued to them to vend toddy, should not be cancelled. W.A.2451/2018 & Conn. 11 Pending proceedings, the licences and privileges were suspended by the Deputy Commissioner concerned. Later, in terms of the provisions under Section 26 of the Abkari Act, their licences were cancelled. Still later, orders for resale of such shops were also issued. Though they approached the authorities for compounding the offences, the representations submitted therefor, were rejected. It is the said circumstances that constrained the respondents herein/writ petitioners to approach this Court by filing the above mentioned writ petitions.
2. The learned Single Judge, after considering the rival contentions set aside the impugned orders of suspension/cancellation and disposed of the writ petitions as per common judgment 25.10.2018 with the following findings and directions:-
"17. The impugned orders of suspension/cancellation of licence are therefore set aside. There will be a direction to the competent among the respondents to first consider the application for composition preferred by the petitioners in terms of Section 67A(1) of the Abkari Act and to pass appropriate orders in accordance with law on the said applications. It is clear from the language of the provisions that a compounding under Section 67A would amount to absolving the accused persons of all liabilities in respect of any penal provision in terms of the Abkari Act or the Rules made thereunder. In the above view of the matter, the reconsideration of the issue of necessity for cancellation of licences has to 17 be made by the competent among the respondents after the application W.A.2451/2018 & Conn. 12 for compounding is duly considered and disposed of. In case the compounding applications preferred by the petitioners are allowed, the issue of cancellation of licences will be taken up and decided taking note of the fact that the petitioners stand absolved of all liabilities in respect of the offences alleged against them in terms of Section 57(aa) of the Act. Needful shall be done by the respondents within a period of two months from the date of receipt of a copy of this judgment."
(Underline supplied) It is feeling aggrieved by the setting aside of the orders of suspension/cancellation of the licences issued to the respondents herein/writ petitioners and the further consequential findings and directions that the captioned appeals are filed.
3. Heard the learned Senior Government Pleader as also the learned counsel appearing for the respondents/writ petitioners.
4. Both sides were heard at length. From the rival contentions, various points germane for consideration. In view of the commonness of the issues as also the contentions, for the purpose of disposal of the appeals, it is absolutely unnecessary for us to take note of the factual aspects involved in the individual cases. As a matter of fact, it is submitted by both sides that the factual position obtained in each of the cases need not be gone into and what calls for in these appeals is only resolution of legal issues raised based on the amendments made in the Abkari Act by substituting the words W.A.2451/2018 & Conn. 13 "any ingredient, other than starch" for the words "any ingredient" in Section 57(a), by inserting the words "mixes or permits to be mixed with starch in the liquor sold or manufactured by him; or" as clause (aa), after clause (a) of section 57, by substituting the following words, figures, symbols and brackets:-
"shall, on conviction before a competent court, be punished,--
(i) for the offences, other than an offence falling under clause (aa), with imprisonment for a term which may extend to five years or with fine which may extend to fifty thousand rupees or with both;
(ii) for an offence falling under clause (aa), with imprisonment for a term which may extend to six months or with fine which shall not be less than twenty five thousand rupees", after clause (d), for the words "shall, on conviction before a competent court, be punished for each such offence with imprisonment for a term which may extend to five years or with fine which may extend to fifty thousand rupees, or with both" in section 57 and after the existing entries under columns (1), (2) and (3), inserting the following entries, respectively namely:-W.A.2451/2018 & Conn. 14
"Mixing starch with liquor 57(aa) 25,000", in the table under section 67A, as per the Abkari (Amendment) Ordinance, 2017 (Ordinance No.38 of 2017) with effect from 21.12.2017, the date of its promulgation. As a matter of fact, subsequently, all these amendments were brought into the Principal Act viz., the Abkari Act as per the Abkari (Amendment) Act, 2018 (Act 25 of 2018) published in Kerala Gazette Extraordinary No.1812 dated 6.7.2018,with effect from 21.12.2017
5. Hereafter in this judgment, the parties are referred to in accordance with their status in these appeals. As noticed hereinbefore, in all these cases, the respondents were all licensees/workers of toddy shops and against them abkari offences under Section 57(a) of the Abkari Act were registered, prior to 21.12.2017 as in the samples of toddy collected from their respective shops presence of starch was found. Obviously, the aforesaid amendments brought in as per Ordinance No.38 of 2017 in the Abkari Act prompted the respondents to approach the Deputy Excise Commissioner concerned with request in writing to permit them to compound the offences. Such requests were declined on the ground W.A.2451/2018 & Conn. 15 that the said amendments took effect only from 21.12.2017 and in the cases on hand, samples were collected and crimes were registered against the respondents, consequent to the detection of starch in the samples, prior to 21.12.2017. Meanwhile, pursuant to the registration of the Abkari offence under Section 57(a) of the Abkari Act, show cause notices were issued to the respondents who were licensees of different toddy shops and thereafter their licences were suspended and still later, they were cancelled. Consequent to cancellation of their licences, orders were also issued for resale of their respective shops.
6. Written argument note was submitted on behalf of the appellants. On behalf of the respondents in W.A.Nos.2451/2018, 2453/2018 and 2456/2018 also written argument note was filed. Virtually, the respondents in the other appeals also endorsed the contentions raised by the respondents in the aforesaid appeals. The contentions of the appellants as also the respondents, as revealed from their respective argument notes, are nothing but the transcription of their oral arguments advanced before us. The appellants contended thus:-
Rule 9(2) of the Kerala Abkari Shops Disposal Rules, 2002 (for W.A.2451/2018 & Conn. 16 short 'the Disposal Rules') mandates that 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 of the Disposal Rules. It also mandates that nothing shall be added to it to increase its intoxicating quality or strength or to alter its natural composition or for any other purposes. Specifications and restrictions to be complied with, inter alia, mandating that toddy shall be free from starch were issued by the Government under G.O.(P)No.25/2007/TD dated 14.2.2007. Consequently, mixing starch with toddy also attracted the offence under Section 57(a) of the Abkari Act and became punishable with imprisonment for a term which may extend to five years or with fine which may extend to fifty thousand rupees or with both. Later, an extenuatory amendment was made as per Ordinance No.38 of 2017 dated 21.12.2017 and the offence of mixing or permitting to mix starch with liquor (which expression is inclusive of toddy as well) sold or manufactured by a licensee was made a separate offence with a reduced penalty, as revealed from the amendments brought in as per Ordinance No.38 of 2017, extracted hereinbefore. That apart, in and vide the very same ordinance, in the Table of compoundable offences W.A.2451/2018 & Conn. 17 given under Section 67A an amendment was effected whereby after the existing entries under columns 1 (offence), 2 (corresponding section in the Act) and 3 (compounding fee in rupees), the following entries were respectively inserted:-
Offence Corresponding Corresponding
section in the Act fee in rupees
Mixing starch with 57(aa) 25000
liquor
In fact, the impact of the aforesaid amendments in respect of an offence committed under the erstwhile Section 57(a) viz., mixing of starch with toddy, prior to 27.12.2017, is the bone of contention in these appeals. As already noticed, later the Abkari (Amendment) Act, 2018 (Act 25 of 2018) was published in Kerala Gazette Extra ordinary No.1812 dated 6.7.2018 and thereby all the amendments to the aforesaid sections, were brought into the Principal Act with effect from 21.12.2017, the date on which Ordinance No.38 of 2017 was promulgated. The appellants would contend that the aforesaid amendments are impact-less as relates commission of offence under the erstwhile Section 57(a) id est, mixing of starch with liquor, which includes toddy, prior to 21.12.2017. It is their further contention that in such circumstances the offenders are to be prosecuted under the 'law in force', at the time of occurrence and at any rate, as a W.A.2451/2018 & Conn. 18 matter of right, they could not seek for composition of the offence registered against them.
7. Further it is submitted that even on compounding of the offence of mixing of starch prior to 27.12.2017, if it is permissible under Section 67A(1) of the Abkari Act, the respondents would not be entitled to contend that composition of the offence should be treated as an 'acquittal' which should operate as a complete bar to any further proceedings against them. Relying on Ordinance No.26 of 2009, which got lapsed as the bill could not be piloted during the next session of the Kerala Legislative Assembly and the malayalam version of the subsequently, promulgated Ordinance viz., Ordinance No.6 of 2010, it is contended that they would reveal the legislative intention behind the usage of the words 'the accused person, if in custody, shall be discharged' employed under Section 67 A(3). It is further contended that the aforesaid ordinances finally culminated in Abkari (Amendment) Act, 2010 (Act 3 of 2010) and its malayalam version would also reveal the meaning of the words 'the accused person, if in custody, shall be discharged', employed in section 67A(3) of the Abkari Act. The learned Government Pleader drew our attention to Chapter XIV of the Rules of Procedure and Conduct of W.A.2451/2018 & Conn. 19 Business in the Kerala Legislative Assembly, framed in terms of Article 208(1) of the Constitution of India. As per Rule 69(2) therein, all Bills, except amendment Bills, the present Act of which was enacted in English, shall be introduced only in Malayalam version. All the aforesaid contentions are taken, evidently, to canvass the position that the words 'the accused person, if in custody, shall be discharged' used in Section 67A(3) of the Abkari Act shall be understood and interpreted only as 'the accused person, if in custody, shall be released' in the sense that the period of detention will have to be terminated and the word 'discharged' used therein shall not be given the meaning 'acquitted'. To buttress the said contention, the learned Government Pleader relied on the decision in State of Rajasthan v. Ram Chandra reported in (2005) 5 SCC 151. In short, it is contended that if at all composition is permissible in view of the aforementioned amended provisions, the composition could not have the impact of 'acquittal'. When once it is found that the accused person concerned mixed starch with toddy or permitted mixing of starch with toddy, his action should be taken as an act committed in violation of Rule 9(2) read with Rule 2(n) of the Disposal Rules attracting the erstwhile Section 57(a) of the Abkari W.A.2451/2018 & Conn. 20 Act and in such eventuality, there is no illegality in invocation of the power under Section 26(b) of the Act by the Commissioner of Excise to cancel the licence as the said provision empowers him to cancel licences in the event of breach of licences, it is contended. The learned Government Pleader also relied on the decision of the Hon'ble Apex Court in Biswabahan Das v. Gopen Chandra Hazarika reported in AIR 1967 SC 895 to contend that if the effect of composition is not expressly provided as acquittal in the relevant statute, the composition would not be having the impact of acquittal. It is submitted that the Apex Court as per the said decision laid down the law that if composition of an offence is permissible under any particular law, the effect of such composition would depend upon what the said law provides for and furthermore that if the effect of composition is to amount an acquittal then it may be said that no stigma should attach to the character of the person. The learned Government Pleader also relied on a Division Bench decision in Sanjayan v. Tahsildar (2007 (4) KLT 597) to drive home the point that 'compounding' would necessarily mean that the person compounded the offence concerned would admit his liability as also his culpability.
W.A.2451/2018 & Conn. 21
8. The nub of the contentions of the respondents is that though at the time of the alleged commission of offence of mixing of starch with liquor was falling under Section 57(a) of the Abkari Act and was a serious offence amerciable with a greater penalty by virtue of the amendments brought to Sections 57 and 67A of the Abkari Act, it was made a separate offence under Section 57(aa); rigour of the sentence therefor was reduced and it was made a compoundable offence. Therefore, according to the respondents, they are entitled to the benefits of the amendments brought to Sections 57 and 67A, as afore-mentioned, despite the fact that the date of occurrence of the alleged commission of offence of mixing starch with liquor and the date of registration of abkari offences against them under section 57(a) of the Abkari Act were prior to 21.12.2017. To be precise and succinct, the respondents would contend that though the alleged commission of offence of mixing of starch with liquor (in the instant cases with toddy) was under the erstwhile Section 57(a) and the dates of registration of the said offence against them were prior to 21.12.2017, it is compoundable by virtue of the amendment of Section 67A of the Abkari Act and the composition as also the consequential 'discharge' should have the effect of 'acquittal' as W.A.2451/2018 & Conn. 22 according to them, the rule of beneficial construction requires that an 'ex post facto law' which reduces the punishment of any particular offence should be applied to an accused charged for the same offence under the previous law, to mitigate the rigour of the law. Relying on the decisions of this Court in Sivapalan v. R.T.O, Kollam (1996 (2) KLT 632) and Mathew N.J v. State of Kerala and others (2011 (3) KLT 1), it is contended that pendency of the case before a court of law would not take away the power of the officer empowered to compound the offence and in such cases, in the event of composition of the offence what is required is only to give a report to the court concerned, of the action taken, to close the case. The further contention is that the effect of such composition is that it would operate as a complete bar to any further proceedings as if the offender had been acquitted. It is also their contention that as a necessary sequel of composition and discharge, the preference contemplated under Rule 5(1) of the Disposal Rules could not be denied to the offender if he was a licensee. Raising, inter alia, such contentions, they resisted the appeals and contended that the impugned common judgment calls for no appellate interference and the appeals are liable to be dismissed. In support of their W.A.2451/2018 & Conn. 23 contentions, they also relied on a judgment of the Hon'ble Apex Court in T.Barai v. Henry Ah Hoe and another reported in (1983) 1 SCC 177.
9. The following main questions pose for consideration in view of the factual and legal contentions:-
1. Whether the offence of 'mixing or permitting to mix starch with liquor' is non-compoundable even after the amendments brought into Sections 57 and 67A of the Abkari Act as per Act 25 of 2018, solely because it was committed prior to 21.12.2017 when the said offence was falling under Section 57(a) of the Abkari Act?
2. If it is compoundable what is the effect of composition in terms of the provisions under Section 67A of the Act?
3. Whether composition of the offence in terms of the provisions under Section 67A of the Abkari Act would absolve the compounder from the civil liabilities under the Abkari Act which should otherwise visit a licensee by virtue of the provisions under Section 26 of the Abkari Act?
The above and other allied questions require to be resolved in the captioned appeals.
10. For a proper appreciation of the rival contentions and also W.A.2451/2018 & Conn. 24 to decide the questions of seminal importance involved, it is only appropriate to refer to the following provisions:-
"57. For adulteration, etc., by licensed vendor or manufacturer.- Whoever being the holder of a license for the sale or manufacture of liquor or of any intoxicating drug under this Act,
(a) mixes or permits to be mixed with the liquor or intoxicating drug, sold or manufactured by him, any drug, other than a noxious drug or any ingredient, other than starch, likely to add to its actual or apparent intoxicating quality or strength, or any article prohibited other than an article which the Government shall deem to be noxious by any rule made under section 29, clause (k), when such admixture shall not amount to the offence of adulteration under section 272 of the Indian Penal Code; or (aa) mixes or permits to be mixed with starch in the liquor sold or manufactured by him; or
(d) sells or keeps or exposes for sale any country liquor in a bottle, case, package or other receptacle with any mark thereon or on the cork thereof with the intention of causing it to be believed that such bottle, case, package or other receptacle contains foreign liquor, when such act shall not amount to the offence of selling goods to which a false trade mark or false trade description is applied under, Section 79 of the Trade and Merchandise Marks Act, 1958 shall, on conviction before a competent court, be punished,-
(i).....................................................................
.
W.A.2451/2018 & Conn. 25
(ii) for an offence falling under clause (aa), with imprisonment for a term which may extend to six months or with fine which shall not be less than twenty five thousand rupees.
"67A. Power to compound offences.- (1) The Commissioner of Excise or the Deputy Commissioner of Excise of the District concerned or any Abkari Officer specially empowered by the Government in this behalf by notification in the Gazette, may accept, from any person reasonably suspected of having committed any of the offences specified in column (1), a sum of money as specified in column (3) of the Table below by way of composition for the offence which may have been committed and where any property has been seized, the same shall be confiscated to Government or disposed of in such manner as may be prescribed. (2) Where any case involving an offence specified under subsection (1) is pending before a court of law, such offence may be compounded with the permission of such court and a report of the action taken thereon shall be filed before the court. (3) On payment of such sum of money or such value or both, as the case may be, to such officer empowered for the purpose under sub-section (1), the accused person, if in custody, shall be discharged."
Explanation:- for the purpose of this section, the word "compound" means compounding of offences.
11. We will consider the first question, now. The common case is that prior to and subsequent to, amendments to Section 57 of the Abkari Act, 'mixing of starch with liquor', which, expression viz., 'liquor' will take in toddy as well by virtue of the definition under W.A.2451/2018 & Conn. 26 section 3(10), constituted/constitutes an abkari offence. There can be no doubt with respect to the position that what decides whether an act or omission is an 'offence' is the ingredients to constitute the offence as per the relevant statute. Hence, according to us, the position that the offence of 'mixing of starch with liquor' was falling under Section 57(a) prior to the amendment and it now falls under Section 57(aa), of the Abkari Act after the amendment cannot have much relevance or consequence as relates the questions in issue. We have already referred to the pre-amended and post amended position of the different sub sections of Section 57 of the Abkari Act. It is common ground that the offence of 'mixing of starch with liquor', with which the respondents herein are charged, alleged to have been committed at a time when for the commission of the said offence of 'mixing of starch with liquor' a graver penalty of imprisonment for a term which may extend to five years or with fine which may extend to fifty thousand rupees or with both, was awardable on conviction by a competent court of law and after the amendment to Section 57 brought in as per Ordinance No.38 of 2017 which ultimately culminated in Abkari (Amendment) Act, 2018 (Act 25 of 2018) with effect from 21.12.2017, only a reduced penalty is awardable for the W.A.2451/2018 & Conn. 27 very same offence of 'mixing of starch with liquor' under Section 57(aa), in terms of Section 57(d)(ii). As per the said amended provision of Section 57(d)(ii), for the offence of 57(aa), imprisonment for a term which may extend to six months or with fine which shall not be less than twenty five thousand rupees, is awardable. It is in the said indisputable change of position obtained that the question whether the respondents are entitled to apply for compounding the offence of 'mixing of starch with liquor' has to be considered.
12.Obviously, the respondents herein rely on the rule of beneficial construction of 'ex post facto law' to canvass the position that they are entitled to get the offence compounded by virtue of the amendment brought to Section 67A of the Abkari Act with effect from 27.12.2017. 'Ex post facto' means 'arising or enacted after the fact but retroacting upon it; retroactive, retrospective etc. In this context, before considering the tenability of the contentions based on the rule of beneficial construction in the event of ex post facto law, it is only worthy to refer to Article 20(1) of the Constitution of India. Article 20(1) of the Constitution of India reads thus:-
" No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, W.A.2451/2018 & Conn. 28 nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence".
13. The word 'offence' used in Article 20 is not defined in the Constitution. Therefore, it has to be understood in view of Section 3(38) of the General Clauses Act that defines 'offence' as any act or omission made punishable by any law for the time being in force. Article 20(1) prohibits all convictions or subjections to penalty after the constitution, in respect of an ex post facto law whether such a law was post constitution or pre-constitution law (see Rao Shiv Bahadur Singh v. State of Vindhya Pradesh reported in AIR 1953 SC
394). The second part of Article 20(1) guarantees that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. In short, what is prohibited under Article 20(1) based on the application of ex post facto law is application of every law which creates or aggravate the crime or increase the punishment or change the rule of evidence for the purpose of conviction. However, the application of an ex post facto law that mollifies the rigour of criminal law is different and it will not fall within the prohibition under Article W.A.2451/2018 & Conn. 29 20(1) of the Constitution of India. In the decision in Ratan Lal v. State of Punjab (AIR 1965 SC 444), the Apex Court illustrated the aforesaid preposition. That was a case where a boy, aged 16 years, was found guilty and was handed down a sentence of rigorous imprisonment for six months and also a fine, on 31.5.1962. His appeal was dismissed by the Sessions Court on 22.9.1962 and the High Court dismissed the challenge against the same on 27.9.1962. In fact, in the meantime, the Probation of Offenders Act came into force on 1.9.1962. Later, he filed an appeal before the Supreme Court by special leave and took up a contention that he should be given the benefit of the Act. It was resisted by the State contending that the offence was committed before the Act came into force and that the Act is not retrospective. The Apex Court held that the rule of beneficial construction required that even an ex post facto law of the type involved ought to be applied to reduce the punishment of the young offender. The rule of beneficial construction requires that an ex post facto law which reduces the punishment should be made available to an accused irrespective of the fact that the action that constitutes the offence was committed prior to the amendment of the existing law or an existing statute was repealed by a new enactment W.A.2451/2018 & Conn. 30 which also carry provisions to constitute the same action as an offence but with lesser punishment. Evidently, it is this principle deducible from Article 20(1) that found recognition in the decision in T.Barai's case (supra). The question posed for consideration in that case was regarding the applicability of Section 16A of the Prevention of Food Adulteration Act, 1954 as inserted by Prevention of Food Adulteration (Amendment Act 1976) with respect to the prosecution launched under Section 15(1)(a) read with Section 7 of the Act in the State of West Bengal between the period from April 29, 1974 to April 1, 1976. The Prevention of Food Adulteration (Amendment) Act was a Central Amendment Act. It is also relevant to note that such offences, according to law then in force, i.e., the Act as amended by the Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment, Act 1973), were punishable with imprisonment for life and therefore triable by the Court of Session. The Apex Court found that the Central Amendment Act did not create new offence under Section 16(1)(a), but enacted the same offence by providing a reduced punishment and in such circumstances, question of applicability of Article 20(1) did not arise as it is only retroactive criminal legislation that is prohibited under Article 20 (1). W.A.2451/2018 & Conn. 31 Furthermore, it was held therein that in such circumstances the accused should not be denied the benefits of such reduced punishment. The Apex Court held that the earlier law creating an offence is impliedly repealed if a latter law provides a lesser sentence for the same offence and in such circumstances, the rule of beneficial construction requires that even such a type of ex post facto law should be applied to mitigate the rule of law. Paragraph 17 of the said decision would reveal that in such situations the prosecutor got no right to insist upon that the accused be subjected to an enhanced punishment under the repealed act. Applying the law laid down by the Apex Court in T.Barai's case (supra) and considering the non- applicability of the prohibition contained in Article 20(1) of the Constitution of India on an ex post facto law that mollifies the rigour of the previous law, we have no hesitation to hold that the 'offence of mixing or permitting to mix starch with liquor, be it under 57(a) or 57(aa), is compoundable in terms of amendments brought in to Sections 57 and 67A and therefore, the respondents are entitled to apply for compounding the offence in terms of the amendment. In the context, it is to be noted that the learned Single Judge had directed only for re-consideration of the representation for W.A.2451/2018 & Conn. 32 composition of the offence, in terms of Section 67 A(1) of the Abkari Act and to pass appropriate orders in accordance with law. Even while, upholding the finding and direction in that regard of the learned Single Judge, we think it only appropriate to go into certain other aspects of the issue. In view of Section 67 A(2) of the Abkari Act, it would have been befitting for the writ court to leave the respondents to approach the Court concerned to obtain permission for composition and to consider the application in accordance with law.
14. Now, the question whether the pendency of the case registered for commission of the offence of mixing or permit mixing of starch with liquor in respect of an offender concerned arising out of an occurrence prior to 27.12.2017 before a court of law can be a reason to take away the power of the empowered officer to compound that offence? Relying on the decision of this Court in Sivapalan's case (supra) as also the decision in Mathew's case (supra), the respondents would contend that it could not be a legal impediment for composition of such offences. In Mathews' case, a learned Single Judge of this Court held that pendency of the case before a court would not take away the power of the empowered W.A.2451/2018 & Conn. 33 officer to compound the offence involved in the pending case and in such circumstances, what is to be done by the empowered officer compounding the offence is to give a report to that effect to the court concerned to enable the court to close the case and to discharge the accused, if he is in custody. In regard to Abkari offences, no discussion is required in respect of the power of the officer empowered to compound offences specified in the table under sub- section(1) of Section 67A, even in cases pending before a court of law, in the light of the specific provision in Section 67A(2) of the Abkari Act. In view of the specific provision thereunder, despite the pendency of a case involving any of the offences specified under sub- section (1) of Section 67A, such offence could be compounded with the permission of court concerned and a report of the action taken thereon shall be filed before that court by the officer empowered to compound the offence. Thus, it is clear that if the cases registered against the respondents are pending before any court, in terms of the provisions under Section 67A(2) of the Abkari Act, with the permission of the court concerned it could be compounded in accordance with law and consequent to the composition of the offence, the officer empowered shall have to file a report of the action W.A.2451/2018 & Conn. 34 taken, before the said court. It is to be noted that admittedly, after the impugned judgment, the respondents in W.A Nos. 2451/2018 and 2453/2018 approached the Court concerned and on being permitted for consideration of the question of composition in respect of the respondents therein, the Deputy Commissioner of Excise, Kozhikode compounded the offence of 'mixing starch with liquor' on payment of Rs. 25,000/- each by the said respondent towards the compounding fee. In such circumstances, it will be open to the respondents in other cases who are accused of commission of the offence of mixing/permitted to mix, starch with liquor, to approach the Court concerned, in terms of Section 67A(2) for composition of the offence, in accordance with law.
15. Now, the next question is what exactly is the effect of compounding of such an offence under 67A(1) by the Excise Commissioner or the Deputy Commissioner of Excise of the District or any Abkari Officer specifically empowered officer before the matter reaches the court and also in respect of a case involving an offence specified under 67A(1) but pending before the court of law and compounded with the permission of that court? Relying on the decision in Sivapalan's case (supra) and Mathew's case (supra), it W.A.2451/2018 & Conn. 35 is contended by the respondents that such composition should have the effect of an acquittal and therefore, it should operate as a complete bar to any further proceedings against the offender concerned. It is further contended, based on the said decisions, that such composition got the effect of precluding the authority who initiated the proceedings against the offender from proceeding further. The learned Single Judge, as per the impugned judgment held :- 'It is clear from the language of the provisions that a compounding under Section 67A would amount to absolving the accused persons of all liabilities in respect of any penal provision in terms of the Abkari Act or the Rules made thereunder'. Evidently, the said finding of the learned Single Judge is under attack in these appeals and to buttress the said contention, the appellants relied on the decision of this Court in Sanjayan's case and of the Hon'ble Apex Court in Biswabahan Das' case. In Biswabahan Das' case (supra), the Apex Court held:-
"If composition of an offence was permissible under the law the effect of such composition would depend on what the law provided for. If the effect of composition is to amount to an acquittal then it may be said that no stigma should attach to the character of the person, but unless that is expressly provided for, the mere rendering of compensation would not amount to the vindication of the character of the person charged with the offence." W.A.2451/2018 & Conn. 36
(underline supplied) It is thus obvious that the exposition of law by the Hon'ble Apex Court in Biswabahan Das' case (supra) in regard to the issue is that wherever composition of an offence is permissible under any law, the effect of such composition would depend upon what the said law provides for. True that, if it is specifically stated that such composition would amount to an acquittal, then, no stigma should attach to the character of the person concerned. Unless it is so expressly provided the mere composition of offence would not amount to exoneration or acquittal. We are of the view that where the effect of composition is specifically held as amounting to acquittal, then it could be said that such composition should operate as a complete bar to any further proceedings. It be so, when regarding the impact of composition of an offence permissible to be compounded under any particular law in the absence of specific provision in the law concerned regarding the effect of such composition, it cannot be said that it should have the effect of acquittal and thereby the composition should operate as a complete bar to any further proceedings. We have already extracted the relevant provisions under the Abkari Act under Section 67A that deals W.A.2451/2018 & Conn. 37 with compounding of offences. Virtually, the said provision or in that matter any other provision under the Abkari Act did not specifically provide the effect of composition of an offence specified in Sub section (1) of Section 67A as one amounting to 'acquittal' or as exoneration of the compounder of the offence. Obviously, the entire contentions regarding the consequence or impact of such composition as acquittal were made by the respondents based on sub-section (3) of Section 67A which provides that on payment of such sum of money evidently, referring to the compounding fee prescribed in the table given under Section 67A(1) or such value or both to the empowered officer the accused person, if in custody, shall be discharged. We may hasten to state here that conspicuously, the learned Single Judge did not specifically hold that compounding of offence under Section 67A would amount to 'acquittal', but at the same, evidently, it was held that it would amount to absolving the accused persons of all liabilities in respect of any penal provision in terms of the Abkari Act or the Rules made thereunder. At the same time, after holding thus, the learned Single Judge has further observed and directed that in case the compounding applications preferred by the petitioners (the respondents herein) are allowed, the W.A.2451/2018 & Conn. 38 issue of cancellation of licences will be taken up and decided taking note of the fact that the petitioners stand absolved of all liabilities in respect of the offences alleged against them in terms of Section 57(aa) of the Abkari Act and the needful shall be done by the respondents within a period of two months from the date of receipt of a copy of the judgment. Obviously, the import of the words 'the accused person, if in custody, shall be discharged' was not gone into by the Writ Court. Still, it appears that the aforesaid words must have been the reason that persuaded the Writ Court to make the aforesaid direction to take up and decide the issue of cancellation of licences taking note of the fact that the petitioners stand absolved of all liabilities in respect of the offences alleged against them in terms of Section 57(aa) of the Abkari Act. It is also relevant to note that the learned Single Judge initially observed only about the liability in respect of any penal provision in terms of the Abkari Act and the Rules made thereunder and did not make any observation as relates 'civil liability', if any, arising even after composition of the offence. But, then it was directed thereafter that the issue of cancellation of licences should be decided by taking note of the fact that the petitioners (respondents herein) stand absolved of all liabilities in W.A.2451/2018 & Conn. 39 respect of the offences alleged against them in terms of Section 57(aa) of the Act. Therefore, a question has to be answered as to whether it could be said upon composition that the petitioners would stand absolved of all liabilities in respect of the offences alleged against them in terms of Section 57(aa) of the Abkari Act?
16. In Sivapalan's case (supra), while considering the effect of compounding of the offence, the aforesaid binding decision of the Hon'ble Apex Court in Biswabahan Das' case escaped consideration. In such circumstances, the respondents are not justified in relying on the said decision to contend that composition should have the effect of 'acquittal' and we have no hesitation to hold that while considering the question, it cannot have precedential value in view of the decision in Biswabahan Das' case (supra). That apart, in Sivapalan's case, the learned Single Judge held that once an offence is compounded, the composition has the same effect in a criminal trial as it would have in the case of a compromise in a civil suit. The learned Single Judge was considering the scope of composition under Section 86(5) of the Motor Vehicles Act, 1988. Further, it was held therein thus:-
"The effect of composition is that it precludes the authority who initially agreed for it from initiating W.A.2451/2018 & Conn. 40 any fresh proceedings against the offender as composition operates as a complete bar to any further proceedings as if the offender had been acquitted."
This position laid in Sivapalan's case cannot be blindly followed in the case of deciding the effect of composition of offence under Section 67A of the Abkari Act. The compounding of offences mentioned in Section 320(1) or (2), Cr.P.C punishable under the Indian Penal Code got the effect of an acquittal so as to bar the trial of the offence in view of specific provision under Section 320(8) Cr.P.C which provides the effect of composition as acquittal of the accused. In such circumstances also, composition does not mean that no offence was committed at all and in fact, it would bar the trial of the accused concerned and he would be set at liberty as if he had been acquitted. Irrespective of the stage at which a court discharges an accused, the same signifies the disinclination on the part of the court to proceed against the accused further.
17. The contention of the respondents herein is that in the cases on hand, cases are pending before the Magistrate Court and therefore, the Magistrate could consider the question of discharge under Section 227 Cr.P.C. and it is after referring to Section 227 that they canvassed the position that once discharge is ordered pursuant W.A.2451/2018 & Conn. 41 to composition, it would amount to acquittal. 'Discharge' is contemplated under different sections of Cr.P.C, such as under
Sections 227, 239, 245, 249 and 398. Under Chapter XVI of Cr.P.C, there is no provision which empowers the Magistrate to discharge the accused. The power of discharge under section 227 falls within Chapter XVIII, dealing with 'trial before a Court of Session' and therefore, the accused concerned can be discharged only by a trial court as the court of the Judicial Magistrate is not the trial court in respect of offences exclusively triable by a Court of Session (see the decision in Sanjay Gandhi v. Union of India (AIR 1978 SC 514). Going by the decision in Prahlad Singh v. State of Rajasthan & Ors. [1990 Cr.L.J 1688 (Raj)], to which we respectfully agree, the question whether a case is triable or not, for the purpose of exercise of power under section 227 Cr.P.C vests with Sessions Judge concerned. Therefore, the Sessions Judge concerned alone could exercise the power of discharge under the said section. The power under section 239 is available to a Magistrate in a matter of trial of warrant cases instituted on a police report. The said section enjoins upon the Magistrate to record his reasons for holding the charge against the accused to be groundless and to discharge him. In W.A.2451/2018 & Conn. 42 respect of cases instituted otherwise than on police report triable by Magistrates, the power to discharge is available under section 245 Cr.P.C. The basis for discharging an accused under Section 245(1) Cr.P.C is that even if the allegation against is unrebutted, it would not warrant his conviction. Section 245 (2) enables the Magistrate to discharge an accused at any previous stage, if, for reasons to be recorded by such Magistrate and for its exercise, the Magistrate has to find the charge to be groundless. Section 246 Cr.P.C under Chapter XIX deals with the procedures to be followed, when the accused is not discharged in a warrant case instituted on a police report. Going by Section 248 (1), the question of recording acquittal would arise only when charge has been framed and the Magistrate finds the accused not guilty. In short, the question of handing down an order of acquittal or judgment of acquittal would arise only on conclusion of trial and upon finding the accused not guilty. On a scanning of the aforesaid provisions in Cr.P.C relating discharge, it is evident that the word 'discharge' employed thereunder cannot be understood to be a synonym to the word 'acquittal'. They are different and distinct having different consequences. In this context, it is to be noted that even under section 320 Cr.P.C, what is stated is W.A.2451/2018 & Conn. 43 that the composition of an offence under the said section shall have the effect of acquittal of the accused.
18. As noticed hereibefore, the Hon'ble Apex Court in Biswabahan Das' case held that to have the effect of composition as acquittal, it should have been expressly provided in the relevant statute. In the Abkari Act, it is not expressly provided that the composition of offences mentioned in sub section (1) of Section 67A under the said provision would have the effect of acquittal. As noticed hereinbefore, the contention of the respondents is that the words 'the accused person, if in custody, shall be discharged' used in Sub section (3) of Section 67A of the Abkari Act should be construed as the accused concerned shall be treated to have been acquitted pursuant to the composition of the offence. We have already taken note of the various provisions under the Cr.P.C dealing with 'discharge'. The decision referred to as also the provisions referred hereinbefore would reveal that the meaning 'acquittal' cannot be imported to the expression 'discharge'. 'Acquittal' is the state of being found innocent of a charge of an offence by a court of competent jurisdiction after the conclusion of the trial and that is why under Section 320(8) Cr.P.C it is stated that the composition would W.A.2451/2018 & Conn. 44 have the effect of acquittal. While considering this question, the decision of the Hon'ble Apex Court in Ram Chandra's case (supra) would also assume relevance. The Apex Court was considering the impact of non-compliance with Section 50(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985. It reads thus:-
"50(1).......
(2)..........
(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made."
(underline supplied) The Apex Court held that the expression 'discharge' used in sub section (3) of section 50 is used in the sense that the detention is terminated. Charles John Smith in 'A dictionary of Synonymous Words in the English Language' explained the functional and doctrinal difference between the words 'discharge' and 'acquittal' as hereunder:-
"The discharge is a judgment upon an accused person, because, the law is not exactly provided for the offence. The acquittal recognises his innocence. In the former case, the law is powerless to punish; in the latter, powerful to absolve."W.A.2451/2018 & Conn. 45
19. In the decision in Sohanlal v. State of Rajasthan (AIR 1990 SC 2158), the Apex Court held the meaning of discharge thus:-
"Refusing to proceed further, after issue of process is discharge."
20. While considering the meaning of the words 'shall be discharged' used in Section 67A(3) in the context of effect of composition of offence, the words preceding them viz., 'if in custody' assumes much relevance. If the word 'discharged' is given the meaning 'acquitted' then, it might suggest that upon composition the accused would be entitled to be acquitted only if he is in custody. Such a construction of Section 67A(3) cannot be comprehended as undoubtedly, upon composition of an offence given in the Table under Section 67A(1) of Abkari Act, the accused concerned is entitled to be discharged and that benefit cannot be confined to accused in custody and in other words, accused enlarged on bail must also obtain such entitlement. Therefore, those words 'if in custody' cannot be believed to be used for the purpose of specifying that upon composition of Abkari offence an 'accused in custody' alone is entitled to be acquitted. Taking into account the meaning ascribable to the word W.A.2451/2018 & Conn. 46 'discharged' in the context of composition of criminal cases bearing in mind the aforesaid provisions and decisions and above all and taking note of the fact that Section 67A(3) deals only with the case of an accused in custody pursuant to the registration of an abkari case and upon composition of an abkari offence mentioned in Section 67A(1) with which he was charged and not with respect to an accused, not in custody, during the pendency of the case, we are of the considered view that Section 67A(3) speaks only of an accused in custody and provides that he should be discharged viz., released upon composition of the offence. In this context, we also note that the Malayalam version of Act 3 of 2010, which got authenticity and authority in view of Chapter XIV of the Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly, framed in terms of Article 208(1) of the Constitution of India, would sanction and support our view. Malayalam version of Ordinance No.6 of 2010 and the Malayalam version of Act 3 of 2010 would reveal the meaning of the word 'discharged' used in Section 67A(3). They were produced by the appellants along with the argument notes. In the Malayalam version of Ordinance No.6 of 2010, 67A(3) is given as:-
(1)-)o ഉപവകപ പക ര ഈ ആവശതല കയ അധക രപപടതയടള ഉല ഗസന, അതത സ ഗതലപ പ , W.A.2451/2018 & Conn. 47 അങപനയള തകലയ , വ ലയ അപ&ങൽ ഇവ രണ കടലയ നൽകനതല.ൽ, കറ ലര പണ പ1യപപടടള ആപ4, അയ ൾ കസഡയ പണങൽ, ല8 1പലകണത , പടപ:ടത വസ വടപക ടലകണത ആആൾലക വസവലന എതര യ യ പത ര തടർനളനടപടകള സABകരകവ ൻ പ ട& തത8 ണ.
As per the Malayalam version of Act 3 of 2010, 67A(3) reads thus:-
(1)-)o ഉപവകപ പക ര ഈ ആവശതല കയ അധക രപപടതയടള ഉല ഗസന, അതത സ ഗതലപ പ , അങപനയള തകലയ , വ ലയ അപ&ങൽ ഇവ രണ കടലയ നൽകനതല.ൽ, കറ ലര പണ പ1യപപടടള ആപ4, അയ ൾ കസഡയ പണങൽ, ല8 1പലകണത ണ.
The English translation of the word 'ല8 1പലകണത ണ' can never be 'acquitted' as the Malayalam meaning of 'acquitted' is 'കറവമകന ക'. Therefore, the meaning can be taken only as 'to be released'. As noted earlier, in the decision in Ram Chandra's case (supra), the Apex Court held that the expression 'discharge' used in sub-section (3) of Section 50 of NDPS Act, 1985 is used in the sense that the detention is terminated. In the circumstances, the meaning of the word 'discharged' used in Section 67A(3) of the Abkari Act cannot be given the meaning as 'acquitted'. In short, the Writ Court ought not have held that upon composition the petitioners would stand absolved of all liabilities in respect of the offences alleged against them in terms of Section 57(aa) of the Act. True that upon such composition, the court would decline to proceed further with the criminal W.A.2451/2018 & Conn. 48 proceedings and at any rate, it will not preclude from putting the civil liability on the person concerned, in accordance with law. Acquittal recognizes innocence of the person concerned whereas 'discharge' pursuant to composition will not recognize innocence and it only marks lack of necessity to proceed with further.
21. Under section 67A (3) of the Abkari Act, evidently, 'discharge' pursuant to composition is possible only on payment of such sum of money or such value or both as prescribed. The compounding fee for composition of the offence of 'mixing starch with liquor' falling under section 57(aa) of the Abkari Act is prescribed as rupees twenty five thousand. Fee is the charge or emolument or compensation for particular acts or services; reward of compensation for services rendered or to be rendered. It also got another meaning viz., a levy by an authority in return for certain functions performed by it. Whatever that be, the fact is that for compounding the offences under sub section (1) of Section 67A(1) in respect of any offence mentioned thereunder, the compounding fee prescribed thereunder is to be paid. It is only thereafter that the person, if in custody, can be discharged in the sense that he can be released from custody. When the accused concerned has to pay the compounding W.A.2451/2018 & Conn. 49 fee, the consequent discharge cannot be said to be an acquittal as an 'acquittal' is a state of being innocent of an offence after the conclusion of trial, especially in view of the fact that there is nothing in the Abkari Act which would suggest that discharge consequent to composition of the offence by the court is acquittal or that it would have the effect of acquittal. If a person is found innocent of an offence, where is the question of making him pay the prescribed compounding fee, which is actually equivalent to the minimum fine awardable for the offence under Section 57(aa) of the Abkari Act? Taking into account all the aforesaid circumstances, it can only be said that the meaning 'acquittal' cannot be given to the word 'discharge' employed in section 67A(3) of the Abkari Act. In such circumstances, we are of the view that the learned Single Judge was correct in holding that upon composition, the petitioners therein/respondents would stand absolved of all liabilities in respect of any penal provision in terms of the Abkari Act or the rules made thereunder, but at the same time, we hold that the latter part of the direction of the learned Single Judge that in case the compounding applications preferred by the petitioners are allowed, the issue of cancellation of licences shall be taken up and decided taking note of W.A.2451/2018 & Conn. 50 the fact that the petitioners stand absolved of all liabilities in respect of the offences alleged against them in terms of Section 57(aa) of the Act is not the correct exposition of law. We may hasten to add that we shall not be understood to have held that the direction to take up and decide the requirement or otherwise of cancellation of licences is bad in law and we will consider its correctness a little later. Our finding of incorrect exposition of law is confined only to that part of the direction to treat that the petitioners/the respondents herein stood absolved of all liabilities in respect of the offences alleged against them in terms of Section 57(aa) of the Act in case the compounding applications are allowed.
22. We have already taken note of the the fact that application of the rule of beneficial construction on ex post facto law by virtue of Article 20(1) of the Constitution would apply if a subsequent law mollifies the rigour of law in a previous law and provides for a lesser punishment than one prescribed for the same offence. The immunity extends only against punishment by courts for a criminal offence and therefore, the beneficial construction by virtue of ex post facto law, in terms of Article 20(1) applies only in criminal proceedings that too, only when the ex post facto law mollifies the rigour of a criminal law, W.A.2451/2018 & Conn. 51 as held earlier. In otherwords, the prohibition by virtue of Article 20(1) applies only in proceedings which partake the character of criminal proceedings and it will not have any application in respect of civil liability. In such circumstances, the question is what exactly is the meaning of civil liability? No such term is coined and defined under the Abkari Act. However, it does not mean that the penal provisions for commission of Abkari offences or violation of conditions of licence would not be having any civil consequences or civil liability. In Blacks Law Dictionary, Eighth Edition, the term 'civil liability' is given the meaning as 1. 'liability' imposed under the civil, as opposed to the criminal law. 2. the state of being legally obligated for civil damages. In P.M.A Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001), the Apex Court held that the word 'civil nature' is wider than the 'civil proceeding' and that the same would, therefore, be available in every case where the dispute has the characteristic of affection of one's rights which are not only civil but of civil nature. In the decision in Hatisingh Mfg.Co.Ltd v. Union of India & others reported in AIR 1960 SC 923, the Apex Court held that the prohibition under Article 20(1) would not apply to civil liability. In that case, an Act was passed in 1957 whereby liability was imposed W.A.2451/2018 & Conn. 52 on the employers for closing their undertaking, to pay compensation since November 28, 1956. The liability could be enforced by coercive process leading to imprisonment in case of failure to discharge it. The Apex Court held that the liability imposed by the law was a civil liability which was not an offence and so Article 20(1) could not be applied to the liability for the period concerned viz., for the period from November 28, 1956 to June 1957.
23. In view of the aforesaid position obtained in regard to civil liability, the question to be looked into is whether commission of abkari offence of 'mixing starch with liquor' casts any civil liability. To consider the same, certain provisions of law have to be looked into. Firstly, we will refer to Section 26 of the Abkari Act. It deals with the power of the Commissioner to recall licences and it empowers the Commissioner to cancel or suspend any licence or permit granted under the Act under situations contemplated under sub section (b) thereof, as well. The relevant portion of the said section reads thus:-
"26.Power to recall licenses etc.--The Commissioner may cancel or suspend any license or permit granted under this Act--
(a) xxxxxxxxxxxxxxxxxxxxx
(b)in the event of any breach by the holder of such license or permit, or by his servant, or by any one acting W.A.2451/2018 & Conn. 53 with his express or implied permission on his behalf, of any of the terms or conditions of such license or permit"
24. The power to recall the licence is conferred on the Commissioner of Excise in the event of any breach by the holder of such licence as well. Going by Rule 9(2) of the Disposal Rules, toddy offered for sale shall be natural and conforming to such specifications and complying to such restrictions as may be notified under clause
(n) of Rule 2. Specifications and restrictions to be complied with, notified under Rule 2(n), inter alia, mandating that toddy shall be free from starch by the Government as per G.O.(P).No.25/2007/TD dated 14.2.2007 and in pursuance thereof mixing starch with toddy was to attract the offence under Section 57(a) of the Abkari Act punishable with imprisonment for a term which may extend to five years or with fine which may extend fifty thousand rupees or with both. The extenuatory amendment was made as per Ordinance No.38 of 2017 dated 21.12.2017, which was later incorporated into the principal Act as per Act 25 of 2018. The fact is that the alleged commission of offence of mixing of starch with toddy, falling under Section 57 (a), was prior to 21.12.2017 when it was a serious offence. The extenuatory amendment made to Section 57(a) made the offence of mixing starch with liquor a separate offence under W.A.2451/2018 & Conn. 54 Section 57(aa) of the Act a less serious offence punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than twenty five thousand rupees. Whatever be the degree of punishment prescribed under post and pre- amendment to Section 57(a), the fact is that the act of mixing starch with liquor, here toddy, continues to be an offence and hence, its commission would amount to breach of conditions of licence. In otherwords, in terms of Rule 9(2), when there is violation of the specifications and restrictions notified by the Government under Rule 2(n) of the Disposal Rules, the action, rather, the commission of offence of mixing starch with toddy should be regarded as violation of conditions of licence and when there occur breach of conditions of licence, it would fall within the purview of Section 26(b) of the Abkari Act. In such circumstances, especially in view of the fact that the rule of beneficial construction based on ex post facto law would apply only in respect of criminal proceedings in view of Article 20(1) of the Constitution and it would have no impact on civil consequences or civil liability, according to us, despite the composition of offence under Section 67A the Commissioner of Excise would and should retain the power available under Section 26 of the Abkari Act. But at W.A.2451/2018 & Conn. 55 the same time, we are of the considered view that the learned Single Judge was correct in directing reconsideration of the issue of cancellation of licence subject to the outcome of application, if any, for composition of the offence for the simple reason that going by Section 26 all cases falling under 26(b) do not call for cancellation of licence. Obviously, the question of necessity to cancel the licence may differ from case to case, depending upon the nature of breach of the terms of the licence. This position is settled by this Court in Banerji Memorial Club, Thrissur v. Deputy Commissioner, Excise (2009(3) KLT 950). In fact, the said position is evident from Section 26 itself wherein while repositing the Commissioner the power to cancel or suspend any licence or permit the word 'may' was used by the Legislature in the matter of its exercise and thereby virtually granted discretion to the Commissioner to cancel or not to cancel, to suspend or not to suspend any licence or permit granted under the Abkari Act taking note of the nature and gravity of the offence which may differ from case to case. In the cases on hand, it is evident that the Commissioner did not consider the question whether, despite the subsequent developments extenuating the rigour of the law regarding penal provisions, cancellation of licence is W.A.2451/2018 & Conn. 56 required or not. There cannot be an automatic cancellation and the requirement for cancellation would depend upon the consideration of all aspects by the Commissioner of Excise in accordance with law. However, the fact is that in the cases on hand, after the cancellation of licences issued in favour of the appellants concerned, re-auction of shops was conducted and presently, the shops concerned are being run by the successful bidders in the resale. Still, we are of the view that in case the respondents-writ petitioners submit representations for compounding the offence, the authority competent shall consider such applications in accordance with law and subject to the outcome, consider the issue whether cancellation of the licence was called for in the matter. We think it absolutely unnecessary for us to consider the question what benefit a composition would fetch to the person seeking composition of an offence mentioned in the Table under Section 67A of the Abkari Act other than getting released from custody, in view of our findings on the question of civil liability.
25. Now, we will consider Rule 5(1) of the Disposal Rules and Rule 5 to the extent it is relevant for the disposal of the case reads thus:-
''Rule 5(1)(a): While giving privilege, preference shall be given to those licensees W.A.2451/2018 & Conn. 57 who had conducted toddy shops during the year 2013-2014, provided no Abkari case is registered against him other than under section 56 of the Abkari Act. The licensees who have conducted the shops during the year 2013-
2014 and whose licenses cancelled due to registration of Abkari cases and subsequently exonerated by the Court and those licensees who could not complete the year 2009-10 on account of the closure of shops shall also be given preference.
Provided that shops which functioned till 2006-07 and which are sought to be relocated within 50 metres radius of the previous site, for carrying out repair to the building etc. shall be deemed as functional during 2013-14.''
26. Going by the Rule 5(1) of the Disposal Rules, registration of an abkari case other than under Section 56 of the Abkari Act might result in deprival of privilege. In the said circumstances, in view of the decision of the Apex Court in Khoday Distilleries Ltd. v. State of Karnataka reported in (1995) 1 SCC 574 holding that trade in liquor is not a fundamental right but only a permissible privilege, the question of privilege if raised by the respondents/writ petitioners has to be considered by the appellants appropriately and in accordance with law.
27. The learned senior counsel appearing for the respondents in W.A.Nos.2451/2018 and 2453/2018 submitted that in case this Court W.A.2451/2018 & Conn. 58 holds that discharge pursuant to composition of the abkari offence would not amount to acquittal, the respondents may be given the liberty to withdraw from composition of offence allowed at their instance. We have already taken note of the fact that the respondents in the said appeals moved for composition of the offence and in fact, got it compounded on payment of Rs.25,000/- each. In the said circumstances, in this jurisdiction, the respondents therein cannot be given liberty as sought for as the abkari offence for mixing starch with liquor was already compounded at their instance. However, like the respondents in the other appeals, they may also move for reconsideration of the issue of cancellation of licence.
In the result, the appeals are allowed in part subject to the declaration of law on the impact of composition of offence under the Abkari Act and the findings and observations on the question of civil liability even after composition of an abkari offence given in the table under Section 67A of the Abkari Act. We make it clear that in the said circumstances, if applications for compounding are preferred by the party respondents, the issue of cancellation of licences shall be taken up and decided in accordance with law, but bearing in mind that the beneficial construction of an ex post facto law is applicable W.A.2451/2018 & Conn. 59 only in criminal proceedings and not in proceedings for deciding civil liability and further that all cases falling under Section 26(b) of the Abkari Act do not call for cancellation of licence and it has to be decided depending upon the nature of breach of the terms of the licence.
Sd/-
C.T.RAVIKUMAR Judge Sd/-
N.NAGARESH Judge spc/