Kerala High Court
V.R.Prasad vs Stateof Kerala on 6 February, 2017
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE MR. JUSTICE A.M.BABU
THURSDAY,THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938
WA.No. 334 of 2017 () IN WP(C).35730/2016
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WP(C) 35730/2016 of HIGH COURT OF KERALA DATED 06-02-2017
APPELLANT/PETITIONER:
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V.R.PRASAD
AGED 54 YEARS, S/O.RAMAKRISHNAN,
VALAYAMPPALLIL HOUSE, KANJIKUZHI KARA,
KANJIKUZHI VILLAGE, IDUKKI TALUK,
IDUKKI DISTRICT.
BY ADVS.SRI.RENJITH B.MARAR
SMT.LAKSHMI.N.KAIMAL
SMT.RESHMI JACOB
SRI.T.U.SUJITH KUMAR
SRI.P.S.SYAMKUTTAN
SRI.P.VISHNU (PAZHANGANAT)
RESPONDENTS/RESPONDENTS:
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1. STATEOF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF EXCISE AND TAXES, SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT, PIN-695 001.
2. THE EXCISE COMMISSIONER
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM DISTRICT.
PIN-695 033.
3. THE EXCISE INSPECTOR
EXCISE RANGE OFFICE, THODUPUZHA,
IDUKKI DISTRICT, PIN-685 585.
BY GOVERNMENT PLEADER SRI.V.MANU
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-02-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
"CR"
K.SURENDRA MOHAN & A.M.BABU, JJ
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W.A.334 of 2017
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Dated : 23rd February, 2017
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JUDGMENT
K.Surendra Mohan,J
1.The writ petitioner is in appeal against the judgment dated 6.2.2017 of the learned Single Judge in W.P.(C).35730 of 2016 dismissing the same. The matter arises under the Abkari Act.
2.The appellant is the licensee in respect of a number of toddy shops including toddy shop No.23/2014-2017 in group No.VII of Thodupuzha Excise Range. A case has been registered against him as C.R.No.99/2016 of Thodupuzha Excise Range by the 3rd respondent on the allegation that the sample of toddy taken from his shop on 12.9.2016 was found to contain Poly Vinyl Acetate. A copy of the chemical analysis report is produced as Ext.P1. The seizure mahazar is Ext.P2. It was on WA.334/17 2 the basis of Exts.P1 and P2 that a crime was registered alleging offences under Sections 56(b) and 57(a) of the Abkari Act. A copy of the crime and occurrence report is Ext.P3. On the basis of the above proceedings, on 2.11.2016 the 3rd respondent directed the appellant to stop functioning of all the toddy shops of which he was the licensee, shop Nos.23, 24, 25, 26, 27, 59 & 60 of the Thodupuzha Excise Range. Consequently, the appellant is alleged to be suffering huge loss. The B sample has not been send for chemical analysis yet. Therefore, according to the appellant, the direction to stop the conduct of the toddy shops is illegal.
3.According to the appellant, the offence under Section 57(a) is not attracted in the instant case. What has been detected in the sample that was taken from his toddy shop, is a substance by name Poly Vinyl Acetate. The same is a foreign ingredient. That cannot add to the intoxicating quality or strength of toddy and therefore it is contended that Section 57(a) will not get WA.334/17 3 attracted. It was pointed out that, Section 57(a) has specifically excluded adulteration. Such exclusion has been made, in view of the fact that toddy is also "food", as defined by the provisions of the Food Safety and Standards Act, 2006 ("FSS Act" for short). It was also contended that, the provisions of the FSS Act would override the provisions of the Abkari Act and that for the said reason the prosecution case was liable to be set aside. The contentions of the appellant were opposed by the respondents.
4.The learned Single Judge considered the respective contentions, examined the provisions on which reliance has been placed, in the light of the decisions on the point and came to the conclusion that, there was no conflict between the provisions of the Abkari Act and the FSS Act. It is also found that, the State had the legislative competence to enact the provision and that, any transgression on the provision of the Central enactment is only incidental and permissible. Therefore, the learned Single Judge WA.334/17 4 has rejected the contentions of the appellant and has dismissed the writ petition. The aggrieved appellant challenges the said decision.
5.According to Renjith B. Marar who appears for the appellant, the learned Single Judge has seriously erred in not considering the specific contention that was put forward on behalf of the appellant that, Section 57(a) of the Abkari Act does not apply to adulteration of toddy for the reason that, adulteration has been specifically excluded by the provision itself. It is further contended that the FSS Act is enacted in exercise of the power that is available under Entry 18 List III of the Constitution of India. It is a comprehensive enactment that deals with all articles of food, including toddy, as evident from the sweeping definition of 'food' contained in Section 3(1)(j) thereof. The Food Safety Standard (Food Products Standards and Food Additives) Regulation, 2011 prescribes standards for alcoholic beverages and any departure from the said standards is made punishable. According WA.334/17 5 to the learned counsel, it is in view of the above, comprehensive provision available in the FSS Act that Section 57(a) of the Abkari Act has specifically excluded the act of adulteration. It is also contended that, the provisions of FSS Act overrides the provisions of the Abkari Act, being a Central enactment. Therefore, the provision of the Abkari Act to extent of its repugnancy with the FSS Act, is unconstitutional, it is contended.
6.The learned senior Government Pleader meets the above contention by pointing out that the legislative competence of the State with respect to the Abkari Act is traceable to Entry 8 List II of the Constitution. Since the power to legislate in respect of alcoholic liquor fit for human consumption falls within the exclusive domain of the State legislature, the Abkari Act cannot be assailed on the ground of lack of legislative competence, it is contended. Reliance is placed on the decisions of this Court as well as the Apex Court to support his argument that even in WA.334/17 6 the event of it being found that there was any encroachment upon the powers of the Centre either under List I or List III of the Seventh schedule of the Constitution, the doctrine of pith and substance would apply and would save the constitutionality of the enactment, such encroachment being only incidental. According to the learned senior Government Pleader, the Abkari Act is in pith and substance an enactment made in exercise of the power under Entry 8 List II of the Constitution.
7.Heard. The facts are not in dispute. The fact that as per the report of chemical analysis of the sample taken from the toddy shop of the appellant evidenced herein by Ext.P1, a foreign substance, Poly Vinyl Acetate has been detected is not disputed. On the basis of the report of chemical examination, orders have been issued by the authority prohibiting the appellant from conducting any of the toddy shops allotted to him. The learned Senior Government Pleader submits that, the appellant's licence has been WA.334/17 7 cancelled and re-auction has also been conducted. The contention of the appellant is that, Poly Vinyl Acetate is neither a drug nor a substance that is likely to add to the actual or apparent intoxicating quality or strength of the toddy and therefore, the same can only be described as an adulterant. In other words, inasmuch as adulteration has been specifically excluded from the purview of Section 57(a) of the Abkari Act, the offence under the said provision is not attracted in the present case. Since the provisions of the FSS Act makes it adulteration, the appellant can be proceeded against only under the provisions of the said Act. It is pointed out that, overriding effect has been given to the standards prescribed for the articles by the FSS Act under Section 89 thereof. In view of the above, the standards insisted upon for toddy by the Abkari Act has no force of law and cannot support the prosecution case.
8.The learned Single Judge has, on a combined reading of the provisions of the Abkari Act, WA.334/17 8 found that the offence in the present case would be attracted by the provisions of Section 57(a) read in conjunction with the definition of 'toddy' and the mandate of Rule 9(2) of the Abkari Shops Disposal Rules, 2002 (the Rules for short). We find no infirmity in the said conclusion. Section 57(a) of the Abkari Act to the extent relevant, for our purpose, reads as under:
"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 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 xxx xxx xxx xxx 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."
9.The above provision specifically provides that, the offence would be attracted in all cases where WA.334/17 9 a licensee is found to have mixed the liquor with any drug or any ingredient likely to add to its actual or apparent intoxicating quality or strength or any article prohibited. The words "any article prohibited" is wide enough to take in the substance that has been detected in the sample taken from the appellant's toddy shop. The other crucial words "any ingredient likely to add to its actual or apparent intoxicating quality or strength" are also wide enough to include the substance that has been detected as per Ext.P1. This is for the reason that, the "strength" of the toddy would certainly be affected by the additive that has been detected. 'Toddy' is defined in Rule 2(n) of the Rules as follows :-
"(n) "Toddy in these rules means fermented juice drawn from any Coconut, palmyrah, or Choondapana palms and conforming to such specifications and restrictions as may be notified by Government based on scientific studies and Indian Standard Specifications."
10.The Government has issued SRO.No. 145 of 2007 under Rule 2(n) of the Rules referred to above WA.334/17 10 prescribing the specifications that are to be satisfied by toddy. The specification given at serial No.4 reads as under :
"SRO.Mo.145/2007
xxx xxx xxx xxx
4. Toddy shall be free from any added colouring, flavouring, sweetening or other foreign matters; starch, chloral hydrate;
paraldsedatives; transquilizers and any other Narcotic Drugs or Psychotropic substances; and any ingredients injurious to health. It shall be free from Escherichia coli also. xxx xxx xxx xxx"
11.Rule 9(2) of the Rules, which is also relevant, reads as under :
"No toddy other than that drawn from Coconut, Palmyrah, or Choondapana palms and on which tree-tax due under the Act has been paid shall be sold by the licensee. All toddy kept or offered for sale shall be natural and conforming to such specifications and complying to such restrictions as may be notified by Government under clause (n) of rule 2. Nothing shall be added to it to increase its intoxicating quality or strength or to alter its natural composition or for any other purposes."
12.The combined effect of the above provisions is that, the toddy that is offered for sale by a WA.334/17 11 licensee in the shops licensed to him shall conform to the specifications and standards that we have noticed above. It is sufficiently clear from a reading of the above provisions that, toddy is not permitted to contain any substance other than the natural ingredients that it is supposed to contain as per the above provisions. Poly Vinyl Acetate is an artificial, chemical substance. That cannot be accepted as an ingredient of the natural product, toddy, which the appellant has been permitted to sell in his licensed shop. Therefore, presence of the said foreign article in the sample of toddy taken from his shop attracts Section 57(a) of the Abkari Act. Even if it is assumed that the said provision is not attracted, Section 57A makes the mixing of any noxious substance or any substance which is likely to endanger human life punishable. It is not in dispute that, the final report of the chemical analysis has not yet been received. Therefore nothing prevents the authorities from adding the other provisions that may be attracted. At the present stage it is WA.334/17 12 sufficient to note that the contention of the appellant cannot be accepted. We are of the firm view that, there is nothing to suggest that Section 57(a) is not attracted.
13.The other contention that has been put forward is regarding repugnancy of the provisions of the Abkari Act with the provisions of the FSS Act. It is necessary to notice in the first place that, intoxicating liquors that is to say production, manufacture, possession, transport, purchase and sale is a state subject covered by entry 8 List II of the Seventh schedule of the Constitution. In view of the above, though intoxicating liquors including toddy are treated as coming within the general connotation of "food" under the FSS Act, the fact remains that, "intoxicating liquors"
have been taken out and specifically made a state subject over which the State has been conferred with exclusive legislative competence by the Constitution. Further, Entry 51 of List II confers power on the State to levy duties of excise on alcoholic liquors for human WA.334/17 13 consumption. Therefore, the legislative competence over alcoholic liquor fit for human consumption is exclusively on the state. The Abkari Act is an enactment, the legislative competence of which is traceable to the above Entries in List II. As per Article 246 of the Constitution, in so far as the subjects in List II of the Seventh schedule are concerned, the State has the exclusive power to enact laws. The FSS Act though enacted by the centre, is in exercise of the power that is available under Entry 18 List III of the Seventh schedule of the Constitution. Entry 18 deals with adulteration of foodstuffs and other goods. The same is a general subject that deals with the act of adulteration and cannot be interpreted to take away or deny to the State the legislative competence that has been specifically conferred by Entry 8 List II and Entry 51 List II of the Constitution. In other words, the State has the exclusive legislative competence in respect of alcoholic liquor fit for human consumption. Therefore with respect to all aspects of regulation in respect WA.334/17 14 of the said article, the State has the exclusive competence. The FSS Act deals with food standards and safety and only deals incidentally with "toddy" as an article of food. Such incidental transgression is permissible and cannot be avoided. However, such encroachment cannot and does not denude the State of its legislative competence.
14.The question as to whether Section 57A of the Abkari Act was in conflict with the provisions of the Food Adulteration Act had come up for consideration before a Division Bench of this Court in Mariamma Sunny v. State of Kerala (1994 KHC 252). The issue has been considered in paragraph 17 of the said judgment, which reads as under :
"We shall consider first whether the learned Additional Advocate General is justified in his submission that S.57A falls within entry 8 of the State List, read with Entries 64 and 65. The said entry as extracted above, deals with intoxicating liquors, including its production, manufacture, possession, transport, purchase and sale. Now the entries in the legislative lists only broadly enumerate the heads of fields of legislation demarcating the area over WA.334/17 15 which the respective legislatures may operate. The entries have to be given a liberal construction, a broad and comprehensive meaning, as the allocation of subjects is not by way of scientific or logical definition, but mere enumeration of broad and comprehensive categories. Jagannath Baksh Singh v. State of Uttar Pradesh AIR 1962 SC 1563 and Harakshand v. Union of India AIR 1970 SC 1453, among others. It is also well established that the power of a legislature to legislate on a particular topic includes the power to legislate on subjects which are auxiliary or incidental thereto, or for purposes necessary for the proper implementation of the power conferred by the entry. Navinchandra Mafatlal v. Commissioner of Income Tax AIR 1955 SC 58, State of Rajasthan v. Ckawla AIR 1959 SC 544 Chaturbhai v. Union of India AIR 1960 SC 424 Baldeo v. Commissioner of Income Tax AIR 1961 SC 736, and India Cement Ltd. v. State of Tamil Nadu AIR 1990 SC 85. The powers of legislation conferred by Art.246 are with respect to the fields of legislation mentioned in the lists and in determining whether an enactment is a legislation 'with respect to' a given power, what is relevant is whether in its pith and substance, it is a law on the subject matter in question. It has therefore been held that if a statute relates in pith and substance to a topic assigned to a particular legislature, it will not be invalidated merely because it trenches incidentally on topics coming within another legislative list. This principle stands firmly rooted in Constitutional jurisprudence since the decision of the Privy Council in Fussel v. The Queen 1882 (7) AC 329. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable, that is, whether in the guise of making a law within its competence, the legislature is in truth making a law on subjects beyond its powers. But where that is not the position, the fact of incidental encroachment does not affect the vires of the law even as regards the area of encroachment. Accordingly, in Subramanyan Chettiar v. Munuswami Goundan AIR 1941 Fed. Court 47 Gwyer, C.J observed : "It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and WA.334/17 16 the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is 'examined to ascertain its pith and substance', or its 'true nature and character', for the purpose of determining whether it is legislation with respect to matters in this list or in that; 1881(7) AC 96, 1882 (7) AC 829, (1889) AC 580, 1930 AC 111, 1940 AC 513. In my opinion, this rule of interpretation is equally applicable to the Indian Constitution Act." This principle was re-affirmed by the Privy Council in Prafula Kumar v. Bank of Commerce AIR 1947 PC 60, where the Bengal Money Lenders Act, 1940 was challenged as invalid in so far as it related to promissory notes. The Privy Council approved the above observations of Gwyer, C.J and observed that subjects will overlap and where they do, the question must be asked what in, pith and substance is the effect of the enactment of which complaint is made and in what list, is its true nature and character to be found. Otherwise, much beneficent legislation would be stifled at birth and many of the subjects entrusted to the Provincial' Legislatures could never effectively be dealt with.
15.The Food Adulteration Act, 1954 was the precursor of the FSS Act. The said Act also had dealt with toddy and had prescribed standards for the same in appendix B of the Prevention of Food Adulteration Rules 1955. Therefore, the above decision of the Division Bench has a strong bearing on the issues that arise for WA.334/17 17 consideration in the present case. We notice that, though toddy would also come within the meaning of the expression 'food', the power that is available to the centre to prevent adulteration of food does not and cannot be held to set at naught the legislative competence of the state under Entries 8 and 51 of List-II of the Constitution. The Supreme Court has held that every entry in the lists is of wide import and would include the whole field of legislation with respect to the expression used. The above aspect has been taken note of by the Division Bench in Mariamma Sunny (supra) in paragraph 20 and 21, in the following words:
[20]"As already mentioned, the Act as a whole is one clearly falling within Entry 8 of the State List. The Entry is one of wide import. The words "that is to say" explain or illustrate and do not amplify or limit the words "intoxicating liquors" immediately preceding them and cover the whole field of possible legislation on the subject. Bhola Prasad v. Emperor AIR 1942 PC 17, where Gwyer, C.J observed that the power to legislate with respect to intoxicating liquors could not well be expressed in wider terms, and State of Bombay v. F.N.Balsara AIR 1951 SC 318, where the Supreme Court stated that the State of Legislature could pass any law inter alia regarding possession and sale of intoxicating liquor. It has been recognised all along that there is no inherent right in a citizen to sell WA.334/17 18 liquor and that the control and restriction over the sale of intoxicating liquors was necessary for the preservation of public health and morals and to raise revenue See Har Shanker v. Deputy Excise and Taxation Commissioner AIR 1975 SC 1121. After discussing the earlier decisions on the point, and the dissentient note struck in Krishna Kumar v. State of Jammu and Kashmir AIR 1967 SC 1368, the court in the above case, went on to observe :
"There is no fundamental right to do trade or business - in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants. In "American jurisprudence", Volume 30 it is stated that while engaging in liquor traffic is not inherently unlawful, nevertheless it is a privilege and not a right, subject to Governmental control. This power of control is an incident of the society's right to self protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime". In Nashirwar v. State of Madhya Pradesh AIR 1975 SC 360 the Supreme Court cited the police power of the State to enforce public morality and prohibit trades in noxious "or dangerous goods as one of the principal reasons to hold that there is no fundamental right to carry on trade or to do business in liquor.
[21]. The State is the exclusive owner of rights in regard to intoxicating liquor and its police power extends to prohibition of trades in noxious or dangerous goods. The State is duty bound to protect its citizens against deceptive self destruction by consumption of noxious liquor. The interests of the innocent public require strict control on the sale of liquor lest deleterious stuff finds its way into the market resulting in the killing or disabling of large number of human beings, en masse, which will be beyond repair. The very object of the power of controlling the sale of intoxicating liquors being safety of the public, it must necessarily carry with it the power of prescribing punishments for the same of possession of liquor mixed with noxious substances or for omitting to take reasonable precautions against such mixing. As the absolute owner of all rights in respect of intoxicating liquors, it is also open to the State to impose conditions in public interest WA.334/17 19 on the sale of liquor, including conditions regarding its purity and quality and to provide for condign punishments for endangering human beings by breach thereof. This is a necessary concomitant of the field of legislation covered by Entry 8, which as pointed out in Bhola Prasad AIR 1942 PC 17 and Balsara AIR 1951 SC 318 is couched in the widest possible terms, taking within its ambit every possible legislation on the subject. This is apart from the fact that Entries 64 and 65 of the State List confer power on the State legislature to deal with such offences, as also the jurisdiction of courts in such cases.
(Emphasis supplied)
16.Adopting the same reasoning it has to be held that the contention of the appellant in the present case also has to fail.
17.The learned senior Government Pleader has placed reliance on the decision of the Apex Court in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Others (2010 KHC 4285 = 2010 (5) SCC 246) and Security Association of India and Another v. Union of India and Others (2014 KHC 5051 = 2014 (12) SCC 65) to contend that even in the event of encroachment on any field that is reserved exclusively for the centre what is to be examined is whether in pith and substance the enactment falls within the legislative competence WA.334/17 20 of the State. If it falls within the exclusive domain of the State legislature, then any incidental encroachment would be permissible and would not render the enactment invalid. As noticed by the Apex Court, trade in liquor is not a fundamental right and the State is dutybound to ensure that possession and sale of intoxicating liquor is regulated so as to safeguard public health and safety. Adulteration of liquor is an act that is likely to result in disastrous consequences of far reaching effects in the society and therefore, it is for the State to evolve methods and procedures for the purpose of controlling trade in intoxicating liquor. The above right of the State has been recognized and approved by the Apex Court in a number of decisions to which reference has already been made above.
18.The learned counsel for the appellant has placed reliance on the decision in Sharat Babu Digumarti v. Govt. of NCT of Delhi (2017 (1) KLD 95 (SC)) to put forward a contention that, the subsequent WA.334/17 21 enactment would prevail for the reason that, the legislature is presumed to have been aware of the earlier enactment. Therefore, whereever a provision opens with a non obstante clause, the principle is that the later enactment would prevail. The above dictum is pressed into service to support his contention that, the provisions of FSS Act would override the provisions of the Abkari Act. As already noticed above, the FSS Act has touched upon the article of toddy only incidentally, as a food article. The legislative competence in respect of all aspects of regulation of alcoholic liquor fit for human consumption is with the State. The same is not affected in any way by the FSS Act. There is also no conflict between the provisions of the two enactments, as sought to be made out. We are not satisfied that the said dictum has any application to the facts of the present case.
19.The learned Senior Government Pleader has placed reliance on a decision in Santhosh and Another v. State of Kerala and Others (2015 (5) KHC 198) to WA.334/17 22 contend that addition of any foreign substance into toddy would attract the offence under Section 57(a) of the Abkari Act. Since we have already found that the offence under Section 57
(a) of the Abkari Act is attracted in the present case, prima facie, it is not necessary for us to consider the said decision at any length.
20.For the foregoing reasons, the appeal fails. It is accordingly dismissed. No costs.
Sd/-
K.SURENDRA MOHAN Judge Sd/-
A.M.BABU Judge Mrcs/27.2.2017 /True Copy/ P.S.To Judge