Kerala High Court
P.V. Vijesh vs State Of Kerala on 20 October, 2015
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY,THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938
WP(C).No. 1080 of 2016 (H)
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PETITIONER(S) :
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1. P.V. VIJESH
AGED 35/15, S/O. VIJAYAN,
PARAYAKKATTU HOUSE, KUNNONNI KARA,
POONJAR THEKKEKARA VILLAGE,
MEENACHIL TALUK.
2. C.B.BIJU
AGED 40/15, S/O. BHASKARAN,
CHOTTIYEL (H), KUNNONNI KARA,
POONJAR THEKKEKARA VILLAGE,
MEENACHIL TALUK.
BY ADVS.SRI.RENJITH B.MARAR
SMT.LAKSHMI.N.KAIMAL
SMT.RESHMI JACOB
SMT.B.DEEPALAKSHMI
SRI.P.S.SYAMKUTTAN
RESPONDENTS :
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1. STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF EXCISE AND TAXES, GOVT.SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. THE EXCISE COMMISSIONER
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM-695 033.
3. THE EXCISE INSPECTOR
EXCISE RANGE OFFICE, ERATTUPETTA,
KOTTAYAM-686 001.
4. THE ASST. EXCISE INSPECTOR
EXCISE RANGE OFFICE, ERATTUPETTA,
KOTTAYAM-686 001.
R1 TO R4 BY GOVT. PLEADER SRI. T.R. RAJESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03-06-2016, ALONG WITH WP(C) NO.9380/2014, THE COURT
ON 20-06-2016 DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 1080 of 2016 (H)
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APPENDIX
PETITIONER(S)' EXHIBITS :
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EXHIBIT P1- TRUE COPY OF THE CHEMICAL ANALYSIS REPORT DATED 20-10-2015.
EXHIBIT P2- TRUE COPY OF THE CRIME & OCCURENCE REPORT DATED 29-12-15
NUMBERED AS CR.NO. 74 OF 2015 OF THE ERATTUPETTA EXCISE
RANGE.
EXHIBIT P2A- TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P2.
EXHIBIT P3- TRUE COPY OF THE ORDER DATED 5-01-2016 OF THE COMMISSIONER
OF EXCISE, THIRUVANANTHAPURAM.
RESPONDENT(S)' EXHIBITS : NIL
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//TRUE COPY//
P.S. TO JUDGE
Mn
CR
SHAJI P. CHALY, J.
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W.P.(C). Nos.9380 of 2014
and
1080 of 2016
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Dated this the 20th day of June, 2016
JUDGMENT
The subject matter of the above writ petitions are intrinsically connected and therefore I propose to dispose of them together.
2. Material facts for the disposal of writ petitions in common are as follows; petitioners in W.P.(C) 1080/2016 are licensees of toddy shops in Group No.7 of the Erattupetta Excise Range whereas petitioner in the other writ petition is a licensee of toddy shops of Range 7 in Thodupuzha Excise Range. Petitioners are arrayed as accused Nos.1 and 2 in Crime No.74/2015 of Erattupetta Excise Range and 1st accused in Crime No.20/2014 of Thodupuzha Excise Range respectively. The crimes were registered on the allegation that, sample of toddy taken from the shops revealed traces of W.P.(C). No.9380 of 2014 & 2 1080 of 2016 starch and sacrine respectively. It is also alleged that the chemical analysis conducted, reveal sample seized from the toddy shops contained Ethyl Alcohol. The chemical analysis report produced along with the writ petition shows that the same is free from noxious ingredients injurious to health. The petitioners are arrayed in the respective crimes alleging offence under Sections 56(b) and 57(a) of the Abkari Act respectively.
3. Petitioners were issued with notice by the competent statutory authority to show cause why their licences shall not be cancelled, which are evident from the respective documents produced in the writ petitions. It is the contention of the petitioners that, in accordance with law, 'B' sample has not been sent for chemical analysis and the final report has not so far been secured, hence petitioners are highly aggrieved by the initiation of proceedings relating to suspension of their licences. It is urged that the said notices threatening cancellation is illegal since cancellation can be done only if offence under Section 57(a) is made out and the W.P.(C). No.9380 of 2014 & 3 1080 of 2016 ingredients of Section 57(a) is not available in the case. That apart it is contended that in the toddy seized only presence of starch is detected, a substance which will not add actual or apparent intoxicating quality or strength of toddy. It is also contended that unless there is an allegation that starch is a foreign ingredient likely to add its actual or apparent intoxicating quality or strength of toddy the offence under Section 57(a) will not get attracted. That apart it is the case of the petitioners that Section 57(a) specifically excludes adulteration. Yet another contention raised is that toddy as a liquor is also a food as defined under the provisions of the Food Safety and Standards Act, 2006 (hereinafter called "Act 2006") and therefore, the provisions of the Act 2006 a Central Act supersedes the provisions of the Abkari Act and notifications issued thereunder, accordingly the action of the respondents is illegal and cannot be sustained under law. It is in this background petitioners seek to declare that Section 57(a) of the Abkari Act is not attracted even if starch is found in toddy and to quash Exts.P2 and P3, and also to quash SRO W.P.(C). No.9380 of 2014 & 4 1080 of 2016 NO.145/2007 since the same is ultravires Act 2006.
4. Heard learned counsel for the petitioners and learned Government Pleader, perused the pleadings and documents on record.
5.After perusing the pleadings and documents on record, questions to be considered in this case are; (1) Whether petitioners are entitled for continuance of toddy shops merely because the 'B' sample was not sent for analysis and the report was not secured by the competent authority ? (2) Whether consequent on the introduction of Act 2006, SRO 145/2007 issued by the State Government prescribing standards for toddy is valid and legal ?
6.So far as the first question is concerned, the same is set at naught by a Division Bench of this Court in Ramanan v. State of Kerala and others reported in [2016(2) KLT 62], there this court considered the very same question and held that as soon as a crime is registered the competent officers under the Abkari Act is vested with powers to proceed against the toddy shop contractors in accordance with law. W.P.(C). No.9380 of 2014 & 5 1080 of 2016 Therefore, the contention raised by the petitioners that till the result of the 'B' sample is received by the respondent, proceedings initiated to suspend the licenses of the petitioners and consequential action is unsustainable, cannot be sustained. The said legal question raised by the petitioners is covered by the judgment (supra) and therefore, I am bound to follow the same.
7. The 2nd point is toddy an 'alcoholic drink' is a food defined under the provisions of Act 2006 and therefore the standard prescribed for toddy as per SRO 145/07 by the State Government is repugnant to the provisions of Act, 2006 and is therefore unsustainable under law. Thrust of the contention advanced by the learned counsel for the petitioners with respect to the said argument is that Abkari Act specifically excludes adulteration and it is done so since toddy as liquor could also be a food as defined under the Act, 2006. That apart it is contended that if at all any adulteration in toddy is found in violation of the provisions of the statute, it need to be dealt with only under Act 2006. That apart it is W.P.(C). No.9380 of 2014 & 6 1080 of 2016 contended that under Section 3(1)(j) food is defined inclusive of alcoholic drink. Therefore, the counsel contends that the action initiated by the authorities, based on SRO 145/07 cannot be sustained under law.
9. After evaluating the fact situations and law, the sole question to be considered is whether consequent to the introduction of Act, 2006 adulteration of toddy can be dealt with under the Kerala Abkari Act, 1077. So far as Abkari Act, 1077 is concerned, the same is introduced to consolidate and amend law relating to the import, export, transport, manufacture, sale and possession of intoxicating liquor and all intoxicating drugs in the State of Kerala. In Abkari Act, alcoholic drink is not defined. However, Section 3(8) defines toddy to mean fermented or non-fermented juice drawn from a coconut Palmyra, date or any other kind of palm tree. 'Spirit' is defined under Section 3(9) to mean any liquor containing alcohol and obtained by distillation. Liquor is defined under Section 3(10) to mean spirits, wine, toddy, beer and all liquid consisting of or containing alcohol. W.P.(C). No.9380 of 2014 & 7 1080 of 2016 Country liquor is defined under Section 3(12) to mean toddy or arrack and foreign liquor is defined as all liquor other than country liquor. The said Act has received assent of the President of India on 29.7.1967.
10. It is true that as per the Food Safety and Standards (Food Products Standards & Food Additives) Regulation, 2011 (hereinafter referred to as "Regulation, 2011") in 2.10.5, standard is prescribed for toddy. It is therefore the contention of the petitioners that since standard is prescribed under the regulation framed under Food Safety and Standards Act, 2006, respondents are prohibited from initiating action with respect to any adulteration in toddy under the Abkari Act and Rules. Food Safety and Standards Act, 2006 is brought into force to consolidate the laws relating to food and to establish Food Safety and Standards Authority of India for laying down science based standards for articles of food and regulate their manufacture, storage, distribution, sale and import,to ensure the availability of safe and wholesome food for human consumption and for matters connected therewith or W.P.(C). No.9380 of 2014 & 8 1080 of 2016 incidental thereto. Under Section 29 of the Abkari Act power is vested with the State Government to make rules for the purpose of the Act. Therefore, Government under the said Act and Rules introduced stipulations and parameters for the purpose of licensing toddy shops by introducing Kerala Abkari Shops Disposal Rules, 2002. The intention behind the Abkari Act and the Rules made thereto is to make sufficient safeguards with respect to licensing of toddy shops. Therefore, the intention behind the Abkari Act and the Rules is to control the licensing of the toddy shops and licensing of other liquor shops. On a reading of SRO No.145/2007 it is categoric and clear that the provisions of the notification specifying standard for toddy offering for sale is restrictive in nature and to subserve the interest of licensing conditions under the Disposal Rules. Merely because, a standard is specified as a licensing condition, it cannot be said that, the notification is superseded and it is repugnant to the provisions of Act, 2006. The said notification read thus:
"SRO No.147/2007.--Under clause (n) of R.2 of the W.P.(C). No.9380 of 2014 & 9 1080 of 2016 Kerala Abkari Shops Disposal Rules, 2002, issued under GO(P) No.24/2002/TD dated the 30th March, 2002 and published as SRO No.198/2002 in the Kerala Gazette Extraordinary No.376 dated the 30th March,2002, the Government of Kerala, based on scientific studies and Indian Standard specifications in IS 8538:2004, hereby notify that fermented toddy tapped, stored, transported or offered for sale shall conform to the following specifications and comply to the following restrictions, namely:
1. The ethyl alcohol content of coconut toddy shall not exceed 8.1 per cent, of Palmyrah toddy 5.2 per cent and Sago toddy 5.9 per cent by volume.'
2. Toddy shall be un-pasteurized and natural and possess the characteristic flavour derived from the sap and fermentation, without addition of any extraneous alcohol.
3. If the ethyl alcohol content of toddy exceeds the limit prescribed above, it will be deemed that extraneous alcohol has been added to such toddy to increase the intoxicating quality or strength.
For all purposes, such extraneous alcohol will be treated as a foreign ingredient.
4. Toddy shall be free from any added colouring, flavouring, sweetening or other foreign matters; starch; chloral hydrate; paraldsedatives; tranquilizers and any other Narcotic Drugs or W.P.(C). No.9380 of 2014 & 10 1080 of 2016 Psychotropic substances; and any ingredients injurious to health. It shall be free from Escherichia coli also.
5. Total acid as tartaric acid (expresses in terms of 100 litres of absolute alcohol) shall not exceed 400 grams.
6. Volatile acid as acetic acid (expressed in terms of 100 litres of absolute alcohol) shall not exceed 100 grams. "
11. It is true, conditions are imposed under the licence issued to the toddy shops, to follow certain parameters, and guidelines, in order to enable the licensees to continue with the licence during the licensing period. If the licensee violates any stipulations or any parameters under the said Act or Rules, the licensing authority is vested with powers to suspend the licence, and on due enquiry to cancel the same. Where as under Act 2006, and Regulations made thereunder, for the purpose of selling food, a standard is fixed for the toddy. If the standard fixed to the toddy under the Regulations is violated the authorities under the Regulations, 2011 may be vested with powers to take action for violating W.P.(C). No.9380 of 2014 & 11 1080 of 2016 the conditions of standards fixed under the Regulations, 2011. Therefore, in my view the Abkari Act and the Rules and the Food Safety and Standards Act, 2006 and Regulations, 2011 are harmonious legislations, co-existing and operating in two different fields even though both are with respect to food articles. Which thus means under the Abkari Act and Rules certain standards are specified in order to ensure compliance of licensing conditions, whereas under
the Food Safety Act, 2006 and Regulation 2011 minimum standards are fixed to ensure safe food to the consumers.
12. Moreover, intoxicating liquors that is to say the production, manufacture, possession, transport, purchase and sale of intoxicating liquors and alcoholic liquors for human consumption are included in List II entries 8 and 51(a) (State List) of Schedule 7 of the Constitution of India. On the other hand, adulteration of food stuffs and other goods are included in List III entry 18 (Concurrent List) of Schedule 7 of Constitution of India. Therefore, any adulteration with respect to toddy, its production and manufacture, licensing, W.P.(C). No.9380 of 2014 & 12 1080 of 2016 taxing etc. etc. remains with the State Government as provided under law so far as the licensing conditions are concerned. That apart, Abkari Act, 1077 received assent of the President as early as on 29.9.1967.
13. Taking into account the said aspect also, it can be seen that the Abkari Act and the Rules made thereunder are protected under Article 254(2) of the Constitution of India.
Merely because the Union has power to legislate with respect to any matters under the Concurrent List and if any enactment is made which has some bearing with respect to law made by the State, the legislation made by the State cannot be termed repugnant to the Central enactment. It is well settled that the subject matter mentioned in any entry in the State List is construed to cover all ancillary or subsidiary matters, which can be reasonably be said to be comprehended in it. But if and when construction of an entry leads to a conflict or overlapping with another entry in the same or different list, principles and rule of harmonious construction is applied so as to reconcile to the extent W.P.(C). No.9380 of 2014 & 13 1080 of 2016 possible the conflict and to provide sufficient effect and meaning to them. It is also well settled that if the pith and substance of the legislation is covered by an entry within the permitted field of legislation and any incidental encroachment in the rival field, is to be disregarded. It is also true that incidental encroachments by the State and Union with respect to the State List and Concurrent List cannot be ruled out, which is also permitted by applying the rule of pith and substance. That apart such incidental encroachments will be valid, if the field of encroachment is not covered. It is also a well settled principle in law, repugnancy arises when the conflict between the legislations in question are unable to be reconciled and it is impossible to give effect to both the provisions under the respective statues.
14. Going by the provisions of the Abkari Act and Rules made thereunder it is very vivid and clear that the said enactments are made to control and restrict the sale of toddy, liquor etc. etc. in the State by imposing appropriate licencing W.P.(C). No.9380 of 2014 & 14 1080 of 2016 conditions. Viewed in that manner, SRO 145/2007 is a legislation issued by the State Government prescribing certain standards to the toddy sold through licensees to provide strict parameters and stipulations in the matter of grant of licence. Taking into account, all these circumstances, I am of the considered opinion that the State Government which is having the superior domain with respect to matters relating to liquor and alcoholic drinks is entitled under List II, Schedule 7 of the Constitution of India to make any legislation and enactment to achieve the object and purpose of Abkari Act, Rules and other legislations. All these cumulative circumstances lead me to the conclusion that, petitioners have not made out a case to hold that SRO 145/2007 is illegal and unconstitutional in any manner, consequent to the introduction of Act, 2006.
15. In my considered opinion the action taken by the respondents against the petitioners under the Abkari Act and Rules cannot be termed under any circumstances to have interfered with the provisions of the Food Safety and W.P.(C). No.9380 of 2014 & 15 1080 of 2016 Standards Act, 2006 and the Regulations 2011.
Taking into account the aforesaid cumulative circumstances, I am of the considered opinion that, petitioners have not succeeded to establish the case put forth in the writ petitions and accordingly they are dismissed.
Sd/-
SHAJI P. CHALY JUDGE smv 08.06.2016