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2006 (12) TMI 511 - SC - Indian LawsAbkari Act ('the Act') - Manufacture or sale of liquor - including country liquor - Validity or otherwise of Rule 9(2) of the Rules and/or applicability of Section 57(a) of the Act - sample of toddy found to be exceeded 8.1% - renewal of his licnece in terms of Section 57 - HELD THAT - Rule 9(2) of the said Rules, in our opinion, should be given a plain meaning. It should be read in its entirety. It is in two parts. The intention of the legislature must be gathered having regard to the expressions used therein. Rule 9(2) read in its entirety, states the context that thereby what is essentially sought to be prevented is adulteration of toddy. It is aimed at prevention of adulteration. The penal provision contained in first part not only directs that all toddy kept or offered for sale should be of good quality and unadulterated but also provides that nothing shall be added to it to increase its intoxicating power or for any other purpose. If the second part prescribing the contents of the ethyl alcohol in toddy is read in the context of the first part vis- -vis Section 57(a) of the Act, it would be evident that prohibition is aimed at adulteration by addition of any foreign substance to increase its intoxicating power or for any other purpose. Validity of Rule 9(2), therefore, can be saved if the said provision is read in its entirety and rule of harmonious construction is resorted to. If, however, Rule 9(2) is sought to be invoked even for the purpose of initiating a prosecution as against a licensee even he does not add any foreign substance to it, the same, in our opinion, would render the same ultra vires, as would appear from the discussions made hereinafter. It is not in dispute that there does not exist any mechanical devise to measure the contents of ethyl alcohol present in toddy. It also stands admitted that contents of ethyl alcohol in toddy would depend upon various factors including weather, season or pot in which it is kept etc. Judicial notice can be taken of the fact that each village would not have a chemical laboratory where the process of analysis of ethyl alcohol can be carried out. For example, if a sample is taken in a village, by the time sample is sent for and is analyzed, the volume of ethyl alcohol may increase. Although we are informed that some chemical is mixed when a sample is taken, no material has been placed in that behalf. The validity or otherwise of Rule 9.2 must be considered from this point of view. Toddy ferments automatically after sun rise. If it is permitted to be sold within a timeframe after toddy is tapped, reasonableness can be inferred; but at what point of time precisely ethyl alcohol content would exceed 8.1% in a toddy is not known. It will bear repetition to state that the same would depend upon several factors including the climate. It is reasonable to expect that the State would frame rules in consonance with equity and good conscience. A rule may not be worked out if it imposes a condition which, unless some other guidelines are issued, would become impossible to be performed. We must remind ourselves that the consequences of a single violation may be disastrous. If the contention of the State is correct, it would not only result in penal consequences, but would also lead to non-renewal of the licence. The licensee, thus, for all intent and purport looses his right to carry on business. Carrying on trade of liquor may not be a fundamental right, but it is a contractual right given to him in terms of the provisions of a statute. The terms and conditions are governed by statute. The violation thereof would lead to penal consequences. Interpretation of statute in the aforementioned situation rests on the principle of reasonableness, equity as well as good conscience. A person may be held to be guilty even if the contents of ethyl alcohol exceed 8.1% marginally. He must, therefore, be in a position to know as to what extent he can go and to what extent he cannot. The matter cannot, thus, be left to an act of nature. A penal provision must be definite. Unless the statutory intention otherwise provides, existence of mens rea must be read into a penal statute. It must be a deliberate act and not an unintentional one, unless the statute says so explicitly or by necessary implication. The Act or the Rules do not say either. It is in that sense vague or unreasonable. Once, thus, it is found to be ex facie unreasonable and unworkable, the court would not hesitate to strike down the said rule. We do so. Hence, we hold that Rule 9(2) to be unworkable being vague in nature, unless read in the manner as suggested supra. It is not in dispute that whereas if an offence is committed u/s 56 of the Act, renewal of licence is permissible; but in a case where a licensee faces a prosecution u/s 57, renewal of licence would be denied to him. Consequences of attracting the provisions of Section 57, thus, must also be judged from the said angle. Thus, Civil Appeals arising out of Special Leave Petition (Civil) filed by the State of Kerala are dismissed and Civil Appeals arising out of Special Leave Petition (Civil) are allowed.
Issues Involved:
1. Validity of Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002. 2. Applicability of Section 57(a) of the Abkari Act. 3. Interpretation of Sections 56(b) and 57(a) of the Abkari Act. 4. Reasonableness and workability of Rule 9(2). Issue-wise Detailed Analysis: 1. Validity of Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002: The court examined the validity of Rule 9(2), which states that "No toddy other than that drawn from the Coconut Plamyrah or Choondapana palms shall be sold by the licensees. All toddy kept or offered for sale should be of good quality and unadulterated. Nothing shall be added to it to increase its intoxicating power or for any other purpose." The rule also specifies the maximum permissible ethyl alcohol content in toddy. The court held that Rule 9(2) should be given a plain meaning and read in its entirety. It was concluded that the rule is aimed at preventing adulteration of toddy. However, the rule would be considered ultra vires if invoked for prosecuting a licensee who does not add any foreign substance to the toddy, as it would render the rule unworkable and vague. 2. Applicability of Section 57(a) of the Abkari Act: Section 57(a) deals with the adulteration of liquor by a licensed vendor or manufacturer, providing severe penalties for mixing foreign ingredients to increase intoxicating quality. The court noted that the prosecution under Section 57(a) would lead to non-renewal of the license, whereas prosecution under Section 56 would not. The court emphasized that Section 57(a) should apply only if there is an addition of foreign material to increase the intoxicating power of toddy. The court found that the presence of ethyl alcohol above the permissible limit due to natural fermentation does not constitute adulteration under Section 57(a). 3. Interpretation of Sections 56(b) and 57(a) of the Abkari Act: The court differentiated between Sections 56(b) and 57(a), stating that they operate in different fields and lead to different consequences. Section 56(b) addresses violations of license conditions, which may be intentional or unintentional, while Section 57(a) pertains to adulteration with a requirement of mens rea. The court held that a higher punishment under Section 57(a) cannot be presumed unless the ingredients of the offense are satisfied. The court concluded that the licensees were not guilty of adulteration as there was no deliberate addition of ethyl alcohol. 4. Reasonableness and Workability of Rule 9(2): The court discussed the reasonableness and workability of Rule 9(2), noting that the rule must be based on reasonable criteria and not impose impossible conditions. The court highlighted that there is no mechanical device to measure the ethyl alcohol content in toddy, and various factors such as weather and season affect the fermentation process. The court emphasized that a penal provision must be definite and not vague, and the rule should not impose conditions that are impossible to perform. The court found Rule 9(2) to be unworkable and vague unless read in a manner that focuses on preventing adulteration by addition of foreign substances. Conclusion: The Supreme Court held that Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002, is unworkable and vague unless interpreted to focus on preventing adulteration by addition of foreign substances. The court also concluded that the licensees were not guilty of adulteration under Section 57(a) of the Abkari Act, as there was no deliberate addition of ethyl alcohol. The court dismissed the appeals filed by the State of Kerala and allowed the appeals filed by the licensees.
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