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TMI Blog2003 (3) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... as revealed from Ext.P2 Crime and Occurrence Report is that the sample of toddy taken for analysis from the toddy shop belonging to petitioner No. 2 is found to have contained 9.50% v/v of ethyl alcohol and thereby the licencee and his employee have committed offences punishable under Sections 56(b) and 57(a) of the Kerala Abkari Act. 4. Section 3(8) of the Act defines toddy: 3(8) Toddy: 'Toddy means fermented or unfermented juice drawn from coconut, palmyra, date, or any other kind of palm tree . Rule 2(b) of the Kerala Rectified Spirit Rules, 1972 defines alcohol: 2(b) alcohol means ethyl alcohol of any strength and purity having the chemical composition C2 H2 OH . 5. Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 (for short the Rules) which is relevant for the purpose of this case reads as follows: 9(2): No toddy oilier than that drawn from the coconut palmyrah or choondappana palms shall be sold by the licencees. All toddy kept or offered for sale should be of good quality and unadulterated. Nothing shall be added to it to increase its intoxicating power or for any other purpose. The ethyl alcohol content of toddy kept or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts are responsible for the rather strong smell of toddy and the acidity developed. If toddy is left over a period of time, (without even any other foreign matter being added to it), alcohol content comes down and acetic acid is formed and this is how vinegar (Acetic acid) is manufactured in many of the parts of Kerala. At the peak point of fermentation the average alcoholic strength of fermented toddy may be taken as follows:- Coconut ... 8.1% by volume Palmyrah ... 5.2% by volume Date ... 4.9% by volume Sago ... 5.9% by volume 6. Toddy is claimed to be having considerable nutritive value and is rich in sugars, improves the quality of blood and supplies the necessary vitamins for all the organs, nerves and tissues of the body, that it is a good diuretic and has been utilised effectively in cases of Lithasis, that it is a preventive for the occasional diseases such as silicosis and pneumoconiosic which is a fibrosis of the lungs caused by the inhalation of silicious particles of dust or grit. It can be consumed in reasonable amounts without harm to the system. 7. It has not been disputed that toddy is a fermented liquor. It is also beyond dispute t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which is responsible for the fermentation gets destroyed by its own bye-product, viz. acetic acid (vinegar is manufactured from this bye-product). 10. It is contended by the learned counsel for the petitioners that Rule 9(2) of the Rules which was introduced with effect from 1.4.2002 fixing theethyl alcohol in toddy as 8.1 % v/v, is totally unreasonable, arbitrary and unworkableand therefore illegal and unsustainable. I find considerable force in this contention especially in view of the indisputable factors with regard to the fermentation and self generative process of alcohol fermentation in toddy. It is trite that a subordinate legislation like the one on hand can be struck down as ultra vires and/or arbitrary if the impact or effect of such legislation is unreasonable or unworkable. A learned Judge of this Court in Sunil v. State of Kerala (2002(2) KLT SN page 117, Case No. 144) had occasion to consider the amendment introduced in Rule 2 of the Kerala Foreign Liquor Rules, 1953. The controversy in the above case revolved round the permissible variation of ethyl alcohol content in liquor. After an elaborate consideration of the impact of the newly introduced amendment, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the coconut tree and also the fact that the alcohol content may vary from season to season and also depending on the variety of the coconut tree from which toddy is extracted, etc., it may not be safe to fix the maximum limit of alcohol in toddy at 8.18% v/v. It is true that it is mentioned in paragraph 5 of Chap.X of Vol.II of Excise Manual that at the peak of fermentation the average alcoholic strength of fermented toddy may be taken as 8.1 % v/v. However, it may also be remembered that in a fermented liquor like toddy, the maximum self generated alcohol content may go upto 12% v/v even without the aid of any external fermenting agent. Evidently, the strength of alcohol in toddy that is drawn from coconut tree has been fixed at 8.1 % v/v without taking into account the variables that may come into play or factors which are germane to the natural process of self generation of alcohol and also other ecological factors. In the above view of the matter, it cannot be said that the ethyl alcohol content of toddy drawn from coconut palm fixed as 8.1 % v/v in Rule 9(2) of the Rules is reasonable. Apparently, the rule makers have not taken into account the various factors mentioned ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being the holder of a licence 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 foreign 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,Cl.(k), when such admixture shall not amount to the offence of adulteration under Section 272 of the Indian Penal Code; or (b) ......................... (c) ........................ (d) ........................ 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. 16. It is contended by learned counsel for the petitioner that petitioners cannot be prosecuted, under any circumstances, for an offence punishable under Section 57(a) of the Act. It is pointed out by the learned counsel that Ext.P2 Crime and Occurrence Report does not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter, I do not propose to refer to the decision reported in Bhinka and Ors. v. Charon Singh (AIR 1959 SC 960) or Gokul Chit Funds v. Vareed (1976 KLT 747) and also the judgment of a learned Judge of this Court in Crl. Appeal No. 818/02. I am inclined to agree with the learned counsel that the petitioners cannot be prosecuted for an offence punishable under Section 57(a) of the Act. 18. The next question is whether petitioners can be prosecuted for an offence punishable under Section 56(b) of the Act which read as follows: 56. For misconduct by licensee, etc.:- Whoever, being the holder of a licence or permit granted under this Act or being in the employ of such holder and acting on his behalf- (a) ............. (b) wilfully does or omits to do anything in breach of any of the conditions of his licence or permit not otherwise provided for in this Act: In this case sustainability of the charge under Section 56(b) will depend on the question whether there is violation of Rule 9(2) of the Rules. I have already held that Rule 9(2) to the extent it prescribes the maximum content of ethyl alcohol in toddy drawn from the coconut palm is arbitrary, unreasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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