STATE OF KERALA AND ORS. versus UNNI AND ANR.

Citation: [2006] SUPP. 9 S.C.R. 931 · Decided: 01-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Judgment (excerpt)

.. 
ST ATE OF KERALA AND ORS. 
v. 
UNNI AND ANR. 
DECEMBER I, 2006 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Abkari Act; Ss. 3(8), 3(12), 5, 56 and 57/Kerala Abkari Shops (Disposal 
in Auction) Rules, 2002 - r.9(2): 
Toddy-Permissive quantity of-Alcholic contents-Adulteration-
A 
B 
c 
Violation of Rule 9(2) of the Rules-Applicability of Penal provisions under 
Sections 56 and 57 of the Act-Held: Prohibition under the Rules aimed at 
controlling adulteration by addition of any foreign substance in toddy to 
increase its intoxicating power-Though contents of ethyl alochol by way of 
fermentation could go up to 12% in terms of Excise Mannual but in terms of D 
the Rules if it exceeds 8. 1% would attract penal provisions under ss. 56 and 
57 of the Act-State imposing a condition, violation of which attracts penal 
provision, hence it must be definite and not vague-Since condition so imposed 
is impossible to be pe1formed, unreasonableness of the statute shall be presumed 
unless it is based on a reasonable criteria-Licensee must have been provided E 
with means to prevent commission of irregularities without which it is termed 
vague and could be struck down-Since toddy ferments naturally after sunrise, 
at what point of time its ethyl alcohol content would exceed 8. 1% is not 
known-Interpretation of statute in such situation rests on principles of 
. reasonableness, equity and good conscience-A penal provision must be definite F 
unless statutory requirements provide otherwise, existence of mens rea must 
be read into a penal statitfe-lt must be a deliberate act and not an unintentional 
one-Statute should say so explicitly or by necessary implication-Act or 
Rules in question do not say so-Hence, ex facie unreasonable and 
unworkable-Inte1pretation of Statutes-Purposive construction--Constitution 
of India, 1950-Seventh Schedule-List-11-Entry 8. 
G 
Kera/a Abkari Shops (Disposal in Auction) Rules 2002-Rule 9(2)-
Constitutionality of-Held: It could be invoked even for the purpose of initiating 
a prosecution against a licensee even if he does not add any substance to it 
rendering it ultra vires. 
931 
H 
932 
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R. 
A 
Penal Statute-Applicability of-Held: A penal statute must receive 
strict construction-Only in exceptional cases the principles of purposive 
construction shall apply-High Court rightly held that Section 57 of the Act 
not attracted as it must receive strict construction as it leads to higher penalty-
In the facts and circumstances of the case, provision of Section 56 would be 
B attracted-Interpretation of Statute-Principles of purposive construction and 
strict construction. 
Interpretation of Statutes: 
Workability of statutes-Construction of a penal statute-Purposive 
C construction-Requirement of-Discussed 
Maxims: 
Maxim 'ut rest magis valeat quam pereat'-Applicability of 
D 
In the State of Kerala manufacture or sale of liquor, including 
country made liquor is regulated in terms of the provisions of Abkari Act. 
The regulatory statute is made in terms of Entry 8 of List II of the 7th 
Schedule of the Constitution of India. A licensee is required to manufacture 
or sale country made liquor in terms of the provisions of the Act, Rules 
framed thereunder as also the terms and conditions of the licence. 
E Authorities concerned seized samples of toddy from the business premises 
of the licensees and found that ethyl contained therein was 9.50% v/v. They 
were prosecuted under Section 57(a) of the Act. Aggrieved, the licensees 
filed Writ petitions questioning the validity or otherwise of Rule 9(2) of 
the Rules and/or applicability of Section 57(a) of the Act. Single Judge of 
F the High Court held the said rules ultra vires. The Single Judge, however, 
did not consider it necessary to go into the question of interpretation of 
the. two penal provisions viz. Section 56(b) and Section 57(a) of the Act. 
The criminal proceedings as against the licensee were quashed. In an intra-
court appeal, the Division Bench, however, upheld the validity of Rule 9(2) 
G of the Rules, holding that it had not imposed any condition which make it 
unworkable. Upon construction of Section 56(a) and Section 57(b), it was 
opined that having regard to the fact that ethyl alcohol is an essential 
component or ingredient of toddy, only because percentage of ethyl alcohol 
found to be more, it would not amount to addition of a foreign ingredient 
as envisaged under Section 57(a) of the A

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