2007 Supreme(SC) 44

2007(1) Supreme 179
SUPREME COURT OF INDIA
(From Kerala High Court)
S.B. Sinha and Markandey Katju, JJ.
State of Kerala & Ors.—Appellants
versus
Unni & Anr.—Respondents
Civil Appeal No. 5300 of 2006
(Arising out of SLP (C) No. 3612 of 2005)
With
Civil Appeal Nos. 5301, 5299, 5298, 5297, 5296 of 2006
(Arising out of SLP (C) Nos. 5130, 6769-6775 of 2005, 7003 and 14189 and 18142 of 2006)
Decided on 1-12-2006
Counsel for the Parties :
For the Appearing Parties : L.N. Rao, T.L.V. Iyer, K.N. Bhat, Shyam Divan, Sr. Advocates, Roy Abraham, Mrs. Seema Jain, Himinder Lal, Ajay Kumar Jain, Dileep Pillai, M.P. Vinod, G. Prakash, Ms. Beena Prakash, C.K. Sasi, C.M. Jayakumar, C. Harisankar, Jagdeesh N. Kainikara and Ms. Neeru Vaid, Advocates.

IMPORTANT POINT
A statute must be definite and not vague. Where a statute is vague, the same is liable to be struck down.

Headnote:(i) Kerala Abkari Act—Sections 56 and 57—Kerala Rectified Spirit Rules, 1972—Rules 2(b), 3(8), 3(12)—Kerala Abkari Shops (Disposal in Auction) Rules, 2002—Rule 9(2)—Ethyl alcohol content of toddy kept or offered for sale—Adulteration of liquor by a licensed vendor or manufacturer—Samples of toddy taken from business premises of licensees found containing ethyl 9.50% v/v—Prosecution u/s 57(a) of the Act—Refusal to grant renewal of licence for prosecution instituted u/s 57(a) of the Act—Renewal of licence would not be a bar for prosecution u/s 56 of the Act—Writ petition filed challenging validity of Rule 9(2) of the Rules and/or applicability of Section 57(a) of the Act, in the event sample of toddy was found to be exceed 8.1%—Rule 9(2) held unworkable being vague in nature—It was not the case of the State that the licensee has deliberately mixed additional ethyl alcohol in the liquor so as to increase the potency thereof—Whether High Court was justified in holding that ingredients of Section 57 of the Act were not attracted in the instant case—(Yes)—Licensees are not guilty of any adulteration.

       Held : 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.(Para 39)

       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.(Para 41)

       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. We for the reasons aforementioned, hold Rule 9(2) to be unworkable being vague in nature, unless read in the manner as suggested.(Paras 42 and 43)

       A person may violate rule, but thereby may not adulterate liquor. Whereas violation of the rule may be intentional or unintentional attracting penal provisions of Section 56 of the Act. Violation of the provisions of Section 57 rests on existence of mens rea or actus reus on the part of the offender. In a case where extract of juice is subject to automatic fermentation, one does not have to mix anything for increase of contents of ethyl alcohol. It is not the case of the State that the licensee has deliberately mixed additional ethyl alcohol in the liquor so as to increase the potency thereof. Section 57 provides for graver offence. If one act attracts two offences, the one providing for higher punishment cannot be presumed to apply unless ingredients thereof are satisfied. A penal statute must receive strict construction. Only in exceptional cases the principles of purposive construction shall apply to a penal statute.(Paras 45 to 47)

       Section 57 must also receive strict construction, having regard to the fact that thereby an offence proved would lead to a higher penalty; although on the self-same fact another penal provision involving a minor punishment, viz., Section 56 would be attracted. It has to be read having regard to the constitutional protection available to an accused as also other civil consequences, if any, entailing therefor. While construing a penal statute, in a case of this nature, it is necessary to apply the rule of strict construction.(Para 49)

       It is not in dispute that whereas if an offence is committed under Section 56 of the Act, renewal of licence is permissible; but in a case where a licensee faces a prosecution under Section 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.(Para 52)

       (ii) INTERPRETATION OF STATUTES—Penal Statute—It must receive strict construction—Only in exceptional cases the principles of purposive construction shall apply to a penal statute—Workability of a statute vis-a-vis the question as to whether it is vague or otherwise must also be considered having regard to the question as to whether it is at all practical—Where two interpretations are possible, having regard to the workability or unworkability of a statute, the one which leads to the workability of a statute must be preferred than the other.(Paras 47, 33 and 34)