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Judges : J.B.KOSHY,K.R.UDAYABHANU
Chami - Appellant
Versus
Excise Inspector - Respondent
Case No : Bail Appl.No.5825 of 2005
Decided On : 12/14/2005
Advocates Appeared :
For the Petitioner: T.G. Rajendran, Advocate. For the Respondents: Sujith Mathew Jose, Public Prosecutor.
Kerala Abkari Act 1077 - Sections - 29( 2)(k), 36, 30, 31 and 57A - Bail Application was referred by learned single Judge (Justice K.Padmanabhan Nair) expressing doubts in certain observations made by another learned Single Judge in Roshy v. State of Kerala. Petitioner in this bail application is the first accused in CR.No.39 of 2005 of Excise Range Office, Ottappalam, registered under Ss. 57(a), 57A(1)(iii) and 57A(3) of the Abkari Act 1 of 1077 (in short 'the Act') and S.22 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). At about 3.30 p.m. on 2.9.2005, the Preventive Officer, Excise Enforcement and Anti-narcotic Special Squad along with party went to the Toddy Shop No.33/05-06 of Ottappalam Excise Range, to which the petitioner was the licensee, and took sample in accordance with R.8 of the Kerala Abkari Shops Disposal Rules, 2002 from the toddy stored in the toddy shop for sale and it was sent for analysis. On examination, it was found that Diazepam, a psychotropic substance was added to the toddy stored for sale. On getting the result from the Chemical Examiner, the case was registered against the petitioner - Held No notification is necessary under S.29(2)(k) to term a substance as noxious . Even a non-noxious substance can be notified as deemed to be noxious and such a wide power is given to the Government by S. 29. The legislature is quite compelled to create a legal fiction and by a deeming provision it can bring something with the meaning of a word which is not covered by its ordinary meaning. In interpreting a provision creating a legal fiction, the court has to ascertain for what purpose the fiction is created - A substance to become noxious, it should be harmful to health. The first item in Schedule I, which deals with List of Poisons' is 'Chloral Hydrate'. So, Chloral Hydrate is a declared poison under the provisions of Poisons Act, 1919. Chloral Hydrate was removed from Schedule-H of the Drugs and Cosmetics Rules. So, now one cannot get it even on a prescription as it is a banned item. Chloral Hydrate even though used earlier for therapeutic uses in hysteria or insomnia for producing sedation, now, in view of the ban it cannot be used. The customers are not going in the toddy shop with the prescription of a doctor. It cannot be said that merely because a substance can be administered only on prescription of a doctor for a particular illness, it is not injurious to health - It is true that procedure prescribed under S.36 is necessary when searches are made under S.30 or 31. However, taking regular samples or inspecting the place under S.32, S.36 is not applicable. If sample is taken in the routine inspection of licensed premises under S.32, matter can be reported under S.50. When sample is taken under S.32 without a search under sections 30 or 31, procedure under S.36 is not mandatory and report can be filed under S.50 - Under S.27 of the Act, person in possession of the liquor as per licence is bound to test the liquor as required by the Abkari Officer. Therefore, if sample is taken during inspection as authorised under S.32 and if the Abkari Officer finds out any offences, it is for the authorised Abkari Officer to file report under S.50 of the Act to the competent Magistrate and, thereafter, it is for the Magistrate to deal with the same as prescribed in the Code of Criminal Procedure. Since inspection was conducted here as authorised under S.32 and sample was taken and report was filed on the basis of the result of the test, it is for the Magistrate to deal with the matter and, if necessary, commit the matter as contemplated under the provisions of the Act and we see no ground to interfere in the matter at the initial stage. Hence Court opinion that for conducting an inspection of the premises of a licensed person under S.32, it is not obligatory that the authorised officer has to form an opinion that a specified offence in S.31 is committed, in such routine inspection, if an offence is detected, he is perfectly authorised to file a report under S.50.- The reference is answered accordingly. The bail application - dismissed
Koshy, J.
This Bail Application was referred by learned single Judge (Justice K. Padmanabhan Nair) expressing doubts in certain observations made by another learned Single Judge in Roshy v. State of Kerala (2005 (3) KLT 796). Petitioner in this bail application is the first accused in CR.No.39 of 2005 of Excise Range Office, Ottappalam, registered under Sections 57(a), 57A(1)(iii) and 57A(3) of the Abkari Act 1 of 1077 (in short ‘the Act’) and Section 22 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). At about 3.30 p.m. on 2.9.2005, the Preventive Officer, Excise Enforcement and Anti-narcotic Special Squad along with party went to the Toddy Shop No.33/05-06 of Ottappalam Excise Range, to which the petitioner was the licensee, and took sample in accordance with Rule 8 of the Kerala Abkari Shops Disposal Rules, 2002 from the toddy stored in the toddy shop for sale and it was sent for analysis. On examination, it was found that Diazepam, a psychotropic substance was added to the toddy stored for sale. On getting the result from the Chemical Examiner, the case was registered against the petitioner. According to the petitioner, Section 57A of the Abkari Act will be attracted only if the substance added is notified as noxious. It is the contention of the petitioner that Diazepam is not a noxious substance. It is not declared by the Government by notification that Diazepam is noxious in terms of Section 29(2)(k) of the Abkari Act. If Section 57A is omitted from the charges, the offence alleged to have been committed is only bailable and, therefore, he is entitled to anticipatory bail (pre-arrest bail). In support of the above contention, learned counsel for the petitioner relied on the Roshy’s case (supra) and argued that Diazepam cannot be treated as noxious substance. It as further stated that sample was taken for chemical analysis without permission from the Court and no independent responsible inhabitants of the locality were cited as witnesses and, therefore, sampling was also not done in accordance with law. In Roshy’s case (supra) it was observed that Chloral Hydrate the Diazepam are not noxious substances. Considering various decisions and provisions of the Act, the learned Single Judge was of the opinion that Roshy’s case (supra) requires reconsideration. Sine these are matters which are arising for consideration in a large number of cases every day, learned Judge was of the opinion that correctness of the principles laid down in Roshy’s case (supra) is to be considered by a Division Bench. During the pendency of this anticipatory bail application, the petitioner was arrested. Therefore, as far as this case is concerned, the matter has become infructuous. However, since the matter is referred to Division Bench for consideration of a question of law and reported decision Roshy’s case (supra) may affect many other pending cases, both sides argued on merits.
2. Section 3(8) of the Abkari Act (Act 1 of 1077) defines ‘Toddy’ as follows:
“3.(8) Toddy: - “Toddy” means fermented or unfermented juice drawn from a coconut, palmyra, date or any other kind of palm tree;
Clause A.29.01 of Appendix B to the rules made under the Prevention of Food Adulteration Act, 1954 (in short ‘PFA Act’), defines Toddy as follows:
“A.29.01. Toddy: Toddy means the sap from coconut, date, toddy palm tree or any other kind of palm tree which has undergone alcoholic fermentation. It shall be white cloudy in appearance with sediments on storage and shall possess characteristic flavour derived from the sap and fermentation without addition of extraneous alcohol. It shall be free from added colouring matter, dirt, other foreign matter or any other ingredient injurious to health. [It shall also be free from chloral hydrate, paraldehyde, sedative, tranquilizer and artificial sweetener].
It shall also conform to the following standards, namely:-
Rule 9(2) of Chapter VIII of the Kerala Abkari Shops Disposal Rules, 2002, regarding special con
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