Appellant challenges the conviction and imposition of sentence for an offence under Section 55(g) of the Abkari Act (in short, “the Act”). Prosecution alleged that the appellant possessed about 40 litres of wash in violation of the provisions of the Act and, therefore, is guilty under the above mentioned provision of law. Predominant contentions raised by the appellant are two fold. Firstly, the alleged recovery of contraband was not properly proved and secondly, if all the appellant was found in possession of wash, he cannot be brought under Section 55(g) of the Act as wash cannot be said to be a material used for the purpose of manufacturing liquor. Confronted with a decision of a learned Single Judge of this Court in Chathukutty v. State of Kerala (2012(4) KLT 935), the learned counsel for the appellant would argue that the said decision requires a re-look.
2. Heard Shri P.V.Kunhikrishnan, learned counsel appearing for the appellant and Smt.V.H.Jasmine, learned Public Prosecutor.
3. Prosecution case is that on 21.08.1998 at about 11.45 a.m., PW2, the Preventive Officer of Excise Range Office, Koyilandy conducted a raid in the house of the appellant on a prior information and found out 40 litres of wash in a utensil kept in one of the rooms of the house. At that time, PW3 also accompanied PW2. These witnesses testified that the appellant kept wash for manufacturing illicit arrack. Of course, there was no recovery of any utensil for distilling arrack. After arresting the appellant, Ext.P6 seizure mahazar was prepared from the place of occurrence. Ext.P7 is the search memo prepared and sent to the court prior to detection. After effecting recovery of contraband from the house of the appellant and arresting the appellant, besides the above said documents, Ext.P2 occurrence report, Ext.P3 remand report and Ext.P4 forwarding note were also prepared and submitted before the court without any delay. Oral evidence coupled with the documents would clearly show that there was a search in the house of the appellant and 40 litres of wash was recovered from his house. Ext.P9 ownership certificate issued by the competent authority would show that the house belonged to the appellant. On going through the evidence on record, I am of the definite view that the court below was perfectly right in finding that the appellant secreted 40 litres of wash in his house as alleged by the prosecution.
4. Now, the legal question raised by the learned counsel for the appellant arises for consideration. Appellant contended that there is no material to attract Section 55(g) of the Act in this case. Further, the court below went wrong in applying the presumption of guilt embodied in Section 64 of the Act to the facts of this case. Main attack is against the decision of the learned Single Judge in Chathukutty's case (supra).
5. Section 55 of the Act reads as follows:
“55. For illegal import, etc.- Whoever in contravention of this Act or of any rule or order made under this Act
(a) imports, exports, transports, transits or possesses liquor or any intoxicating drug; or
(b) Manufactures liquor or any intoxicating drug;
(c) xxx
(d) taps or causes to be tapped any toddy-producing tree, or
(e) draws or causes to be drawn toddy from any tree; or
(f) constructs or works any distillery, brewery, winery or other manufactory in which liquor is manufactured; or
(g) uses, keeps, or has in his possession any materials, still, utensil, implement or apparatus whatsoever for the purpose of manufacturing liquor other than toddy or any intoxicating drug; or
(h) bottles any liquor for purposes of sale; or
(i) sells or stores for sales liquor or any intoxicating drug;
shall be punished.-
(1) for any offence other than an offence falling clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh and
(2) for an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees or with both.
Explanation:- For the purpose of this section and section 64A, “intoxication drug” means an intoxicating substance, other than a narcotic drug or psychotropic substance regulated by the Narcotic Drugs and Psychotropic Substance Act, 1985 (Central Act 61 of 1985), which the Government may by notification declare to be an intoxicating drug.”
6. In this case, I am only concerned with Section 55(g) of the Act.
Further, as there is no involvement of any intoxicating drug, the question melts down to the handling of liquor and wash.
7. It will be apposite to consider the definition of 'liquor' in this context. The term 'liquor' is defined in Section 3(10) of the Act as follows:
“(10) Liquor:- “Liquor” includes spirits of wine, arrack, spirits, wine, toddy, beer and all liquid consisting of or containing alcohol.”
8. On a reading of the definition, it can be seen that all liquids consisting of or containing alcohol fall within the definition of liquor.
9. Section 55 of the Act would show the following features.
Clause (a) deals with import, export, transport, transit and possession of liquor and Clause (b) with manufacture of liquor (As stated above, consideration of intoxicating drug has been excluded). Clauses (d) and (e) deal with contraventions in relation to toddy. Clause (f) deals with construction or works relating to distillery, brewery, etc. Clause (h) is pertaining to bottling any liquor for the purpose of sale and Clause (i) is in respect of sale or storage for sale of liquor. These provisions are clearly distinct from Section 55(g) of the Act.
10. If we analyse Section 55(g) of the Act, the following aspects are discernible. It prohibits user or keeping or possessing materials for the purpose of manufacturing liquor. The words “any materials” have been amplified and illustrated by using terms like still, implement or apparatus whatsoever. The question raised by the appellant is that finding of the learned Single Judge in Chathukutty's case (supra) that wash is a material for the purpose of manufacture of liquor is erroneous, as such a reasoning would violate the principles of ejusdem generis.
11. Learned counsel for the appellant argued that the presumption in Section 64 of the Act cannot be used by the prosecution against the accused for the reasons stated hereinafter. Before that, I would extract Section 64 of the Act for clarity:
“Presumption as to commission of offence in certain cases:-In prosecutions under Section 55, Section 55B, Section 56A, Section 57, Section 58, Section 58A and Section 58B it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor or intoxicating drug, or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor other than toddy or of any intoxicating drug, or any such materials as are ordinarily used in the manufacture of liquor or of any intoxicating drug, of the possession of which he is unable to account satisfactorily; and the holder of a licence or permit under this Act shall be punishable, as well as the actual offender, for any offence committed by any person in his employ and acting on his behalf under Section 8 or Section 55 or Section 55B or Section 56 or 56A or Section 57 or Section 58 or Section 58A or Section 58B as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence;”
12. Here also we have to keep in mind certain vital aspects.
Although so many penal provisions have been mentioned in Section 64, we are only concerned with Section 55 of the Act. Hence, other penal provisions mentioned in Section 64 of the Act shall not distract our attention. Besides, the second part of the Section, relating to the offences committed by the holder of a licence or permit or its employees, does not arise for consideration in this case. Hence, Section 64 of the Act, after pruning parts which are not relevant for our purpose, would indicatethe following aspects. Presumption under Section 64 of the Act can be drawn in a prosecution under Section 55 of the Act and it shall be presumed until the contrary is proved by the accused that he has committed an offence under Section 55 of the Act in respect of any liquor or any still, utensil, implement or apparatus whatsoever for the manufacture of liquor or any such materials as are ordinarily used in the manufacture of liquor, of the possession of which he is unable to account satisfactorily. Learned counsel now argues that the words employed in Section 64 of the Act that 'any such materials as are ordinarily used in the manufacture of liquor' can only be things similar to still, utensil, implement or apparatus whatsoever for the manufacture of liquor. It is also argued that 'materials' is the word used in Section 55(g) of the Act, whereas the words used 'any such materials' in Section 64 would indicate that these two are different concepts. It is vehementally contended by the learned counsel that construction of sentences in Sections 55(g) and Section 64 of the Act, if read together, would indicate that wash can never be treated as a material used for the manufacture of liquor.
13. The concept of 'ejusdem generis' has been considered elaborately by the Supreme Court in Maharashtra University of Health Sciences and others v. Satchikitsa Prasarak Mandal and others ((2010) 3 SCC 786). It is also noticed therein that the principle of ejusdem generis is a facet of the principle of noscitur a sociis. Relevant portions in paragraphs 27 and 28 are extracted hereunder:
“ The Latin expression "ejusdem generis" which means "of the same kind or nature" is a principle of construction, meaning thereby when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of restricted words. This is a principle which arises "from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context." It may be regarded as an instance of ellipsis, or reliance on implication. This principle is presumed to apply unless there is some contrary indication.
This ejusdem generis principle is a facet of the principle of Noscitur a sociis. The Latin maxim Noscitur a sociis contemplates that a statutory term is recognised by its associated words. The Latin word 'sociis' means 'society'. Therefore, when general words are juxtaposed with specific words, general words cannot be read in isolation. Their colour and their contents are to be derived from their context.”
14. Learned counsel for the appellant by relying on a passage from the seminal work entitled 'Interpretation of Statutes' by learned Author G.P.Singh contended that while interpreting the penal statutes the prohibitory words, if any, in their known signification cover only some class of persons or some well-defined activity, their import cannot be extended to cover other persons or other activity on considerations of policy or object of the statute. It is, therefore, contended that the presumption under Section 64 of the Act, which has no connection with the offence declared by Section 55(g) of the Act cannot be used by the prosecution to advance their case against the accused.
15. In addition to the above contentions, learned counsel for the appellant would contend that 'wash' cannot be treated as a liquor as per the definition in Rule 2(g) of the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996. It reads as follows:
“”Wash” means a sacharine solution from which spirit is obtained by distillation. It also includes fresh wash or wort.”
The term 'wort' or 'fresh wash' is defined in Rule 2(h) of the above said Rules as a mixture of water and sacharine, a material before fermentation.
16. Learned Public Prosecutor opposed these contentions by contending that wash is a substance/material from which ethyl alcohol is obtained by distillation. In this case, Ext.P8 analysis report would show that wash possessed by the appellant contained 1.13% by volume of ethyl alcohol. Learned Prosecutor hence contended that wash recovered from the possession of the appellant would fall within the definition of liquor quoted above. It is also contended that quantity of wash or quantum of ethyl alcohol present in the wash is immaterial since the appellant violated the law in Section 55(g) of the Act by possessing wash, which is a material used for manufacture of arrack.
17. Bone of contention is regarding the correctness of law declared by the learned Single Judge in Chathukutty's case (supra). It will be proper to start the discussion from that decision. In that case, the accused was prosecuted under Section 55(g) of the Act for possessing 10 litres of wash meant for distilling illicit arrack. Learned Single Judge considered the principles of law stated in Santhosh v. State of Kerala (2007(2) KLT 27). Appellant in Santhosh's case contended that possession simplicitor of articles, which can be used for the purpose of manufacturing liquor cannot, in the absence of cogent indications, be assumed to be possessed for manufacturing liquor. In Santhosh's case (supra), the accused was found transporting jaggery and kareenja patta. Prosecution contended that those items were possessed by the accused for manufacturing illicit liquor. This Court found that jaggery and kareenja patta were separately possessed by the accused. In other words, they were not in a mixed up condition. Further, jaggery and kareenja patta could be used for other purposes also. In that context, it was held that there was no offence made out against the accused.
18. Learned Single Judge in Chathukutty's case (supra) considered the decisions in State of Kerala v. Choyunni (1980 KLT 107) and Kittunny v. State of Kerala (1981 KLT SN 69 (Case No.124)), wherein it was held that wash containing small percentage of alcohol is 'matter' or 'material' and, therefore, keeping or being in possession of wash for distillation will come under Section 55(g) of the Act. Again this Court in Paravan v. State of Kerala (2007 (1) KLT 396) held that going by the ordinary connotation of the expression wash also, it is fermented, a liquor ready for distillery. Thus wash is found to be the raw-material for preparation of arrack, which is a potable liquor containing alcohol. All these precedents have been considered by the learned Single Judge in Chathukutty's case (supra).
19. The contentions raised by the learned counsel for the appellant regarding the placement of word 'materials' in Section 55(g) of the Act and in Section 64 of the Act in the company of other words have been specifically considered by the learned Single Judge in paragraph 13 of the decision. I am in respectful agreement with the observations made in paragraph 13 of the decision, which is extracted hereunder:
“It has already been said that wash is a material used for manufacture of liquor. The fact that in S.55(g), the word “materials” precedes the other words “still, utensil, implement etc.” and that the very same word “materials” is used in S.64 succeeding “utensil, apparatus etc.” would make no difference. The first part of S.64, so far as it relates to S.55(g) of the Act is concerned, deals with still, utensil, implement or apparatus whatsoever used “for the manufacture of liquor' . They are not materials with which liquor can be manufactured. In other words, they are not ordinarily used “in the manufacture of liquor”. So far as 'wash' is concerned, it is a material ordinarily used “in the manufacture of liquor”. The word “for” used in the earlier part and the word “in” occurring in the later part would make the position clear that so far as 'wash' is concerned, it is a material ordinarily used in the manufacture of liquor; to mean; liquor can be manufactured from out of 'wash'. Utensils, implement, apparatus etc., are used in the process of manufacture of liquor, i.e; “for the manufacture of liquor”. Still, utensil, implement etc. are not materials with which liquor can be manufactured. In other words, they are not materials used “in the manufacture of liquor”. The words are used disjunctively. It is not intended to exclude 'wash' from the purview of S.64 of the Act. It is pointed out by the learned Public Prosecutor that the liquor defined in S.2(10) of the Act means “liquid consisting of alcohol”. Therefore, wash also comes within the definition of 'liquor'.”
20. To sum up, I am of considered opinion that wash can be said to be a material used in the manufacture of liquor as defined in the Act. Further, the presumption set forth in Section 64 of the Act clearly shows that if the accused is unable to account for possession of any materials as are ordinarily used in the manufacture of liquor, then he shall be presumed to be guilty under Section 55(g) of the Act.
21. Learned counsel for the appellant basing on a Division Bench decision of this Court in State of Kerala v. West Coast Planters Agencies Ltd., Cochin (1957 KLT 1065) contended that the provisions of a penal statute must be strictly construed. A man cannot be punished for breach of an obligation of which the words imposing that obligation do not give him a clear notice. The principle in the above decision has no bearing to the facts in this case. Per contra, learned Prosecutor would rely on a decision of this Court in Komalan v. State of Kerala (2008 (1) KLT 340) to buttress the following proposition:
“The golden thread that runs through the entire fabric of criminal jurisprudence in this country is that when two interpretations are possible either on facts or on law, the one favourable to the accused/indictee will have to be accepted. There can be no dispute about this proposition of law. But it is equally well settled that it must be shown that two reasonable views are possible competing with each other. Merely because one argument/interpretation is possible, such view in favour of the accused cannot be accepted. The view in favour of the accused must also be reasonable, consistent with the text, context, purpose and destination. It is by now well settled that the cannons of purpositive interpretation must be followed in attempting to ascertain whether two reasonable views are possible or not in the interpretation of a penal provision also. Merely because it is possible for the counsel to argue a proposition it cannot be reckoned as a possible reasonable view. Interpretation is the process of ascertaining the mind of the Legislature. The ascertainment of the mind cannot be done sitting in an island, where only the cannons of interpretation in favour of the accused, will inform the interpreter. The nature of the mischief which the Legislation seeks to prevent, the scheme and purpose of the Act, the methodology employed to prevent such mischief, will all have to be taken into consideration to decide whether the competing view is reasonable and possible.”
22. For the above reasons, I find that the court below convicted the appellant for an offence under Section 55(g) of the Act on the basis of reliable evidence and indisputable legal principles. Hence no interference can be made in the matter of conviction. But, in the matter of sentence, the trial court was slightly harsh. Therefore, the sentence is modified in the following manner.
In the result, the appeal is partly allowed. Conviction of appellant under Section 55(g) of the Abkari Act is hereby confirmed. The appellant shall undergo rigorous imprisonment for a period of six months and pay a fine of `1,00,000/- (Rupees one lakh only). In default of payment of fine, he shall undergo simple imprisonment for a period of further six months. The appellant entitled to get the benefit of set off under Section 428 Cr.P.C.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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