# P.N. KRISHNA LAL v. GOVT. OF KERALA

- **Citation:** [1994] Supp. 5 S.C.R. 526
- **Court:** Supreme Court of India
- **Decided:** 1994-11-17
- **Case number:** Civil Appeal No. 565 of 1994
- **Bench:** K. Ramaswamy, N. Venka Tachala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-n-krishna-lal-v-govt-of-kerala-12736
- **Pages:** 47

## Headnote

Kera/a Abkari Act I of 1077 as amended by Abkari (Amendment) Act
21of1984.
Sections 57A and 57B-Adulteration of liquor or intoxicating drug
C
with noxious substance-Provisions for prosecution of offenders and
punishment-Held, valid
D
, E
F
Constitution of India
Articles 246 (3), 254 (2) Proviso, Seventh Schedule, List II, Entries 8,
64, 65-Legislature of State of Kera/a enacting Abkari (Amendment) Act 21
of 1984-Some provisions incidentally trenching into provisions of
Evidence Act, !PC and Cr. P.C-Held provisions of Amendment Act are
valid and would prevail over relevant provisions of the Central enactments.
Articles 14, 19, 20 (3), 21-Under Abkari (Amendment) Act, all
offenders are treated as a Class-There is reasonable nexus between
offence created and the case to be dealt with- The procedure, presumption .
and burden of proof placed on accused are not unjust, unfair or
unreasonable-There is no imidious discrimination on proof of charge,
punishment, and prescription of damages-The provisions are not violative
of Articles 14, 19, 20 (3) and 21.
Articles 19 (/) (g) and 298-Manufacture, possession, trade and
business of liquor and intoxicating drug-Held, is privilege of State-It is a
regulated trade or business.
Criminal law:
G
Indian Evidence Act 1872/Kerala Abkari Act 1 of 1077 as amended by
Abkari (Amendment) Act 21of1984.
Sections 105, 106/s, 57A (5)-Provisions regarding presumption and
placing burden of proof of certain facts on accused-Held, are not unjust,
unfair or unreasonable offending Artic_les 14, 20 (3) or 21 of the
H
Constitution.
526
P.N. KRISHNA LAL. v. GOVT. OF KERALA
527
Interpretation of Constitution
Doctrine of pith and substance-Discussed and applied Doctrine of
reading down-Held; not applicable to sub-s. (5) of s. 57 A of Abkari Act I
of /077.
A
The appellants, who were licensees of arrack or Indian made B
foreign liquor retail shops or their employees, were charged under subsections (1) to (3) of section 57A of Kerala Abkari Act l of J.077, for
having mixed or permitted mixing of noxious substance with liquor or
for having failed to take reasonable precautions to prevent such mixing
or for being in possession of such adulterated liquor with the
knowledge that on consumption it was likely to endanger human life or C
cause grievous hurt or cause death. The appellants denied the charges.
Their case was that they did not mix noxious substance nor did they
permit mixing of any ·noxious substance with arrack or Indian made
foreign liquor; and since the liquor was supplied to them by the
agencies controlled by the State or regulated under the Act, there was
no occasion for them to take any reasonable precaution to prevent such D
mixing or being in possession of adulterated liquor. They challenged
the constitutionality of section 57 A and 57B of the Act before the High
Court, which upheld the provisions. Aggrieved, the appellants filed the
appeals by special leave.
It was contended by the appellants that the State legislature was E
not competent to legislate the Abkari (Amendment) Act 21 of 1984
introducing sections 57 A and 57B to the Kerala Abkari Act and the
same was void inasmuch as the State Government did not expressly
obtain assent of the President of India with reference to any of the
provisions of the Evidence Act, the IPC and the Code of Criminal F
Procedure; provision of section 57 A of the Act placing the burd,en of
proof on the accused was violative of fundamental rights under Articles
14, 20 (3) and 21 of the Constitution; conviction for offences under s.
57 A for mere possession of arrack or intoxicated drug, without proof
by the prosecution of the intention of the alleged offender that the
liquor was mixed with noxious substance, was contrary to the settled G
principles of criminal jurisprudence and per se arbitrary, unfair and
unconsionable violating Articles 14 and 21 of the Constitution; the
extreme penalty of death under section 57A (1) (ii) without proof of
intention or knowledge to cause d

## Text

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A
B
P.N. KRISHNA LAL AND ORS. ETC. ETC.
_v.
GOVT. OF KERALA AND ANR. ETC. ETC.
NOVEMBER 17, 1994
[K. RAMASWAMY AND N. VENKA TACHALA, JJ.]
Kera/a Abkari Act I of 1077 as amended by Abkari (Amendment) Act
21of1984.
Sections 57A and 57B-Adulteration of liquor or intoxicating drug
C
with noxious substance-Provisions for prosecution of offenders and
punishment-Held, valid
D
, E
F
Constitution of India
Articles 246 (3), 254 (2) Proviso, Seventh Schedule, List II, Entries 8,
64, 65-Legislature of State of Kera/a enacting Abkari (Amendment) Act 21
of 1984-Some provisions incidentally trenching into provisions of
Evidence Act, !PC and Cr. P.C-Held provisions of Amendment Act are
valid and would prevail over relevant provisions of the Central enactments.
Articles 14, 19, 20 (3), 21-Under Abkari (Amendment) Act, all
offenders are treated as a Class-There is reasonable nexus between
offence created and the case to be dealt with- The procedure, presumption .
and burden of proof placed on accused are not unjust, unfair or
unreasonable-There is no imidious discrimination on proof of charge,
punishment, and prescription of damages-The provisions are not violative
of Articles 14, 19, 20 (3) and 21.
Articles 19 (/) (g) and 298-Manufacture, possession, trade and
business of liquor and intoxicating drug-Held, is privilege of State-It is a
regulated trade or business.
Criminal law:
G
Indian Evidence Act 1872/Kerala Abkari Act 1 of 1077 as amended by
Abkari (Amendment) Act 21of1984.
Sections 105, 106/s, 57A (5)-Provisions regarding presumption and
placing burden of proof of certain facts on accused-Held, are not unjust,
unfair or unreasonable offending Artic_les 14, 20 (3) or 21 of the
H
Constitution.
526
P.N. KRISHNA LAL. v. GOVT. OF KERALA
527
Interpretation of Constitution
Doctrine of pith and substance-Discussed and applied Doctrine of
reading down-Held; not applicable to sub-s. (5) of s. 57 A of Abkari Act I
of /077.
A
The appellants, who were licensees of arrack or Indian made B
foreign liquor retail shops or their employees, were charged under subsections (1) to (3) of section 57A of Kerala Abkari Act l of J.077, for
having mixed or permitted mixing of noxious substance with liquor or
for having failed to take reasonable precautions to prevent such mixing
or for being in possession of such adulterated liquor with the
knowledge that on consumption it was likely to endanger human life or C
cause grievous hurt or cause death. The appellants denied the charges.
Their case was that they did not mix noxious substance nor did they
permit mixing of any ·noxious substance with arrack or Indian made
foreign liquor; and since the liquor was supplied to them by the
agencies controlled by the State or regulated under the Act, there was
no occasion for them to take any reasonable precaution to prevent such D
mixing or being in possession of adulterated liquor. They challenged
the constitutionality of section 57 A and 57B of the Act before the High
Court, which upheld the provisions. Aggrieved, the appellants filed the
appeals by special leave.
It was contended by the appellants that the State legislature was E
not competent to legislate the Abkari (Amendment) Act 21 of 1984
introducing sections 57 A and 57B to the Kerala Abkari Act and the
same was void inasmuch as the State Government did not expressly
obtain assent of the President of India with reference to any of the
provisions of the Evidence Act, the IPC and the Code of Criminal F
Procedure; provision of section 57 A of the Act placing the burd,en of
proof on the accused was violative of fundamental rights under Articles
14, 20 (3) and 21 of the Constitution; conviction for offences under s.
57 A for mere possession of arrack or intoxicated drug, without proof
by the prosecution of the intention of the alleged offender that the
liquor was mixed with noxious substance, was contrary to the settled G
principles of criminal jurisprudence and per se arbitrary, unfair and
unconsionable violating Articles 14 and 21 of the Constitution; the
extreme penalty of death under section 57A (1) (ii) without proof of
intention or knowledge to cause death, which is an essential prerequisite ingredient both for culpable homicide or murder defined in
sections 299 and 300 IPC, violated the rights gauranteed under Articles H
528
SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R
A
14 and 21 of the Constitution and was grossly disproportionate to the
proved guilt of the accused; and that compensatory justice envisaged in
section 57B was obnoxious to fair trial.
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Dismissing the appeals, this. Court
HELD: 1.1. Sections 57 A and 57B of Kerala Abkari Act 1 of 1077
as introduced by the Abkari (Amendment) Act 21 of 1984 are valid.
The scheme of the Act and the Amendment Act is a consistent whole,
regulating production, manufacture, possession, transport, purchase or
sale of intoxicating liquors. The Amendment Act was enacted to
prohibit mixing or permitting to mix methynol in arrack or intoxicated
drug or failure to take reasonable precautions to prevent acts or
omissions, of mixing methynol in arrack or intoxicated drug or to be in
possession thereof with knowledge of its adulteration or to prevent
deleterious effect on the health of the consumers or to prevent grievous
hurt to human beings or their death. As a part of it, the burden of
proof of the ingredients of the offence being within the special
knowledge of the accused has also been laid on the accused person.
Therefore, though incidentally it trenches into some of the provisions of
. the Evidence Act, the Indian Penal Code and the Code of Criminal
Procedure, in its pith and substance, it is an integral scheme of the Act,
which falls within Entry 8 read with Entries 64 and 65 of List II of the
7i:h Schedule to the Constitution. Under Article 246 (3), the· State
Legislature was competent to enact the Amendment Act. Therefore, the
assent of the President is not necessary. (541-C-E)
1.2. Even assuming that some of the provisions incidentally
trespass into the field of operation of the.:central provisions falling in
the Concurrent List, which empower both the Parliament and the State
Legislature to enact the law, the assent given by the President made
sections 57 A and 57B valid. The gazette ._otification of the Amendment
Act shows that the President has given his assent to the Amendment
Act on December 1, 1984. The assent of the President in .general terms
is sufficient compliar.ce with proviso to clause (2) of Article 254 of the
Constitution, and by its operation, the Amendment Act prevails over
the relevant provisions in the Indian Evidence Act, IPC and the Code of
Criminal Procedure in relation to the State ofKerala. (541-G-H)
1.3. It is not the requirement of law under Article 254 that the
State Government should seek assent of the. President in respect of each
H
and every specified provisions of the Central Act or .Acts in respect of
P.N. KRISHNA LAL. v. GOVT. OF KERALA
529
which there would be inconsistency or repugnancy in the operation of A
the Central provisions and the State enactment. It is enough that once
the assent of the P•·esident is sought and given to the State amendment,
though to some extent inconsistency or repugnancy exists between any
provision, part or parts of any Act or Acts of any Central statutes, the
repugnancy or inconsistency ceases to operate in relation to the State in
which assented State enactment operates. (542-A-B)
B
A.S.Krishna v. State of Madras, [1957) SCR 399 and Gram Panchayat
of Village, Jamalpur v. Ma/winder Singh, (1985) 2 Supp SCR 28,
followed.
Minoo Framroze Balsara v. ·Union of India, AIR (1992) Bombay 375 C
distinguished.
S.Kanagaraj v. Government of Tamil Nadu, AIR (1991) Madras 182
disapproved and Shri Ji/ubhai Nar. Bhai Khachar v. State of Gujarat and
Anr., JT (1994) 4 SC 473, referred to.
2.1. Manufacture, possession, trade and business of liquor and D
intoxicating drug is the privilege of the State and no one has a right de .
hors the Act, for manufacture, possession or sale of them except on a
licence granted in that behalf by th~ competent officer in accordance
with the porvisions of the Act and the rules made thereunder and
according to the conditions of licence. Thus it is a regulated trade or
business. (535-F)
E
2.2. Under the Act . the State has absolute right to regult.te
production, transport, storage, possession and sale of liquor or
intoxicating drug. The Act prohibits mixing of noxious substance with
liquor or possession thereof. The State, therefore, possesses the right of
complete control on all kinds of intoxicants. Equally none has freedom F
or fundamental right to do business in adulterated articles of food.
Cognizant to the contemporaneous large scale deaths or grievous hurt
to the consumers of adulterated liquor mixed with noxious substance,
the Amendment Act aims to prevent their recurrence and accordingly
it came to be made. (552-B-D)
2.3 Dealing in liquor inherently pernicious or dangerous goods
which endanger$ the community or subversive of morale, is within the
legislative competence under the Act. The State has thereby the power
G
to prohibit trade or business which is injurious to the health and
welfare of the public and the elimination and exclusion from the
business is inherent in the nature of liquor business. The power of the H
530
SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R
A
legislature to evolve the policy and its competence to raise presumptive
evidence should be considered from this scenario. (552-F-G)
3.1. Sub-section (5) of s. 57 A of the Act, because of its non-obstante
'clause makes inapplicable the relevant provisions in the Indian
Evidence Act regarding proof of a fact, presumption and burden of
B
proof. Notwithstanding the bur.den of proof of a fact or disproof or
non-proof of the fact envisaged in the Evidence Act, the onus of proof
thereof though normally on the prosecution, by operation of subsection (5) special rule of proof and its burden has been placed on the
person prosecuted for the offences mentioned in sub-sections (1), (2)
and (3) of s. 57 A as the facts are within his knowledge. Al! the accused
C
under sub-sections (1), (2) and (3) of s. 57A are treated as a class and
there is reasonable nexus between the offence created and the case to be
dealt with. The procedure, presumption and burden of proof placed on
the accused, are not injust, unfair or unreasonable offending Articles
21and14 of the Constitution. It also does not violate Article 20 (3).
(545 DE; 572 A-B)
3.2. Where a person is prosecuted for an offence. under sub-section
(1) or (2) of s. 57A of the Act, the burden of proof that he has not mixed
or permitted to mix\~oxious substance or any other substance with the
liquor or the intoxicated drug or, as the case may be, omitted to take
reasonable precaution to prevent the mixing of any noxious substance,
E
or any other substance falling in sub-sections (1) and (2) of s. 57 A with
any liquor or intoxicating drug shall be on him; and when a person is
prosecuted for an offence under sub-section (3) it places the burden on
him to prove that he did not have knowledge that such noxious
substance or any other substance was mixed with such liquor or
intoxicating drug found in his possessiou. In all these cases, the
F . prosecution has to prove that the arrack or intoxicated drug contained
noxious substance or any other substance; and its consumption
endangered human life or. caused grievous hurt or death or other
disability to the consumer; or that the accused was in possession of
adulterated arrack or intoxicating drug and it was an adulterated one
with noxious or other substance. On proof thereof the operation of subG
section (5) comes into play, and its non obstante clause takes out the
rigour from the applicability of the provisions of the Evidence Act and
..
the Code of Criminal Procedure. (545 BC; E-H; 546 A-B)
3.3. Even under general criminal jurisprudence sections 105 and
106 of the Evidence Act place a part of the burden of proof on the
H
accused t<> prove facts which are within his knowledge. When the
P.N. KRISHNA LAL. v. GOVT. OF KERALA
531
prosecution establishes the ingredients of the offence charged, the A
burden shifts on to the accused to prove certain facts within his
knowledge or exceptions to which he is entitled to. Based upon the
language in the statute the burden of prcof varies. However, the test of
proof of preponderance of probabilities is the extended criminal
jurisprudence and the burden is not as heavy as on the prosecution.
(560-A-B) B .
Sajjan Singh v. State of Punjab, [1964) 4 SCR 630 and K.
Veeraswamy v. Union of India, (1991) 3 SCC 655 and Sanjav Dutt v. The
State through C.B.l [1994) 5 SCC 410, followed.
Men/ca Gandhi v. Union of India, [1978] 1 SCR 568 and A.S. Krishna C
v. State of Madras, [1957] SCR 399; State of Maharashtra v. Wasudeo
Ramachandra Kaidalwar, [1981) 3 SCR 675; Kali Ram v. State of
Himachal Pradesh~ [1974) 1 SCR 722; S.L. Goswami v. State of Madhya
Pradesh, [1972) 2 SCR 948; V.D. Jhangan v. State of Uttar Pradesh,
[1966] 3 SCR 736; C.l Emden v. State of Uttar Pradesh, AIR (1960) SC
548; Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR (1964) D
SC 575; Harbhajan· Singh v. State of Punjab, (1965) 3 SCR 235; C.S.D.
Swamy v. The State, [1960) 1 SCR 461 and Shambu Nath Mehra v. State of
Ajmer, (1956) SCR 199, referred to.
Timothy F. Leary v. U.S., (395) US 6, 23 Law, Ed. 2nd, 57; Herman
Solm v. Jerry Buckley Helm, (463) US 277 (1983) 77; County Court of E
Ulister, New Yord v. Samuel Allen, 442 US 140 (1979), 60 Law, Ed. 2nd,
777; Barnes v. United States, 412 US 837 (1973), 37 Law Ed. 2nd, 381;
James Turner v. United States, 396 US 398 (1970) 24 L. Ed. 2nd, 610;
United States v. Gainey, 13, Law Ed. 2nd p. 659 (1965); Morrison v.
California, 18 Law Ed. (1933); Ed. Tumedy v. State of Ohio, (71) L. Ed.
510; Que~n v. Sin Yau-ming, [1992) 1 Hong Kong Criminal Law Reports F
p~ .127; l~uis Beaver v. The Queen, (1957) SCR 531; Queen v. Oakes, 26
D.L.R. (4th) 200; Attorney General of Hong Kong v. Lee Kwong-Kut,
(1993) W.L.R, 329; Mok Wai Tak and Anr. v. The Queen, (1990) 2 A.C.
333; Regina v. Hunt (Richard), 1987 A.C. 352; Ong Ah Chuan v. Public
Prosecutor, (1981) A.C. 648; Reg. v. Edwards, (1975) Q.B. 27; Jayesena
v. The Queen, (1970) A.C. 618, Mancini v. The Director of Public G
Prosecutions, (1942) A.C. 1 and Wo/lmington v. Director of Public
Prosecutions, (1935) A.C. 432, referred to.
4.1. The provision of imposition of the death penalty as an
alternative punishment for murder cannot be said to be unreasonable
and it is in the public interest. It, therefore, neither violates Article 21, H
532
SUPREME COURT REPORTS
(1994) SUPP. 5 S.C.R
A
nor ethoes of Article 19 of the Constitution. It is also not in violation of
Article 6 of the International Covenant on Civil and Polltical Rights.
(569-G)
B
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H
Bachhan Singh v. State of Punjab, [1980) 2 SCC 684 and Jagmohan
Singh v. State o/V.P., [1973) 2 SCR 541, referred to.
4.2. The doctrine of reading down (of sub-section (5) of s. 57A) is
not applicable to the situation arising under the Amendment Act. The
question of intention and the distinction between murder and culpable
homicide under section 300 and 299 IPC and the doctrine of negligence
and culpability under section 304A IPC are not relevant. The question
of intention bears no relevance to an offence under section 57 A and
equally of culpability or negligence. (571-B-q
4.3. The accused charged for offences under s. 57 A of the Act stand
as a class and therefore, there is no inviduous discrimination on the
proof of the charge for the punishment envisaged under the relevant
provisions of section 57 A or 57B. It is a reasonable classification to
subserve the social good. Thereforet- these provisions are not violative
of Articles 14, 20 (3) and 21 of the Constitution. (572-D)
4.4. It is seen that mixing or permitting to mix noxious substance or
any other substance with liquor or intoxicated drug or omission to take
reasonable precaution or being in possession without knowledge of its
adulteration for the purpose of unjust enrichment would be without
any regard for loss of precious human lives or grievous hurt. The
legislature has noted the inadequacy and deficiency in the existing law
to meet the menace of adulteration of liquor etc. and provided for new
offences and directed with mandatory language protection of the health
and precious lives of innocent consumers. While interpreting the law,·
the court must be cognizant to the purpose of the law and respect the
legislative animation and effectuate. the law for social welfare. The
legislature enacted deterrent social provisions to combat the
degradation of human conduct. Tbese special provisions are to some
extent harsh and are a departure from normal criminal jurisprudence.
But it is not uncommon in criminal statutes. It is a special mode to
tackle new situations created by human proclivity to amass wealth at
the alter of human lives. So it is not right to read down the law~
(571-D-F)
4.5. The trial judge has been given wide discre~ion to impose the.
sentence based on fact s.ituation and circumstances in each case subject .
to· minimum sentence prescribed under the Act. The object of the
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.) 533
Amendment Act is to put down the menace of adulteration of arrack A
etc. by prescribing deterrent sentences. Individual cases like the victim
suffering from rashes by consumption of adulterated arrack etc. may
be an individual hypothetical case. The statute cannot be struck down
on hypothesised individual case. Under the Code, the accused has the
opportunity before being imposed sentence, to adduce evidence even on
sentence and has an opportunity to plead any mitigating circumstance B
in his favour and it would be for the trial judge to consider on the facts
situation in each case on the sentence to be imposed. (571-G-H, 574-A)
R.C. Cooper v. Union of India, [1970] 3 SCR 530 and Kartar Singh v.
State of Punjab, [1994) 3 SCC 569 at 715 and Mithu, Etc. v. State of
Punjab Etc. Etc., [1983) 2 SCR 690, referred to.
C
5. Compensation under section 57B is in the nature of liquidated
damages under tort to mitigate and relieve from the hardship of the
victim or next of kin. The legislature thought it expedient to provide the
minimum of course, subject to law of damages by the aggrieved person
or next of kin at the civil action. Therefore, prescription of the damages D
does not violate either Article 14 or 19. (572-D)
6. In view of the Constitution Bench decision of this Court
upholding the constitutional validity of similar provision of TADA
regarding bail, the validity of sub-section (4) of s. 57 A is no longer res
integra. It is, therefore, valid and its validity no longer remains
assailable.
E
Kartar Singh v. Union of India, [1994) 3 SCC 569, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 565 of 1994
Etc. Etc.
F
From the Judgment and Order dated 10.12.93 of the Kerala High Court
in O.P. No. 4637of1989.
Altaf Ahmed, Additional Solicitor General, A. Raghvir, R.F. Nariman,
A.S. Nambiar, V.K. Beeran, P.C. Chacko, K.V. Sreekumar, N. Sudhakaran,
E.M.S. Anam, B.V. Deepak, G. Parkash, K.M.K. Nair, Sudarsh Menon,
T.G.N. Nair, M.A. Firoz, Roniychacho, Roy Abraham, Sudhir Gopi and G
Ms. Baby Krishna for the appearing parties.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. Leave granted in S.L. Ps. No. 10248, 9079,
13769/94 and S.L.P. No .................. (CC No. 25558/94).
H
534
SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R
A
A Division Bench of the Kerala High Court, by its common judgment
B
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dated December 10, 1993 in O.P. No. 4637/89 and batch since upheld the
constitutionality of ss. 57A and 57B inserted by the Abkari (Amendment)
Act 21 of 1984 in the Amendment Act into the Abkari Act l of 1077 (for
short 'the Act'), the correctness of that judgment is questioned in this
appeal.
The facts lie in a short compass:-
The appellants are licencees of arrack or Indian made foreign liquor
retail shops or their employees. They have been charged for offences
punishable under one or other sub-ss. ( l) to (3) of s. 57 A for having mixed
or permitted mixing of noxious substance with liquor or for having failed to
take reasonable precautions to prevent such mixing or for being in
possession of liquor in which such a noxious substance has· been mixed
with the knowledge that arrack or Indian made foreign liquors were mixed
with methanol (methyl alcohol), a substance which, on consumption, is
likely to endanger human lite or causes grievous hurt to human beings or
causes death. Therefore, when the appellants were charged for all or any of
the offences in one or the other case, before competent criminal courts, the
constitutionality of the said two provisions of the Amendment Act was
assailed.
It is the case of the appellants that though they are dealers in arrack or
Indian made foreign liq:uors either selling in retail shops or under their
management, such arrack or Indian made foreign liquor was being supplied
by the appropriate agencies controlled by the State or regull!-ted under the
Act. They secured the supply only from those recognised sources in sealed
bottles or containers. They did not mix noxious substance nor permitted
mixing of any noxious substance with arrack or Indian made foreign liquor.
As such, there was no occasion for them to take any reasonable precaution
to prevent such mixing or for being in possession of such arrack or liquor
mixed with noxious substance with such knowledge and that, therefore,
they had not committed all or any of the offences. However, before being
proceeded with the trial of the offences they filed writ petitions under Art.
226 challenging the constitutionality of the aforesaid two provisions, which
a~ said earlier, were upheld by the High Court.
Section 3 (I 0) of the Act defines 'liquor' as including spirits of wine,
methylated spirits, spirits, wine, toddy, beer, and all liquids consisting of or
containing alcohol. Section 3 (14) defines 'intoxicating drugs' means (i) the
leaves, small stalks and flowering or fruiting tops of the Indian hemp plant
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.] 535
(Connabis Sativa L), including all fonns known as bhang, siddhi or ganja; A
(ii) Charas, that is, the resin obtained from the Indian hemp plant, which
has not been submitted to any manipulations other than those necessary for
packing and transport; (iii) any mixture, with or without natural materials,
of any of the above fonns of intoxicating drug, or any drink prepared
therefrom; and (iv) and other narcotic substance which the (Government)
may, by notification, declare to be an intoxicating drug, such substance not B
being opium, coca leaf, or a manufactured drug, as defined in s. 2 of the
Dangerous Drugs Act, 1930. Sections 6 to 11 in Part III regulate import,
export and transport of liquor or intoxicating drug by a pennit issued in that
behalf. Part IV deals with manufacture, possession and sale of liquor or
intoxicating drug in accordance with the provisions of the Act. (Vide
Sections 12A and 12B). Sub-s (2) of s. 12B expressly postulates that "no C
person shall possess any preparation containing liquor or intoxicating drug,
other than a medicinal preparation for the bona fide treatment, mitigation or
prevention of disease in human beings or animals, in excess of the quantity
specified by the Commissioner." Section 13 prohibits possession of liquor
or intoxicating drug in excess of the prescribed quantity. Section 13A is a
facet thereof. Section 15 prohibits sale without licence of liquor or D
intoxicating drug. Section l 8A gives power to the Government to grant
exclusive privilege or other privileges to manufacture or supply by
wholesale or of selling by retail or of manufacturing or supplying by
wholesale and selling by retail any liquor or intoxicating drugs within the
specified local area, the amount of rental in that behalf fixed from time to
time and the collection thereof, in addition to the duty or tax leviable under E
ss. 17 and 18. Chapter VI and VII prescribe the forms and conditions of
licenses, etc. Chapter VIII deals with the powers and duties of officers
including searches and seizures of the offending contra-band and the
follow-up actions in furtherance thereof. It is thus clear that manufacture,
possession, trade and business of liquor and intoxicated drug is the F
privilege of the State and no one has a right de hors the Act, for
manufacture, possession or sale of them except on a licence granted in that
behalf by the competent officer in accordance with the provisions of the
Act and the rules made thereunder and according to the conditions of
licence. In other words, it is a regulated trade or business.
Chapter IX deals with penalties. Sections 55 to 57 deal with offences
committed under the Act. Section 57, in particular, prohibits adulteration,
etc., by licensed vendor or manufacturer of the liquor or intoxicating drug.
Clause (a) excludes from its operation of the offence, namely, mixing or
permitting mixing of any liquor or intoxicating drug, sold or manufactured
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by the licensed vendor or manufacturer with any other noxious drug or any H
536
SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R
A
foreign ingredients likely to add to its actual or apparent intoxicating
quality or strength, or any article prohibited under the Act from its purview.
Abkari Ordinance 37 of 1983 was issued by the Governor on November l,
1982 bringing on statute ss. 57 A and 57B and the Ordinance was replaced
by the Amendment Act with retrospective effect from the said date.
Sections 57 A and 57B read thus:
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"57-A. For adulteration of liquor or intoxicating drug with
noxious substances, etc. (i) whoever mixes or permits to be
mixed any noxious substance or any substance which is
likely to endanger human life or to cause grievous hurt to
human life or to cause grievous hurt to human beings, with
any liquor or intoxicating drug shall, on conviction, be
punishable.
(i) If, as a result of such act, grievous hurt is caused to any
person, with imprfoonment for a term which shall not be
less than two years but which may extend to imprisonment
for life, and with fine which may extend to fifty thousand
rupees;
(ii) if, as a result of such act, death is caused to any person,
with death or imprisonment for a term which shall not be
less than three years but which may extend to imprisonment
for life, and with fine which may extend to fifty thousand
rupees;
(iii) in any other case, with imprisonment for a term which
shall not be less than one year, but which may extend to ten
years, and with fine which may extend to twenty-five
thousand rupees;
Explanation- For the purposes of this Section and Section
57B, the expression "grievous hurt" shall have the same
meaning as in Section 320 of the Indian Penal Code, 1869
(Central Act 45of1960).
(2) Whoever omits to take reasonable precautions to prevent
the mixing of any noxious substance or any substance
which is likely to endanger human life or to cause grievous
hurt to human beings, with any liquor or intoxicating drug
shall, on conviction, be punishable,
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P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.) 537
(i) If as a result of such omission, grievous hurt is caused to A
any person, with imprisonment for a term which shall not
be less than two years but which may extend to
imprison.nent for life, and with fine which may extend to
fifty thousand rupees;
(ii) if RS a result of such omission, death is caused to any B
person, with imprisonment for a term which shall not be
less than three years but which may extend to imprisonment
for life, and with fine which may extend to fifty thousand
rupees;
(iii) in any other case, with imprisonment for a term which C
shall not be less than one year but which may extend to ten
years, and with fine which may extend to twenty five
thousand rupees;
(3) Whoever possesses, any liquor or intoxicating drug in
which any substance referred to in sub-section (i) is mixed, D
knowing that such substance is mixed with such liquor or
intoxicating drug shall, on conviction, be punishable with
imprisonment for a term which shall not be less than one ·
year but which may extend to ten years, and with fine
which may extend to twenty-five thousand rupees;
(4) notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (Central Act 2 of 1974), no
person accused or convicted of an offence under subsection ( 1) or sub-section (3) shall, if in custody be released
on bail or on his own bond, unless-
(a) the prosecution has been given an opportunity to oppose
the application for such release, and
(b) where the prosecution opposes the application, the Court
is satisfied that there are reasonable grounds for believing
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that he is not guilty of such offence.
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(5) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) - (a) where a person is
prosecuted for an offence under sub-section ( l) or subsection (2), the burden of proving that he has not mixed or
permitted to be mixed or, as the case may be, omitted to H
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538
SUPREME COURT REPORTS
[1994] SUPP. 5 s.c.R
take reasonable precautions to prevent the mixing of, any
substance referred to in that sub-section with any liquor or
intoxicating drug shall be on him;
(b) where a person is prosecuted for an offence under subsection (3) for being in possession of any liquor or
intoxicating drug in which any substance referred to in subsection (1) is mixed, the burden of proving that he did not
know that such substance was mixed with such liquor or
intoxicating drug shall be on him.
(emphasis supplied).
57-B. Order to pay compensation.
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (Central Act 2 of 1974), the
Court when passing judgment in a case calling under
section 57-A may, if it is satisfied that death or grievous
hurt has been caused to any person or persons by
consumption of liquor or intoxicating drug sold in any place
licensed under this Act, order the licensee of that place,
whether or not he is convicted of an offence under the said
section, to pay, by way of compensation, such amount.as it
appears to be just, to the legal representatives of the
deceased or to the person or persons to whom grievous hurt
has been caused.
(2) Any person aggrieved by an order under sub-section (I)
may, within ninety days from the date of the order, prefer
an appeal to the High Court;
Provided that no such appeal shall lie unless the amount
ordered to be paid under sub-section (1) is deposited in tlie
Court which passed such order;
Provided further that the High Court may entertain the
appeal after the expiry of the said period of niriety days if it
is satisfied that the appellant was prevented by sufficient
cause from preferring the appeal in time."
In the Statement of Objects and Reasons annexed to the Amendment
Act, it was stated that the gruesome liquor tragedy in Vaipeenkara Island in
..
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.) 539
Emakulam District of the State during the Onam Festival of 1982 took a A
heavy toll of life and left many with loss of eye-sight and physical
incapacity. A Committee was constituted to suggest ways and means. It,
therefore, became imperative to enact the Amendment Act to provide
severe penalty for adulteration of liquor or intoxicating drug so as to
prevent recurrence of such tragic incidents.
The first question is whether the State Legislature was competent to
enact the Amendment Act. Entry 8 of List II - State List of the Seventh
Schedule to the Constitution read with Article 246(3) of the Constitution,
empowers the State Legislature to enact law relating to intoxicating liquors,
that is to say, the production, manufacture, possession, transport, purchase
B
or sale of intoxicating liquor. Entry 64 deal with offences against law with C
respect to any of the matter in List II. Entry 65 deals with jurisdiction and
powers of all Courts except the Supreme Court with respect to any of the
matters in List II. It is.true that Sections 272 to 276 of the Indian Penal
Code deal with punishment for adulteration of articles of food, while the
Prevention of Food Adulteration Act, 1954 also deals with the same topic.
As a procedural facet, Chapter 18 of the Code of Criminal Procedure, 1973 D
(for short 'the Code') and the relevant provisions in the Evidence Act 1872
deal with adduction of evidence and consideration thereof by the Court, in
proof of the guilt or its non proof. It is not necessary to burden the
judgment with copious citation of diverse decisions on the scope of the
consideration of an entry in the 7th Schedule. In Shri Jilubhai Nan Bhai
Khachar Etc. Etc. v. State of Gujarat and Anr. Etc. Etc., JT (1994) 4 SC E
473, this Court extensively considered the scope of an entry in the 7th
Schedule and held that such entry is not a power given to the Legislature
but is a field of its legislation. The Legislature derives its power under
Article 246 and other related Articles in the Constitution. The language of
an entry should be given· the widest meaning fairly capable to meet the need F
of the government, envisaged by the Constitution. Each general word
should extend to all ancillary or subsidiary matters which can fairiy and
reasonably be comprehended within it. When the vires of an enactment is
impugned, there is an initial presumption of its constitutionality. If there
exists any difficulty in ascertaining the limits of the legislative power, it
must be resolved, as far a5 possible, in favour of the legislature, putting the G
most liberal construction on the legislative entry so that it is infra vires.
Narrow interpretation should be avoided and construction to be adopted,
must be beneficial and cover the amplitude of the power. The broad liberal
spirit should inspire those whose duty it is to interpret the Constitution to
find out whether the impugned Act is relatable to one or the other entry in
the relevant List. The allocation of the subjects of the entries in the H
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SUPREME COURT REPORTS
[1994] SUPP. 5 S.C.R
respective lists is not done by way of a scientific or logical definitions but it
is a mere enumeration of broad and comprehensive categqries. The power
to legislate on a particular topic includes the power to legislate on subjects
which are ancillary to or incidental thereto or for purposes necessary to give
full effect of the power conferred by the Entry.
In determining whether the impugned Act is a law with respect to a
given power, the court has to consider whether the Act, in its pith and
substance, is a law· on the subject in question. If the statute relates in pith
and substance to a topic assigned to a particular legislature, the Act will not
be invalidated even if it incidentally trenches on topics coming within
another legislative list. The fact of incidental encroachment does not effect
the vires of the law even as regards the area of encroachment. The court has ·
to ascertain the true nature and character of the subject of the Act or its pith
and substance to find whether impugned Act falls within the competence of
the particular legislature. Blind adherence to strict interpretation which
would lead to invalidation of statutes as being legislated in the forbidden
sphere should be avoided, lest all beneficial legislations would be stifled at
birth and many a subject entrusted to the State legislature rendered
ineffectual divesting the State legislature of its power to deal with particular
subject of entry or topic.
In A.S. Krishna v. State of Madras, [1957) SCR 399, a Constitutional
Bench of this Court held that "when the law is impugned on the ground that
it is ultra vires the power of the legislature which.enacted it, what has to be
ascertained is the true character of the legislation. To do that, one must have
regard to the enactment as a whole, to its objects and to the scope and effect
of its provisions. If on such examination it is found that the legislation in
substance is one on a matter assigned fo the legislature, then it must be held
to be valid in its entirety, even though it might incidentally trench on
matters which are beyond its competence. It would be quite an erroneous
approach to the question to view such a statute riot as an organic whole, but
a mere collection of sections, then disintegrate in into parts, examine under'
what heads of legislation those parts would severally fall, and by that
process determine what portions thereof are intra vires, and what are not."
In that case like the facts of this case, it was argued that sections 4 (2) and
28 and 32 of Madra,s Prohibition Act, 1937, were void under section 107
(I) of the Government of India Act, 1935 on the contention that they were
repugnant to the provisions of the Indian Evidence Act and the Code of
Criminal Procedure, 1898 and to Article 14 of the Constitution. This Court
rejected the argument' and held that the Madras Prohibition Act would fall
under Entry 31 of List II of 7th. Schedule of the Government of India Act,
P.N. KRISHNA LAL. v. GOVT. OF KERALA [K. RAMASWAMY, J.) 541
1935 and the Provincial Legislature had exclusive competence to make the A
Act and it was not repugnant to section 107 (1), of 1935 Act.
A more serious contention raised on behalf of the appellants was that
the High Court found, as a fact, that the State Government, in spite of
giving repeated opportunities, had not produced the file before the Court to
show that the assent of the President was expressly obtained with reference B
to any of the provisions of the Evidence Act, the IPC and the Code and,
therefore, the Act is void. In that regard they placed strong reliance on
Gram Panchayat of Village, Jama/pur v. Ma/winder Singh, [1985] 2 Supp.
SCR 28, Minoa Framroze Ba/sara v. Union of India, AIR (1992) Bombay
375 and S. Kanagaraj v. Government of Tamil Nadu, AIR (1991) Madras C
182. We find no force in the contention.
The scheme of the Act and the Amendment Act is a consistent whole, .
regulating production, manufacture, possession, transport, purchase or sale
of intoxicating liquors. The Amendment Act was enacted to prohibit mixing
or permitting to mix methynol in arrack or intoxicated drug or failure to D
take reasonable precautions to prevent acts or omissions, of mixing
methynol in arrack or intoxicated drug or to be in possession thereof with
knowledge ~f its adulteration or to prevent deleterious effect on the health
of the consumers to prevent grievous hurt to ht!man beings or their death.
As a part of it, the burden of proof of the ingredients of the offence being E
within the special knowledge of the accused has also been laid on the
accused person. Therefore, though incidentally it trenches into some of the
provisions ofthe Evidence Act, the Indian Penal Code and the Code, in its
pith and substance, it is an integral scheme of the Act, which falls within
Entry 8 read with Entry 64 and 65 of Schedule II of the 7th Schedule of the
Constitution. Under Article 246(3), the State Legislature was competent to F
enact the Amendment Act. Therefore, the assent of the President is not
necessary. Even assuming that some of the provisions incidentally trespass
into the field of operation of the central provisions falling in the Concurrent
List, which empower both the Parliament and the State Legislature to enact
the law, the assent given by the President made Sections 57A and 57B
valid. The gazette notification of the Amendment Act has . been pla:ced G
before us which shows that the President has given his assent to the
Amendment Act on December 1, 1984.