WA Nos. 616 of 2017 and 719 of 2017 (P. V. Vijesh and C. B. Biju v. State of Kerala and others; C. S. Mahesh v. State of Kerala and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** ## **WA.No. 616 of 2017** **AGAINST THE ORDER/JUDGMENT IN WPC 1080/2016 of HIGH COURT OF KERALA DATED 20-06-2016** ## **APPELLANT/S:** **1 P.V.VIJESH AGED 37 YEARS, S/O.VIJAYAN, PARAYAKKATTU HOUSE, KUNNONNI KARA, POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK. 2 C.B.BIJU AGED 42 YEARS, S/O.BHASKARAN, CHOTTIYEL HOUSE, KUNNONNI KARA, POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK. BY ADVS. SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL SMT.RESHMI JACOB SRI.P.S.SYAMKUTTAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF EXCISE AND TAXES, GOVT. SECRETARIAT, THIRUVANANTHAURAM-695001.** _W.A.Nos.616 & 719 of 2017_ 2 |**2**|**THE EXCISE COMMISSIONER**| |---|---| ||**COMMISSIONERATE OF EXCISE,**| ||**THIRUVANANTHAPURAM-695033.**| |**3**|**THE EXCISE INSPECTOR**| ||**EXCISE RANGE OFFICE, ERATTUPETTA,**| ||**KOTTAYAM-686001.**| |**4**|**THE ASST. EXCISE INSPECTOR**| ||**EXCISE RANGE OFFICE, ERATTUPETTA,**| ||**KOTTAYAM-686001.**| ||**BY SRI RENIL ANTO, SR.GOVERNMENT PLEADER**| ## **OTHER PRESENT:** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH WA.719/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _W.A.Nos.616 & 719 of 2017_ 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** **WA.No. 719 of 2017** **AGAINST THE ORDER/JUDGMENT IN WPC 9380/2014 of HIGH COURT OF KERALA DATED 20-06-2016** ## **APPELLANT/S:** **C.S.MAHESH S/O.SIVANACHARI, CHOKKANAL HOUSE,THODUPUZHA, IDUKKI DISTRICT** **BY ADVS. SRI.RENJITH B.MARAR SRI.BIJI MATHEW** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE COMMISSIONER OF EXCISE,**| ||**EXCISE COMMISSIONERATE,NANDAVANAM,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**COMMISSIONER OF EXCISE,**| ||**EXCISE COMMISSIONERATE,NANDAVANAM,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**3**|**DEPUTY EXCISE COMMISSIONER**| ||**IDUKKI - 695 001.**| |**4**|**EXCISE INSPECTOR**| ||**EXCISE RANGE OFFICE,THODUPUZHA**| ||**IDUKKI DISTRICT 685 508.**| **BY SRI RENIL ANTO, SR.GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH WA.616/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _W.A.Nos.616 & 719 of 2017_ 4 ## **JUDGMENT** ## **[ WA 616/2017, WA.719/2017 ]** ## Ashok Menon, J. Two Writ Petitions, W.P.(C) Nos.1080/2016 and 9380/2014, were dismissed by the learned Single Judge vide common judgment dated 20.06.2016 holding that the respondents had rightly proceeded against the petitioners under the Abkari Act and the Rules, and that their action cannot be held to be against the provisions of the Central legislation, the Food Safety and Standards Act, 2006 (for short “the FSS Act”) and the Regulations of 2011. Aggrieved, this judgment is impugned. 2. The appellants are licensees of toddy shops in Erattupetta and Thodupuzha Excise Ranges. They are arraigned as accused in Crime Nos.74/2015 and 20/2014 of Erattupetta and Thodupuzha Ranges respectively on the allegation that the samples of toddy taken from their shops revealed the presence of extraneous substances, such as starch and saccharine, respectively. The respondents alleged that the _W.A.Nos.616 & 719 of 2017_ 5 petitioners had committed the offence punishable under Sections 56(b) and 57(a) of the Abkari Act, and proceeded to recall the licence issued to them. 3. Show cause notices were issued to the petitioners as to why their licences shall not be cancelled. 4. The learned Counsel for the appellants Sri.Renjith Marar strains to submit that the provisions of the FSS Act, which was implemented subsequent to the Abkari Act by the Central Government, would override the provisions of the State Statute, for which reason alone, the presumption in these cases cannot be legally sustained. The petitioners have also sought to quash SRO No.145/2007 prescribing standard for toddy, in view of the fact that the same is _ultravires_ the FSS Act. It was also contended that the second sample was not sent for analysis, and therefore, the prosecution, as well as action for cancellation of the licences could not be sustained without first obtaining a report, after analysing 'B' sample. _W.A.Nos.616 & 719 of 2017_ 6 5. The learned Single Judge considering both these contentions, relied on the decision _**Ramanan v. State of**_ _**Kerala, 2016 (2) KLT 62**_ , to hold that it has been settled that the officers competent under the Abkari Act need not wait till the result of analysing 'B' sample is received, and are vested with the power to proceed against the licensees in accordance with law. 6. The second contention was that Section 3(1)(j) of the FSS Act includes alcoholic drink, and hence toddy being an alcoholic drink, is a food article coming within the purview of said Act. Hence, the SRO prescribing standard for coconut toddy is not sustainable. The learned Single Judge, in answer to this, found that the FSS Act and the Abkari Act are harmonious legislations, co-existing and operating in two different fields even though both are with respect to food articles. It is also observed that the alcoholic articles for human consumption are included in List II, Entries 8 and 51(a) (State List) of Schedule 7 of the Constitution of India, while adulteration of food stuffs and other goods are _W.A.Nos.616 & 719 of 2017_ 7 included in List III, Entry 18 (Concurrent List) of Schedule 7 of the Constitution. Any aspect of regulation with respect to toddy, its production, manufacture, constitution, licensing for sale etc:, including the powers of taxation; would therefore, remain with the State Government. It is also observed by the learned Single Judge that the Abakari Act and the Rules made thereunder are protected under Article 254(2) of the Constitution and hence the petitioners have not made out a case to hold that the SRO is illegal and unconstitutional. 7. We heard Sri.Renjith Marar, learned Counsel appearing for the appellants and the learned Senior Government Pleader. 8. The thrust of the arguments advanced by the learned Counsel for the appellants is that in view of the specific exclusion of the offence of food adulteration under Section 57(a), needs to be read down to exclude food adulteration in which case it would not result in repugnancy of the Central Statute, which was the intention of the Legislature. _W.A.Nos.616 & 719 of 2017_ 8 9. A Division Bench of this Court in _**Komalam v.**_ ## _**State of Kerala, 2009 (2) KHC 514**_ , was considering the inclusion of 'starch' in a toddy sample leading to action against the licensee based on the Government notification as well as Rules 9(2) and 2(n) of the Abkari Shops Disposal Rules, 2002 (Kerala) (for short “the Rules”). It was held that inclusion of 'starch' is objectionable, and upheld Notification SRO 145/2007 and the validity of Rule 9(2) of the Rules. Relying on _**Komalam**_ , a later Division Bench of this court in _**Santhosh v. State of**_ _**Kerala, 2015 (5) KHC 198,**_ also came to the conclusion that inclusion of starch amounts to violation of Rule 9(2) of the Rules and is also punishable under Section 57(a) of the Abkari Act. 10. Another Division Bench in _**Prasad v. State of**_ _**Kerala, 2017 (3) KHC 123**_ , which had the opportunity to consider whether inclusion of “Poly Vinyl Acetate” in toddy is to be considered as adulteration of 'food' under the FSS Act, and whether the Central Statute _W.A.Nos.616 & 719 of 2017_ 9 would override the standards prescribed under the Abkari Act and SRO, held thus: _“13. xx xx The Abkari Act is an enactment, the legislative competence of which is traceable to the above Entries in List II. As per Article 246 of the Constitution, in so far as the subjects in List II of the Seventh schedule are concerned, the State has the exclusive power to enact laws. The FSS Act though enacted by the centre, is in exercise of the power that is available under Entry 18 List III of the Seventh schedule of the Constitution. Entry 18 deals with adulteration of foodstuffs and other goods. The same is a general subject that deals with the act of adulteration and cannot be interpreted to take away or deny to the State the legislative competence that has been specifically conferred by Entry 8 List II and Entry 51 List II of the Constitution. In other words, the State has the exclusive legislative competence in respect of alcoholic liquor fit for human consumption. Therefore with respect to all aspects of regulation in respect of the said article, the State has the exclusive competence. The FSS Act deals with food standards and safety and only deals incidentally with “toddy” as an article of food. Such incidental transgression is permissible and cannot be avoided. However, such encroachment cannot and does not denude the State of its legislative competence.”_ ## 11. We are in agreement with the aforecited Division Bench decisions of this Court. The argument of the learned Counsel for the appellants with respect to the constitutional validity of the provisions under the _W.A.Nos.616 & 719 of 2017_ 10 Abkari Act and the Notification is not therefore, sustainable. There is no reason, whatsoever, to interfere with the findings of the learned Single Judge and the appeals are dismissed. No order as to costs. **Sd/-** ## **K.VINOD CHANDRAN** ## **JUDGE** **Sd/-** **ASHOK MENON** _dkr_ **JUDGE**