ORDER
J.B. Koshy, J.
1. Power of Abkari Officers to file complaints when samples taken during inspection conducted under Section 32 of the Kerala Abkari Act (Act No. 1 of 1077) are found to be adulterated with noxious substances before amendment of the Act by No. 16 of 1997 is the question to be considered in this case. A contention was raised by the petitioners that in view of the observations made by the Apex Court in Suraj v. Excise Inspector (2001 (1) KLT 169 SC), entire proceedings are illegal since power of the Abkari Officers under Section 32 was not considered by the Supreme Court in the above decision and one of us (K. Padmanabhan Nair, J.) sitting in single referred the matter to the Division Bench. For understanding the question, we may now refer the facts of the case first.
2. Petitioners are the accused in Crime No. 2/96 of Alathur Excise Range on the file of the Judicial First Class Magistrate’s Court, Alathur. They are Salesman, Power of Attorney Holder and licensee respectively of toddy shop No. 78/96-97 of Alathur range. Samples of toddy was taken from their shop and on analysis it was found that it contained Chloral Hydrate, a hypnotic drug, and it was unfit for human consumption. Excise Officers came to the conclusion that offence under Section 57A of the Abkari Act (hereinafter referred to as ‘the Act’) was attracted and hence Annexure I report was filed before the Magistrate’s Court and the above is challenged in this case.
3. Section 57A of the Abkari Act is as follows:
“57A. For adulteration of liquor or intoxicating drug with noxious substances, etc.:
(1) 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 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 imprisonment 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 two 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 purpose of this Section and Section 57B, the expression ‘grievous hurt’ shall have the same meaning as in Section 320 of the Indian Penal Code, 1860 (Central Act 45 of 1860).
(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,-
(i) if as a result of such omission, grievous hurt is caused to any person, with imprisonment 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 omission, death is caused to any 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 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 (1) in mixed, 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 Sub-section (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 that he is not guilty of such offence.
(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 (1) or Sub-section (2), the burden of proving that he has not mixed or permitted to be mixed or, as the case may be, omitted to take reasonable predictions 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 Sub-section (3) for being in possession of any liquor or intoxicating drug in which any substance referred to in Sub-section (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.’
The above section was inserted in the Abkari Act by Amendment Act No. 21 of 1984 with effect from 3.12.1984.
4. Main contention of the petitioners is that during the relevant time, officers of Excise Department had power only to conduct search if offence specified in Section 31 of the Act are committed or alleged to be committed and Section 57A was not mentioned during the relevant time till Section 31 of the Act was amended with effect from 3.6.1997. During the relevant time (before 3.6.1997), Section 31 of the Act was as follows :
“31. Power to certain Abkari and police officers to search houses etc. without warrant.: Whenever the Commissioner of Excise or any Abkari Officer not below such ranks may be specified by the Government in this behalf or any Police Officer not below the rank of Sub Inspector or a Police Station Officer, has reason to believe that an offence under Section 8 or Section 15C or Section 55 or Section 55B or Section 56A or Section 57 or Section 58 or Section 58A or Section 58B of this Act has been committed and that the delay occasioned by obtaining a search warrant under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.
Provided that every person arrested under this section shall be admitted to bail by such officer as aforesaid if sufficient bail be tendered for his appearance either before a Magistrate or before an Abkari Inspector as the case may be”.
5. Section 34 of the Act also specifically gives power to the Abkari Officer for arrest and seizure only for the offences committed under Sections 8, 15C, 55, 55B, 56A, 57, 58, 58A and 58B of the Act. Section 57A was not mentioned. The above section was also amended only with effect from 3.6.1997. It is the contention of the petitioners that search and seizure made under Sections 31 and 34 are illegal when the offence alleged is Section 57A. In effect, even though Section 57 was enacted in 1984, no action was possible for convicting a person under the above Section till 3.6.1997 for want of procedural formalities.
6. Similar contentions were repelled by this Court in Crl.M.C. No. 1381 of 1986 and connected cases. This Court held as follows:
“The latter part of Section 31 empowers the Abkari Officers to search any place and seize anything found therein which he has reason to believe to be liable to confiscation under the Act and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under the Act.”
Thereafter, the Court held that when Abkari Inspector has reason to believe that an offence under the Act is committed, he shall forward a report to the Magistrate and thereupon the Magistrate shall inquire into the offence as if the complaint had been made before him as prescribed in the Code of Criminal Procedure. The Magistrate of the first class is empowered to take cognizane of the offence upon receiving the complaint. When the complaint is received, the Magistrate taking cognizance of the offence shall examine upon oath the complainant and his witnesses present. But, if the complaint is made in writing, the Magistrate need not examine the complainant and his witnesses if he is a public servant acting or purporting to act in the discharge of his official duties or the court has made the complaint. The report filed by the Excise Inspector can be treated as a complaint in which case the Excise Inspector being a public servant acting in the discharge of his official duties, the Court is not obliged to examine the complainant and his witness. But, if the offence is exclusively triable by the Court of Sessions, he shall call upon the complainant to produce witnesses and examine them on oath as provided in the proviso to Section 200(2) Cr.P.C. This is in terms of Section 50 of the Act. Section 50 of the Act during the relevant time was as follows:
“50. Report of Abkari Inspector gives jurisdiction to a competent Magistrate:- When an Abkari Inspector forwards in custody any person accused of an offence under this Act to the Magistrate having jurisdiction to try the case or admits any such person to bail to appears before such Magistrate such officer shall also forward to such Magistrate a report setting forth the name of the accused person and the nature of the offence with which he is charged and the names of the persons who appears to be acquainted with the circumstances of the case, and shall send to such Magistrate any article which it may be necessary to produce before him. Upon receipt of such report the Magistrate shall inquire into such offence and try the person accused thereof in like manner as if complaint had been made before him as prescribed in the Code of Criminal Procedure, 1898.”
7. It is contended by the counsel for the petitioners that only under Section 50, a report can be filed only when the Magistrate has jurisdiction to try the case and for offence under Section 57A, the Magistrate can only commit and cannot try and, therefore, Section 50 is also not applicable before Section 50 was substituted by Act No. 16/97 with effect from 3.6.1997. Therefore, prosecution for offences under Section 57A is not possible on the basis of a report of the Abkari Officer Under Section 50 of the Act. In other words, contention of the petitioners was that even though Section 57A of the Act was introduced in the Abkari Act from 1984, no action was possible under Section 57A and in the absence of enabling procedural provisions till Sections 31, 34 and 50 were amended by Amendment Act. No. 16/97. In other words, according to the petitioners, no person could be convicted under Section 57A of the Act notwithstanding its insertion by Amendment Act No. 21/84 with effect from 3.12.1984 till procedural sections were amended in 1997 and cases booked during that period cannot be tried at all. This contention was also not accepted by this Court in the judgment dated 19.5.1998 in Crl.M.C. 1381/96 and connected cases. With regard to the argument based on Section 50 of the Act and competence of the Magistrate to try the offence, this Court observed as follows:
“6. When an Abkari Inspector has reason to believe that an offence under the Act is committed, he shall forward a report to the Magistrate setting forth the name of the accused person and the nature of the offence with which he is charged and the names of the persons who appear to be acquainted with the circumstances of the case, and shall send to such Magistrate any article which may be necessary to produce before him. In such event, the Magistrate shall inquire into the offence as if the complaint had been made before him as prescribed in the Code of Criminal Procedure. The Magistrate of the first call is empowered to take cognizance of the offence upon receiving the complaint which constitute an offence. When the complaint is received, the Magistrate taking cognizance o the offence shall examine upon oath the complainant and his witnesses present. But, if the complaint is made in writing, the Magistrate need not examine the complainant and his witnesses if he is a public servant acting or purporting to act in the discharge of his official duties or the court has made the complaint. The report filed by the Excise Inspector can be treated as a complaint in which case the Excise Inspector being a public servant acting in the discharge of his official duties, the court is not obliged to examine the complainant and his witnesses. But, as the offence is exclusively triable by the Court of Sessions, he shall call upon the complainant to produce witnesses and examine them on oath as provided in the proviso to Section 2000(2) Cr.P.C.”
In the above decision, this Court also followed the decision reported in State of Kerala v. Balakrishnan (1991 (2)KLT 323) and held that, in such cases, before committing the accused to the Sessions, proviso to Section 200(2) Cr.P.C. should be complied with. Appeals filed from the decision of the learned Single Judge in Crl.M.C. No. 1381/96 and connected cases were dismissed by the Supreme Court in Suraj v. Excise Inspector (2001 (1) KLT 169 SC). It is not disputed that after the amendment in 1997, specific provisions enabling Abkari officers to investigate and file complaint for offences under Section 57A was incorporated. After considering the various provisions, the Supreme Court held as follows :
“The above examination of the relevant provisions demonstrates that before amendment of the aforesaid provision in 1997, the position was much the same except to the extent indicated above. The amendment of Sections 31 and 50 and insertion of Section 50A has not changed the law but has placed the matter beyond controversy. In this view of the matter, the contentions that the offence under Section 57 could not have bene tried before June, 1997 for want of machinery under Act and allowing the trial to proceed after the said date would amount to giving retrospective effect to Section 50A in the absence of specific provision to that effect, have to fail as being untenable.”
We also note that a Division Bench of this Court in In re State of Kerala (2002 (1) KLT 10) held that in view of the amendment of Section 50 and introduction of Section 50A, it is not necessary in a case to be committed to a Court of Sessions, for a Magistrate to hold an enquiry as contemplated by the proviso to Section 202(12) Cr.P.C. and that will be possible even if the proceedings were initiated before the introduction of Section 50A.
8. If the interpretation suggested by the petitioners is accepted, implementation of Section 57A will not be possible meaning thereby legislature achieved nothing by insertion of Section 57A in the Act. Of course, by subsequent amendment, legislature has clearly made out procedural guidelines to avoid any possible hindrance in implementing Section 57A. The Courts strongly lean against the construction which reduces the Statute to a futility. As far as possible, statutory provision will be construed by Courts so as to make it effective, operative and workable. An interpretation which will defeat the intention of the legislature cannot be favoured by the Court. Purpose of legislation, object of enacting a provision etc. cannot be lost sight of. General presumption in favour of validity of a Statute also indicate that legislature will enact a provision for the purpose of getting at result and not in vain. Court has to avoid a construction which will make it unworkable. In the absence of substantial constitutional or legal hurdles and procedural obstacles, as far as possible, Courts will only try to give meaningful life to legislative enactments.
9. A contention was taken in this case by the learned counsel for the petitioners that even in the above Supreme Court decision it was held that power of the Abkari Officers to conduct search under Section 31 (unamended) at any place at any time was confined to cases where Abkari Officers had reason that one of the specified offences in Section 50 is committed and Section 57A was not specified. The Supreme Court held that in any given case, if the Excise Inspector had reason to believe that offence specified in the Act was committed, the Abkari officers can enter the premises and search and if the entry and search is legal and if any offence is detected during search whether specified or not including an offence under Section 57A, then, report can be filed before the Magistrate under Section 50. The Supreme Court in Suraj’s case (supra) held as follows:
“In any given case, whether the Excise Inspector had reason to believe that an offence was committed and that offence was one of the specified offences are questions of facts which must be established in each case on evidence. Should be prosecution fail to prove these facts, the entry and search of any place per se would be illegal and so also the collection of samples by him and consequently the prosecution of the alleged offender will equally be illegal. But under the amended provisions such a power extends to every case where the Excise Inspector has reason to believe that an offence under the Act has been committed. Even so on a valid entry and search of any place in exercise of power under unamended Section 31 of the Act, should an Excise Inspector find material suggestive of commission of an offence under the Act in addition to or instead of the specified offences, he can, on the basis of such material file a complaint a report regarding commission of such an offence also in addition to or in lieu of the offences in report of which search was made.”
A similar contention was raised in Crl. Appeal No. 1071/2000 considered in the above case. There also, the Supreme Court held that the complaint cannot be quashed. However, it was held as follows:
“the prosecution has to make out a case under the first limb of Section 31, which can be determined only on examination of the Excise Inspector and decided on trial. In such a case, if the proceedings are not quashed under Section 482 of the Code of Criminal Procedure by the High Court, it cannot be said that the High Court has committed any error in law.”
Based upon these observations, it is contended that even the first limb is not satisfied and search under Section 32 itself is illegal.
10. Additional Director General of Prosecutions submitted that the Supreme Court in the above case was considering the power of entry and search of any place by the Excise Inspector under Section 31 of the unamended Act. Abkari officers can conduct search under Section 31 only if he had reason to believe that specified offences in that section have been committed. If the first part is satisfied and during entry if any offence is committed, whether specified or unspecified, report can be filed. That is the sum and substance of the Supreme Court decision. However, that observation is applicable only if entry and search is conducted under Section 31 of the Act. It is submitted that here in this case search was conducted under Section 32 of the Act and not under Section 31 of the Act. Section 32 of the Abkari Act reads as follows:
“32. Power to enter and inspect place of manufacture and sale :- The Commissioner of Excise or any Abkari Officer not below the rank of preventive Officer or any Police Officer duly empowered in that behalf, may enter and inspect, at any time by day or by night any place in which any licensed manufacturer carries on the manufacture of any liquor or intoxicating drug, or draws toddy, or stores any liquor on intoxicating drug or toddy, and may enter and inspect, at any time during which the same may be open, and place in which any liquor or intoxicating drug is kept for sale by any licensed person; and may examine, test, measure or weigh any materials, stills, utensils, implements apparatus, liquor or intoxicating drugs found in such place.”
11. Unlike Section 31, where Abkari Officers had right of entry and search, at any place, under Section 32, the Abkari Officers can enter and inspect only the premises where liquor and intoxicating drug is kept for sale by any licensed person and only places where any licensed manufacturer carries on any manufacture of liquor or intoxicating drug etc. at any time whether day or night during which the same may be open and may test, measure or weight any materials, utensils etc. This speaks about the routine inspection in the licensed premises or places of licensed person. Here, only the licensed premises was searched under Section 32. Under Section 32 of the Act, power of entry and inspection is not limited to specified offences during the relevant time when inspection was conducted. The power under Section 32 is kept in tact and entry and inspection of the licensed premises under Section 32, when the premises is open, can be done and after test and examination, if any offences were suspected to have conducted, he can file a report under Section 50. Earlier High Curt judgment as well as the Supreme Court judgment only deal with the power of search and inspection under Section 31 of the Act. Here, specific contention is that they have conducted inspection of only licensed premises under Section 32 of the Act. For conducting inspection and search, there is no condition precedent that before such inspection, the officer has reason to believe that a specified offence has been committed. Regular inspection in the licensed premises and seizure of liquor can be done under Rule 6 of Kerala Abkari Shops (Disposal in Auction) Rules (hereinafter referred to as ‘the Rules’). Sub-rule (7) of Rule 6 of the Rules reads as follows:-
“Every officer authorised to inspect shops shall have authority to take possession of any toddy foreign liquor found unfit for consumption or suspected to have been tampered with. The officers not below the ranks of Excise Inspectors are empowered to seize and destroy any liquor kept in shops and found to be unfit for consumption or which has been tampered with.”
12. Under Section 27 of the Act, person in possession of the liquor as per license as bound to test the liquor as required by the Abkari Officer. Therefore, if sample is taken during inspection as authorised under Section 32 and if the Abkari Officer finds out any offences, it is for the authorised Abkari Officer to file report under Section 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 Section 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 we are of the opinion that for conducting an inspection of the premises of a licensed person under Section 32, it is not obligator that the authorised officer has to form an opinion that a specified offence in Section 31 is committed. In such routine inspection, if an offence is detected, he is perfectly authorised to file a report under Section 50.
13. Another contention raised was the third petitioner was only a licensee. Admittedly, he was not present at the place of incident. Presumptions and absolute liability against a licensee was incorporated after the inspection and hence at least case against him shall be dropped. Sub-section (1) of Section 57A opens with the sentence “whoever mixes or permits to be mixed…..”. Sub-section (2) also says “whoever omits to take reasonable precautions…..”. So whether license permitted mixing of any noxious substances or whether he has taken care to prevent the same etc. are to be decided on evidence and whether ingredients of the section are substantiated as against him on the applicable rules of evidence is a matter to be considered by the criminal court and it is not a case whether charges should be thrashed at the initial stage even before adducing any evidence. It is for him to make out his defence before the trial court.
We see no case to set aside Annexure I report sent by the Excise Inspector to the Judicial First Class Magistrate, Alathur.
The Crl.M.C. is dismissed.