SUDHEESH Vs. EXCISE COMMISSIONER

JUDGEMENT

(1.) The appellant a licensee of 7 toddy shops in Kuzhalmandam Excise Range in Palakkad District from 2008-09 onwards was booked by the Police for an abkari offence under Section 55(a) of the Abkari Act for transporting 30 litres of spirit which is equivalent to 75 litres of arrack in his Alto car along with four companions. The appellant and other accused are facing prosecution before the Assistant Sessions/Sessions Judge. Even though the offence was in the year 2009-10, on account of delay in getting chemical examination report of the spirit seized from the appellant's car, he was allowed to carry on business in the toddy shops retaining the licence. He managed to retain the licence and carry on the business until 2011-12 under orders obtained from this Court and also from the Excise Commissioner who allowed to continue the licence because of the delay in getting chemical examination report. However, when renewal of licence came for the year 2012-13 he was declined the preference available under Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 because of his involvement in the criminal case charged against him. Writ Petition filed by him for preference for licence was turned down by the learned Single Judge, against which this Writ Appeal is filed. On the merits, we do not find any case for the appellant because preference for licence for those who carried on business previously will not be available to those involved in abkari offence during the period they carried on business in the past. Appellant's is not a unique case because cases being booked by Police & Excise and those pending in Courts reveal that under the label "toddy" spurious liquor is extensively sold in toddy shops. We therefore felt that this is a fit case to ask the Government why this toddy business should be continued in the State which has hardly any toddy production only to defeat the prohibition of arrack introduced in the State 16 years back. We also thought something should be done to reduce Abkari Cases in the Courts in Kerala, the main source of which is toddy business. According to latest statistics as many as 20547 Abkari Cases are pending trial in various Sessions Courts, Fast Track Courts and Asst. Sessions Courts in the State. Quilon District occupies the first position with 6400 cases, while Trivandrum District has 5000 cases. In fact, trial in large number of Abkari Cases ends up in acquittals, on technicalities, witnesses under threat refusing to give evidence etc. and invariably in every case the last point seller who is a non-entity in the Abkari business is the accused and the kingpins controlling the business do not figure or they easily escape. Toddy tappers carrying toddy on their shoulders is a story of the past in Kerala villages. The next generation of toddy tappers without exception do not take up this traditional profession, and on account of non-availability of toddy tappers and consequent non-availability of toddy locally everywhere, Government permits sourcing and transport of toddy from far away places, mostly from Palakkad District bordering with Tamilnadu. It is common knowledge that there is no correlation between the actual quantity of toddy produced and available and the quantity required for sustaining thousands of toddy shops in the State. What can be implied is that artificially prepared spurious liquor with high alcohol content is sold in toddy shops, and in fact most cases booked are of this kind. Since Abkari Cases particularly those charged under Section 55(a) are triable only by Court of Sessions or Assistant Sessions Judge, theses cases sustain large number of Fast Track Courts in the State. What we notice from the report submitted by the Excise Commissioner is that the Government is not inclined to close down toddy shops located all over Kerala on road side to the great discomfort of the people. One explanation offered by the Commissioner in his report to justify toddy business is that people should be provided liquor with low percentage of alcohol. This appears to be quite interesting because occasionally news papers publish photographs of people lying unconsciously on road sides near toddy shops on account of excess consumption of alcohol. This obviously means that what is served to these people are not liquor with low percentage of alcohol but liquor with high content of alcohol, which is not toddy as the maximum percentage of alcohol in toddy is 8%. Toddy shops are places of violence and crimes and sale of spurious liquor leads to complete financial ruin and consequent family disharmony of the poor people. Another apprehension of the State is the disemployment of large number of toddy workers. 16 years back, the State Government showed will power to stop arrack business by prohibiting arrack in the State, which was also then resisted on account of disemployment of large number of arrack workers. However, with no serious scheme for rehabilitation except few employed in retail shops of Beverages Corporation, the problem did not precipitate. However, going by the cases reaching in Courts including the seizure of spirit in this case, what we notice is that prohibition of arrack is easily got over by sale of the same stuff by mixing it with toddy which itself is artificially prepared for want of adequate production of toddy in the State.

(2.) There are around 400 retail shops of Beverages Corporation selling beer which has alcohol content less than that of toddy, and therefore to our mind, the Government's justification to continue toddy shops to provide liquor with low percentage of alcohol lacks any merit. Toddy whether genuine or not may be title cheaper than beer because unlike beer there is no accountability of production or tax component in the value of toddy which is invariably found to be spurious in the cases booked by Police and Excise and brought to Courts. In our view, the Government should not worry about the financial capacity of ordinary & poor people to afford to switch over from toddy to beer because alcohol is not compulsory part of diet of human beings and in our view it is to be treated as a luxury which people with disposable income only can afford. The main cause of domestic problems in the State in the case of the poor and the low income group is alcohol consumption by the head of the family which robes much of his daily earning leaving hardly anything to take care of his family and for the education of his children. Therefore, if sale of toddy is stopped in the State, then availability of cheap spurious liquor in the State can be contained liberating large number of poor people from their drinking habit. Bottled liquor even with low percentage of alcohol like beer and wine are manufactured by Companies with brand names and it is not easy to duplicate it. Therefore, one way of effective implementation of prohibition of arrack and spurious liquor in the State is stoppage of toddy business in the State.

(3.) The Excise Commissioner has expressed apprehension against loss of employment of thousands of people stated to have been employed in toddy business. Kerala is reported to have 13 lakhs of migrant labourarers working in, various sectors mainly in construction industry and even in farm work in village areas earning Rs. 300/- to Rs. 500/- a day. Unemployment in Kerala is always related to Government employment and in reality there is hardly anybody unemployed in Kerala in the sense, that those who want to work can always find a job. If arrack workers could be rehabilitated without any difficulty on prohibition of arrack business 16 years back, we see no reason why the Government should worry about toddy workers all of whom can easily find alternate, employment in Kerala under the present dispensation. In our view, the Government should conduct a serious study and audit of the number of persons on rolls as toddy workers for various benefits and those actually & really employed as toddy workers, and if this is done they will know that only very few people, most of whom are above middle age, are engaged in toddy business, and new generation are not taking up toddy tapping as a profession. We therefore feel it is high time the Government should think of discontinuing toddy business in the State to save poor people from the evils of alcohol and to prevent camouflaged sale of arrack and other spurious liquor in the name of toddy. We wish a bold decision will be taken by the Government in the near future liberating Emerging Modem Kerala from this disgraceful business carried on every where on road side. Above are only our views in the matter and prohibition of toddy in the State being a matter of policy of the Government, it is up to them to take note of our views and decide the matter at least for the next financial year.