SALAM HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is the owner of a building No. 870a of Ward no. 1 of Neeleswaram Panchayat. The building was let out to one Saji Luckose on a monthly rental basis. Circle Inspector of Police, Neeleswaram conducted a search in the building on 28. 9. 1996 and unearthed 4340 litres of unauthorised spirit contained in barrels and other utensils. A case was registered against saji Luckose and petitioner under Ss. 55a and 64a of the Kerala Abkari Act The charge levelled against the petitioner was that petitioner rented out the premises to Saji Luckose and that with the knowledge and consent of the petitioner and Saji Luckose the building was used for the said illegal activities, even after the expiry of the lease period, so as to make unlawful gain.

(2.) ACCORDING to counsel for the petitioner, the room was rented out on the basis of Ext. P3 rent deed for a period of six months. However, on expiry of the said period also Saji Luckose continued to be in possession of the building and vacated it only on 2. 9. 1997. ACCORDING to counsel, when the incident happened, petitioner had no control over the building. Therefore, no charge will lie against the petitioner. He has got a further case that S. 64a of the Act would not give any authority to the officer to include the owner of the building as an accused, merely because the building has been let out to a person. Counsel submitted that construction of a building and giving the said premises on rent to persons who are doing business and trade is the right of a citizen and the said right and the grant of lease cannot give rise to a cause of action for criminal prosecution. Any such action is violative of Arts. 14,19 (1) (g) and 21 of the Constitution of India

(3.) 64a is attracted only if any owner, or occupier or person having control of any land, building, room, space or enclosure permits any person to use such land, building, room, space or enclosure for manufacture, sale or storing for sale, of liquor or intoxicating drug in contravention of the Abkari Act or rules made thereunder or of any licence or permit obtained under the Act. Therefore, only if permission is given by the owner or person in control of the building to use such premises for the manufacture, sale or storing for sale of liquor, S. 64a is attracted. If it is proved that such permission has been granted to use the premises for manufacture, or sale or for storing for sale of liquor, in contravention of the Act and the rules made thereunder, that person shall be punishable with fine which shall not be less than Rs. 25,000/ -. However, it is open to the owner or the person in control of the premises to prove to the satisfaction of the court that due and reasonable precautions were taken by him to prevent such use. A person can permit another person to use the building for the above mentioned purposes by various means, such as by written agreement, or on oral agreement, etc. There may be situations where landlord, even after having come to know that the premises has been used for the manufacture, sale or storing for sale of liquor or intoxicating drug, may keep silent in order to enable the other person to use the premises for illegal activities. 5. We have to understand the scope of S. 64 A in the setting in which the said provision is placed. Trade in liquor has historically stood on a different footing from other trades. Restrictions which are not permissible with other trades are lawful and reasonable so far as the trade in liquor is concerned. That is why even prohibition of the trade in liquor is not only permissible but is also reasonable. Art. 47 of the Constitution of India states that it is the duty of the State to raise the level of nutrition and the standard of living and to improve the public health, and also reminds the State to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Supreme Court in various decisions held that restrictions imposed by a law providing for the prohibition of consumption or production of liquor cannot be challenged as violative of Arts. 19 (1) (g) inasmuch as dealing in liquor cannot be regarded as a trade or business within the meaning of Art. 19 (1) (g ).