Some Thoughts on Abkari Act

(By B.G. Harindranath, District Judge, M.A.C.T., Pala)

A close relationship exists between drunkenness and the rising incidence of crime, poverty, and violence. It poses a serious threat to the integrity of our most vital institutions, especially the institution of the family. There are few sources of crime and misery to society equal to the use of ardent spirits obtained at the dram shop. Most of the world's religious traditions considered drunkenness as an evil and for centuries, Islam has forbidden even the moderate use of the fermented drink. In the west, excessive consumption of alcohol alarmed all those concerned with public health and morals. In England and the American colonies, Governments after 1750 AD made repeated futile efforts to discourage the excessive use of distilled spirit. By the early 1820's, people in the United States of America were drinking, on the average, 27 litres of pure alcohol per person each year and many religious and political leaders were beginning to see drunkenness as a national curse. Abraham Lincoln said of this period that intoxicating liquor was "used by everybody, repudiated by nobody" and that it came forth in the society like "the Egyptian angel of death commissioned to slay if not the first, the fairest born in every family".

In 'Crowley v. Christensen' (1890) 34 Law Ed. 620 (A) it was observed thus:

"There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injury, it is true, first falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement, which it creates. But as it leads to neglect of business and waste of property and general demoralization, it affects those who are immediately connected with and dependent upon him".

The need to enact laws curtailing, if not prohibiting the consumption of liquor definitely has its foundation in public expediency and public morals. In our country, primarily excise laws were enacted for collecting revenue. During 1790s to 1800, the Government regulated manufacture and sale of liquor. There were regulations in the Madras Presidency in 1808 and 1820, with regard to sale of toddy and spirits. The Cochin Abkari Act, 1 of 1077 and the Abkari Act (Travancore Act TV of 1073), were enacted for the levy of fees for licenses for the manufacture or sale of liquor and intoxicating drugs. The word Abkari is derived from Persian (abkara from kar -business). Strengers Persian English dictionary defines it as tax on the manufacture and sale of spirituous liquors and intoxicating drugs. According to the glossary of judicial and revenue terms it means revenue derived from duties levied on the manufacture and sale of intoxicating liquors, as toddy, arrack and on intoxicating drugs whether in substance, infusion, extract as opium, charas, etc. The advent of the Constitution made a change in approach and thereafter the object of the Prohibition Acts was not merely to levy excise duties but also to prohibit use, consumption, possession, and sale of intoxicating liquor. Article 47 of our Constitution states that the State shall endeavor to bring about prohibition of the consumption of intoxicating liquor and of drugs, which are injurious to health. Control of sale of alcohol is in fact the constitutional compulsion. (State of Bombay v. FN. Balsara, AIR 1954 Supreme Court - page 325). In the year 1967, the Cochin Abkari Act, which in form and content is similar to the Madras Abkari Act and the Travancore Abkari Act, was extended throughout the State, with necessary amendments. The Police Act was amended to provide for enhanced penalties for being under the influence of drink and incapable of taking care of oneself and for disorderly, riotous or indecent behavior after being drunk, in a public place or street.

Over the years, revenue from excise has been one of the major sources of income of the Governments of the day in our country. Though revenue from excise was on the increase so were the banal effects of alcoholism. The Government in their Abkari policy for the Year 1997-98 decided to make offences relating to manufacture, export, import, transport, transit, possession, storage, distribution, bottling or selling liquor in any form, without permit or license, cognizable, non-bailable and non-compoundable and also to enhance the punishment for offences under the Abkari Act. The Government felt that low fines, soft sentences, and the compoundable nature of offences were the reasons for the unabated increase of violation of excise laws.

Despite their laudable objects, prohibition acts have seldom succeeded. Almost all the attempts in the western society to curb the excessive consumption of alcohol ended in failure. The Volstead Act (Prohibition Act in U.S.A.) was repealed since the Act did not achieve its purpose; on the contrary, it paved way for the rise of the American Mafia. In our State even after the enactment of laws, prescribing stringent punishment illicit trading in spurious liquor goes on unabated. A huge number of cases under the Abkari Act are pending in the Session's Courts in our State especially in southern Kerala, which indicates that the amendments introduced in 1997, have had little or no impact on this drunkard making business. There are innumerable numbers of reasons for this, but primary reasons are few. The most obvious reason is the desire of the common person to get inebriated with the cheapest form of intoxicating substance available. Sale of liquor generates huge profits and it lures those in search of easy money. Committal proceedings take time; session's trials are time consuming and therefore it fails to make an immediate impact on the offender. Above all, there is the failure of the investigating machinery: the loopholes they create provide easy escape route to the offenders. Investigation and Enquiry under the Abkari Act has to be toned up and for this Abkari officers must be made aware of their powers and duties.

Toning up Investigation and Enquiry under the Abkari Act

The term Abkari Officer is defined under Section 3(2) of the Abkari Act. Under Section 3(2) of the Abkari Act, an "Abkari Officer" means the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5. Under Section 4(d) of the Abkari Act, the Government has the power to appoint officers to perform the acts and duties mentioned in Sections 40 to 53 of the Abkari Act. Under Section 4(e), the Government has the power to appoint subordinate officers of such classes and with such designations and confer power. Under Section 4(f) the Government has the power to order that all or any of the powers and duties assigned to any officer under clauses (d) and (e) of this section shall be exercised and performed by any (Officer of Government) or any person. Under Section 4(g) of the Abkari Act, Government has the power to delegate to any Abkari Officer all or any of their powers under this Act.

With reference to the Police Officers and Revenue officers Government has issued SRO No.321/96, which reads thus

"In exercise of the powers conferred by section 4 of the Abkari Act, 1 of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the sections aforesaid."

A police officer conducting search and seizing materials must be working in the general executive branch of the police department. Search and seizure must be conducted within the local limits of the police station to which he or she is posted. A police officer cannot search a place, which is not within the local limits of his jurisdiction. Search and seizure by an officer who has not been conferred power cannot form the basis of a valid charge. (Roy. V.D. v State of Kerala 2001(1) KLT 86). In the case of search and seizure by an empowered officer of the excise department, there is no territorial limit of jurisdiction. The last paragraph of the relevant notification only stipulates for the immediate production of the arrested offender and the seized article before the excise officer having jurisdiction.

The Government should amend the notification relating to police officers suitably, deleting the provision limiting their territorial jurisdiction.

In K .L. Subbayya v State of Karnataka, (AIR 1979 SC 711) the excise officer, had not made any record of any ground on the basis of which he had reasonable belief that an offence under Section 34 of the Mysore Excise Act was being committed, before proceeding to search a motor car. Interpreting section 54 of the Mysore Excise Act, which corresponds to Section 31 of the Kerala Abkari Act, Hon’ble Supreme Court, held that the violation of the provision rendered the search completely without jurisdiction and, as a logical corollary, vitiated the conviction. An officer conducting the search either under Section 42(1) of the NDPS Act or under 41(2) of the said Act has to record the grounds of his belief in case the search is to be conducted between the sunset and sunrise. If the officer fails to do so, then the search becomes illegal and such action would vitiate the prosecution and consequently the conviction. (State of Punjab v. Balbir Singh, AIR 1994 SC 1872). In State of Punjab v. Baldev Singh (AIR 1999 SC 2378) the Constitution Bench of the Supreme Court held that an illicit article seized from an accused during search conducted in violation of the safeguards provided in the NDPS act cannot be used as evidence of proof of unlawful possession of contraband on the accused. However, any other material recovered during that search may be relied upon by the prosecution, in other proceedings against the accused, notwithstanding the fact that the recovery of that material was made during the illegal search. The word Police Station Officer is the same as Officer in charge of the Police station appearing in Section 2-(O) of the Code of Criminal Procedure. Officer in charge of the Police Station includes, when the officer-in-charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present. A clerk attached to a police station and in charge of it, when the Sub-Inspector and other senior officers are away on other duty is an "officer in charge of the police station. (Pyli Yacob v. State, ILR 1952 TC 937). The officer next in rank at a police station, but above the rank of a constable, will be officer-in-charge of the police station, during the absence or illness of the officer-in-charge of the police station. (Naginlal Nandlal v. State of Gujarat, (1962) 1 Cr. L.J. 142] An officer of the Railway Protection Force is not a 'police officer', even though he may exercise all the powers of an officer-in-charge of a police station. (Superintendent and Remembrencer of Legal Affairs v. D. Surya Rao, AIR 1969 Calcutta 594). Nevertheless, even in the absence of the officer-in-charge of a police station the police officer next in rank at the police station may be regarded as the 'officer-in-charge of the police station'. The officer-in-charge when he goes out on tour does not cease to be 'officer-in-charge of the police station'. He will still be 'officer-in-charge of the police station'. (Code of Criminal Procedure Sohoni page 52) (Badaku Joti v. State of Mysore, AIR 1966 SC 1746 at 1750).

Quite often the question arises whether the Assistant Sub-Inspector of Police has power or not, under the Abkari act to conduct search and seizure. The answer is yes. Under sub-section (2) of Section 13 of The Kerala Interpretation and General Clauses Act where an Act confers power or imposes duty on the holder of an office, as such, then unless the contrary intention appears the power may be exercised and duty may be performed by the holder of the office for the time being or by any person duly appointed to act for the holder or to be in charge of the powers of that office. The ASI of Police has been duly authorized to exercise all the powers of SI in GO (MS) 217/73 DT19-12-73. In view of Section 13(2) of the Kerala Interpretation and General Clauses Act, such authorization is sufficient to confer powers of seizure on the ASI to exercise the powers of search and seizure in accordance with Section 31 of the Abkari Act. (Hassan v. State of Kerala 1989 KLT 58). Abkari Act has conferred power on the holder of the office namely the SI as such. The ASI has been duly appointed to exercise all the powers of the SI. Consequently, by virtue of the notification cited supra the ASI could conduct search and seize articles under section 31 of the Abkari Act.

However, the police officer conducting search and seizing materials must be working in the general executive branch of the police department. Search and seizure must be confined to the local limits of the police station to which he or she is posted. A police officer cannot search a place, which is not within the local limits of his jurisdiction. Search and seizure by an officer who has not been conferred power cannot form the basis of a valid charge. (Roy. V.D. v State of Kerala 2001(1) KLT 86). Quite often police officers unaware of these technicalities conduct search and seizure overlooking them, which ultimately results in acquittal of offenders. Sometimes chemical analysis reports are not made available. Merely trusting to the smelling sense of the prohibition officers, and basing conviction on an opinion expressed by those officers cannot be justified. In such a case better proof by a technical person from a scientific point of view, is not only desirable but is even necessary to establish that the article seized is one coming within the definition of 'liquor'. The fact that the accused have not effectively challenged the answers given by the prosecution witnesses that the commodity is arrack will not absolve the prosecution from establishing the ingredients of the offence, for justifying the conviction. (State of A.P. v. Hadiga Prasanna & Ors. AIR 1967 SC 1550). (State of Kerala v. Sreedharan 1965 KLT 1002). Investigating officers must be made aware of the subtle technical nature of investigation and prosecution of offences under the Abkari Act. Proper investigation is indispensable and therefore training should be imparted to Police officers.

Conflict regarding application of Section 55(a), 58, and Section 8 of the Abkari Act and the provisions in the NDPS Act

There are three sections in the Abkari Act, which stipulate punishments for possession of illicit liquor. First section is section (8) of the Abkari Act. Another one is Section 55(a) of the Abkari Act and the third section, which provides for punishment, is Section 58 of the Abkari Act. There has been divergence of judicial opinion by different single benches as to which section is appropriate for a given case. Careful reading of section 8 could indicate that Section 8 contemplates a situation where a person possesses arrack in any form. It does not apply to any other form of alcohol. In Prasanth v. State of Kerala, 2002 (1) KLT 628, it was held by the Hon'ble High Court that possession of beer is not an offence u/s.8 inasmuch as it relates only to possession of arrack in any form. Arrack has been defined in the Abkari Act and beer is not a form of arrack as per the definition.

The conflict regarding application of Section 55(a) and 58 has been resolved by the Division Bench of the Hon'ble High Court in Surendran v. Excise Inspector, 2004 (1) KLT (404). S.55(a) applies when a person is in possession of liquor while importing it whereas when the case is of mere possession of illicit liquor, the case would fall under S.58. The Division Bench further observed that if the view as taken in Meenakshi's case (1995 (1) KLT 738) is accepted the result would be that when a person is in possession of liquor with the knowledge that it has been unlawfully imported, transported, manufactured or that duty etc. has not been paid, the sentence would be less whereas in a case where there is mere possession, without any knowledge of any other illegality, the sentence would be higher. Such an intention cannot be attributed to the Legislature. Innocent possession cannot be a more serious offence than possession with the knowledge of illegal import etc. Thus, 'when a person is found in possession of liquor in the course of import, export, transport, or transit of the goods, the case falls within the ambit of S.55 (a) only. In case the possession is merely with the knowledge of the goods having been illegally imported or manufactured, the case would fall within the mischief of S.58. Thus, the Legislature is providing for penalty in a case where a person illegally imports alcohol. S.58 makes the "possession of illicit liquor" culpable. Resultantly, it is clear that when a person is in possession of liquor while illegally importing it the case would be covered under S.55 (a). In a case where the possession is of illicit liquor the case would fall within S.58 (Paras. 9 & 10 Surendran v. Excise Inspector)

Ganja under Section 2(iii)(b) of the Narcotic Drugs and Psychotropic Substances Act is only the flowering and fruiting tops of the ganja plant excluding the seeds and leaves when not accompanied by the tops. Other parts of the ganja plant come within the ambit of the term intoxicating drug as defined under the Abkari Act. Only the provisions of the Act as far as it relates to "ganja" as defined in Section 2(iii)(b) of the Narcotic Drugs and Psychotropic Substances Act stand impliedly repealed. (Sivadasan v. State, 2003(3) KLT 100). Possession of small quantity of leaves of ganja is punishable with imprisonment of a term not exceeding ten years and a fine of not less than One Lakh Rupees under the Abkari Act whereas a larger quantity of less than one kilogram of its fruiting and flowering tops invites only a lesser punishment under the provisions of the NDPS Act. All those who administer justice encounter this paradox. This is one of the very many anomalies, which calls for a new look at the penal provisions of the Kerala Abkari act. An ounce of illicit liquor cannot be considered more potent and dangerous to the society than less than one kilogram of flowering and fruiting top of the cannabis plant. Possession of small quantity of liquor should be made punishable by a lesser term of imprisonment and a smaller amount of fine. A magistrate court should try such offences. This will quicken the pace of trial and the cumbersome committal proceedings can be avoided. Of course, stringent conditions relating to grant of bail, the deterrent teeth of the Act, should be retained.

The penumbral areas of the various penal provisions often overlap. This makes the task of investigation and justice administration difficult. A thorough overhaul of the various provisions of the Abkari Act is therefore indispensable for combating the social menace of alcohol abuse. A large number of cases relating to the offences under the Abkari Act are pending trial in the Sessions courts. Even after the Amending Act of 1997, prescribing harsher punishment, there is no decrease in the number of offences detected. On the contrary, the sub-courts in the State are bogged down under the weight of alarming number of cases under the Abkari Act. Speedy trial and proper investigation is the only way out to curb the number of incidences of infraction of the Abkari laws. Above all educating the public, about the bad effects of alcohol abuse, can help to bring down alcohol consumption.

Sponsor's Address*

I have raised/sponsored this Gallery as a symbol of my affectionate respect to Advocate Sri Ayilliath Achuthan Nambiar, who was, primarily, my senior-in-law/ master-in-law, apart from being my father-in-law, a lawyer of impeccable integrity, indefatigable devoutness, incisive advocacy, everlasting earnestness, and, above all, perfect piety - a man married to the legal profession, marked as a relevant lawyer, who was behind my encouraging learning curve on advocacy; who had inspired and energised me.

Veteran yesteryear lawyer of Madras and Kerala High Courts for over sixty years, Sri. Achuthan Nambiar was considered to be legal profession's original material, who had made it to the very top of the profession, without falling flat on his face; courtesy and dignity personified; a lawyer who had spent a life-time of feisty independence, a principled lawyer, whose reaction was only a perplexed silence, even when a Judge consigned his pertinent arguments to the scrap heap, because he believed that the Judge is as impartial as an umpire's whistle. He never tried to grab the Judge. His advocacy was in the Upper Star category. His dreams were all about law. He used to scrutinise every legal aspect more closely than finger prints at a murder scene, for, according to him, legal profession was a continuing education. He searched for God in every brief. He was his own man. He lived a life on his own terms. Don't you think I am constructing an Ode to the family ties. For fear of being misunderstood because of our close relationship, I should not attempt to chronicle the dynamism, perseverance, will and wisdom of the great lawyer.

He made a gift of his only child, and a bequest of honesty and hard work, to me. I always carry the portfolio of his memories. Let this Gallery remind present-day lawyers that good alone is good without a name.

Gracias (Thank you).

______________________________________________________________________

*Delivered, on 22-2-2006, by Senior Advocate T.P. Kelu Nambiar, on the occasion of the inauguration of Advocate Ayilliath Achuthan Nambiar Gallery, (Senior Advocates' Chamber, High Court Building), sponsored by Senior Advocate Sri. T.P. Kelu Nambiar.

Are Judicial Magistrates Immediate Official Superiors of

Excise Inspectors? -- A Commentary on

Kamalasanan V. State of Kerala (2006 (1) KLT 380)

(By A.K. Radhakrishnan, Dy. Secretary, Advocate General Office, Ernakulam)

Legislature in its wisdom imposed deterrent punishment for many of the offences under the N.D.P.S. Act, 1985. S.35 of the Act incorporates the presumption on the part of the court regarding the existence of the mental state of the accused in respect of the offence whereas S.54 stipulates that in trials under the Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under the Act in respect of the narcotic drug etc. for the possession of which he fails to account satisfactorily. S.37 states that notwithstanding anything contained in the Code of Criminal Procedure, every offence punishable under the Act shall be cognizable. It also stipulates very stringent conditions for granting bail to the accused. Scrupulous compliance of the various procedure governing the arrest, search and seizure of the contraband is yet another aspect of the Act to safeguard the interest of the accused. Therefore, it is often stated that N.D.P.S. Act is quite different from other criminal statutes.

It is now well settled from various decisions of the Apex Court that the provisions of S.42 of the N.D.P.S. Act are mandatory (See (1994) 3 SCC 299. (2000) 2 SCC 513, JT 2002 (4) SC 68, JT 2002 (5) SC 1, JT 2004(7) SC 216 etc. etc.). The provisions are to be complied with strictly to repose confidence in the prosecution case. The contravention of these provisions would no doubt affect the prosecution case besides vitiating the trial.

S.42(1) of the N.D.P.S. Act gives power to an empowered officer (an officer superior in rank to a Peon, Sepoy or Constable) in this regard by either the Union or State Government to enter and search such building, conveyance or place wherein contraband is concealed and to seize the same provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the escape of an offender, at any time between sunset and sunrise after recording the grounds of his belief. Whereas 3.42(2) casts a duty upon the empowered officer to forward a copy of the information received by him which led to the search and seizure of the contraband which has been reduced to writing and also the ground recorded by him for his belief under the proviso to S.42(1) to his immediate official superior within seventy two hours.

Thus it could be seen that under Section 42(1) the empowered officer if has prior information given by any person, that should necessarily be taken down in writing and S.42(2) stipulates that such empowered officer who takes down any information in writing or records the grounds under proviso to S.42(1) should forward a copy thereof to his immediate official superior.

The Hon'ble High Court in the decision Kamalasanan v. State of Kerala reported in 2006 (1) KLT 380 while enumerating the grounds for upholding the judgment of the court below and dismissing the appeal filed by the accused had occasion to discuss the provisions of S.42(2) of the N.D.P.S. Act. The Hon'ble Court considered the question who the immediate official superior of the Excise Inspector who was empowered to search and seize the contraband and held that sending the communication of the recorded information under S.42(1) of the Act to the Magistrate must be reckoned as sufficient compliance with the mandate of S.42(2). The court also opined that superiority exists obviously because of the official functioned hierarchy though not departmental hierarchy.

It is true that under S.42(2) of the Act, it is not specifically stated that the report is to be sent to the immediate official superior of the Department concerned. What is stated is immediate official superior. But, it may be noted that the empowered officer under S.42(1) may be from various departments of the Central or State Governments. Suppose if the empowered officer is from the Central Excise Department; is he to send the report concerned to superior official of the Revenue Department? Certainly not. The report ought to be sent to his immediate official superior of the Central Excise Department. There may be any number of officials superior to him. But, he is not supposed to forward the report to a superior officer of his choice. He should send the report to the immediate official superior in his department and not to an officer superior to him in some other department. He is also not expected to act according to his whims and fancies. It would only complicate the matter.

The reason for introducing S.42(2) is to see that the lower level empowered officers are not misusing or abusing the power they have been entrusted with. It is to see that they are not harassing innocent ones and that the operation is proceeding in the right direction. It is also the intention that they are not fabricating or planting false case against innocent. Another laudable object is to prevent illegalities and irregularities by the empowered lower level officers. Legislature also thought that the superior official should be aware of the action of the lower level officers in his Department so that he could take immediate remedial action in suitable cases when the power or authority is misused. On receiving the report, the superior officer could also verify whether there were sufficient cogent reasons for belief of the empowered officers at the lower level. The function of arrest, search and seizure carried out under S.42(1) of the Act is by lower level officers who do not have warrants or authorisation with them before proceeding to detect the case. So, it is highly necessary that they must keep their superior informed. The superior officer must know the action taken by their subordinates so as to prevent harassment of the innocent. A Judicial Magistrate is not normally expected to indulge in such activities that are to be performed by the superior officer of the Department. Therefore, it has to be inferred that the immediate official superior is the immediate official superior of the Department concerned and not any other official superior.

In this context it may also be noted that in the case on hand, the Excise Inspector forwarded Ext.P3 search memo to the Judicial Magistrate not in his capacity as his immediate official superior but as the presiding officer of the court to which jurisdiction is conferred in the matter. In fact search memo is sent to the court concerned and the presiding officer is not receiving the search memo in his personal capacity as the immediate official superior of the Excise Inspector. It has also to be remembered that normally it is the original of the search memo that are sent to the court having jurisdiction and not its copy. (Though it is stated in para 30 of the judgment under reference that the Excise Inspector had furnished a copy of the recorded information (information recorded in Ext.P3 search memo) to the learned Magistrate; from para 3 of the judgment it is clear that Ext.P3 is the original of the search memo (having the information) that had reached the court). What S.42(2) stipulates is to send a copy of the report having the information etc. to the immediate official superior of the empowered officer and not its original. For this reason also, the search memo having the details of the information etc. sent to the Judicial Magistrate (Court) cannot be treated as sufficient compliance of the provision under S.42(2) of the Act that the empowered officer who acts under S.42(1) is to send a copy of the recorded information etc. to the immediate official superior.

In this context one more aspect is also to be looked into i.e., prefixing the word "immediate" to the term "official superior" under S.42(2) of the Act. Can it be said that judicial Magistrate is the immediate official superior of the Excise Inspector? It is doubtful in the context in which the word "immediate" is inserted. I think Parliament in its wisdom deliberately prefixed the word "immediate" to the term "Official superior" so that the empowered officers at the lower level are not confused on to whom the information etc, reduced to writing are to be sent. We have to interpret the terra "immediate official superior" in its natural and ordinary sense to determine the intention of the Legislature. In the ordinary sense it cannot be stated that a Judicial Magistrate is the immediate official superior of an Excise Inspector especially when we consider the fact that there are a number of officers superior to Excise Inspector in the Excise Department. So, Judicial Magistrate cannot be treated as the immediate official superior of the Excise Inspector.

It is in this context we have to see a very recent decision of the Supreme Court reported in 2005 (6) Supreme 623 (G. Srinivas Goud v. State of A.R). In that case the information regarding the contraband was received by the Asst. Commissioner of Prohibition and Excise. Prosecution had also exhibited search memo (Ext.PI) prepared by the Asst. Commissioner. Apex Court had held that as the search memo contained details of the information received by the Asst. Commissioner, there is sufficient compliance by the prosecution on reducing the information into writing and rejected the argument regarding not making note of the information. Supreme Court ultimately held that requirement under S.42(2) of the N.D.P.S. Act need not be extended to cases of arrest, search and seizure by officers of Gazetted rank. As already stated, in this particular case also Prosecution produced as Ext.(Ext.Pl) the search memo prepared by the Asst. Commissioner (detecting officer) having the details of the information he had received that reached the court. If the Apex Court was of the view that it is sufficient compliance of the provisions of S.42(2) of the Act. certainly the court would not have taken the pain to examine, analyse and decide that if the empowered officer under S.42(1) is a Gazetted officer, the provisions under S.42(2) ie., forwarding the report prepared by the detecting officer to the immediate official superior need not be complied with. On the other hand the Division Bench of the Supreme Court held that the requirement of informing the immediate official superior under S.42(2) of the Act has to be confined to cases where the action is by officers below the rank of Gazetted officers without authorisation. In the case of Gazetted Officers the provisions of S.42(2) cannot be insisted upon. The Apex court also observed that officers other than Gazetted officers must keep their superiors informed of their action and that the superior officer must know about the action taken by their subordinates. On a close scrutiny of the judgment we could see that there are sufficient hints that the information shall be sent to the immediate official superior of the Department concerned and not to other official superiors when the search etc. is being conducted by non-gazetted officers.

In the light of the discussion above it has to be stated that what the Legislature intended by sending the recorded information to the immediate official superior under S.42(2) of the N.D.P.S. Act is to forward the same to the immediate official superior of the Department concerned. Opinion to the contrary does not appear to be correct. 

Do They Deserve Honour and Dignity?

(By S. Gopakumaran Nair, Advocate, High Court)

The request of a designated Senior Counsel shall not go un-responded from the Bar. Senior Advocate Sri. T.P. Kelu Nambiar, in his article titled 'Lording Over: an anachronism", published in 2005 (2) KLT Journal P.39, invited readers of his said article to come out with their assertive response. In that article, quoting the practice prevalent in the United States, of the Judges of the High Court and Supreme Court being addressed by the Bar as "Mr. Justice" or "Sir" and citing the decision of the Full Court of the Hon'ble Supreme Court of India, Sri. T.P.K. has exhorted "Why are we, the Indian Lawyers, shy of discarding 'my-lording'?. Why should we presume that we are being lorded over?"

Encyclopedia Americana, as quoted by T.P.K. in his article, says 'Lord' is an English title of honour or dignity that is used in different senses. Is not the position of a Judge an honoured or dignified position? If it is, what is wrong in addressing the Judges of Superior courts as "my Lords" as a customary and conventional address? When we address them like that, we do not mean "Lord Vishnu" or "Lord Siva" or "Lord Christ". We also know our Judges are not Lords in the feudal sense of the expression. Why can't we take 'my Lord' as a conventional address bereft of flattery. It is only an institutional address and not an individualistic one. Therefore, there is no question of acclamation or flattery hidden in that address as apprehended by T.P.K. I do not think the Judges are enamoured by this address. Probably, if he is mean, a newly appointed Judge may have some sort of a hidden enjoyment and fascination when he is addressed as "my Lord" for the first few days on the dais. Thereafter, it becomes a routine, ornamental and mechanical address for such a Judge even.

The decision of the Full Court of the Indian Supreme Court shows the dignity of the Apex Court by not claiming the address of 'my Lord' as a privilege and a mandatory one. The Supreme Court said the Judges need only be addressed as 'Mr. Justice' or as 'Sir'. But, such an address, I am afraid, will be quite casual and lacking respect. The English language, the robes of Judges and advocates, the way of advocates addressing the court and each other and the very culture of mutual respect in the court room are all essential paraphernalia that keep and maintain the dignity and decorum of the Institutions of the Bench and the Bar. When the Institution is casualised, it may, in due course, transform into yet another public office, susceptible to all vices of casualness and intimacy.

What we should see is not to carry out such hypocratic or superficial reforms like changing the mode of address or the dress code etc., but to insist that only such persons who in fact deserve the address as 'my Lord' are elevated to the office, so that the quality and dignity of the justice delivery system could be maintained and preserved for the posterity too.

I may not be misunderstood as a conservative, antagonist to changes. I only mean that there is nothing so controversial or thought-provoking in that address and that we need not take it very seriously. It is true that though it is harmless, there is a problem of abuse of the address 'My Lord' by the members of the Bar. Some of us are using this expression every now and then, so as to pack our submissions with too many 'My Lords' and too little points. This style, it appears, is an import from the Apex Bar, but is awkward to listen to. There may be a tone of acclamation and flattery in such mannerism in addressing the Judge. It is a habit unknowingly acquired by some advocates over a period of years in the Bar, acquired sometimes from one's own senior.

My experience in the Bar is that most of the Judges are unconcerned about the way of addressing and other formalities. Most of us use only very few 'my lord' during our arguments by habit. But that does not matter. Normally, a Judge would be concerned that he should not be insulted by the Bar, though not respected. Courts have become more and more casual nowadays and Judges have turned to be informal and friendly. We have no more tyrant Judges as we have heard of the last generation. Only seldom Judges get irritated by the casual form of submissions. I had such a rare experience recently:

While arguing for admission of an appeal, I casually submitted that "Your Lordship may admit the matter and direct the Government Pleader to file a counter affidavit if he is opposing my averments. Your Lordships would see the Government stand and then decide the appeal". To my surprise the Senior Judge retorted: "Is it a command or a request?". I got baffled for a second because of my unfamiliarity with the Judge and since there was nothing disrespectful in my above submission. Left to the Judge also, he is an informal, friendly and non-interfering Judge. It was my turn, I replied; "How could it be a command?. It is only a request. This is my normal way and tone of submission. For clarity I make myself loud and audible". Then the Judge smiled. But I knew that he was irritated and offended. I continued my submissions and added: "I pray that your Lordships may kindly admit the appeal and direct the Learned Government Pleader to meet my contentions by filing a Counter". I corrected my mistake, if casualness is a mistake. The words "pray", 'kindly' and 'learned' solved the problem and saved the situation. But my appeal was not admitted, not because of my casual submission, but because of the inherent weakness of the case.

What all problems Indian judiciary have to solve? What all improvements Indian Bar has to bring in to compete with their global opponents? When compared to these mammoth problems, issues like the mode of addressing the Judge, changing the dress code etc. are only superficial, by resorting to which we are not going to gain anything substantial on quality improvement. We cannot make everything equal. Sense of equality should be in one's own mind, not by challenging innocuous traditions. If we are challenging conventions, why should there be a Senior Counsel? and why should there be a right to pre-audience to them in courts? All advocates are equally qualified law graduates and we know there are more learned advocates among us than some of the designated Senior Counsel. All successful advocates cannot be made and recognized as Judges. Therefore, senior gown is a recognition given by the Bench to those deserving advocates on a combination of several factors like standing, learning, personal integrity, professional and social reputation, leadership quality etc. and the Senior Counsel draw respect from the Bench and the Bar equivalent to Judges and in many cases more.

It may be true, too much of respect and paraphernalia may misdirect some Judges and may lead them to have a larger-than-life image. But, I am sure, Judges, who have seen life in all its perspective are not enamoured by the mode of address or the artificial respect shown to them. They know that it is only a ritualistic address, but not hollow; the one that anybody, who adorns that Chair, is entitled to. Therefore let us not for the time being labour about changing the present form of address and address them as "Sir" or "Mr. Judge" as if we are addressing a UD Clerk, or a Superintendent in a Public office when we approach them for a favour. By addressing them as 'My Lords' they are not becoming real heavenly Lords and we are not becoming hapless devotees praying before them with folded hands for their mercy.

Barrister M.K. Nambyar : Lawyer Nonpareil

(By T.P. Kelu Nambiar, Senior Advocate, High Court of Kerala)

It was he who invoked Article 32 and interpreted Articles 19, 21 and 22 of the Constitution of India for the first time; you know who. One does not seek the name of the rose.

Meloth Krishnan Nambyar, was M.K. Nambyar's name in full. Nobly born, and nobly remembered, is Sri. M.K.Nambyar. It is not my intention to pluck leaves from M.K. Nambyar's personal life. My attempt is to gather flowers from M.K. Nambyar's professional courtyard, and to project the colours of his canvas of advocacy. I am impelled by the impetus of M.K. Nambyar's inexorable journey towards advocacy immortality.

On 20th March 1950, two Nambiars made their entry in the newly constituted Supreme Court of India, (constituted on January 26,1950), one in the Registry and the other in the court hall. The former was the political detinue A.K. Gopalan, whose name in full was Ayilliath Kuttieri Gopalan Nambiar, and the latter was Senior Advocate M.K. Nambyar. The Full Court of the Supreme Court, all the then six learned judges, sat on a Constitution Bench, and heard the case A.K. Gopalan v. State of Madras. Six elaborate separate judgments were rendered on May 19, 1950. A.K. Gopalan was the sixth case reported in AIR 1950 Supreme Court, beginning at page 27 and ending with page 124; marathon indeed Kania C.J. started the leading judgment, by observing: "This is the first case in which the different Articles of the Constitution of India contained in the Chapter on Fundamental Rights has (sic.) come for discussion before us. This Court is indebted to the learned counsel for the applicant (Sri. M.K. Nambyar) and the Attorney-General (Sri. M.C. Setalvad) for their assistance in interpreting the true meaning of the relevant clauses of the Constitution".

Patanjal Sastri J. started thus: "This is an application under Art.32 of the Constitution of India......., and it has the distinction of being the first application invoking the guaranteed protection of this Court as the guardian of Fundamental Rights against alleged infringement of the petitioner's right to freedom of movement. As the case involved issues of great public importance and breaking of new ground, it was argued with thoroughness and ability on both sides, reference being made to more or less analogous provisions of the Constitutions of other countries and in particular the Constitution of the United States of America".

In "My Life, Law and Other Things", M.C. Setalvad wrote that in Gopalan's case "the petitioner was represented by M.K. Nambyar who in presenting his first argument in the Supreme Court showed himself to be an able constitutional lawyer".

Gopalan was the starting-block of M.K. Nambyar's professional/advocacy marathon, (his first appearance before the Supreme Court ended in golden-duck, though, his passport to advocacy was stamped by A.K. Gopalan.). From 1950 onwards, for a long number of years, Sri. Nambyar was coping with the pressure of being a front-runner super-lawyer in India, with his commanding advocacy; a story of incredible evolution, indeed. He lived a life on his own terms. He was too good for any lawyer of his time. He walked the courts as an invading viking. Believe it or not, I have not seen a more competent lawyer than M.K. Nambyar, who advanced value-added and sophisticated arguments. Sri. Nambyar used to make ground-breaking research in the law applicable to each case he argued. Even long after his death, he has not lost his position as the leading lawyer of India.

M.K. Nambyar's greatest possession was self-possession; and self-assured, he was. He was a man of amiable disposition. An embodiment of grace, and an exemplar of legal tradition, Sri. Nambyar's argument was a unique blend of law and language. He was a lawyer with a professional tongue, careful and meticulous in addressing the judicial ears; committed to traditional style of advocacy; a representative of a grand tradition; a symbol of sustained excellence in the field of law. You see a combination of form and function in Sri Nambyar; arguing with velocity and control; no bouncer argument; clarity in presentation was his style. Confidence was not in short supply for him. M.K. Nambyar was a lawyer who never lied to himself. He never mixed profession and pleasure. M.K. Nambyar variety of lawyers is as rare as coelacanth. Perhaps there are greater lawyers waiting to be born.

Judges received more from M.K. Nambyar than they could give him. Several judgments, rendered in the cases argued by him, set precedents and created jurisprudence. Sri Nambyar had interacted with the brightest judicial minds. Let every lawyer feel proud of his identity.

M.K. Nambyar was a dutiful opponent. Silence, on provocation, was his mother tongue. A lawyer with expandable memory, Sri. M.K. Nambyar never indulged in extravagant arguments. I felt like hearing the argument of a life-time, when I first heard M.K. Nambyar arguing in the Madras High Court, which I vividly remember. Untiring in effort and diligent in approach, M.K. Nambyar had been a remarkable practitioner of his profession. His style of argument defied imitation. His capacity for sequencing, separation, preparation and safeguards, is unique.

A legend in his life-time, Sri. M.K. Nambyar has left his legacy, Senior Advocate Sri K.K. Venugopal, who remains a legend; who perpetuates his father's memory by instituting an endowment for M.K. Nambyar Memorial Lectures, under the auspices of the National Law School of India University, Bangalore, as a tribute to his professional contribution to the development of constitutional jurisprudence.

I should not conclude without remembering that important day, in January 1956, and the only day in my life, on which, as a 'duckling' junior to my father-in-law Advocate Sri. Ayilliath Achuthan Nambiar, I appeared in the High Court of Judicature at Madras, with shivering frame and quivering voice, against Sri. M.K. Nambyar, in a Civil Miscellaneous Petition in a Second Appeal, for the respondent, before Mr. Justice Basheer Ahmed Sayeed. I had succeeded in obtaining the usual order directing the petitioner-appellant to deposit the mesne profits. That was real thrill for a mere senior-gazer at that time, I cherish the memory of the privilege, whereof I proudly blow now (in 2006) the Golden Jubilee 'yobel.

Kerala High Court Golden Jubilee 'Yobel'

(By T.P. Kelu Nambiar, Senior Advocate)

The Jubilee Year has dawned. 2006 deserves to be flagged as an exceptional year . Whosoever is in charge, it's time to get serious and to blow the' yobel' to hail the Golden Jubilee of our High Court, a felicitous reminder of the glorious past, with 'nostos' unlimited. On November 1, 2006, the High Court of Kerala, the intellectual capital of the State, and Kochi' s most happening place, completes a half-century. Let us thank God with smashed coconuts. Let us expect a splendid Golden Jubilee, as, on the Jubilee Day, we would have moved into the imposing Romnanesque showpiece, that is the tall, heavy, new High Court building, which stands in solitary majesty, leaving behind a floor that is dotted with immortal footprints of great Judges, like Chief Justices Koshy, Ansari, M.S. Menon, Sankaran, Raman Nair, Raghavan, Govindan Nair, Poti, Bhaskaran, and Justices Vaidyalingam, KumaraPillai, Varadaraja Ayyangar, Anna Chandy, Chandrasekhara Menon, Janaki Amma and lawyers like Kuttikrishna Menon, Achuthan Nambiar, Sundara Iyer, Suryanarayana Iyer, Krishna Warrier, Taikad Subramonia Iyer, Sivasankara Panicker, Kalathil Velayudhan Nair, Easwara Iyer, Venkiteswara Iyer, and scores of contemporary giants of the qualified noble faculty, and several superstars, without the celebrity tag, who walked with prominent foot-prints, adhering to institutional discipline and grammar of advocacy, without an 'us-varsus-them, affair between the Bench and the Bar. The dynamic tradition never stopped; it nourished, shaped and furthered. Let us count the portraitshung on the walls of the Judges Meet Room, as also on the walls of the Advocates' Association Hall, in adoration. Let us pledge to showcase our ability on the Jubilee Day; and contrive a juridical museum; and bring out an impressive encyclopaedia of the High Court of Kerala; and let us hope that this would invite a fabulous response. It bears repetition to stress the point that we should ignite the celebration rightly rejoicing over our glorious past, remembering that the legal profession was not born into any caste.

In his Silver Jubilee Thoughts, in 1981, Acting Chief Justice Subramonian Poti had traced the history and tradition of the High Court of Kerala. So did, retired Chief Justice M.S. Menon, when he spoke, not in person, but through tape, on the occasion of the Silver Jubilee. They referred to the Chief Courts of Travancore and Cochin, which later came to be known as the High Court of Travancore and the High Court of Cochin; the Travancore-Cochin High Court; and the High Court of Kerala, on the State Reorganisation in 1956. The first Chief Justice of the Kerala High Court, Sri. K.T. Koshy, in his speech on the occasion of the inauguration of the High Court, in November 1956, also had referred to, and explained, the amalgam of the Kerala High Court. I am provoked by pride to say, I was there, an unknown journeyman in the profession at that time. Acting Chief Justice Poti had hoped "that the enthusiasm generated by the (Silver Jubilee) celebrations and the sense of fellowship and purpose created by the close association by all sections of the people in the Jubilee Celebrations may inspire them to take up a post-Jubilee project of immediate concern to the legal profession and the Courts". Retired Chief Justice M.S. Menon, in his proud and characteristic words, had complemented: "So long as the Court is endowed with Judges like Mr. Poti - able, erudite and dynamic - and the Bar of Kerala - the only family I know - continue to be the champion of our liberties, I for one will have no fears for the future". Chief Justice Koshy had promised: "This High Court will hold the scales fairly, not merely between man and man, but between all manner of men, however high or however low they may be". The learned Chief Justice believed, there is only one God for all. The Kerala Law Times, the very respectable premier Law Journal of the State, and Kerala Judiciary's Legal Remembrancer, had, on the formation of the Kerala State and inauguration of the High Court, pledged, with confident courage, that it shall be their "sincere and earnest endeavour to make the journal a channel of service to the cause of the administration of justice in the times through which we live". And they have fulfilled their promise, and more, for their sole aim is service.

The Bench and the Bar should vow to make the justicing system perfect, without waiting for the day after tomorrow.

Let justice be done, though the heavens should fall. But, not the 'Fiat justitia, ruat coelum' of Piso. For, the story goes, as narrated in 'Dialogues': Piso sentenced a soldier to death for the murder of Gaius. He ordered a centurion to execute the sentence. When the soldier was about to be executed, Gaius came forward himself alive and well. The centurion reported it to Piso. Piso sentenced all three to death; the soldier, because he had already been sentenced; the centurion for disobeying orders; and Gaius for being the cause of the death of two innocent men. Piso excused it by the plea, 'Fiat justicia, ruat coelum'. Lord Denning had to lament for taking as his motto in his coat of arms, Fiat justitia. Let there be a serious consideration of the question whether the panel behind the Judges in the Chief Justice's Court should be refixed in the Chief Justice's Court in the new building.

Persons, like me and Advocate Smt. T.D. Rajalakshmi, at that time young, energetic and enthusiastic, were in the thick of the Silver Jubilee Celebrations. But today, some of us stand on the threshold of the seventh age of Shakespeare,

"Second childishness, and mere oblivion,

Sans teeth, sans eyes, sans taste, sans everything."

I should not conclude without referring to that vibrant personality, the Hotensius - like, law-eater, lawyer, who was the force behind the Silver Jubilee Celebrations. That was the then Additional Advocate General T.C.N. Menon, who had realised the importance of being T.C.N. We have to go scouting for a T.C.N. Menon - like to be in charge of the Golden Jubilee Celebrations.

Let us resolve, with unalterable determination and unshakable faith, to make the Golden Jubilee Celebration a worthy, memorable event. And let it be virtuous to be obstinate in this regard. Let us strive to beat our expectations with impressive performance.