"ARRACK" MEANS ANY "POTABLE" LIQUOR

(By Abhilash Joseph, Advocate, Kalpetta)

In prosecution under Ss.55(a) and 8(1) of Abkari Act, when it is alleged that the accused manufactured, imported, exported, transported, transited, possessed, stored or sold 'arrack' the proof that the seized liquid is 'potable' is highly necessary. In Statements of Objects and Reasons of Act 4 of 1996, it is discussed that in the old Statute, the term "Arrack" is not defined. So definition given. The definition for Arrack as per S. 3(6A) is "Arrack means any potable liquor other than toddy, beer, spirits of wine, Indian made spirit, foreign liquor and any medicinal preparation containing alcohol etc.........." The Act 4 of 1996 has redefined the word 'Spirit' also. There the words "whether it is denatured or not" are deleted. Since denatured spirit is not a potable liquor, it will not come under the purview of the Abkari Act. In the definition for liquor also (S.3(10)) "methyalated spirit" has been substituted by work 'arrack' by S.2(c) of Act 4 of 1996. So the intention of the Legislature is to exclude everything which are not potable or unfit for human consumption from the purview of Abkari Act for circumscription. So the proof that the liquid seized from the accused is potable or fit for consumption bears high importance.

Nowadays in the trials for offences under S.55(a) or 8(1) of Abkari Act, the prosecution does not furnish proof for the above. In the investigation also this is ignored. In the certificate of Chemical analysis which is admissible in evidence under S.293 Cr.P.C. also, it is not mentioned that the liquid tested is fit for human consumption of 'potable'. In that certificate, the Analyst usually furnish details on the physical appearance, smell and tests for the presence of ethyl alcohol and percentage of ethyl alcohol in the sample. From that data it cannot be conclusively presumed that the sample is potable. They are not conducting any tests for substantiating it also. Moreover the proof for the fact that something is potable and something is noxious are different. All liquids containing or consisting alcohol need not be potable and need not be noxious also. As per definition given for 'Liquor in S.3( 10), even sewage water mixed with any alcohol will become liquor.

Remembering Chief Justice M.S. Menon

(By P.M.G. Menon, Ernakulam)

Ex Chief Justice M.S. Menon is no more. I mean his mortal form has faded away into Heaven. His immoral qualities of head and heart shall remain indelibly emblazoned on the annals of the Kerala High Court for ever. He was not an individual. He was an institution by himself as an inseparable part of the High Court itself.

M.S. Menon excelled his kind in every respect. As a lawyer he was brief profound, precise and persuasive. On fundamental principles he was almost a Law-Lexicon. He identified Law with Logic so much that he expounded the Law for the common man. His control over the Court-Language, English, was unequalled. He always got the Court's best attention, esteem and appreciation. No Judge gladly disagreed with his submissions.

As a Judge he had few equals anywhere. He held his court almost literally as his exclusive audience. His discussions were studies in themselves and an education for the upcoming lawyers. Never one unpleasant or embarassing word, ever smiling, he used to wade through complicated issues with an ease and charm all his own. He fulfilled his official oath to the very letter. He was the one and perhaps the only Judge, who reminded all concerned that "Judgment" is defined both in the C.P.C. and in the Cr. P.C. He would never use judgments for verbal exuberance. The opinions he handed down have been the ultimate excellence in judicial standard. He shunned "judicial activism" as we know now, outside the Law as it stands. He never usurped the functions of the Legislature. He stood firm on the basic principle that Judges make Law only by interpretation and never by misusing their personal views on the issues involved. As a Judge he imbided all the exceptional ingredients that should go with the job. He loved good company. He preserved the exact degree of detachment. He never even once stooped to dilute the status of a Judge with the less honoured and honourable enquiry commissions. He rightly believed in the doctrine "once a Judge always a Judge". He lived and died as a highly respected, admired and loved Chief Justice and ever as an example of dignity impeccable transparency and rectitude.

And now as a gentleman he remained supreme. His circle of friends was very wide, varied and distinguished. His ready wit, choice vocabulary and 'bon mots' were always an attraction. He could never stand isolated. He was the cynosure in every crowd. He could discuss every subject with convincing clarity and competence. His general knowledge was wide and precise. He could hold forth on the faults and failings of his colleagues on the Bench and at the Bar with equal felicity in English and Malayalam. He could enjoy a joke at his own expense, without offence. He was an exceptional gentleman who enjoyed every second of his existence without a mean or a sinful thought in his ever sparkling mind.

His personal frugality was proverbal. But when it came to charity, he was again unequalled for his magnanimity. Many families owe their upkeep to his charity. All those, who served him and who turned to him for help got it. He expected nothing in return. His Law Firm, Menon & Pai, is itself an example of how much importance he gave to helping others to come up in life. Without a family of his own, he maintained much larger ones of many others as his dependants.

To me he was almost an elder brother. Even until a few months ago, when he fall ill, we were in regular correspondence. His replies were prompt. We shared all our mutual feelings and opinions on personal and public affairs. I now face a blind wall in having no more to write to "Aranyaka", Palli vasal, Munnar and enjoy the intellectual exercise.

My loss is irreparable. But the thought that his sufferings are over reconciles me to the loss of an abiding friend, brother, philosopher and guide of over 45 years. May God rest his noble soul. His Will be done.

On Retirement of Hon'ble Justice Thomas

Haresh A. Raichura, Advocate, Supreme Court

News spread from East to West

And from North to South

that he too has retired.

When the news reached in jungles,

A small sparrow wondered,

'Who will protect me tomorrow?'

When the news reached in prison walls,

An inmate wondered,

'Where will forgiveness live tomorrow?'

When the news reached to juniors,

Some juniors wondered,

'Who will help us tomorrow

to see through

Our own foggy thinking?'

When the news reached to seniors,

Some seniors wondered,

'Why are we unable to find words

To express our loss?'

And when the Judge reached

Near the mountains,

He climbed down from his horse,

And looked back at the jungle

he had just crossed.

Then he looked at the mountains,

And whispered to himself,

I have mountains to move

before I sleep'

Consecutive Sentence is the Rule : Concurrence is only Exception

(By Dinesh M. Pillai, Advocate, Kattappana)

In the Article 'Concurrent and Consecutive Sentence', published in 2001 (1) KLT Jnl. 67, the Learned Author is trying to draw a conclusion that consecutive prison sentence is alien to Criminal Law and that on the pronouncement of the judgment, the imprisonment starts to run.

The above view is not taking into consideration, the very object of imposing punishments under the Criminal Law and also the various provisions under the Code of Criminal Procedure, like Ss.31, 417 to 431, Ss.53 to 75 of the Indian Penal Code and the relevant Rules under the Criminal Rules of Practice.

The mere reading of the above said provision will convince that the views of the Learned Author that 'there is no provision of Law, which specifies when a sentence of imprisonment shall commence and that the same starts on the moment on which judgment is pronounced; and that the consecutive prison sentence is unknown to the Criminal Law and illegal' are not correct.

Sub-s.1 of S.31 of Crl. P.C. provides that when a person is convicted at one trial of two or more offences, the court may sentence him for such offences to several punishments, such punishments when consists of imprisonment, to commence one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

So it is clear that when sentence of imprisonment for more than one offence, ordered for distinct offences in a single trial, the rule is to inflict the same consecutively ie., to commence one sentence after the other in such order as the Court directs and the concurrent sentence is only an exception, for which separate direction of the convicting Court is necessary.

The Learned Author in his Article unnecessarily called for the assistance of S.389 of Cr. P.C. in his attempts to substantiate his view. The said Section, which deals with the suspension of the sentence pending the appeal, is having no relevance in the context.

The learned Author has also ignored Ss.417 to 431 of Cr. P.C, which are dealing with the execution of sentences of imprisonment by the Criminal Court. Under the Law, the Court which passes the sentence shall issue a warrant for execution of the sentence addressed to the concerned Officer in charge of the Jail, in which the prisoner is to be detained, specifying the mode in which the sentence is to be executed. The above referred Sections of Crl. PC also covers the contingencies, where the offender is a convicted escape, where the offender is already sentenced for another offence and imprisonment in default of paying the fine. All the above said provisions also say the prison imprisonment is to run consecutively, except in special cases.

In Sukumaran v. State of Kerala, 1993 (1) KLT 695, our High Court has made it clear that the substantive sentence and the sentence in default of fine are two distinct sentences and they cannot be made concurrent.

More over the concurrent imprisonment for distinct offences is not justifiable under any of the Schools of Law on the object of punishments under the Criminal Law and the concurrent running of imprisonment, if made a rule, will be having the effect of giving holidays to the offender from suffering the Court verdict. There will not be any difference in the mode of enjoyment of concurrent imprisonment by a prisoner for sentence under different offences and he may not be remembering for what offence he is undergoing the imprisonment.

As it is observed by the Hon'ble Supreme Court of India in AIR 1976 SC 392, 'the sentence in criminal case is a matter of discretion, subject to any mandatory minimum prescribed by the Law. In judging the adequacy of the sentence, the nature of the offence, circumstances to its commission, age and character of the offender, injury to the individual or to society and its effect on the offender are some of the things to be considered'.

I think that the Legislature has rightly placed the consecutive imprisonment as the rule and provided adequate discretionary powers to the Courts to order concurrent running of the same in appropriate cases.

The Repealing and Amending Act, 2001

Scope and Effect on S.138 of the N.I. Act, 1888 and all other Acts

Repealed by the Act

(By S.H. Jayakesan, Law Secretariat, Thiruvananthapuram)

Some misconcepts have been spread after the coming into force of the Repealing and Amending Act, 2001 (for short 'the Act') that dynamic provisions of law, like S.138 of the Negotiable Instruments Act, 1888 has ceased to be in force.

The Parliament has enacted the Act, for repealing a number of enactments and to amend some other enactments. As the Act intends to repeal a number of enactments, as also aims at amending some other enactments, it has got much significance, especially when we consider the existence of the provisions contained in the repealed Acts.

The Act received the assent of the President of India on the 3rd day of September, 2001. Though no commencement clause has been provided in the Act, by virtue of the provision contained in CI.(b) of sub-s.(1) of S.5 of the General Clauses Act, 1867, the Act shall be deemed to have come into force with effect from 3.9.2001, the day on which it received the assent of the President.

S.2 of the Act provides for the repeal of the enactments specified in the First Schedule to the extent mentioned in the fourth column thereof. S.3 of the Act provides for the amendment of certain Acts to the extent and in the manner mentioned in the fourth column thereof.

It is pertinent to note that the repeal in this case is a repeal of Acts making textual amendment in various Acts. In other words, the repeal does not cause in operation of the provisions in the amending Act concerned. Because the repeal has been saved under S.6-A of the General Clauses Act, 1867.

S.6-A of the General Clauses Act, 1867 provides that where any Central Act or Regulation made after the commencement of the General Clauses Act repeals any enactment by the express omission, insertion, or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.

Intention of S.6-A of the General Clauses Act can be illustrated as follows:

If Act 'A' is textually amended by Act 'B', the repeal of Act 'B' by Act 'C does not destroy the amendment, unless there is a different intention. In other words, the section means that the formal repeal of an Amending Act leaves unaffected the amendment already made, unless there is a different intention. When a subsequent Act amends an earlier one, in such a way as to incorporate itself or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act and the old words have to be scored out, so that, thereafter, there is no need to refer to the amending Act.

Generally, the textual amendment made in a substantive Act is formally repealed by "Repealing and Amending" Acts, which is an usual legislative process. Repealing and Amending Acts are enacted from time to time in order to repeal enactments which have ceased to be in force or have become obsolete or the retention whereof as separate Act is unnecessary. But even after such repeal, the provisions contained in the repealed Act will continue to be in force, unless a different intention appears.

So, as done in this case, though Act No. 66 of 1988, videlicet, the Banking, Public Financial Institutions and Negotiable Instruments (Amendment) Act, 1988 has been repealed by the Act, the provisions therein will continue to be in force. Same is the position in the case of all the other Acts, repealed by the Act.

In 1969 Ker. L R 1075 (1082), it was held that the object of the repealing and amending Act is legislative spring-cleaning and they are not intended to make any change in the law.

In AIR 1965 Madh. Pra 43 (47) it was held that the rule of construction with regard to the effect of amendment is that a statute amended is to be understood in the same sense exactly as if it had read from the beginning thus amended.

In AIR 1950 Mad. 287 (288, 289) it was held that Law made before continues good unless intention to change apparent.

So, unless and until, circumstances may disclose a different legislative intention, i.e., an intention that after the repeal of the amending Act, the amendment shall not survive, then only the provisions in the repealed Act would be affected.

Thus, in this case, though the Acts specified in the First Schedule of the Acts are repealed to the extent mentioned in column (4) thereof, in the absence of a different intention, the repeal will not in any way affect the continuance of the amendment made by the Acts so repealed and in force at the time of repeal, including S.138 of the Negotiable Instruments Act, 1888.