"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.

2001 (1) KLT 517 (SC) or 2001 (3) KLT 950 (SC) - Which will Prevail?

(By Baby Kurian, Advocate, Kottayam)

In the decision reported in KLT 2001 (1) KLT 517 SC = AIR 2001 SC 567 after perusing the scope and amplitude of S.29(2) of Cr.P.C. vis-a-vis sections 138 and 142 of the Negotiable Instruments Act, 1881, it has been held by a Division Bench of the Hon'ble Supreme Court consisting of Hon'ble Mr. Justice K.T. Thomas & Hon'ble Mr. Justice R.P. Sethi that a judicial Magistrate of the First Class, convicting an accused for an offence under S.138 of the N.I. Act, cannot impose a fine exceeding Rs.5,000/-

The above decision was made in C.A. 66 of 2001 before the Apex Court arising out of a complaint before a judicial Magistrate of the first class, where the accused was convicted and sentenced to undergo imprisonment for six months and a fine of Rs.83,000/-. In appeal the conviction and sentence were confirmed by the Sessions Court and a subsequent revision filed by the accused was dismissed by the High Court.

The matter came up in an SLP before the Apex Court and affirming the decision in 1999 (3) KLT 440 SC = JT 1999 (7) SC 558 = (1999) 7 SCC 510, rendered by a Division Bench (consisting of Justice K.T. Thomas & Justice M.B. Shah), the Court held that a Magistrate of the First Class cannot impose a fine exceeding Rs.5000 for an offence under S.138 of the N.I. Act. Disposing of the appeal the Court held: "in the result, while retaining the sentence of imprisonment of six months, we delete the fine portion". (2001 (1) KLT 517 SC).

But in a later decision reported in 2001 (3) KLT 950 SC, also by a Division Bench consisting of Hon'ble Mr. Justice K.T. Thomas & Hon'ble Mr. Justice S.N. Variava, it has confirmed, while examining the scope and extent of Ss.118 & 139 of the N.I. Act though, the conviction and sentence made by the Judicial Magistrate-II, Kumbakonam where the accused was convicted and sentenced under S.138 of the N.I. Act, imposing a fine of Rs.65,000/- and in default of fine simple imprisonment for one year. The Court held: "The conviction and sentence as awarded by the Magistrate by his order dated 21st March, 1994 stand. The first respondent is granted one month's time to pay the fine. In default thereof, he shall suffer imprisonment for 3 months".

While the decision in 2001 (1) KLT 517 SC restricts in unequivocal terms the power of a Magistrate of the First Class to impose a fine exceeding Rs.5,000/- for an offence under S.138, N.I. Act, the decision reported in 2001 (3) KLT 950 SC runs counter to it.

It is respectfully submitted that the former decision might have gone unnoticed in the latter decision or is it that since the former decision was rendered in the context of S.29(2), Cr. P.C. and Ss.138 & 142 of the N.I. Act but the latter in the context of Ss.118 and 139 of the Act only the former decision would prevail as far as the power of a Judicial Magistrate of the first class for an offence under S.138 of the N.I. Act is concerned?

It seems that the legal fraternity and the litigant public are in utter confusion and dilemma over the above legal position in the light of the above conflicting decisions made by two Benches of equal status of the Apex Court and hence it is highly desirable in the interest of justice that a clarification is made at the earliest.