Balakrishnan Nair, J.

The point that arises for decision in this batch of cases is the validity of the amendment to Rule 2(n) of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as "the Rules"), introduced as per S.R.O.No.144/2007dated 14.2.2007, published in the Gazette Extraordinary dated 14.2.2007 and also the notification issued by the Government as S.R.O. No.145/2007 dated 14.2.2007, fixing the strength of ethyl alcohol in different types of toddy and specifying other incidental matters. W.A.No.2867/2007:

2. This Writ Appeal is treated as the main case for the purpose of referring to the exhibits. This appeal is filed against the judgment in W.P. (C) No.24408/2007.

3. The brief facts of the case are the following: The appellant was the licensee of Toddy Shop No.1 in Thiruvananthapuram Excise Range for the abkari year 2007-08. He is the accused in Crime No.34/2007, registered by the Excise Inspector, Excise Range Office, Thiruvananthapuram, the 4th respondent herein. A sample of the toddy, sold from Toddy Shop No.1, was taken by the Excise officials on 3.5.2007. On chemical analysis, it was found that the sample contained 8.83% volume by volume of ethyl alcohol. A photo copy of the chemical analysis report dated 21.6.2007 is Ext.P2. Based on the said report, Ext.P1 crime has been registered against the appellant for the offence under Section 57(a) of the Abkari Act (hereinafter referred to as "the Act"). Prosecution is launched against him, mainly, relying on a recent amendment brought to Rule 2(n) of the Rules. A photo copy of the notification containing the said amendment is Ext.P3. On the strength of Ext.P3 amendment, the Government have issued a further notification, prescribing the maximum strength of ethyl alcohol as 8.1%, permissible in coconut toddy. A photo copy of that notification is Ext.P4. The appellant challenged Ext.P1 as also Exts.P3 and P4 in the Writ Petition. The appellant contended that the excess alcohol content found in the toddy is not a foreign ingredient, but a natural ingredient of toddy and therefore, the offence under Section 57(a) of the Act is not made out. Further, the percentage of maximum alcohol permissible in coconut toddy has been fixed without any scientific study or basis, in an arbitrary manner. Therefore, in view of the decisions of this Court in Unni V. State of Kerala [2003(3) KLT 306], State Of Kerala & Others v. Unni & Another [2005(1) KLT 714] and also the decision of the Apex Court in State Of Kerala & Others v. Unni & Another [2007(1) KLT 151 (SC)], Exts.P3 and P4 are invalid and the prosecution launched against him was liable to be quashed.

4. The respondents resisted the prayers in the Writ Petition, contending that the strength of the maximum permissible limit of ethyl alcohol in different types of toddy was fixed, relying on the standards fixed by the Indian Standards Institution. The said body is an expert agency and it has fixed the percentage after meticulous scientific study. The Government only followed the said prescription made by the Indian Standards Institution. The said prescription and also the covering letter of the Chief Chemical Examiner to the Government, mentioning about the alcohol content fixed by the Indian Standards Institution in toddy, were produced before the learned Single Judge along with a memo.

5. The learned Judge, after hearing both sides, dismissed the Writ Petition. Hence this appeal.

6. We heard the learned senior counsel for the appellant Mr.C.C.Thomas and also the learned counsel M/s. Dr.K.P.Satheesan, B.Krishnamani, S.Sreekumar, M.G.Karthikeyan, G. Krishnakumar, Joice George, B.Mohanlal, Renjith B.Marar, V.V.Nandagopal Nambiar, S.Sanal Kumar, Liji J.Vadakkedom & G.Sukumara Menon, appearing in the connected Writ Petitions. We also heard Mr.Renjith Thampan, learned Additional Advocate General and also Mr.M.R.Sabu, learned Government Pleader.

7. The learned senior counsel for the appellant took us through the relevant provisions of the Statute, Exts.P3 and P4 notifications and also the decisions of this Court in Unni v. State of Kerala (supra), State of Kerala v. Unni (supra). We were also taken through the decision of the Apex Court in State Of Kerala & Others v. Unni & Another (supra). The learned senior counsel made the following submissions: The Government prescribed the permissible percentage of ethyl alcohol in different types of toddy without any scientific basis. The prescription in the Rules was contrary to the prescription concerning the same in the Excise Manual, which said that the alcohol content in the toddy may go up to 12%, as a result of fermentation, whereas the Rule concerned said that the permissible percentage of ethyl alcohol in coconut toddy is 8.1. For Palmyra palm toddy, it is 5.2 and for Sago palm (Choondapana) toddy, it is 5.9. The said prescription made in the Rules was found to be arbitrary, irrational and unworkable by this Court and the Apex Court concurrently. Of course, permission was given for making a scientific study and also for making a proper prescription, based on the said study, by amending the law. But, without taking proper legislative steps and also without conducting any scientific study, the very same standards, which were found unsustainable, have, again, been re-introduced as per Ext.P4. So, the prescription made this time also is unsustainable in law. The materials mainly relied on by the respondents to sustain their action to prescribe the permissible percentage of alcohol is the report of the Indian Standards Institution. That report was very much available when the matter was earlier considered by this Court as also the Apex Court. So, it should be taken that this Court and the Apex Court considered those materials insufficient to sustain the Rules, it is submitted.

8. Further, the legislative attempt made to change the law is not efficacious to bring the offence, if any, committed by the appellant under Section 57(a) of the Act. The amendment of the Rules will not have any efficacy to support the action taken now by the respondents to prosecute the appellant under Section 57(a) of the Act. So, the learned senior counsel submitted that Exts.P3 and P4 should be declared as ultra vires and unauthorised by the provisions of the Act. If that be so, even if alcohol is found to have been added in the toddy, the offence under Section 57(a) of the Act is not maintainable. At the worst, he can be prosecuted only for the offence under Section 56(b) of the Act, it is submitted.

9. The learned Additional Advocate General submitted that though the specification of standard made by the Indian Standards Institution was available in 2003, the same was not brought to the notice of this Court or the Apex Court. The Indian Standards Institution has fixed the standard for toddy drawn from coconut palm. The maximum limit of natural ethyl alcohol in coconut toddy, according to the said Institution will be 8% volume by volume. So, to be on the safer side, prescription has been made under Ext.P4 as 8.1%,. The Indian Standards Institution is an expert body and its prescription can be relied on, like the prescription made after a detailed and meticulous study. It is also brought to our notice that the Excise Manual has also been amended correspondingly, in the light of the prescription made by the said Institution. So, at present, there is no conflict between Ext.P4 and the Excise Manual. The learned Additional Advocate General also submitted that all the contentions raised by the learned senior counsel for the appellant have been dealt with by the learned Single Judge in great detail. The learned Additional Advocate General took us through the relevant portions of the judgment under appeal, wherein the contentions of the appellant have been dealt with. The findings on each point are supported by cogent reasoning and therefore, they are liable to be upheld, it is submitted.

10. Before referring to the rival contentions, we will refer to the relevant statutory provisions. Section 3(8) of the Act defines toddy in the following words:

"(8) Toddy:- 'Toddy' means fermented or unfermented juice drawn from a coconut, palmyra, date or any other kind of palm tree."

Sections 6 to 11 of the Act deal with import, export and transport of liquor. Sections 12 to 16 deal with manufacture, possession and sale of liquor. Sections 17 to 23 deal with duties, taxes and rentals. Sections 30 to 54A deal with the powers and duties of the officers and Magistrates. Sections 55 to 68A deal with penalties for violation of the provisions of the Act. Section 29 deals with power to make rules.

11. Section 57 deals with the punishment for adulteration by a licensee, vendor or manufacturer. Section 57(a), which is relevant for the purpose of this case, is extracted below for convenient reference:

"57. For adulteration, etc., by licensed vendor or manufacturer:- Whoever being the holder of a licence for the sale or manufacture of liquor or of any intoxicating drug under this Act,

(a) mixes or permits to be mixed with the liquor or intoxicating drug, sold or manufactured by him, any drug, other than a noxious drug or any foreign ingredient likely to add to its actual or apparent intoxicating quality or strength, or any article prohibited other than an article which the Government shall deem to be noxious by any rule made under section 29, clause

(k), when such admixture shall not amount to the offence of adulteration under section 272 of the Indian Penal Code; or ......................................................................................... Shall, on conviction before a competent court, be punished for each such offence with imprisonment for a term which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both."

The above provision makes an offence, the action of a toddy shop licensee in adding rectified spirit (ethyl alcohol) in the toddy sold by him. Ethyl alcohol added is, definitely, a substance, which will enhance the intoxicating quality of toddy. Since ethyl alcohol is a natural ingredient of toddy, whether the added ethyl alcohol can be described as a foreign ingredient or not, is one of the issues to be decided in this appeal. If it is not a foreign ingredient, then, of course, no offence will lie under Section 57(a) of the Act. As contended by the learned senior counsel for the appellant, then the offence made out may fall only under Section 56(b).

12. Now. we will refer to the relevant provisions in the Rules, with which we are concerned in this appeal. Rule 2(n) defined toddy as follows:

"(n) 'Toddy' in these rules means fermented juice drawn from any Coconut, Palmyra, or Choondapana palms on which tree tax due under the Act has been paid."

The said definition has been amended by Ext.P3 notification, which reads as follows:

"(ii) 'Toddy' in these rules means fermented juice drawn from any coconut, palmyra or Choondapana palms and conforming to such specifications and restrictions as may be notified by Government based on scientific studies and Indian Standard Specifications."

Simultaneously, by the very same notification, sub-rule (2) of Rule 9 has been substituted by the following sub-rule:

"(2) No toddy other than that drawn from Coconut, Palmyra, or Choondapana palms and on which tree-tax due under the Act has been paid shall be sold by the licensee. All toddy kept or offered for sale shall be natural and conforming to such specifications and complying to such restrictions as may be notified by Government under clause (n) of rule 2. Nothing shall be added to it to increase its intoxicating quality or strength or to alter its natural composition or for any other purposes."

Apparently, on the strength of the amended definition of toddy, contained in Rule 2(n), the Government issued Ext.P4 notification, specifying the permissible alcohol content in different types of toddy. The said notification reads as follows:

"S.R.O. No.145/2007:- Under clause (n) of rule 2 of the Kerala Abkari Shops Disposal Rules, 2002, issued under G.O. (P) No.24/2002/TD dated The 30th March, 2002 and published as S.R.O.No.198/2002 in the Kerala Gazette Extraordinary No.376 dated the 30th March, 2002, the Government of Kerala, based on scientific studies and Indian Standard Specifications in IS 8538/2004, hereby notify that fermented toddy tapped, stored, transported or offered for sale shall conform to the following specifications and comply to the following restrictions, namely:-

1. The ethyl alcohol content of coconut toddy shall not exceed 8.1 percent, of Palmyrah toddy, 5.2 per cent and Sago toddy 5.9 per cent by volume.

2. Toddy shall be un-pasteurized and natural and shall possess the characteristic flavour derived from the sap and fermentation, without addition of any extraneous alcohol.

3. If the ethyl alcohol content of toddy exceeds the limit prescribed above, it will be deemed that extraneous alcohol has been added to such toddy to increase its intoxicating quality of strength. For all purposes, such extraneous alcohol will be treated as a foreign ingredient.

4. Toddy shall be free from any added colouring, flavouring, sweetening or other foreign matters; starch, chloral hydrate, paraldehyde, sedatives, tranquilizers and any other Narcotic Drugs or Psychotropic Substances; and any ingredient injurious to health. It shall be free from Escherichia coli also.

5. Total acid as tartaric acid (expressed in terms of 100 litres of alcohol) shall not exceed 400 grams.

6. Volatile acid as acetic acid (expressed in terms of 100 litres of absolute alcohol) shall not exceed 100 grams."

13. Now, we will first deal with the challenge raised against the validity of Ext.P3 by the appellant and other writ petitioners. The main contention raised is that the definition of toddy contained in the Rules cannot run counter to the definition of toddy in the Statute. So, the provisions of the Act will prevail and to the extent the Rules are at variance with the provisions in the Statute, they shall be null and void. But, we notice that the amendment is intended for the purpose of Abkari Shops Disposal Rules. Further, there is nothing in the definition of toddy in Rule 2(n) of the Rules, which runs counter to the definition of toddy in Section 3(8) of the Act. The definition under Rule 2(n) adds something more to the definition in Section 3(8). Since there is no conflict between the ingredients of the definitions, they can stand together. We also find nothing wrong with the amendment to Rule 9, as per which sub-rule (2) has been substituted by a new sub-rule. No valid ground has been raised before us to interfere with the said sub-rule.

14. The next point to be considered is the validity of Ext.P4 notification issued under Rule 2(n) of the Rules. Going by the appellant's contentions, we notice that the prescriptions regarding the percentage of alcohol, contained in paragraphs 1 and 3 thereof, are mainly attacked by him. No one has any fundamental right to deal in intoxicating liquor. The power to deal in intoxicating liquors is within the exclusive domain of the State. It grants the privilege to sell liquor, subject to payment of fees, rentals etc. In other words, persons like the appellant and other petitioners get the privilege to vend toddy only under the licence granted by the Government. Their rights are subject to the Abkari law framed and enforced by the State. Of course, if the provisions of the law infringe Article 14 or the actions of the State in the matter of parting with the privilege, violate their fundamental rights under Article 14, such State actions can be successfully challenged. So, we have no doubt that the State has every right to prescribe the maximum permissible percentage of ethyl alcohol in each item of toddy drawn and sold. But, such prescription should pass the test of fairness and reasonableness. The very same prescription now contained in para 1 of Ext.P4 was earlier contained in Rule 9(2) of the Rules. The validity of that prescription in Rule 9(2) was the subject-matter of the decision of the Apex Court in State Of Kerala & Others v. Unni & Another (supra). The Court held that such prescription, in the absence of a proper scientific study, is unsustainable. The relevant portions of the said judgment read as follows:

"28. We have noticed the definition of 'toddy'. It does not limit the extent of fermentation. Fermented toddy would, therefore, come within the purview of definition of toddy. Manufacture and sale of toddy, which is fermented is not prohibited. Excise Manual clearly points out that the contents of  ethyl alcohol by reason of fermentation in toddy can go upto 12%, whereafter only it ceases to be a toddy. While laying down the norms in Excise Manual, the State had used the words 'average yield'. The percentage specified therein, thus, is only average.

29. If by reason of the rule making power, the State intended to impose a condition, the same was required to be reasonable one. It was required to conform to the provisions of the statute as its violation would attract penal liability. It was expected to be definite and not vague. Indisputably, the State having regard to the provisions of Article 47 of the Constitution of India, must strive hard to maintain public health. While, however, imposing conditions in regard to the prescription of norms, it was expected of the State to undertake a deeper study in the matter. It should have undertaken actual experiments. It should have specified mode and manner in which the percentage of ethyl alcohol can be found out by the licensee. A subordinate legislation can be questioned on various grounds. It is also well-known that a subordinate legislation would not enjoy the same degree of immunity as a legislative act would. (See Vasu Devi Singh & Ors. v. Union of India & Ors. (2006(11) SCALE 108)."

We notice that the Hon'ble Supreme Court made the above observations, in view of the conflict between the Excise Manual and erstwhile Rule 9(2), concerning the prescription of percentage of ethyl alcohol present in the toddy. Now, it is common ground that there is no such conflict between the Excise Manual and Ext.P4. But, if the prescription now made is not supported by any scientific study, in the light of the above view expressed by the Apex Court, the prescription will automatically fail to pass the test of reasonableness.

15. It is common case that toddy contains sugar, ethyl alcohol, water and yeast. By fermentation of sugar, alcohol is formed. It is common knowledge that the content of alcohol cannot exceed certain limit because of the limited availability of sugar in the toddy. In other words, the alcohol content cannot go up excessively. Further, the ethyl alcohol formed will be transformed into acetic acid with the passage of time. Normally, toddy drawn on a day will be consumed only on that day. Because, by the next day, it will be containing acetic acid, which is known as vinegar in common parlance and therefore, the toddy will not be potable thereafter. If, after scientific study, the maximum permissible limit of ethyl alcohol in toddy is fixed, the State can definitely prescribe by statutory rule that the same shall be the maximum limit and if ethyl alcohol is found exceeding that limit, it can be treated as added alcohol from outside source. Suppose, if the alcohol content by natural fermentation goes up to 10% and the maximum percentage prescribed as per the rule is 8%, such fixation will be arbitrary and liable to be struck down, in view of the observations of the Apex Court, which we have quoted above. So, the point to be decided is whether the prescription contained in para 1 of Ext.P4 is supported by any scientific study.

16. The learned Additional Advocate General produced before us the prescription made by the Indian Standards Institution regarding toddy and also the letter of the Chief Chemical Examiner of the State, concerning the same. The letter of the Chief Chemical Examiner to the Commissioner of Excise dated 21.4.2003 reads as follows:

"The contention of the petitioner is that the Ethyl Alcohol concentration in toddy will go up to 12% v/v due to fermentation is not correct, since the average sugar content in sweet toddy varies only from 12 - 17% v/v. The self generation of alcohol up to 12% can be achieved only in fermentation medium containing higher concentration of sugar as in the case of Arishtoms, Wash, Wine etc., where pure jaggery or cane sugar are used in the fermenting medium. Hence the standard applied to Arishtoms, Wash and Wine cannot be applied as such in the case of toddy.

Regarding the seasonal variations observed and also the variation based on the time of tapping of toddy, it may be noted that such variations are very small and will never boost the Alcoholic concentration above 8.1% v/v.

Taking all these facts into the consideration and after conducting extensive research in this matter the Bureau of Indian Standard has recently published a draft standard for toddy in which the maximum alcoholic concentration has been fixed as 8% v/v (Copy enclosed) Hence I may inform that the arguments put forward by the petitioner and the interpretations given are far from scientific truth."

The prescription of standard for toddy made by the Indian Standards Institution reads as follows:

"3. REQUIREMENTS  3.1 Description 3.1.1 Toddy (TARI) shall be the unpasteurized sap from coconut, date, toddy palm trees or any other kind of palm tree which has undergone alcoholic fermentation. Toddy shall be whitish turbid liquid in appearance with sediments on storage. It shall possess the characteristic flavour derived from the sap and fermentation, without addition of extraneous alcohol.

The ethyl alcohol content of toddy shall be between 5 to 8 percent by volume at 20/20 degree centigrade, when determined according to the method prescribed in 3 of IS 3752.

3.3 Freedom from Harmful Ingredients 3.3.1 Toddy shall be free from any ingredient injurious to health. It shall be free from chloral hydrate when tested by the method given in A-1.

3.3.2 It shall also be free from paraldehyde when tested by the method given in A-2.

3.4 Hygienic Conditions 3.4.1 Toddy shall be tapped, stored and transported under hygienic conditions. The handling equipment shall be clean.

3.4.2 Toddy shall be free from Escherichia coli when tested by the method given in IS 5887 (Part 1).

3.5 Toddy shall also comply with the requirements given in Table 1.



Table 1 Requirement for Toddy ____________________________________________________ Sl.No. Characteristic Requirement Method of Test, Ref to Cl No. of IS 3752 (1) (2) (3) (4)

i) Total acid as tartaric acid 400 g 6 (expressed in terms of 100 litres of absolute alcohol), Max.

____________________________________________________ (Emphasis supplied) The maximum percentage prescribed is 8% for the toddy drawn from coconut trees and palm trees. The prescription made by the Indian Standards Institution can be taken as a valid prescription made after proper scientific study. Having regard to the functions of the institution, there will be a presumption that it has done everything properly in the matter of prescription. So, we find no reason to think otherwise. In other words, we take that the prescription of standard made by the Indian Standards Institution is valid and the court can safely act upon it. In this context, we  notice that this prescription was available when this Court heard the matter earlier and the Apex Court heard it. But, we notice that these facts were not brought to the notice of this Court or the Apex Court and the validity of the prescription made by the Indian Standards Institution was not considered in those cases. Therefore, we agree with the view taken by the learned Single Judge in the judgment under appeal concerning the sustainability of the prescription made by the Indian Standards Institution.

17. Under the impugned notification Ext.P4, the Government have prescribed the maximum permissible limit of ethyl alcohol in coconut toddy as 8.1%, to be on the safer side. That means, going by the prescription made by the Government in para 1 of Ext.P4, the prescription for coconut toddy has to be upheld as valid. The scientific study has found that the maximum percentage of ethyl alcohol self generated is 8%. The Government have prescribed the maximum percentage as 8.1%. So, the same can, in no way, be said to be arbitrary or illegal. But, regarding the prescription of the permissible limit of alcohol in the toddy drawn from Palmyra palm and Sago palm (Choondapana), we find that there is no prescription of percentage of alcohol as 5.2% or 5.9% by the Indian Standards Institution. Going by the said Institution's prescription, which we have quoted above, in their case also, the alcohol content may go up to 8%. To be precise, it may vary from 5 to 8%. So, the prescription of standard for toddy drawn from Palmyra palm and Sago palm (Choondapana) under Ext.P4 cannot be sustained, in view of the decision of the Apex Court in State Of Kerala & Others v. Unni & Another (supra). We, therefore, declare that the prescription of maximum percentage of alcohol in relation to toddy drawn from Palmyra and Sago palms, is ultra vires and unauthorised. The vendors of such toddy cannot be found fault with, if the percentage of alcohol in the toddy sold by them goes up to 8.1%.

18. The next point to be considered is regarding the validity of para 3 of Ext.P4 notification. Para 3 impugned by the appellant and others says that if the content of ethyl alcohol exceeds the limit prescribed in para 1 thereof, it shall be deemed that extraneous alcohol has been added to such toddy to increase its intoxicating quality or strength. If the maximum permissible limit is fixed, based on a scientific study and if additional strength of alcohol is formed, it can be safely presumed that the additional alcohol present is the extraneous alcohol added. If the notification says that such a presumption can be drawn, we find nothing wrong with it. But, we will add that the presumption under para 3 will be subject to what we have said about the prescription of percentage of alcohol in relation to the toddy drawn from Palmyra palm and Sago palm (Choondapana), hereinabove.

19. The next point to be considered is whether the appellant and others could be prosecuted under Section 57(a) of the Abkari Act, if the alcohol found in the toddy sold by them exceeds 8.1% volume by volume. We have already quoted Section 57 earlier. The essential ingredients of the offence under Section 57(a), to be proved to secure the conviction of the appellant, are the following:

(1) The appellant must be the holder of a licence for sale of toddy. (2) He mixes or permits mixing of ethyl alcohol with the toddy sold by him.

(3) The ethyl alcohol added is a foreign ingredient.

(4) The said added ingredient increased the intoxicating quality of the toddy sold by him.

To contend that even assuming alcohol beyond 8.1% is found in the toddy vend by him, he is not liable to be prosecuted under Section 57(a) of the Abkari Act, the appellant heavily relied on the observations of the Division Bench of this Court in State Of Kerala & Others v. Unni & Another (supra). The relevant portion of the said judgment reads as follows:

"9. Regarding S.57(a) of the Act, the contention is that there is absolutely no allegation that any foreign ingredient was mixed or permitted to be mixed in the contraband toddy by the respondents or anybody acting under them. According to the respondents, ethyl alcohol being an essential component or  ingredient of toddy, the presence of the above ingredient cannot be said to be a 'foreign ingredient', even if the percentage of that ingredient, viz. ethyl alcohol is in excess of the percentage fixed as the standard as per Rules. According to the counsel for the respondents, S.57(a) being a penal provision should be construed strictly and since the Legislature by express words or otherwise, has not made it clear that an article which is otherwise an ingredient of toddy will also fall within the mischief of the expression 'foreign ingredient', if the same is found in excess of the standard fixed or the permitted quantity or percentage, prosecution of the respondents under S.57(a) is illegal and liable to be quashed. In the realm of interpretation of the penal statutes when two views are reasonably possible, Courts should adopt that interpretation which is favourable to the accused. We are of the view that the interpretation canvassed by the learned counsel for the respondents is a plausible view, at any rate, not unreasonable. Hence the benefit should go in favour of the person facing prosecution.

10. Smt.Vaheeda Babu, Government Pleader, submitted that S. 57(a) has got a laudable object and having regard to the purpose for which that provision is incorporated in the statute, it has to be construed in such a manner that the said object is advanced and the mischief is suppressed. We do agree that in the matter of interpretation of statutes which are not penal, the above proposition finds acceptance as a sound principle of law. Here, the situation is different. It cannot be disputed that ethyl alcohol is an ingredient of toddy. The dictionary meaning of 'foreign' shows that 'anything that is extraneous is foreign'. In our view, ethyl alcohol being an essential ingredient of toddy, there is merit in the contention that it is not as such a foreign ingredient, even if ethyl alcohol may be present in excess of the percentage permitted by the Rule. The object of S.57(a), is to prosecute offenders who commit the offence of mixing or who permit mixing of any foreign ingredient or other materials specifically mentioned therein. Since we have found that the mere presence of ethyl alcohol, even if in excess of the permitted quantity, cannot be treated as a foreign ingredient, the writ petitioners are not liable to be prosecuted under S. 57(a) of  the Abkari Act. We may observe here that if the presence of ethyl alcohol in toddy beyond the percentage permitted by the Rule has to be deemed to be a 'foreign ingredient' it is for the Legislature to incorporate necessary amendments in the Act. Be that as it may, in the light of the language used in S.57(a), we hold that the respondents are not liable to be prosecuted for that offence."

20. The appellant would point out that the above observations made by the Division Bench hold good even now, even after the legislative exercise undertaken by the State. First of all, there should be a valid prescription regarding the permissible limit of alcohol by amending the Act itself. Secondly, it is pointed out that alcohol being an essential and natural ingredient, can never be treated as a foreign ingredient, even if it is found in excess quantity. At any rate, as held by the Division Bench, whether it is a foreign ingredient or not, is a debatable point. In other words,certainly a reasonable view can be maintained by a person of average intelligence that it is not a foreign ingredient. Therefore, based on such vague statutory provision, a man cannot be sent to jail. The learned Single Judge dealt with the above contention in paragraphs 43 to 45 of the judgment under appeal. The learned Judge held that if an ingredient, which is not a natural ingredient, is found in the toddy, it must be held to be a foreign ingredient. Alcohol up to the maximum prescribed limit present in the toddy alone can be held to be natural ingredient. Ethyl alcohol found in excess must necessarily be held to be a foreign ingredient. So, the learned Judge observed that in view of the scientific data now available that natural alcohol present in the toddy can never exceed the prescribed limit, any excess quantity of alcohol found, should be held to be a foreign ingredient. The learned Judge also found that the amendment to the Rule made by the Government would qualitatively change the position. Though the Division Bench said that the legislature may amend the law, the judgment of this Court cannot be read as a piece of legislation. What is meant by the Division Bench was only a change of law, which can be in the form of an amendment to the Act or to the Rules concerned. So, the learned Judge found that the only reasonable view that could be taken now is that when alcohol is found in excess, it must be taken as a foreign ingredient. Vagueness, if any, in the law, which subsisted earlier, is no longer available, it was held.

21. The learned senior counsel for the appellant submitted that the appellant is being prosecuted for the violation of Section 57(a) of the Abkari Act. There was no amendment to that Section after the decisions of this Court and the Apex Court. In other words, the legal position concerning the violation of Section 57(a) has not undergone any change. Therefore, the observations of this Court and the Apex Court on the above point hold the field even now.

22. It is one of the fundamental principles of penal law that its injunctions must be clear and specific. It should give clear warning about its bounds to persons of average intelligence. If its prohibitions are not clear and specific, a person may do something unwittingly and thereafter he may be accused ex post facto that what he has done is an offence. The result is that what is an offence will be decided subjectively by the police and Judge from case to case basis, based on the interpretation given to the commissions and omissions of the person concerned. But, we have doubt whether the said salutary general principle is applicable in this case. Diluted rectified spirit with 34% ethyl alcohol is called arrack. The sale and consumption of arrack is prohibited in our State. If ethyl alcohol is found above 8.1% in the sample taken, it can be safely presumed that alcohol, which is a prohibited liquor in the State, has been added. So, it is a conscious action by the licensee or his employee of adding a prohibited material in the toddy to be sold. Therefore, the same cannot be compared with a person innocently crossing the limit and doing something unwittingly.

23. But, we notice that even if rectified spirit is admittedly added and as a result the strength of alcohol exceeds 8.1.%, the accused can contend that ethyl alcohol is not a foreign ingredient and therefore, the offence under Section 57(a) of the Abkari Act is not attracted. In other words, in penal law, the accused who admittedly and consciously added alcohol, can contend that he is not liable to be prosecuted under Section 57(a). In such matters, the conduct of the accused is not relevant. He is entitled to get all the protection available under law. It is usually said, even the devil is entitled to get his due. So, all possible contentions available to an accused in a criminal case are liable to be examined by this Court and he can insist for that, in view of the guarantee contained in Article 21 read with Article 14 of the Constitution of India. Therefore, the point to be decided is whether the argument of the appellant and other petitioners that excess alcohol found in the toddy, though has the capacity to enhance the intoxicating quality of it, is not a foreign ingredient, is tenable or not. The learned Single Judge considered the matter and rejected their contentions. According to the learned Judge, though ethyl alcohol is a natural ingredient, any amount of alcohol found in excess of the prescribed quantity should be treated as a foreign ingredient and therefore, they are liable to be prosecuted under Section 57(a) of the Abkari Act. As mentioned earlier, the decision of the Division Bench of this Court in State Of Kerala & Others v. Unni & Another (supra), the relevant paragraph of which we have already quoted above, is mainly relied on by the appellant and other petitioners, to support their contention. The point to be considered is whether the law underwent any qualitative change between the rendering of the decision by the Division Bench and now. Clause (3) of Ext.P4 notification, which we have already extracted above, says that if the ethyl alcohol content in toddy exceeds the prescribed limit, it will be deemed that extraneous alcohol has been added and such added alcohol shall be treated as a foreign ingredient. According to the appellant/petitioners, the said notification does not have any efficacy to remove the vagueness in Section 57(a) and for that, an amendment to the said statutory provision is required. The Abkari Act, the Rules framed thereunder and also the statutory notifications issued in exercise of the powers conferred under the Act and the Rules form the body of Abkari law. Now, Ext.P4 notification forms part of it. Every one is presumed to know the law. At any rate, absence of knowledge of law is not a defence in criminal prosecution. We have no doubt, an amendment of the Act would have been ideal. But, it does not mean that the above notification is insufficient to remove the alleged ambiguity in Section 57(a). The test is what a person of reasonable intelligence will think of it or whether the view canvassed by the prosecution is a reasonable view on the facts. Now that Ext.P4 is part of the body of Abkari law, we feel that the only reasonable view that can be taken by a person of reasonable intelligence is that the added alcohol is a foreign ingredient. Ethyl alcohol, though a natural ingredient, when it exceeds the prescribed limit, the excess quantity is deemed to have been added. It being a substance which increases the intoxicating capacity, the reasonable view that can be taken is that it is a foreign ingredient in terms of Section 57(a). Alcohol, to the extent added, is a foreign ingredient. So, if a person is convicted for selling toddy containing alcohol, in excess of the prescribed limit, under Section 57(a) of the Abkari Act, it cannot be said to be a conviction in violation of Article 21 or Article 14 of the Constitution of India. Therefore, on this point, we agree with the conclusions of the learned Single Judge.

24. In the Writ Appeal, we notice that the accusation against the appellant is that he sold coconut toddy, which contained 8.83% of alcohol. So, he is not entitled to get any relief in this appeal. All his contentions are untenable and the appeal is dismissed.

W.P.(C) Nos.36951, 37437, 37439 & 37865/2007 and 1046, 2770, 2878, 5778, 5790, 5826, 5879, 5883, 8865, 9776, 13104, 33221 & 34126/2008 and 1513, 1516, 3028, 6479, 6559, 6748 & 7078/2009:

25. These are cases involving excess quantity of alcohol in coconut toddy. These cases will be governed by the judgment in W.A.No.2867/2007. W.P.(C) Nos.2923, 2945, 2968, 9738, 34534, 34601, 35941 & 36862/2008 and 6411, 6415, 6493, 6498, 6560, 6837, 7106, 7128, 7129, 7697, 8702, 8902 & 9254/2009:

26. The petitioners in these Writ Petitions have sold Sago palm (Choondapana) toddy containing ethyl alcohol exceeding 5.9%. For the reasons given by us in the judgment in W.A.No.2867/2007, the prosecution of them under Section 57(a) is bound to fail, if the strength of alcohol detected is 8.1% or below. In other words, they can be prosecuted for the offence under Section 57(a) of the Act, if the strength of alcohol detected in Sago palm (Choondapana) toddy exceeds 8.1.%. It is also declared that in the case of Sago palm (Choondapana) toddy, if the percentage of alcohol detected is not above 8.1.%, the offence under Section 56(b) of the Act alone will lie. The Writ Petitions are disposed of as above.

27. Needless to say, this judgment will not affect the powers of the Government to take appropriate steps, in accordance with law, to prescribe the maximum percentage of alcohol permissible in palmyra palm toddy and Sago palm (Choondapana) toddy. The contentions of the petitioners in the above cases, other than those covered by this judgment, are left open.

K.BALAKRISHNAN NAIR, JUDGE.

M.L.JOSEPH FRANCIS, JUDGE.

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