Hamsakoya vs. State of Kerala (2015 (2) KHC 206) – A Product of Precedents and Perspective

Hamsakoya vs. State of Kerala (2015 (2) KHC 206) – A Product of Precedents and Perspective

‘Investigation, if done by an Officer though equal in rank but lack territorial jurisdiction, vitiates trial’.   This statement of law in the decision reported in Hamsakoya Vs. State of Kerala (2015 (2) KHC 206) drew flak from one of the former Judges of the Hon’ble High Court of Kerala, Justice V. Ramkumar.   The ratio decidendi deduced from the decision was rendered in the back drop of an offence under Section 55(g) of the Kerala Abkari Act, which penalises keeping of wash for brewing arrack.

In the process of defining an act or omission as an offence, a high degree of care and caution is called for from Legislature.  The pristine concept of offence took its root from acts abhorrent to social mores and orderly behavior.  Hobbes’ ‘Social Contract Theory’ underlines the premise that State came into being to bring in orderliness in society to prevent anarchy.  Anarchy is the result of collective criminality, promiscuity and disorderliness.   Every offence, in its primordial concept, involved a moral wrong.   ‘Police State’ evolved in the said process for containing the commission of moral wrongs by penalizing perpetrators.  With the multifarious activities undertaken by State, the ‘Police State’ metamorphosed into the concept of a ‘Welfare State’.  With the emergence of Welfare State, new genre of offences was created by the Statute which dispenses with the predominant element of criminality, mensrea.  The system was effectively engineered for ensuring compliance with statutory mandates of payment of taxes, contribution to welfare schemes, unauthorized import of goods etc. by making the lapses statutory wrongs.  Statutory wrongs were made into offences by prescribing punishments to impose State’s authority and to revere the ‘command of sovereign’.  The penal law came to be compartmentalized to legal wrongs and moral wrongs.  Statutorily created wrongs, which have no foundation in social mores, were made punishable with imprisonment.  Most of those Statutes are fiscal statutes which give carte blanche to the State for condonation of statutory wrongs by accepting compounding fees.

Kerala Abkari Act, in its entirety, appears to be fiscal statute founded on ‘res extra commercium’.  The production, possession and sale of alcoholic substances are regulated by the Government with licence raj under the Abkari Act.  The Statute, in its inception, did not put a blanket ban on any alcoholic substance.  But by late 90’s, alcohol in the form of ‘arrack’ was banned by amending Abkari Act with the incorporation of Section 8.  The possession of arrack has been made into a serious offence punishable with imprisonment which may extend to 10 years and a minimum fine of Rs.1 lakh.   Concomitantly, enhancement of punishment was also made at the same rate for possession, transit, transport, manufacture etc. of other alcoholic substances without valid permit from the Government under Section 55 of the Abkari Act.  When the constitutional validity of amendment was challenged on the ground of disproportionality of punishment with gravity of crime, the Government successfully defended it with their specious plea of ‘endeavor to bring in prohibition’.   The chemical component of all alcoholic substances, ie. Ethyl alcohol, was not banned in toto.  Ethyl alcohol in more concentrated forms than present in arrack is readily available in abundance in Government Outlets and Five Star Hotels.  The oxymoron given to Ethyl alcohol in coloured form as ‘Indian Made Foreign Liquor’ (IMFL) makes it a dignified commodity.  But the chemical component in arrack and Indian Made Foreign Liquor, ie. ethyl alcohol, remains the same. It is curious to see that S.2(j) of the Food Safety and Standards Act 2006,a central legislation, takes within its fold of definition of ‘food’  ‘alcoholic drink’ as an item of food. Thus the scheme of ban on arrack with a harsher punishment appears to be for conserving the monopoly of the Government in liquor trade.  Offences under Sections 8(1)(a) and 55 of the Abkari Act are pithily economic offences resulting from violation of a fiscal statute.  A mammoth majority of persons figuring as accused in the case is largely hailing from lower strata of the society.  This jurisprudential and socio-political scenario is in the judicial conscience of a sensible Judge while adjudicating the accusation under the Abkari Act.  A Judge, moulded in a philanthropic philosophy and who imbibed the jurisprudence of criminology, would naturally be inclined in his subconscious mind to render a judgment of acquittal in these absurd abkari cases.

In the process of adjudication of a draconian fiscal offence like the offence under Abkari Act, a strict adherence to procedural formalities would be called for.  If the Judge finds that the investigation into the serious offence is done by an Officer who had no territorial jurisdiction to investigate, he may tend to look askance at the prosecution case.  The investigation by an officer, though competent in rank but lacks territorial jurisdiction, at the very outset raises the eyebrows of the Judge.   One should bear in mind that the investigation process is the point of commencement of prosecution which, if ends in conviction, will result in incarceration.  Article 21 of the Constitution declares that no person shall be deprived of his life and personal liberty except in accordance with the procedure established by law. If the law enjoins that investigation has to be conducted by the Officer having territorial jurisdiction, it has to be followed in its letter and spirit.  Law frowns upon investigation and laying of charge sheet by incompetent Officers.  The Kerala High Court in the decision reported in Saji @ Kunjumon Vs. State of Kerala (2010(3) KLT 471) held that the conviction is bad for the reason that charge was laid by an officer who lacked territorial jurisdiction, though investigation was done by a competent Officer having territorial jurisdiction.   Precedents aplenty supporting the above view taken by the Kerala High Court.  (Subramanyan Vs. State of Kerala (2010(2) KLT 470), Varkey Vs. State of Kerala (1993 (1) KLT 72), Abdul Rahman Vs. State of Kerala (1995(1) KLT 234), and Subash Vs. State of Kerala (2008(2) KLT 1047).   Thus Hamsakoya Vs. State of Kerala (2015(2) KHC 206), though not specifically adverting to precedents, is well buttressed by it.  The decision in Hamsakoya case appears to be proceeding from a Judge, who is not a ‘prisoner of precedents’, but a legal brain infused with sensible and pragmatic understanding of criminology.  An irrational outfit of a Criminal Law, which makes a person found in possession of even a single drop of arrack in his hands liable to be punished with imprisonment up to 10 years, is in no doubt a ‘lynch law’ which needs to be meticulously handled in harmony with the concept of personal liberty.   The adjudicatory process of an accusation under Abkari Act cannot ignore the fact that there are no procedural safeguards provided in the Abkari Act to rule out the possibility of false accusation, unlike in NDPS Act.  The mandatory search before a Gazetted Officer under the NDPS Act is some sort of a guard against framing of cases.  The NDPS Act rationalizes the offence with divisions into small, medium and commercial quantity and prescribes varying terms of imprisonment depending upon objectively assessed degree of criminality with reference to quantity.

Sanal Kumar S

Adv. S.Sanal Kumar is a Lawyer practising at High Court of Kerala.