High Court · 2007

In the High Court of Judicature at MadrasDated: 19-12-2007Coram:The Honourable Mr.Justice S.J.MUKHOPADHAYAandThe Honourable Ms.Justice K.SUGUNAW.P.Nos.22703, 876 and 877 of 2003& W.P.M.P.No.28071 of 2003 in W.P.No.22703 of 2003& W.P.M.P.No.17166 of 2006 in W.P.No.877 of 2003R.Ramavely Nadar (deceased)1. Elephant G.Rajendran(First Petitioner substituted in the place of thedeceased-Petitioner as per the Order of Courtdated 20.7.2007 in W.P.M.P.No.1621 of 2007in W.P.No.22703 of 2003)2. South India Coconut Growers Association(Registration No.133/1998), represented byits Secretary R.A.Sakthivelu(Second Petitioner impleaded as per theOrder of Court of dated 19-12-2007in W.P.M.P.No.1384 of 2007 inW.P.No.22703 of 2003).. Petitioners in W.P.No.22703 of 2003 vs.1. Prohibition and Excise Department, Rep. by its Secretary, Government of Tamilnadu, Secretariat, Chennai-9.2. Home Secretary, Government of Tamilnadu, Secretariat, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/

3. Kongu Velalar Social Welfare Trust, 276/E, Lakshmi Complex, Near Bus Stand, Dharapuram-638 661, Erode District, rep. by its Secretary C.Kalidas(Third respondent-impleaded as per Order of Court dated 19-12-2007in W.P.M.P.No.1430 of 2007 inW.P.No.22703 of 2003) .. Respondents in W.P.No.22703 of 2003 Sugarcane Growers andSakthi Sugars Shareholders Association,158, Sathi Main Road,Kavindappadi-638 455. .. Petitioner in WP.Nos.876 & 877 of 2003 vs.The Secretary,Department of Prohibition & Excise,Government of Tamil Nadu,Secretariat, Fort St.George,Chennai-600 009. .. Respondent in W.P.Nos.876 & 877 of 2003Writ Petition No.22703 of 2003 (Public Interest Litigation) filedunder Article 226 of the Constitution of India, praying for issuance of aWrit of Mandamus, as stated therein. Writ Petition No.876 of 2003 filed under Article 226 of theConstitution of India, praying for issuance of a Writ of Declaration, asstated therein.Writ Petition No.877 of 2003 filed under Article 226 of theConstitution of India, praying for issuance of a Writ of Mandamus, asstated therein. For 1st petitioner in W.P.No.22703 of 2003 : Mr.G.Rajendran, Petitioner-in-personFor 2nd petitioner in W.P.No.22703 of 2003 : Mr.K.Doraisamy, Senior Counselfor Mr.Muthumani DoraisamiFor petitioner in W.P.Nos.876 & 877 of 2003 : Ms.Chitra Narayanan https://hcservices.ecourts.gov.in/hcservices/ For respondents 1 and 2 in W.P.No.22703 of 2003and respondent in W.P.Nos.876 & 877 of 2003 :Mr.K.Elango, Spl.G.P.For respondent-3 in W.P.No.22703 of 2003 :Mr.Silmabannan, Senior Counselfor M/s.Silambannan AssociatesOrderS.J.Mukhopadhaya,JAll these Writ Petitions relate to grant of privilege to sell "Toddy"and there being a 'prohibition' imposed by the respondent-State, the WritPetitions have been preferred including the one as Public InterestLitigation. 2. In W.P.No.876 of 2003, the petitioner-Sugarcane Growers and SakthiSugars Shareholders Association (hereinafter referred to as thepetitioner-Association) seeks for a Writ of Declaration that the policy ofprohibition adopted by the respondent-Department of Prohibition andExcise, from tapping, processing, sale and consumption of Toddy, amongstall alcohol in exercise of its powers conferred under Sections 17-B and 54of the Tamil Nadu Prohibition Act, 1937 (hereinafter referred to as '1937Act') is irrational, illegal and ultra-vires the 1937 Act, Article 14 andother provisions of the Constitution of India. 3. In W.P.No.877 of 2003, the very same petitioner-Association hasprayed for a direction to the respondent-Department of Prohibition andExcise, to permit tapping, processing, sale and consumption of Toddy inexercise of its powers conferred under Sections 17-B and 54 of the 1937Act.4. In Writ Petition No.22703 of 2003, purporting to be a "PublicInterest Litigation", prayer has been made to direct the first respondent-Prohibition and Excise Department to grant exemption under Rule 34 of theTamil Nadu Liquor (Retail Vending) Rules, 1989 for those items mentionedin Section 4(d) and (e) of 1937 Act, alleging that the prohibition isdiscriminatory, offending Articles 14, 19(g) and 21 of the Constitution ofIndia, as permission to obtain licence and to sell such products, havebeen granted to other Indian Made Foreign Liquor (for short, "IMFL")products mentioned in Section 17-C(1)(a) and (b) of 1937 Act. 5. Under Section 4 of 1937 Act, prohibition of manufacture, trafficand consumption of certain liquor and intoxicating drugs, has beenimposed, and Clauses (d) and (e) of Section 4 relate to "Toddy". Section 4(d) and (e) reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "Section 4: Prohibition of the manufacture of,traffic in, and consumption of liquor and intoxicatingdrugs--(1) Whoever--(d) taps any toddy-producing tree or permits orsuffers to be tapped any toddy-producing treebelonging to him or in his possession; or (e) draws toddy from any tree or permits orsuffers toddy to be drawn from any tree belonging tohim or in his possession." 6. According to the petitioner-Association, the aforesaid"prohibition" is arbitrary, unreasonable and irrational, as "Toddy" is'potable liquor' such as IMFL, which is a class by itself and nointelligible differentia has been shown as to why one of potable liquorssuch as "Toddy" has been prohibited, while the other potable liquorsincluding IMFL and "Neer or Padani", have been allowed to bemanufactured and sold. 7. According to the petitioner-Association, its members who arefarmers, cultivating coconut in the State of Tamil Nadu, had to seek forthe removal of the prohibition of the process and sale of Toddy, imposedby the respondent-State, while simultaneously permitting the manufactureand sale of all other forms of potable liquors. According to them,consumption of Toddy is relatively harmless and in fact, it is consideredby many health and medical experts as well as medical systems, to be ofbeneficial to human body, and it is a form of liquor which is obtainedfrom tapping of coconut trees, and the residue obtained from such processis "neer" which is consumed as a juice and does not have any alcoholcontent. As "neer" grows older by hours, if the process of fermentationtakes place on account of which, the juice acquires and alcohol contentincreases over hours and reaches its peak in a period of 24 hours. The"Toddy" which has alcohol content, varies between 6-10% as compared toalcohol content of 4-8% in IMFL, such as beer, 42.8% alcohol content in"Vodka", Rum or Whisky and 32.7% alcohol in Gin. 8. As could be seen from the above facts, according to the counselfor the petitioner-Association, the Toddy has a significantly lowercontent of alcohol when compared to IMFL products, which are permitted tobe manufactured and sold in the State of Tamil Nadu.9. Further case of the petitioners is that the industry of Toddytapping is beneficial for the economic activity generated therefrom. Inthe State of Tamil Nadu alone, its is estimated that 10 to 12 lakh personsderive employment as Tappers, who could tap a maximum of 20 trees daily.Further, economic activity could also be generated on account of thetransportation and retailing of Toddy. https://hcservices.ecourts.gov.in/hcservices/

10. Learned counsel appearing for the petitioner-Associationsubmitted that since the enactment of the 1937 Act, there had beenprohibition on tapping and processing of Toddy in the State of Tamil Nadu,except for certain intervening periods. The prohibition was lifted in theState for the first time in 1971-72, but re-imposed in 1976 and in theearly 1980's, prohibition was again removed except on Toddy, whichcontinued till date. On the other hand, in the case of other liquors, suchas IMFL, Beer etc., the State Government has promulgated various Rulesunder Section 54 of the 1937 Act, permitting manufacturing, stocking,distribution, sale and consumption. It is the further case of thepetitioner-Association that State has promulgated the Tamil Nadu BreweryRules, 1983 (for Beer), the Tamil Nadu Indian Made Foreign Spirits(Manufacture) Rules, 1981, the Tamil Nadu Distillery Rules, 1981, theTamil Nadu Liquor (Licence and Permit) Rules, 1984 and the Tamil NaduLiquor (Retail Vending) Rules, 1989 and in these Rules, provision has beenmade as to what terms and conditions should be complied with for issuanceof permits and licence for manufacturing, selling, retailing and consumingIMFL and Beer only and no such step has been taken to frame Rules forallowing manufacturing, selling, retailing and consuming " Toddy ".11. In the Public Interest Litigation (W.P.No.22703 of 2003), mainsubmission was made that the Toddy is a poor man's liquor and prohibitionof the same will affect the poor public in general.12. Learned counsel appearing on behalf of the State while submittingthat no case has been made out for lifting the prohibition of manufacture,sale and consumption of Toddy, highlighted the grounds for imposingprohibition and hence, requested to dismiss the Writ Petitions.13. We have heard the submissions of learned counsel appearing forthe parties and noticed the rival contentions and relevant Acts and Rulesframed thereunder.14. We have also allowed the impleaded parties in W.P.No.22703 of2003 to put forth their case and similar arguments were advanced on theirbehalf. 15. Regulation, control and prohibition of manufacture, sale andconsumption of intoxicating liquor and drugs in the State of Tamil Nadu,is governed by the 1937 Act (as amended from time to time). Under the 1937Act, "Liquor" is defined under Section 3(9), which includes Toddy, arrack,spirits, Wine, etc. Section 3(9) reads as follows:"Section 3(9): "Liquor" includes toddy, arrack,spirits or wine (denatured spirits), spirits, wine,beer, and all liquid consisting of, or containingalcohol; https://hcservices.ecourts.gov.in/hcservices/

16. "Neer or Padani" has been defined under Section 3(11-B) of the1937 Act, which means "juice drawn from a coconut palmyra, date or anyother kind of palm tree into receptacles treated so as to prevent anyfermentation and not fermented". A distinction has been made in respect ofsuch juice in the definition of "Toddy" in Section 19 of the 1937 Act, asis evident from the aforesaid provision, which reads as follows:"Section 3(19): "Toddy" means the fermented orunfermented juice drawn from a coconut, palmyrah, dateor any other kind of palm tree."17. There is a prohibition imposed for manufacture, traffic andconsumption of liquor and intoxicating drugs under Section 4. UnderClauses (d) and (e) to Section 4, tapping of Toddy-producing tree isprohibited, as is evident from the provision quoted above. 18. Under Chapter III of 1937 Act, while "Exemption and Licences"have been prescribed, Section 19 relates to licence for tapping of sweetToddy, (i.e. "Neer or Padani"), as is evident from the said provision,which is quoted hereunder:"Section 19: Licence for tapping of sweettoddy, etc.--Subject to the control of the StateGovernment, the Collector or any officer empowered byhim may issue--(a) licences for the tapping of any trees forneera or padani (substituted for the word "sweet toddy"by Tamil Nadu Act VIII of 1958) for consumption thereofwithout fermentation or for the manufacture of jaggerytherefrom, or(b) permits for the possession, transport or saleof such neera or padani."19. From the aforesaid provision, it would be evident that there isno bar for tapping of sweet Toddy ("Neer or Padani"), i.e. "juice drawnfrom a coconut, palmyra, date or any other kind of palm tree intoreceptacles treated so as to prevent any fermentation and not fermented",but no such permission has been allowed for tapping of Toddy, which is"fermented or unfermented juice drawn from a coconut, palmyrah, dae or anyother kind of palm tree", and from the same juice, which is basicallyknown as "Neer or Padani". 20. In the above background of the case, it cannot be stated that thecoconut or other palm tree growers cannot generate funds by selling suchjuice, nor it can be pleaded that if it is allowed to be fermented, thenit will generate more employment. https://hcservices.ecourts.gov.in/hcservices/

21. A citizen has no fundamental right to trade or business inliquor as a privilege. The Supreme Court, in the case reported in 1995(1) SCC 574 (Khoday Distilleries Ltd. vs. State of Karnataka) (paragraph41), while noticing the earlier decisions, in which it was observed that,"There is no fundamental right to do trade or business in intoxicants. TheState, under its regulatory powers, has the right to prohibit absolutelyevery form of activity in relation to intoxicants—its manufacture,storage, export, import, sale and possession. In all their manifestations,these rights are vested in the State and indeed without such vesting therecan be no effective regulation of various forms of activities in relationto intoxicants. ...."22. In the decision of the Supreme Court reported in 2007 (2) SCC365, in Civil Appeal No.5300 of 2006, etc., by judgment dated 1.12.2006(State of Kerala vs. Unni), the question relating to fermenting liquor,such as Toddy, Beer, Wines etc., fell for consideration and in the saidcase, the Supreme Court observed that it cannot be ruled out that there ispossibility of fermented Toddy containing 'ethyl alcohol' of more 8.1%v.v.It was accepted that the fermentation was a "natural process" and in thesaid case, no scientific data was available on record, nor the Statefurnished any information as to how much time it requires for Toddy tobecome "fermented" which would contain more than 8.1% of "ethyl alcohol".Having noticed the definition of "Toddy", which does not limit the extentof "fermentation", the Supreme Court observed in that case that the"fermented Toddy" would come within the purview of definition of "Toddy".The Supreme Court in that case further observed that if by reason of therule-making power, the State intended to impose a condition, the same wasrequired to be reasonable one. The Supreme Court, having noticed that the"Toddy" ferments automatically after sun rise and if it is permittedto be sold within a time-frame after Toddy is tapped, reasonableness canbe inferred; but at what point of time precisely "ethyl alcohol" contentwould exceed 8.1% in a Toddy, is not known. 23. The State of Tamil Nadu found that it is expedient as early aspossible to bring a "Prohibition", except for medicinally, scientific,industrial or such like purposes, and the production, manufacture,possession, export, transport, sale, etc., of intoxicating liquors anddrugs were prohibited under the 1937 Act. 24. Subsequently, the Rule known as Madras Neera or Padani Rules,1939, were framed, for regulating/granting license, permission fortapping, manufacturing, selling, consuming, etc., the "Neera or Padani"only, and as noticed above, though "prohibition" with regard to Toddy waslifted for certain periods, subsequently, by the Amending Act, again, itwas inserted and the prohibition was imposed. https://hcservices.ecourts.gov.in/hcservices/

25. On behalf of the respondent-State, learned Special GovernmentPleader highlighted further facts and grounds for imposition of suchprohibition of Toddy, namely that, the State of Tamil Nadu was the firstState in India to introduce total prohibition; in August 1971, theGovernment decided to suspend the enforcement of "Prohibition Laws" tillsuch time as the Central Government came forward to enforce "Prohibition"as 'National Policy' all over the Country; Ordinance was accordinglypromulgated on 28th August, 1971, suspending the operation of provisions ofthe Tamil Nadu Prohibition Act from 30th August, 1971; the Ordinance wassubsequently replaced by Legislation; Retail shops for sale of Toddy andarrack were auctioned; Retail Indian Made Foreign Spirits shops werelicensed; after lapse of three years, the prohibition was re-introduced;Toddy shops were first closed on 30th August, 1973; arrack shops were thenclosed from 1st September, 1974; holders of permits were allowed to consumeIMFL which was imported from other States and sold in licensed shops;Prohibition Policy was modified in May 1981, underwhich drinking of Toddyor arrack or liquor was permitted, subject to certain conditions; theforemost consideration which weighed with the Government to relax theProhibition Law was to prevent the addicts from falling into the hold ofthe distillers and sellers of illicit liquor, thereby endangering theirhealth and to mop up Revenue for the State, which otherwise went into thecoffers of anti-social elements; the Prohibition Law was modifiedpermitting consumption of arrack or Toddy or Indian Made Foreign Spiritson personal permit basis; concerted action was taken to track downdistillers and sellers of illicit liquor and wipe out illicit liquortotally from the State; the arrack and Toddy are highly injurious tohealth of the consumers; the Toddy is having low alcohol strength and itis normally adulterated with some stupefying substance like ChloralHydrate in order to enhance its inebriation; when Chloral Hydrate isdissolved in Toddy, it gets mixed up thoroughly and hence, it cannot bedifferentiated from genuine Toddy; the poor and the illiterate consumerscannot identify whether the Toddy is adulterated or not and since theadulterated Toddy gives higher intoxication, the consumers may like thisadulterated stuff, which is very harmful to their health, even provingfatal; unlike in the case of Indian Made Foreign Spirits, where there isonly six manufacturing units and the production could be closely watchedand monitored, in the case of Toddy, every palm tree is like amanufacturing unit, and it is not possible to monitor the production undereach and every Palmyrah tree; adulteration could be done at any pointright from tapping to selling at the Toddy shop; as the alcohol in Toddyis a self-generated one, its strength is very low and hence, the sellersmay add Rectified Spirit or illicit arrack to the Toddy in order toenhance the intoxicating effect, besides adding other stupefying agentslike Chloral Hydrate and Datura (Atropine), etc; the State Governmenttherefore took a Policy Decision to ban the manufacture, sale andconsumption of arrack and Toddy from 1.1.1987; by the Tamil NaduProhibition (Second Amendment) Act, 1986, the Tamil Nadu Prohibition Act,1937 was suitably amended to give effect to the decision that all theToddy and arrack shops were closed on 31.12.1986; the tappers can tap https://hcservices.ecourts.gov.in/hcservices/ "Neera" which can be sold as it is, without any conversion; this is beingmarketed through Palmyrah tree growers and tappers welfare Board and Khadiand Village Industries Board and that the Neera can also be used formanufacture of "palm gur" and many other associated products. 26. In view of the aforesaid specific and categoric stand taken bythe respondent-State, we find that no case is made out to interfere withthe "prohibition" for tapping, manufacturing, processing, selling,consuming, licensing, possessing, transporting, trafficking, etc., imposedby the State of Tamil Nadu in regard to the Toddy. There being no merits,the Writ Petitions are dismissed. However, there shall be no order as tocosts. The Miscellaneous Petitions are closed. csSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. Prohibition and Excise Department, Rep. by its Secretary, Government of Tamilnadu, Secretariat, Chennai-9.2. Home Secretary, Government of Tamilnadu, Secretariat, Chennai-9.+2 ccs to Ms.Chitra Narayanan, Advocate Sr.No.75751.+1 cc to The Government Pleader Sr.No.75362.+1 cc to Mr.G.Rajendran (Petitioner in Person) Sr.No.75566.+1 cc to M/s.Muthumani Doraisamy, Advocate Sr.No.75655.BS(CO)DCP/11.1W.Ps.22703, 876 & 877 of 2003