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2001(2) Supreme 608
SUPREME COURT OF INDIA
(From Rajashtan High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & Shivaraj V. Patil, JJ.
State of Rajasthan & Ors. -Appellants
versus
Vatan Medical & General Store & Ors. etc. etc. -Respondents
Civil Appeal Nos. 2199-2203 of 1993
With
C.A. No. 2377 of 2001
(Arising out of SLP (C) No. 14845/1994)
C.A. No. 172 of 1995
C.A. No. 2378 of 2001
(Arising out of SLP (C) No. 11674/1995)
C.A. Nos. 2204-2208 of 1993
Decided on 26-3-2001
Counsel for the Parties :
For the Appearing Parties : Sushil Kr. Jain, Addl. Advocate General, A. Misra, Ms. Anjali Doshi, Ms. Indu Malhotra, A.K. Sanghi, Ms. Gouri Gupta, P.D. Sharma, Advocates.
For the Respondent in C.A.No. 2377/2001 : In-person (N.P.).
Held : Though, we heard the learned counsel for the parties at length but at the end of the hearing we have formed an opinion that although the decision of Rajasthan High Court, which is impugned before us, cannot be sustained, yet we are not required to express any final opinion on the issues arising for decision in these appeals, because the decision is only academic in view of subsequent events and in the light of facts admitted at the Bar as also for other reasons to be stated hereinafter. (Para 10)
In spite of forming an opinion that the judgment under appeal does not correctly decide the issues raised therein and is therefore liable to be set aside, we are still not expressing any final opinion on the issues under consideration for the reasons which we hasten to state. Firstly, the decision has been rendered academic only in view of subsequent events and admitted facts. It was pointed out during the course of hearing that w.e.f. 26.6.1995, Part xix - Standards of Ayurvedic, Siddha and Unani Drugs has been added in the text of the Drugs and Cosmetics Rules, 1945 by the Central Government by GSR 519(E) dated 26.6.1995, during the pendency of these appeals, whereby manufacture, sale or distribution of Ayurvedic, Siddha and Unani drugs containing more than 12 alcohol have been prohibited. The learned counsel for the respondents admitted that they are not now manufacturing any medicine or drugs which may violate the provisions of the Drugs and Cosmetics Act & Rules and therefore there is no product manufactured by the respondents before us which may attract the applicability of the impugned rules and notifications which deal with spirituous preparations containing more than 20 proof alcohol and hence any product of theirs may not run the risk of being termed liquor attracting applicability of Rajasthan ISP Rules. Secondly, the correctness of decision in Balsara s case was doubted not only in Synthetic s case but also in M/s. Dabur India Ltd. & Anr v. State of U.P. & Ors., (1988) 1 SCC 264, wherein this court has expressed an opinion that for the effectiveness of prohibition the State must be held to have the power to regulate the possession or consumption of such medicinal preparations containing comparatively high percentage of alcohol under the Excise Act and has, therefore, referred the case to Constitution Bench. The matter is awaiting hearing by the Constitution Bench. The decision by the Constitution Bench shall be the law of the land. Even if we were to decide the question, our opinion shall always be subject to the law to be declared by the Constitution Bench. In any case we are finding it unnecessary to enter into that exercise in the facts and circumstances of the cases before us. Thirdly, all the learned counsel for the respondents submitted during the course of hearing that their principal anxiety was that the impugned rules and notification, if sustained, are liable to entail heavy financial burden on the respondents in as much as the State of Rajasthan may proceed to levy and recover excise duty or countervailing duty on their products manufactured or brought for sale in the State of Rajasthan under Section 28 of Rajasthan Excise Act. In our opinion, such an apprehension is premature and unfounded. This we say for two reasons. Firstly, Rule 25 of Rajasthan ISP Rules provides that in the matter of duty to be paid on intoxicating spirituous preparations and not leviable under the Medicinal and Toilet Preparation (Excise Duty) Act, 1955, the provisions of the Rajasthan Excise Act, 1950 shall apply; in all other matters, not specified in these rules, the provisions of Rajasthan Excise Rules, 1956 shall apply mutatis mutandis. The rule takes care of the respondents apprehension. Secondly, the writ petitions were filed soon after the issuance of the impugned notifications. It was conceded at the Bar that till the date of the filing of the writ petitions and even till the date of hearing before us, the State of Rajasthan had not taken any steps for levy, much less for recovery, of and had not raised any demand on account of excise duty or countervailing duty from any of the respondents. We need not adjudicate upon an issue which has not even actually arisen. By way of abundant caution, we may state that we need not be taken to have expressed any opinion on the correctness or otherwise of the decision of the Delhi High Court in M/s. Dabur India Ltd. v. Delhi Administration & Ors. (CW No. 1267 of 1987 decided on 26th March, 1992) as no appeal has been filed against that decision before this court and for the purpose of present case we have formed an opinion that the controversy was rendered academic not calling for any expression of final opinion. (Para 13)
However, in view of the fact that Division Bench decision of Rajasthan High Court was holding the field till this day, we direct that none of the respondents (i.e. the writ petitioners before the Rajasthan High Court) and no person similarly situated shall be liable to be prosecuted before a criminal court for an offence under Rajasthan Excise Act, 1956 read with Rajasthan ISP Rules and/or notification dated 8.5.1990 for any act or omission done during the period the decision under appeal was holding the field. (Para 14)
Held finally : All the appeals be treated as disposed of in the abovesaid terms. No order as to the costs. (Para 15)
JUDGMENT
R.C. Lahoti, J.-Leave granted in SLP (C) Nos. 14845/1994 and 11674/1995.
2. The Rajasthan Excise Act, 1950 (Act No.2 of 1950) was passed by the State Legislature of Rajasthan to enact for Rajasthan a uniform law relating to the import, export, transport, manufacture, sale and possession of intoxicating liquor and of intoxicating drugs. It came into force w.e.f. 1.5.1950. For the purpose of this judgment it would suffice to notice the definitions of intoxicating drug and liquor as given in clauses (14) and (15) of Section 3 of the Act which read as under:-
3. Definitions.-In this Act unless there is something repugnant in the subject or context-
xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx
(14) "Intoxicating drug" means-
(i) the leaves, small stalks and flowering or fruiting tops of the hemp plant (Cannabia Sativa) including all forms known as Bhang, Sidhi or Ganja;
(ii) charas, that is, the resin obtained from the hemp plant, which has not been submitted to any manipulations other than those necessary for packing and transport;
(iii) any mixture, with or without neutral materials, of any of the above forms of intoxicating drug, or any drink prepared therefrom; and
(iv) any other intoxicating or narcotic substance which the State Government may declare; by notification in the Official Gazette, to be an intoxicating drug, such substance not being opium, coca leaf or a manufactured drug as defined in the Dangerous Drugs Act, 1930 (Central Act II of 1930).
(15) "Liquor" means intoxicating liquor and includes spirit of Wine, Spirit, Wine, Tari, Pachawar, Beer and all liquid consisting of, or containing alcohol, as also any substance which the State Government may from time to time by notification in the Official Gazette declare to be liquor for the purposes of this Act;"
3. In exercise of the powers conferred by Section 41 of the Rajasthan Excise Act 1950, the State Government framed the Rajasthan Intoxicating Spirituous Preparations, Import, Export, Transport, Possession and Sales Rules, 1989 (hereinafter referred to as Rajasthan ISP Rules , for short) and published the same vide notification dated November 6, 1989. In these rules, vide clauses (g) of Rule 3, Intoxicating spirituous preparations are defined to mean "spirituous preparations notified as liquor by the Government from time to time". Extensive provisions are made in the rules governing possession, import, export and transport, sale of intoxicating spirituous preparations ( ISPs , for short).
4. On 8.5.1990, the State of Rajasthan issued the following notification :-
"NOTIFICATION
No. F1(2) FD/Ex/89, S.O.25-dated 8.5.1990.-In exercise of the power conferred by sub-section (15) of Section 3 and sub-section (1) of Section 4 of the Rajasthan Excise Act, 1950 (Raj. Act No. 2 of 1950), read with rule 3(9) of the Rajasthan Intoxicating Spirituous Preparations, Import, Export, Transport, Possession and Sales Rules, 1989 and in continuation of Notification No.F 49/(8)SR-53 dated 15.2.1957, R.G.G.I. (B) dated 28.2.57, the State Government is pleased to declare all medicinal and toilet preparations and other spirituous preparations containing more than 20 proof alcohol to be liquor for the purpose of the said Act and Rules."
5. Several writ petitions were filed in the High Court of Rajasthan laying challenge to the constitutional validity of Rajasthan ISP Rules published vide notification dated November 6, 1989 and the notification dated 8.5.1990 abovesaid. The writ petitions were filed mostly by the manufacturers of such Ayurvedic medicines which contained, as one of their ingredients, more than 20 proof alcohol. Some of the druggists and chemists holding valid licence for dealing in drugs and medicinal preparations, some of the doctors practising in Ayurvedic system of medicines and some of the patients consuming such medicines on medical prescriptions we
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