2003 Supreme(SC) 1154

2004(2) Supreme 593
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
V.N. Khare, CJI., S.B. Sinha and Dr. AR. Lakshmanan, JJ.
Prohibition & Excise Supdy. A.P. and Ors. -Appellants
versus
Toddy Tappers Coop. Society, Marredpally and Ors. -Respondents
Civil Appeal Nos. 3630-3631 of 2003
With
C.A. Nos. 4648-4653, 8123 and 8124 of 2003
Decided on 17-11-2003
Counsel for the Parties :
For the Appellants : Sudhir Chandra Aggarwal, Sr. Advocate, Guntur Prabhakar, Advocate.
For the Respondents : K.K. Venugopal, Sr. Advocate, S. Udaya Kumar Sagar, Ms. Bina Madhavan, Prasanth, P., Ms. G. Indira, Advocates for M/s Lawyer s Knit & Co., Advocates.

IMPORTANT POINT
Rule 24 of the A.P. Excise (Arrack and Toddy Licenses General Conditions) Rules, 1969, has been amended by the Government in the larger public interest which enables the officials to send the samples to the independent laboratories for analysis of the toddy, such rule having retrospective effect is not violating any provisions of the said Rules and retrospectivity given to Rule 24 is consistent with Section 72(3) of the A.P. Excise Act, 1968.

Headnote:A.P. Excise Act-Section 72-A.P. Excise (Arrack and Toddy Licenses General Conditions) Rules, 1969-Rule 24 as amended by notification issued in GOMs No. 973 Revenue (Excise-II) Deptt. dated 21-11-2002-Powers to send toddy samples to independent laboratory for chemical examination-Respondents are all members of Toddy Tappers Cooperative Societies-42 shops were raided out of which 29 shops were found to contain no adulterated toddy on the spot-Excise officials sought permission of trial Court for sending samples to Indian Institute of Chemical Technology and Forensic Sciences Laboratory for chemical analysis-Above laboratories, after chemical analysis, sent their reports stating that toddy samples contain Alprazolam which substance is injurious to health-Prohibition and Excise officials by their various proceedings, suspended licenses of respondents-Writ petitions challenging suspension orders alleging that sending samples to independent laboratories other than Government laboratories is violative of Rule 24 of the Excise Rules-High Court while upholding amendment of Rule 24 struck down it with regard to giving retrospective effect and quashed suspension of licenses-Whether judgment of High Court is legally sustainable-(No).

       As per Dr. AR. Lakshmanan, J [for himself and on behalf of V.N. Khare, CJI]

       Held : The Government in order to contain the menace of adulteration of toddy and in order to implement the policy guidelines to curb the adulteration of toddy crimes felt necessary to check the toddy shops and raw samples by utilising the services of the prohibition and excise officers for analysis. It was argued on behalf of the State that there is no facility in the Regional Science Laboratory to identify the adulterants like Alprazolam etc. in the toddy and hence the Commissioner, P & E vide his proceedings dated 18.05.2002 addressed the Government seeking the permission to send the toddy samples drawn to different independent laboratories having sophisticated equipment for analysis and identified the possible adulterants in the toddy like Alprazolam, the consumption of which is highly injurious to health. Accordingly, the Government vide Memo No. 320726/Excise-II/2/2002-1 dated 01.07.2002 permitted the Commissioner to send the toddy samples drawn to independent laboratories for analysis in conformity with the policy and purpose of the Act, directions were issued to the subordinate officers. Thus, it is seen that the primary object is to regulate sale of pure toddy without any adulteration of foreign ingredients or substances which are highly injurious and endanger to the lives of the toddy consuming public. A request was made to the concerned Courts to send the samples for chemical analysis and the Magistrate concerned have ordered to send the sample bottles one each to the independent laboratories for analysis. As per the analysis reports received, it is proved that Alprazolam is present in 28 cases and in the remaining cases the toddy is found free from other foreign substances and as such authorities issued orders suspending the licenses of 29 toddy shops pending inquiry where adulteration is noticed in order to prevent the licensee from indulging in the sale of adulterated toddy any further and to safeguard the health of toddy consuming public. (Para 10)

       The procedure followed by the appellants in sending the samples to independent laboratory is correct in accordance with the amended Rule 24 of the A.P. Excise which came into force with retrospective effect from 01.07.2002. This, in our opinion, was done to protect the health of the public at large and, therefore, it cannot be said to be unreasonable and arbitrary. The intention of the Government is laudable since the same has been done to protect the health of the public at large. It is also a settled law by catena of decisions of this Court that no citizen has got any fundamental right for the trade in liquor and it is for the Government to evolve the excise policy and implement the same in the interest of the public and safeguard the public. There is no merit in the submission of the learned senior counsel for the respondent that the amended provision being the subordinate legislation cannot have retrospective effect. In our opinion, the amended rule is not violative of any article and it was done with a laudable object of protecting the health of public at large and that sending the samples to the independent Government laboratories is only a procedural aspect. Therefore, in our opinion, the order passed by the High Court is liable to be interfered with and we do so accordingly. The High Court has wrongly struck down the amended provision of Rule 24 and quashed the suspension of the licenses and show-cause notices for cancellation and allowed the writ petitions of the respondents accordingly. This apart, the amendment was made in the larger public interest and to detect and prevent selling of adulterated toddy. In our view, the amended Rule 24 is procedural in nature and as such there is nothing illegal or wrong in giving retrospective effect. The High Court, in our view, has failed to notice that Rule 24 only enables the authorities to send the samples to the independent laboratories for analysis of the toddy and such rule having retrospective effect is not violating any provisions of the said rules or the provisions of the Act. It is also not in dispute that the Government laboratories are not well equipped with sophisticated technology to detect adulteration. The rule was amended providing for sending the samples to the well-equipped laboratories to detect and control adulteration of toddy effectively. Thus, we are of the opinion that the Government can get tested the samples from independent laboratories also in the light of the amended Rule 24 which is in the larger public interest. This apart, the High Court has not noticed that even under the unamended Rule 24 the authorities can initiate inquiry after violation of the conditions of the licenses and selling adulterated toddy and can take necessary action and, therefore, the High Court ought not to have quashed the suspension of licenses and the show-cause notices for cancellation. (Para 11)

       In view of this judgment, the appellants are at liberty to place the amended Rule 24 before the State legislature in accordance with Section 72(3) and (4) of the said Act. The Government is also at liberty to proceed further pursuant to the show cause notices issued and dispose of the matter in accordance with law and after affording opportunity to the respondents herein. (Para 16)

       As per S.B. Sinha, J. ( Partly Concurring Opinion)

       In the instant case, the respondents have not been criminally proceeded against. They have merely incurred a civil liability. Such a liability could be fastened on them irrespective of Rule 24 of the A.P. Excise (Arrack and Toddy Licenses General Conditions) Rules, 1969 inasmuch in terms of the conditions of licence as also the Act and the Rules framed thereunder, the licensees are required to carry on their business in liquor which would mean the liquor free from all types of adulteration. Such goods should be fit for human consumption and not hazardous to health. For the said purpose, it was not necessary for the State to strictly adhere to Rule 24 of the Rules inasmuch the right of an accused in terms of Articles 20 and 21 of the Constitution of India would not be attracted in such a case. Even if Rule 24 as amended is held to have no retrospective effect, such a provision must be held to be directory and non-compliance thereof would not vitiate the proceedings for suspension of the licence as even in such a case, it would be open to the respondents herein to get the sample tested by any other private laboratory of their choice for the purpose of showing that the allegations made against them are wrong. The respondents, thus, in no manner are prejudiced. They in the proceedings initiated against them would be entitled to raise all other defences. By reason of such a rule no substantive right of the appellants is affected inasmuch licences granted to the licensees are subject to the terms and conditions laid down therein whereby strict adherence to the provisions of the Act or the Rules framed thereunder would be implicit. Furthermore, admittedly the laboratories owned by the State did not have the requisite facilities for testing drugs. A Licensee having regard to public health cannot be permitted to escape his liabilities only because certain testing facilities are not available in the State Laboratories. We have no doubt in our mind that considering the matter from that angle, Rule 24 must be held to be directory in nature. I may further observe that the observations made in the accompanying judgment of Dr. Lakshmanan, J. to the effect that it is also a settled law by a catena of decisions of this Court that no citizen has got any fundamental right for the trade in liquor and it is for the Government to evolve the excise policy and implement the same in the interest of the public and safeguard the public may not have much relevance in the fact situation obtaining herein and more so when the said question is pending consideration before the Constitution Bench. (Paras 32 to 35)