JUDGMENT

KRISHNA IYER, J.:— What are we about? A raging rain of writ petitions by hundreds of merchants of intoxicants hit by a recently amended rule declaring a break of two dry days in every wet week for licensed liquor shops and other institutions of inebriation in the private sector, puts in issue the constitutionality of S. 59 (f) (v) and Rule 37 of the Punjab Excise Act and Liquor Licence (Second Amendment) Rules, (hereinafter, for short, the Act and the Rules). The tragic irony of the legal plea is that Arts. 14 and 19 of the very Constitution, which, in Art. 47, makes it a fundamental obligation of the State to bring about prohibition of intoxicating drinks, is pressed into service to thwart the States half-hearted prohibitionist gesture. Of course, it is on the cards that the end may be good but the means may be bad, constitutionally speaking. And there is a mystique about legalese beyond the laymans ken.

2. To set the record straight, we must state, right here, that no frontal attack is made on the power of the State to regulate any trade (even a trade where the turnover turns on tempting the customer to take reeling rolling trips into the realm of the jocose, bellicose, lachrymose and comatose). Resort was made to a flanking strategy of anathematising the statutory regulatory power in S. 59 (f) (v) and its offspring, the amended rule interdicting sales of tipsy ecstasy on Tuesdays and Fridays, as too naked, unguided and arcane and, resultantly, too arbitrary and unreasonable to comport with Arts. 14 and 19.

3. Our response at the first blush was this. Were such a plea valid, what a large communication gap exists between lawyers law and judicial justice on the one hand and lifes reality and sobriety on the other, unless there be something occultly unconstitutional in the impugned section and Rule below the visibility zone of men of ordinary comprehension! We here recall the principle declared before the American Bar Association by a distinguished Federal Judge - William Howard Taft - In 1895:

"If the law is but the essence of commonsense, the protests of many average men may evidence a defect in a legal conclusion though based on the nicest legal reasoning and profoundest learning."

4. The Facts - The Punjab Excise Act, 1914, contemplates grant of licences, inter alia, for trading in (Indian) foreign and country liquor. There are various conditions attached to the licences which are of a regulatory and fiscal character. The petitioners are licence-holders and have, on deposit of heavy licence fee, been permitted by the State to vend liquor. The conditions of the licences include restrictions of various types, including obligation not to sell on certain days and during certain hours. Under the former R. 37 Tuesday up to 2 p. m. was prohibited for sale; so also the seventh day of the month. The licences were granted subject to rules framed under the Act and S. 59 is one of the provisions empowering rule-making. Rule 37 was amended by a notification whereby, in the place of Tuesdays up to 2 p.m. plus the 7th day of every month, Tuesdays and Fridays in every week were substituted, as days when liquor vending was prohibited. Under the modified rules a consequential reduction of the licence fee from Rs. 12,000 to Rs. 10,000 was also made, probably to compensate for the marginal loss caused by the two-day closure. Aggrieved by this amendment the petitioners moved this Court challenging its vires as well as the constitutionality of S. 59 (f) (v) which is the source of power to make Rule 37. If the section fails the rule must fall, since the stream cannot rise higher than the source. Various contentions based on Art. 19 (g) and (6) and Art. 14 were urged and stay of operation of the new rule was granted by this Court.

5. We will presently examine the tenability of the argument and the alleged vice of the provisions; and in doing so we adopt, as counsel desired, a policy of non-alignment on the morality of drinking since law and m