Judgment

JAGANNATHA SHETTY, J.:- The questions raised in these matters relate to the power of the State Government to regulate the transport, possession and consumption of Mirta Sanjiwani Sura and other like Ayurvedic preparations under the U.P. Excise Act, 1910. The appellant No. 1 is the manufacturer of Ayurvedic preparations and the appellant No. 2 is the wholesale dealer of such preparations. The latter is carrying on his business in Almora, one of the districts of U.P. where prohibition has been introduced by the State Government.

2. On September 14, 1978, the State Government issued a notification under Sec. 75 of the U. P. Excise Act removing exemption of U. P. Excise Act to its applicability to Mirta Sanjiwani Sura and other preparations. On the same day, another notification was issued under Sec. 4(1) of the said Act declaring Mirta Sanjiwani Sura and other preparations to be liquor for the purposes of transport, possession and sale within the meaning of the said Act. Again a third notification was issued under Sec. 40(8) of the Act publishing the rules called the U. P. Transport and Possession of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978. The Excise Commissioner, U.P. in exercise of the powers under Sec. 41 issued a notification dated September 14, 1978 making the rules regulating the sale of the medicinal or toilet preparations containing alcohol which is capable of being misused as ordinary alcoholic beverages. The Excise Commissioner also issued a notification fixing the limit of possession of Mirta Sanjiwani Sura for consumption.

3. The validity of these notifications has been challenged by the petitioners in the writ petition before the High Court of Allahabad. The High Court has dismissed the writ petition. The appeal has been preferred against the judgment of the High Court. The connected writ petition under Art. 32 of the Constitution has been filed by the dealers of the Ayurvedic medicines for the same relief.

4. It has been urged among others, that the question raised in these matters is completely covered by a decision of the SC in the State of Bombay v. F. N. Balsara, 1951 SCR 682. This decision was by a Bench of five Judges. In that case certain provisions of the Bombay Prohibition Act (XXV of 1949) and in particular Secs. 12(c), 12(d) and 13(b) came up for consideration along with the restrictions imposed by certain notifications issued under the Bombay Prohibition Act in regard to sale, possession, consumption or use of medicinal and toilet preparations containing alcohol. This Court after examining the scope and effect of the enactment observed (at p. 329 of AIR):

"I consider that the Act is not a law imposing reasonable restrictions so far as medicinal and toilet preparations containing alcohol are concerned. The National Prohibition Act or the Volstead Act of America, to which I have referred, was also an Act relating to prohibition, but toilet and medicinal preparations containing alcohol were expressly excluded from the scope of that Act. I refer to that Act simply to show that a complete scheme of prohibition can be worked without including such articles among those prohibited. Again, Art. 47 of the Constitution also takes note of the fact that medicinal preparations should be excluded in the enforcement of prohibition. I do not consider that it is reasonable that the possession, sale, purchase, consumption or use of medicinal and toilet preparations should be prohibited merely because there is a mere possibility of their being misused by some perverted addicts."

This Court was of the view that the restrictions sought to be imposed by the enactment were not reasonable. So stating this Court declared the provisions of Secs. 12(c), 12(d) and 13(b) and other provisions to be invalid so far as they affect the possession, selling or buying or consumption or use of medicinal and toilet preparations containing alcohol.

5. The decision in Balsara case proceeds on the basis t