1. Challenge to the constitutional validity of amendments to the Bombay Prohibition Act, 1949, regulating the possession and manufacture of rotten gur to prevent illicit liquor production. (Para 1 )
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1992 Supreme(SC) 883
SUPREME COURT OF INDIA
L.M.Sharma, C.J.I., M.N.Venkatachaliah, S.Mohan, JJ.
Razakbhai Issakbhai Mansuri
Versus
State Of Gujarat
Case No. : 4407 , 4408 , 4406 of 1985, 1863 , 1866 of 1986
Date of Decision : 12/4/92
Advocates Appeared: Dave Vimal : Desai Ashok : Dhingra Yashpal : Ganesh S. : Gore Nandini : Gupta Ram Avtar : Karanjawala M. : Karanjawala Rajan : Khanduja S.S. : Khanna J.M. : Kumar Krishan : Malviya Ajay : Nayar Rajiv : Parekh P.H. : Poti P.S. : Rao C.V.Subba : Sagar J. : Satija Baldev Krishan : Sharma Rajesh Kumar : Shroff M.N.
Important Points
The State Legislature has competence under Entry 8, List II to regulate non-intoxicating substances used for illicit liquor manufacture. Such regulatory measures, including permit requirements, are reasonable restrictions under Article 19(6) in furtherance of the public health goals outlined in Article 47.
Subject
Constitutional Law - Legislative Competence
Act Referred
CONSTITUTION OF INDIA: Sch.7 List.2 Entry.24, Sch.7 List.2 Entry.8, Sch.7 List.3 Entry.33, Art.14, Art.19(1)(g)(6), Art.47, Sch.7 List.2 Entry.27
Headnote
(A) Prohibition Act - Sections 2(39-A), 64, 64-A, and 70-A - Constitution - Entry 8, List II and Entry 33, List III - Articles 14, 19(1)(g), 19(6), 47 and 301 - Validity of amendments regulating possession and manufacture of "rotten gur" - Legislative competence of State Legislature - Whether regulation of a non-intoxicating substance used for illicit liquor manufacture falls under Entry 8, List II - Whether permit requirement is a reasonable restriction in public interest. (Paras 1, 4, 6, 9)
(B) Legislative Competence - Entry 8, List II covers the production, manufacture, possession, transport, purchase, and sale of intoxicating liquors - Regulatory power of the State includes preventing circumvention of prohibition laws - Regulation of a substance with the potentiality to be used for the manufacture of intoxicating liquor falls within the scope of Entry 8, List II. (Paras 5, 6)
(C) Reasonable Restrictions - Freedom to carry on trade under Article 19(1)(g) is subject to reasonable restrictions in the interest of the general public under Article 19(6) - Implementation of prohibition policy as per Article 47 justifies regulatory measures against substances aiding illicit liquor manufacture - Requirement of a permit, which is readily available on payment of a nominal fee, does not constitute an absolute prohibition or an unreasonable hindrance to trade. (Paras 9, 11, 13, 14)
Facts of the case:
Petitioners challenged the constitutional validity of amendments to a prohibition act that defined "rotten gur" and imposed restrictions on its possession and manufacture, requiring a permit for quantities exceeding a prescribed limit. The petitioners contended that the State Legislature lacked legislative competence, the definition of "rotten gur" was vague and arbitrary, and the provisions violated the fundamental rights to equality and freedom of trade.
Findings of Court:
The State Legislature is competent to regulate substances used for illicit liquor manufacture under Entry 8, List II. The requirement of a permit is a reasonable restriction in the public interest to implement the State's prohibition policy and does not violate Article 19(1)(g) or Article 14.
Issues: Whether the State Legislature had the competence to enact laws regulating "rotten gur" under Entry 8, List II; whether the field was occupied by a central order under the Essential Commodities Act; and whether the permit requirement violated Articles 14, 19(1)(g), and 301.
Ratio Decidendi: The court held that the power to prohibit intoxicating liquor includes the power to regulate substances used in their illicit manufacture. Since the central order on gur specifically excluded alcoholic liquor, the State's regulatory power remained intact. The permit system is a reasonable restriction under Article 19(6) to achieve the public health goals of Article 47, especially as the permit is easily obtainable.
Result: Writ petitions, civil appeals and special leave petitions dismissed.
(B) Legislative Competence - Entry 8, List II covers the production, manufacture, possession, transport, purchase, and sale of intoxicating liquors - Regulatory power of the State includes preventing circumvention of prohibition laws - Regulation of a substance with the potentiality to be used for the manufacture of intoxicating liquor falls within the scope of Entry 8, List II. (Paras 5, 6)
(C) Reasonable Restrictions - Freedom to carry on trade under Article 19(1)(g) is subject to reasonable restrictions in the interest of the general public under Article 19(6) - Implementation of prohibition policy as per Article 47 justifies regulatory measures against substances aiding illicit liquor manufacture - Requirement of a permit, which is readily available on payment of a nominal fee, does not constitute an absolute prohibition or an unreasonable hindrance to trade. (Paras 9, 11, 13, 14)
Facts of the case:
Petitioners challenged the constitutional validity of amendments to a prohibition act that defined "rotten gur" and imposed restrictions on its possession and manufacture, requiring a permit for quantities exceeding a prescribed limit. The petitioners contended that the State Legislature lacked legislative competence, the definition of "rotten gur" was vague and arbitrary, and the provisions violated the fundamental rights to equality and freedom of trade.
Findings of Court:
The State Legislature is competent to regulate substances used for illicit liquor manufacture under Entry 8, List II. The requirement of a permit is a reasonable restriction in the public interest to implement the State's prohibition policy and does not violate Article 19(1)(g) or Article 14.
Issues: Whether the State Legislature had the competence to enact laws regulating "rotten gur" under Entry 8, List II; whether the field was occupied by a central order under the Essential Commodities Act; and whether the permit requirement violated Articles 14, 19(1)(g), and 301.
Ratio Decidendi: The court held that the power to prohibit intoxicating liquor includes the power to regulate substances used in their illicit manufacture. Since the central order on gur specifically excluded alcoholic liquor, the State's regulatory power remained intact. The permit system is a reasonable restriction under Article 19(6) to achieve the public health goals of Article 47, especially as the permit is easily obtainable.
Result: Writ petitions, civil appeals and special leave petitions dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- crime and sentencing
Advocates:
AJAY MALVIKA, ASHOK DESAI, BALDEV KRISHAN SATIJA, C.V.SUBBA RAO, J.M.Khanna, J.SAGAR, KRISHAN KUMAR GOGNA, M.KARANJAVALA, M.N.SHROFF, NANDINI GORE, P.H.Parekh, P.S.POTI, RAJAN KARANJAWALA, RAJESH SHARMA, RAJIV NAYAR, RAM AVTAR GUPTA, S.GANESH RAO, S.S.Khanduja, VIMAL DAVE, Yashpal Dhingra
AJAY MALVIKA, ASHOK DESAI, BALDEV KRISHAN SATIJA, C.V.SUBBA RAO, J.M.Khanna, J.SAGAR, KRISHAN KUMAR GOGNA, M.KARANJAVALA, M.N.SHROFF, NANDINI GORE, P.H.Parekh, P.S.POTI, RAJAN KARANJAWALA, RAJESH SHARMA, RAJIV NAYAR, RAM AVTAR GUPTA, S.GANESH RAO, S.S.Khanduja, VIMAL DAVE, Yashpal Dhingra
Table of Contents
2. Impugned amendments lack legislative competence, vest arbitrary power in authorities, and violate Articles 14, 19(1)(g), and 301 of the Constitution. (Para 2 , 3 , 4 , 7 , 8 )
3. The State's regulatory power over intoxicating liquors includes preventing circumvention; requiring permits for substances used in illicit liquor manufacture is a reasonable restriction in public interest. (Para 5 , 6 , 9 , 11 , 13 , 14 )
4. Legislation regulating non-intoxicating substances with potential for misuse in liquor manufacture falls under State competence for intoxicating liquors and constitutes a reasonable restriction under Article 19(6). (Para 6 , 14 , 15 )
5. Writ petitions, civil appeals, and special leave petitions are dismissed. (Para 16 )
6. Does Entry 8, List II of the Seventh Schedule authorize the State to regulate substances that are not intoxicating but can be used to manufacture liquor?
Yes. The State's power to regulate intoxicating liquors includes the power to prevent the circumvention of prohibition laws by regulating substances with the potentiality of being used for illicit liquor manufacture. (Para 5 , 6 )
7. Does a Central Order regulating a commodity under the Essential Commodities Act prevent State regulation of the same commodity for prohibition purposes?
Not if the Central Order specifically excludes alcoholic liquor. Where the State's law is in pith and substance relating to intoxicating liquor, it remains within State competence despite Central regulations on the commodity's general use. (Para 6 )
8. Is the requirement to obtain a permit for possessing a substance used in illicit liquor manufacture a reasonable restriction under Article 19(1)(g)?
Yes, provided the permit is readily available on payment of a nominal fee and serves the public interest of facilitating vigilance against the illegal manufacture of intoxicating liquors. (Para 9 , 13 , 15 )
9. Does a broad definition of a regulated substance violate Article 14 if it grants enforcement authorities discretion?
No, if the definition is designed to eliminate the mischief of illicit liquor manufacture and the restriction is regulatory rather than absolute, it is not considered arbitrary or unreasonable. (Para 14 , 15 )
JUDGMENT
L.M.SHARMA, CJI.
(1) THE petitioners in all these cases (including the appellants in the civil appeals) have challenged the constitutional validity of the amendments made to the Bombay Prohibition Act, 1949 (for short
"THE principal Act") by the Gujarat Legislature prohibiting possession of rotten gur in excess of the prescribed limit without a permit and regulating manufacture etc. of rotten gur. The provisions which have been challenged are those of Section 2(39-A) defining "rotten gur". Section 64 imposing restriction on possession of "rotten gur", Section 64-A regulating manufacture etc. of "rotten gur" and Section 70-A providing for imposition of punishment for contravention of the relevant statutory provisions. It has been contended on behalf of the petitioners that gur and jaggery are popular commodities, consumed by humans and cattle and used in the preparation of sweets and Ayurvedic medicines as also in certain industries; and, consequently the provisions under challenge are causing serious difficulties in carrying on the business not only in "rotten gur" but also injaggery and gur, which are not "rotten".
(2) THE main points raised in support of the present petitions (including the civil appeals) are mentioned below:
(I) The impugned amendments are ultra vires on the ground of lack of legislative competence. Entry 8, List II of the Seventh Schedule of the Constitution, under which the State Legislature has purported to act, does not cover the subject-matter; and Entries 26 and 27 of List II of the Constitution being subject to the provisions of Entry 33 of List III are not available as the legislative field referable to Entry 33 of List III is occupied by the Gur Control Order, 1968 read with Essential Commodities Act, 1955.
(II) As a result of the impugned amendments, the police and the other authorities of the State have been vested with arbitrary and uncontrolled power. The same is violative of Article 14 of the Constitution.
(III) Even otherwise also the impugned provisions are violative of Articles 19(1(g) and 301.
(3) MR Ashok Desai, appearing in Writ Petition No. 12532 of 1985,arguing on the question of legislative competence, contended that none of the entries in List II of the Seventh Schedule to the Constitution authorises the Gujarat Legislature to incorporate the impugned provisions in the principal Act. Referring to the entries in the List the learned counsel proceeded to say that at the most, it is only three entries i.e., 8, 26 and 27,which can be said to have some relevance in the present context. Yet, none of them can cover the present case.
(4) ENTRY 8 reads thus:
"8. Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors."
The learned counsel challenged the correctness of the judgment impugned in the civil appeals and the special leave petitions. According to him, the High court had since relied on the observations of this court in the State of Bombay v. F.N. Balsara for holding that the amplitude of Entry 8 was wide enough to cover the present legislation, such conclusion cannot be sustained as the observations in Balsam case are no longer good law after the decision in Synthetics and Chemicals Ltd. v. State of U.P. The judgment in Synthetics and Chemical case was placed before us at some length, and reliance was placed on paragraphs 27 and 29, where Balsara case is discussed and on paragraphs 41, 50-52 and 54, where the scope of Entry 8 is indicated. The argument is that in view of this latest Constitution bench decision, Entry 8 cannot be construed as widely as it was done earlier,
(5) WE have examined the contentions very closely but do not find any merit in them. The argument overlooks the fact that the observations in Synthetics and Chemicals Ltd. , relied upon on behalf of the petitioners, were made in the context of power to levy vend
