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Andhra Pradesh High Court
Judges : NARASIMHAM, P.SATYANARAYANA RAJU
Indian Chemical and Pharmaceutical Works, Hyderabad represented by its - Appellant
Versus
State OF A.P. represented by its Secretary, Revenue Department, Hyderabad - Respondent
Decided On : 03-30-63
INTOXICATING DRUGS ACT - CONTROL OF CHLORAL HYDRATE - VALIDITY - HYDERABAD INTOXICATING DRUGS ACT (ACT IV OF 1333 F.) - REPEAL BY IMPLICATION - CHLORAL HYDRATE AS INTOXICATING AND NARCOTIC SUBSTANCE - LEVY OF LICENCE FEE - REASONABLE RESTRICTIONS UNDER ARTICLE 19 (1) (F) AND (G) OF THE CONSTITUTION.
Fact of the Case:
Petitioners, manufacturers of Chloral Hydrate, challenged the Notification issued by the State Government under the Hyderabad Intoxicating Drugs Act (Act IV of 1333 F.) for regulating the manufacture, possession, sale, import, export, and transport of Chloral Hydrate. They contended that the Notification was ultra vires the powers of the Government as Chloral Hydrate was covered by the Drugs Act of 1940 (Central Act) and that the Government had no power to impose a duty on its manufacture.
Finding of the Court:
The Court held that the Intoxicating Drugs Act, as amended by Act XXII of 1953, prevailed in the State as it received the assent of the President under Article 254 (2) of the Constitution and that the Parliament had not enacted a law contemplated by the proviso. The Court further held that the Drugs Act was not an exhaustive and self-contained enactment and that the Intoxicating Drugs Act did not stand repealed by implication. The Court also held that Chloral Hydrate could be declared as an intoxicating drug by the Government under Section 2 (iv) of the Intoxicating Drugs Act based on its subjective satisfaction and that the imposition of a license fee was intra vires the powers of the Government. Lastly, the Court held that the Notification was a reasonable restriction imposed in the interests of the general public under Article 19 (1) (f) and (g) of the Constitution.
Issues: 1. Whether the Hyderabad Intoxicating Drugs Act (Act IV of 1333 F.) was ultra vires the powers of the Government in light of the Drugs Act of 1940 (Central Act). 2. Whether Chloral Hydrate could be declared as an intoxicating and narcotic substance under Section 2 (iv) of the Intoxicating Drugs Act. 3. Whether the imposition of a license fee on the manufacture of Chloral Hydrate was legal and intra vires the powers of the Government. 4. Whether the Notification violated the petitioners' right to carry on trade and business under Article 19 (1) (f) and (g) of the Constitution.
Ratio Decidendi: 1. The Intoxicating Drugs Act, as amended by Act XXII of 1953, prevailed in the State as it received the assent of the President under Article 254 (2) of the Constitution and the Parliament had not enacted a law contemplated by the proviso. 2. The Drugs Act was not an exhaustive and self-contained enactment and the Intoxicating Drugs Act did not stand repealed by implication. 3. Chloral Hydrate could be declared as an intoxicating drug by the Government under Section 2 (iv) of the Intoxicating Drugs Act based on its subjective satisfaction. 4. The imposition of a license fee was intra vires the powers of the Government. 5. The Notification was a reasonable restriction imposed in the interests of the general public under Article 19 (1) (f) and (g) of the Constitution.
Final Decision: The writ petition was dismissed with costs.
( 1 ) THIS is an application for the issue of an appropriate writ against the State of Andhra Pradesh to forbear from enforcing the Notification, G. O. Ms. No. 1376, Revenue dated 5/09/1962, issued under the Hyderabad Intoxicating Drugs Act (Act IV of 1333 F.) (hereinafter referred as the Intoxicating Drugs Act), of rules for the manufacture, possession, sale import, export and transport of Chloral Hydrate, a drug within the meaning of the Drugs Act of 1940. One of the rules provided inter alia that the manufacture of the said drug shall be under a licence granted by the Excise Commissioner on payment of Excise duty of Rs. 500. 00 per annum. It would not be necessary to refer to the other specific rules.
( 2 ) THE petitioners, three in number, Messrs. Indian Chemical and Pharmaceutical Works, Hyderabad, Messrs. Pankaj Chemical and Pharmaceutical Works, Hyderabad and Messrs. Commercial Chemical Co. , Sanathnagar, Hyderabad, are the manufacturers of the said drug under the licences issued under the Drug Rules framed under the Drugs Act of 1940. They challenge the notification of the respondent Government as ultra vires the powers of the Government on the ground that the Government have no right to include a drug coming within the purview of the Drugs Act of 1940 (Central Act) as an intoxicating drug within the meaning of the Hyderabad Intoxicating Drugs Act (Act IV of 1333 F.) They impugn the Notification on the further ground that Chloral Hydrate is not an intoxicating and narcotic-substance, as defined under Section 2, Clause 4 of the Intoxicating Drugs Act. The further ground of attack is that the Government have no power to impose a duty on the manufacture of Chloral Hydrate and their powers levying impost are confined to the State list (List II of the Seventh Schedule) appended to the Constitution, which, among other items, provides for duties of excise on all alchoholic liquors, opium, Indian hemp and other narcotic drugs and Narcotics (vida item 51 ). It is further alleged that the Notification infringed their right to carry on trade and business guaranteed under the Constitution Article 19 (1) (f) and (G ).
( 3 ) THE State Government in their counter affidavit filed by the Assistant Secretary to Government, Revenue Department, averred that the petitioners are manufacturing nearly forty thousand lbs. of Chloral hydrates, that it had come to the notice of the Excise authorities that the bulk of this product was being mixed in Sendi and liquor to give intoxication, and that the medical opinion is that the drug is highly abnoxious to human health. It is further averred that there was no effective control over the manufacture, sale and possession of the drug by the Excise authorities, and that the Government have taken necessary steps by the above Notification to control its improper use. This Notification does not interfere with the right or the pelitioners to carry on their trade. They repudiated the other allegations impugning the Notification.
( 4 ) IN support of this petition, Sri Surya Prakasam has raised the following contentions : firstly, that the State control in respect of Chloral hydrate-under the Intoxicating Drugs Act as amended by Act XXII of 1953, is ultra vires the State powers inasmuch as the said drug was covered by the Drugs Act of 1940, a Central enactment; secondly, that assuming that it could exercise such control under the Intoxicating Drugs Act, Chloral hydrate is not an intoxicating and narcotic substance as defined under Section 2 (4) of the Intoxicating Drugs Act; thirdly that the imposition of a licence fee is illegal and ultra vires the State powers, as Chloral hydrate cannot be brought under item 51 of list II of Seventh Schedule appended to the Constitution. We will presently deal with these contentions.
( 5 ) TAKING the first contention, we may notice brielly how the Intoxicating Drugs Act came to be enacted in its present form. The Intoxicating Drugs Act of 1333f, was in force
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