A. S. OKA, J.

1. These Petitions which are already admitted for final hearing are today fixed for hearing as to interim relief. Essentially, the challenge in these Petitions is to the validity of Section 3(1)(j) of the Food Safety and Standards Act, 2006 ( hereinafter referred to as the said Act of 2006) insofar as inclusion of alcoholic drinks in the definition of the word food. The challenge is also to the application of the said Act of 2006 and the Rules and Regulations framed thereunder insofar as the alcohol drinks are concerned. The challenge is on the ground that the said Rules and Regulations are ultra vires the provisions of Article 246(3) of the Constitution of India read with Entry Nos.6 and 8 of List II (read with Entry No.1 of List II) to the Schedule VII of the said Act of 2006. Rule has been issued in these Petitions. Essentially, the prayer for interim relief is for staying the operation and implementation of the said Act of 2006 and the Rules and Regulations framed thereunder insofar as the alcoholic drinks are concerned. Detailed submissions have been made by Shri Seervai, learned senior counsel appearing for the Petitioners in Writ Petition No.9710 of 2011, Shri Dwarkadas, learned senior counsel appearing for the Petitioners in Writ Petition No.9610 of 2012 and Shri Joglekar, learned counsel appearing for the Petitioners in Writ Petition No.7305 of 2011. Shri Setalvad, the learned Additional Solicitor General of India appearing for the Union of India has opposed the prayer for grant of interim relief.

2. The Petitioners have relied upon a decision of the Apex Court in the case of State of Andhra Pradesh & others v. McDowell and Co. and others [(1996) 3 SCC 709] : (AIR 1996 SC 1627). Shri Seervai, the learned senior counsel appearing for the Petitioners in Writ Petition No.9710 of 2011 laid emphasis on the said decision and submitted that the issue is covered by the said decision. He also relied upon a decision of the Federal Court in the case of Bhola Prasad v. Emperor [(AIR (29) 1942 Federal Court 17]. The submission of the learned counsel appearing for the Petitioners is that in view of the decision of the Apex Court in the case of S.R. Bommai v. Union of India [(1994) 3 SCC 1] : (AIR 1994 SC 1918) a Nine-Judge Bench of the Apex Court opined that within the sphere allotted to the States by the Schedule VII, they are supreme. Our attention was invited to the Entry Nos.52 and 7 in List I and Entry No. 33 in Concurrent List (List III). He submitted that in view of the Entry No.8 in List II, the power to make laws with respect to the production, manufacture, possession, transport, purchase and sale of intoxicating liquors vests to the State Legislature. The Entry No.24 of List II is a general entry relating to industries which is specifically made subject to the provisions of Entry Nos.7 and 52 in the List-I. The submission is that the industries dealing in production and manufacture of liquors do not fall in Entry No.24 but they fall in Entry No.8 of List II. The submission is that the Entry No.52 in List-I which deals with control of industries does not give power to the Parliament to deal with control of industries engaged in production and manufacture of intoxicating liquors. It is pointed out that the Entry No.24 in List II is specifically made subject to Entry No.52 in List I but the Entry No.8 in the List II is not made subject to the Entry No.52 in List I. It was submitted that as the production and manufacture of intoxicating liquors is governed by the Entry No.8 in List II, no Central Law whether made with reference to an entry in List I or with reference to an entry in the List III can affect the validity of the State enactment. It is submitted that what is covered by the Entry No.8 of List II is a prohibited field for the Union. It was pointed out that there was a similar Entry No.31 in the Provincial Legislature List under the Government of India Act, 1935. Relying upon the decision of Bho