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IN THE HIGH COURT OF JUDICATURE AT PATNA
I.A. ANSARI, NAVANITI PRASAD SINGH, JJ.
Confederation of Indian Alcoholic Beverage Companies & Ors. – Petitioners
Versus
The State of Bihar & Anr. – Respondents
Civil Writ Jurisdiction Case Nos.6675, 6674, 6676, 6677, 6707, 6988, 6982, 7019, 7021, 7020, 7018, 7880, 7022, 7804, 8188 of 2016
Decided on : 30-09-2016
Bihar Excise Act, 1915–Section 19(4) (As amended w.e.f. 1-4-2016)–Bihar Excise Act, 1915, was never intended to be an Act empowering State to impose prohibition–There is nothing in the policy which indicates State Government's resolve to resort to immediate prohibition of foreign liquor/IMFL–Section 19 (4) of Bihar Excise Act, 1915, cannot be used for the purpose for which the Act was not made leaving aside Bihar Prohibition Act 1938 which was for such a purpose. (Paras 85.23, 86.07, 87.00 and 87.06)
Constitution of India–Article 21–A citizen has right to enjoy his liquor within confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of Constitution and any deprivation thereof would have to withstand test of Articles 14 and 19 of Constitution as well–Right to drink alcohol like a responsible citizen is a part of right to privacy included under Article 21 of Constitution–Notification dated 05.04.2016 would be bad if it were enforced against individuals–Notification as impugned would be ultra vires Constitution being unreasonable restriction. (Paras 88.15, 8817, 88.09, 88.12 and 88.13)
AIR 1941 Patna 53 (SB); AIR 1940 Bombay 273; AIR 1942 Federal Court 17; 1980 PLJR 37 (DB); AIR 1966 Supreme Court 245; AIR 1960 Supreme Court 554; AIR 1961 Supreme Court 4; (2004) 7 Supreme Court Cases 68; 1980 PLJR 37; (1988) 2 Supreme Court Cases 351; (1985) 1 Supreme Court Cases 641; (1999) 1 Supreme Court Cases 31; (2003) 7 Supreme Court Cases 1; (2016) 1 Supreme Court Cases 560; 1980 PLJR 37; AIR 1941 Patna 53; (2006) 12 Supreme Court Cases 753; AIR 1959 Supreme Court 300; AIR 1992 Supreme Court 1555; AIR 1958 Supreme Court 731; (1980) 3 Supreme Court Cases 625; AIR 1992 Supreme Court 1555; AIR 1958 Supreme Court 731; (1980) 2 Supreme Court Cases 625; AIR 1967 Supreme Court 1368; (1995) 1 Supreme Court Cases 574; AIR 2016 Supreme Court 163; (1975) 2 Supreme Court Cases 148; (2005) 1 Supreme Court Cases 496; AIR 1963 Supreme Court 1295; (2012) 5 Supreme Court Cases 1; (2008) 5 Supreme Court Cases 33; AIR 1970 Supreme Court 564; (1999) 6 Supreme Court Cases 172; (2008) 2 Supreme Court 370; (1983) 2 Supreme Court Cases 277; (2012) 3 Supreme Court Cases 346; (2000) 8 Supreme Court Cases 437; (2015) 9 Supreme Court Cases 502–Relied.
Per I.A. Ansari, CJ. (Partly Dissenting View)
Bihar Excise Act, 1915–Section 19(4) (As amended w.e.f. 1-4-2016)–Constitution of India–Article 47–Prohibition in Bihar–When right to sell or to do business in potable liquor is not a fundamental right and State has freedom to impose complete ban on sale of liquor or manufacture or even import of liquor, a citizen of such a State cannot claim that his fundamental right to consume alcohol or alcoholic drink was being denied–When State has right not to allow sale, not to allow manufacture of intoxicating drinks, such as, potable liquor and not to allow import of potable liquor into State, no one can bring alcohol to such a State for the purpose of consumption or for the purpose of possession claiming such a right as a fundamental right–It is only when State permits any person to undertake business or trade in liquor, one can claim fundamental right. (Paras 7, 8,15, 16, 22, 41, 42, 56, 58 and 60)
Bihar Excise Act, 1915–Section 19(4) (As amended w.e.f. 1-4-2016)–Prohibition in Bihar–When one citizen is allowed to carry on trade or business in potable liquor another citizen cannot be discriminated–If State allows consumption of intoxicating drinks like potable liquor and if someone consumes the same in privacy of his own house in terms of licence which he may have been given, no intrusion to his right to consume potable liquor can be permitted unless State alleges violation of licence itself–Right to consume alcohol is not a constitutional right and reasonable restrictions on consumption of alcohol or complete prohibition on consumption of alcohol can be imposed by State in order to carry forward goal set by Constitution in the form of Directive Principles of State Policy, but such implementation of policy shall be in accordance with law and not in violation thereof. (Paras 61, 65 and 69)
(2012) 5 Supreme Court Cases 1; AIR 1958 SC 731–Discussed.
(1983) 3 Supreme Court Cases 625–Distinguished.
AIR 1967 SC 1368; (1995) 1 Supreme Court Cases 574; AIR 2016 SC 163–Relied.
I.A. Ansari, J.
The present set of writ petitions has raised some questions of great public importance, in the realm of the Constitution of India, and the questions are: Whether the right to consume alcohol is a fundamental right and any infringement or intrusion into the said right, by means of legislation or otherwise, would amount to violation of the right to privacy and, therefore, constitutionally untenable?
2. The judgment of my esteemed brother, Navaniti Prasad Singh, J., which I have the benefit of very patiently, minutely and carefully reading and analyzing, answers the questions, posed above, in the affirmative. It is this answer, which I have, with great respect, not been able to persuade myself to agree to and I have, therefore, decided to pen down my concept and views on the said aspect of the constitutional law separately.
3. I may, however, hasten to add and clarify that except the questions, which I have posed above, I agree with the findings recorded, conclusions reached and the decisions, eventually, rendered by my learned brother on all the remaining issues, which have been framed.
4. In order to correctly appreciate how the question has arisen, as to whether the right to consume alcohol is a fundamental right or not, the material facts, leading to these writ petitions, need to be borne in mind and are, therefore, set out, in brief, as under:
5. In the State of Bihar, though Bihar Prohibition Act, 1938, has been enacted, this Act has not been enforced. What has, however, been in force is the Bihar Excise Act, 1915, which though regulatory in nature, does incorporate the provisions for absolute prohibition in the sense that Section 19 (4) states:
“4. Notwithstanding anything contained in this Act and the Dangerous Drugs Act, 1930 (Act 2 of 1930), the State Government, may by notification, prohibit the possession, consumption or both by any person or class of persons or subject to such exceptions, if any, as may be specified in the notification, by all persons in the State of Bihar or in any specified local area, of any intoxicant either absolutely or subject to such conditions as it may prescribe.” (Emphasis is supplied)
6. The State Government introduced, in the year 2015, an Excise Policy, which was published in the official gazette, on 21.12.2015. This policy is known as New Excise Policy, 2015. This policy, nowhere, contemplates immediate and complete prohibition on consumption of alcohol. The scheme, notified by the Government in the form of New Excise Policy, 2015, was to obviously guide its future actions. In this policy, there was, admittedly, nothing, which shows or authorizes the State Government to immediately prohibit trade in Indian Made Foreign Liquor (hereinafter to be referred as ‘IMFL’)/foreign liquor, though it did provide for sale of IMFL/foreign liquor, in restricted areas only, through single source, namely, Bihar State Beverage Corporation Limited.
7. There is no doubt that New Excise Policy, 2015, (hereinafter referred to as ‘the NEP’), did contemplate implementation of total prohibition; but in a phased manner. It is, thus, of paramount importance to note that the New Excise Policy, 2015, envisaged total prohibition, albeit in a phased manner and not whimsically or suddenly.
8. The underlying idea of the NEP was that total prohibition would be brought about gradually and in a phased manner so that the society becomes ripe and ready to understand, realize and accept the necessity of having total prohibition in order to ensure that no draconian methods would be required to be adopted for the purpose of making the State free from consumption of alcohol.
9. No wonder, therefore, as I would show, the State decided to discontinue or prohibit sale of country liquor completely, but permitted manufacture and trade in IMFL/foreign liquor though in urban areas only. This did not, however, I must hasten to point out, debar the population of rural areas to purchase and consume IMFL/foreign liquor with
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