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1992 Supreme(Del) 194
High Court Of Delhi
DABUR INDIA LIMITED - Appellant
Versus
DELHI ADMINISTRATION - Respondent
Civil 1267 of 1987
Decided On : 03/26/1992
A.K.MATA, Dinesh Kumar, S.K.MAHAJAN, SARVA M.MITTER
The Excise Act and the ISP Rules are valid and applicable to Ayurvedic medicines containing more than 25 per cent proof alcohol, as they are capable of being misused and consumed as beverages.
Headnote:
EXCISE ACT - AYURVEDIC MEDICINES - NOTIFICATION - AMENDMENT - DELETION OF CLAUSE - EFFECT - AYURVEDIC MEDICINES - BROUGHT WITHIN PURVIEW OF ACT AND RULES - VALIDITY - CHALLENGED - GROUNDS - VARIOUS ACTS AND RULES - FIELD OF LEGISLATION - OVERLAPPING - OCCUPIED FIELD DOCTRINE - APPLICABILITY - EXCISE ACT AND RULES - WHETHER REPEALED OR EFFACED - MEDICINAL AND TOILET PREPARATIONS (EXCISE DUTY) ACT, 1955 - WHETHER OCCUPIES FIELD - SPIRITOUS PREPARATIONS (INTER-STATE TRADE AND COMMERCE) CONTROL ACT, 1955 - DELHI MUNICIPAL CORPORATION ACT, 1957 - PROVISIONS - WHETHER IN CONFLICT WITH ISP RULES - LEGISLATIVE COMPETENCE OF STATE LEGISLATURES - ENTRY 8 OF LIST II - ENTRY 84 OF LIST I - CONFLICT - WHETHER ARISES - PARLIAMENT - SOLE AUTHORITY TO LEGISLATE IN RESPECT OF UNION TERRITORY OF DELHI - EXCISE ACT - REGARDED AS CENTRAL ACT - QUESTION OF CONFLICT IN LEGISLATIVE COMPETENCE - WHETHER ARISES - ARTICLE 47 OF CONSTITUTION - APPLICABILITY - ARTICLE 19(1)(G) - RIGHT TO CARRY ON BUSINESS - WHETHER VIOLATED - UNREASONABLE RESTRICTIONS - NOTIFICATION DATED 3RD MARCH, 1987 - VALIDITY - CHALLENGED - GROUNDS - PUBLICATION - REQUIREMENT - WHETHER COMPLIED WITH - NOTIFICATION DATED 5TH MARCH, 1987 - VALIDITY - CHALLENGED - GROUNDS - ARTICLE 14 OF CONSTITUTION - VIOLATION - ALLEGED - DISCRIMINATION - WHETHER EXISTS - EXCISE COMMISSIONER - POWER TO EXEMPT INTOXICATING SPIRITUOUS PREPARATIONS - WHETHER UNBRIDLED - RULE 24(III) OF ISP RULES - VALIDITY - CHALLENGED - GROUNDS - EXCESSIVE DELEGATION AND SUB-DELEGATION - ALLEGED - INDUSTRIES (DEVELOPMENT AND REGULATION) ACT, 1951 - WHETHER OCCUPIES FIELD - LEGISLATIVE COMPETENCE OF STATE LEGISLATURES - WHETHER ERODED.
Fact of the Case:
The petitioners, apart from other Ayurvedic medicines also prepare Mrit Sanjivni, Mrit Sanjivni Sura, Mrit Sanjivni Sudha and Vrihad (Maha) Darakshasav. These are stated to be medicinal drugs but it is an admitted fact that they contain more than 40 per cent proof alcohol and the same are also misused, by some persons, and taken as intoxicating beverages.
Finding of the Court:
The anxiety not to be subjected to any control, even if it be for the benefit of the community at large, has led to the filing of a bunch of writ petitions by manufacturers of alcoholic medicinal preparations.
Issues: 1. Whether the Excise Act and the ISP Rules are valid and applicable to Ayurvedic medicines? 2. Whether the Medicinal and Toilet Preparations (Excise Duty) Act, 1955 occupies the field and ousts the legislative competence of the State Legislatures? 3. Whether the Spirituous Preparations (Inter-State Trade and Commerce) Control Act, 1955 and the Delhi Municipal Corporation Act, 1957 are in conflict with the ISP Rules? 4. Whether the legislative competence of the State Legislatures is ousted by Entry 84 of List I of the Seventh Schedule to the Constitution? 5. Whether Article 47 of the Constitution is applicable to the present case? 6. Whether Article 19(1)(g) of the Constitution is violated by the impugned Rules and Act? 7. Whether the Notification dated 3rd March, 1987 is valid? 8. Whether the Notification dated 5th March, 1987 is valid? 9. Whether Rule 24(iii) of the ISP Rules is valid? 10. Whether the Industries (Development and Regulation) Act, 1951 occupies the field and ousts the legislative competence of the State Legislatures?
Ratio Decidendi: 1. The Excise Act and the ISP Rules are valid and applicable to Ayurvedic medicines containing more than 25 per cent proof alcohol, as they are capable of being misused and consumed as beverages. 2. The Medicinal and Toilet Preparations (Excise Duty) Act, 1955 does not occupy the field and does not oust the legislative competence of the State Legislatures, as its main purpose is to levy excise duty on medicinal and toilet preparations containing alcohol, while the Excise Act and the ISP Rules regulate the transportation and sale of such preparations. 3. The Spirituous Preparations (Inter-State Trade and Commerce) Control Act, 1955 and the Delhi Municipal Corporation Act, 1957 are not in conflict with the ISP Rules, as they deal with different aspects of the transportation and sale of spirituous preparations. 4. The legislative competence of the State Legislatures is not ousted by Entry 84 of List I of the Seventh Schedule to the Constitution, as Entry 8 of List II specifically empowers the State Legislatures to legislate with respect to intoxicating liquors, which includes medicinal and toilet preparations containing alcohol. 5. Article 47 of the Constitution is not applicable to the present case, as it deals with the prohibition of intoxicating drinks and drugs, and the Excise Act and the ISP Rules do not prohibit the consumption of Ayurvedic medicines. 6. Article 19(1)(g) of the Constitution is not violated by the impugned Rules and Act, as the restrictions imposed on the sale and transportation of Ayurvedic medicines are reasonable and necessary to prevent their misuse as intoxicating beverages. 7. The Notification dated 3rd March, 1987 is valid, as it was published in accordance with the requirements of Section 58 of the Excise Act. 8. The Notification dated 5th March, 1987 is valid, as the Excise Commissioner has the power to exempt intoxicating spirituous preparations from the operation of the ISP Rules if they are incapable of being misused for potable purposes. 9. Rule 24(iii) of the ISP Rules is valid, as it is not an excessive delegation of power and is necessary to enable the Excise Commissioner to exempt intoxicating spirituous preparations from the operation of the Rules. 10. The Industries (Development and Regulation) Act, 1951 does not occupy the field and does not oust the legislative competence of the State Legislatures, as it only regulates the development of scheduled industries, and does not deal with the transportation and sale of medicinal and toilet preparations containing alcohol.
Final Decision: The writ petitions were dismissed with costs.
( 1 ) THE petitioners, apart from other Ayurvedic medicines also prepare Mrit Sanjivni, Mrit Sanjivni Sura, Mrit Sanjivni Sudha and Vrihad (Maha) Darakshasav. These are stated to be medicinal drugs but it is an admitted fact that they contain more than 40 per cent proof alcohol and the same are also misused, by some persons, and taken as intoxicating beverages.
( 2 ) THE anxiety not to be subjected to any control, even if it be for the benefit of the community at large, has led to the filing of a bunch of writ petitions by manufacturers of alcoholic medicinal preparations.
( 3 ) THE challenge in these writ petitions is primarily to the two Notifications dated 3rd March, 1987 and 5th March. 1987 issued by the Administrator of the Union Territory of Delhi and by the Commisisoner of Excise, respectively, the effect of which is that intoxicating spirituous preparations including Ayurvedic medicines, containing more than 25 per cent proof alcohol have been brought within the purview of the Delhi Intoxicating Spirituous Preparations Import, Export, Transport, Possession and Sale Rules, 1952 (heremafter referred to as the ISP Rules, 1952 ).
( 4 ) THE ISP Rules of 1952 have been framed under the provisions of the Punjab Excise Act, 1914 (hereinafter referred to as the Excise Act), as extended to the Union Territory of Delhi and a numbor of contentions have been raised seeking to challenge the validity of the said Notifications of 1987.
( 5 ) THE Excise Act, 1914 was extended to the Union Terrltory of Delhi vide Government of India Notification dated 30th May, 1939. This Act was extended by the Central Government in exercise of its powers under the Delhi Laws Act, 1912. Some of the umendments which were made in Punjab to the Punjab Excise Act were also extended, from time to time, to Delhi. The Act, when applie to Delhi, was extended wihout the preamble but the provisions of the Act, as extended, make it clear that it deals not only with the matters of excise revenue but also with regulation and control of import, export, transport, manufacture, sale and possession of the liquor. Thus the Act. contrary to what its name would suggest, not merely deals with the collection of excisie revenue but is intended to regulate and control liquor in practically all its aspects with a view not only to generate excise revenue but also to safeguard public health.
( 6 ) SECTION 3 (12 (a) of the Excise Act defines intoxicants as meaning any liquor or intoxicating drug. The term "1iquor" is defined by Section 3 (14) as meaning intoxicating liquor and includes all liquids consisting of or containing alcohol also in substance which the Lt. ,covemor of Delhi, may, by Notifieation. declare to be liquor for the purpose of this Act. Chapter 3 of the Act deals with in-port, export and transport of intoxicants, while manufacture, possession and safe of intoxicants is regulated by the provisions of Chapter 4 of the Act. The. Lt. Governor has been given power, by Section 58 of the Art, lo make rules for the purpose of carrying out the provisions, of the Act. It is in exercise of power under Section 58 of tba Act tfiat ISP Rules were notified on 19th February, 1953. The then Delhi Administration, similarly, under Section 3 (14) of the Excise Act issued another Notification dated 19th February, 1953 declaring 37 spirituous preparations to be liquor. This Notification now stands superseded by another Notification of 7th December, 1961 also issued under Section 3 (14) of the. Excise Act as a result of which the then Chief Commissioner, Delhi declared all spirituous preparations containing more than 20 per cent proof alcohol to be liquor for the purpose of the said Act.
( 7 ) INTOXICATED spirituous preparation has been defined by Rule l (g) of the ISP Rules as meaning the spirituous preparation declared as liquor by the Lt. Governor vide the aforesaid Notification of 7th December, 1961 as subsequently amended by Corrigendum dated 13th December, 1961 "and s
