( 1 ) THE petitioners in all these cases are dealing in a kind of jaggery which is known as rotten gur. They challenge in all these petitions the vires of sec. 2 (39a) sec. 64 sec. 64a and sec. 70a of the Bombay Prohibition Act 1949 The impugned sections were inserted by Gujarat Legislature by enacting Bombay Prohibition (Gujarat Amendment) Act 1978 The Act was preceded by an Ordinance. We may state that the Ordinance was in the same terms as the Amendment Act is. The Ordinance was promulgated in 1977.

( 2 ) THE contentions which have been raised on behalf of the petitioners are as follows :- (1) The impugned provisions are in the nature of restrictions on freedom of trade commerce and intercourse guaranted by Art 301 and are not saved by Art. 304. (2) The impugned provisions impose an unreasonable restriction on the fundamental right guaranteed to the petitioners under Art. 19 (1) (g) of the Constitution. (3) The impugned provisions are ultra vires the legislative competence of the State Legislature under Entry 8 in the State List. Before we examine the three contentions which have been raised on behalf of the petitioners it is necessary to state that history of legislation in regard to rotten gur. On 3rd May 1950 after the Bombay Prohibition Act was enacted in 1949 the Government of Bombay issued an Order under Clause (b) of sec. 139 of the Act. Rotten gur was defined in that order in the following terms:- " rotten gur means gur containing less than 50 per cent sucrose and more than 20 pet cent reducing sugars". PARAGRAPH 2 of that order prohibited the sale of rotten gur within the limits of the State of Bombay except under and in accordance with the conditions of a licence issued under that order. Paragraphs 3 and 4 laid down the procedure for making application for obtaining a licence deal in rotten gur. The form of licence and the conditions annexed thereto were also a part of that Order. We may state that that Order not only was applicable to rotten gur but also to rotten dates. We are not concerned in these cases with rotten dates. Therefore we are referring to that order only for the purpose of rotten gur.

( 3 ) THAT order was replaced by another order which the Government of Bombay made on 6th November 1958 under clause (b) of sec. 139 of the Bombay Prohibition Act 1949 It defined rotten gur in the following terms:-GUR which is unfit for human consumption or the consumption of which is injurious to health. Explanation appended to that definition provided:- gur shall be deemed to be unfit for human consumption or the consumption of it shall be deemed to be injurious to health if it is of dark brown colour with strong smell or if on chemical analysis it is found to contain more than 15 per cent of reducing sugars or less than 70 per cent of total sugars. IT prohibited possession and use of rotten gur except under and in accordance with the conditions of a licence issued thereunder. It contained provisions which laid down the procedure for making an application for obtaining a licence for dealing in rotten gur. The form of application was also appended to it. So also was appended to it the form of licence which could be issued under that order. That order was challenged in this Court in Special Civil Application No. 591 of 1962. During the course of hearing of that petition the Government revoked that order on 4 May 1963. Therefore that petition was not decided on merits and was dismissed as it had become infructuous.

( 4 ) ON 30th June 1976 the Director of Health Services Gujarat State issued a circular to District Health Officers Broach Surat and Bulsar directing them to stop businses in rotten gur. That circular was challenged in this Court in Special Civil Applications No. 1124 of 1977 and 1150 of 1977. Those petitions were withdrawn because the petitioners wanted the validity of that contention to be tested in Criminal Case. No. 1364 of 1977 which was then pending before the learned Ju