JUDGMENT

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. The petitioners have challenged vires of amended Section 2 (39-A) of the Bombay Prohibition Act,1949 amended by Gujarat Act, No. 27 of 2003.

2. Brief facts are as under:

2.1 The petitioners are agriculturists mainly engaged in growing sugarcane. They are manufacturing gur from such sugarcane. Sugarcane harvesting season is between November and March. Once the sugarcane crop is harvested, it could be used either for manufacture of sugar or for gur. Much of the business of manufacturing sugar is in the hands of sugar co-operatives. If a farmer is not a member of sugar co-operative, he would not be able to sale his sugarcane to the sugar factory. The petitioners being small farmers and not being members of any sugar co-operatives, are engaged in manufacturing of gur from their own sugarcane. The petitioners point out that like them in the State, there are approximately 1115 crushers, who are engaged in manufacture of gur from sugarcane. Annually they produce around 60,000 tonnes of gur by utilizing approximately 6 lacs tonnes of sugarcane. Around 23,000 families of agriculturists and labourers depend on this business.

3. The Bombay Prohibition Act, 1949 pertains to consolidation of the law relating to the promotion, enforcement of and carrying into effect the policy of prohibition. Various provisions have been made in the Bombay Prohibition Act, 1949 for implementing the State's prohibition policy. Section 2 (39-A) of the Bombay Prohibition Act, 1949 defines the term “rotten gur”. Until 29.09.2003, Section 2 (39-A) defining rotten gur read as under:

“2 (39-A). “rotten gur” means the article known as gur, gul, jiggery, palmyra jiggery or rab and other intermediary product prepared by boiling or processing juice pressed out of sugarcane or extracted from palmyra palm, date palm, sogo palm, prabpalm or coconut palm, with or without admixture of molasses, and which is in a liquid form or a semiliquid or viscous form and which has a dark brown or a black colour or which, inspite of being a solid liquid, semi-liquid or viscous form, is unfit for human consumption owing to its becoming filthy, putrid, disgusting or decomposed;]”

4. Section 64 of the Bombay Prohibition Act, 1949, in turn, provides that no person shall have in his possession, except under a permit granted by an officer empowered by the Government, any quantity of rotten gur in excess of such quantity as may be specified by the Government by notification published in official gazette. Section 64A of the Bombay Prohibition Act, 1949 further provides that no person shall manufacture, use or consume rotten gur except under the authority, and in accordance with the terms and conditions of, a license, permit, pass or authorization granted by an officer empowered by the Government.

5. Vires of said Section 2 (39-A) as it stood prior to 29.09.2003 came to be challenged before this Court in case of M/s. Kantilal & co. Vs. State of Gujarat and anr. reported in 1980 2 GLR 260. The High Court, upheld the constitutionality of the said provisions. The challenge was carried in appeal before the Supreme Court. It was argued that the State Legislature did not have competence and also that the field was already occupied by the Union Legislature. The Supreme Court in case of Razakbhai Issakbhai Mansuri and ors vs. State of Gujarat and ors. reported in 1993 Supp. (2) SCC 659 repelled such challenge. It was held that the State Legislature had the necessary competence to enact such a provision. It was observed that there was no restriction on carrying the business in gur or rotten gur. All that was required was to obtain a permit for dealing in the business of rotten gur.

6. By amending Gujarat Act, 27 of 2003, following portion was added to the definition of term “rotten gur” contained in Section 2 (39-A) of the Bombay Prohibition Ac