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1979 Supreme(Ker) 253
High Court of Kerala
V.P. Gopalan Nambiyar, V. Bhaskaran Nambiar, T. Chandrasekhara Menon, JJ.
Enoch Pharma - Appellant
Versus
State of Kerala - Respondent
O.P. No. 4935 of 1974
Decided On : 02-01-1979
The Medicinal and Toilet Preparations Act, 1955 and the Abkari Act, 1077 provide for reasonable restrictions on the exercise of fundamental rights and are meant to prevent the abuse of alcohol for the manufacture of spurious drugs and medicinal preparations, which are deleterious to public health.
Headnote:
The petitioners, engaged in the manufacture and sale of medicinal and toilet preparations, challenged the constitutional validity of certain sections and rules under the Medicinal and Toilet Preparations Act, 1955 and the Abkari Act, 1077. The court analyzed the legislative competence of the Act, the reasonableness of the restrictions imposed on the fundamental rights, and the power of the State to levy supervision charges. The court found that the impugned provisions were meant to prevent the abuse of alcohol for the manufacture of spurious drugs and medicinal preparations, which are deleterious to public health. The court held that the provisions constituted reasonable restrictions on the exercise of the fundamental rights under Art.19(1)(f) and (g) of the Constitution. The court also ruled that the State had the exclusive privilege in respect of the manufacture, possession, sale, or consumption of intoxicating liquors and drugs, and that the impugned provisions did not violate Art.301 of the Constitution. The court dismissed the writ petition.
Gopalan Nambiyar, C. J.
1.The five writ petitioners are engaged in the manufacture and sale of medicinal and toilet preparations. The preparations manufactured by them are stated to be drugs and medicines covered by the British Pharmacopoeia, Indian Pharmacopoeia, etc., and used mainly for external use or internal consumption as medicine. The petitioners have licences under the Medicinal and Toilet Preparations Act, 1955 and also under the Drugs Act, 1940. The licences of the two of the petitioners are produced, by way of sample, as Exts. P-1 and P-2. A large number of medicinal preparations manufactured by the petitioners contain alcohol. The manufacture of medicinal and toilet preparations is now controlled by the Medicinal and Toilet Preparations Act, 1955, and the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. Before the coming into force of the said Act and the Rules the medicinal and toilet preparations were controlled by the provisions of the Abkari Acts of Travancore and Cochin States and the Rules framed thereunder. S.21 of the Medicinal and Toilet Preparations Act repealed the Abkari Act, but served the Rules made, ratifications issued, licences granted etc., in so far as they are not inconsistent with the Act, and deemed them as having been made, conferred or granted under the provisions of the 1955 Act. R.143 of the 1956 Rules repealed all Rules under any law corresponding to the 1955 Act in force in any State. Thus, the Rules under the Abkari Rules were also repealed. In 1967, the State of Kerala consolidated and amended the law relating to import, export, manufacture, possession, etc., of intoxicating liquor and drugs by extending the Cochin Abkari Act 1 of 1077 to the whole of Kerala. Under S.29 of the Abkari Act 1 of 1077, two sets of Rules were framed, namely, (1) the Kerala Spirituous Preparations Control Rules, 1969 and (2) the Kerala Rectified Spirit Rules, 1972. The petitioners attack S.12, 12A, 12B, 13, 13A, 14 and 68A of the Act and R.4, 5 and 6 (3) and 11(a) of the Rules. They have accordingly prayed to declare these sections and Rules as unconstitutional. This is the main relief prayed for in the writ petition. The incidental reliefs prayed for include the quashing of a Circular (Ext. P-3) issued by the Board of Revenue to implement the Act and the Rules.
2. The legislative competence to pass the Act is attacked on the ground that the subject matter of the Act belongs to entry 84 of List 1 and also to entries 51 and 52 of List I. These entries read as follows:
"84. Duties of excise on tobacco and other goods manufactured or produced in India except --
(a) alcoholic liquors for human consumption;
(b) opium, Indian hemp and other narcotic drugs and narcotics, but including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry".
51. Establishment of standards of quality for goods to be exported out of India or transported from one State to another.
52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest."
For the State, the learned Advocate General relied on entry Nos. 8 and 51 of List II and entries 19 and 33 of List III. These entries read:
"8. Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors.
x x x x
51. Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India:--
(a) alcoholic liquors for human consumption;
(b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry."
"19. Drugs and poisons, subject to the provisions of entry 59 of List I with respect to opium.
x x x x
33. Trade and commerce in, and the production, supply an
