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1978 Supreme(All) 541
Allahbad High Court
N.D.OJHA,R.R.RASTOGI
Vir Narain Tyagi - Appellant
Versus
State of U.P. - Respondent
Decided On : 09/07/1978
S.P. Gupta, for Petitioner; Standing Counsel, for Respondents.
The State Legislature has the jurisdiction to make legislation in regard to medicinal preparations containing alcohol, provided that such legislation is not discriminatory and is based on a reasonable classification.
Headnote:
The Court held that the impugned notifications issued by the State Government of Uttar Pradesh and Excise Commissioner, U. P. under various sections of the U. P. Excise Act were ultra vires the powers of the State Legislature and contravened the provisions of Art. 14, 19 (1) (g) and 301 of the Constitution of India. The Court further held that the impugned notifications were hit by Art. 14 of the Constitution as they were discriminatory and based on no reasonable classification.
Fact of the Case:
The petitioners, who were engaged in the business of manufacturing, selling, and possessing various medicinal preparations containing alcohol, challenged the validity of certain notifications issued by the State Government of Uttar Pradesh and Excise Commissioner, U. P. under various sections of the U. P. Excise Act. The notifications declared certain medicinal preparations as liquor, framed rules for their transport, possession, and sale, and exempted certain preparations from the operation of the Act. The petitioners contended that the State Legislature lacked the jurisdiction to make any legislation in regard to the medicinal preparations specified in the impugned notifications, that the impugned notifications were hit by Art. 19 (1) (g) of the Constitution, that they contravened the provisions of Art. 301 of the Constitution, and that they were discriminatory and based on no reasonable classification.
Finding of the Court:
The Court held that the impugned notifications were ultra vires the powers of the State Legislature and contravened the provisions of Art. 14, 19 (1) (g) and 301 of the Constitution of India. The Court further held that the impugned notifications were hit by Art. 14 of the Constitution as they were discriminatory and based on no reasonable classification.
Issues: 1. Whether the State Legislature had the jurisdiction to make any legislation in regard to the medicinal preparations specified in the impugned notifications? 2. Whether the impugned notifications were hit by Art. 19 (1) (g) of the Constitution? 3. Whether the impugned notifications contravened the provisions of Art. 301 of the Constitution? 4. Whether the impugned notifications were discriminatory and based on no reasonable classification?
Ratio Decidendi: 1. The Court held that the State Legislature had the jurisdiction to make legislation in regard to the medicinal preparations specified in the impugned notifications, as the power to legislate in respect of intoxicating liquors and narcotic drugs (Entry 31 of List II) also vested in the Provincial legislature. The Court further held that the impugned notifications were not hit by Art. 19 (1) (g) of the Constitution, as the restrictions placed by the impugned rules on the use of medicinal preparations specified therein so as to prevent their misuse as alcoholic beverage could not be said to be unreasonable. The Court also held that the impugned notifications did not contravene the provisions of Art. 301 of the Constitution, as they only purported to regulate the trade and commerce in medicinal preparations containing alcohol and did not impose any total prohibition on their import, manufacture, possession, sale, or supply. 2. The Court further held that the impugned notifications were hit by Art. 14 of the Constitution as they were discriminatory and based on no reasonable classification. The Court noted that the impugned notifications had been issued only in 12 districts of Uttar Pradesh where prohibition had been imposed, while in the remaining districts, no such restrictions were placed on the medicinal preparations. The Court held that this classification was unreasonable and arbitrary, as there was no rational basis for imposing restrictions on the medicinal preparations in the 12 districts where prohibition had been imposed, while allowing their free sale and consumption in the remaining districts.
Final Decision: The Court allowed the writ petitions and quashed the impugned notifications issued under Ss. 4, 40, 41, 75, and 76 of the U. P. Excise Act.
N. D. OJHA, J.:- These writ petitions challenge the validity of certain notifications issued by the State Government of Uttar Pradesh and Excise Commissioner, U. P. under various sections of the U. P. Excise Act (hereinafter referred to as the Act). Notification No. 1130-E/XIII-523-72 under S. 4, No. 1128-E/XIII-523-72 under S. 40, No. 1131-E/XIII-523-72 under S. 75 and No. 1132-E/XIII-523-72 under S. 76 of the Act were issued by the State Government. All these notifications are dated February 13, 1978. A fifth Notification No. 11719/XXV-19 was issued on the same date by the Excise Commissioner, U. P. All these five notifications were published in the U. P. Gazette Extraordinary dated Feb. 13, 1978. By the notification under S. 4 it was declared that 16 spirituous medicinal preparations specified therein shall be deemed to be liquor for the purposes of transport, possession and sale only within the meaning of the Act One of these 16 spirituous medicinal preparations, viz., Mrit Sanjiwani Sura, is an Ayurvedic preparation and the remaining 15 are spirits and tinctures. The notification under S. 40 contained rules framed by the State Government, under the said section known as the Uttar Pradesh Transport and Possession of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978. By the notification under S. 75 the State Government directed that the provisions of Ss. 1 to 74 of the Act and the Uttar Pradesh Transport and Possession of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978, shall apply to the possession, sale or supply of 16 " bona fide medicated articles for medicinal purposes by medical practitioners, chemists, druggists, apothecaries and keepers of dispensaries." These 16 medicated articles are the same as were declared liquor by the notification under S. 4. By the notification under S. 76 the State Government exempted throughout Uttar Pradesh the " Notified Restricted Spirituous Preparations" as defined in Rule 2 (ii) of the Uttar Pradesh Transport and Possession of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978, from the operation of the provisions of the U. P. Excise Act, other than Ss. 1, 3, 4, 6 to 8, 10, 11, 13, 14 to 16, 20, 21, 32 to 41, 41 to 55, 57, 58, 60 and 63 to 79 of the Rules made under the aforesaid Act other than the Uttar Pradesh Transport and Possession of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978. The notification under S. 41 contained Rules framed by the Excise Commissioner with the previous sanction of the State Government known as the Uttar Pradesh Sale of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978.
2. Subsequently the State Government issued two more notifications on May 30, 1978 - one being No. 5368-E/XIII-564-77 under S. 4 of the Act declaring that homeopathic dilutions containing alcohol and Mrit Sanjiwani as well as Mrit Sanjiwani Sudha shall be deemed to be liquor for the purposes of transport, possession and sale only within the meaning of the Act and the other being No. 5369-E/XIII-564-77 under S. 75 of the Act directing that the provisions of Ss. 1 to 74 of the Act and the 1978 Rules aforesaid framed under S. 40 shall apply to the possession, sale or supply of homeopathic dilutions containing alcohol and Mrit Sanjiwani as well as Mrit Sanjiwani Sudha. It is these seven notifications which are sought to be quashed in one or the other of these connected 23 Writ Petitions which broadly speaking can be placed in three sets. One set of these writ petitions challenges the aforesaid notifications in so far as they relate to Mrit Sanjiwani Sura and the other in so far as they relate to the 15 spirits and tinctures as specified in the relevant notifications dated February 13, 1978. The third set challenges them as also the two notifications dated May 30, 1978, in so far as they relate to the homeopathic dilutions. During the pen
