The State has jurisdiction to require separate licensing for Ayurvedic medicines containing alcohol despite existing Central licences, reaffirming the principle of regulatory authority under Article 254 of the Constitution.

JUDGMENT

Amit Rawal, J.

1. Writ petition filed by the appellant/petitioner challenging Ext.P27 order dismissing his licence and the declaration of the provisions of the Kerala Spirituous Preparations (Control) Rules , 1969, was not accepted by the Single Bench, thus preferred this intra court appeal inter alia on the following points:

Appellant/petitioner is a registered medical practitioner in Ayurvedic Medicine and also a licensee for manufacture for sale of Ayurvedic including Siddha or Unani drugs at his pharmaceuticals since 30.11.2009 and has also been issued a licence in FORM 25-D under the Drugs and Cosmetic Acts, 1940, (hereinafter called 1940 Act) and Drugs and Cosmetic Rules, 1945 (hereinafter called 1945 Rules) which was valid upto 29.11.2012. On submission of the application for renewal of the licence under Section 25A, the authorities empowered to do so had been renewing the same from time to time. When the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 was in vouge, had been issued a licence in FORM L-2 as well as the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956, for the preparation of medicines containing alcohol, opium, Indian hemp and other narcotic drugs. The aforementioned licence was issued by the then Assistant Excise Commissioner as evident from Ext.P5 which had been renewed from time to time. It is pertinent to mention here by provisions of Section 174 of the GST Act, the 1955 Act had been repealed. Therefore, there was no necessity to obtain the licence.

2. Grievance in the writ petition arose when the respondent-authorities established under the Abkari Act and for implementation of the Rule called the Kerala Spirituous Preparations (Control) Rules , 1969 (hereinafter called ‘1969 Rules’ for short) forced the petitioner to obtain a licence in FORM SP VII as prescribed under Rule 11 of the 1969 Rules. The said act of the respondent-Authorities was totally without jurisdiction as the licence in FORM 25-D under 1940 Act and 1945 Rules had already been issued. In view of the law laid down inThirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of Tamil Nadu And Others (1996) 3 SCC 15 , there is a repugnancy in the Central and State Act leading to a contradiction and as per the settled law, in view of such contradictions, it will be the Central law which would prevail,. Show Cause Ext.P27 was issued owing to the registration of the crime cases while transportation of two medicines namely ‘Arishtas’ and ‘Asavas’ lacked issuance of licence provided under Rule 11 ie., FORM SP VI. Various crime cases though have been compounded, few are still pending.

3. The aforementioned pleas were countered by the State on the premise that the appellant/petitioner had not taken the licences ie., SP VI and SP VII prescribed under Rule 11 of the 1969 Rules for wholesale and retail sale of the medicines referred to above ie., ‘Arishtas’ and ‘Asavas’ manufactured in FORM L2 licence for medicines. At earlier point of time, appellant/petitioner had obtained SP VI licence as evident from Ext.P7 and challan Ext.P8 but under a wrong notion did not deposit the challan and taken the licence on the premise that he had already been issued a licence under Form 25-D of 1940 Act. Ten (10) Abkari cases were registered against the appellant/petitioner in various Excise Ranges of Thiruvananthapuram Division for violation of the repealed Act ie., 1955. It was reported by the concerned authorities that products were sold through some SP VII licence premises to public without any prescription from a qualified practitioner. The licence FORM L-2 issued under the Repealed Act, 1955, authorised the appellant/petitioner to manufacture Ayurvedic Medicines but the medicines referred to above contain liquor upto 12% v/v. In order to test whether it exceeds the said limit, it is required to obtain a licence under Rule 11 of 1969 Rules. Emphasis was laid to the report of Superi