ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 06-03-2024 In the instant petition, petitioner has prayed for the following relief(s):-

“(i) For issuance of an appropriate writ of certiorari, quashing the order dated 28.12.23 as contained in Memo No. 14/M&TP/2023-8171, passed by the Respondent No 2 namely The Secretary, Registration. Excise and Prohibition Department, Bihar, Patna by which the application of the petitioner for issuance of necessary orders enabling the petitioner to procure/purchase Extra Neutral Alcohol (ENA) for manufacture of Homeopathic Medicines, has been rejected on a flimsy ground that in the light of the judgment and orders passed by the Hon'ble Supreme Court and Hon'ble Patna High Court and Section 13 and 17 of the Bihar Prohibition and Excise Act, 2016, grant of new license to the petitioner and allotment of ENA would not be in accordance with law;

(ii) Issuance of a writ of Mandamus, directing the respondents particularly the respondent no. 2 to issue necessary orders, enabling the petitioner to procure/purchase Extra Neutral Alcohol (ENA) for manufacture of Homeopathy Medicine;

(iii) Pass such other order(s) as your Lordships may deem fit and proper in the facts and circumstances of the present case.”

2. Petitioner proprietorship industry established with an object of manufacture for sale (or distribution of) homeopathic medicine. In this regard, he had obtained license under the Drugs and Cosmetics Act, 1940. Such license has been issued by the State Drug Controller (Ayush)-cum-State Licensing Authority, Bihar, Patna, and it is in the Form – 25-C (vide Rule-85D), such license was issued on 25.02.2022, and it would be in vogue for the period from 25.02.2022 to 24.02.2027. Faced with these dates and events, petitioner approached the Excise Department in procuring 12,000 litres of ENA (Extra Neutral Alcohol) on 11.04.2023. Application was not disposed of or his grievance has not been redressed, resulted in filing CWJC No. 9801 of 2023 and it was disposed on 28.07.2023 while directing the Excise Commissioner – respondent to pass a detailed speaking order. Accordingly, petitioner grievance has been rejected on 28.12.2023. Hence, the present petition.

3. Learned counsel for the petitioner submitted that rejection of petitioner’s grievance insofar as providing 12,000 liters of ENA is contrary to earlier two decisions of this Court which were affirmed by the Hon’ble Supreme Court which are part and parcel of this petition, namely, CWJC No. 6415 of 2016 decided on 27.10.2016 and CWJC No. 8705 of 2017 decided on 12.02.2018. Hon’ble Supreme Court in Civil Appeal No. 247 of 2017 affirmed the decision of this Court on 20.04.2018 in SLP(C) No. 9375 of 2018. The principle laid down in the aforementioned decision of the Co-ordinate Bench has been completely ignored. However, it is submitted that earlier decisions are applicable to such of those existing license at the relevant point of time whereas the petitioners intends to manufacture homeopathic medicine with reference to license dated 25.02.2022. In other words, for new manufacturer providing ENA is not permissible. In support of such contention learned counsel for the respondents relied on Section 13 & 17 read with Section 2 (40) of Bihar Prohibition and Excise Act, 2016.

4. Learned counsel for the petitioner submitted that reasoning assigned in the impugned order dated 28.12.2023 is incorrect. It is submitted that State has come up with policy decision insofar as manufacture of medicines it is dated 17.03.2016 bearing memo no. 1507 which was subject matter of CWJC No. 6415 of 2016 and it was set aside by Co-ordinate Bench on 27.10.2016. The same principle was reiterated in subsequent decision in CWJC No. 8705 of 2017 and it was dispose of on 12.02.2018. It is further submitted that denial of providing requesite ENA for the purpose of manufacture homeopathy medicine to the petitioner amounts to discrimination and it is in violation of Article 19(