TMI Blog1964 (10) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ns (Excise Duties) Act, 1955, and the rules made thereunder for the production of the articles required by them and those applications used to be granted. But when they applied for licences for the year 1963-64, licenses were granted only to a limited extent for certain items and license was totally denied for certain items. It was in those circumstances that the earlier writ applications, O. P. No. 891 and O. P. No. 1964, were moved in this Court. 2a. Licenses were issued only to limited extent on the basis of two orders Exts. P 4 and P 5 passed by the Board of Revenue, the 2nd respondent to this writ application. I am assuming for the purposes of these cases, and it is also agreed by counsel, that the Board of Revenue has the powers of the Excise Commissioner mentioned in the rules framed under the Act. 3. In Ext. P 4, it is said : There have been allegations that the actual manufacture of spirituous medicinal preparations (restricted and non-restricted) are far in excess of the actual requirements of the Government, Private and Charitable Medical Institutions and private dispensaries and that large part of the quantity and items so manufactured are 'not for bona fid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealth Services and in quantities fixed by him as above. (ii) The quantity required for non-Government purposes will be distributed equally among the licensees. The Pharmaceutical or Pharmaceuticals which enjoy Government contract will be allowed in addition to manufacture the Government requirements also. (iii) If there are orders for export out of Kerala, those items may be permitted to be manufactured by the Pharmaceuticals concerned after examination of individual applications to the Board. The pharmaceutical licensees will have to adjust, their manufacturing programme on the above basis. No import of any tincture or other official pharmacopoeial preparations will be permitted into the State. The above orders will not however affect the manufacture or import of patent or proprietary preparations. It is clear from the above order that the manufacturers will be allowed to produce only the 15 items mentioned therein. This order of the Board of Revenue was modified later, apparently on the representations made by those engaged in the preparation of medicinal preparations, on 23-7-1963, and the copy, of that order is Ext. P 5. By this Order 48 items have been allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the power to introduce such restrictions, had there been any, would be violative of Article 19 of the Constitution of India. But as has been pointed out by the learned Advocate General, the question as to whether if the Act contained any provisions enabling restrictions being imposed those provisions would be valid or not does not arise for consideration in these petitions, for no challenge has been made on the validity of any of the provisions of the statute. 9. The enquiry must therefore be confined to an examination of the provisions of the Act and the Rules to find out whether there is provision therein enabling the 2nd respondent to impose the restrictions contained in Exts. P4 and P5. 10. I need refer only to those Sections and Rules which the learned Advocate General relied on. These are Section 6 of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, Rule 84 of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. I extract Section 6 as well as Rule 84 of the Medicinal and Toilet Preparations (Excise Duties) Act and Rules. 6. Certain operations to be subject to licences.--(1) The Central Government may, by notification in the Official Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Rule 84 and the provisions in the form A L-1 show that the statute provides for control not merely of a regulating nature for the purpose of ensuring the collection of duty imposed by the Act but also control of the quantum and the number of articles that could be allowed to be manufactured. According to the Advocate General, the Section, the Rule and the Form clearly provide the power to impose the restrictions of the nature that have been imposed by Exts. P4 and P5. It is rightly argued that I should not refer to the preamble of the statute or apply any general theory for whittling down the scope and the effect of these provisions. Reference was made to a decision of the Privy Council in Emperor v. Benoari Lal Sarma, which is a judgment in appeal from the decision of the Federal Court of India reported in Emperor v. Benoari Lal Sarma, The Lord Chancellor approved the judgment of the Federal Court Judge, Rowland and said : The question whether the Ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy. The ambit and scope of a Section should not be limited by reference to general jurisprudence or principles or policy. And it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions relate (a) to the place where the manufacturing process may be carried on and (b) restrictions for ensuing the proper levy and collection of duty imposed by the Act. In the light of the above, it is not possible to understand Section 6 as enabling something more being done by way of control. The same reasoning must apply in interpreting the scope of Rule 84 and the contents of the form of licence Form A L-1. So understood there is nothing whatever in the provisions relied on by the Advocate General which is not in consonance with the scheme and purpose of the Act as discernible from the provisions thereof, to assure the proper levy and collection of duty on the dutiable goods. 13. Rule 60 of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1958 divides the articles that could be manufactured into two categories, 'restricted' and 'unrestricted'. Rule 59 indicates that the articles to be manufactured must conform to one of the two categories mentioned in that Rule. (i) Official allopathic preparations which are made strictly in accordance with the formulae given in the official current editions of the undermentioned Pharmacopoeia. (1) The Bri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a citizen uses eau-de-cologne or lavender water for the purpose of toilet, he is not doing anything against public interest. It is only when he is perverting their use that it may be said that he is acting against public interest. Therefore, in our opinion, while it was open to the Legislature to provide against the abuse of these articles, it was not open to it to prevent its legitimate use. But the Legislature has totally prohibited the use and possession of all liquids containing alcohol except under permits to be granted by Government. It is contended by the Advocate General that a citizen may possess eau-de-cologne or lavender water under a permit. But that is a restriction upon the right of the citizen to acquire, hold and dispose of property, and, in our opinion, that restriction is not reasonable. The same argument applies to medicinal and toilet preparations containing alcohol. Therefore, we hold that to the extent which the Prohibition Act prevents the possession, use, and consumption of non-beverages and medicines and toilet preparations containing alcohol for legitimate purposes the provisions are void as offending against Article 19(1)(f) of the Constitution even if t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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