{"id":154179,"date":"1952-10-31T00:00:00","date_gmt":"1952-10-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-bishambar-nath-vs-the-state-of-punjab-and-anr-on-31-october-1952"},"modified":"2019-02-25T01:23:51","modified_gmt":"2019-02-24T19:53:51","slug":"dr-bishambar-nath-vs-the-state-of-punjab-and-anr-on-31-october-1952","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-bishambar-nath-vs-the-state-of-punjab-and-anr-on-31-october-1952","title":{"rendered":"Dr. Bishambar Nath vs The State Of Punjab And Anr. on 31 October, 1952"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Dr. Bishambar Nath vs The State Of Punjab And Anr. on 31 October, 1952<\/div>\n
Equivalent citations: AIR 1953 P H 77<\/div>\n
Author: Soni<\/div>\n
Bench: Falshaw, Soni<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Soni, J. <\/p>\n
 1. This is an application for a writ of mandamus to issue to the State Government and the Excise and Taxation
\nCommissioner, Jullundur, requiring them to forbear from enforcing in this State the provisions of the Punjab Intoxicating
\nSpirituous Preparations, Import, Export, Transport, Possession and Sale Rules, 1952, contained in certain
\nnotifications. This application also contains a prayer that while declaring the rules and notifications as illegal, void and
\nunenforceable the State and the Excise and Taxation Commissioner be ordered to allow the petitioner to exercise
\nhis right to possess, consume or use, import, export, transport and manufacture the articles mentioned in the
\napplication which are the subject-matter of the said rules and notifications.\n<\/p>\n
 2. The matter arose in this way. The petitioner, Dr. Bashambar Nath, is a chemist registered under the
\nDrugs Act, 1942 and has a business concern in Amritsar and carries on the trade of dispensing prescriptions and
\nmanufacture of medicines. He was arrested on 19th May 1952 and put up for trial before a Magistrate’s Court in
\nAmritsar for offences in contravention of the provisions of the Punjab Intoxicating Spirituous Preparations, Import,
\nExport, Transport, Possession and Sale Rules, 1952. It is alleged that the said notifications issued by the Excise and
\nTaxation Commissioner did not allow the sale by the chemist of Tincture Zingiberis and Tincture Cardamomi to a certain
\nextent in a calendar month except by a permit previously obtained in that behalf. It was alleged by the State that the
\npetitioner had violated the rules of 1952 and had therefore come within Rule 22 (ii) which provided that any
\ninfringement of the provisions of these rules would be an offence under Section 61, Punjab Excise Act, 1914. The
\nproper course for a person who is being prosecuted for the violation of some section or rule of an Act is to raise
\nobjection before trying Court for its decision on that point and to move this Court on revision if the decision goes against
\nthe petitioner or in the alternative to move this Court under Article 228 of the Constitution and to satisfy this Court
\nthat a case pending in a subordinate Court involves a substantial question of law as to the interpretation of the
\nConstitution the determination of which is necessary for the disposal of the case and to request this Court to withdraw
\nthe case to itself and either to dispose of the case or to determine the question of law involved. The petitioner did neither
\nof the two things. What he did do was that he put in an application for a writ under Article  226 of the Constitution to
\nhave the rules and the notifications declared ‘ultra vires’. We could have rejected the petition on the ground that the
\nproper procedure had not been followed, but we thought it better to hear the petitioner and to treat the petition as if this
\nCourt had been moved under Article  228 of the Constitution.\n<\/p>\n
 3. Mr. R. P. Khosla counsel for the petitioner urged that these rules were ‘ultra vires’ of the Constitution,
\nthat the Act itself was ‘ultra vires’, that it denned liquor in a manner repugnant to the Constitution and that the
\nprohibition of sale of Tincture Zingiberis and Tincture Cardamomi was made by an authority which could not be
\ndelegated under the Constitution and that in any case the prohibition of the sale was against Clauses (f) and (g) of
\nArticle  19 (1) of the Constitution. The discussion on Clause (g) was dropped and the argument proceeded on
\nthree questions viz.-\n<\/p>\n
 (1) Whether the definition of liquor in the Punjab Excise Act of 1914 was ‘ultra vires’ of the
\nConstitution;\n<\/p>\n
 (2) Whether the rules made were not the rules which could properly be made, the objection being that this
\nwas a case of delegated legislation; and   <\/p>\n
 (3) Whether the restriction regarding the sale of the articles mentioned was contrary to the provisions of
\nClause (f) of Article 19(1) of the Constitution.\n<\/p>\n
 In support of his argument Mr. Khosla cited the judgment of their Lordships of the Supreme Court in —\n<\/p>\n
‘State of Bombay v. F. N. Balsara’,.<\/a> 1951 S. C. R. 682. This case, however, so far as the first two points are
\nconcerned, clearly goes against the petitioner. Fazi Ali, J. who delivered the judgment of their Lordships of the
\nSupreme Court had to consider the definition of the word ‘liquor’ as occurring in the Bombay Act which was the
\nsubject-matter of discussion in that case. In considering the definition of liquor his Lordship referred to not only
\nthe definition of the word ‘liquor’ as given in Section 24 of the Bombay Act but also referred to the definition of liquor
\ngiven in various statutes amongst which was the Punjab Excise Act, 1914, which was taken into consideration.\n<\/p>\n
 After discussing this matter at pages 702 to 706 of the report his Lordship came to the conclusion that
\nthe definition given in the Bombay Act which ran thus –\n<\/p>\n
 ” ‘Liquor’ includes –\n<\/p>\n
 (a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or
\ncontaining alcohol; and  <\/p>\n
 (b) any other intoxicating substance which the Provincial Government may, by notification in the
\nOfficial Gazette, declare to be liquor for the purposes of this Act”.\n<\/p>\n
 did not contravene Art 13 of the Constitution. The definition of liquor as given in Clause  14 of Section 3,
\nPunjab Excise Act, 1914, is as follows:- ” ‘Liquor’    means    intoxicating    liquor    and includes  all liquid
\nconsisting of or containing  alcohol;   also  any  substance  which  the Local    Government    may     by   notification
\ndeclare to be liquor for the purpose of this Act”.\n<\/p>\n
 In my opinion, the discussion given in the judgment of the Supreme Court covers the definition of the word ‘liquor’
\nas given in the Punjabi Excise Act and following that judgment I hold that the definition does not contravene the
\nprovisions of Article  13 of the Constitution.\n<\/p>\n
 4. The next objection that was taken was that the rules had been made in a manner which offended the
\nConstitution. A similar question was involved in the Bombay case before the Supreme Court, the discussion of which
\nis to be found at pp. 713 and 714 of the report. The Bombay High Court had declared Sections 52, 53 and
\n139 (c) of the Bombay Act to be invalid on the ground that they constituted ‘delegation of legislative power’. Fazl
\nAll J., on this point said at page 714:\n<\/p>\n
  “This  Court had to consider quite recently the question as to how far ‘delegated legislation’ is
\npermissible, and a reference to its final conclusion will show that delegation of the character which these sections
\ninvolve cannot on any view be held to be invalid. See ‘In re Constitution of India & Delhi Laws Act, (1912) Etc’,
\n1951 S. C. R. 747. A legislature while legislating cannot foresee and provide for all future contingencies and
\nSection 52 does no more than enable the duly authorised officer to meet contingencies and deal with various
\nsituations as they arise. The same consideration will apply to Sections 53 and 139 (c). The matter) howevers
\nneed not be pursued further, as it has already been dealt with elaborately in the case referred to”.\n<\/p>\n
 5. In the Punjab Excise Act the rules which are said to be an example of delegated legislation are issued under
\nthe provisions of Sections 5, 6, 16, 17, 18, 24 and 58, Punjab Excise Act. These sections enable the State
\nGovernment to issue the rules and these rules have been issued by the State Government. Tincture Cardamomi and
\nTincture Zingiberis are mentioned in Clauses 5 and 17 of notification No. 769 E&T-52\/1273 issued by
\nthe Government under Section 3 (14), Punjab Excise Act on 22nd March 1952. I do not see how the question
\nof delegated legislation arises in this case. After the trial had started the Government by a notification of 29th July
\n1952 No. 5208-E&T-52\/2868 declared Tincture Zingiberis Mitis and Tincture Cardamom! Co. as
\ncoming within the definition of liquor. By a notification of 30th July 1952 No. 5208-E&T-52\/2870 Go-\n<\/p>\n
vernment relaxed the earlier notification of 22nd March 1952 in so far as it increased the quantity which could be
\nkept by a registered practitioner from four ounces to one pound.\n<\/p>\n
 6. The  third  objection   which   was   raised by Mr. R. P.    Khosla   was   that   these   rules regarding sale
\nof these medicinal preparations contravened   Article  19(l)(f)   and   the   principles underlying   Article  47
\nof   the    Constitution.    In support of that Mr. Khosla relied on the ruling of the  Supreme   Court  given   in  the
\nBombay case  already  cited.     In   that   case,   however, their Lordships had to consider Sections 12, 13 and
\n339 of the Bombay Act amongst other sections. They are given  at pages 686  and 687  of  the report.\n<\/p>\n
Sections 12 and 13 ran as follows:–“12. No    person    shall  — (a)     manufacture liquor;   (b)  construct or
\nwork any distillery or  brewery;    (c)    import,   export,   transport or possess liquor; or  (d)  sell or buy liquor. 13.\n<\/p>\n
No person shall, —  (a)  bottle any liquor for sale;   (b)  consume or use liquor; or  (c) use,   keep   or   have in
\nhis   possession   any material,   still)   utensils,   implements   or   apparatus  whatsoever for  the  manufacture  of any
\nliquor.”\n<\/p>\n
 7. Section 139 stated that the State Government may by general or special order exempt any person or
\nclass of persons from the observance of all or any of the provisions of the Act or any rule, regulation or order
\nmade thereunder. ‘Fazl Ali. J., at pages 714 and 722 dealt with the question whether portions of Sections 12 and
\n13 read with rules issued under Section 139 were valid or whether they contravened Articles 19(1)(f) and 47 of
\nthe Constitution. His Lordship considered that the effect of the two section’s was that no person shall ‘inter alia’
\npossess, sell or buy or consume or use spirits of wine, methylated spirit, wine, beer,   toddy  and   all  liquids
\nconsisting  of  or containing   alcohol.   It  will  be   seen   that   the prohibition    regarding    possession,    sale,    con-\n<\/p>\n
sumption or use in the Bombay Act was absolute.     His   Lordship   came   to   the  conclusion which is given at
\npage 719–“I do not consider that it is reasonable that the possession, sale, purchase, consumption or use   of
\nmedicinal   and    toilet   preparations-should  be  prohibited  merely  because   there is a mere possibility of
\ntheir being misused by some perverted addicts.”\n<\/p>\n
 His  Lordship   then   dealt   with    the   question whether   because   of   the    notifications    there was any
\nmeaning left in declaring the provisions relating to purchase, sale, possession, use and consumption  of medicinal
\nand  toilet preparations containing alcohol to be invalid. His Lordship   referred  to  notifications   which   had been
\nissued under Section  139 of the Bombay Act. After  giving  portions  of  these  notifications his Lordship said as
\nfollows. “In  view of the  restrictions  imposed  on  the sale of these preparations, it is pertinent to enquire  whether
\nthose   restrictions  will ‘not also  affect  their   purchase,   possession,   use and  consumption,  and  whether the  so
\ncalled exemptions  contained  in  the  notification  of the 1st April really go as far as they purport to  go:- (vide  in   this
\nconnection   conditions-in col.   7   of   Notification No.   10484\/45   (a) of the first April, 1950).    Again,
\nin the Notification No.  10484\/45 of the 1st April, only 8   medicinal   preparations   are    totally   exe-\n<\/p>\n
mpted as regards their purchase, possession, and  use,  and  so  far  as  medicinal preparations for internal
\nconsumption  are  concerned,  only  those   containing   not   more   than 10 per cent  alcohol  or   17.5  per cent
\nproof spirit are exempted. This notification has to be read along with another notification No. 10484\/45\n<\/p>\n
(a)   of the  same date,  which was to remain in force till 31st March, 1951, only. In   the   latter  notification,   for
\nthe   purpose of possession,    purchase,    consumption    and use,  the  quantity  of  medicinal  preparations
\ncontaining  not  more  than    10  per   cent   of alcohol,  etc.,  is   restricted  to  such  quantity as may be prescribed
\nby a registered medical practitioner.\n<\/p>\n
 Even these notifications may be withdrawn, superseded or amended at any moment by the Provincial
\nGovernment, as was done in the case of the notifications issued on 16th June 1949, which have been referred to.\n<\/p>\n
An ordinary citizen may find it a perplexing task to attempt to extract information out of the long series of com-\n<\/p>\n
plicated regulations, as to the true nature and extent of the right which the law confers upon him. Indeed it was
\nonly with the help of the learned counsel appearing for the parties that we were able to know what the position was
\nup to 31st March 1950, and what changes were made on 1st April 1950. But in the bundle of notifications
\nwhich have been placed before us, there is no notification stating what step has been taken after 31st March
\n1951, and none was brought to our notice in the course of the arguments. Having given my careful consideration
\nto the matter, I am of the opinion that the restrictions imposed by the Act even when read with the above
\nnotifications are not reasonable,  and   I  would  affirm  the  conclusion arrived at by the High Court.”\n<\/p>\n
8. The Bombay case, however, is different from  the  Punjab  case.   I  have  already  given the  definition  of liquor as given
\nin Clause   14  of Section “3, Punjab Excise Act 1914. Clause 6 of that section defines excisable article.  It
\nsays: ” ‘Excisable article*  means  and  includes  any liquor  or  intoxicating  drug  as   denned   by or under this
\nAct.”\n<\/p>\n
 Section 24 deals with the possession of excisable articles.    Clause (1) of this section says: “No person shall have in his possession any quantity  of  any  excisable  article  in  excess of  such  quantity  as   the  State  Government has, under Section 5, declared to be the limit of retail  sale,  except  under  the  authority,  and in accordance with the terms and conditions of- <\/p>\n
 (a) a  license  for  the  manufacture,  sale  or supply of such article; or   <\/p>\n
 (b)  * *                    *                    *      .\n<\/p>\n
 (c) a  permit   granted by   the   Collector   in that  behalf.” Clause  (3)  says:\n<\/p>\n
 “A   licensed vendor shall not have .in his possession at any place, other than that authorised by his  license, any quantity of any excisable article in excess of such quantity as the State Government has under Section 5 declared to be the limit of sale by retail, except under a permit granted by the Collector in that behalf.” Clause (4) says:\n<\/p>\n
  “Notwithstanding   anything contained in the foregoing sub-sections, the State Government may by notification prohibit the possession of any excisable article, or restrict such possession by such condition as it may prescribe.”\n<\/p>\n
 Section 26 deals with sale. It says:\n<\/p>\n
  “No  liquor  shall   be   bottled   for   sale    and no  excisable  article   shall   be   sold,   except under the authority and subject to the terms and  conditions of a license granted  in  that behalf *             *          *.”\n<\/p>\n
 Section 34 deals with licenses. Section 56 deals with exemptions. It says:\n<\/p>\n
 “The State Government may, by notification, either  wholly  or   partially   and   subject   to such conditions as it may think fit to prescribe, exempt any excisable article from all or any of the provisions of this Act.” Section  53  deals  with  the  rule-making power by Government.  It will be  noticed that there is  wide  difference  between  the  provisions  of Sections  12 and  13   of   the   Bombay   Act   and   the provisions of Sections 24 and 26 of the Punjab Act. In the Bombay Act the prohibition is absolute. In the Punjab Act there is no absolute prohibition.    There is regulation for possession and sale.   The   judgment   of   the   Supreme   Court cited by Mr. Khosla, therefore, does not apply to the facts  of this   case.   Clause    (1) (f)    of Article 19 is governed bv Clause  (5)  of that Article of the Constitution. Clause  (5)   says: “Nothing   in   Sub-clauses   (d),   (e)  and  (f)  of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent    the    State    from    making    any    law imposing  reasonable    restrictions    on    the exercise of any of the rights conferred by the said   sub-clauses   either   in   the  interests   of the  general  public  or for  the  protection  of the interests of any Scheduled Tribe.” Mr.    Khosla’s    argument      was       that    the restrictions   imposed by   the rules really   were restrictions forbidding the possession, sale, use and consumption of medicinal drinks or drugs. There  is, however, a vast distinction between the actual prohibition and regulation, as their Lordships of the Privy Council said in the case of –‘Toronto Municipal Corporation v. Virgo’, (1896)  AC 88. At page 93 it is said: “But  their Lordships  think  there’ is   marked distinction  to  be   drawn  between   the -prohibition  or  prevention   of  a’ trade   and  the regulation  or  governance  of  it,  and  indeed a power to   regulate   and   govern   seems   to imply the continued existence of that which is to be regulated or governed.” Their Lordships stated  as a general principle at page 94:\n<\/p>\n
  “that a municipal power of regulation or of making by-laws for good Government, with out  express  words  of prohibition,  does  not authorise  the  making  it  unlawful  to  carry on a lawful trade in a lawful manner.”\n<\/p>\n
 In  the present case the Government is not prohibiting the possession and sale of medicinal drugs which fall within the definition of liquor under the   Punjab   Excise Act.   It   is   merely regulating  their   possession   and   sale   in   the general  public  interest  and   allows  possession and sale, to take place under conditions which are easily understandable and are not oppres sive by means of licenses and permits issued.\n<\/p>\n
 In   my   opinion,   therefore,   the   ruling   of   the Supreme Court in the Bombay case does not apply to the facts of this case.    Reference may be  made  to  a  decision  of their  Lordships of the Privy Council in  the case of a– ‘Slattery v. Naylor’,   (1888)    13 A   C   446. ‘There   their Lordships  had  to  consider  the  validity  of  a bye-law  for  regulating the   interment   of   the dead and their Lordships held that the bye-law was not ‘ultra vires’ by reason of its prohibi ting interment altogether in a particular ceme tery  and  thereby  destroying  the  private  property of the owners of  burial places  therein.\n<\/p>\n
 At pages 449 and 450, their Lordships, say(sic)
\n  “It  is  difficult   to  see   how  the  Council   can make   efficient   bye-laws   for   such    objects as  preventing, fires,  preventing  and   regulating  places   of   amusement,   regulating   the killing of cattle and sale of butcher’s meat, preventing  bathing,  providing  for the  general health,   not   to   mention   others,   unless they have  substantial powers of  restraining people, both in their freedom of action and in   their  enjoyment   of  property.”\n<\/p>\n
 It  may  well  be  argued  by  counsel  in that case    that  regulation      includes    prohibition where the   circumstances   justify   it,   that   is where prohibition was necessary or incidental to   regulation.     I  would,   therefore,  hold   that the  impugned   rules   issued   under  notification No.   769-E&T-52\/1275  issued   on   22nd   March 1952, called the Punjab Intoxicating Spirituous Preparations  Import,   Export,   Transport,   Possession and Sale Rules, 1952, and the impugned notification    No.     7 69-E&T-52\/127 3    of     22nd March   1952,  declaring  amongst ‘other  spirituous    preparations    Tincture      Zingiberis    and Tincture Cardamomi Co. to be liquor, are not ‘ultra vires’ of the Constitution.\n<\/p>\n
 9. The result is that this petition , is dismissed. The case in the Magistrate’s Court will proceed and will be decided on its merits.\n<\/p>\n
 10. I agree.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Dr. Bishambar Nath vs The State Of Punjab And Anr. on 31 October, 1952 Equivalent citations: AIR 1953 P H 77 Author: Soni Bench: Falshaw, Soni JUDGMENT Soni, J. 1. This is an application for a writ of mandamus to issue to the State Government and the Excise and Taxation Commissioner, Jullundur, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-154179","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nDr. Bishambar Nath vs The State Of Punjab And Anr. on 31 October, 1952 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-bishambar-nath-vs-the-state-of-punjab-and-anr-on-31-october-1952\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr. Bishambar Nath vs The State Of Punjab And Anr. on 31 October, 1952 - 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