Confederation of Indian Alcoholic Beverage Companies vs The State of Bihar & Ors

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6675 of 2016 =========================================================== 1. Confederation of Indian Alcoholic Beverage Companies, a Section 25 company having its office at Z-27, Hauz Khas, New Delhi- 110016 through its Authorized Signatory Brigadier K C Pant (Rtd.), son of Lt. Shri S.P. Pant, resident of 283, Sector 23, Gurgaon, (Haryana)-122017.

2. International Spirits & Wines Association of India, a Section 25 Company having its Office at Vivanta by Taj- Ambassador, Sujan Singh Park, Subramania Bharti Marg, New Delhi- 110003 through its Authorized Signatory, Parvinder Singh Bhatia, Son of Late Sh. Surjit Singh Bhatia, aged 52 years, resident of House No. 110, Phase III BI, Mohali, (Punjab)- 160059.

.... .... Petitioners Versus 1. The State of Bihar through the Principal Secretary, Registration, Excise & Prohibition Department, Government of Bihar, Patna at Vikas Bhawan, Patna- 800015. 2. Bihar State Beverages Corporation Limited, a Government of Bihar Enterprise through its Managing Director at First Floor, Vidyut Bhawan-II, Jawaharlal Nehru Marg, Patna- 800001. 3. The Commissioner of Excise, Registration, Excise and Prohibition Department, Government of Bihar having its office at Vikash Bhavan, Bailey Road, Patna 800001. 4. Commissioner of Commercial Taxes, Government of Bihar having its office at Vikash Bhavan, Bailey Road, Patna 800001.

.... .... Respondent/s WITH =========================================================== Civil Writ Jurisdiction Case No. 6674 of 2016 =========================================================== 1. Manoj Kumar, Son of Late Sukhlal Prasad, Resident of P.S. Malsalami, Patna City, District- Patna. 2. Jitendra Kumar Son of Late Ram Jatan Prasad, Resident of Nagla Main Road, P.S. Malsalami, Patna City, District- Patna. 3. Neelam Chandan, Son of Late Prem Kumar, Resident of Sadikpur, P.O.- Gulzarbag, P.S.- Alamganj, District- Patna. 4. Sudhir Kumar, Son of Late Trigunanand, Resident of Sadikpur, Patna City, Patna. 5. Dev Raj Ballabh, Son of Shri Naveet Ballabh, Resident of Belwarganj, P.O Guljarbag, P.S.- Alamganj, District- Patna. .... .... Petitioners

Versus 1. The State of Bihar through Principal Secretary, Department of Registration, Excise & Prohibition, Government of Bihar, Patna. 2. The Principal Secretary, Department of Registrartion, Excise & Prohibition, Government of Bihar, Patna. 3. The Excise Commissioner, Bihar, Patna. Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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4. The Assistant Commissioner Excise, Bihar, Patna. 5. The District Magistrate-cum-Collector, Patna, Bihar. 6. The Superintendent of Excise, Patna, Bihar. .... .... Respondents WITH =========================================================== Civil Writ Jurisdiction Case No. 8188 of 2016 =========================================================== Lt. Col. ( Retd.) Shiv Nath Jha, son of Late Rama Nath Jha, resident of Flat No. 301, Abhilasha Appartment, 176 Patliputra Colony, P.S.- Patliputra Colony, District- Patna. .... .... Petitioner Versus 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Patna. 2. The Principal Secretary, Registration, Excise and Prohibition Department, Government of Bihar, Patna. 3. The Excise Commissioner, Bihar, Patna. .... .... Respondents WITH =========================================================== Civil Writ Jurisdiction Case No. 6982 of 2016 =========================================================== M/s Tarangni Liquors Pvt. Ltd. having its office at Godhia Chaman, Warispur, Bhagwanpur, Vaishali- 844114, through its Managing Director Subodh Kumar, son of Hari Nath Ray, resident of Mohamadpur Pojha, Goraul, Vaishali. .... .... Petitioner Versus 1. The State of Bihar through the Principal Secretary, Registration, Excise and Prohibition Department, Government of Bihar, Patna at Vikas Bhawan, Patna- 800015. 2. Bihar State Beverages Corporation Limited, a Government of Bihar Enterprises through its Managing Director at First Floor, Vidyut Bhawan-II, Jawaharlal Nehru Marg, Patna- 800001. 3. The Commissioner of Excise, Registration, Excise and Prohibition Department, Government of Bihar having its office at Vikas Bhavan, Bailey Road, Patna- 800001 4. Commissioner of Commercial Taxes, Government of Bihar, having its office at Vikas Bhavan, Bailey Road, Patna- 800001.

.... .... Respondents WITH =========================================================== Civil Writ Jurisdiction Case No. 7019 of 2016 =========================================================== United Breweries Limited, a Company Incorporated under the Provisions of Companies Act, 1956 having its registered office at U.B. Tower, U.B. City No. 24, Vittal Mallya Road, Bangalore - 560001, through its Senior Branch Manager & authorised signatory MEA Usmani Son of Md. Md. Aslam at Present residing at Flat No. 205, Mundeshwari Bamhaur Palace, Buddha Colony, P.S. Buddha Colony, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Patna 800001. .... .... Petitioner Versus 1. The State of Bihar through the Principal Secretary, Registration, Excise & Prohibition Department, Government of Bihar, Patna at Vikas Bhawan, Patna 800015. 2. The Excise Commissioner, Department of Registration, Excise and Prohibition Department, Government of Bihar having its Office at Vikas Bhavan, Bailey Road, Patna 800001. 3. Bihar State Beverages Corporation Limited, a Government of Bihar Enterprise through its Managing Director at First Floor, Vidyut hawan - II, Jawaharlal Nehru Marg, Patna 800001. 4. The Principal Secretary, Department of Industries, Government of Bihar having its Office at Vikas Bhavan, Bailey Road, Patna 800001. 5. The Commissioner, Commercial Taxes, Department of Commercial Taxes, Government of Bihar having its Office at Vikas Bhavan, Bailey Road, Patna 800001. .... .... Respondents

WITH =========================================================== Civil Writ Jurisdiction Case No. 7021 of 2016 =========================================================== M/s Blooms Liquors Pvt. Ltd. having its registered office at Sondhoratti, P.O. Goraul, P.S. Goraul, District - Hajipur, Vaishali - 844118, through its Director Santosh Kumar Singh Son of Banke Lal Singh resident of 101, Ashoka Palace, Exhibition Road, P.S. Gandhi Maidan, District - Patna. .... .... Petitioner Versus 1. The State of Bihar through the Principal Secretary, Registration, Excise & Prohibition Department, Government of Bihar, Patna at Vikas Bhawan, Patna 800015. 2. Bihar State Beverages Corporation Limited, a Government of Bihar Enterprise through its Managing Director at First Floor, Vidyut hawan - II, Jawaharlal Nehru Marg, Patna 800001. 3. The Commissioner of Excise, Registration, Excise and Prohibition Department, Government of Bihar having its Office at Vikas Bhavan, Bailey Road, Patna 800001. 4. Commissioner of Commercial Taxes, Government of Bihar having its Office at Vikas Bhavan, Bailey Road, Patna 800001. .... .... Respondents WITH =========================================================== Civil Writ Jurisdiction Case No. 7020 of 2016 =========================================================== Krishna Kumar, having its office at Bhagwan Bazar, P.S. Bhagwan Bazar, P.O. Chapra, District - Saran Son of Shri Prabhu Sharan Sahu resident of Pathar Bazar, P.S. Nagar, P.O. Chapra, District - Saran. .... .... Petitioner

Versus Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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1. The State of Bihar through the Chief Secretary, Bihar, Patna 2. The Principal Secretary, Excise and Prohibition Department, Government of Bihar, Patna 3. The Excise Commissioner, Bihar, Patna 4. The Collector, Saran 5. The Superintendent of Excise, Saran .... .... Respondents WITH =========================================================== Civil Writ Jurisdiction Case No. 7880 of 2016 =========================================================== Dr. Priya Ranjan, son of Shri H.N. Sinha, resident of Patliputra Colony, P.O. Patliputra, P.S. Patliputra, District Patna .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Bihar, Patna. 2. The Principal Secretary, Registration, Excise and Prohibition Department, Government of Bihar, Patna. 3. The Excise Commissioner, Bihar, Patna. .... .... Respondents 4. Smt. Sunita Mishra, wife of Shashi Nath Mishra, resident of village Lalganj, P.O. Sarisab-Pahi, District- Madhubani (Bihar) 5. S. Mishra (a minor student of Class- II, D.A.V. Jhanjharpur under the guardianship of maternal grand father Shashi Nath Mishra) daughter of Deepak Kumar, resident of village Lalganj, P.O.- Sarisab-Pahi, District- Madhubani, Bihar .... .... Intervener Respondents WITH =========================================================== Civil Writ Jurisdiction Case No. 6676 of 2016 =========================================================== 1. Shiv Shankar Prasad, son of Late Ram Babu Sah, resident of New Punjabi Colony, Chitkohra, P.S. Gardanibagh, P.O. Anisabad, District Patna 2. Ram Ashish Choudhary, son of Shri Nathuni Choudhary, resident of near Veterinary College, P.O. Veterinary College, P.S. Airport, District Patna 3. Shri Sanjay Kumar son of Late Bindeshwar Prasad, resident of Bhikha Chak, Anisabad, P.S. Gardanibagh, District Patna 4. Yogendra Kumar, son of Late Ram Prasad, resident of Bari Pattan Devi Road, Gulzarbagh, P.S.- Gulzarbagh, District- Patna 5. Shrawan Kumar, son of Late Ram Swarup Yadav, resident of Naya Tola, P.S. Kumrar, District- Patna .... .... Petitioners

Versus 1. The State of Bihar through the Chief Secretary, Bihar Patna. 2. The Principal Secretary, Excise and Prohibition Department, Government of Bihar, Patna. 3. The Excise Commissioner, Bihar, Patna. .... .... Respondents

WITH Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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=========================================================== Civil Writ Jurisdiction Case No. 6677 of 2016 =========================================================== The Federation of Hotel & Restaurant Associations of Bihar, A registered body having its registered office at Hotel Samarat International, Frazer Road, Patna- 1 through its Secretary Mr. Anurag Singh son of Late Om Prakash Singh, Dumraon Palace, Frazer Road, Patna- 800 001 .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Bihar, Patna, 2. The Principal Secretary, Excise and Prohibition Department, Government of Bihar, Patna, 3. The Excise Commissioner, Bihar, Patna. .... .... Respondents

WITH =========================================================== Civil Writ Jurisdiction Case No. 6707 of 2016 =========================================================== Shailesh Kumar Sinha, Son of Shailendra Narayan Sinha, Resident of A/15 D Sector, Kankarbagh Colony, P.S. - Kankarbagh, District - Patna. .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2. The Chief Secretary, Govt. of Bihar, Patna. 3. The Principal Secretary, Registration, Excise and Prohibition Department, Govt. of Bihar, Patna. 4. The Principal Secretary, Department of Law, Govt. of Bihar, Patna. 5. The Excise Commissioner, Bihar, Patna. 6. The Assistant Excise Commissioner, Patna. 7. The Collector, Patna. 8. The Managing Director, Bihar State Beverage Corporation (BSBC Ltd., Patna), Patna. 9. The State Election Commission, through Chief Election Commissioner, Bihar, Patna. .... .... Respondents

WITH =========================================================== Civil Writ Jurisdiction Case No. 6988 of 2016 =========================================================== 1. Ravi Bhushan Singh, S/o Surendra Singh Azad, Proprietor of Mahi Restaurant & Bar, R/o Siddhartha Nagar, P.S. Shastri Nagar, District Patna. 2. Dev Jyoti, S/o Late Amitabh Kumar, Proprietor of Oasis Bar & Restaurant, r/o Dheeraj Complex, Boring Road, P.S. S.K. Puri, District- Patna. 3. Arun Kumar, S/o Late Vinay Kumar Singh, Proprietor of Hans Bar & Restaurant, r/o SK 52, S.K. Colony, P.S. Patrakarnagar, District Patna. .... .... Petitioners Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. The Principal Secretary, Registration, Excise and Prohibition Department, Government of Bihar, Patna. Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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3. The Excise Commissioner, Government of Bihar, Patna. 4. The Assistant Commissioner, Excise and Prohibition, Government of Bihar, Patna. 5. The District Magistrate cum Collector, Patna, Bihar. 6. The Superintendent of Excise, Patna, Bihar. .... .... Respondents

WITH =========================================================== Civil Writ Jurisdiction Case No. 7018 of 2016 =========================================================== Saheb Kumar, son of Late Dharamnath Prasad, resident of Mohalla - Mauna Mohan Nagar, P.S. Chapra ( Town ), District - Saran (Bihar). .... .... Petitioner Versus 1. The State of Bihar through the Principal Secretary, Registration, Excise & Prohibition Department, Government of Bihar, Patna. 2. Principal Secretary, Registration, Excise & Prohibition Department, Government of Bihar, Patna. 3. District Magistrate - Cum - Collector, Saran, District - Saran at Chapra ( Bihar ) 4. Superintendent of Excise, Saran, District - Saran at Chapra ( Bihar ). 5. Bihar State Beverages Corporation Limited, 1st Floor, Vidyut Bhawan - II, Jawaharlal Nehru Marg, Patna through its Managing Director. .... .... Respondents WITH =========================================================== Civil Writ Jurisdiction Case No. 7022 of 2016 =========================================================== All India Brewer's Association, society registered under the Karnataka Societies Act, 1960 having its office at UB City, Level 4, 24 Vittal Mallya Road, Bangalore - 560001, through its Authorized Signatory Mr. Sovan Roy, son of Dr. Dinesh Chandra Roy, resident of B - 357, Sushant Lok - 1, Gurgaon, Haryana. .... .... Petitioner Versus 1. The State of Bihar, through the Principal Secretary, Registration, Excise & Prohibition Department, Government of Bihar, Patna at Vikas Bhawan, Patna - 800015. 2. Bihar State Beverages Corporation Limited, a Government of Bihar Enterprises through its Managing Director at First Floor, Vidyut Bhawan-II, Jawaharlal Nehru Marg, Patna - 800001. 3. The Commissioner of Excise, Registration, Excise and Prohibition Department, Government of Bihar having its office at Vikast Bhawan, Bailey Road, Patna - 800001. 4. Commissioner of Commercial Taxes, Government of Bihar, having its office at Vikast Bhawan, Bailey Road, Patna - 800001. .... .... Respondents WITH =========================================================== Civil Writ Jurisdiction Case No. 7804 of 2016 Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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=========================================================== Dr. Anil Kumar Prasad Sinha S/o Late Y.N. Sinha r/o Rewatith Hakam, P.S. Baikunthpur, District Gopalganj. .... .... Petitioner Versus 1. The State of Bihar. 2. The Principal Secretary, Excise Department, Secretariat, Patna, Bihar. .... .... Respondents =========================================================== Appearance : (In CWJC No. 6675 of 2016) For the Petitioners : Mr. C.S. Vaidyanathan, Senior Advocate, Mr. Satyabir Bharti, Advocate Mr. Sandeep Chilana, Advocate Mr. Aashish Gupta, Advocate Ms. Anannya Ghosh, Advocate Ms. Aparna Arun, Advocate (In CWJC No. 6674 of 2016) For the Petitioner/s : Mr. Ashish Giri, Advocate (In CWJC No. 8188 of 2016) For the Petitioner/s : Mr. Navjot Yeshu, Advocate (In CWJC No. 6982 of 2016) For the Petitioner/s : Mr. Satyabir Bharti, Advocate (In CWJC No. 7019 of 2016) For the Petitioner/s : Mr. Satyabir Bharti, Advocate (In CWJC No. 7021 of 2016) For the Petitioner/s : Mr. Satyabir Bharti, Advocate (In CWJC No. 7020 of 2016) For the Petitioner/s : Mr. Satyabir Bharti, Advocate (In CWJC No. 7880 of 2016) For the Petitioner/s : Mr. Jitendra Singh, Senior Advocate. Mr. Satyabir Bharti, Advocate Mr. Mrigank Mauli, Advocate Mr. Suraj Samdarshi, Advocate Mr. Harsh Singh, Advocate Mr. Yash Singh, Advocate (In CWJC No. 6676 of 2016) For the Petitioner/s : Mr. Satyabir Bharti, Advocate (In CWJC No. 6677 of 2016) For the Petitioner/s : Mr. Satyabir Bharti, Advocate (In CWJC No. 6707 of 2016) For the Petitioner/s : Mr. Ebrahim Kabir, Advocate Ms. Shruti Sinha, Advocate (In CWJC No. 6988 of 2016) For the Petitioner/s : Mr. Harsh Singh, Advocate (In CWJC No. 7018 of 2016) For the Petitioner/s : Mr. Nikhil Kumar Agrawal, Advocate Mr. Santosh Kumar Mishra, Advocate Ms. Aditi Hansaria, Advocate (In CWJC No. 7022 of 2016) For the Petitioner/s : Mr. Balbir Singh, Senior Advocate Mr. Satyabir Bharti, Advocate Mr. Sandeep Chilana, Advocate Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Mr. Aashish Gupta, Advocate Ms. Anannya Ghosh, Advocate Ms. Aparna Arun, Advocate (In CWJC No. 7804 of 2016) For the Petitioner/s : Dr. Krishna Nandan Singh, Senior Advocate Mr. Sriram Krishna, Advocate (IN ALL THE CASES) For the State : Dr. Rajeev Dhawan, Senior Advocate Mr. Lalit Kishore, Principal Additional Advocate General Mr. Piyush Lall, Advocate Ms. Bhoomika Choudhary, Advocate Mr. Piyush Chaudhary, Advocate Mr. Keshav Mohan, Advocate For the Beverage Corporation:Mr. Lalit Kishore, Senior Advocate Mr. Girijesh Kumar, Advocate Mr. Vikash Kumar, Advocate =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH

JUDGMENT AND ORDER C.A.V.

(Per: HONOURABLE THE CHIEF JUSTICE)

Date: 30-09-2016

The present set of writ petitions has raised some

questions of great public importance, in the realm of the

Constitution of India, and the questions are: Whether the right to

consume alcohol is a fundamental right and any infringement or

intrusion into the said right, by means of legislation or otherwise,

would amount to violation of the right to privacy and, therefore,

constitutionally untenable?

2. The judgment of my esteemed brother,

Navaniti Prasad Singh, J., which I have the benefit of very

patiently, minutely and carefully reading and analyzing, answers

the questions, posed above, in the affirmative. It is this answer,

which I have, with great respect, not been able to persuade Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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myself to agree to and I have, therefore, decided to pen down my

concept and views on the said aspect of the constitutional law

separately.

3. I may, however, hasten to add and clarify

that except the questions, which I have posed above, I agree

with the findings recorded, conclusions reached and the

decisions, eventually, rendered by my learned brother on all the

remaining issues, which have been framed.

4. In order to correctly appreciate how the

question has arisen, as to whether the right to consume alcohol is

a fundamental right or not, the material facts, leading to these

writ petitions, need to be borne in mind and are, therefore, set

out, in brief, as under:

5. In the State of Bihar, though Bihar

Prohibition Act, 1938, has been enacted, this Act has not been

enforced. What has, however, been in force is the Bihar Excise

Act, 1915, which though regulatory in nature, does incorporate

the provisions for absolute prohibition in the sense that Section

19 (4) states:

"4. Notwithstanding anything contained in this Act and the Dangerous Drugs Act, 1930 (Act 2 of 1930), the State Government, may by notification, prohibit the possession, consumption or both by any person or class of persons or subject to such exceptions, if any, as may be specified in the notification, by all persons in the State of Bihar or in any specified local area, of any intoxicant either Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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absolutely or subject to such conditions as it may prescribe." (Emphasis is supplied)

6. The State Government introduced, in the

year 2015, an Excise Policy, which was published in the official

gazette, on 21.12.2015. This policy is known as New Excise

Policy, 2015. This policy, nowhere, contemplates immediate and

complete prohibition on consumption of alcohol. The scheme,

notified by the Government in the form of New Excise Policy,

2015, was to obviously guide its future actions. In this policy,

there was, admittedly, nothing, which shows or authorizes the

State Government to immediately prohibit trade in Indian Made

Foreign Liquor (hereinafter to be referred as 'IMFL')/foreign

liquor, though it did provide for sale of IMFL/foreign liquor, in

restricted areas only, through single source, namely, Bihar State

Beverage Corporation Limited.

7. There is no doubt that New Excise Policy,

2015, (hereinafter referred to as 'the NEP'), did contemplate

implementation of total prohibition; but in a phased manner. It

is, thus, of paramount importance to note that the New Excise

Policy, 2015, envisaged total prohibition, albeit in a phased

manner and not whimsically or suddenly.

8. The underlying idea of the NEP was that

total prohibition would be brought about gradually and in a

phased manner so that the society becomes ripe and ready to Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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understand, realize and accept the necessity of having total

prohibition in order to ensure that no draconian methods would

be required to be adopted for the purpose of making the State

free from consumption of alcohol.

9. No wonder, therefore, as I would show,

the State decided to discontinue or prohibit sale of country liquor

completely, but permitted manufacture and trade in IMFL/foreign

liquor though in urban areas only. This did not, however, I must

hasten to point out, debar the population of rural areas to

purchase and consume IMFL/foreign liquor within the urban

areas.

10. The NEP pointed out that from time to

time, the Excise Policy of the State has undergone changes and

that some important changes were carried out by introduction of

Excise Policy, 2007, which led to significant increase in the

number of liquor vends giving rise to increased collection of

excise duty. This apart, the Excise Policy, 2007, curtailed the

tendency of the monopoly, in the trade, by allowing transparency

in the process of allotment of shop and, thus, efforts were made

to curb the illegal trading.

11. The NEP clearly reflects that the Excise

Police, 2007, though resulted in unexpected increase in excise

duty in the State, some negative aspects also surfaced inasmuch

as it was noticed that most adverse impact was on the poorest

class of people, particularly, in rural areas, and, under these Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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circumstances, the State Government felt the need to reconsider

its Excise Policy, 2007, and decided to frame New Excise Policy,

2015.

12. Naturally, therefore, the NEP announced

that in the first phase, only country liquor and spiced country

liquor shall be banned all over the State and no licence for the

same would be granted from 1st April, 2016; whereas, with effect

from 1stApril, 2016, foreign liquor/IMFL would be available in

urban areas only at the level of Municipal Corporation and

Municipal Council. All vends shall be "off". All bars and all

restaurants, located in areas other than Municipal Corporation

and Municipal Council, shall cease to operate and those

permitted, within the territorial areas of Municipal Corporation

and Municipal Council, shall sell only foreign liquor/IMFL. The

Bihar State Beverages Corporation Limited (hereinafter, in short,

referred to as the 'BSBCL') was to be the authorized body to

operate these vends/shops. Distilleries were to be permitted to

manufacture only ethanol from molasses. As a means of

enforcement of the policy so adopted, various other decisions

were taken, such as, transportation of foreign liquor/IMFL under

digital lock system under supervision and the BSBCL was to

mandatorily keep one depot for foreign liquor/IMFL in all districts.

The NEP reflects the State Government's resolve to ensure that

rural public voluntarily move towards prohibition of alcohol and to Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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achieve this objective, social movement was necessary. De-

addiction centers were, therefore, to be opened in all districts.

13. In no uncertain words, the NEP made it

clear that the New Excise Policy, 2015, shall be reviewed by an

eleven member high powered committee headed by the Chief

Secretary of the State and the NEP also made it clear that in

terms of the aims and objects of the policy, necessary guidelines,

framed by the Department, needed to be approved by the said

Committee and required proposals would be sent to the Board of

Revenue for approval. The Committee was to issue guidelines

and take decisions for opening new shops as per requirement

keeping, however, in view the coverage of foreign liquor shops

from the point of view of prohibition, tourism, etc. Further, this

Committee was also to fix guidelines in respect of possession,

consumption or sale in the army establishments. The NEP came

into force with effect from 01.04.2016.

14. From a minute and collective reading of

the NEP, as a whole, it would become transparent that under the

policy, a clear decision was taken to stop manufacture and sale of

any form of country liquor with effect from 01.04.2016.

However, so far as foreign liquor/IMFL including beer is

concerned, the NEP clearly predicated creation of monopoly of the

BSBCL to the exclusion of private trade and, further, it restricted

the sale to municipal areas only and, in the process, completely

excluded rural areas from sale of not only country liquor, but also Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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foreign liquor/IMFL. Bars and restaurants could operate only in

municipal areas and not in rural areas. In fact, the policy, if I

may clarify, empowered the High Level Committee to suggest

opening of more shops, if necessary.

15. There is, thus, nothing in the policy,

which indicated the State Government's resolve to resort to

immediate prohibition of foreign liquor/IMFL too; rather, it

contemplated sale and consumption of foreign liquor/IMFL, in

restricted geographical area, through a monopolist State agency.

16. Most importantly, the NEP made it known

to every one that complete prohibition was the objective to be

achieved by the State Government, but this objective was to be

achieved in a phased manner and it was the Committee,

constituted under the NEP, which was to guide the Government

with regard to making the State free from sale and consumption

of liquor, i.e., a stage, where the State would have complete

prohibition.

17. Interestingly enough, pursuant to the

NEP, a Bill, proposing necessary amendments of the Bihar Excise

Act, 1915, was introduced in the Legislative Assembly. The

object and reasons, as stated therein, read as follows:

"For phase wise implementation of prohibition in the State, the New Excise Policy, 2015 is notified. For effective implementation of prohibition, new provisions require to be incorporated in place of various sections of the Bihar Excise Act, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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1915, which has become irrelevant in the present context. Therefore, incorporation of new provisions, amendment and substitution of some provisions of the Act is expected. For amendment in the existing Bihar Excise Amendment Act, 1915, several provisions have been made in this legislation, the enactment of which is the main object and intendment of this legislation." (Emphasis is added)

18. The bill, in fact, proposed various

amendments including substitution of Section 19 (4) of the Act.

It is pertinent to note, at this stage, that earlier, Section 19 (4) of

the Act had authorized the State to prohibit possession,

consumption or both, of any intoxicant, in relation to 'persons'

and Section 19(4) of the Act, thus, had not dealt with

manufacturing, sale and/or purchase, etc.; hence, amendment of

Section 19 (4) of the Act was deemed necessary.

19. The State-respondents, in their counter

affidavit, have specifically averred, as indicated by my learned

brother, that it is pursuant to the New Excise Policy, 2015, that

the amendments were proposed as would also be indicated in the

objects and reasons for the amendments, which we have already

been pointed out above. The Bill came to be introduced on

30.03.2016

and was passed unanimously, both in the Legislative

Assembly and in the Legislative Council, on 31st of March, 2016. Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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20. No sooner the Bill was passed, a

notification, as contemplated by the policy, was published by the

State Government on 31st of March, 2016, in exercise of its

powers conferred by Section 19 (4) of the Act, imposing absolute

ban on the manufacture, bottling, distribution, sale, purchase,

possession and consumption of country liquor in the following

terms:

"In exercise of the powers conferred under Section 19 (4) of the Bihar Excise Act 1915 (as amended by Bihar Excise (Amendment) Act 2016), the State Government hereby imposes absolute ban on the manufacture, bottling, distribution, sale, purchase, possession and consumption of country liquor by any manufactory, Bottling Plant, license holder or any person in the whole of the State of Bihar with effect from 01 April, 2016."

(Emphasis is supplied)

21. In the meanwhile, the BSBCL issued, on

or about 12.03.2016, liquor sourcing policy of the year 2016-17,

whereunder it invited manufacturers, located not only within the

State of Bihar, but also manufacturers, importers and

distributors, located outside the State of Bihar, to supply to

BSBCL foreign liquor/IMFL for sale through BSBCL's vends

established in urban areas for onward sale to bars and

restaurants in urban areas and also to consumers in urban areas. Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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BSBCL also issued advertisements for recruitment of staff. The

licenses of manufacturers of foreign liquor/IMFL, including beer,

were renewed for the year 2016-17. Not surprising, therefore,

that the licenses of the bar and restaurants were naturally

renewed, in urban areas, for the year 2016-17 inasmuch as the

earlier licenses were valid up to 31.03.2016 only. Thereafter, the

bars and the restaurants, immediately, purchased stocks for sale

or put their indents with the BSBCL on payment of money. The

BSBCL issued circulars to the district authorities to take

possession of unsold stocks of country liquor and destroy the

same. Similar directions were issued in March, 2016, by the

BSBCL to the district authorities to make necessary inventories

and take, consequently, possession of unsold stocks of foreign

liquor/IMFL lying with various dealers/retailers of rural areas, on

the close of 31.03.2016, inasmuch as their licenses were not to

be renewed before restoration of such stocks to the BSBCL so

that the BSBCL could pay the retailers accordingly.

22. The contents of the New Excise Policy,

2015, not only acknowledges, but unfolds, in clear terms, that

even after 31.03.2016, every one, including the State and

BSBCL, were to proceed with the assurance that the sale of

foreign liquor/IMFL would continue, though the sale would be

channelised through the monopoly of the BSBCL in urban areas

only.

Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-18-

23. However, on 05.04.2016, the State

Government, in purported exercise of powers under Section 19

(4) of the Act, as amended, issued, all of a sudden, the impugned

notification, which reads as under:

"Notification No. 11/Nai Utpad Niti- 01.03/2016-1485, dated 5th April, 2016. - In exercise of the powers conferred under Section 19(4) of the Bihar Excise Act, 1915 (as amended by Bihar Excise (Amendment) Act, 2016), the State Government hereby imposes ban on wholesale or retail trade and consumption of foreign liquor by any license holder or any person in the whole of the State of Bihar with immediate effect."

24. The State has, thus, all of a sudden made

a complete 'U' turn from its new Excise Policy, 2015.

25. The validity of Section 19 (4) of the Bihar

Excise Act, 1950, as amended by the State Legislature, on

31.03.2016, as well as the consequential notification, dated

05.04.2016, issued by the State Government, imposing

thereunder a complete ban on wholesale, retail trade and

consumption of foreign liquor in the whole State of Bihar, with

immediate effect, have been put to challenge.

26. While summing up the first issue,

namely, 'Regarding "any person" as used in Section 19 (4) of the

Bihar Excise Act', my learned brother, Navaniti Prasad Singh, J.,

has rightly concluded, and I agree, that the rule of ejesdem

generis would not apply to interpret the expression 'any person' Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-19-

and, therefore, the expression, 'any person' used, now, would

include all persons and, hence, the impugned notification cannot

be held to be bad on this count alone.

27. Coming to the second issue, namely,

'Regarding Issue in relation to delegated legislation', I equally

agree with the discussions made, reasonings so applied and the

conclusions reached by my learned brother, Navaniti Prasad

Singh, J., that the validity of Section 19 (4) of the Act, as

amended, and as also the impugned notification, dated

05.04.2016, issued under Section 19 (4) of the Act, cannot be

saved by virtue of Section 92 of the Act inasmuch as that would

amount to conferring legislative powers on the delegatee with no

legislative control.

28. No different is my view on the conclusions

reached by my learned brother, Navaniti Prasad Singh, J., so far

as third issue, namely, 'Notification in conflict with notified policy

guidelines', is concerned, which is to the effect that the impugned

notification, being clearly in conflict with the notified New Excise

Policy (NEP 2015), cannot, in the facts and attending

circumstances of the case, be sustained.

29. Similarly, I am in complete agreement

with the conclusions reached by my learned brother, Navaniti

Prasad Singh, J., with regard to the fourth issue, namely,

'Notification in conflict with the object of the Act', that the

impugned notification, being beyond the object of the Act, could Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-20-

not have been issued under Section 19(4) of the Act and would,

thus, be invalid.

30. Now, the question, where I find myself

unable to agree with the answer reached by my learned brother,

is Issue No.5, which reads as follows:

"5. Regarding what are the rights, constitutional, of a citizen in respect of liquor"

31. It is the conclusion of my learned brother,

while discussing Issue No.5, that the right to bring alcohol within

the confines of a person's house is his fundamental right and any

intrusion thereto is violation of the right to privacy and it is this

conclusion, as indicated above, which I am in disagreement with.

However, my learned brother, having arrived at the said

conclusion, has made it clear (which I have no reason to

disagree) that we refrain from finally doing so, because the writ

petitions succeed on other issues meaning thereby that though

the answer to the Issue No.5 is in affirmative according to my

learned brother, this answer is not the reason for the writ

petitions to be allowed.

32. Nonetheless, as the issue No.5 has been

raised and needed to be answered and has been answered,

though not finally, by my learned brother, in the affirmative, with

which I fail to agree to, my views need to be, now, placed on

record.

Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-21-

33. While considering the question posed

above, it needs to be pointed out that while the fundamental

rights are embodied in Part III of the Constitution of India, the

Directive Principles of State Policy, which play pivotal and

fundamental role in the governance of all the States, have been

incorporated in Part IV of the Constitution of India.

34. Article 37, which relates to application of

the Directive Principles of the State Policy, reads thus:

"37. Application of the principles contained in this Part.- The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws."

35. A bare reading of Article 37 makes it clear

that though the Directive Principles of the State Policy is not

enforceable by any court, the underlying principles are

nonetheless fundamental in the governance of the country and,

it, therefore, becomes the duty of the State to apply these

principles in governance of the State. Put in simpler words, it

would mean that it is the duty of the State to apply these

principles in making laws and taking executive actions in terms of

a defined policy or otherwise.

36. Obviously, when the laws are made, they

are not meant for being kept in statute books, but to be enforced. Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-22-

So, when the Legislature of a State makes the Directive Principles

applicable in the governance of the State, one cannot be heard to

complain that the Directive Principles are violating the

fundamental rights. Had the Directive Principles been violating

fundamental rights, the Directive Principles could not have been

made, and would not have been incorporated, in our Constitution

by the Constitution-makers as fundamental principles of

governance of the States. When the State has the obligation to

apply the principles in making laws and when the State does

make a law to apply these principles, no one can be heard to say

that his fundamental rights are infringed merely because the

Directive Principles of State Policy stand incorporated in the

legislation, which relate to governance of the State.

37. Bearing in mind what is pointed out

above, let me, now, come to Article 47 of the Constitution of

India, which is at the centre of controversy in the present set of

writ petitions. Article 47 reads thus:

"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."

Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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38. My learned brother's observations are

that a plain reading of Article 47 would show that it does not

mandate, in positive term, a State to impose 'prohibition', and

the expression, "shall endeavor", clearly leaves it to the State to

decide whether to impose prohibition or not and, if so, when to

impose prohibition. With great respect, this view, in my

considered view, loses sight of the fact that the Directive

Principles of the State Policy and the fundamental rights have not

been embodied in the Constitution to give rise to a collision

course. While, the fundamental right acquires precedence, the

Directive Principles of the State Policy are equally necessary to be

embedded in the governance of the State. The two, therefore, the

fundamental rights and the Directive Principles have to be

considered in tandem with each other and not hostile and inimical

to each other.

39. When the State has been, asked by the

Constitution to make endeavor to bring about prohibition of the

consumption except for medicinal purposes of, intoxicating drinks

and/or drugs, which are injurious to health, it, undoubtedly,

means that making of serious and sincere efforts to take the

society to a situation, where it accepts prohibition as a

constitutionally declared obligation of the State. When and how it

would be done is a question, which needs to be answered by the

State depending upon the manner in which the endeavour may Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-24-

be made to bring about prohibition. If it is made in the manner,

as has been done in the present case, the endeavour may not

survive the test of constitutionality; but if it is done in accordance

with law and the constitutional scheme of governance, one

cannot be heard to say that his fundamental rights are violated.

40. My learned brother has observed that

what one will choose to eat or drink is his decision and cannot be

interfered with by the State and that in support of these

observations a reference has been made to the case of Ramlila

Maidan Incident, In re, reported in (2012) 5 Supreme Court

Cases 1, wherein, paragraph 318, reads as under:

"318. Thus, it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc."

(Emphasis is added)

41. Though what one will eat or what one will

drink is his decision, the fact remains that when the Directive

Principles of State Policy requires the State to make endeavour to

bring about prohibition, it logically follows that merely because

the State is making the endeavour to bring about prohibition, one

cannot claim that he has a fundamental and indefeasible right to

continue to consume liquor or alcohol or intoxicating drinks or

intoxicating drugs. When the right to consume intoxicating drink

cannot be claimed as a fundamental right, an intrusion into this Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-25-

right, if, otherwise, legally valid, cannot be resisted by saying

that it is one's right to privacy, which is infringed or violated.

42. True it is, as observed by my learned

brother, that merely because the Directive Principles of the State

Policy is not followed, it does not mean that the State is violating

the Constitution. However, no one can have a grievance if the

State applies the Directive Principles in the governance or the

affairs of the State.

43. Are we to understand that the Directive

Principles of the State Policy infringe fundamental rights? The

answer to this question has to be an emphatic 'No'. When the

founding fathers of our Constitution have made the Directive

Principles fundamental in the governance of the country, these

principles cannot be said to collide with the fundamental rights.

The manner and method of applying these principles may become

subject of challenge; but the fact that the State has the power,

rather, duty, to apply the Directive Principles of the State Policy,

in its governance, cannot be disputed.

44. My learned brother has also made a

reference to the case of Md. Hanif Quareshi and others Vs.

State of Bihar and others, (AIR 1958 SC 731), in support of

his view that the right to consume intoxicating drink is a

fundamental right.

45. While considering the case of Mohd.

Hanif Quareshi (supra), it needs to be borne in mind that there Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-26-

was complete ban on the occupation of butchers, which was held

to be unreasonable inasmuch as a butcher can work even as a

helper to hide merchant.

46. There is nothing, in Mohd. Hanif

Quareshi's case (supra), to show that right to consume the

meat of cow of every age is a fundamental right. In Mohd. Hanif

Quareshi's case (supra), though the ban was on all animals, it

was held to be not unconstitutional, because the ban was for a

limited period. The relevant observations, appearing in Mohd.

Hanif Quareshi's case (supra), read thus,

"The maintenance of useless cattle involves a wasteful drain on the nation's cattle feed. To maintain them is to deprive the useful cattle of the much needed nourishment. The presence of so many useless animals tends to deteriorate the breed"

47. In no uncertain words, the Supreme Court

upheld constitutionality of the Uttar Pradesh Prevention of Cow

Slaughter Act, 1955, in the following words:

"It is constitutionally valid in so far as it prohibits the slaughter of cows of all ages and calves of cows, male and female, but we hold that in so far as it purports to totally prohibit the slaughter of breeding bulls and working bullocks without prescribing any test or requirement as to their age or usefulness, it offends against Article 19(1) (g) and is to that extent void."

(Emphasis is supplied) Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-27-

48. To me, it appears that the argument, in

effect, is that drinking of water is same as consumption of an

intoxicating drink, such as, alcohol. However, had it been the

same, the founding fathers of the Constitution would not have,

with the help of Article 47, cast an obligation on the State to

bring about prohibition in the governance of the State. If the

right to consume intoxicating drink is held to be a fundamental

right, one would be justified in saying that this right cannot be

taken away or infringed by imposing total prohibition. Underlying

in this stand is the presumption that the right to consume

intoxicating drink, such as alcohol, is a fundamental right. With

greatest respect, I do not find any authority suggesting that the

right to consume intoxicating drink, such as, alcohol, is a

fundamental right and in the name of enforcement of Directives

Principles of State Policy, the right to consume alcohol cannot be

infringed.

49. No different is the situation in the case

Minerva Mills Ltd. Vs. Union of India, reported in (1980) 3

Supreme Court Cases 625, which my learned brother has relied

upon, wherein the Supreme Court has observed as follows:

"57. .............. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and, combine to form its conscience. Anything that destroys the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-28-

balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution."

(Emphasis is supplied)

50. The above observations, to my mind,

leave no room for doubt that fundamental rights and Directive

Principles, combined together, constitute the core of Indian

Constitution and forms constitutional conscience. Anything, which

destroys the balance between the two will, ipso facto, destroy the

basic structure of the Constitution and cannot, therefore, be

sustained. That there was deprivation of fundamental rights in

Minerva Mills Ltd. (supra) cannot be disputed, because the very

argument of the learned Attorney General, in the Minerva Mills

Ltd. (supra), was that the deprivation of some of the fundamental

rights, for the purpose of achieving the goal, set by the Directive

Principles of the State Policy, cannot possibly amount to

destruction of basic structure of the Constitution, but this

argument did not find favour with the Supreme Court and was

rejected. The relevant observations read thus:

"63. The learned Attorney General argues that the State is under an obligation to take steps for promoting the welfare of the people by bringing about a social order in which social, economic and political justice shall inform all the institutions of the national life. He says that the deprivation of some of the fundamental rights for the purpose of achieving this goal cannot possibly amount to a Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-29-

destruction of the basic structure of the Constitution. We are unable to accept this contention. The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when government's purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that Article is conferred, not only on laws passed by the Parliament but on laws passed by the State legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment."

(Emphasis is added)

51. In short, thus, in Minerva Mills Ltd.'s

case (supra), there was, admittedly, infringement or denial of the

fundamental rights and, therefore, the Court had to step forward

and strike down the law.

Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-30-

52. In every judicial precedent that has come

before us, it is when the fundamental rights are infringed,

because of enforcement of the Directive Principles, that the

Courts have interfered. No authority has been cited before us to

show that the right to consume intoxicating drink is a

fundamental right and when it is not a fundamental right, the

question of right to privacy does not arise, because the right to

privacy will arise only when law permits such a right to be

exercised in privacy.

53. Of immense importance it is to note is

that in the case of Krishan Kumar Narula and another Vs.

State of Jammu & Kashmir and others, (AIR 1967 SC

1368), the Constitution Bench held that the right to do business

in liquor was a fundamental right, but the restrictions would be

reasonable even to the extent of prohibition meaning thereby

that though the right to do business in liquor may be a

fundamental right, a restriction, imposing total prohibition, would

nevertheless be regarded as reasonable.

54. Coming to the decision, in Khoday

Distrilleries Ltd. Vs. State of Karnataka, reported in (1995)

1 Supreme Court Cases 574, the Constitution Bench held:

"56. The contention further that till prohibition is introduced, a citizen has a fundamental right to carry on trade or business in potable liquor has also no merit. All that the citizen can claim in such a situation is an equal right Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-31-

to carry on trade or business in potable liquor as against the other citizens. He cannot claim equal right to carry on the business against the State when the State reserves to itself the exclusive right to carry on such trade or business. When the State neither prohibits nor monopolises the said business, the citizens cannot be discriminated against while granting licences to carry on such business. But the said equal right cannot be elevated to the status of a fundamental right."

(Emphasis is supplied)

55. The above observations, made in

Khoday Distrilleries Ltd. (supra), show that the Constitution

Bench negated the claim that till prohibition is introduced, a

citizen has fundamental right to carry on trade or business in

potable liquor. It is made clear that the State reserves to itself

the right to carry on such trade or business and no one can

impugn this right by contending that it is his fundamental right to

carry on business or trade in potable liquor. The Constitution

Bench also makes it clear, in Khoday Distrilleries Ltd. (supra),

that the right to do business in potable liquor cannot be elevated

to the status of a fundamental right.

56. In the light of the law laid down, in Khoday Distrilleries Ltd. (supra), when the right to sell or to do

business in potable liquor is not a fundamental right and the

State has the freedom to impose complete ban on the sale of

liquor or manufacture or even import of liquor, a citizen of such a Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-32-

State cannot claim that his fundamental right to consume alcohol

or alcoholic drink was being denied. When the State has a right

not to allow sale, not to allow manufacture of intoxicating drinks,

such as, potable liquor, and not to allow import of potable liquor

into the State, no one can bring alcohol to such a State for the

purpose of consumption or for the purpose of possession claiming

such a right as a fundamental right.

57. My learned brother has correctly

summarized the decision, in Khoday Distrilleries Ltd. (supra),

at para 5.06, thus :

(i) If the State decides to impose total prohibition

in terms of Article 47, then, no citizen can make a grievance, for,

it would be a reasonable restriction;

(ii) If it does not impose total prohibition, instead

create State monopoly under Article 19 (6), the trade and

business being res extra commercium, no citizen can complain;

(iii) But, if it does not do either of the above, then

subject to reasonable restrictions, the trade and business in

liquor cannot be denied, in view of Article 14 of the Constitution.

58. From what have been summarized above,

it can be clearly gathered that when the State decides to impose

total prohibition in terms of Article 47, then, no citizen can make

a grievance, for, it would be a reasonable restriction. A challenge

can, perhaps, be sustained, if and when it can be shown that

introduction of such prohibition puts some unreasonable Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-33-

restriction on his fundamental rights and, therefore, not

sustainable.

59. Let me, now, come to the case of The

Kerala Bar Hotels Association and another Vs. State of

Kerala and others, (AIR 2016 SC 163), wherein, while dealing

with the trade and business of liquor, the Court observed:

"24. We disagree with the submissions of the Respondents that there is no right to trade in liquor because it is res extra commercium. The interpretation of Khoday (1995 AIR SCW 313) put forward by Mr. Sundaram is, in our opinion, more acceptable. A right under Article 19 (1) (g) to trade in liquor does exist provided the State permits any person to undertake this business. It is further qualified by Article 19 (6) and Article 47. The question, then, is whether the restrictions imposed on the Appellants are reasonable."

(Emphasis is added)

60. From the above observations made in

The Kerala Bar Hotels Association (supra), too, it becomes

crystal clear that it is only when the State permits any person to

undertake the business or trade in liquor, one can claim

fundamental right. One has to draw a line, however, subtle but

firm between personal liberty and licence. Liberty cannot be

allowed to become licence. Necessarily, therefore, with the help

of licence, reasonable restrictions may be imposed on one's

liberty.

Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-34-

61. If the State allows consumption of

intoxicating drinks, like potable liquor, and if someone consumes

the same in the privacy of his own house in terms of the licence,

which he may have been given, no intrusion to his right to

consume potable liquor can be permitted unless the State alleges

violation of the licence itself.

62. That the right to privacy is integral and

inseverable facet of fundamental right can no longer be in

dispute; but the question of all questions is : whether one's

desire to consume alcohol is a fundamental right? If consumption

of alcohol by one is regarded as a fundamental right, then,

infringement thereof would, undoubtedly, amount to intrusion

into one's right and would be struck down. When, however, the

Constitution obliges the State to make endeavour to bring

complete prohibition in respect of consumption of intoxicating

drink, consumption of intoxicating drink cannot be treated as a

fundamental right.

63. My learned brother, Navaniti Prasad

Singh, J., has also referred to the case of Virodhak Sangh

(supra), wherein the Court observed as follows:

"27. Had the impugned resolutions ordered closure of municipal slaughterhouses for a considerable period of time we may have held the impugned resolutions to be invalid being an excessive restriction on the rights of the butchers of Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-35-

Ahmedabad who practise their profession of meat selling. After all, butchers are practising a trade and it is their fundamental right under Article 19(1)(g) of the Constitution which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor of the butchery shop alone. There may be also several workmen therein who may become unemployed if the slaughterhouses are closed for a considerable period of time, because one of the conditions of the licence given to the shop-owners is to supply meat regularly in the city of Ahmedabad and this supply comes from the municipal slaughterhouses of Ahmedabad. Also, a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. What one eats is one's personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court. In R. Rajagopal v. State of T.N. (vide SCC para 26 : AIR para 28) this Court held that the right to privacy is implicit in the right to life and liberty guaranteed by Article 21. It is a "right to be let alone"."

(Emphasis is supplied)

64. While considering the case of Virodhak

Sangh (supra), one must bear in mind that the provision for

trade or sale was held to be a fundamental right. In clear terms,

the Supreme Court observed as: "After all, butchers are

practising a trade and it is their fundamental right under Article

19(1)(g) of the Constitution, which is guaranteed to all citizen of

India"; whereas, the potable liquor, as rightly pointed out by Dr. Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-36-

Rajiv Dhawan, learned Senior Counsel, is res extra commercium

and nobody has, therefore, a fundamental right to carry on the

trade or business in potable liquor unless the State permits.

When the right to trade or business in potable liquor is not a

fundamental right, it follows inescapably that the right to demand

consumption of alcohol, as a fundamental right, can also not be

sustained, because if such a demand has to be fulfilled, then,

trade or business in potable liquor cannot be restricted or

banned; whereas Khoday Distrilleries Ltd. (supra) makes it

clear that the State Government can impose such a ban. In this

context, the Constitution Bench of the Supreme Court, in Khoday

Distrilleries Ltd. (supra), has observed as follows:

"The contention further that till prohibition is introduced, a citizen has a

fundamental right to carry on trade or business in potable liquor has also no merit."

(Emphasis is added)

65. Logically, therefore, when one citizen is

allowed to carry on trade or business in potable liquor, another

citizen cannot be discriminated.

66. The Court further observed, in Khoday

Distrilleries Ltd. (supra), thus:

"When the State neither prohibits nor monopolises the said business, the citizens cannot be discriminated against while granting licences to carry on such business. But the said Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-37-

equal right cannot be elevated to the status of a fundamental right."

(Emphasis is supplied)

67. When, however, trading in liquor is not

permitted or prohibited, demand to permit consumption of

alcohol cannot be treated as a fundamental right.

68. To put it a little differently, if the right to

consume alcohol is to be treated as a fundamental right, Article

47 of the Constitution of India, whereunder the State owes a duty

to make endeavour to bring about prohibition would remain not

only a distant dream, but a dead letter. Seen from this angle, it

clearly follows that consumption of alcohol by a person can never

be regarded as his fundamental right nor can it be said that the

right to consume alcohol can be merely regulated and not

prohibited.

69. What crystallizes from the above

discussion is that the right to consume alcohol is not a

constitutional right, and reasonable restrictions on consumption

of alcohol, or complete prohibition on consumption of alcohol, can

be imposed by the State in order to carry forward the goal set by

the Constitution in the form of Directive Principles of State Policy,

but such implementation of the policy shall be in accordance with

law and not in violation thereof.

70. With the conclusion, which I have reached

above, while I, with great respect, fail to have the same view, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-38-

which have been taken by my learned brother on the question of

what are the rights, constitutional, of a citizen in respect of

liquor, I make clear, once again, that I am in full agreement with

the views and conclusions, which have been arrived at on all

other issues by my learned brother and, therefore, the writ

petitions are allowed.

(I. A. Ansari, CJ)

Per : NAVANITI PRASAD SINGH, J. :

71. In this batch of writ petitions, the primal

challenge is to the validity of Section 19(4) of the Bihar Excise Act,

1915, as amended, by the State Legislature, on 31.03.2016, as

also to the consequential notification issued by the State

thereunder, being notification, dated 05.04.2016, imposing a

complete ban on wholesale, retail trade and consumption of foreign

liquor, in the whole State of Bihar, with immediate effect.

72. The batch of writ petitions is in groups.

First of which are manufacturers of Indian Made Foreign Liquor

(IMFL) and brewery. The second are dealers in IMFL and beer and

the third would be consumer, doctor and retired army officer.

73. We have heard Sri C.S. Vaidyanathan, Sri

Balbir Singh, Sri Y.V. Giri, Sri Jitendra Singh, learned Senior

Advocates, Sri Satyabir Bharti, Sri Harsh Singh and Sri Nikhil Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-39-

Agarwal, learned Advocates, for the writ petitioners and Sri Rajiv

Dhawan, learned Senior Counsel for the State appearing in

C.W.J.C. No. 6675 of 2016 (Confederation of Alcoholic Beverages

Company and another) and learned Principal Additional Advocate

General, Sri Lalit Kishore for the State, at length. At the request of

the Court, on conclusion of hearing, parties have filed their written

notes of arguments.

74. Having considered the various arguments,

basically the issues that arise for consideration of this Court can be

summarized under eight heads. I am noting all the issues as both

sides argued on all these issues at length.

75. The first is based upon the interpretation

of the Section 19(4) of the Act. On behalf of the petitioners, it is

submitted that considering the legislative history and judicial

pronouncements in respect of the Section itself, the expression

"any person", as used in the Section did not and cannot

contemplate "all persons". Alternatively, "any person" has to be

read ejesdem generis and cannot include "all persons" not being

manufactory, bottling plant and license holder, which expression

precedes the expression "any person".

76. The second ground of challenge is that

Section 19(4) of the Act, as amended, confers unguided,

uncontrolled and unfettered power on the delegatee of the State

and, as such, the section is ultra vires the Constitution, being a Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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piece of excessive delegation. Consequently, the notification issued

thereunder would also be bad and unenforceable.

77. The third issue would be that, without

prejudice to the above, the notification, issued under Section 19(4)

of the Act by the State, is in conflict with the notified New Excise

Policy, 2015, which policy is the only guideline available for

issuance of notification under Section 19(4) of the Act and, as

such, the notification has to be struck down.

78. The fourth issue is that the Bihar Excise

Act, 1915, is an Act for collecting State excise duty and regulation

incidental thereto, the impugned notification goes beyond the very

object of the Act and virtually obliterates the Act itself, which is

impermissible.

79. The fifth issue is that whether an individual

citizen has a right of choice as to how he would live, what he would

eat and what he should drink, as a part of right of privacy as

contemplated under Article 21 of the Constitution. I have noted

this issue only because it was argued at length though, I am not

basing my judgment on this aspect in any manner.

80. The sixth issue is that whether the effect

of impugned notification would amount to arbitrary and

unreasonable restriction.

81. The seventh issue is that whether the

punishment, as now provided by the amended provisions of the

Act, are draconian, in excess and grossly disproportionate to the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-41-

delinquency sought to be punished. In other words, is the remedy

worse than the disease itself and, as such, ultra vires Articles 14

and 21 of the Constitution and, finally, the eighth issue would be

whether the impugned notification restricts possession of liquor

simpliciter by a person.

82. On behalf of the State, the issues as sought

to be raised by the petitioners have been contested. It has been

submitted that so far as the first issue is concerned, the

Legislative history and the judicial pronouncements in respect of

Section 19(4) of the Act are against the petitioners. In relation to

the second issue, it is submitted that the notification, issued under

Section 19(4) of the Act, is neither a piece of delegated legislation

nor even conditional legislation but a power of administrative act

and the liquor trade being extra commercium, no person can make

any grievance thereof. So far as the third issue is concerned, the

stand of the State is that the notified New Excise Policy, 2015,

contemplates prohibition, though in a phased manner, and the

impugned notification, imposing a total ban, is or prohibition

beyond which the policy cannot control the State. In regards to the

fourth issue, the stand of the State is that the legislative power

being there, the object of the Act cannot control the power

exercised under Section 19(4) of the Act. In regards to the fifth

issue, it is submitted that no person has a right to consume liquor

and liquor trade being extra commercium, no person can think it as

a part of any fundamental right. In respect of the sixth issue, it is Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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submitted, once again, that liquor trade being extra commercium,

there will be no concept of reasonableness of restriction. In respect

of the seventh issue, regarding punishment, it is submitted that

State has the legislative power and authority to define the offence

and provide for a punishment. The legislative wisdom cannot be

questioned or interfered with by this Court. In respect of the

eighth issue, it is submitted, on behalf of the State, that once

trade in liquor is prohibited, then, automatically possession thereof

by any person would be deemed to be prohibited.

83. I may note that along with the aforesaid

issues, which are all independent and in alternatives, there are

subsidiary issues, which I would discuss at appropriate places.

1. Regarding "any person" as used in Section 19 (4) of the Bihar Excise Act:

84.00. The submission, on behalf of the

petitioners, is that considering the legislative history of the

amendments to Section 19 (4) Act and the judicial

pronouncements in relation thereto, the impugned notification

could not be issued in relation to "all persons". Alternatively, it is

submitted that the said expression "any person" has to be read

ejesdem generis and would not cover individuals, not being

manufactory, bottling plant or licence holder.

84.01. In order to appreciate the contention,

it would be necessary to, first, notice Section 19 (4) of the Act, as

it originally stood, up to 1940, when it was interpreted by the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-43-

Special Bench of five Judges of this Court in the case of Kanhai

Sahu Vs. Emperor, reported in AIR 1941 Patna 53 (SB).

Section 19(4) then stood as follows:

"4. Notwithstanding anything contained in the foregoing Sub-sections, the Local Government may, by notification, prohibit the possession of any person or class of persons, either in the Province of Bihar and Orissa or in any specified local area, of any intoxicant , either absolutely, or subject to such conditions as it may prescribe."

(Emphasis is supplied)

84.02. The Special Bench of this Court, in

Kanhai Sahu's case (supra), was called upon to interpret the

expression "any person" in the said provision. The Court took the

view that "any person" could not mean "all persons", as the

expression "any person" was qualified by "or class of persons" and,

therefore "any person" would take colour from the expression,

"class of persons" and, instead of being general and extensive,

would receive a restrictive interpretation. Thus, the notification, in

respect of all persons under Section 19 (4), as it then stood, was

held to be clearly ultra vires. While doing so, the Special Bench, in

Kanhai Sahu's case (supra), took into consideration the identical

provisions of the Bombay Abkari Act, as interpreted by a Special

Bench of Five Judges of the Bombay High Court, in the case of

Chinubhai Lal Bhai and others Vs. Emperor, (AIR 1940

Bombay 273), wherein the same view was taken, as in the case Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-44-

of Kanhai Sahu's (supra), in respect to virtually the same

provisions in the said Bombay Act.

84.03. It seems, in view of the Special

Bench judgment, Section 19 (4) of the Bihar Excise Act was

amended by Governor's ordinance, being Bihar Excise Amendment

Act, 1940, whereby Section 19 (4) was replaced in the following

manner:

"4. Notwithstanding anything contained in the foregoing subsections, the local Government may, by notification, prohibit the possession by any person or class of persons or, subject to such exceptions, if any, as may be specified in the Notification, by all persons either in the Province of Bihar or in any specified local area, of any excisable article either absolutely or subject to such conditions as it may prescribe."

(Emphasis is added)

84.04. Here, the expression "any person" or

"class of persons", as earlier used, was qualified by "all persons".

84.05. It may be noted that this ordinance

lapsed thereby reviving the earlier provisions. In the meantime,

during validity of the ordinance, a person was acquitted for having

been found violating the notification prohibiting all persons from

possessing liquor. The matter traveled to the Federal Court upon

Patna High Court reversing the judgment of acquittal, in the case

of Bhola Prasad Vs. Emperor, (AIR 1942 Federal Court 17). Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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The Federal Court, though noticed the judgment of Special Bench

of this Court and the Bombay High Court, did not, in view of the

amended provision of Section 19 (4), comment upon it inasmuch

as the amended provision of Section 19 (4) was under

consideration and held that the section authorized issuance of

notification in respect of all persons and the conviction was upheld.

84.06. As noted above, this amendment by

ordinance of the year 1940 lapsed and the position as emanating

before revived. Section 19 (4) came up for consideration, once

again, before this Court in the case of Shivjee Prasad Vs. The

State of Bihar and others, the decision whereof is reported in

1980 PLJR 37 (DB). This Court held that in view of the

expression "any persons or class of persons", as interpreted earlier

by Special Bench of this Court, would continue to be binding

precedent, not having been disapproved by the Federal Court and,

once again, held that the notification, issued under Section 19 (4)

in respect of "all persons", would thus be bad. Considering the

aforesaid, the Legislature then, again, amended the provisions of

Section 19 (4) in the year 1985 and virtually brought back the

position, which was sought to be done by the lapsed ordinance.

The new provision, as introduced in 1985, reads as follows:

"4. Notwithstanding anything contained in this Act and the Dangerous Drugs Act 1930 (Act II of 1930), the State Government may by notification, prohibit the possession, consumption or both by any person or class of Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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persons or subject to such exceptions, if any, as may be specified in the notification, by all persons in the State of Bihar or in any specified local area, of any intoxicant either absolutely or subject to such conditions as it may prescribe."

84.07. As would be seen, the provisions of

Section 19 (4), as amended, from time to time, up to 1985

amendment, deal only with regard to possession, consumption or

both in respect of a person. The section was now amended with

effect from 31.03.2016, to bring in other activities of manufacture,

bottling, distribution and sale also; but this time, the expression

used was, apart from others, "any person".

"19(4). Notwithstanding anything contained in this Act and the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the State Government may by notification, absolutely prohibit the manufacture, bottling, distribution, sale, possession or consumption by any manufactory, bottling plant, license holder or any person in the whole State of Bihar or in any specified local area in respect of all or any of the intoxicant s either totally or subject to such conditions as it may prescribe."

84.08. The argument, on behalf of the

petitioners, has been that the expression, which was originally

there, i.e., "any person" has been used again and thus should

receive the same interpretation that was given by the Special Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-47-

Bench of this Court and followed by this Court in Shivjee Prasad's

case (supra). To me, this is untenable and the reason is simple.

The legislative history and the judgments do not support it.

84.09. As already noticed earlier, in Kanhai

Sahu's case (supra), decided by Special Bench of this Court, the

restrictive meaning given to the expression "any person" was solely

because of it being qualified by the expression "class of persons".

Presently in the amended Section 19(4), the expression, "any

person" is not so qualified. "Any person" or the use of expression

"any" would indicate expansive and be of widest import. "Any

person" by itself would mean "all persons". The Special Bench, in

Kanhai Sahu's case (supra), and this Court, in the case of

Shivjee Prasad' case (supra), both have noticed that the

expression "any person", by itself, would mean and include "all

persons", but only because it was qualified by the expression "class

of persons" it had to be restricted. Such is not the case now. "Any

person" is not qualified in any manner and, thus, it would include

"all persons". The impugned notification cannot, therefore, be held

to be bad on this count alone.

84.10. Coming to the alternative submission

that "any person", in Section 19 (4), as it now stands, has to be

read ejesdem generis to the expressions manufactory, bottling

plant, licence holder can also not be accepted. The reason is

simple as held by the Supreme Court in the case Raja Bhanu

Pratap Singh Vs. The Assistant Custodian, E.P., Bahraich, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-48-

(AIR 1966 Supreme Court 245). While interpreting the

expression "any other person" in respect of Section 10 (2) (n) of

the Administration of Evacuee Properties Act, 1950, their Lordships

noticed the submission that "any other person" must be construed

ejesdem generis with "evacuee" or "any member of his family" only

to reject it. According to their Lordships, the rule of interpretation

ejesdem generis applies, where general word follow particular and

specific words of the same nature as itself. It has no application

where there is no genus or category indicated by the Legislature.

84.11. Applying the said principle, as laid

down, in Raja Bhanu Pratap Singh (supra), to the present case,

it would be seen that the preceding expressions manufactory,

bottling plant, licence holders, having no common genus, at least,

if we consider the earlier stipulations in the section itself, which

talks of manufacture, bottling, distribution, sale, possession or

consumption. All are different in species and genus. Hence, the

rule of ejesdem generis would not apply to interpret the expression

'any person' and, therefore, the expression, 'any person' now used

would include all persons. The impugned notification cannot, thus,

be held, if we may reiterate, to be bad on this count alone.

2. Regarding Issue in relation to delegated legislation .

85.00. Whether the impugned notification,

dated 05.04.2016, issued by the State Government, by resorting to

its powers under Section 19 (4) of the Bihar Excise Act, 1915 Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-49-

(hereinafter in short as the 'Act'), as amended, is in exercise of

delegated legislation or conditional legislation? In other words,

whether Section 19 (4) of the Act, as amended, is authorizing

delegated legislation or conditional legislation?

85.01. This issue is of some importance as

both, the amended Section 19 (4) of the Act and the notification

issued thereunder, being notification, dated 05.04.2016, are under

challenge.

85.02. On behalf of the petitioners, the first

challenge is that Section 19 (4) of the Act is a piece of delegated

legislation, which confers unbridled and unguided powers on the

State to issue notification, virtually superseding/abrogating the Act

itself. Being unchannelized and there being no legislative policy, as

contained in the legislation (the Act), the abdication of essential

legislative function would render the section ultra vires the

Constitution being a clear case of excessive delegation and,

consequently, the impugned notification, issued thereunder would

also be bad. Alternatively, it is argued that the Act itself having

not provided any legislative guidelines, for the exercise of power

under Section 19 (4) of the Act, the guidelines are to be inferred

from the notified New Excise Policy, pursuant whereto, and in

furtherance whereof, Section 19 (4) of the Act, was amended and

notification was issued thereunder and if the notified policy is

studied and the scheme thereunder taken note of, then, the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-50-

resultant notification would, undoubtedly, be in conflict with the

notified policy/guidelines rendering the notification invalid.

85.03. On the other hand, on behalf of the

State, it is submitted that Section 19 (4) of the Act, as amended,

and the notification issued thereunder is the result of a conditional

legislation alone and the delegation by Section 19 (4) of the Act is,

thus, a valid piece of legislation. It is further submitted, on behalf

of the State, that the New Excise Policy itself provides for total

prohibition and the impugned notification, dated 05.04.2016, is

nothing but implementing the said policy and, therefore, the

impugned notification is not open to challenge on this ground.

85.04. In my view, the first thing that is to

be considered is, what is the nature of powers being delegated by

the amended Section 19 (4) of the Act. Whether it is delegated

legislation or it is conditional legislation? The legal issue and the

legal distinction are now well recognized and the leading case,

which has consistently been followed, is the Constitution Bench

judgment of the Supreme Court in the case of Hamdard

Dawakhana and another Vs. Union of India & Ors., (AIR

1960 Supreme Court 554). In Hamdard Dawakhana case

(supra), the provisions of the Drugs and Magic Remedies

(Objectionable Advertisements) Act, 1954 and the actions taken

thereunder were under challenge in a petition under Article 32 of

the Constitution. One of the provisions, under challenge, was

Section 3 (d) of the Drugs and Magic Remedies (Objectionable Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-51-

Advertisements) Act, 1954, on the ground that it was a piece of

delegated legislation and in absence of legislative policy appearing

from the Act itself, it conferred unbridled and undefined powers on

the State and, therefore, was ultra vires. The contention was

upheld and the provision was declared ultra vires. The provision is

apparent from the judgment, which is quoted hereunder:

"S. 3. Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for ................................................ ................................................ ................................................

(d) the diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act."

85.05. In paragraph 29 of the decision in

Hamdard Dawakhana's case (supra), this is what their Lordships

observed drawing distinction between delegated legislation and

conditional legislation, the relevant part whereof is quoted

hereunder with emphasis supplied.

"29. The third point raised by Mr. Munshi was that the words 'or any other disease or condition which may be specified in the rules made under this Act' in cl.(d) of S.3 of the Act are delegated legislation and do not lay down any certain criteria or proper standards, and Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-52-

surrender unguided and uncanalised power to the executive to add to diseases in the schedule. The learned Solicitor-General in reply supported the schedule as a case of conditional legislation and not the exercise of delegated legislative power and he further contended that even if it was held to be the latter it was within the limits recognized by judicial decisions. The distinction between conditional legislation and delegated legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton & Co. v. United States, (1927) 276 US 394, and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend. The Queen v. Burah, (1878) 3 AC 889; Charles Russell v. The Queen, (1882) 7 AC 829 at p. 835; Emperor v. Benoarilal Sarma, 72 Ind App Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-53-

57: (AIR 1945 PC 48); Inder Singh v. State of Rajasthan, (1957) SCR 605: ( (S) AIR 1957 SC

510). Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation . But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation .

To put it in the language of another American case:

"To assert that a law is less than a law because it is made to depend upon a future event or act is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or the things future and impossible to fully know".

The proper distinction there pointed out was this :

"The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and, must therefore be subject of Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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enquiry and determination outside the hall of legislature". (In Locke's Appeal 72 Pa. 491; Field & Co. v. Clark, (1892) 143 US 649)."

(Emphasis is added)

85.06. In Hamdard Dawakhana case

(supra), while dealing with delegated legislation and the discretion

conferred therein upon the delegatee, their Lordships further held,

in paragraph 29, as under:

"But the discretion should not be so wide that it is impossible to discern its limits. There must instead be definite boundaries within which the powers of the administrative authority are exercisable. Delegation should not be so indefinite as to amount to an abdication of the legislative function. Schwartz - American Administrative Law, Page 21."

(Emphasis is supplied)

85.07. Having, thus, observed, the Supreme

Court, in Hamdard Dawakhana case (supra) then dealt with the

provisions of Section 3 (d) of the Drugs and Magic Remedies

(Objectionable Advertisements) Act, 1954, as quoted above, and,

in paragraph 34, this is what their reason and conclusion was, the

relevant part whereof is quoted hereunder:

"34. .... In our view the words impugned are vague. Parliament has established no criteria, no standards and has not prescribed any principle on which a particular disease or Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-55-

condition is to be specified in the Schedule. It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease. The power of specifying diseases and conditions as given in S. 3(d) must therefore be held to be going beyond permissible boundaries of valid delegation." ..........

(Emphasis is added)

85.08. Now, let us, first, see the provisions

of the Act. Firstly, the preamble reads as follows:

"An Act to amend and re-enact the Excise- Law in the Province of Bihar and Orissa.

Whereas it is expedient to amend and re-enact the law in the Province of Bihar and Orissa relating to the import, export, transport, manufacture, possession, and sale of certain kinds of liquor and intoxicating drugs;

And whereas the previous sanction of the Governor-General has been obtained, under Section 5 of the Indian Councils Act, 1892 (55 and 56 Vict., c.14), to the passing of this Act."

85.09. Section 2 of the Act is the definition

clause. Section 2 (17 A) and Section 2 (22) of the Act, being the

definition of public place and unauthorized places, was inserted by

the Amendment Act of 2016. Similarly, Section 4 A of the Act,

which deals with the State Government's power to declare

intoxicant, was inserted by the Amendment Act of 2016. Section 7

(1) of the Act deals with making the Collector of the District to be Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-56-

in-charge of collection of excise revenue and Section 8 of the Act

deals with control, appeal and revision. Section 9 of the Act deals

with restriction on import and provides that there would be no

import of intoxicant without the permission of the State

Government and subject to such condition as may be prescribed by

the State Government. Section 10 of the Act provides for

restriction of export and transport. Section 11 of the Act deals

with power of the State to prohibit the import, export or transport

of intoxicant and Section 12 of the Act passes for import, export or

transport. Section 13 of the Act provides for licence to manufacture

intoxicant. Section 14 of the Act deals with tariff and powers to

impose restriction in relation thereto. Section 15 of the Act deals

with establishment of distillery, brewery and ware houses. Section

16 of the Act deals with licences required for depositing and

keeping in ware houses or other places or storages. Section 17

deals with payment of duty on removal from distillery, brewery and

warehouse or other places or storages. Section 18 of the Act

regulates possession of intoxicants not obtained from a licensed

vendor. Section 19 deals with possession and consumption of

intoxicants generally. Section 19 (1) permits possession of

intoxicants in quantity not exceeding those specified by the Board

of Revenue. Section 19 (4) of the Act, which is the subject matter

of challenge, as amended by the 2016 Amendment, is, now, being

quoted hereunder:

Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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"19(4). Notwithstanding anything contained in this Act and the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the State Government may by notification, absolutely prohibit the manufacture, bottling, distribution, sale, possession or consumption by any manufactory, bottling plant, license holder or any person in the whole State of Bihar or in any specified local area in respect of all or any of the intoxicant s either totally or subject to such conditions as it may prescribe."

(Emphasis is supplied)

85.10. Section 20 of the Act provides for

licence for sale of intoxicants and other substances. Section 22 of

the Act provides for grant of privilege. Sections 22-A, 22-B and

22-C up to Section 22-G of the Act provides for country liquor and

spiced country liquor. Chapter V deals with duties. Chapter VI

deals with licences, permits and passes. Section 42 of the Act

deals with power to cancel or suspend or impose penalty. Section

43 of the Act deals with premature withdrawal of licences and its

consequences including payment of compensation and remission of

fees. Chapter VIII deals with offences and penalty, to which I will

deal with in greater detail, at appropriate places. Section 89 of the

Act deals with the power of the State Government to make rules

and Section 90 of the Act deals with power of the Board of Revenue

to make rules. Section 94 deals with power of the State

Government to exempt intoxicant from the provisions of the Act.

Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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85.11. The first thing to be noticed is that

except for Section 19 (4) of the Act, there is no legislative

enactment in the Act, which would indicate the circumstances and

the conditions, whereunder total prohibition could be notified by

the State Government as a delegatee. A reading of Section 19 (4)

of the Act would show that it authorizes the State Government to

issue notification absolutely prohibiting various activities, either in

the whole of the State or in specified local areas, in respect of all or

any of the intoxicants, either totally or subject to such conditions

as may be prescribed. There is no legislative guideline at all

discernible from the Act in relation to the aforesaid delegation.

85.12. In view of the decision of the

Supreme Court, in Hamdard Dawakhana case (supra), as noted

above, firstly, it can only be termed as delegated legislation and

not conditional legislation, for, various discretions have been

conferred on the delegatee in respect of various aspects. State is,

thus, wrong to say that it authorizes conditional legislation as

distinct from delegated legislation.

85.13. As noted above, in the provisions

embodied in Section 19 (4), authorizing delegated legislation the

parameters are not only unspelt, but they are absolutely vague and

the discretion, upon the delegate, is absolute, uncontrolled,

unbridled and uncanalized.

85.14. With regard to the above, I may point

out that compared to the provisions of Section 3 (d) of the Drugs Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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and Magic Remedies (Objectionable Advertisements) Act, 1954,

which was under consideration in the case of Hamdard

Dawakhana (supra), as quoted above, and the provisions of

Section 19 (4) of the present Act, which also stands quoted above,

there is no material difference. In respect of Drugs and Magic

Remedies (Objectionable Advertisements) Act, 1954, being dealt

with by the Supreme Court, in the case of Hamdard Dawakhana

(supra), the preamble did give a guideline, but the section was

found to be absolutely vague. In the present case, the preamble

and the other provisions, if read together, give a different guideline

and those are all in relation to permitting, facilitating and

regulating manufacture, storage and sale of intoxicants and for

collection of excise revenue and except for Section 19 (4) of the

Act, there is no provision for imposing prohibition . The Supreme

Court, in Hamdard Dawakhana case (supra), while declaring the

provision of Section 3 (d) of the Drugs and Magic Remedies

(Objectionable Advertisements) Act, 1954, held Section 8, too, as

void and unconstitutional. The relevant observations, appearing in

para 36 of the decision of Hamdard Dawakhana case (supra),

reads as follows:

"36. The constitutionality of S. 8 of the Act was challenged on the ground that it violated the petitioner' right under Arts.21 and

31. That section when quoted runs as follows:

"Any persons authorized by the State Government in this behalf may, at any time, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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seize.......and detain any document, article or thing which such person has reason to believe contains any advertisement which contravenes any of the provisions of this Act and the court trying such contravention may direct that such document (including all copies thereof) article or thing shall be forfeited to the Government."

It was pointed out by Mr. Munshi that there was no limitation placed on, no rules and regulations made for and no safeguards provided in regard to the powers of a persons authorized in that behalf by Government to seize and detain any document, article or anything which in the opinion of such person contains any advertisement contravening any of provisions of the Act. It was also submitted that in the corresponding English Act of 1939 in S. 10 there are proper safeguards provided in regard to the exercise of the power of seizure etc. The first part of S. 8 of the Act dealing with seizure and detention received slender support from the Solicitor-General. It may be, he contended, that having regard to the purpose and object of the Act the Indian legislature did not think it necessary to provide any safeguards and that the legislature thought that nobody would be prejudiced by reason of the want of safeguards previous to the seizure. In our opinion this portion of the section goes far beyond the purpose for which the Act was enacted and, the absence of the safeguards which the legislature has thought it necessary and expedient in other statutes e.g. the Indian Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-61- Drugs Act, is an unreasonable restriction on the fundamental rights of the petitioners and therefore the first portion of the section i.e. "any persons authorized by any of the provisions of this Act" is unconstitutional.

What then is the consequence of this unconstitutionality? If this portion is excised

from the rest of the section the remaining portion is not even intelligible and cannot be upheld. The whole of the section must therefore be struck down."

(Emphasis is added)

85.15. One of the questions that would arise

simultaneously, in case of delegated legislation, is, what can be

delegated? One need not have to go far, for, this issue has been

decided by the Constitution Bench in the case of Vasanlal

Maganbhai Sanjanwala and another Vs. The State of

Bombay (now Maharashtra), (AIR 1961 Supreme Court 4),

wherein the Constitution Bench laid down the principles, in

paragraph 4 thereof, which is reproduced hereunder:

"4. It is now well established by the decision of this Court that the power of delegation is a constituent element of the legislative power as a whole, and that in modern times when the Legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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out the policy laid down by their Acts. The extent to which such delegation is permissible is also now well settled. The Legislature cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principle, and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. As has been observed by Mahajan C. J. in Harishankar Bagla v. State of Madhya Pradesh, (1955) 1 SCR 380 at p. 388: (AIR 1954 SC 465 at p. 465), "the Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases, and must provide a standard to guide the officials or the body in power to execute the law''.

In dealing with the challenge to the vires of any statute on the ground of excessive delegation it is, therefore, necessary to enquire whether the impugned delegation involves the delegation of an essential legislative function or power and whether the Legislature has enunciated its policy and principle and given guidance to the delegate or not. As the decision in Bagla's case, 1955-1 SCR 380 : (AIR 1954 SC 465), shows, in applying this test this Court has taken into account the statements in the preamble to the Act, and if the said statements afford a Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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satisfactory basis for holding that the legislative policy and principle has been enunciated with sufficient accuracy and clarity the preamble itself has been held to satisfy the requirements of the relevant tests. In every case it would be necessary to consider the relevant provisions of the Act in relation to the delegation made and the question as to whether the delegation is intra vires or not will have to be decided by the application of the relevant tests."

(Emphasis is supplied)

85.16. In my view, the wide unguided

powers conferred on the executive are virtually giving the

executive the power to abrogate or stultify the whole or any part of

the legislative enactment itself. That, to my mind, cannot, by any

stretch of reason, be held to be valid much less in absence of the

legislative policy in the Act itself.

85.17. Lastly, in this connection, on behalf of

the State, it was urged that liquor trade being res extra

commercium, the executive, under Section 19 (4) of the Act, was

only issuing a notification in pursuance thereto. It was purely an

administrative action. I simply cannot accede to this. As noted

earlier, the Act does not indicate any legislative policy of either

prohibition or making liquor trade res extra commercium. To the

contrary, the Act permitted liquor trade and what provided for were

regulations for trade, consumption, possession, etc. All I can do is

to quote from what the Supreme Court said, in paragraph 53, in Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-64- Godawat Pan Masala Products I.P. Ltd. and another Vs.

Union of India and others, reported in (2004) 7 Supreme

Court Cases 68, the relevant part whereof read thus:

"53. ....... In any event, whether an article is to be prohibited is res extra commercium is a matter of legislative policy and must arise out of an Act of legislature and not by a mere notification issued by an executive authority.

85.18. In view of the aforesaid, to me, the

conclusion is inescapable. Section 19 (4) of the Act is, thus, a

piece of excessive delegated legislation and has to be itself held to

be ultra vires. Consequently, the impugned notification, too, cannot

survive or be sustained

85.19. In fairness to the State, it must be

noted that reliance has been placed on the Division Bench

judgment of this Court in the case of Shivjee Prasad Vs. The

State of Bihar and others, reported in 1980 PLJR 37, in relation

to Section 19 (4) of the Act, as it earlier stood, whereunder

notification of prohibition was issued and the same was challenged

on the ground of excessive delegation of legislative power. This is

discussed in paragraph 22, wherein their Lordships have

themselves first found that it was not necessary to decide the

issue, having set aside the notification. The contention falls into

insignificance and the matter is merely academic.

85.20. In my view, having held so, their Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Lordships held it not to be illegal delegation of power, holding that

the guidelines were available in numerous decisions and the

intention of the legislature expressed in the statute. No decision

nor provisions of the statute were discussed much less noticed or

pointed out. Their Lordships further went on and held, as a matter

of fact, the no guidelines would be required, for, the legislative

intent of absolute prohibition is already there. As noted in the case

of Hamdard Dawakhana (supra) by the Supreme Court, what is

of essence is legislative guideline for exercise of discretion as

various alternatives have been given. Any how, to me, the said

observations, in view of the learned Judge, who himself held, were

not necessary for the decision and, thus, it cannot be taken to be a

binding precedent in the set of cases.

85.21. In fairness to learned Principal

Additional Advocate General, his independent submission must be

noticed in this regard. He refers to Section 92 of the Bihar Excise

Act, 1915, and, with reference thereto, submits that the

notifications, issued under the Act, on publication in the Gazette,

shall have effect as if enacted in this Act itself. Submission would

be that the notification, issued by the State under the powers

delegated to it by Section 19 (4) of the Act, as amended, would,

thus, be deemed to be a part of legislative exercise done by the

legislature themselves and, thus, there was no question of any

excessive unbridled, unguided exercise of delegated legislation. If

I have correctly understood his submission, he means to submit Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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that the impugned notification, issued under Section 19 (4) of the

Act, should be taken to be an act of primary legislature and, thus,

cannot be tested as an exercise of delegated legislative authority,

which would require legislative guidance.

85.22. If the above proposition, advanced by

learned Principal Additional Advocate General is to be accepted,

then, such a clause would validate all delegated legislation and

take it beyond the purview of judicial review. A delegate, then,

could exercise the power in an unfettered, unbridled and unguided

manner and there would be no control of the delegatee by the

legislature itself, once such power was conferred on the delegate.

To me, that cannot be accepted. Section 92 of the Act is a pre

constitutional provision. It appears, such was the contention of the

State in the case of General Officer Commanding-in-Chief and

another Vs. Dr. Subhash Chandra Yadav and another,

reported in (1988) 2 Supreme Court Cases 351, which was

rejected by the Supreme Court. There the question was with

regard to the rules being framed under Section 281 (2) of the

Cantonment Act and this is what their Lordships held in paragraph

14 of the reports:

"14. This contention is unsound. It is well settled that rules framed under the provisions of a statute form part of the statute. In other words, rules have statutory force. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void. The position remains the same even though sub- section (2) of Section 281 of the Act has specifically provided that after the rules are framed and published they shall have effect as if enacted in the Act. In other words, in spite of the provision of sub-section (2) of Section 281, any rule framed under the Cantonments Act has to fulfill the two conditions mentioned above for their validity ........................."

(Emphasis is added)

85.23. Thus, the validity of the impugned

notification, dated 05.04.2016, issued under Section 19 (4) of Act,

cannot be saved by virtue of Section 92 of the Act as that would

amount to conferring legislative powers on the delegate with no

legislative control.

3. Notification in conflict with notified policy

guidelines.

86.00. Alternatively and without prejudice to

the earlier submissions made on behalf of the petitioners, it is

pointed out that Section 19 (4) of the Act, as amended, by itself

does not provide any guidelines for the State to exercise powers to

enforce prohibition nor does the Act give any legislative guidelines Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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for the same, the guidelines, if any, and extent thereof are to be

inferred from the New Excise Policy, 2015. The relevance of this,

according to the petitioners, is that, it is, for the first time, with the

help of new Excise Policy, 2015, published in the State Gazette, on

21.12.2015, that the State Government's resolve to impose total

prohibition was predicated and, keeping in view the aforesaid

notified policy, steps were taken to amend the State Excise Act,

1915, which included the present amendment to Section 19 (4) of

the Act.

86.01. It was, thus, the scheme, notified by

the Government, vide the New Excise Policy 2015, which was to

guide its future actions and, therefore, the guidelines, for exercise

of power under Section 19 (4) of the Act, have to be inferred from,

and uncovered by, the new Excise Policy, 2015. Further

submissions, on behalf of the petitioners, is that there is nothing in

the policy, which showed or which authorized the State to,

immediately, prohibit trade in Indian Made Foreign Liquor

(hereinafter in short as 'IMFL')/Foreign Liquor, though it made

provisions for sale, through single source, in restricted areas only.

The new Excise Policy, 2015, nowhere, predicated an immediate

complete prohibition. Therefore, the notification issued was

contrary to the notified policy of the State Government and

contrary to the guidelines provided therein and, as such, would be

ultra vires.

Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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86.02. To the contrary, on behalf of the

State, it is submitted that the New Excise Policy, 2015, is relevant

only to the extent that it contemplated implementation of total

prohibition and the legislative act of amendment of Section 19 (4)

of the Act, having authorized the State to do so, was sufficient and,

thus, the notification, issued thereunder, cannot be judged in the

light of the said policy, but has to be judged only in the light of the

power conferred on the State by Section 19 (4), as amended, by

the State Legislature.

86.03. In order to appreciate the rival

contentions, it would be necessary to refer to the provisions of the

notified New Excise Policy, 2015 (hereinafter, in short, 'NEP') and

the actions taken by the Government and the legislature in

connection therewith. The NEP was notified in the Bihar Gazette

(Extraordinary), dated 21st December, 2015, for information of

general public, which is on record. It is a lengthy policy document;

but for the sake of brevity, relevant provisions are being noticed

and quoted wherever necessary.

86.04. The NEP begins by stating that from

time to time, the Excise Policy underwent changes. The important

changes were carried out vide Excise Policy, 2007, whereunder

significant increase in number of liquor vends to increase

collections of excise duty, in the State, was done. Changes were

made to curtail tendencies of monopoly in the trade by allowing the

process of allotment of shops and that efforts were made to curb Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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illegal trading. Though this policy resulted in expected increase in

excise duty in the State, some negative impacts also surfaced in

the NEP, "It was noticed that most adverse impact was on

the poorest class of people. Adverse consequences were

subsequently experienced in rural areas." The NEP also

stated, "In this background, the State Government felt the

need to reconsider its Excise Policy of 2007. In this point of

view, it was decided to frame New Excise Policy, 2015."

86.05. What is of immense importance to

note, now, is that the object of this New Excise Policy, 2015, was

clearly stated to be to implement total ban on consumption of

alcohol all over the State and this would be enforced in a phased

manner. No wonder, therefore, that the NEP announced that in

the first phase, country liquor and spiced country liquor shall be

banned all over the State and no licence for the same would be

granted from 1st April, 2016 and, with effect from 1stApril, 2016,

only foreign liquor/IMFL would be available in urban areas only,

i.e., Municipal Corporation and Municipal Council level. All vends

shall be "off". All bars and all restaurants, in areas other than

Municipal Corporation and Municipal Council, would cease to

operate and those permitted, within the territorial areas of

Municipal Corporation and Municipal Council, would sell only foreign

liquor/IMFL. The Bihar State Beverages Corporation Limited

(hereinafter, in short, referred to as the 'BSBCL') would only be the

authorized body to operate these vends/shops. Distilleries would Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-71-

be entitled to manufacture only ethanol from molasses. As a part

of enforcement system, various policy decisions were taken with

regard to transportation of foreign liquor/IMFL under digital lock

system under supervision. BSBCL shall mandatorily keep one depot

for foreign liquor/IMFL in all districts. The NEP reflects that the

State Government resolved to ensure that rural public voluntarily

moves towards prohibition of alcohol to achieve this objective

social movement was necessary. De-addiction centers were to be

opened accordingly in all districts.

86.06. In no uncertain words, the NEP made

it clear that the New Excise Policy, 2015, shall be reviewed, in an

effective manner, by a Committee at the level of Chief Secretary

and eleven members high powered committee was formed in the

policy document itself. It further noted that in terms of the aims

and objects of the policy, the guidelines, framed by the

Department, shall be approved by this committee and required

proposals will be sent to the Board of Revenue for approval. The

Committee was to issue guidelines and take decisions for opening

of new shops as per requirement, keeping in view the coverage of

foreign liquor shops from the point of view of prohibition, tourism,

etc. Further, this Committee was also to fix guidelines for

provisions in the army establishments. The new policy came into

effect from 01.04.2016.

86.07. From the aforesaid notified policy, it

would be seen that a clear decision was taken to stop manufacture Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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and sale of any form of country liquor with effect from 01.04.2016.

So far as foreign liquor/IMFL including beer is concerned, it clearly

predicated creation of monopoly of BSBCL to the exclusion of

private trade and, further, it restricted the sale to municipal areas

only to the exclusion of rural areas. Bars and restaurants could

operate only in municipal areas and not in rural areas. The policy

also constituted a committee to overlook the operations, which was

also vested with power to suggest opening of more shops, if

necessary. There is nothing in the policy, which indicates the State

Government's resolve to resort to immediate prohibition of foreign

liquor/IMFL; rather, it contemplates sale and consumption thereof,

in restricted geographical area, through monopolist State agency.

This apart, the policy also made it abundantly clear that

complete prohibition was the objective to be achieved by

the State Government, this objective could be achieved in a

phased manner and it was the Committee, constituted under

the New Excise Policy, 2015, which was to guide the

Government in this regard.

86.08. In pursuant to the aforesaid policy, a

bill, proposing amendment of the Bihar Excise Act, 1915, was

introduced in the Legislature. The object and reasons, stated

therein, are as follows:

"For phase wise implementation of prohibition in the State, the New Excise Policy, 2015 is notified. For effective implementation of prohibition, new provisions require to be Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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incorporated in place of various sections of the Bihar Excise Act, 1915, which has become irrelevant in the present context. Therefore, incorporation of new provisions, amendment and substitution of some provisions of the Act is expected.

For amendment in the existing Bihar Excise Amendment Act, 1915, several provisions have been made in this legislation, the enactment of which is the main object and intendment of this legislation."

86.09. The bill proposed various

amendments including substitution of Section 19 (4) of the Act. It

may be noticed at this stage that earlier, Section 19 (4) of the Act

authorized the State to prohibit possession, consumption or both,

of any intoxicant , in relation to persons. It did not deal with

manufacturing, sale and/or purchase, etc.; hence, the necessity of

amendment of Section 19 (4) of the Act.

86.10. State, in its counter affidavit, has

specifically averred that it is pursuant to the New Excise Policy,

2015, that the amendments were proposed as would also be

indicated in the objects and reasons for the amendment, which we

have already noted above. The bill was introduced on 30.03.2016

and passed unanimously, both in the Legislative Assembly and in

the Legislative Council, on 31st of March, 2016. Immediately

thereafter, on 31st of March, 2016 itself, as contemplated by the

policy, a notification was issued by the State Government, in Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-74-

exercise of powers conferred on it by Section 19 (4) of the Act,

imposing absolute ban on the manufacture, bottling, distribution,

sale, purchase, possession and consumption of country liquor in

the following terms:

"In exercise of the powers conferred under Section 19 (4) of the Bihar Excise Act 1915 (as amended by Bihar Excise (Amendment) Act 2016), the State Government hereby imposes absolute ban on the manufacture, bottling, distribution, sale, purchase, possession and consumption of country liquor by any manufactory, Bottling Plant, license holder or any person in the whole of the State of Bihar with effect from 01 April, 2016."

86.11. In the meantime, on or about

12.03.2016, BSBCL issued liquor sourcing policy of the year 2016-

17, wherein it notified manufacturers within the State of Bihar as

well as manufacturers, importers and distributors outside the State

of Bihar for supply to it of foreign liquor/IMFL for sale through its

vends established in urban areas for onward sale to bars and

restaurants in urban areas and also to consumers in urban areas.

It also issued advertisements for recruitment of staffs. The

licenses of manufacturers of foreign liquor/IMFL including beer

were renewed for the year 2016-17. The bar and restaurants

licenses were renewed, in urban areas, for the year 2016-17

inasmuch as the earlier licenses were valid up to 31.03.2016 only. Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-75-

The bars and the restaurants, immediately, purchased stocks for

sale or put their indents to the BSBCL on payment of money.

BSBCL issued circulars to the district authorities to take possession

of unsold stocks of country liquor and destroy the same. Similar

directions were issued in March, 2016, by the BSBCL to the district

authorities to make inventories and take possession of unsold

stocks of foreign liquor/IMFL lying with various dealers/retailers of

rural areas, on the close of 31.03.2016, as their licenses were not

to be renewed before destruction of such stocks to BSBCL so that

BSBCL would pay the retailers accordingly.

86.12. The contents of the New Excise

Police, 2015, acknowledges and eloquently speak that even after

31.03.2016, every one, including the State and BSBCL, proceeded

on the footing that sale of foreign liquor/IMFL was to continue,

though channelised through monopoly of BSBCL in restricted areas

only.

86.13. All of a sudden, on 05.04.2016, the

State Government, in purported exercise of powers under Section

19 (4) of the Act, as amended, issued the impugned notification,

which is reproduced hereinbelow:

"Notification No. 11/Nai Utpad Niti-01.03/2016-1485, dated 5th April, 2016.

- In exercise of the powers conferred under Section 19(4) of the Bihar Excise Act, 1915 (as amended by Bihar Excise (Amendment) Act, 2016), the State Government hereby imposes Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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ban on wholesale or retail trade and consumption of foreign liquor by any license holder or any person in the whole of the State of Bihar with immediate effect."

86.14. Nothing is disclosed to the Court, as

to what happened between 01.04.2016 and 05.04.2016, which

prompted, all of a sudden, the State Government to make a

complete 'U' turn from its New Excise Policy, 2015, and give a

complete go-bye to its New Excise Policy, 2015.

86.15. The question would be : Was there

any guideline, emanating from the Act, enabling the State

Government to take, suddenly and without informing anyone, such

drastic action as the impugned notification came to unfold. For

exercise of this drastic action, is there any statutory guideline?

These are unavoidably momentous questions, which the State

ought to have answered, but has chosen not to answer or explain

except asserting that the State Government has such power under

Section 19 (4) and it has chosen to exercise that power with no

guidelines having been provided by the legislation. Undisputedly,

there is no such guideline to be found in the legislative enactment

or even in the amended version thereof, which was brought into

force as late on 31.03.2016, nor is there any such indication in the

New Excise Policy itself. Apart from this, the New Excise Policy,

2015, as noted above, clearly predicated continuance of production Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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and/or sale of foreign liquor/IMFL and/or consumption and

possession of foreign liquor/IMFL.

86.16. The narration of facts and the

sequence of events as noted above, make it clear that if the policy

statement, as published, were to offer any guidelines for exercise

of power under Section 19 (4) of the Act, then, it surely did not

mandate sudden abrupt issuance of the impugned notification on

05.04.2016 and, thus, the Section itself, having not provided any

guidelines, and the policy having not authorized, such an action, as

the impugned notification conveys, one cannot escape from the

fact that exercise of power by the State Government, in issuing the

impugned notification, dated 05.04.2016, was completely, in

exercise of unguided, uncanalized and unfettered powers given to

the State by Section 19 (4).

86.17. Coupled with the above, as the State

legislature was well aware of the State's New Excise Policy, 2015,

the legislative intendment has to be inferred to be that the

legislature did not mean to impose complete prohibition, but

making the State move towards complete prohibition gradually, but

surely, as the NEP authorized complete ban on the sale,

consumption, etc., of country made liquor, the exercise of the

delegated authority by the State, under Section 19 (4) of the Act,

in issuing the impugned notification, imposing complete ban on

foreign liquor/IMFL, would be clearly arbitrary and ultra vires

Article 14 of the Constitution. There is no gainsaying that policy Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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contemplated total prohibition and, as such, the notification is in

furtherance of the policy, because the policy itself clearly specified

and enumerated steps to be taken, prohibiting country liquor,

channelising sale and distribution of foreign liquor/IMFL,

cancellation of private dealerships, restricting area of sale to urban

areas. Thus, actions, under specific policy decisions, were

enumerated; but in the absence of the policy of suddenly

prohibiting wholesale and retail trade and consumption of foreign

liquor/IMFL, the notification, issued by the State Government, was

totally uncalled for and in conflict with the NEP as notified.

86.18. I may usefully refer to the judgment

of the Supreme Court in the case of Indian Express Newspapers

(Bombay) Private Limited and others Vs. Union of India and

others since reported in (1985) 1 Supreme Courts Cases 641

and, in particular, what their Lordships have observed in

paragraphs-75, 77 and 78 of the reports, the relevant parts

whereof are quoted hereunder:

"75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.

77. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.

78. A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary powers. In the latter case the question may be considered on all grounds on which administrative action may be questioned, such as, non-application of mind, taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc., etc. On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution....."

86.19. While on this subject, I may note

another argument of the State. It is submitted that Section 19 (4)

of the Bihar Excise Act, being part of legislative enactment, and

brought in by an amendment, could not be controlled by policy

guidelines. The notification issued thereunder cannot be tested by

policy guidelines earlier issued and notified. In my view, the

submission cannot be accepted.

86.20. As noted earlier, the new Excise

Policy, 2015, clearly envisaged total prohibition, but to be imposed

in a phased manner. It clearly predicated total prohibition in

respect of country liquor with effect from 01.04.2016, but not so

with regard to IMFL or foreign liquor. With regard to the later, it

clearly lays down policy guideline as to how trade in foreign

liquor/IMFL would be monopolized by the State, there would be no

sale in rural areas and licences for Bars would only be limited to

urban areas of municipalities.

86.21. Thus, the clear notified policy was of

continuance of sale, etc., of foreign liquor/IMFL beyond

01.04.2016, though in a restricted and channelised manner. It is

pursuant to this policy, as noted earlier, that the Act was amended

and power conferred on the State, in terms of Section 19(4) of the

Act, to effectuate the Policy. It is in exercise of that power that on Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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31.03.2016, notification of prohibition, with regard to country

liquor, was issued in conformity with the policy but, then,

suddenly, on 05.04.2016, the impugned notification was issued in

respect of foreign liquor/IMFL, which was clearly in conflict with the

policy.

86.22. Similar issue arose in the case of

State of Bihar and others Vs. Suprabhat Steel Limited and

others, reported in (1999) 1 Supreme Court Cases 31, and this

is what the Supreme Court held in paragraph 7 of the reports,

which is quoted hereunder:

"7. Coming to the second question, namely, the issuance of notification by the State Government in exercise of power under Section 7 of the Bihar Finance Act, it is true that issuance of such notifications entitles the industrial units to avail of the incentives and benefits declared by the State government in its own industrial incentive policy. But in exercise of such power, it would not be permissible for the State Government to deny any benefit, which is otherwise available to an industrial unit under the incentive policy itself. The industrial incentive policy is issued by the State Government after such policy is approved by the Cabinet itself. The issuance of the notification under Section 7 of the Bihar Finance Act is by the State Government in the Finance Department which notification is issued to carry out the objectives and the policy decisions taken in Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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the industrial policy itself. In this view of the matter, any notification issued by government order in exercise of power under Section 7 of the Bihar Finance Act, if is found to be repugnant to the industrial policy declared in a government resolution, then, the said notification must be held to be bad to that extent. In the case in hand, the notification issued by the State Government on 4-4-1994 has been examined by the High Court and has been found, rightly, to be contrary to the Industrial Incentive Policy, more particularly, the policy engrafted in clause 10.4(i)(b). Consequently, the High Court was fully justified in striking down that part of the notification which is repugnant to sub-clause (b) of clause 10.4(i) and we do not find any error committed by the High Court in striking down the said notification. We are not persuaded to accept the contention of Mr Dwivedi that it would be open for the Government to issue a notification in exercise of power under Section 7 of the Bihar Finance Act, which may override the incentive policy itself. In our considered opinion, the expression "such conditions and restrictions as it may impose" in sub- section (3) of Section 7 of the Bihar Finance Act will not authorise the State Government to negate the incentives and benefits which any industrial unit would be otherwise entitled to under the general policy resolution itself. In this view of the matter, we see no illegality with the impugned judgment of Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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the High Court in striking down a part of the notification dated 4-4-1994."

(Emphasis is supplied)

86.23. Thus seen, the policy did not

envisage complete prohibition, at least, immediately in respect of

foreign liquor/IMFL. To the contrary, it had provided how the sales

would only be controlled and curtailed; yet the executive, contrary

to the notified policy, issued the notification, which, on the above

precedent, has to be held to be bad in law.

86.24. Here, I may also refer to the

judgment in the case of Secretary, Ministry of Chemicals &

Fertilizers, Government of India Vs. Cipla Limited and

others, reported in (2003) 7 Supreme Court Cases 1, dealing

with the question of policy and notification, issued by the delegate,

contrary to the policy guideline and the effect thereon and I may

usefully quote, in this regard, from paragraphs 4.1 and 4.3, which

also show that the delegatee cannot depart from announced policy

decision for implementation of which the powers were delegated to

the executive. The relevant observations read as under :

"4.1 It is axiomatic that the contents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. At the same time, the Central Government which combines the dual role of policy-maker and the delegate of Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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legislative power, cannot at its sweet will and pleasure give a go-by to the policy guidelines evolved by itself in the matter of selection of drugs for price control.............................

The delegated legislation that follows the policy formulation should be broadly and substantially in conformity with that policy, otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14.

4.3 True, the breach of policy decision by itself is not a ground to invalidate delegated legislation . But, in a case like this, the inevitable fallout of the breach of policy decision which the government itself treated as a charter for the resultant legislation is to leave an imprint of arbitrariness on the legislation..................

However, where the delegate goes a step further, draws up and announces a rational policy in keeping with the purposes of the enabling legislation and even lays down specific criteria to promote the policy, the criteria so evolved become the guideposts for its legislative action. In that sense, its freedom of classification will be regulated by the self-evolved criteria and there should be demonstrable justification for deviating therefrom."

86.25. I may also refer in this connection to

the recent decision of the Supreme Court in the case of Lloyd

Electric and Engineering Limited Vs. State of Himachal

Pradesh and others, reported in (2016) 1 Supreme Court Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Cases 560, and, in particular, what was said in paragraph 14

thereof, which read as under:

"14. The State Government cannot speak in two voices. Once the Cabinet takes a policy decision to extend its 2004 Industrial Policy in the matter of CST concession to the eligible units beyond 31-3-2009, up to 31-3- 2013, and the Notification dated 29-5-2009, accordingly, having been issued by the Department concerned viz. Department of Industries, thereafter, the Excise and Taxation Department cannot take a different stand. What is given by the right hand cannot be taken by the left hand. The Government shall speak only in one voice. It has only one policy. The departments are to implement the government policy and not their own policy.

Once the council of Ministers has taken a decision to extend the 2004 Industrial Policy and extend tax concession beyond 31-3-2009, merely because the Excise and Taxation Department took some time to issue the notification, it cannot be held that the eligible units are not entitled to the concession till the Department issued the notification."

(Emphasis is added)

86.26. Thus, the impugned notification being

clearly in conflict with the notified New Excise Policy (NEP 2015)

cannot be sustained.

4. Notification in conflict with the object of the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Act

87.00. I have already referred to various

provisions, other than Section 19 (4) of the Act, to show that the

Act is basically for regulating the manufacturing, trade and

business of intoxicating liquor and for augmenting State revenue.

It gives no legislative intent for being an Act for imposing

prohibition, as is commonly understood. Prohibition came about

upon a movement started in South India in the 4th decade of the

last century. Several provinces enacted independent provisions by

independent legislation dealing with prohibition. For the provinces

of Bihar and Orissa, too, the Bihar Prohibition Act, 1938, was

enacted, while at that time the Bihar Excise Act 1915 was already

there. Bihar Prohibition Act, 1938, had elaborate provisions

dealing separately with different aspects of the matter. If one goes

through the provisions of this Prohibition Act, it would be seen that

there is ample provision for imposing prohibition and, once that is

done, the provisions of the Bihar Excise Act, 1915, to that extent

would stand superseded/repealed. The legislature, thus,

understood very well that Bihar Excise Act was not an Act, which

was to be used for imposing prohibition. While imposing

prohibition in the State under the Prohibition Act, various things

had to be taken care of, the transition period from non-prohibition

State to prohibition State, special provisions for travellers, visitors,

people travelling through the territory of the State from outside the

State to a place outside the State, movements of liquor from Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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outside the State to another place outside the State but, passing

through the territory of the State, and such other provisions, which

are not incorporated under the Bihar Excise Act, 1915. The reason

being simple that the Bihar Excise Act, 1915, was never intended

to be an Act empowering the State to impose prohibition. In this

connection, I may refer to the Division Bench judgment of this

Court in the case of Shivjee Prasad Vs. The State of Bihar and

others, reported in 1980 PLJR 37, and what is held in paragraph

19 of the reports, the relevant part whereof is reproduced

hereunder:

"19. .......... It is baffling to the mind as to why and how without even mentioning any provision of the 1938 Prohibition Act the notification was sought to be issued and actually issued on 27th March, 1979. It was purported to be so done in the exercise of power vested in the State Government by Sub-section (4) of Section 19 of 1915 Act. Even the policymakers, therefore, cannot be said to be oblivious of the fact and the legal position that there was a law of prohibition which should be made effective and forceful throughout the territory of the State with regard to intoxicating liquors and drugs. Merely by issuing a notification under that particular Act, issuance of notification under the 1938 Prohibition Act would have had the sanction and approval of the law. If the interest of public expediency and public morality, health and hygiene impelled the Government to take a policy decision to bring about prohibition at once; I; for Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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one, fail to see rationale in not choosing to issue the notification under the Bihar Prohibition Act, 1938 which is still there on the statute Book and to resort to an ambiguous provision, if at all the provision of Section 19 (4) of the 1915 Act can be said to be ambiguous after the Special Bench decision in Kanhai Sahu's case (supra).........

87.01. Now, let us once again, see the

provisions of Section 19 (4) of the Act. As earlier noted, what are

the circumstances whereunder the State would use the powers

under Section 19 (4) is not at all stated. The Act, as a whole, also

does not indicate the same. There is no legislative policy

discernible as to when would the executive exercise and to what

extent, it would exercise the power and subject to what conditions.

There are absolutely no legislative guidelines. I may note what

was said by the Special Bench of Five Hon'ble Judges of this Court,

in the case of Kanhai Sahu Vs. Emperor, (AIR 1941 Patna 53),

while dealing with the earlier provisions of Section 19 (4) of the

Act, which even then provided certain restrictions that could be

imposed. The Special Bench, in paragraph 16 of the reports,

clearly noted thus:

"16. If the present contention of the Crown be correct, then, the Provincial Government could, by a notification under Section 19 (4) of the Act, render practically all the sections of the Act wholly unnecessary and could defeat the main object of the Act, namely, the collection of excise duties. The Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Act undoubtedly contains provisions for the regulation and governance of the trade in intoxicant s as well for the imposition and collection of duties upon such intoxicants................"

(Emphasis is supplied)

87.02. Here, a reference may be made to

the judgment of the Supreme Court in the case of Vasu Dev

Singh and others Vs. Union of India and others, reported in

(2006) 12 Supreme Court Cases 753, wherein the entire law,

with regard to delegated legislation vis-à-vis conditional legislation,

has been discussed following Hamdard Dawakhana case (supra)

and Cipla (supra). In paragraphs 25 and 26 of the reports, this is

what their Lordships have held :

25. In B.K. Industries v. Union of India this Court clearly held that a delegatee cannot act contrary to the basic feature of the Act stating:

"The words 'so far as may be' occurring in Section 3 (4) of the Cess Act cannot be stretched to that extent. Above all it is extremely doubtful whether the power of exemption conferred by Rule 8 can be carried to the extent of nullifying the very Act itself. It would be difficult to agree that by virtue of the power of exemption, the very levy created by Section 3 (1) can be dispensed with. Doing so would amount to nullifying the Cess Act itself. Nothing remains thereafter to be done under the Cess Act. Even the language of Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Rule 8 does not warrant such extensive power. Rule 8 contemplates merely exempting of certain exciseable goods from the whole or any part of the duty leviable on such goods. The principle of the decision of this Court in Kesavananda Bharati v. State of Kerala applies here perfectly. It was held therein that the power of amendment conferred by Article 368 cannot extend to scrapping of the Constitution or to altering the basic structure of the Constitution. Applying the principle of the decision, it must be held that the power of exemption cannot be utilized for, nor can it extend to, the scrapping of the very Act itself. To repeat, the power of exemption cannot be utilized to dispense with the very levy created under Section 3 of the Cess Act or for that matter under Section 3 of the Central Excise Act.

26. The law, which, therefore, has been laid down is that if by a notification, the Act itself stands effaced; the notification may be struck down. But that may not be the only factor.

(Emphasis is added)

87.03. I may also refer to certain

judgments, where Courts have held that a legislation has an object

and if it is sought to be extended beyond the object, the legislation

would be open to challenge. The first decision, I would refer to is

the case of M.C.V.S. Arunachala Nadar and others Vs. State Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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of Madras and others, (AIR 1959 Supreme Court 300),

wherein in paragraph 5 of the reports, this is what their Lordships

have noted, the relevant part whereof is quoted hereunder:

"5. ........In order to be reasonable, a restriction must have a rational relation to the object, which the legislature seeks to achieve and must not go in excess of that object......."

87.04. As noted above, the Bihar Excise Act,

2015, was enacted for the purposes of regulating trade and

business in liquor with the object of raising excise revenue for the

State and that being the object, Section 19 (4) could not be used

to stultify the whole Act, imposing prohibition, for, as regards

imposing prohibition, there already existed the Bihar Prohibition

Act, 1938.

87.05. Here, I may also refer to the

judgment of the Supreme Court in the case of Smt. Shrisht

Dhawan Vs. M/s Shaw Brothers, (AIR 1992 Supreme Court

1555), and what was held in paragraph 20 thereof of the reports,

the relevant part whereof is quoted hereunder:

"20. ....... 'If a statue has been passed for some one particular purpose, a Court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope' [Craies on Statute Law, 7th Edition, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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p.79]. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power......"

(Emphasis is Added)

87.06. Again, Section 19 (4) of the Bihar

Excise Act, 1915, is for regulating trade for the purposes of

collection of excise duty and not for prohibition, for, for prohibition,

there is the Bihar Prohibition Act, 1938. Thus, Section 19 (4) of the

Bihar Excise Act, 1915, cannot be used for the purpose for which

the Act was not made leaving aside the Bihar Prohibition Act 1938,

which was for such a purpose.

87.07. Thus, in exercise of delegated powers

under Section 19 (4) of the Bihar Excise Act, 1915, whole Act could

not be stultified by a notification issued thereunder, the notification

clearly being in excess and beyond the object of the Bihar Excise

Act, 1915. Section 19 (4) of the Bihar Excise Act, 1915, could only

be used for furtherance of the object of the said Act and not to

abrogate the Act itself. In other words, the power, conferred on

the executive under Section 19 (4), cannot be used by the

executive to be a self destruct switch to kill the legislation itself.

Reference may be made to the judgment of the case of Vasu Dev

Singh (supra) and paragraphs 25 and 26 thereof, as quoted

earlier, that a delegate cannot act contrary to the basic features of

the Act.

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87.08. Accordingly, it must be held that the

impugned notification, being beyond the object of the Act, could

not have been issued under Section 19(4) of the Act and would,

thus, be invalid.

5. Regarding what are the rights, constitutional, of a citizen in respect of liquor

88.00. First, I would like to meet the

argument of the State that in view of Article 47 of the Constitution

containing directive principles of the State policy for governance,

obliging State to implement prohibition, citizens can claim no right

even under Part-III of the Constitution. In this connection, I may,

first, refer to Article 37 of the Constitution, which is quoted

hereunder:

"37. Application of the principles contained in this Part.- The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws."

88.01. Then, I may refer to Article 47 of the

Constitution. For ready reference, Article 47 of the Constitution is

being quoted hereunder:

"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."

88.02. I may, now, point out that a plain

reading of Article 47 of the Constitution would show that it does

not mandate, in positive terms, making it obligatory upon the State

to impose prohibition. The expression "State shall endeavour"

clearly leaves it to the State to decide whether to impose

prohibition or not if so, when. If what was argued by the State,

that it was a constitutional mandate to impose prohibition, is

correct, then, by now, almost after 65 years of the Constitution,

the entire country should have imposed prohibition, which has

never happened. Can it be said that all the States are in violation

of the constitutional mandate? The answer is obviously no. The

second argument, canvassed by the State, was that once State

decides to act pursuant to Article 47 of the Constitution, then, no

citizen can claim any right, much less right under Part-III of the

Constitution. If I have correctly understood the argument of the

State, the submission would be that the directive principles, if

sought to be implemented, would override the fundamental rights.

The argument is noted only to be rejected, as it was rejected by

the Constitution Bench in the case of Mohd. Hanif Quareshi and Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Court 731), and, in particular, paragraph 12 thereof, which run as

under:

"12. ........ These directive principles, it is true, are not enforceable by any court of law but nevertheless they are fundamental in the governance of the country and it is the duty of the State to give effect to them. These laws having thus been made in discharge of that fundamental obligation imposed on the State, the fundamental rights conferred on the citizens and others by Chap. III of the Constitution must be regarded as subordinate to these laws. The directive principles, says learned counsel, are equally, if not more, fundamental and must prevail. We are unable to accept this argument as sound. Article 13 (2) expressly says that the State shall not make any law which takes away or abridges the rights conferred by Chap. III of our Constitution which enshrines the fundamental rights. The directive principles cannot over-ride this categorical restriction imposed on the legislative power of the State. A harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights, for otherwise protecting provisions of Chap. III will be "a mere rope of sand". As this Court Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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has said in the State of Madras v. Smt. Champakam Dorairajan, 1951 S C R 525 at p. 531 : (AIR 1951 S C 226 at p. 228) (A) : "The directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights."

(Emphasis is supplied)

88.03. I may again refer to another

Constitution Bench judgment in the case of Minerva Mills Ltd.

Vs. Union of India, reported in (1980) 3 Supreme Court Cases

625, and what is said in paragraphs 57 and 63 thereof, the

relevant part whereof is quoted hereunder:

"57. .............. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and, combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.

63. The learned Attorney General argues that the State is under an obligation to take steps for promoting the welfare of the people by bringing about a social order in which social, economic and political justice shall inform all the institutions of the national life. He says that the deprivation of some of the fundamental rights for the purpose of Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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achieving this goal cannot possibly amount to a destruction of the basic structure of the Constitution. We are unable to accept this contention. The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal- oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and

19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when government's purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that Article is conferred, not only on laws passed by the Parliament but on laws passed by the State legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment."

(Emphasis is added)

88.04. I may, now, proceed to note what

was submitted on behalf of petitioners in respect of individual

citizens' rights in respect of liquor. It is submitted that all the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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decisions of the Supreme Court holding that there was no absolute

right in terms of Article 19 (1)(g) of the Constitution were decisions

dealing with trade or business and not an individual citizen's

individual right as distinct from trade and business. Even there,

the concept of reasonable restriction, creation of monopoly vis-à-

vis Article 19 (6) of the Constitution itself predicated the right

under Article 19 (1)(g) of the Constitution, in absence whereof, the

question of applicability or invocation of Article 19 (6) would not

arise. Judgments would show that where there is no total

prohibition imposed, then, Article 14 would have its application.

Similarly, with expanding interpretation of the right to privacy, as

contained in Article 21 of the Constitution, a citizen has a right to

choose how he lives, so long as he is not a nuisance to the society.

State cannot dictate what he will eat and what he will drink. We

have to view this concept in changing times, where international

barriers are vanishing. Any restriction by a State, on the right to

choose what to eat and what to drink, apart from being invasion of

right of privacy under Article 21, would prejudicially affect free

movement and free residence, in any part of territory of India, for

the citizens. Keeping in view these factors, a citizen cannot be

prohibited from his choice, within the confines of his house, subject

to orderly behaviour, of enjoying his drink, which he can procure

from any other part of the country, where prohibition is not in

force.

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88.05. To me, it is unnecessary to trace the

various judgments of the Supreme Court through the period of

time dealing with the aspect of trade and business in liquor.

Suffice to say that the Constitution Bench, in the case of Krishan

Kumar Narula and another Vs. State of Jammu and Kashmir

and others, (AIR 1967 Supreme Court 1368), clearly held that

the right to do business in liquor was a fundamental right; but the

restrictions would be reasonable even to the extent of prohibition. Without multiplying decisions, I may straightaway come to another

Constitution Bench judgment in the case of Khoday Distilleries

Ltd. Vs. State of Karnataka reported in (1995) 1 Supreme

Court Cases 574, wherein their Lordships have reviewed the case

law on the subject and this is what their Lordships said in

paragraph 56 of the reports, which is quoted hereunder:

"56. The contention further that till prohibition is introduced, a citizen has a fundamental right to carry on trade or business in potable liquor has also no merit. All that the citizen can claim in such a situation is an equal right to carry on trade or business in potable liquor as against the other citizens. He cannot claim equal right to carry on the business against the State when the State reserves to itself the exclusive right to carry on such trade or business. When the State neither prohibits nor monopolises the said business, the citizens cannot be discriminated against while granting licences to carry on such Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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business. But the said equal right cannot be elevated to the status of a fundamental right."

(Emphasis is supplied)

88.06. Their Lordships have summarized the

principles of law in paragraph 60, which, to me, briefly appear to

be as follows:

(i) If the State decides to impose total prohibition in

terms of Article 47, then, no citizen can make a grievance, for, it

would be a reasonable restriction;

(ii) If it does not impose total prohibition, instead

create State monopoly under Article 19 (6), the trade and business

being res extra commercium, no citizen can complain;

(iii) But, if it does not do either of the above, then

subject to reasonable restrictions, the trade and business in liquor

cannot be denied, in view of Article 14 of the Constitution.

88.07. Lastly, I may refer to the recent

judgment of the Supreme Court in the case of The Kerala Bar

Hotels Association and another Vs. State of Kerala and

others, (AIR 2016 Supreme Court 163), which was, again

dealing with the concept of trade and business of liquor and this

what their Lordships have held in paragraph 24 of the reports,

which is quoted hereunder:

"24. We disagree with the submissions of the Respondents that there is no right to trade in liquor because it is res extra Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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commercium. The interpretation of Khoday (1995 AIR SCW 313) put forward by Mr. Sundaram is, in our opinion, more acceptable. A right under Article 19 (1) (g) to trade in liquor does exist provided the State permits any person to undertake this business. It is further qualified by Article 19 (6) and Article 47. The question, then, is whether the restrictions imposed on the Appellants are reasonable."

(Emphasis is added)

88.08. But, the question that arises for the

present is, as distinct from trade and business, what is the right of

an individual citizen and whether right to choose his eating and

drinking habit would be covered in the right to privacy under Article

21 of the Constitution. For ready reference, Article 21 of the

Constitution of India is being quoted hereunder:

"21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law."

88.09. At the very outset, I may note that

the concept of life and liberty cannot be defined with any precision.

It has to be decided on case to case basis and the concept is an

expanding concept. Life is something more than servile or animal

existence. It would include right to live with human dignity. It

would include all those aspects of life, which go to make a man's Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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life meaningful, complete and worth living. It embraces not only

physical existence, but the quality of life itself. Personal liberty

under Article 21 would also include all the varieties of rights, which

go to make a man's personal liberties other than those, which are

already included in the several clauses of Article 19. The

expression "personal liberty" is of widest amplitude. It would,

thus, include the right of locomotion except in so far as it is

included in Article 19 (1) (d) of the Constitution. It would include

right to socialize with liberties of one's family and friends. It would

also include right to privacy as held in the case of Gobind Vs.

State of M.P., reported in (1975) 2 Supreme Court Cases 148. Article 21 includes right to privacy, being integral part of personal

liberty, and, if that be so, then, this is what their Lordships said in

paragraph 56 in the case of District Registrar and Collector Vs.

Canara Bank, reported in (2005) 1 Supreme Court Cases 496,

for ready reference, paragraph 56 is being quoted hereinbelow:

"56. In Maneka Gandhi v. Union of India a seven-Judge Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression "personal liberty" in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19 (emphasis supplied). Any law interfering with personal liberty of a person must satisfy a triple Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21."

88.10. Now, I come to right of privacy. The

first case was Kharak Singh Vs. State of U.P. and others, (AIR

1963 Supreme Court 1295), being the Constitution Bench

judgment of six Hon'ble Judges, it dealt with "surveillance". The

Supreme Court held that while Article 19 (1) deals with particular

species or attributes of freedom, the concept of life and liberty

under Article 21 takes in and comprises the residue. But, in the

minority view, Hon'ble K. Subaa Rao, J., held that though right to

privacy is not expressly declared as a fundamental right, the said

right is an essential ingredient of personal liberty. I may, then,

come straight to the judgment of the Supreme Court in the Case of

Gobind' case (supra) and, in particular, in paragraph 22 of the

reports, the Court refuses to go into the question, whether

enforcement of morality is a State function. This is what their Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Lordships then said in paragraphs-23, 24 and 28 of the reports,

which is being quoted hereunder:

"23. Individual autonomy, perhaps the central concern of any system of limited Government, is protected in part under our Constitution by explicit constitutional guarantees. In the application of the Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. Of course, privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values.

24. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.

28. The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute."

88.11. I have already referred to the case of

District Registrar and Collector (supra) and this is what their

Lordships held in paragraphs-39 and 40 thereof, which I quote

hereunder:

"39. We have referred in detail to the reasons given by Mathew, J. in Gobind to show that, the right to privacy has been implied in Articles 19(1)(a) and (d) and Article 21; that, the right is not absolute and that any State intrusion can be a reasonable restriction only if it has reasonable basis or reasonable materials to support it.

40. A two-Judge Bench in R. Rajagopal v. State of T.N. held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21. "It is the right to be let alone."

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Every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed. The right to privacy has since been widely accepted as implied in our Constitution, in other cases, namely, People's Union for Civil Liberties v. Union of India, 'X' v. Hospital 'Z', People's Union for Civil Liberties v. Union of India and Sharda v. Dharmpal."

88.12. I would, then, refer to the judgment

in the case of Ramlila Maidan Incident, In re, reported in

(2012) 5 Supreme Court Cases 1, wherein this what their

Lordships held in paragraph 318 of the reports:

"318. Thus, it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc."

88.13. Here, I may also note what was said

in the case of District Registrar and Collector, Hyderabad

(supra) in paragraph 18 of the reports, which is quoted hereunder:

"18. The right to privacy and the power of the State to "search and seize" have been the subject of debate in almost every democratic country where fundamental freedoms are guaranteed. History takes us back to Semayne's case decided in 1603 where it was laid down that "Every man's house is his castle".

One of the most forceful expressions of the above Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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maxim was that of William Pitt in the British Parliament in 1763. He said: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter, the rain may enter - but the King of England cannot enter - all his force dare not cross the threshold of the ruined tenement."

88.14. Then, I may refer to the case of

Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat,

reported in (2008) 5 Supreme Court Cases 33, and this is what

their Lordships held in paragraph 27 of the reports, which is quoted

hereunder:

"27. Had the impugned resolutions ordered closure of municipal slaughterhouses for a considerable period of time we may have held the impugned resolutions to be invalid being an excessive restriction on the rights of the butchers of Ahmedabad who practise their profession of meat selling. After all, butchers are practising a trade and it is their fundamental right under Article 19(1)(g) of the Constitution which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor of the butchery shop alone. There may be also several workmen therein who may become unemployed if the slaughterhouses are closed for a considerable period of time, because one of the conditions of the licence given to the shop-owners is to supply meat regularly in the city of Ahmedabad and this Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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supply comes from the municipal slaughterhouses of Ahmedabad. Also, a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. What one eats is one's personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court. In R. Rajagopal v. State of T.N. (vide SCC para 26 : AIR para 28) this Court held that the right to privacy is implicit in the right to life and liberty guaranteed by Article 21. It is a "right to be let alone"."

(Emphasis is supplied)

88.15. Thus seen, in my view, the right to

decide as to what to eat and drink within the confines of once

house, by an individual citizen, would come within the matter of

right of privacy, within Article 21 of the Constitution. It is not the

case of the State nor any material placed on record that drinking

alcohol per se as a responsible citizen is bad or injurious to health.

It is abuse thereof that is injurious. On the plea of mere possibility

of abuse by some persons, the right of others cannot be abrogated.

In my view, if the State starts dictating a citizen what to drink or

what not to drink, though the same is not per se injurious to

health, it would be a direct intrusion on personal liberty affecting

meaningful life. It would be violation of personal liberty

guaranteed by the Constitution.

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88.16. At this stage, I may note that the

State does not contest that liquor is an item of food recognized

under the Food Safety Act as well as the Prevention of Food

Adulteration Act. Consumption of alcohol in a disciplined and

responsible manner is not per se unconstitutional, especially, if we

look to the global context, opening of economy and lowering of

international frontiers as also the fact that in majority of the States

of this country including those where there is extensive controls

(partial prohibition), consumption of alcohol by an individual in

their house is not banned.

88.17. I may notice one argument by State.

It submits no one has a right to eat poison. But, as the courts have

held [Hinsa Virodhak Sangh (supra)], what one eats is his

personal affair and a right under Article 21; but that surely does

not include right to eat poison. Liquor is not poison per se, it

cannot be disputed. If what one eat is his right surely, what one

drinks has to be treated similarly. Thus, in my opinion, right to

drink alcohol, like a responsible citizen, is a part of right to privacy

included under Article 21 of the Constitution. But, as noted earlier,

this may not be necessary to be finally held so, because the writ

petition succeeds on other issues.

6. Regarding reasonableness of restriction

89.00. As noted in the judgments of the

Constitution Bench in K.K. Narula (supra), Khodey's case

(supra) and also by the Supreme Court in The Kerala Bar Hotels Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

-110- Association's case (supra), wherein it has been held that it

cannot be said that Article 19 can never be available in respect of

liquor trade. I may note that the Constitution does not differentiate

or distinguishes between liquor trade or trade or business in any

other commodity. It is Judge-made law that distinguishes the

rights in respect thereof. The present scenario in this State is that

manufacturing of IMFL is permitted in Bihar. Manufacturing of beer

is also permitted in Bihar, though in respect of both sale in Bihar is

prohibited. Tari (toddy) is totally unregulated except the places,

where or in the vicinity whereof, it cannot be sold. It is not denied

by the State that alcohol content of tari is equal if not more than

beer. If these things are kept in mind, then can it be said that the

State is seeking to impose total prohibition or creating total State

monopoly. It certainly cannot be said so. Even if we consider

Article 47 of the Constitution, it does not make it obligatory to

impose prohibition. The use of expression "endeavour" therein

shows that it has to come in a phased manner and not over night

to make something, which was legal for centuries, illegal suddenly

without warning of time to readjust. In view of the facts aforesaid,

rights, inter alia, under Articles 14, 19 and 21 would come into play

and, thus, we would have to see the reasonableness of restriction

both in respect of the trade and in respect of the individuals.

88.01. In this connection, first, I may note

that so far as the case of distilleries and breweries are concerned,

who are manufacturing IMFL and beer respectively, the stand of Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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the State is that their manufacturing activity in the State has not

been stopped, as State has blocked only local market, market in

Bihar, that has been taken away. They have no right to market. I

am surprised. An industry is set up as business venture and not to

do charity. Industry is established looking to local market. Merely

because market is available elsewhere, the local market, which is a

substantial market, having been taken away, the financial viability

itself is adversely affected. Industry has to pay wages to the

workers. It has to make profits and to repay loans. It has other

statutory obligations to discharge; but, if substantial market is

taken away for its products, can it be said that practically, it make

little or no difference. If they have now to close down, who pays

compensation to workers and where do the workers go. The

restriction to sell its products for which it had primarily been set

up, can the restriction be held to be valid?

88.02. At this juncture, I may notice that so

far as the brewery making beer is concerned, it is pursuant to the

Industrial Policy of the Government of Bihar, as notified and

published in the year 2011, giving special incentives to beer

manufacturing unit for setting up such an industry in the State,

that it was set up. There was open invitation to beer

manufacturers to come to Bihar and set up industry. This is not

disputed by the State. Having set up with colossal expenses, loans

or other liabilities having been created, now, to say that you

cannot sell your products in the market that you had chosen and Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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which was made available to youby the State, would such a

restriction be reasonable? The answer would be what was said by

the Supreme Court in the case of Rustom Cavasjee Cooper and

another Vs. Union of India, (AIR 1970 Supreme Court 564),

popularly known as the Bank Nationalization Case, in

paragraph 74, the relevant part whereof is reproduced

hereinbelow;

"74.Where restrictions imposed upon the carrying on of a business are so stringent that the business cannot in practice be carried on, the Court will regard the imposition of restrictions as unreasonable. ...."

(Emphasis is added)

88.03. I may note another aspect. In this

connection, so far as the beer bars and restaurants are concerned,

as noticed earlier, the new Excise Policy did not restrict the

licensing thereof in urban areas, where they are predominately

situated. Keeping in view the new Excise Policy that their licences

would be renewed, they made substantial investments. They got

their licences, in fact, renewed for the year 2016-17; but, within

days, the impugned notification is issued, on 05.04.2016,

effectively abrogating their licences. The Bihar Excise Act, 1915,

did provide for compensation, by virtue of Section 43 read with

Section 45 of the Act, if their licences would be revoked

prematurely but, to avoid payment of compensation, what to talk Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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about refund of licence fee, the stand of the State is that the

licence having not been cancelled or withdrawn prematurely, no

one has a right to claim any compensation much less as provided

by Section 43 read with Section 45 of the Act. For ready reference,

Sections 43 and 45 of the Act are quoted hereunder:

"43. Power to withdraw licences. -

(1) Whenever the authority who granted any licence under this Act considers that the licence should be withdrawn for any cause other than those specified in Section 42, it shall remit a sum equal, the amount of the fees payable in respect thereof for fifteen days, and may withdraw the licence either-

(a) on the expiration of fifteen days' notice in writing of its intention to do so, or

(b) forthwith, without notice.

(2) if any licence be withdrawn under clause (b) of sub-section (1) the said authority shall, in addition to remitting such sum as aforesaid, pay to the licensee such further sum (if any), by way of compensation, as the Excise Commissioner may direct.

(3) If any licence be withdrawn under clause (a) of sub-section (1), the Excise Commissioner may, in special circumstances, direct the payment of such compensation as he may consider fit in addition to the remission of the fee as aforesaid.

(4) Where a licence is withdrawn under sub-section (1), any fee paid in advance, or deposit made, by the licensee in respect Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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thereof shall be refunded to him after deducting the amount (if any) due to the State Government.

(5) For the purpose of calculating the amount due to the State Government mentioned in sub-section (4), the amount of fee payable on account of the licence for the period during which it was in force shall be taken to be the sum bearing the same proportion to the total fee for the whole period for which the licence was settled as the period during which the licence was actually in force bears to the full period for which the licence was settled.

45. Bar of right to renewal and to compensation.- No person to whom any licence has been granted under this Act shall have any claim to the renewal of such licence or, save as provided in Section 43, any claim to compensation on the determination thereof."

(Emphasis is supplied)

88.04. In my opinion, the aforesaid

provisions clearly predicate that where a licensee is stopped, not

by reason of licensees' default, but pursuant to any policy of the

State and, licences stands revoked prematurely in law, he is

entitled to two reliefs (i) the proportionate refund of the licence fee

and (ii) other compensation, which could only mean reasonable

compensation for investments made and liabilities incurred for

exploitation of licence. State, being State, within the meaning of

Article 12 of the Constitution, has to act fairly and reasonably in all Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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matters. It cannot say that a prohibition notification issued under

Section 19(4) of the Act would override the provisions of Sections

43 and 45 of the Act. If that be the stand of the State, then, the

action would clearly be confiscatory and, therefore, unreasonable

and ultra vires. It is too late in the day for the State to say that

what was legitimate till yesterday, we have today declared

illegitimate and illegal and for illegality, we do not have to

compensate. This is what makes the notification unreasonable and

void.

88.05. We may notice, now, the distilleries,

which had been in operation for over half a century, its local

market having been taken away, we have been informed that it

has decided to close it down. What is the effect of closure? Not

only the phenomenal excise duty, which it was paying is lost for

which no one can make a grievance, because the Government

considers it justifiable loss; but what about the hundreds of

workers and their families, who were solely dependent upon it for

their living. There has been no consideration of this aspect by the

State. The entire burden to pay the retrenchment compensation

and the like fall on the industry itself. How will it discharge its

liability towards financial institutions, no thought has been given to

that by the State. These are unreasonable restrictions and

unmindful exercise of power and non-application of mind.

88.06. Just to illustrate the

unreasonableness of this, consider a case of a person born and Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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brought to the Metropolis like Bombay or Delhi, educated there and

serving there. Consumption of liquor to him is a part of his life and

part of his relaxation, he is accustomed to it. If he has to move to

this State and has an option, he would not do so, because he

would have to give up his life style. That would infringe not only

Article 21 but also Article 19 (1) (d) and Article 19 (1) (e) of the

Constitution. He would be inhibited from coming to this State.

India is one country.

88.07. Here, I would also refer to three writ

petitions one by a Retired Lt. Colonel of Army, being C.W.J.C.

No.8188 of 2016, C.W.J.C. No.7880 of 2016 by Dr. Priya Ranjan

and C.W.J.C. No. 7804 of 2016, in the form of Public Interest

Litigation, by Dr. Anil Kumar Prasad Sinha. In the first case, he

has pleaded that all along, his long career in the defence forces, he

was used to taking liquor regularly. Even after retirement, his

liquor ration continues. Being domicile of this State, upon

retirement, he is living in Patna. He picks up his ration of liquor

from Danapur Cantonment within the district of Patna; but, now,

all of a sudden, he cannot bring it home nor can he drink at home

and his long habit has come to an end, considerably upsetting him.

He cannot even go to the Cantonment to have a drink for fear of

being hounded on way back to home outside the Cantonment. Let

it be noted that nothing in the Bihar Excise Act, 2015, applies to or

affects the provisions of Cantonment Act, 2010, under which

Danapur Cant has been established.

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88.08. Then, we have the case of Dr. Priya

Ranjan and Dr. Anil Kumar Prasad Sinha, who not only

consume alcohol responsibly, but consider it to be good and helpful

in certain medical conditions.

88.09. Thus, in my view, a citizen has a

right to enjoy his liquor within the confines of his house in an

orderly fashion and that right would be a part of right of privacy, a

fundamental right, under Article 21 of the Constitution and, any

deprivation thereof would have to withstand the test of Articles 14

and 19 of the Constitution as well.

88.10. Here, I would also like to notice that

the new Excise Policy, 2015, clearly acknowledged that the

problem with liquor was acute so far as the poor strata of the

citizens are concerned, especially, in rural areas, to whom country

liquor was cheaply and freely available. The unfortunate fact is

that it was the State that encouraged cheap and easy availability of

country liquor for the poor in the past years. This is acknowledged

in the NEP 2015 itself. The policy itself did not say nor were there

any facts to justify, that this was a noticeable problem in urban

areas (municipalities). The policy clearly envisaged that in urban

areas, the sale of liquor (foreign liquor/IMFL) would continue,

though monopolized through BSBCL. As noted elsewhere, after

amendment to the Bihar Excise Act, 1915, on 31.03.2016,

pursuant to the aforesaid notified New Excise Policy, 2015, on

31.03.2016, State banned manufacture and sale of country liquor, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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which was the cheap liquor available to the poor at their door

steps. Curious to note that toddy (Tari), which is available in

abundance and tapped freely without any licence or permit and

sold freely not only in the rural areas but urban areas and which

has alcohol content, undisputedly matching or above beer, has not

been prohibited. It is freely available even today. There is no

notification barring it. Then to say, that on one hand toddy can be

freely tapped and sold unchecked, but foreign liquor or IMFL

including beer cannot be sold or consumed does not stand to

reason, if the true object of the State was to implement Article 47

of the Constitution. Further, State has not prohibited manufacture

of IMFL/beer. Apart from others, Article 14 would clearly be

violated here. I may not be misunderstood, at this juncture, to be

referring to trade and commerce in Toddy merely for comparing it

with other liquor trade; but a reference thereto was necessary to

show that even after the Notification under Section 19(4), dated

05.04.2016, tapping, possession, sale and consumption of alcohol

in the shape of Tari (Toddy) is not banned. Would not that be a

case of violation of Article 14. The Policy was to protect the poor;

but they are allowed unrestricted access to it through Tari but

IMFL/beer/foreign liquor is banned.

88.11. IMFL/foreign liquor/beer is available

on all four borders of Bihar. Its sale and consumption is legitimate

there. Its manufacture in Bihar is not banned. Then banning its

consumption by individuals in the confines of their houses, in an Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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orderly fashion, will it not be unreasonable. Will it not be an

unreasonable restriction on the right to privacy enjoyed by an

individual in contradiction to trade or business.

88.12. In my view, it would clearly be an

unreasonable restriction and violative of Article 14, 19 and 21 of

the constitution. The notification, dated 05.04.2016, would, thus,

be bad if it were enforced against individuals.

88.13. Another aspect of unreasonableness

of the effect of the notification is its application to various other

aspects. A person traveling by car or by train and traversing the

territory of Bihar, he is caught in a predicament that he is going

from a State, where there is no prohibition, and going to State,

where there is no prohibition. He may be an army or defence

personnel carrying his liquor ration or a ordinary citizen carrying

his drink to his destination. Neither of them consumed the same in

this State; still they are to be persecuted and prosecuted why?

Their only sin is that they chose or perforce traversed the territory

of Bihar. Similar would be the case of liquor being transported from

one State to another, but crossing through Bihar. As noted

elsewhere in this judgment, the Bihar Prohibition Act, 1938, does

take note of these situations. The Legislature, when amending

Section 19 (4) of the Bihar Excise Act, 1915, must be presumed to

be aware of the said Act and surely did not expect and/or authorize

the executive to ignore or override the Prohibition Act. Instances

have been brought to the notice of the Court that people traveling Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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by train passing through Bihar, including army personnel, even

though not found consuming liquor but merely in possession

thereof, have been arrested and are being prosecuted. For these

transactions, it has to be held that the notification, dated 5th April,

2016, would have no application for it deals only with wholesale,

retail trade and consumption and no other aspect. Thus, the

notification, as impugned, would be ultra vires the Constitution

being unreasonable restriction.

7. Regarding Punishment

89.00. Now, I may come to one of the last

challenges that is in respect of punishment for offences under the

Act, which have been introduced by the amendment to the Bihar

Excise Act, 1915, made on 31.03.2016. Punishments are under

three categories:

(i) Personal punishment and fine;

(ii) Confiscation of premises; and

(iii) Collective fine.

89.01. The submission is that though the

legislature has the right to provide for punishments for

contravention of provisions of Acts made by the legislature, the

procedure and the punishment has to be fair and not draconian,

for, that would be violative of Article 21 of the Constitution. The

punishment cannot be disproportionate to the offence. By the

present amendments to the Sections, to which I will refer to in

detail, it is submitted that virtually, the punishment for any offence Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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has been prescribed as not less than 10 years, which may extend

to imprisonment for life and with fine, which shall not be less than

Rs. one lakh, but may extend to Rs. ten lakhs. It is submitted that

firstly, it totally takes away the discretion of the Court to give a

lesser sentence depending upon the mitigating circumstances.

Then, it is highly disproportionate and can be termed as draconian.

The simple illustration for this would be that there being no

provision for licence, permit or pass, now, under the Act, any

person, in possession of liquor, even in course of transit through

the State, would be liable to 10 years of imprisonment with fine of

Rs. one lakh mandatorily. It is then submitted that if liquor is

found in a room or in a house, which may or may not be occupied

by large number of people, the whole premises would be sealed

and confiscated. The third is that Section 68I dealing with collective

fine is too vague, uncertain and has no procedural safeguards.

89.02. On behalf of the State, it is submitted

that the legislature, having the plenary power to legislate and

provide for punishment, are the best Judge and the Court cannot

and should not interfere in the legislative wisdom.

89.03. Now, I proceed to consider the

arguments. The first thing, I would like to point out is that

punishments by itself cannot be seen but have to be seen along

with the procedure, for, the procedure may create certain liability,

which, coupled with the punishment, would made things worse. To

be precise, first, I may refer to Section 48 of the Act, as amended, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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which is quoted hereunder:

48. Presumption as to commission of offence in certain cases.- (1) In prosecution under any relevant provision of this Act, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant , premises, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.

(2) Where any animal, vessel, cart or other vehicle and any premises is used in the commission of an offence under this Act, is liable to confiscation and/or liable to be sealed, the owner or occupier thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that the offence was committed without his knowledge or that he had exercised due care in the prevention of the commission of such an offence.

(Emphasis is added)

89.04. This provision reverses the criminal

jurisprudence of prosecution having the liability to prove the guilt

beyond reasonable doubt. Here, a person is presumed to be guilty

unless he proves to the contrary. The presumption of innocence is

totally taken away and the burden of proof thereof is put on the

accused. Lest, I may be misunderstood, I am not saying that this Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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provision of Section 48 of the Act is ultra vires in any manner.

Such provisions are found in many laws; but why I have referred it

is that a person, charged with any offence under the Act, starts

with a presumption of guilt against him till he proves himself

innocent. For any reason, if he fails to prove his innocence, he

would straightway be liable to punishment, which would be of

minimum 10 years imprisonment with astronomical fine and would

lose his entire property by virtue of confiscation and the Courts are

rendered helpless in the matter even though there may be

mitigating circumstances.

"47. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. - Whoever, in contravention of provision of this Act or of any rule or order made or notification issued under this Act or in contravention of any condition of any license or permit or pass, granted under this Act or without a valid license, permit or pass issued under this Act -

(a) manufactures, possesses, sells, distributes, bottles, imports, exports, transports or removes any intoxicant ; or

(b) Cultivates any hemp plant; or

(c) Constructs or establishes or works any manufactory, distillery, brewery or warehouse; or

(d) bottles any liquor for the purpose of sale; or

(e) uses, keeps or has in his possession any material, still, utensil, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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implement or apparatus, or premises, whatsoever, for the purpose of manufacturing any intoxicant ; or

(f) possesses any material or film either with or without the State Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor; or

(g) sells any intoxicant , collects, possesses or buys any intoxicant beyond the prescribed quantity; or

(h) removes any intoxicant from any distillery, brewery, warehouse, other place of storage licensed, established, authorized or continued under this Act;

Shall be punishable with imprisonment for a term not less than ten years but which may extend to

imprisonment for life and with fine which shall not be less than one lakh rupees but which may extend to ten lakh rupees."

"53. Penalty for consumption of liquor in public place - Whoever, in contravention of this Act or the rules, notification or order made thereunder -

(a) consumes liquor in a public place or an unauthorized place; or

(b) consumes liquor in a public place or an unauthorized place or an authorized place and creates nuisance; or

(c) permits drunkenness or allows assembly of unsocial elements in his premises Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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or on the premises of liquor establishment; shall be punishable.

(1) In case of an offence falling under clause (a), with a term which shall not be less than five years but which may extend to seven years and with fine, shall not be less than one lakh rupees which may extend to ten lakh rupees.

(2) In case of an offence falling under clause (b) with a term which shall not be less than seven years but which may extend to ten years and with fine, which shall not be less than one lakh rupees which may extend to ten lakh rupees.

(3) In case of an offence falling under clause (c), with a term which shall not be less than ten years but which may extend to imprisonment for life and with fine, which shall not be less than one lakh rupees which may extend to ten lakh rupees."

"54. Penalty for possession of intoxicant in respect of which an offence has been committed - If any person, without lawful authority, has in his possession, any intoxicant , knowing or having reason to believe the same to have been unlawfully imported, transported, manufactured, or knowing or having reason to believe that the prescribed duty has not been paid thereon, he shall be punished with imprisonment for a term which may not be less than eight years but which may extend to ten years and shall Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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also be liable to fine which may extend to ten lakh rupees and in default of payment of fine, shall be punished with a further imprisonment for a term which may extend to one year."

68A. Certain things liable to confiscation - Whenever an offence has been committed, which is punishable under this Act, following things shall be liable to confiscation, namely -

..................

..................

..................

..................

(e) Any premises or part thereof that may have been used for committing any offence under this Act."

68 G. Premises liable to be sealed. - If it comes to the notice of any Excise Officer or any police officer not below the rank of a Sub Inspector that a particular premises or a part thereof is or has been used for committing any offence under this Act, he may immediately seal the premises and send a report to the Collector for the confiscation of the same.

Provided that if the said premises are temporary structures which cannot be effectively sealed, then the Excise Officer or the police officer, with the order of the Collector, may demolish such temporary structures."

68I. Collective Fine. - If the Collector is of the opinion that a particular Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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village or town or any locality within a village or town or any particular group/community living in that village or town have been repeatedly violating any of the provisions of this Act or are habitually prone to commit an offence under this Act or are obstructing the administration of this Act, then the Collector may impose a suitable collective fine on such group of people living in such area of the town or village and may recover such fine as if they were Public Demands under the Bihar & Orissa Public Demands Recovery Act, 1914, (Bihar and Orissa Act IV of 1914).

(Emphasis is supplied)

89.05. First, I would deal with Section 68I,

which deals with collective fine. A plain reading of the aforesaid

Sections would show that the punishment is entirely depended

upon subjective satisfaction of the Collector. What is the fine is left

totally to the discretion of the Collector. How and what would

constitute a group and how an area would be identified, in a town

or a village, is not known nor defined. No one has to be heard

before fine is imposed. There is no provision for appeal. We are

dealing with a provision of penalty. It is a piece of substantive law.

Substantive law without guidance and without procedural

safeguards can only be termed as draconian, it being completely

vague, uncertain and unlimited. Even though it may professed to

have a social objective to attend, the means to achieve the same Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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are clearly unconstitutional. The provision is, thus, clearly ultra

vires the Constitution being in violation of Articles 14 and 21 of the

Constitution.

89.06. Now, I may deal with other

provisions. Petitioners have shown and drawn attention of the

Court to penal provisions of the two other Acts, which, I think

would be relevant. The first is the Narcotic Drugs and Psychotropic

Substances Act, 1985. With reference to Sections 15, 17, 18 and

22 thereof, it is shown that while providing for punishment in

relation to poppy straw, opium, opium poppy and psychotropic

substances respectively, there is graded punishment in the sense

where contravention involves small quantity, the maximum

punishment is six months imprisonment or with fine, which may

extend to Rs. 10,000.00 or both. For contravention involving

quantities more than small quantity, but less then commercial

quantity, the punishment extends to 10 years with fine, which may

extend to Rs. one lakh and when it involves commercial quantity

the punishment is not less than 10 years imprisonment with fine

not less than Rs. one lakh, but may extend to Rs. 2 lakhs.

Reference may, then, be made to Section 27 of the Act, which is

punishment in relation to consumption of Narcotic Drugs or

Psychotropic Substances, the punishment is maximum one year

with fine up to Rs.20,000.00.

89.07. The provisions would show that,

except for commercial quantity, there is ample discretion on the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Court. It is not that any quantity is found, the punishment of

imprisonment would be mandatory and, that too, like in the Bihar

Excise Act, minimum of 10 years.

89.08. I may, then, refer to the provisions of

the Bihar Prohibition Act, 1938; but curiously enough, has not been

used by the legislature or the executive. Section 8 of the Act is for

manufacturers, who contravenes the notification of prohibition, the

punishment is only one year or fine of Rs.2000.00. Under Section

9 for importers, traders, consumers, possessors, the punishment is

up to six months or with fine that may extend to Rs.1000.00 or

both.

89.09. Section 25 of the Bihar Prohibition

Act, 1938, provides for confiscation; but not in respect of premises,

I may notice Section 29 of the said Act protects bona fide travellers

and persons transiting the State. This is relevant inasmuch as

protection has itself been given under the Bihar Prohibition Act,

1938, to travellers including those who are staying while transiting

the State or traveling the Bihar; whereas Excise Act does not

protect such persons and a person, while transiting the State, in a

train, is and have been apprehended and are being prosecuted.

89.10. On behalf of the petitioners, apart

from the judgment, which I would refer to, the 47th report of the

Law Commission of India, on the Trial and Punishment of Social

and Economic Offences, has been referred. The relevant parts are

summarized as hereunder.

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"In its detailed report vide Clauses 4.12, 4.14 & 4.25 has clearly recommended against providing for absolute liability in form of a minimum sentence.

The law Commission in Clauses 7.42, 7.43, 7.44, 7.45, 7.46 & 7.47 of its Report has laid down the prime considerations which are relevant in proper sentencing and has held that sentences which are merely mathematically identical for violation of the same statute are improper, unfair and undesirable. Mathematically identical sentences indeed may in substance themselves be disparate.

In Clause 7.52, the Law Commission has opined that if the punishable act has caused no harmful effects, the punishment may be mild; if the act has caused some harm but the offender can repair the damage done to society, probation would be appropriate; if the harm is serious, imprisonment would of course be required."

89.11. Now, I may come to Section 47 of the

Bihar Excise Act, 1915. A reference to the provision would show

that for the acts mentioned therein, the punishment is straightway

10 years of imprisonment extending to life. It takes away the

power of the Court or the discretion of the Court in the matter and

further it has to be accompanied with a fine of Rs. one lakh

minimum. Thus, a humble rickshaw-puller found with only a bottle Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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or a pouch of country liquor would, now, be exposed to minimum

of 10 years of imprisonment with a fine of Rs. one lakh, an

amount, which he had ever never possessed or seen. This has to

be seen in juxtaposition of presumption clause as contained in

Section 48 of the Act.

89.12. Now, I may refer to Section 53 of the

Act, which has varied punishment from not less then five years to

not less than ten years. Again, the discretion of the Court is taken

away even where there is mitigating circumstances; however small

the quantity may be, minimum five years imprisonment with fine of

Rs. one lakh is there, which may, in different situation, as

contemplated therein, go up to minimum ten years with a

minimum fine of Rs. one lakh to Rs. ten lakhs. In Section 54 of the

Act, the punishment goes up to minimum eight years extending to

ten years with fine that may extend to Rs. ten lakhs.

89.13. Now, I may refer to Section 68 A(e),

in so far as relevant along with Section 68G of the Act. What it

predicates is that where any premises or part thereof is or has

been used for committing any offence under this Act, the same can

be sealed but liable to be confiscated also. The arbitrariness of the

provision is apparent from the fact that even when the owner of

the premises may not at all be aware of what is being done in his

premises, premises being rented out, in view of presumption

clause, as contained in Section 48 of the Act, for an offence

committed by his tenant or anyone in his permissive possession, Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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over which he has no control, his premises would be confiscated.

There may not be a more draconian provision. A house may

consist of several rooms occupied by different members of the

family. A particular member violates the law, the family premises

is up for confiscation. I may further illustrate that if two

neighbours are on inimical terms, one could easily plant liquor in

the neighbours premises, the neighbour, being unaware; still, by

virtue of the presumption clause, not only he gets convicted but his

premises also get confiscated. These common day illustrations can

be multiplied to show the draconian effect of the law. The effect of

these provisions is virtually that we are converting the State into a

Police State. Citizens would always be living under a threat or, at

least, a threat perception of being easily implicated. That surely is

not conducive and should not be permitted.

89.14. Here, I can only quote what was said

by the Constitution Bench in the case of State of Punjab Vs.

Baldev Singh, reported in (1999) 6 Supreme Court Cases 172,

and what is held by their Lordships in paragraph 28 of the reports,

the relevant part whereof is quoted hereunder:

28. ............Indeed in every case, the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself..............

89.15. Now, I wish to notice the provisions Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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of other Acts only for the purpose of showing that even where the

drugs and psychotropic substances are concerned, under NDPS

Act, which are per se harmful and injurious to self and community,

the legislature considered the aspect of the punishment and the

balance the same with the gravity of offence. Similarly, when it

comes to the Bihar Prohibition Act, 1938, which deals with liquor,

which per se taken in small quantities in a civilized manner is not

injurious, the punishments are balanced with the social needs, but

when we come to the amended provisions of the Bihar Excise Act,

2015, the provisions are clearly draconian and in excess of the

balance need to be maintained.

89.16. I may, now, refer to some of the

judgments, which have been referred to at the bar. The first

judgment, I would like to refer is in the case of Directorate of

Revenue Vs. Mohd. Nisar Holia, reported in (2008) 2 Supreme

Court Cases 370, and, in particular, paragraph 11 thereof, which

is quoted hereunder:

"11. Power to make search and seizure as also to arrest an accused is founded upon and subject to satisfaction of the officer as the term "reason to believe" has been used.

Such belief may be founded upon secret information that may be orally conveyed by the informant. Draconian provision which may lead to a harsh sentence having regard to the doctrine of "due process" as adumbrated under Article 21 of the Constitution of India requires Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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striking of balance between the need of law and enforcement thereof, on the one hand, and protection of citizen from oppression and injustice on the other."

89.17. I may, then, refer to well know

judgment in the case of Mithu Vs. State of Punjab, reported in

(1983) 2 Supreme Court Cases 277, and what is said in

paragraph 6 thereof, which is quoted hereunder:

"6. In Maneka Gandhi Vs. Union of India, it was held by a seven-Judge Bench that a statute which merely prescribes some kind of procedure for depriving a person of his life or personal liberty cannot ever meet the requirements of Article 21 : The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. Bhagwati, J. observed in that case that:

Principally, the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on that Article.

In Sunil Batra v. Delhi Administration, while dealing with the question as to whether a person awaiting death sentence can be kept in solitary

confinement, Krishna Iyer, J. said that though our Constitution did not have a "due process"

clause as in the American Constitution, the same consequence ensued after the decisions Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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in the Banks Nationalization case and Maneka Gandhi.

For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is

unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21 ....

Desai, J. observed in the same case that: [SCC para 228, pp. 574-75 : SCC (Cri) pp. 235-36] The word 'law' in the expression 'procedure established by law' in Article 21 has been interpreted to mean in Maneka Gandhi case that the law must be right, just and fair, and not arbitrary, fanciful or oppressive. Otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. If it is arbitrary it would be violative of Article 14 ......

In Bachan Singh which upheld the Constitutional validity of the death penalty, Sarkaria, J., speaking for the majority, said that if Article 21 is understood in accordance with the interpretation put upon it in Maneka Gandhi, it will read to say that : [SCC para 136, p. 730 : SCC (Cri) p. 626] No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.

These decisions have expanded Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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the scope of Article 21 in a significant way and it is now too late in the day to contend that it is for the legislature to prescribe the procedure and for the courts to follow it; that it is for the legislature to provide the punishment and for the courts to impose it.

Two instances, undoubtedly extreme, may be taken by way of illustration for the purpose of showing how the courts are not bound, and are indeed not free, to apply a fanciful procedure by a blind adherence to the letter of the law or to impose a savage sentence. A law providing that an accused shall not be allowed to lead evidence in self-defence will be hit by Articles 14 and 21. Similarly, if a law were to provide that the offence of theft will be punishable with the penalty of the cutting of hands, the law will be bad as violating Article 21. A savage sentence is anathema to the civilized jurisprudence of Article 21. These are, of course, extreme illustrations and we need have no fear that our legislatures will ever pass such laws. But these examples serve to illustrate that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable."

(Emphasis is added) Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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89.18. The third decision is in the case of

State of Punjab Vs. Dalbir Singh, reported in (2012) 3

Supreme Court Cases 346. This case deals with mandatory

death penalty under Section 27 (3) of the Arms Act, 1959. While

declaring the provision to be ultra vires, their Lordships have

discussed the law in great detail not only that the mandatory death

sentence cannot be upheld, but upon the question of due process

and applicability of Articles 14 and 21 in such situation.

89.19. Then, I may refer to the case of

Dadu alias Tulsidas Vs. State of Maharashtra, reported in

(2000) 8 Supreme Court Cases 437, wherein the challenge was

to Section 37A of the NDPS Act, which, inter alia, provided that no

sentence awarded under the Act (by trial court) can be suspended,

remitted or commuted (by the appellate court) pending appeal.

This Section was declared ultra vires Constitution as it took away

the discretionary powers of the appellate court in respect of

suspending the sentence, while admitting an appeal pending final

hearing.

89.20. Lastly, I would refer to the recent

judgment in the case of Vikram Singh Vs. Union of India,

reported in (2015) 9 Supreme Court Cases 502, and, in

particular, what is held by their Lordships in paragraph 40, which is

quoted hereunder:

"40. In a Parliamentary democracy like ours, laws are enacted by Parliament or the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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State Legislature within their respective legislative fields specified under the Constitution. The presumption attached to these laws is that they are meant to cater to the societal demands and meet the challenges of the time, for the legislature is presumed to be supremely wise and aware of such needs and challenges. The means for redressing a mischief are also in the realm of legislation and so long as those means are not violative of the constitutional provisions or the fundamental rights of the citizens, the courts will show deference towards them. That, however, is not to say that laws that are outrageously barbaric or penalties that are palpably inhuman or shockingly disproportionate to the gravity of the offence for which the same are prescribed cannot be interfered with."

89.21. Their Lordships then referred to the

judgment of Mithu's case (supra). Their Lordships review various

case laws. I may also quote what is held by their Lordships in

paragraphs 51, 52.1 and 52.5.

"51. In R. v. Ferguson the Canadian Supreme Court held that for the Court to interfere with the sentencing provision it was not enough to say that the sentence was excessive. What must be demonstrated is that the sentence is so outrageously disproportionate that the Canadians would find the punishment abhorrent or intolerable. The following observations succinctly sum up the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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test to be adopted:

"The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R.v. Smith. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be 'so excessive as to outrage standards of decency' and disproportionate to the extent that Canadians 'would find the punishment abhorrent or intolerable'."

52.1. Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed.

52.5. Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency."

89.22. Applying the aforesaid principles, to

me, the punishment as prescribed by the recent amendment to the

Act with effect from 01.04.2016, on all three counts, i.e., the

personal punishments, both physical and monetary, punishment of

confiscation of premises and punishment to the community, are

quite unreasonable and draconian and cannot be justified in a

civilized society. It may be justified in a Police State, which surely

we are not. I would, therefore, declare the provisions, as aforesaid,

to be ultra vires and violative of Articles 14 and 21 of the Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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Constitution.

8. Regarding possession

90.00. Now, I may deal with the aspect of

mere possession of liquor by an individual. It is submitted, on

behalf of the petitioners and rightly so, that possession of liquor

(IMFL/foreign liquor) by an individual is not banned either by the

Bihar Excise Act, 1915, or the notification, dated 05.04.2016. The

answer to it is evident. If we compare the two notifications issued

in quick succession, the first issued, on 31.03.2016, under Section

19 (4) of the Act in respect of "country liquor" which clearly

mentions "possession" apart from other activities. The notification,

dated 31.03.2016, in respect of country liquor is being quoted

hereunder:

"In exercise of the powers conferred under Section 19(4) of the Bihar Excise Act, 1915 (as amended by Bihar Excise (Amendment) Act 2016), the State Government hereby imposes absolute ban on the manufacture, bottling, distribution, sale, purchase, possession and consumption of Country liquor by any manufactory, Bottling Plant, licence holder or any person in the whole of the State of Bihar with effect from 01 April, 2016."

90.01. The second notification issued, on

05.04.2016, again under Section 19 (4) of the Act in respect of

"IMFL/foreign" liquor, where only wholesale, retail trade, not

manufacturing, bottling is prohibited. Though consumption is Patna High Court CWJC No.6675 of 2016 dt.30-09-2016

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prohibited, there is no mention of "possession" at all. The

notification, dated 05.04.2016, in respect of foreign liquor is being

quoted hereunder:

"In exercise of the powers conferred under Section 19 (4) of the Bihar Excise Act, 1915 (as amended by Bihar Excise (Amendment) Act, 2016), the State Government hereby imposes ban on wholesale or retail trade and consumption of foreign liquor by any license holder or any person in the whole of the State of Bihar with immediate effect."

90.02. A simple comparison of the two

notifications issued by the same authority, in a short interval of

time under the same section of the Act, would clearly bring about

the distinction in the scope and applicability of the two

notifications. Further, Section 19 (1) of the Act has not been

repealed. It permits possession of intoxicant (liquor) not in excess

of quantity so specified by the Board of Revenue. The quantity

permitted by the Board of Revenue and not disputed by State is

notified and not cancelled. Similarly, even under the newly

amended Section 47(g), possession up to prescribed quantity is not

penal. Thus, mere possession of IMFL/foreign liquor/beer is not

prohibited. To me, if it were to be so prohibited, it would give rise

to serious problems. All persons, having legitimate stocks even for

personal consumption, would on the next day ipso facto, become

criminals, in violation of law, the Beverages Corporation included.

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So also manufacturers, transporters etc. Advisedly this was not

intended.

90.03. To conclude, in my opinion, Section

19(4) of the Bihar Excise Act, 1915, as amended with effect from

01.04.2016 (passed by the State Legislatures on 31.03.2016) is

ultra vires the Constitution and unenforceable. The impugned

notification, dated 05.04.2016, issued by the State under Section

19(4) of the said amended Act is also ultra vires the Constitution

and, consequently, unenforceable and the penal provisions of

enhanced sentence and provision, with regard to confiscation of

property, as introduced by the amendments on 31.03.2016, with

effect from 01.04.2016, are also held to be ultra vires the

Constitution.

90.04. The writ petitions are allowed; but,

under the circumstances, parties shall bear their own costs.

(Navaniti Prasad Singh, J.)

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