IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 OP.No. 25547 of 2000(N) --------------------------------- PETITIONER: ------------------- NAGARJUNA HERBAL CONCENTRATES LTD., THODUPUZHA, REP.BY ITS MANAGING DIRECTOR. BY ADV. SRI.MADHU N.NAMBOOTHIRIPAD RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP.BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE DRUGS CONTROLLER, OFFICE OF THE DRUGS CONTROLLER, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.K.SANDESH RAJA FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/08/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT No representation . Dismissed for default. 21.08.2008 SD/- K.BALAKRISHNAN NAIR, JUDGE ORDER ON CMP. 43047/2000 IN OP. NO.25547/2000 DISMISSED 21.08.2008 SD/- K.BALAKRISHNAN NAIR, JUDGE /TRUE COPY/ P.S. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = O.P.No.25547/2000-N & WP(C).Nos.1935/2007-E, 20613/2008-D, 20982/2008-W, 24154/2008-A, 24283/2008-N, 25533/2008-M, 26479/2008-B, 26885/2008-A, 27024/2008-P, 27174/2008-I, 27292/2008-Y, 31987/2008-G, 1758/2009-H, 6649/2009-A, 11352/2009-L & 14548/2009-K = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of August, 2009. JUDGMENT 1.The petitioners in these cases contend that they manufacture different medicinal preparations, including 'arishtam' and 'aasavam' on the strength of licences granted by the Drugs Controller under the Drugs and Cosmetics Act, 1940 or the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 and the Rules framed thereunder and that, therefore, they are not obliged to have licences under the Kerala Spirituous Preparations (Control) Rules, 1969, hereinafter referred to as “the SPC Rules”. Some OP25547/00 & con.cases 2 of them also challenge the vires of the SPC Rules as a whole, taking the contention that they are made in excess of the rule-making power under the Abkari Act and are ones that cannot be characterised as a subordinate legislation in as much as those rules go beyond the scheme of the Abkari Act. 2.The learned counsel appearing for the petitioners argued that the products manufactured by the petitioners as 'arishtam' and 'aasavam' are essentially medicinal preparations in terms of the relevant texts prescribing the concoctions to be used as medicines and any alcohol content as an ingredient of such a product cannot come within the pale of the term 'alcohol' for the purpose of the Abkari Act and hence, the SPC Rules cannot apply. In furtherance of this contention is the challenge to those rules, including on the ground that it is contradictory to any object sought to be achieved either by the imposition of restrictions as per the Abkari Act OP25547/00 & con.cases 3 or the enabling provision to make rules under that Act. 3.The learned Government Pleader V.Manu, referred to the judgment of this Court in Thomas Vaidyan & others v. State of Kerala, 1971 KLJ 641 rendered by a Division Bench holding that the SPC Rules is intravires the Act; the decision of the Full Bench in Enoch Pharma v. State of Kerala, 1979(1) ILR Kerala 655 virtually quoting the aforesaid decision with approval and seeing no contradiction and also finding no lack of legislative competence. In a later decision, Babu & others. v. The Excise Inspector & another, 2005(3) KLJ 459, this Court also held that transport of excess quantity of alcohol than prescribed in the licence amounts to violation of a condition of a licence. That was also a case relatable to products passed off as ayurvedic products. The learned Government Pleader also pointed out that no retailer or wholesaler can possess spirituous preparations without a licence OP25547/00 & con.cases 4 under the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. He referred in this context to the judgment in Muraleedharan Pillai v. State of Kerala, 2006(4) KLT 254 and the unreported judgments in Dr.D.Rajan v. State of Kerala(O.P.No.10595/2002) and Rajendran and another v. The Superintendent of Police & others [WP(C).No.27008/2007(DB)], dealing with Ayurvedic medicines. 4.With all the aforesaid precedents facing his clients, Advocate K.A.Balan, the learned counsel for the petitioners in some of these matters argued that the SPC Rules are beyond the legislative competence of the State in as much as the provisions thereof are beyond the prescriptions of the Abkari Act and even contradict them. He argued that term 'liquor' as defined in Section 3(10) of the Abkari Act cannot include any medicine and the rule making power under Section 29 of the Abkari Act does not confer any express power to make rules in the OP25547/00 & con.cases 5 nature of the SPC Rules. It is further argued that in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala & others, JT 2006(5) SC 41, a precedent in the field of Abkari laws in the State of Kerala, the Apex Court has categorically laid down that the rule making power of the State cannot be exercised beyond the provisions of the primary legislation and the subordinate legislation cannot change the bounds of the principal legislation. The said doctrine is salutary. There can be no controversy on it. But, the fact of the matter remains that the said decision was rendered considering the question as to whether the workers in a particular category of Abkari shop could be moved to another abkari shop under the compulsion of law. The question then was as to whether there was legislative sanction for the Government to make subordinate legislation to that effect in terms of the Abkari Act. The Apex Court found lack of power to do so. In the cases in hand, I shall apply the very same judgment to examine the question. The principle OP25547/00 & con.cases 6 enunciated is that the subordinate legislation cannot over leap the principal legislation. Applying that, it needs to be understood that in the cases in hand, the power is exercised only to regulate the transit of alcohol, the implementation of which control, is of prime concern, having regard to the restrictions which are imposed as a public policy relatable to the Directive Principles of State Policy and life and health, referable to Article 21 of the Constitution. It also needs to be noticed that even the Abkari Act, in Section 56A, provides for regulation of the dispensation of medicines containing alcohol and to ensure that there is no free for all, in the matter of consumption of such materials. 5.The Division Bench and the Full Bench having dilated on the quality of definition of the term 'alcohol' in Section 3(10) of the Abkari Act; firstly judicial discipline obliges me to adopt it. Secondly, and more importantly, I am in OP25547/00 & con.cases 7 complete concurrence with the law laid down by the Full Bench and the Division Bench. The term 'bona fide medicinal preparation' in Section 56A has no bearing on the interpretation of the term 'alcohol' as defined in Section 3(10), as suggested by the learned counsel for the petitioners. For the aforesaid reasons, these writ petitions fail and are accordingly dismissed vacating all interim orders. The retailers of the petitioners will, however, be granted a breathing time to obtain necessary licences and for such purpose, it shall be ensured that there is no search and seizure from the premises of the retailers and from the vehicles of the wholesale dealers for a period of two months from now. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/051009 OP25547/00 & con.cases 8 THOTTATHIL B. RADHAKRISHNAN,J. = = = = = = = = = = = = = = = = O.P.No.25547/2000-N & WP(C). Nos.1935/2007-E,20613/2008-D, 20982/2008-W, 24154/2008-A, 24283/2008-N,25533/2008-M, 26479/2008-B, 26885/2008-A, 27024/2008-P,27174/2008-I, 27292/2008-Y, 31987/2008-G, 1758/2009-H, 6649/2009-A, 11352/2009-L & 14548/2009-K = = = = = = = = = = = = = = = = JUDGMENT Dated: 27th August, 2009.