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2016 (9) TMI 1520
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....tutionally 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 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....
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....n 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 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 ....
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....r 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 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 c....
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....y 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. 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 sto....
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....#39;any person' 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. Similarl....
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....lear 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. 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 hear....
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....e 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....
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.... 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) 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 intoxica....
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.... 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)....
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.... 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 Distilleries 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 Distilleries 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 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 Dis....
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.... 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....
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....he 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 Distilleries 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 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 consump....
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....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 ejusdem 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 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 Ac....
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.... 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 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....
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....(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) 84.4 Here, the expression "any person" or "class of persons", as earlier used, was qualified by "all persons". 84.5 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). The Federal Court, th....
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....e, 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." 84.8 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 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. 84.9 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 Kanha....
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....#39;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? 85.1 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. 85.2 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 notifie....
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................................................ ................................................ ................................................ (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." 85.5 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 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 ....
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.... 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 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) 85.6 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) 85.7 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 Remedie....
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....ce 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 warehouses. Section 16 of the Act deals with licences required for depositing and keeping in warehouses 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: "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 ....
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.... 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 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 provisio....
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....maining 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 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 a....
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....s 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 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 an....
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....earned 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, namely, (1) it must confo....
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.... 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. 86.2 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. 86.3 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 no....
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....ion 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. 86.6 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....
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....ring, 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 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, ....
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....e 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....
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....s 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 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 whic....
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....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 i....
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....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 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....
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....siness 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 pr....
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....xercise 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 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) 87.2 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 Sup....
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....rts, 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......." 87.4 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. 87.5 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'....
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.... making laws." 88.1 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 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." 88.2 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 happen....
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....e 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 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 democ....
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....n 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. 88.5 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 Lordshi....
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.... (Emphasis is added) 88.8 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." 88.9 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 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 tho....
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....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 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. ....
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....iberties 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 maxim was that of William Pitt in the British Parliament in 1763. He said: "The poorest man may in his cottage b....
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....thers 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. 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 po....
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....een 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? 88.2 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 t....
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....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 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....
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...., 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. 88.7 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. H....
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....s 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 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 restr....
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....as 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 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 dealin....
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....ent, 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, 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....
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....ht years but which may extend to ten years and shall 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, ....
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....antity, 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. 89.7 The provisions would show that, except for commercial quantity, there is ample discretion on the 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. 89.8 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 t....
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....n 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 ....
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....ed 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 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 b....
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....cedure 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) 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....
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....outrageously disproportionate that the Canadians would find the punishment abhorrent or intolerable. The following observations succinctly sum up the 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 punishm....