2016 (9) TMI 1520 - HC - Indian Laws

Prohibition on sale of Liqour - 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? HELD THAT - 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. he 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 - 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. 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. 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. Petition allowed.

Summary

Issues Involved:
1. Whether the right to consume alcohol is a fundamental right.
2. Interpretation of "any person" in Section 19(4) of the Bihar Excise Act.
3. Delegated legislation and the validity of Section 19(4) of the Bihar Excise Act.
4. Conflict between the notification and the notified New Excise Policy, 2015.
5. Conflict between the notification and the object of the Bihar Excise Act.
6. Reasonableness of restrictions imposed by the notification.
7. Proportionality and reasonableness of punishments under the amended Bihar Excise Act.
8. Legality of possession of alcohol under the notification.

Detailed Analysis:

1. Whether the right to consume alcohol is a fundamental right:
The court examined whether the right to consume alcohol is a fundamental right under the Constitution. It was argued that the right to privacy under Article 21 includes the right to decide what to eat and drink within the confines of one's home. The court concluded that the right to consume alcohol is not a fundamental right and any intrusion into this right, if legally valid, cannot be resisted by claiming a violation of the right to privacy.

2. Interpretation of "any person" in Section 19(4) of the Bihar Excise Act:
The expression "any person" in Section 19(4) was debated. The court concluded that "any person" should be interpreted expansively to include all persons, not limited by the rule of ejusdem generis. Therefore, the notification under Section 19(4) cannot be invalidated on this ground.

3. Delegated legislation and the validity of Section 19(4) of the Bihar Excise Act:
The court analyzed whether Section 19(4) constituted delegated or conditional legislation. It was determined that Section 19(4) conferred unbridled and unguided powers on the State, making it a case of excessive delegation. The provision lacked legislative guidelines, rendering it ultra vires the Constitution. Consequently, the notification issued under this section was also invalid.

4. Conflict between the notification and the notified New Excise Policy, 2015:
The court found that the New Excise Policy, 2015, envisaged a phased approach to prohibition, not an immediate and complete ban on foreign liquor/IMFL. The sudden issuance of the notification on 05.04.2016, imposing a total ban, was in conflict with the policy guidelines. Therefore, the notification was deemed arbitrary and ultra vires Article 14 of the Constitution.

5. Conflict between the notification and the object of the Bihar Excise Act:
The Bihar Excise Act, 1915, was primarily for regulating the trade and collection of excise duty, not for imposing prohibition. The court noted that the use of Section 19(4) to impose complete prohibition was beyond the object of the Act. The notification effectively stultified the Act itself, making it invalid.

6. Reasonableness of restrictions imposed by the notification:
The court examined the reasonableness of the restrictions imposed by the notification. It was found that the restrictions were arbitrary and unreasonable, especially considering the continued allowance of toddy (Tari) and the impact on industries and individuals. The restrictions violated Articles 14, 19, and 21 of the Constitution.

7. Proportionality and reasonableness of punishments under the amended Bihar Excise Act:
The court reviewed the enhanced punishments under the amended Act, finding them draconian and disproportionate. The mandatory minimum sentences and fines, along with provisions for confiscation and collective fines, were deemed excessive and violative of Articles 14 and 21 of the Constitution.

8. Legality of possession of alcohol under the notification:
The court noted that the notification did not explicitly ban possession of foreign liquor/IMFL. Section 19(1) of the Act, which permits possession up to a prescribed quantity, was not repealed. Therefore, mere possession of alcohol was not prohibited under the notification.

Conclusion:
The court held that Section 19(4) of the Bihar Excise Act, 1915, as amended, was ultra vires the Constitution and unenforceable. The notification dated 05.04.2016, issued under this section, was also declared ultra vires and unenforceable. The enhanced punishments and provisions for confiscation were deemed unconstitutional. The writ petitions were allowed.