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TMI Blog1978 (7) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... s relating to the grant of permits on grounds of health was substantially altered. Under the new rule-- (1) Only persons who are 45 years of age and above on the date of the application can apply for permits to consume liquor on grounds of health, and (2) Every applicant shall be examined by a Medical Board consisting of the Dean of the local Medical College, who will be the Chairman, a Psychiatrist and a local Doctor specialising in alcohol cases. 3. The petitioner who was 42 years of age on the date of the application, apprehending that his application for renewal will be rejected on the basis of the rules as amended by G. O. Ms. No. 3495 Home dated 31-12-1977, has approached this court for the issue of a writ declaring the amended rules as void and for mandamus directing the respondents herein to consider and grant the renewal of his permit in accordance with the rules relating to such renewals as they stood before 31-12-1977 on the following three grounds:-- (1) G. O. Ms. N. 3495 Home dated 31-12-1977 which amended the relevant rules with effect from 1-1-1978 is not retrospective in character and, therefore, it cannot apply to pending applications; (2) that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not likely in the opinion of the licensing authority to abuse the concession. 'Intoxicating drug' and 'liquor' had been defined in Ss. 3(8) and 3(9) of the Act respectively. 'Liquor' is defined in Section 3(9) as including toddy, arrack, spirits of wine, denatured spirits, spirits, wine, beer, and all liquids consisting of or containing alcohol. Sec. 4 prohibited the manufacture of, traffic in, and consumption of liquor and intoxicating drugs. Sec. 16, however, gave power to the State Government to exempt, subject to such conditions as they think fit, any specified liquor or intoxicating drug from the observance of all or any of the provisions of the Act on the ground that such article is required for a medicinal, scientific, industrial or such like purpose. Sec. 18 empowered the State Government or the Collector to issue licences to any person for the manufacture, export, import, transport, sale or possession of any liquor or intoxicating drug on the ground that the same was required by such person for a bona fide medical, scientific or industrial purpose. Sec. 20 provided for the issuance of permits and licences by the Government or any officer empo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently affected if he is not permitted to possess and consume liquor mentioner in the application, and (iii) that the personal circumstances of the applicant justify his being granted a permit and that he is not likely to misuse the permit. If the Government is not satisfied with the bona fide of the medical certificate enclosed along with the application, the applicant concerned may be required to appear before the Director of Medical Services, or his nominee at Madras for a second medical opinion, which second opinion shall be accepted by the Government. If the Government is satisfied that there is no objection, then it will issue a permit on payment of the second installment of the fee of ₹ 50. Sub-rule (6) of Rule 4 provided that no permit shall be granted for a period exceeding that recommended by the Medical Officer and it shall in no case exceed one year at any one time. Sub-rule (7) of Rule 4 requires the holder of a permit desiring to renew the permit to make an application for renewal at least one month before the date of expiry of the permit and the proviso to that sub-rule stated that it shall not be necessary to produce a medical certificate with an application fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially amended and the amendments came into force on 1-1-1978. As per the amended Rule 10(B)(1) a person who is 45 years of age and above can alone apply for a permit to possess and consume liquor on grounds of health and a Medical Committee consisting of the Dean of the Medical College as Chairman and a Psychiatrist and a local doctor specialising in alcohol cases as members has to be constituted for the purpose of granting the medical certificate, and six such committees are to be constituted in each of the following places: Madras, Chingleput, Coimbatore, Madurai, Thanjavur and Tirunelveli. The fee for grant of a permit was fixed at ₹ 130 payable in two installments, of ₹ 30 at the time of the application and ₹ 100 at the time of the grant of permit. Under the amended rules there is no provision for a second medical opinion. It is perhaps due to the fact that a committee consisting of three members of the medical profession headed by a Dean of a local Medical College has been constituted to issue a medical certificate in form F. P. Mc. which was not the case before. It is the latest amendment made in R. 10(B)(1),which brought about two main changes in the existi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even if the medical committees were to work 8 hours a day, without the Dean of the Medical college or the specialists attending to their normal work, at the rate of half an hour per applicant, the Medical Board may not be able to examine all the applicants before the expiry of the permit of which the renewal is sought. According to the petitioners there were 65000 permits throughout the State of which 40000 were in the Madras City alone on 31-12-1977 and in view of the number of applications for renewal, an applicant for a new permit will have to wait as long as 8 years before he is called before the Medical Board for examination. The petitioners also complain that as six medical boards had been created only at six centres and not in all district centres, an applicant will have to travel over 100 miles for being examined by the Medical Board and if he is not examined for some reason on a particular day fixed by the Medical Board, he will have to repeat his visits to the Board. According to the petitioners the cumbersome procedure in the matter of grant of liquor permits on grounds of health introduced by the rule-making authority under the amended rules was only intended to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumption of liquor for medicinal purposes is not prohibited under that Act. The preamble to the Act is the best guide to find out the scheme and the policy behind the Act. Even Art. 47 of the Constitution which sets out one of the directive principles of the State Policy merely contemplates prohibition of consumption, except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health and, therefore, the consumption of liquor for medicinal purposes was not intended to be completely prohibited at any time, either by the Constitution or by the provisions of the Prohibition Act. While so, the executive has attempted to impose virtually a partial prohibition on the consumption of liquor for medicinal purposes by introducing a minimum age limit for making an application and making the regulatory provisions for the grant of a liquor permit on grounds of health more stringent with a view to substantially, if not altogether, prohibit the grant of liquor permits. It is urged by the learned counsel that as the provision of the Act has facilitated the issue of liquor permits on grounds of health and did not prohibit altogether the grant of such permits, it should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of alcohol for medicinal purposes. 12. On this aspect, the learned Advocate General appearing for the respondents submits that the Prohibition Act is intended to bring about total prohibition of consumption of intoxicating drinks and drugs which are injurious to health, that in the process of giving effect to that object of total prohibition, it has to necessarily regulate the consumption of alcohol for medicinal purposes as otherwise in the guise of using alcohol for medicinal purposes one can violate the provisions of the Act with immunity, that alcohol may be used as an ingredient for the manufacture of drugs or as a beverage, that the user of alcohol as an ingredient for medicinal purposes is regulated by one set of rules made under the Act, that in a like manner the user of alcohol as a beverage for medicinal purposes is regulated by the different set of rules, and that it is neither correct nor possible to say that the rule making authority cannot regulate consumption of liquor for medicinal purposes. The learned Advocate General refers to Ss. 4, 18, 20 and 25 and submits that the statute itself gives a mandate to regulate user or consumption of liquor for medicinal purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of persons who can be considered suitable for the issue of a liquor permit. At this stage, we are not concerned to whether the fixation of age limit violates Arts. 14 or 19 of the Constitution. That question will be dealt with later while dealing with the third contention. We are, at this stage, concerned with the question whether the amended rules are ultra vires the provisions of the Act. On a due consideration of the matter, we are not in a position to say that the amendments brought in by the impugned G.O. on 31-12-1977 are ultra vires the Act. We are not inclined to agree with the learned counsel for the petitioners that the Prohibition Act does not at all deal with the consumption of liquor for medicinal purposes and that the act should be construed, having regard to its preamble, only as dealing with consumption and possession of liquor for non-medicinal purposes. As already stated, S. 20 permits the possession and consumption of liquor only on the basis of a permit or licence issued by the State Government. The statement of objects and reasons set out in the Bill makes it clear that personal permits are intended to be issued only to persons who by long habit cannot dispen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule making authority while making the rules have made a rule that no liquor permits will be granted under S. 20 for medicinal purposes under any circumstances, it can be said to be ultra vires the provisions of the Act. But where the statute itself gives a discretion to the rule making authority to regulate the issue of permits for consumption of liquor, it can enumerate the class of persons who can apply for the permit and the conditions which they have to satisfy for getting the permit. We are not able to construe the provisions of the Prohibition Act as containing a mandate to the licensing authority to give a permit for medicinal purposes and to hold that the said mandate has been violated or disobeyed by the rule making authority by making stringent provisions, which might allegedly inconvenience some. 14. The learned counsel for the petitioners would say that the rule making authority has exceeded its powers as a delegate in two ways. Firstly, it has excluded persons below the age of 45 from applying for a permit and secondly even among the persons above 45 years of age the issue of a permit is restricted to addicts only. According to the petitioners till the impugned ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... health is likely to suffer for want of liquor. In these circumstances, we are not in a position to say that the amended rules are ultra vires the provisions of the Act. 15. Then we come to the third contention which is based on the violation of Arts. 14 and 19(1)(f). The petitioners' case is that liquor as defined in the Prohibition Act is properly protected by Art. 19(1)(f) and hence a citizen is entitled to possess and consume it subject to reasonable restrictions permitted by Art. 19(5). Reliance is placed on the decision of the Supreme Court in State of Bombay v. F. N. Balsara, AIR 1951 SC 318. In that case, the constitutional validity of the Bombay Prohibition Act 1949 was challenged. The Supreme Court held that to the extent to which the Bombay prohibition Act prevents the possession, use and consumption of non-beverages and medicinal and toilet preparations containing alcohol for legitimate purposes, the provisions are void as offending Art. 19(1)(f),even though they may be within the legislative competence of the Provincial Legislature. There the court dealt with the consumption of non-beverages and medicinal and toilet preparations containing alcohol for legitimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kers expressly recognised the consumption of alcohol for medicinal purposes and provided it as an exception in Art. 47, and, therefore, it is not open to the State to say that intoxicating drinks cannot be consumed for medicinal purposes. We are not able to agree with Mr. K. K. Venugopal, learned counsel for the petitioners that Art. 47 contemplates free use of alcohol as a drink or as a beverage on the ground that it is for a medicinal purpose. As already stated, the expression 'medicinal purposes' contained in that Article has to construed in the light of the directive principles of State Policy of bringing about prohibition of intoxicating drinks and drugs which are injurious to health and so construed, it deviously refers to the user of alcohol for the manufacture of medicine, as otherwise, by allowing the free use of intoxicating drinks and drugs which are injurious to health on the ground that it is a medicine will defeat the very object of that provision. The words consumption for medicinal purposes cannot be equated as consumption as a medicine. This is apart from the question whether intoxicating drinks and drugs can have any therapeutic or medicinal value. If in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addiction or long habit or for psychological reasons. The said report also refers to a dissenting opinion expressed by another medical expert that there were medicinal uses of alcohol for certain diseases, but says that he was not able to substantiate his view with reference to any well known authority in medicine. The Committee is of the view that modern medicine has got more effective drugs for all ailments and that the use of alcohol may not have any real medicinal value particularly in a tropical country like India. 19. In Encyclopaedia Britannica, Volume I, under the head 'Alcohol and therapeutics' at page 440, the following passage occurs and the same is relied on by the petitioners in support of their stand that alcohol as a beverage has certain medicinal and therapeutic value. Alcohol is often used for medicinal and therapeutic purposes. Whiskey is popular for treating colds and snake bites, brandy for treating faintness, wine for blood building, beer for lactation and any alcoholic beverage for treating sleeplessness or over excitement. Many of these uses survive from folk medicine. Alcohol is administered by physicians in hospitals, usually by vein, someti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dividual statute impugned and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. It has also been pointed out by the Supreme Court in State of Madras v. V. G. Row that the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict on the question of reasonableness. 21. This leads us to the further question as to whether the amended rule 10 is violative of Art. 14 of the Constitution. According to the petitioners the permit being one to the issued for medicinal purposes, the classification of persons with reference to age has no reasonable nexus to the objects of permit. As has already been pointed out, intoxicating drug has very little or no medicinal or therapeutic value, and even if it has, the advantage by using the intoxicating drink as a medicine is lost by the adverse effect it has on the human system. The only persons who will probably be benefited by using liquor as a beverage are those who ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orcement of prohibition in Tamil Nadu has reported that the minimum age for the grant of liquor permits on grounds of health can be fixed at 30 years, that even otherwise as a person normally becomes an addict by regular consumption of liquor for a period of ten to fifteen years it is wrong to assume that people above the age of 45 alone would be addicts and not people below that age. On this aspect, the counter affidavit of the respondents proceeds on the basis that the classification based on age limit of 45 and the provisions for enabling only a person who has completed 45 years of age to apply for a permit is just and reasonable and is quite consistent with the spirit, object and purposes of Act. According to the respondents the age has a relation to health and the law can prescribe an age limit below which it cannot be reasonably claimed that some illness exists which has necessarily to be treated with alcohol, and it is reasonable to assume that at the age of 45, a man who has become an addict to alcohol may find it difficult to give up that habit at the risk of his health being deteriorated and, therefore, he is to be permitted to consume alcoholic drinks for maintaining his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being granted in the matter of consumption of alcohol for medicinal purposes. Therefore, the Act provides for the grant of permits for persons who may require intoxicating drinks on grounds of health. The Legislature has given the power to the rule making authority, the Government, to select persons and prescribe the conditions for the grant of liquor permits on grounds of health. In exercise of such a discretion the Government has prescribed that people above the age of 45 who have become addicts by long habitual drinking will alone be granted liquor permits on grounds of health, as such persons will suffer in health if they are suddenly prevented from consuming alcoholic drinks. In those circumstances, there is nothing improper or illegal in restricting the grant of liquor permits only to those persons who have become addicts by long and habitual drinking and whose health will suffer for want of intoxicating drinks. Having regard to the fact that the discretion has been given to the rule-making authority to decide as to who should be allowed to consume intoxicating drinks, the rule making authority can select persons for the grant of liquor permits having regard to the absolute n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Legislative policy is enunciated with sufficient clearness. The rule making authority, of course, has to act within the framework of the law and within the limits of the policy framework laid down therein. It is also well established that it is open to the Legislature to leave it to the executive to determine the details for carrying out the legislative object and intent such as the selection of persons for the application of the provisions of the Act. Though it is true that the Legislature cannot delegate its essential legislative function in any case, it can delegate any subsidiary or ancillary powers to a delegate of its choice to be exercised in accordance with the legislative policy. As pointed out by Cooley in his Constitutional Limitations, Volume I, 8th Edn, at page 228-- The maxim that power conferred upon the Legislature to make laws can be delegated to any other authority does not preclude the Legislature from delegating any power not legislative which it may itself rightfully exercise. It may confer an authority in relation to the execution of a law which may involve discretion, but such authority must be exercised under and in pursuance of the law. The Legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the Act by the grant of permits for consumption of alcoholic drinks. The scheme of the Act, as already stated, is to have a total prohibition and by way of exemption, permits have to be granted to such of those persons who require alcoholic drinks as a medicine for their ailments. The rule making authority in this case has proceeded on the basis that it is only persons who are above 45 years of age who are addicted to drink and whose health is likely to suffer for want of drinks who should be exempted from the provisions of the Act. The rule making authority has understood the policy behind the Act as one to permit the consumption of alcohol only in cases where it is required as a medicine and its view only those who are above 45 years of age and whose period of addiction is considerably long may require intoxicating drinks as medicine as without the use of alcohol their health will deteriorate. Medical opinion appears to be uniform against the consumption of alcohol as a curative, except in cases of long addiction. In cases of long addiction, certain withdrawal symptoms occur and those symptoms can be avoided only by use of alcoholic drinks. Drinking of small quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee appointed by the State Government referred to above is 30 years and that the Government at least should have fixed 30 years as the minimum age limit instead of 45. It is true, the high level committee suggested the minimum age limit 30. But the report of the high level committee is not binding on the Government and it is open to the Government to take a view different from that of the committee for stricter enforcement of prohibition in the State and to say that only extreme cases of long addiction will be considered for the grant of permits on grounds of health. Once the discretion has been given to the State Government to select and classify persons in the matter of grant of permits, the classification need not be shown to be scientifically perfect or logically complete so long as it does not exhibit any vice of discrimination. In Coovergee v. Excise Commissioner, Ajmer, dealing with the validity of (Ajmer) Excise Regulation it has been held that the Legislature of a State is fully competent to regulate the business of vending intoxicating liquor to mitigate its evils or to suppress it entirely, that there was no inherent right in a citizen to sell intoxicating liquors, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above contention. The impugned Government Order says that the amendment shall come into force on the 1st of Jan. 1978. Sec. 54(3) says that all rules made under this Act shall, as soon as possible after they are made, be placed on the table of both the Houses of the Legislature and shall be subject to such modification by way of amendment or repeal as the Legislative Assembly may make within fourteen days on which the House actually sits either in the same session or in more than one session. Sec. 54(3) does not say that till the rules are approved by both the Houses of Legislature, they are not effective. On the contrary, Sec. 55(5) says that all rules made and notifications issued under the Act shall be published in the Officials Gazette and upon such publication, shall have effect as if enacted in this Act. Admittedly the rules have been published in the Official Gazette (extraordinary) dated 1-1-1978. Therefore, it is not possible to say that the rules have not come into force as they have not got the approval of both the Houses of Legislature. In our view, the effect of S. 54(3) is that all rules made under the Act by the rule making authority shall be placed on the table of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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