9911796707
TMI Blog2016 (9) TMI 1520X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in nature, does incorporate the provisions for ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 licence for the same would be granted from 1st April, 2016; whereas, with effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 complete prohibition. 17. Interestingly enough, pursuant to the NEP, a Bill, proposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iquor 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 stocks for sale or put their indents with the BSBCL on payment of money. The BSBCL issued circulars to the district authorities to tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be held to be bad on this count alone. 27. Coming to the second issue, namely, 'Regarding Issue in relation to delegated legislation', I equally agree with the discussions made, reasonings so applied and the conclusions reached by my learned brother, Navaniti Prasad Singh, J., that the validity of Section 19(4) of the Act, as amended, and as also the impugned notification, dated 05.04.2016, issued under Section 19(4) of the Act, cannot be saved by virtue of Section 92 of the Act inasmuch as that would amount to conferring legislative powers on the delegatee with no legislative control. 28. No different is my view on the conclusions reached by my learned brother, Navaniti Prasad Singh, J., so far as third issue, namely, 'Notification in conflict with notified policy guidelines', is concerned, which is to the effect that the impugned notification, being clearly in conflict with the notified New Excise Policy (NEP 2015), cannot, in the facts and attending circumstances of the case, be sustained. 29. Similarly, I am in complete agreement with the conclusions reached by my learned brother, Navaniti Prasad Singh, J., with regard to the fourth issue, namely, ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 heard to say that his fundamental rights are infringed merely because the Directive Principles of State Policy stand incorporated in the legislation, which relate to governance of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that his fundamental rights are violated. 40. My learned brother has observed that what one will choose to eat or drink is his decision and cannot be interfered with by the State and that in support of these observations a reference has been made to the case of Ramlila Maidan Incident, In re, reported in (2012) 5 Supreme Court Cases 1, wherein, paragraph 318, reads as under: "318. Thus, it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc." (Emphasis is added) 41. Though what one will eat or what one will drink is his decision, the fact remains that when the Directive Principles of State Policy requires the State to make endeavour to bring about prohibition, it logically follows that merely because the State is making the endeavour to bring about prohibition, one cannot claim that he has a fundamental and indefeasible right to continue to consume liquor or alcohol or intoxicating drinks or intoxicating drugs. When the right to consume intoxicating drink cannot be claimed as a fundamental right, an intrusion into this right, if, otherwise, legally valid, cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 intoxicating drink, such as alcohol, is a fundamental right. With greatest respect, I do not find any authority suggesting that the right to consume intoxicating drink, such as, alcohol, is a fundamental right and in the name of enforcement of Directives P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e distinction between the different forms of government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when government's purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that Article is conferred, not only on laws passed by the Parliament but on laws passed by the State legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment." (Emphasis is added) 51. In short, thus, in Minerva Mills Ltd.'s case (supra), there was, admittedly, infringement or denial of the fundamental rights and, therefore, the Court had to step forward and strike down the law. 52. In every judicial precedent that has come before us, it is when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Distilleries Ltd. (supra), at para 5.06, thus : "(i) If the State decides to impose total prohibition in terms of Article 47, then, no citizen can make a grievance, for, it would be a reasonable restriction; (ii) If it does not impose total prohibition, instead create State monopoly under Article 19(6), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of all questions is : whether one's desire to consume alcohol is a fundamental right? If consumption of alcohol by one is regarded as a fundamental right, then, infringement thereof would, undoubtedly, amount to intrusion into one's right and would be struck down. When, however, the Constitution obliges the State to make endeavour to bring complete prohibition in respect of consumption of intoxicating drink, consumption of intoxicating drink cannot be treated as a fundamental right. 63. My learned brother, Navaniti Prasad Singh, J., has also referred to the case of Virodhak Sangh (supra), wherein the Court observed as follows: "27. Had the impugned resolutions ordered closure of municipal slaughterhouses for a considerable period of time we may have held the impugned resolutions to be invalid being an excessive restriction on the rights of the butchers of Ahmedabad who practise their profession of meat selling. After all, butchers are practising a trade and it is their fundamental right under Article 19(1)(g) of the Constitution which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor of the butchery shop alone. There may be also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eries 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 consumption of alcohol by a person can never be regarded as his fundamental right nor can it be said that the right to consume alcohol can be merely regulated and not prohibited. 69. What crystallizes from the above discussion is that the right to consume alcohol is not a constitutional right, and reasonable restrictions on consumption of alcohol, or complete prohibition on consumption of alcohol, can be impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Act by the State, is in conflict with the notified New Excise Policy, 2015, which policy is the only guideline available for issuance of notification under Section 19(4) of the Act and, as such, the notification has to be struck down. 78. The fourth issue is that the Bihar Excise Act, 1915, is an Act for collecting State excise duty and regulation incidental thereto, the impugned notification goes beyond the very object of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The submission, on behalf of the petitioners, is that considering the legislative history of the amendments to Section 19(4) Act and the judicial pronouncements in relation thereto, the impugned notification could not be issued in relation to "all persons". Alternatively, it is submitted that the said expression "any person" has to be read ejusdem generis and would not cover individuals, not being manufactory, bottling plant or licence h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, though noticed the judgment of Special Bench of this Court and the Bombay High Court, did not, in view of the amended provision of Section 19(4), comment upon it inasmuch as the amended provision of Section 19(4) was under consideration and held that the section authorized issuance of notification in respect of all persons and the conviction was upheld. 84.6 As noted above, this amendment by ordinance of the year 1940 lapsed and the position as emanating before revived. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Kanhai Sahu's case (supra), and this Court, in the case of Shivjee Prasad' case (supra), both have noticed that the expression "any person", by itself, would mean and include "all persons", but only because it was qualified by the expression "class of persons" it had to be restricted. Such is not the case now. "Any person" is not qualified in any manner and, thus, it would include "all persons". The impugned notification cannot, therefore, be held to be bad on this count alone. 84.10 Coming to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legated legislation, which confers unbridled and unguided powers on the State to issue notification, virtually superseding/abrogating the Act itself. Being unchannelized and there being no legislative policy, as contained in the legislation (the Act), the abdication of essential legislative function would render the section ultra vires the Constitution being a clear case of excessive delegation and, consequently, the impugned notification, issued thereunder would also be bad. Alternatively, it is argued that the Act itself having not provided any legislative guidelines, for the exercise of power under Section 19(4) of the Act, the guidelines are to be inferred from the notified New Excise Policy, pursuant whereto, and in furtherance whereof, Section 19(4) of the Act, was amended and notification was issued thereunder and if the notified policy is studied and the scheme thereunder taken note of, then, the resultant notification would, undoubtedly, be in conflict with the notified policy/guidelines rendering the notification invalid. 85.3 On the other hand, on behalf of the State, it is submitted that Section 19(4) of the Act, as amended, and the notification issued thereunder is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 be the latter it was within the limits recognized by judicial decisions. The distinction between conditional legislation and delegated legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton & Co. v. United States, (1927) 276 US 394, and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Remedies (Objectionable Advertisements) Act, 1954, as quoted above, and, in paragraph 34, this is what their reason and conclusion was, the relevant part whereof is quoted hereunder: "34. .... In our view the words impugned are vague. Parliament has established no criteria, no standards and has not prescribed any principle on which a particular disease or condition is to be specified in the Schedule. It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease. The power of specifying diseases and conditions as given in S. 3(d) must therefore b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 person in the whole State of Bihar or in any specified local area in respect of all or any of the intoxicant s either totally or subject to such conditions as it may prescribe." (Emphasis is supplied) 85.10 Section 20 of the Act provides for licence for sale of intoxicants and other substances. Section 22 of the Act provides for grant of privilege. Sections 22-A, 22-B and 22-C up to Section 22-G of the Act provides for country liquor and spiced country liquor. Chapter V deals with duties. Chapter VI deals with licences, permits and passes. Section 42 of the Act deals with power to cancel or suspend or impose penalty. Section 43 of the Act deals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na (supra), the preamble did give a guideline, but the section was found to be absolutely vague. In the present case, the preamble and the other provisions, if read together, give a different guideline and those are all in relation to permitting, facilitating and regulating manufacture, storage and sale of intoxicants and for collection of excise revenue and except for Section 19(4) of the Act, there is no provision for imposing prohibition. The Supreme Court, in Hamdard Dawakhana case (supra), while declaring the provision of Section 3 (d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, held Section 8, too, as void and unconstitutional. The relevant observations, appearing in para 36 of the decision of Hamdard Dawakhana case (supra), reads as follows: "36. The constitutionality of S. 8 of the Act was challenged on the ground that it violated the petitioner' right under Arts. 21 and 31. That section when quoted runs as follows: "Any persons authorized by the State Government in this behalf may, at any time, seize.......and detain any document, article or thing which such person has reason to believe contains any advertisement which contravenes any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituent 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 any case. It must lay down the legislative policy and principle, and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. As has been observed by Mahajan C. J. in Harishankar Bagla v. State of Madhya Pradesh, (1955) 1 SCR 380 at p. 388: (AIR 1954 SC 465 at p. 465), "the Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases, and must provide a standard to guide the officials or the body in power to execute the law''. In dealing with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 85.18 In view of the aforesaid, to me, the conclusion is inescapable. Section 19(4) of the Act is, thus, a piece of excessive delegated legislation and has to be itself held to be ultra vires. Consequently, the impugned notification, too, cannot survive or be sustained 85.19 In fairness to the State, it must be noted that reliance has been placed on the Division Bench judgment of this Court in the case of Shivjee Prasad vs. The State of Bihar and others, reported in 1980 PLJR 37, in relation to Section 19(4) of the Act, as it earlier stood, whereunder notification of prohibition was issued and the same was challenged on the ground of excessive delegation of legislative power. This is discussed in paragraph 22, wherein their Lordships have themselves first found that it was not necessary to decide the issue, having set aside the notification. The contention falls into insignificance and the matter is merely academic. 85.20 In my view, having held so, their Lordships held it not to be illegal delegation of power, holding that the guidelines were available in numerous decisions and the intention of the legislature expressed in the statute. No decision nor provisions of the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 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 conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void. The position remains the same even though subsection (2) of Section 281 of the Act has specifically provided that after the rules are framed and published they shall have effect as if enacted in the Act. In other words, in spite of the provision of sub-section (2) of Section 281, any rule framed under the Cantonments Act has to fulfill the two conditions mentioned above for their validity........................." (Emphasis is added) 85.23 Thus, the validity of the impugned notification, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 notified in the Bihar Gazette (Extraordinary), dated 21st December, 2015, for information of general public, which is on record. It is a lengthy policy document; but for the sake of brevity, relevant provisions are being noticed and quoted wherever necessary. 86.4 The NEP begins by stating that from time to time, the Excise Policy underwent changes. The important changes were carried out vide Excise Policy, 2007, whereunder significant increase in number of liquor vends to increase collections of excise duty, in the State, was done. Changes were made to curtail tendencies of monopoly in the trade by allowing the process of allotment of shops and that efforts were made to curb illegal trading. Though this policy resulted in expected increase in excise duty in the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be approved by this committee and required proposals will be sent to the Board of Revenue for approval. The Committee was to issue guidelines and take decisions for opening of new shops as per requirement, keeping in view the coverage of foreign liquor shops from the point of view of prohibition, tourism, etc. Further, this Committee was also to fix guidelines for provisions in the army establishments. The new policy came into effect from 01.04.2016. 86.7 From the aforesaid notified policy, it would be seen that a clear decision was taken to stop manufacture and sale of any form of country liquor with effect from 01.04.2016. So far as foreign liquor/IMFL including beer is concerned, it clearly predicated creation of monopoly of BSBCL to the exclusion of private trade and, further, it restricted the sale to municipal areas only to the exclusion of rural areas. Bars and restaurants could operate only in municipal areas and not in rural areas. The policy also constituted a committee to overlook the operations, which was also vested with power to suggest opening of more shops, if necessary. There is nothing in the policy, which indicates the State Government's resolve to resor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and consumption of country liquor in the following terms: "In exercise of the powers conferred under Section 19(4) of the Bihar Excise Act 1915 (as amended by Bihar Excise (Amendment) Act 2016), the State Government hereby imposes absolute ban on the manufacture, bottling, distribution, sale, purchase, possession and consumption of country liquor by any manufactory, Bottling Plant, license holder or any person in the whole of the State of Bihar with effect from 01 April, 2016." 86.11 In the meantime, on or about 12.03.2016, BSBCL issued liquor sourcing policy of the year 2016-17, wherein it notified manufacturers within the State of Bihar as well as manufacturers, importers and distributors outside the State of Bihar for supply to it of foreign liquor/IMFL for sale through its vends established in urban areas for onward sale to bars and restaurants in urban areas and also to consumers in urban areas. It also issued advertisements for recruitment of staffs. The licenses of manufacturers of foreign liquor/IMFL including beer were renewed for the year 2016-17. The bar and restaurants licenses were renewed, in urban areas, for the year 2016-17 inasmuch as the earlier licenses were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r with no guidelines having been provided by the legislation. Undisputedly, there is no such guideline to be found in the legislative enactment or even in the amended version thereof, which was brought into force as late on 31.03.2016, nor is there any such indication in the New Excise Policy itself. Apart from this, the New Excise Policy, 2015, as noted above, clearly predicated continuance of production and/or sale of foreign liquor/IMFL and/or consumption and possession of foreign liquor/IMFL. 86.16 The narration of facts and the sequence of events as noted above, make it clear that if the policy statement, as published, were to offer any guidelines for exercise of power under Section 19(4) of the Act, then, it surely did not mandate sudden abrupt issuance of the impugned notification on 05.04.2016 and, thus, the Section itself, having not provided any guidelines, and the policy having not authorized, such an action, as the impugned notification conveys, one cannot escape from the fact that exercise of power by the State Government, in issuing the impugned notification, dated 05.04.2016, was completely, in exercise of unguided, uncanalized and unfettered powers given to the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s manifestly arbitrary. 77. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution. 78. A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary powers. In the latter case the question may be considered on all grounds on which administrative action may be questioned, such as, non-application of mind, taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc., etc. On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for the State Government to deny any benefit, which is otherwise available to an industrial unit under the incentive policy itself. The industrial incentive policy is issued by the State Government after such policy is approved by the Cabinet itself. The issuance of the notification under Section 7 of the Bihar Finance Act is by the State Government in the Finance Department which notification is issued to carry out the objectives and the policy decisions taken in the industrial policy itself. In this view of the matter, any notification issued by government order in exercise of power under Section 7 of the Bihar Finance Act, if is found to be repugnant to the industrial policy declared in a government resolution, then, the said notification must be held to be bad to that extent. In the case in hand, the notification issued by the State Government on 4-4-1994 has been examined by the High Court and has been found, rightly, to be contrary to the Industrial Incentive Policy, more particularly, the policy engrafted in clause 10.4(i)(b). Consequently, the High Court was fully justified in striking down that part of the notification which is repugnant to sub-clause (b) of clause 10.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y formulation should be broadly and substantially in conformity with that policy, otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14. 4.3 True, the breach of policy decision by itself is not a ground to invalidate delegated legislation. But, in a case like this, the inevitable fallout of the breach of policy decision which the government itself treated as a charter for the resultant legislation is to leave an imprint of arbitrariness on the legislation.................. However, where the delegate goes a step further, draws up and announces a rational policy in keeping with the purposes of the enabling legislation and even lays down specific criteria to promote the policy, the criteria so evolved become the guideposts for its legislative action. In that sense, its freedom of classification will be regulated by the self-evolved criteria and there should be demonstrable justification for deviating therefrom." 86.25 I may also refer in this connection to the recent decision of the Supreme Court in the case of Lloyd Electric and Engineering Limited vs. State of Himachal Pradesh and others, reported in (2016) 1 Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bihar Excise Act was not an Act, which was to be used for imposing prohibition. While imposing prohibition in the State under the Prohibition Act, various things had to be taken care of, the transition period from non-prohibition State to prohibition State, special provisions for travellers, visitors, people travelling through the territory of the State from outside the State to a place outside the State, movements of liquor from outside the State to another place outside the State but, passing through the territory of the State, and such other provisions, which are not incorporated under the Bihar Excise Act, 1915. The reason being simple that the Bihar Excise Act, 1915, was never intended to be an Act empowering the State to impose prohibition. In this connection, I may refer to the Division Bench judgment of this Court in the case of Shivjee Prasad vs. The State of Bihar and others, reported in 1980 PLJR 37, and what is held in paragraph 19 of the reports, the relevant part whereof is reproduced hereunder: "19. .......... It is baffling to the mind as to why and how without even mentioning any provision of the 1938 Prohibition Act the notification was sought to be issued and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Supreme Court Cases 753, wherein the entire law, with regard to delegated legislation vis-`-vis conditional legislation, has been discussed following Hamdard Dawakhana case (supra) and Cipla (supra). In paragraphs 25 and 26 of the reports, this is what their Lordships have held : 25. In B.K. Industries v. Union of India this Court clearly held that a delegatee cannot act contrary to the basic feature of the Act stating: "The words 'so far as may be' occurring in Section 3 (4) of the Cess Act cannot be stretched to that extent. Above all it is extremely doubtful whether the power of exemption conferred by Rule 8 can be carried to the extent of nullifying the very Act itself. It would be difficult to agree that by virtue of the power of exemption, the very levy created by Section 3 (1) can be dispensed with. Doing so would amount to nullifying the Cess Act itself. Nothing remains thereafter to be done under the Cess Act. Even the langua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular purpose, a Court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope' [Craies on Statute Law, 7th Edition, p.79]. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power......" (Emphasis is Added) 87.6 Again, Section 19(4) of the Bihar Excise Act, 1915, is for regulating trade for the purposes of collection of excise duty and not for prohibition, for, for prohibition, there is the Bihar Prohibition Act, 1938. Thus, Section 19(4) of the Bihar Excise Act, 1915, cannot be used for the purpose for which the Act was not made leaving aside the Bihar Prohibition Act 1938, which was for such a purpose. 87.7 Thus, in exercise of delegated powers under Section 19(4) of the Bihar Excise Act, 1915, whole Act could not be stultified by a notification issued thereunder, the notification clearly being in excess and beyond the object of the Bihar Excise Act, 1915. Section 19(4) of the Bihar Excise Act, 1915, could only be used for furtherance of the object of the said A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose prohibition, is correct, then, by now, almost after 65 years of the Constitution, the entire country should have imposed prohibition, which has never happened. Can it be said that all the States are in violation of the constitutional mandate? The answer is obviously no. The second argument, canvassed by the State, was that once State decides to act pursuant to Article 47 of the Constitution, then, no citizen can claim any right, much less right under Part-III of the Constitution. If I have correctly understood the argument of the State, the submission would be that the directive principles, if sought to be implemented, would override the fundamental rights. The argument is noted only to be rejected, as it was rejected by the Constitution Bench in the case of Mohd. Hanif Quareshi and others vs. State of Bihar and others, (AIR 1958 Supreme Court 731), and, in particular, paragraph 12 thereof, which run as under: "12. ........ These directive principles, it is true, are not enforceable by any court of law but nevertheless they are fundamental in the governance of the country and it is the duty of the State to give effect to them. These laws having thus been made in discharge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution. We are unable to accept this contention. The principles enunciated in Part IV are not the proclaimed monopoly of democracies alone. They are common to all polities, democratic or authoritarian. Every State is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of government consists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those conferred by Articles 14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all costs. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when government's purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that Article is conferred, not only on laws passed by the Parliament but on laws passed by the State legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment." ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court Cases 574, wherein their Lordships have reviewed the case law on the subject and this is what their Lordships said in paragraph 56 of the reports, which is quoted hereunder: "56. The contention further that till prohibition is introduced, a citizen has a fundamental right to carry on trade or business in potable liquor has also no merit. All that the citizen can claim in such a situation is an equal right to carry on trade or business in potable liquor as against the other citizens. He cannot claim equal right to carry on the business against the State when the State reserves to itself the exclusive right to carry on such trade or business. When the State neither prohibits nor monopolises the said business, the citizens cannot be discriminated against while granting licences to carry on such business. But the said equal right cannot be elevated to the status of a fundamental right." (Emphasis is supplied) 88.6 Their Lordships have summarized the principles of law in paragraph 60, which, to me, briefly appear to be as follows: "(i) If the State decides to impose total prohibition in terms of Article 47, then, no citizen can make a grievance, for, it would be a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to make a man's personal liberties other than those, which are already included in the several clauses of Article 19. The expression "personal liberty" is of widest amplitude. It would, thus, include the right of locomotion except in so far as it is included in Article 19(1)(d) of the Constitution. It would include right to socialize with liberties of one's family and friends. It would also include right to privacy as held in the case of Gobind vs. State of M.P., reported in (1975) 2 Supreme Court Cases 148. Article 21 includes right to privacy, being integral part of personal liberty, and, if that be so, then, this is what their Lordships said in paragraph 56 in the case of District Registrar and Collector vs. Canara Bank, reported in (2005) 1 Supreme Court Cases 496, for ready reference, paragraph 56 is being quoted hereinbelow: "56. In Maneka Gandhi v. Union of India a seven-Judge Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression "personal liberty" in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not explicit in the Constitution. Of course, privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values. 24. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty. 28. The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to all the force of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter, the rain may enter - but the King of England cannot enter - all his force dare not cross the threshold of the ruined tenement." 88.14 Then, I may refer to the case of Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat, reported in (2008) 5 Supreme Court Cases 33, and this is what their Lordships held in paragraph 27 of the reports, which is quoted hereunder: "27. Had the impugned resolutions ordered closure of municipal slaughterhouses for a considerable period of time we may have held the impugned resolutions to be invalid being an excessive restriction on the rights of the butchers of Ahmedabad who practise their profession of meat selling. After all, butchers are practising a trade and it is their fundamental right under Article 19(1)(g) of the Constitution which is guaranteed to all citizens of India. Moreover, it is not a matter of the proprietor of the butchery shop alone. There may be also several workmen therein who may become unemployed if the slaughterhouses are closed for a considerable period of time, because one of the conditions of the licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed. If what one eat is his right surely, what one drinks has to be treated similarly. Thus, in my opinion, right to drink alcohol, like a responsible citizen, is a part of right to privacy included under Article 21 of the Constitution. But, as noted earlier, this may not be necessary to be finally held so, because the writ petition succeeds on other issues. 6. Regarding reasonableness of restriction 89. As noted in the judgments of the Constitution Bench in K.K. Narula (supra), Khodey's case (supra) and also by the Supreme Court in The Kerala Bar Hotels Association's case (supra), wherein it has been held that it cannot be said that Article 19 can never be available in respect of liquor trade. I may note that the Constitution does not differentiate or distinguishes between liquor trade or trade or business in any other commodity. It is Judge-made law that distinguishes the rights in respect thereof. The present scenario in this State is that manufacturing of IMFL is permitted in Bihar. Manufacturing of beer is also permitted in Bihar, though in respect of both sale in Bihar is prohibited. Tari (toddy) is totally unregulated except the places, where or in the vicinit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not disputed by the State. Having set up with colossal expenses, loans or other liabilities having been created, now, to say that you cannot sell your products in the market that you had chosen and which was made available to you by the State, would such a restriction be reasonable? The answer would be what was said by the Supreme Court in the case of Rustom Cavasjee Cooper and another vs. Union of India, (AIR 1970 Supreme Court 564), popularly known as the Bank Nationalization Case, in paragraph 74, the relevant part whereof is reproduced hereinbelow; "74. Where restrictions imposed upon the carrying on of a business are so stringent that the business cannot in practice be carried on, the Court will regard the imposition of restrictions as unreasonable. ...." (Emphasis is added) 88.3 I may note another aspect. In this connection, so far as the beer bars and restaurants are concerned, as noticed earlier, the new Excise Policy did not restrict the licensing thereof in urban areas, where they are predominately situated. Keeping in view the new Excise Policy that their licences would be renewed, they made substantial investments. They got their licences, in fact, renewed for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act shall have any claim to the renewal of such licence or, save as provided in Section 43, any claim to compensation on the determination thereof." (Emphasis is supplied) 88.4 In my opinion, the aforesaid provisions clearly predicate that where a licensee is stopped, not by reason of licensees' default, but pursuant to any policy of the State and, licences stands revoked prematurely in law, he is entitled to two reliefs (i) the proportionate refund of the licence fee and (ii) other compensation, which could only mean reasonable compensation for investments made and liabilities incurred for exploitation of licence. State, being State, within the meaning of Article 12 of the Constitution, has to act fairly and reasonably in all matters. It cannot say that a prohibition notification issued under Section 19(4) of the Act would override the provisions of Sections 43 and 45 of the Act. If that be the stand of the State, then, the action would clearly be confiscatory and, therefore, unreasonable and ultra vires. It is too late in the day for the State to say that what was legitimate till yesterday, we have today declared illegitimate and illegal and for illegality, we do not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Let it be noted that nothing in the Bihar Excise Act, 2015, applies to or affects the provisions of Cantonment Act, 2010, under which Danapur Cantt. has been established. 88.8 Then, we have the case of Dr. Priya Ranjan and Dr. Anil Kumar Prasad Sinha, who not only consume alcohol responsibly, but consider it to be good and helpful in certain medical conditions. 88.9 Thus, in my view, a citizen has a right to enjoy his liquor within the confines of his house in an orderly fashion and that right would be a part of right of privacy, a fundamental right, under Article 21 of the Constitution and, any deprivation thereof would have to withstand the test of Articles 14 and 19 of the Constitution as well. 88.10 Here, I would also like to notice that the new Excise Policy, 2015, clearly acknowledged that the problem with liquor was acute so far as the poor strata of the citizens are concerned, especially, in rural areas, to whom country liquor was cheaply and freely available. The unfortunate fact is that it was the State that encouraged cheap and easy availability of country liquor for the poor in the past years. This is acknowledged in the NEP 2015 itself. The policy itself did not say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re enforced against individuals. 88.13 Another aspect of unreasonableness of the effect of the notification is its application to various other aspects. A person traveling by car or by train and traversing the territory of Bihar, he is caught in a predicament that he is going from a State, where there is no prohibition, and going to State, where there is no prohibition. He may be an army or defence personnel carrying his liquor ration or a ordinary citizen carrying his drink to his destination. Neither of them consumed the same in this State; still they are to be persecuted and prosecuted why? Their only sin is that they chose or perforce traversed the territory of Bihar. Similar would be the case of liquor being transported from one State to another, but crossing through Bihar. As noted elsewhere in this judgment, the Bihar Prohibition Act, 1938, does take note of these situations. The Legislature, when amending Section 19(4) of the Bihar Excise Act, 1915, must be presumed to be aware of the said Act and surely did not expect and/or authorize the executive to ignore or override the Prohibition Act. Instances have been brought to the notice of the Court that people traveling by tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plenary power to legislate and provide for punishment, are the best Judge and the Court cannot and should not interfere in the legislative wisdom. 89.3 Now, I proceed to consider the arguments. The first thing, I would like to point out is that punishments by itself cannot be seen but have to be seen along with the procedure, for, the procedure may create certain liability, which, coupled with the punishment, would made things worse. To be precise, first, I may refer to Section 48 of the Act, as amended, which is quoted hereunder: "48. Presumption as to commission of offence in certain cases.--(1) In prosecution under any relevant provision of this Act, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, premises, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily. (2) Where any animal, vessel, cart or other vehicle and any premises is used in the commission of an offence under this Act, is liable to confiscation and/or liable to be sealed, the owner or occupier thereof shall be deemed to be guilty of such offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r buys any intoxicant beyond the prescribed quantity; or (h) removes any intoxicant from any distillery, brewery, warehouse, other place of storage licensed, established, authorized or continued under this Act; Shall be punishable with imprisonment for a term not less than ten years but which may extend to imprisonment for life and with fine which shall not be less than one lakh rupees but which may extend to ten lakh rupees." "53. Penalty for consumption of liquor in public place - Whoever, in contravention of this Act or the rules, notification or order made thereunder - (a) consumes liquor in a public place or an unauthorized place; or (b) consumes liquor in a public place or an unauthorized place or an authorized place and creates nuisance; or (c) permits drunkenness or allows assembly of unsocial elements in his premises or on the premises of liquor establishment; shall be punishable. (1) In case of an offence falling under clause (a), with a term which shall not be less than five years but which may extend to seven years and with fine, shall not be less than one lakh rupees which may extend to ten lakh rupees. (2) In case of an offence falling under clause (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are obstructing the administration of this Act, then the Collector may impose a suitable collective fine on such group of people living in such area of the town or village and may recover such fine as if they were Public Demands under the Bihar & Orissa Public Demands Recovery Act, 1914, (Bihar and Orissa Act IV of 1914). (Emphasis is supplied) 89.5 First, I would deal with Section 68I, which deals with collective fine. A plain reading of the aforesaid Sections would show that the punishment is entirely depended upon subjective satisfaction of the Collector. What is the fine is left totally to the discretion of the Collector. How and what would constitute a group and how an area would be identified, in a town or a village, is not known nor defined. No one has to be heard before fine is imposed. There is no provision for appeal. We are dealing with a provision of penalty. It is a piece of substantive law. Substantive law without guidance and without procedural safeguards can only be termed as draconian, it being completely vague, uncertain and unlimited. Even though it may professed to have a social objective to attend, the means to achieve the same are clearly unconstitutional. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transiting the State or traveling the Bihar; whereas Excise Act does not protect such persons and a person, while transiting the State, in a train, is and have been apprehended and are being prosecuted. 89.10 On behalf of the petitioners, apart from the judgment, which I would refer to, the 47th report of the Law Commission of India, on the Trial and Punishment of Social and Economic Offences, has been referred. The relevant parts are summarized as hereunder. "In its detailed report vide Clauses 4.12, 4.14 & 4.25 has clearly recommended against providing for absolute liability in form of a minimum sentence. The law Commission in Clauses 7.42, 7.43, 7.44, 7.45, 7.46 & 7.47 of its Report has laid down the prime considerations which are relevant in proper sentencing and has held that sentences which are merely mathematically identical for violation of the same statute are improper, unfair and undesirable. Mathematically identical sentences indeed may in substance themselves be disparate. In Clause 7.52, the Law Commission has opined that if the punishable act has caused no harmful effects, the punishment may be mild; if the act has caused some harm but the offender can repair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imical terms, one could easily plant liquor in the neighbours premises, the neighbour, being unaware; still, by virtue of the presumption clause, not only he gets convicted but his premises also get confiscated. These common day illustrations can be multiplied to show the draconian effect of the law. The effect of these provisions is virtually that we are converting the State into a Police State. Citizens would always be living under a threat or, at least, a threat perception of being easily implicated. That surely is not conducive and should not be permitted. 89.14 Here, I can only quote what was said by the Constitution Bench in the case of State of Punjab vs. Baldev Singh, reported in (1999) 6 Supreme Court Cases 172, and what is held by their Lordships in paragraph 28 of the reports, the relevant part whereof is quoted hereunder: "28. ............Indeed in every case, the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself.............." 89.15 Now, I wish to notice the provisions of other Acts only for the purpose of showing that even where the drugs and psychotropic substances are concerned, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shna Iyer, J. said that though our Constitution did not have a "due process" clause as in the American Constitution, the same consequence ensued after the decisions in the Banks Nationalization case and Maneka Gandhi. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21 .... Desai, J. observed in the same case that: [SCC para 228, pp. 574-75 : SCC (Cri) pp. 235-36] The word 'law' in the expression 'procedure established by law' in Article 21 has been interpreted to mean in Maneka Gandhi case that the law must be right, just and fair, and not arbitrary, fanciful or oppressive. Otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. If it is arbitrary it would be violative of Article 14 ...... In Bachan Singh which upheld the Constitutional validity of the death penalty, Sarkaria, J., speaking for the majority, said that if Article 21 is understood in accordance with the interpretation put upon it in Maneka Gandhi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act (by trial court) can be suspended, remitted or commuted (by the appellate court) pending appeal. This Section was declared ultra vires Constitution as it took away the discretionary powers of the appellate court in respect of suspending the sentence, while admitting an appeal pending final hearing. 89.20 Lastly, I would refer to the recent judgment in the case of Vikram Singh vs. Union of India, reported in (2015) 9 Supreme Court Cases 502, and, in particular, what is held by their Lordships in paragraph 40, which is quoted hereunder: "40. In a Parliamentary democracy like ours, laws are enacted by Parliament or the State Legislature within their respective legislative fields specified under the Constitution. The presumption attached to these laws is that they are meant to cater to the societal demands and meet the challenges of the time, for the legislature is presumed to be supremely wise and aware of such needs and challenges. The means for redressing a mischief are also in the realm of legislation and so long as those means are not violative of the constitutional provisions or the fundamental rights of the citizens, the courts will show deference towards them. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that possession of liquor (IMFL/foreign liquor) by an individual is not banned either by the Bihar Excise Act, 1915, or the notification, dated 05.04.2016. The answer to it is evident. If we compare the two notifications issued in quick succession, the first issued, on 31.03.2016, under Section 19(4) of the Act in respect of "country liquor" which clearly mentions "possession" apart from other activities. The notification, dated 31.03.2016, in respect of country liquor is being quoted hereunder: "In exercise of the powers conferred under Section 19(4) of the Bihar Excise Act, 1915 (as amended by Bihar Excise (Amendment) Act 2016), the State Government hereby imposes absolute ban on the manufacture, bottling, distribution, sale, purchase, possession and consumption of Country liquor by any manufactory, Bottling Plant, licence holder or any person in the whole of the State of Bihar with effect from 01 April, 2016." 90.1 The second notification issued, on 05.04.2016, again under Section 19(4) of the Act in respect of "IMFL/foreign" liquor, where only wholesale, retail trade, not manufacturing, bottling is prohibited. Though consumption is prohibited, there is no mention of "possess ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
