judgement:
303 of 1960.
Under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
C. K. Daphtary, Solicitor General of India, N. Sharma, section C. Nath and R. Gopalakrisnan, 'for the Petitioner.
M. C. Setalvad, Attorney General `for India and Naunit Lal, for the Respondents.
September 29.
The Judgment of Sinha C. J., section K. Das and Rajagopala Ayyangar was delivered by S.K. DAS.
This writ petition by one Mannalal Jain was originally filed on October 17, 1960, and the order complained of was dated September 13, 1960.
This was an order made by the Deputy Commissioner, Kamrup Gauhati, rejecting an application made by the petitioner for the grant of a license for the year 1960 for dealing 'in rice and paddy under the relevant provisions of the Assam Foodgrains (Licensing and Control) Order, 1960.
This writ petition was put up for 939 hearing in this Court on February 2, 1961.
The hearing was, however, adjourned sine die, because it was stated before us that the period of licence for 1960 had already expired and a fresh application would have to be made for a license for 1961.
A fresh application was accordingly made by the petitioner on February 4, 1961.
But before that date: a fresh Assam Foodgrains (Licensing, and Control) Order, 1961 was made by the Governor of Assam and the application made by the Petitioner had to be dealt with under the new Order.
No order having been made on this fresh application by the Deputy Commissioner, the petitioner moved this Court by means of a petition (C.M.P. No. 850 of 1961) asking for certain reliefs, one of which was that the respondents, namely, the licensing authorities, should be directed to consider the application of the petitioner and grant him a license.
On April II, 1961 an order was made rejecting the application of the petitioner.
This order which is impugned before us was in these terms.
Having regard to the existing licenses in these areas (Mangaldai and Gauhati), and the quantity of foodgrains available therein, any further license would be superfluous." When the petition was again put up for hearing on May 1, 1961 the petitioner asked for time to amend his original, petition, which related to the order refusing to grant him a license for 1960.
This amendment became necessary by reason of the subsequent order passed on April 11, 1961, quoted earlier, by which the petitioner 's application for a license for 1961 was rejected.
This amendment was allowed.
Therefore, we have now to deal with the writ petition as amended by the petition dated May 5, 1961 (C.M.P. No. 1140.
of 1961).
It is necessary now to state the relevant facts out of which the petition has arisen.
The petitioner states that he is an Indian citizen carrying on a business dealing in rice and paddy in the district of 940 Kamrup in the State of Assam.
In 1955 was enacted the (Act 10 of 1955).
In exercise of the powers conferred by section 3 of the said Act, read with a notification by which the said powers were delegated by the Central Government to the Government of Assam, the latter Government made an Order called the Assam Foodgrains (Licensing and Control) Order.
The result of this was that no dealing in rice and paddy in wholesale quantities was permissible unless the petitioner obtained a, license from the relevant licensing authority.
The petitioner states that he obtained such a license in 1958.
This license expired on December 31, 1958.
The case of the petitioner is that in 1959 also he carried on his business though there is some dispute as to whether he obtained a license for that year.
On November 26, 1959, the petitioner received a letter from the office of the Deputy Director of Supply, Gauhati, which said that his license would not be renewed after December 31, 1959.
This communication, it is stated, was the result of a decision taken by the Government of Assam on the advice of a body called the Food Advisory Council to give a right of monopoly procurement of paddy to a cooperative society in the district of Kamrup known as the Assam Co. operative Apex Marketing Society Ltd. (respondent No. 6 before us).
In a letter dated November 13, 1959, the Director of Sup ply, Assam, indicated the policy to be followed to give effect to the decision aforesaid in these terms "The right of monopoly procurement in respect of Kamrup district including Mangaldai Sub division, Taxpur Sub division, Cachar district, Nowgong district including United Mikir and North Cachar Hills and North Lakhimpur Sub division has been given to the Co operative Apex Marketing Society.
The Society will procure paddy from the 'growers through various service Co operative Societies spread over the district or sub division.
They 941 will procure all available surplus paddy and deliver to Supply Department the quantity required for the buffer stock for those areas.
Any paddy procured by them which is not required by us may be delivered to the mills.
" A copy of the letter was forwarded to all licensing authorities.
on January 5, 1960, the Assam Foodgrains (Licensing and Control) Order, 1960, came into force.
This replaced the earlier Order of 1958.
Clause 5 of the 1960 Order was in these terms: 5.
Maiters to be taken into consideration for granting a license.
In granting or refusing a license under this Order, the licensing authority shall among other matters have regard to the following, namely: (a) the stock of foodgrains available in the locality for which the license is required; (b) the number of persons who have applied for and/or been granted licenser, in respect of the foodgrains under this Order in the locality (c) the business ordinarily carried on by the applicant; and (d) the past activities of the applicant as a licensee or business man/firm: Provided that the State Government may from time to time modify the conditions for granting a license.
" On January 28, 1960 the petitioner made his application for a license for the year 1960.
This application was rejected by an order dated February 17, 1960.
The reason given for the rejection was in these terms: "You are hereby informed that as ;the Co operative Apex Marketing Society has been given the right of monopoly purchase in the Kamrup district this year, your case.
cannot be considered for issue of the license.
942 This reason was obviously based on the decision as to monopoly procurement, which the Government of Assam had adopted.
Against this order the petitioner moved the High Court of Assam by means of a writ petition under article 226, of the Constitution.
The High Court allowed the petition mainly on the; ground that the application, of the petitioner for a license for, the year 1960 was not considered on merits by the licensing authority in accordance with the provisions of el.
5 of the Assam Foodgrains (Licensing and Control) Order, 1960.
The High Court did not go into the larger question whether the State could or could not create a monopoly in the matter of procurement of paddy under the said provisions by means of executive instructions issued to the licensing authorities.
It however, quashed, the order dated February 17, 1960 and issued a writ of mandamus directing the licensing authority to consider the application of the petitioner on merits and in accordance with the provisions of the aforesaid Control Order.
Till June 7, 1960 no order was passed by the licensing authority, and on that date the petitioner made two applications to the High Court, one for directing the licensing authority to grant,, him & license for 1960 and the other for taking action, for contempt of court.
A notice of these applications, it is stated, was served on the respondents.
On June 8, 1960 the licensing authority made another order refusing to grant a license to the petitioner.
This order stated that "as the Assam Co operative Apex Marketing Society Ltd., had already been granted a license to deal in rice and paddy., with its branches spread all over the district, it was considered unnecessary to grant further dealing licenses to individual dealers for the same area".
On June 9, 1960 the applications earlier made by the petitioner to the High Court on June 7, 1960 were withdrawn and a fresh application was made on June 15, 1960, which, was directed against the order dated June 8, 1960.
On 943 August 10, 1960 the High Court again set aside the order and directed the licensing authority to act independently of instructions received from the Government and, to apply its mind to the merits of the application and, decide it in accordance with the relevant provisions of the Assam Foodgrains (Licensing and Control) Order, 1960.
Again, no orders were made by the licensing authority till September 8, 1960 in accordance with the directions of the High Court, and the petitioner made two applications on that date: one for enforcing the direction of the High Court, and the other for initiating proceedings in contempt.
These applications were admitted and it is stated that notices were served on the respondents, including the licensing authority, on that very date.
On September 13, 1960 the licensing authority made another order, again rejecting the application of the petitioner.
This order stated inter alia: "For the areas for which the application have been made the Assam Co operative Apex Marketing Society Ltd., has earlier.
applied for and has been granted license.
This is as relevant consideration under Clause 5 (b) of the Assam Foodgrains (Licensing and Control Order, 1960.
The stock of foodgrains avail able in the area can easily be procured by the party already given license.
Being a on operative, it has better facility in this respect.
As such, I do not find it necessary to grant license to the applicant.
The petition is, therefore, rejected".
This time instead of going to the High Court of Assam, the petitioner came here and filed his writ petition on October 17, 1960 (Writ Petition No. 303 of 1960).
Thereafter, certain proceeding ,took place in this Court to which we have earlier referred in the first paragraph of this judgment The amended writ petition as it now stands is directed against the order of the licensing authority dated April 11, 1961, by which it rejected the 944 application of the petitioner for a license for 1961.
The provisions of the Assam Foodgrains (Licensing and Control) Order 1960 are no longer relevant, because a fresh Order called the Assam Foodgrains (Licensing and Control) Order, 19,61, was made by the Governor of Assam.
We shall, hereinafter call this the Control Order, 1961.
It is necessary 'to read here cl. 5 of the Control Order, 1961.
Matters to be taken into consideration for granting a license.
In granting or refusing a license under this Order, the licensing authority shall, among.
other matters, have regard to the following, namely: (a) the stock of foodgrains available in the locality for which the license is required; (b) the number of persons who have applied for and those who have been granted licenses in respect of the foodgrains under this Order in the locality; (c) the business ordinarily carried on by the applicant; (d) the past activities of the applicant as a licensee or business man/firm; and (e) whether the applicant is a cooperative society.
It should be noticed that the proviso to old el.
5 was omitted and a new sub cl.
(e) was added.
This sub clause enables the licensing authority, in granting or refusing a license, to have regard to the consideration whether the applicant is a co operative society.
To complete the statement of facts, it may perhaps be observed that on November 10, 1960, the High Court rejected the application for proceeding against the opposite, parties by way of contempt, mainly on the ground.
that the order made on September 13, 1960, was not before it.
On behalf of the petitioner the order dated April 11, 1961, has been impugned on two main 945 grounds.
The first ground of attack is that sub cl.(e) of cl.5 of the control Order, 1961 is ultra vires,because it goes beyond the powers granted to the State Government under section 3 read with section 5 of the '.
The second ground of attack is that 'even if sub cl.
(e) of cl. 5 of the Control Order. 1961, is intra vires being within the powers granted to the State Government, it merely allows the licensing authority to take into consideration, among, other relevant matters, the circumstance that the applicant for a licence is a co operative society; it does not say that a monopoly right of procurement Should be given in favour of a co operative society by excluding all.
Others; therefore, it was not open to the, licensing authority to proceed on the footing as if that subclause bad created a right of monopoly in favour of co operatives.
The argument.
is that in the present case, the licensing authority instead of applying its mind to the provisions of cl. 5 of the Control Order, 1961, went by the instructions issued by the State Government to grant a. right of ,monopoly to cooperative societies and based its order on such, instructions. , in spite ' of directions to the contrary given by the High Court on earlier applications made by the petitioner.
In other words, it is contended that the impugned order was a mere" colourable exercise of power in the sense that instead of exercising the powers in accordance with the provisions of law by which the licensing authority had to be guided, it acted in, accordance with the instructions of the State Government and granted 'a monopoly in favour of co operative, societies, such monopoly not being contemplated by the provisions of cl. 5 of the Control Order, 1961; therefore., the impugned order was bad being without any legal authority or jurisdiction, and as it took away the right of the petitioner to carry on his trade, and furthermore made a discrimination against him for the purpose of granting a monopoly to respondent No. 6 not contemplated by law, it violated the 946 petitioner 's rights under articles 14 and 19 of the Constitution.
He is accordingly entitled.
to come.
to this Court under article 32 of the Constitution to have the order quashed.
The petitioner has also claimed that for the same reasons, the grant of a license in favour of respondent No. 6 should also be quashed.
On behalf of the respondents, the State of Assam, its officers, and the Assam Co operative Apex Marketing Society Ltd. (respondent No. 6), it has been urged that neither of the aforesaid two grounds of attack is valid.
On their behalf the argument is that sub cl.
(e) of cl, 5 of the Control Order, 1961, is within the authority and power granted to the State Government under section 3 read with a. 5 of the .
Secondly, it is contended that no monopoly has been granted to the Assam Co operative Apex Marketing Society Ltd., and the order of the licensing authority dated April 11, 1961 is based on the considerations referred to in sub cls.
(a) and (b) of el.
5 of the Control Order, 1961, and cannot be assailed on a petition under article 32 of the Constitution.
We proceed now to a consideration of the grounds of attack and the replies thereto.
As to the first ground of attack it must be made clear at the very outset that the vires of the have not been challenged before us.
What has been contended before us is that s.3 of the Act gives, certain powers to the Central Government, which powers the Central Government has delegated the State Government of Assam.
These powers it is contended, do not authorise the insertion of sub cl.
(e) of cl. 5 of the Control Order, 1961; in other words the argument is that whether the applicant for a licence is a, co operative Society or not has no relevance whatsoever to the objects fur which section 3 grants the powers to the Central Government or its delegate to make certain Orders.
Sub section (1) of a. 3 is relevant to this argument and reads: 947 "3 (1) If the Central Government is of *onion that it is necessary or expedient an to do for maintaining or increasing supplies of my essential commodity or for securing their equitable distribution and availability at fair prices it may by, order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
" Sub section (2) of section 3 which we need not read enumerates the various categories of Orders which can be made in exercise of the powers conferred by sub s.(1), but without prejudice to the generality of those powers.
Now, the argument before us is that the, powers under a. 3 can be exercised when the Central Government or its delegate is of opinion that it it; necessary or expedient to exercise the powers to achieve two objects: (a) for maintaining or increasing supplies of any essential commodity, or (b) for securing their equitable distribution and availability at fair prices.
It is contended that the circumstance whether the applicant for a licence is a co operative society or not has no connection what so ever with the aforesaid two objects and therefore, sub cl.
(e) of cl.5 of the Control Order, 1961 is not within the powers granted by a. 3 of the Act.
We cannot accept this argument in the very broad terms in which it has been stated.
We are astisfied that cl. 5 of the Control Order, 1961 does not provide for a monopoly in favour of cooperative societies.
The clause enumerates five matters and states that the licensing authority shall have regard to those matters in granting or refusing a license.
The five matters enumerated in the clause are not exhaustive of the matters which the licensing authority may consider; because the clause says that the matters enumerated therein are five ""among other matters" which the licensing authority may consider.
Obviously enough it is open to Ye licensing authority to 948 consider all matters relevant to, the 'grant or refusal of a license and the; five matters enumerated in the clause merely highlight some of those matters.
All that can be said is that sub cl.
(e) enables the licensing authority to,; prefer a co operative society in certain circumstances in the matter of granting a license; in other words, there may be cases or localities : where the considerations set out in sub cl.
(e) may override other considerations, in the matter of granting a license.
We do not think that sub cl.
(e) has any more far reaching effect.
Indeed the: learned Attorney General appearing for : the respondents conceded that sub cl.
(e) of cl.
45 did not have the effect of creating a monopoly in favour of co operative societies.
Proceeding, therefore, on the footing that sub cl.
(e) of el.
5 does not provide for the creation of a monopoly, can it be said that it is out.
,side the powers conferred.
on the State Government by section 3 of ' the ? It is no disputed before us that sub cls.(a) (a) to (d)fall within the powers conferred by section 3.
Matters such as the stock of foodgrains, available in the locality for which the license is required, the number, Of persons who have applied for and those who have been granted licenses in the locality, the business ordinarily carried on by the applicant, and the 'Past activities of the applicant as a licensee or businessman, are undoubtedly matter& which have; relation to the two objects mentioned in section 3.
Can it be.
said that the fifth matter mentioned in sub cl.
(e) viz., whether the applicant is a co operative society is completely ' unrelated to those two, objects? We are unable to say that it is.
In the counter affidavit filed on.
behalf of the respondents it has; been stated that cooperative societies have better facilities for procuring foodgrains and are in a position to ensure scheduled prices to the farmers who, grow paddy.
It has been further stated that amongst the cooperative societies, axe primary, societies which 949 consist of the growers of paddy there are also cooperative societies called supply co operatives which are in a position to eliminate middle man 's profits.
In para.
4 it was stated that the National Development Council decided that the State should take over wholesale trade in foodgrains with a view to maintaining price levels which are fair to the producer and the consumer and reduce, to the minimum the disparity between the prices received by the farmer and the prices paid by the consumer throughout the year.
It was also decided that an adequate number of primary marketing societies should be set up and linked with village cooperatives which should serve as agencies for collection and sale of foodgrains at assured price,% at the village level.
The affidavit then stated In view of the decision of the National Development, Council, the Government of Assam in consultation with their State Food Advisory Council decided that in making procurement of rice and paddy in the State, preference should be given to the co operative societies wherever they have resources and facilities.
We are of the view that by reason of the position which co operative societies may occupy in the village economy of a particular area,, it cannot be laid down as a general proposition that sub cl.(e) of cl 5 of of the Control Order, 1961, is unrelated to the objects mentioned in section 3 of the .
There may be places or areas where co operative societies are in a better position for maintaining or increasing supplies of rice and., paddy and even, for securing their equitable distribution and availability at fair prices.
We must, therefore repel the very broadly stated contention of the learned counsel for the petitioner that sub cl.
(e) of cl. 5 of the Control Order, 1961, can have no relation whatsoever to the two objects mentioned in section 3 of the .
On behalf of them petitioner reliance 950 was placed on the decision in Ramanlal Nagardas vs M. section Palnitkar (1).
That was a case in which the validity of State action in entrusting wholesale distribution of sugar which is an essential commodity under the Essential Com modities Act, 1955, to Co operative Societies only and excluding other dealers holding similar licenses like the co operative 'societies from such distribution, was challenged and adore for consideration.
It was held that a State could make a classification for the purpose of@ achieving particular legislative objects but the classification must satisfy two conditions : (1) it must be founded on intelligible differentia, and (2) the differentia must have a rational relation to the objects sought to be achieved.
The question was considered from the point of view of article 14 of the Constitution and it was held that the action of the State Government in entrusting wholesale distribution of sugar to cooperative societies to the exclusion of other licence holders amounted to a discrimination which violated the right guaranteed under article 14.
The principles underlying article 14 of the Constitu tion are now well settled and have been enunciated and explained in a number of decisions of this Court and we consider it unnecessary to refer to those principles in detail.
In the case under our consideration no discrimination has been made between one class of license holders and another class of license holders as in the case of Ramanlal Nagardas V. M. section Palnitkar (1).
What has happened in the present ' case is that licenses have been granted only to cooperative societies and a license has been denied to the petitioner, the licensing authority proceeding on the footing that a monopoly must be created in favour of co operative societies.
A discrimination has indeed taken place 'as against the petitioner, a discrimination which is not justified by the 'Provisions of cl. 5 of the Control Order, 1961.
In dealing with the application of the petitioner the licensing authority (1) A. I. R. 1961 Guj.
38. 951 has made, a, discrimination which is met justified by 5.
That would take us to the second argument of the learned counsel for the petitioner, but on his first argument the decision in Ramanlal Nagardas vs M. section Palnitkar (1) is of no assistance.
Sub clause (e) of el.
5, we have already stated, enables the licensing authority to give preference to a co operative society in certain circumstances; but it does not create a monopoly in favour ;of co operative societies.
The preference given has a reasonable relation to the objects of the legislation set out in section 3 of the Act; therefore, sub cl.
(e) of cl. 5 of the Control Order, 1961, cannot be held to be bad on the ground of class legislation but the passing of an order under the sub clause for a purpose not contemplated by it will amount to discrimination and denial of the guarantee of equal protection of the law.
This brings us to the second argument urged on behalf of the petitioner and here we think that the learned counsel for the petitioner is on much surer ground.
It was open to the licensing authority to give preference to co operative societies, if it was of the opinion that granting a license to a co operative society in a particular locality would facilitate the objects of section 3 of the Act.
This is not what the licensing authority did.
He repeatedly refused a license to the petitioner, for the only reason and purpose of granting a monopoly to co operative societies.
In other words, the discrimination that has been made by the licensing authority is really in the administration of the law.
It has been administered in a discriminatory, manner and for the purpose of achieving an ulterior object, namely, the creation of a monopoly in favour of co operatives, an object which, clearly enough, is not within sub cl.
(e) of el.
5 of the Control Order, 1961.
We have quoted earlier the various orders which the, licensing authority had passed.
Those orders clearly show that the licensing authority refused a licence to the (1) A.I.R. 1961 Guj.
952 petitioner not on grounds referred to in sub cls.(a) and (b) of cl. 5 but on the ground ' that the State Government had decided to introduce a right of monopoly procurement of paddy in favour of co operative societies and therefore, no licenses should be granted to individual dealers other than cooperative societies.
Judged against the background of facts to 'which we have earlier referred in this Judgment, the impugned order dated April 11, 1961 appears to us to have been based on the same ground, namely, the creation of a monopoly in favour of co operatives, even though the order refers to existing licenses and the quantity of foodgrains available in the locality.
In the course of the hearing before us, the case was adjourned in order to give the parties an opportunity of filing necessary affidavits to show whether individual dealers other than co operatives have been completely excluded in the whole of the State in the matter of dealing in paddy.
The affidavits show that private dealers have been completely excluded.
In the affidavit filed on behalf of respondent No. 1, it has been stated in para.
4: "It is not denied that in the year 1961 licenses for the procurement of paddy have been issued to the co operatives in all the paddy producing districts in Assam." To show however that no monopoly hag been created in favour of a particular co operative society like respondent No. 6, it has been stated that a number of co operative societies have been or are being granted licenses for the procurement of paddy. ' In our view these statements in the affidavits filed on behalf of the respondents show only one and one object viz., creation of a monopoly in favour of cooperatives.
To achieve that object the State Government has resorted to an indirect method.
Instead of making an Order authorising such monopoly (if the State was 953 competent to make such an Order under the , as to which we express no opinion), it has chosen to adopt the indirect method of issuing instructions to the licensing authorities in all the districts to grant licenses to co operatives only.
The vice of the impugned order lies in the licensing authority accepting such instructions and passing an order in accordance there with.
The duty of the licensing authority was to pass orders in accordance with el. 5 of the Control Order, 1961.
Instead of doing that.
it passed an order in accordance with the instructions given to it on behalf of the State Government, instructions which appear to us to be not in consonance with sub cl.(e) of el. 5; because sub cl.
(e) contemplates a preference to co operative societies in certain circumstances, but not a monopoly in their favour.
We accordingly hold that the impugned order is bad as violating the rights of the petitioner guaranteed under articles 14 and 19 of the Constitution.
We must, therefore, quash the order of the licensing authority dated April 11, 1961.
We must also quash the order by which the licensing authority granted a licence in favour of respondent No. 6.
The licensing authority must now consider the application of the petitioner for a license for the year 1961 on merits along with the application , of respondent No. 6 and such other applications as may be still pending.
In dealing with these applications the licensing authority must have regard to the provisions of cl. 5 of the Control Order, 1961, and such other provisions of law as have a bearing on them, in the light of the observations made in this judgment.
it would be the duty of the licensing authority to ignore all instructions which are not in consonance with the provisions of law by which it is to be guided As the year 1961 will come to an end within a few months.
, the applications should be dealt with as expeditiously as possible so that the right of the petitioner may 954 not be rendered infructuous by reason of the delay made in disposing of the applications.
Before we part with this case we express our deep concern over the manner in which the State Government or its officers have issued instructions in the matter of granting ' of licenses, instructions which clearly ' enough are not in consonance with the provisions of law governing the grant of such licenses.
We doubt the wisdom of issuing executive instructions in matters which are governed provisions of law; even if it be considered necessary to issue instructions in such a matter,, the instructions cannot be so 'framed or utilised as to override the provisions of law.
Such a method 'Will destroy the very basis of the rule of law and strike at the very root of orderly administration of law.
We have thought it necessary to refer to this matter because we feel that the instructions which the State Government or its officers have issued in the matter of granting of licenses for the procurement of paddy are not in consonance with the provisions of el.
5 of the Control Order 1961, In the result the petition is allowed with costs and the necessary orders should now issue as directed above.
SARKAR J.
The petitioner is a citizen of India and carries on business as dealer in rice and paddy in the State of Assam.
Since 1958, dealing in rice and paddy was controlled in that State by Orders made by the State Government from time to time under the by virtue of powers delegated to it by the Central Government under section 5 of that Act.
These Orders here.after called Licensing Orders,, provided that no person could engage in any purchase, sale or storage for sale of any foodgrains, which included rice and paddy in wholesale quantities except, under and in accordance with the terms and condition of a licence business involving issued thereunder.
Purchase or, sale in wholesale quantities was defined 955 as purchase, or sale of quantities exceeding ten maunds in any one transaction.
The petitioner had obtained a license to deal in paddy for the year 1958.
It is not clear whether he had obtained a license to do so for 1959.
With these years, however, this case is not concerned.
On January 28, 1960, the petitioner had applied under the Licensing Order then in force for a license to deal in paddy in Kamrup district: of Assam for the year 1960.
His application was refused by an order made on February 17, 1960 on the ground that it could not be considered as the Co operative Apex Marketing Society had been given the right of monopoly purchase in Kamrup district.
The petitioner then moved the High Court of Assam under article 226 of the Constitution to quash this order.
On April 27, 1960, the High Court delivered judgment quashing the order on the ground that the authority concerned was bound to ;consider the petitioner 's application for licence and had failed to do so.
The High Court issued a writ of mandamus directing that the petitioner 's application be considered on its merits.
As the licensing authority did not consider the petitioner 's application till June 7 1960, the latter on that date moved the High Court again for enforcement of the writ issued.
On receipt of the notice this motion, the licensing authority passed an order on June 8, 1960 again refusing to grant the petitioner the licence.
This order, stated, "Your petition is considered.
As the Assam co operative Marketing Society has already been ' granted a licence to deal in rice and paddy with branches spread all over this district, it is considered unnecessary to grant further dealing licences to individual dealers for the same area.
Hence the petition is rejected.
" The petitioner thereupon dropped his motion to the High, Court of Assam of June 7, 1960 and moved the High Court afresh under article 226 against the order of June 8, 1960 refusing him the licence 956 and the High Court on August 8, 1960, quashed it on the ground that the licensing authority had to act in a quasi judicial capacity and that it bad decided the case on the instructions of the State Government without considering for itself the merits of the case in terms of the Licensing Order.
The authority was again directed to decide the case in a quasijudicial capacity.
The licensing authority not having taken up for decision the petitioner 's case for the grant of licence as directed by the High Court, he moved.
the High Court on September 8, 1960 for appropriate reliefs.
On receipt of the notice of this motion the licensing authority passed an order on September 13, 1960, again refusing to grant licence to the petitioner and certain other private dealers.
The order stated, "For the areas for which the applications have been made the.
Assam Co operative Apex Marketing Society has earlier applied for and has been granted licence.
This is a relevant consideration under el.
5(b) of the Assam Foodgrains (Licensing and Control) Order, 1960.
The stock of foodgrains available in the area can easily be procured by the party already given the licence.
Being a Co operative Society it has better facility in this respect.
As such I do not find it necessary to grant licence to these applicants.
The petitions are therefore rejected".
Thereupon the High Court on November 10, 1960, made an order on the petitioner 's aforesaid motion of September 8, 1960 discharging the rule as the order asked for had been made.
It observed that the order of September 13, 1960 was not before it and it was competent to say whether that order was in consonance with its order of August 8, 1960.
It also observed that it did not find sufficient reason to take any action against the licensing authority for the delay in the matter of the disposal of the application for licence.
Before proceeding further I would like to point out that the Assam Foodgrains (Licensing and 957 Control) Order, 1960 being the Licensing Order by which the petitioner 's application for licence for 1960 was governed did not contain any provision enabling any preference to be given to a co operative society in the matter of the grant of licence.
I now come to the present petition.
It was ;moved in this Court by the petitioner under article 32 of the Constitution challenging the validity of the order of the Licensing authority dated September 13, 1960, and asking that the licence granted to the Assam Co operative Apex Marketing Society be declared illegal and for an order directing the licensing authority to consider the applications for licences according to the provisions of,the Licensing Order, 1960.
The petition came in for hearing on February 2, 1961.
By that date the year for which the petitioner had asked for a licence had expired and the Licensing Order, 1960 had been replaced by another Order of 1961.
In the result the petition bad become substantially infructuous.
The petitioner, therefore, suggested to this Court that he would make an application for a licence for the year 1961 and in the meantime the petition might stand adjourned.
An order was thereupon made adjourning the petition sine die.
Thereafter the petitioner on February 4, 1961, made a fresh application for licence for dealing in paddy for the year 1961.
An order was made by the licensing authority on this application on April 1 1, 1961, in these terms : "Having regard to the existing licences in these areas (Mangaldai and Gauhati), and the quantity of food grains available therein,an further licence,, would be superfluous." In the result the petitioner was refused licence for the year 1961.
Thereafter, the petitioner under orders obtained from this Court amended hi,$ petition and now seeks to challenge the.
order of April 11, 1961.
The respondents to this petition axe the State of Assam and some of its officers including the licensing, authority 958 concerned, as also.
the Assam Co operative Apex Marketing Society, hereafter called the Apex Society.
As I have already said, the application for licence for 1961 was governed by the Licensing Order, 1961.
The dispute in this case mainly turns on cl.
(e) of paragraph 5 of this Order.
That paragraph is in these terms: .LM15 "In granting or refusing a licence under this Order, the licensing authority shall, among other matters, have regard to the following, namely: (a) the stock of foodgrains available in the locality for which the licence is required; (b) the number of persons who have applied for and those who, have been granted licences in respect of the foodgrains under this Order in the locality; (c) the business ordinarily carried on by the applicants (d) the past activities of the applicant as a licensee or business man/firm; and (e) whether the applicant is a cooperative society.
" It is not in dispute that in the areas to which the Licensing Order 1961, had been applied, licences to deal in paddy had been given to: various Co operative Societies which were subsidiaries of the Apex Society and no licence had been given to any private dealer.
The respondents say that these grants were duly made under cl.
(e) of paragraph 5 of the Licensing Order, 1961.
It is this action which forms the main grievance of the ,petitioner.
He puts his contentions on two grounds.
First, he says that cl.
(e) of paragraph 5 of the Licensing Order 1961 is ultra vires as it has no 959 relation, to, the object of the under which it was made.
Secondly, he says that in any event the Order has been applied.
in a discriminatory manner and with a view to create a monopoly in favour of the Apex Society to deal in paddy and the petitioner 's fundamental rights under articles 19(1)(g) and 14 have thereby been violated.
It does not seem to me that either of these two contentions is well founded.
I shall first consider whether paragraph 5(e) of the Order is ultra vires the Act.
Now it is important to note ,that the validity of the Act is not challenged.
It would follow that if the Order made under the Act is not ultra vires, it would be perfectly valid.
It is section 3 of the Act which enables the Orders to be made.
That section so far as relevant is in these terms section 3 (1).
If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, sup ply and distribution thereof and trade and commerce therein.
The object of the Act, therefore, is to maintain or increase the supplies of essential commodities which include foodgrains and to secure their equitable distribution and availability at fair prices.
Clause (e0 of paragraph 5 of the Licensing Order, 1961 certainly allows a co operative society to be Preferred.
in the matter of a grant of licence.
The question then is, would the object of the, Act be achieved if the trade in paddy is given to co operative societies ? I think it would.
A co operative society is one which has as its object the promotion of the, economic interests of its members in accordance with co operative principles : see section 4 of the 960 .
A society carries on business in accordance with co operative principles when it trades with its own members, the profit motive not being paramount in such business.
When, therefore, a licence to purchase paddy is given to a co operative society of growers, what happens is that the seller sells to a body of which he is a member.
The result is the virtual elimination of the middleman and a consequential reduction in the price.
The following observation,% from the judgment of this Court in Narendra Kumar vs The Union of India (1) are, to my mind, very apposite in the present context : "That middleman 's profits increase the price of goods which the consumer has to pay is axiomatic ' " (p. 389).
,,It has therefore been the endeavour at least in modern times for those responsible for social control to keep middlemen 's activities to the minimum and to replace them largely by co operative sale societies of producers and co operative sale societies of the consumers." (p. 390).
Therefore, I feel no doubt that if the purchase of paddy is left to growers co operatives and that is what cl.
(e) of paragraph 5 aims at rice,, which is husked paddy, can reasonably be expected to be made available to the consumers at a fair price.
That would serve the object of the Act and the clause cannot, therefore, be said to be ultra vires the Act.
Then it is said that cl.
(e) of paragraph 5 would result in creating a monopoly in favour of co operative societies and that would be illegal and also outside the object of the Act.
This contention also seems to me to be ill founded.
It seems to me that if paragraph 5 had contained only cl.
(e) directing preference being given to co operative societies in the matter of grant of licences and that is the basis on which the present contention is advanced that would not have made it bad.
The question (1) 961 of creating a monopoly does not really arise in such a case.
The Order may then allow one class only, namely, co operative societies, to do the business.
That would, as I have already stated, advance the object of the Act.
It would also however amount to a prohibition of others doing the business.
The only question then would be whether such prohibition would be reasonable under article 19(6).
That is how the matter appears to have been considered by this Court in two cases to which I will now refer.
The first is the case of Narendra Kumar(1) earlier mentioned.
There an order called the "Non ferrous Metal Control Order, 1958" had been issued under section 3 of the , as the Licensing Order now under consideration also was Clause (4) of the order there considered provided that no person could acquire any nonferrous metal except under a permit issued by the Controller in accordance with such principles as the Central Government might from time to time specify.
Subsequently, the Central Government enunciated certain principles for the grant of these permits in a certain communication to the Chief Industrial Adviser.
Under these principles, no permit could be issued to a dealer but it could only be issued to certain manufacturers.
The result was that the dealer 's trade was totally prohibited and only certain manufacturers were eligible for permits to carry on the trade of rolling non ferrous metals.
Certain dealers moved this Court under article 32 for a declaration that el.
(4) read with the principles formulated by the Government was bad as offending article 19(1)(f) and (g).
This Court held that (p. 387) : "It is reasonable to think that the makers of the Constitution considered the word "restriction" to be sufficiently wide to save laws 'inconsistent ' with article 19(1), or "taking away the rights ' conferred by the (1) ; 962 Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause.
There can be no doubt therefore that they intended the word restriction ' to include cases of 'prohibition ' also.
The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore be accepted.
" Having considered the facts of the case, the Court came to the conclusion that el.
(3) of the Order, the legality of which also had been challenged, and el.
(4) were valid provisions.
It observed that, (p. 390): "It must therefore be held that el. 3 of the Order.
even though it results in the, elimination of the dealer from the trade is a reasonable restriction in the interests of the general public.
Clause 4 read with the principles specified must also, be hold for the same reason to be a reasonable restric tion.
" I ought here to point out that the principles enunciated by the Government were held to be of no effect as they had not been issued in compliance with sub sections
(5) and (6) of section 3 of the, and on that basis petition was allowed and a writ was issued restraining the Union from giving effect to el. 4 of the order so long as the principles governing the issue of permits were not duly specified.
This however does not affect the force of the observations that I have earlier read from the judgment in the case.
It seems to me that these observations fully apply to the present case.
The order read with the policy statement though it resulted in a complete prohibition in trading by dealers and in the creation of what the petitioner would call a monopoly in favour of certain manufacturers was hold to be good as a reasonable restriction on the 963 dealer 's right to trade under article 19(6) and the Writ was: issued only because the formalities required for specifying the policy statement had not been complied with.
There is no defect in the issue of the Licensing Order, 1961, with which the present case is concerned.
Therefore, the only question would be whether such a prohibition of the trade of the dealers like the petitioner, if any, by the Licensing Order, 1961 would be reasonable in the circumstances of this case.
, The other case to which I wish to refer is Glass Chatons Importers & User 's Association vs The Union of India (1) decided by this Court on April 10, 1961.
That case arose out of a petition under article 32 by certain importers of glass chatons.
There, the Central Government had issued an order under the Import and Export (Control) Act, 1947, called the Imports (Control) Order, 1955, prohibiting the import of glass chatons except under a licence.
Paragraph 6 of the Order laid down a number of grounds on which the Central Government or the Chief Controller of Imports and Exports might refuse to grant a licence or direct any other licensing authority not to grant a licence.
The ground mentioned in el.
(h) of this paragraph was ,if the licensing authority decide to canalise imports and the distribution thereof through special or specialised agencies or channels.
" It appears that since 1958, licences had been granted to the State Trading Corporation.
No applications for licences had been, made by the petitioners or any other trader at any time since 1957.
It was however contended that so long as paragraph 6(h) of the Order remained, it was useless for the private traders to apply for licences.
The argument advanced on behalf of the petitioners was that paragraph 6(h) was void being in contravention of article 19(1)(f) and (g).
In regard to this argument this Court observed: (1) (W. P. 65 of 1959, unreported).
964 "It is obvious that if a decision has been made that imports shall be by particular agencies or channels the granting of licence to any applicant outside the agency or channel would frustrate the implementation of that decision.
If therefore a canalization of imports is in the interests of the genera l public the refusal of imports licences to applicants outside the agencies or channels decided upon must necessarily be hold also in the interests of the general public.
The real question therefore is : Is the canalization through special or specialized agencies or channels in the interests of the general public." The Court held that it was unable to accept the argument that a decision that imports shall be canalised is per se not a reasonable restriction on the right to trade.
On the facts of the case, the Court took the view that a decision to canalise imports of glass chatons was in the interest of the general public.
In this case, it had been contended that the Government was creating a monopoly in favour of the State Trading Corporation.
The Court hold that the period of permits granted to the State Trading Corporation having already expired, the question did not really arise.
But, as would have been noticed earlier, the Court really dealt with the same contention in deciding the validity of paragraph 6(h) of the Order.
This decision lends equally strong support to the view that preference directed to be given by cl.
(e) of paragraph 5 of the Licensing Order with which we are concerned to co operative societies, would not necessarily render it invalid.
I feel no doubt on the facts of the present case that a preference to co operative societies even if that resulted in the dealers being prevented altogether from dealing in paddy, would, be a reasonable restriction on the latter 's right of trade.
Assam is a deficit State in foodgrains.
It is the 965 duty of the State Government to see that the people living within its boundaries are supplied with adequate foodgrains and that at a reasonable price.
The If paddy is procured for the use of the consumers in the State through a co operative society, there is good reason, as already stated, to think that rice at a reasonable price would be available to the people of Assam.
I will later in detail discuss the structure and the activities of the co operative societies to whom licences had been granted.
What I will have to say there will amply establish that it was a reasonable step to have taken to put the trade in charge solely of the co operative societies.
I turn now to the petitioner 's second contention, namely.
that cl.(e) of paragraph 5 has been worked in a discriminatory manner so as to create a monopoly in favour of the Apex Society.
The first thing that I wish to observe is that licences have not been given for the year 1961 to the Apex Society but they have been given to a large number of primary co operative societies of growers.
I find it difficult, in any case, to appreciate how this can be said to create a monopoly.
It may amount to a prohibition of trade by some persons.
That however is a different matter with which I have already dealt.
I may state here that it appears that in 1960 the licences had been issued to the Apex Society, but that is not the situation now.
Whether what was done in 1960 was strictly legal or not is not a question that now arises, for we are no longer concerned with the licences for 1960.
I Before proceeding further, I think it right to I say a few things about the co operative societies with which we are concerned.
About 1957, the Assam Government sponsored the formation of the Apex Society.
I would like to remind here.
that it is one of the directive principles of the Constitution that co operative societies should be encouraged.
Now, the structure of the Apex Society is like a pyramid.
It appears to have three tiers.
On the top is the Apex Society.
Under it 966 come various.
primary marketing Co operative societies.
At the bottom rung are a large number of primary co operative service societies.
The membership of the marketing, societies consists mostly of cultivators and service societies, and of the service societies, mostly of cultivators.
The function of the Apex Society appears to be to co. ordinate the working of the subsidiary societies and to obtain moneys from the Co operative Apex Bank and there out make advances to the cultivators through the subsidiary societies, to help them in their cultivation.
The service societies procure from the growers the paddy grown by them I they can spare and realise the moneys advanced to them out.
of the price of the paddy purchased.
The money realised is duly passed on to the Apex Society.
The paddy collected is sold by the service societies to the marketing societies.
The marketing societies in their turn deliver part of the paddy to the Government for creating a buffer stock and the remaining quantity to mills for milling into rice, in both cases according to the directions of the Government.
The benefits derived from the whole scheme are obviously very large.
The middlemen are eliminated.
The growers being themselves members of 'the societies, participate in their profits whatever they are.
:This helps to keep down the price because a service society in passing on the paddy to the marketing society charges very little by way of profit and that profit is shared by the groweres who are its members.
This enables the growers to sell at a comparatively lower price.
The growers have further the advantage of loans from the Apex Society to help them in the Work of cultivation; these loans can be easily advanced and on liberal terms because their repayment is secured by.
,the process of purchase of the produce through the, service societies.
It would he reasonable to think that this.
would encourage cultivation and result in larger quantities of foodgrains , being produced.
That would also help to achieve the 967 object of the Act It may further be pointed out that each of these societies is a body corporate see s.18 of the Co operative Societies Act, 1912.
The societies form a net work over the entire surplus grain producing area of Assam, each working in its own area.
, A vast number of growers of foodgrains are the members of the primary.
marketing and service societies.
It is to these societies that the licences had been issued of which, a grievance is being made by the petitioner.
It appears that after the Apex and the subsidiary societies had been formed, the State Government with the concurrence of the Central Government decided on a policy of procuring paddy in certain specified areas only through these societies.
The State Government thereupon issued instructions to certain officers at the end of 1959 at procurement of paddy for the Kharif year 1959 60 would be made through the co operative societies.
It may be that it was for this reason that the licensing authority had stated in its order of February 17, 1930, earlier mentioned, that the petitioner 's application for a licence could not be considered.
I have now to remind that the Licensing Order, 1960 did not contain any provision enabling preference 'being given to a co . operative society in the grant of a licence.
This case however is not concerned any more with regard to a licence for the year 1960 or the validity of any order of the licensing authority refusing to grant the petitioner any licence for that year.
Returning to the contention that the power under paragraph 5 (e) of the Licensing Order had been exercised in a discriminatory manner, I wish first to observe that under the Order which I have already held to be good, the authority concerned in granting the licences was entitled to prefer a co operative society, and this is what, it has ,done.
Though the result may have been to prevent the petitioner from carrying on, the trade of purchasing and selling paddy, that, in my view is, in the 968 circumstances of this case, a reasonable restriction on his ' right to trade for that was necessary to secure for the people of Assam supply of foodgrains at a reasonable price and in adequate quantities: I have very grave doubts if the licensing authority was intended to act in a Quasi judicial capacity in the matter of granting licences.
It has to be remembered that the question before it was not so , much of the competing rights of various applicants or of any is between an applicant and the State.
The duty of the licensing authority was to advance the object of the Act in terms of the Licensing Order.
Its main consideration has to be to see that the licences granted by it helped to make foodgrains available at a fair price to the people of Assam.
The Act gave the powers for that purpose.
It is because this purpose is legitimate that the resultant prohibition of trading by private dealers is also legitimate.
I believe that the two cases I have earlier mentioned proceeded on the basis that the licensing authority was not a quasi judicial officer.
It is not necessary for me however to pronounce finally on this question.
It was contended that the licensing authority in granting the licence to the co operative society had only carried out the directions of the Government and had not acted independently.
I find no basis for this contention apart from the bald allegation of the petitioners which is denied by the respondent.
N directions by the Assam Government for the year 1961 have been produced.
The instructions to which I have earlier referred requiring the licence to be given to the co operative societies were confined to the year 1959 60.
That had no force in regard to the year 1961 with which we are concerned.
Those instructions cannot be taken as operating for all time to come for then the licensing authority 's order granting licences to a co operative society in future years will always have 'to be held to have been made under these instructions.
I am unable to take such a view of the matter.
As 969 already stated, the High Court had by its Order of August 10, 1960 asked the licensing authority to proceed in a quasi judicial manner.
There is no reason to think that the licensing authority had not observed this direction of the High Court.
It also seems to me reasonable to think that the Assam Government inserted cl.
(e) in paragraph 5 of the Licensing Order, 1961 in view of the judgments of the High Court of Assam to which I have earlier referred.
The Assam Government obviously intended that the licensing authority would in view of cl.
(e) give preference to the co operative societies.
Furthermore, section 4 of the Act provides that an order made under section 3 conferring powers on any officer or authority may contain directions to him as to the exercise of such powers.
In my view, for the reasons earlier stated, a direction in the Licensing Order to give preference to co operative societies would not be bad.
It seems to me that cl.
(e) of paragraph 5 of the Licensing Order, 1961 really amounts to such a direction.
It was not necessary after the Licensing Order, 1961 for the Government of Assam therefore to give any other direction to the licensing authority.
I do not think any question of violation of article 14 can be seriously pressed.
If the duty of the licensing authority was quasi judicial in its nature, then it is difficult to appreciate how it can be said that its decision would offend article 14.
In any case, it seems to me quite clear that the co operative societies form a class by themselves and a provision giving preference to such a class, would be a good provision because the object of the Act would be better served thereby for the reasons earlier mentioned; such provision would have a clear nexus with the object of the Act and therefore satisfy the test of article 14.
Looking at the matter from any point of view it seems to me that the Order of the licensing authority giving preference to the co operative 970 Societies is not open to any objection.
In my view that was a fair Order to have been made in the circumstances of this case.
I would for these reasons dismiss this petition.
MUDHOLKAR, J.
I agree with the judgment delivered by Sarkar, J. By Court In accordance with the opinion of the majority this Writ Petition is allowed with costs.
Petition allowed.

summary:
In exercise of the powers conferred by section 3 of the: Essential commodities Art, 1955, the Assam Government made the Assam Foodgrains (Licensing and Control) Order, 1961.
This Order provided that no person could do business in foodgrains including, rice and paddy, in wholesale quantities except under a licence issued thereunder.
Clause 5 of, the Order laid down in sub.
(a) to (e) matters which the licensing authority shall, among other matters, which have regard to in granting or refusing a license sub cl.
(e) being whether the applicant is a co operative society".
In 1959, directions had been issued to all, licensing authorities by the Government that the rights of monopoly procurement had been given to Apex Co operative Society.
The petitioner applied for a licence but was refused in view of the provisions of sub cl.
(e) of cl. 5 of the Order.
The petitioner challenged the order refusing the licence on the grounds: (1) that sub clause (e) was ultra vires 937 as ' it was beyond the powers granted to the State Government under section 3 read with section 5 of the Act, and (ii) that sub cl (e) had been applied in a discriminatory manner with a view to create a monopoly in favour of the Apex Co operative Society.
Held, (per C.J., Das and Ayyangar, JJ.), that sub cl.
(c) of cl.
5 of the Order was not ultra vires section 3 read with section 5 of the Act, but the impugned,order rejecting the application of the petitioner was bad as it infringed the rights of the petitioner guaranteed under Arts, 14 and 19 of the Constitution.
Section 3 of the Act authorised the making of an order to achieve two objects, for maintaining or increasing supplies of essential commodities and for securing their equitable distribution and availability at fair prices.
Sub clause (e) of cl. 5 of the Control Order,, 1961, which enabled the licensing authority to ' prefer a cooperative society in certain circumstances in the matter of granting a licence, was not unrelated to the objects mentioned in s.3 of the Act.
A co operative society may, by reason of the place which it occupies in the village economy of a particular area, be in a better position for maintaining or increasing supplies of rice and paddy and even for securing their equitable distribution and availability at fair prices.
Ramanlal Nagardas vs M. section Palnitkar, A. I.R. 1961 Guj.
38, distinguished.
Sub clause (e) permitted the licensing authority to give preference to co operative societies in certain cases but it did not.
have the effect of creating a monopoly in favour of co operative societies.
In the present case the licensing authority refused licence to the petitioner for the only reason and purpose of granting a monopoly to co operative societies; it had administered the law in a discriminatory manner and for the purpose of achieving the ulterior object of creating a monopoly in favour of co operatives which object was not within sub cl.
(a), The licensing Authority was influenced, not by considerations mentioned in cl. 5 of the Order, but by the instruction issued by the ' State Government to grant licences to cooperatives only.
It was not proper for the, Government to issue instructions to the licensing authorities when they were required to act according to the provisions of law.
Per Sarkar and Mudholkar,JJ.
Sub clause (e) of cl. 5 of the Order served the object of section 3 of the Act to maintain or increase the supplies of essential 'commodities and to secure their equitable distribution and availability at fair prices and Was not ultra vires.
Even it the Order allowed only one class, namely cooperative societies, to do the business and prohibited others.
it would; still advance the objects, of, the Act; and the prohibition of the others.
doing the business would amount.
to, reasonable restrictions under article 19(6).
938 Narendra Kumar vs The Union of india, (ISM 2 S.C.R. 375 and Glass Chatons Imports a Users ' Association vs The Union of India, (W.P. 65 of 1959, unreported), relied on.
The licensing authority had not exercised its power under sub cl.
(e) in a discriminatory manner in the prevent case.
The authority was entitled to give preference to a co operative society and that is what it has done.
Though the result of this preference was to prevent the petitioner from carrying on his business, it was in the circumstances, a reasonable restriction on his right as it was necessary for securing foodgrains at reasonable prices and in adequate quantities.
There were no directions given, by the State Government in 1961 to licensing authorities to grant licences only to co operative societies and it could not be said that the licencing authority had only carried out the directions of the Government and had not acted independently.
In fact, the Order itself carried a direction in sub cl.
(e) to give preference to co operative societies.
The co operative societics formed a class by themselves and a provision giving preference to such a class better served the objects of the Act, and had a clear nexus with the object of the Act and did not offend article 14.


judgement:
iminal Appeal No. 65 of 1959.
Appeal by special leave from the judgment and order dated January 9, 1959, of the Bombay High Court in Criminal Revision Application No. 1485 of 1958.
C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and T.M. Sen, for the appellant.
Nur ud din Ahmed and Naunit Lal, for respondent No. 1. 1961.
October 6.
The Judgment of the Court was delivered by SHAH, J.
This is an appeal by the State of Bombay against the order passed by the High Court of Judicature, Bombay, acquitting the respondents of offences punishable under sections 65(a)(1) and 66(b)(1) of the Bombay Prohibition Act XXV of 1949 hereinafter referred to as the Act.
The respondents are residents of Sehore a town in what was at the material time the territory of the State of Bhopal.
Respondent 1 is the brother of the owner of a concern which carries on business of manufacturing drugs, in the name and style of Rajkumar Laboratories, Sehore.
Prabhat Trading Company a firm carrying on business at Ahmedabad in the State of Bombay placed an order on January 26, 1955, with the Rajkumar Laboratories, for 4800 bottles of Mrugmadasav ' an Ayurvedic 18 preparation.
The Rajkumar Laboratories prepared the drug and as it contained rectified spirit, paid Rs. 3600 as excise duty to the Bhopal State.
A permit authorising export of the preparation out of the Limits of Bhopal State was also obtained on July 28, 1955.
A motor truck belonging to the second respondent was engaged for transporting the preparation from Sehore to Ahmedabad.
On July 29, 1955, Sub Inspector Shintre stopped the motor truck at Dohad a.
town in the State of Bombay The motor truck on examination was found carrying 7073 bottles of various sizes labelled "Mrugmadasav, Rajkumar Laboratories, Sehore.
" on the label was also printed the legend that the preparation contained 85.5% alcohol.
Respondents 1 and 2 who were accompanying the motor truck in a jeep in which also bottles of Mrugmadasav were found, were arrested.
Samples of the contents of the bottles were drawn and collected in the presence of Panchas and were sent to the Assistant Chemist, Drugs and Excise Laboratory, Baroda, for analysis and report.
Samples were also sent to the Principal of R. A. Poddar Ayurvedic college at Bombay.
The respondents and eight others were then prosecuted in the Court of the Judicial Magistrate, 1st class, Dohad, State of Bombay for offences punishable under SS. 65(a) and 66(1)(b) of the Bombay Prohibition Act XXV of 1949.
The Magistrate convicted the first respondent of offences under 88.
65(a) and 66(1)(b), the second respondent of offences under 8.
65(a) read with 8. 81 of the Bombay Prohibition Act, and four other accused with whom we are not concerned in this appeal, of certain offences.
The Court of Session at Panch Mahals at Godhra, in appeal, confirmed the order and sentence, but in exercise of its revisional Jurisdiction, the High Court of Bombay set aside the conviction and sentence passed upon the respondents and acquitted them.
The High Court held (a) that the State failed to prove that the contents of the bottles were liquor meant for consumption 19 as intoxicant and (b) that the State Government "could not validly come to the conclusion that the bottles contained intoxicating liquor without obtaining the opinion of the Board of Experts constituted under section 6A of the Bombay Prohibition Act.
Against the order of acquittal the State of Bombay has preferred this appeal with special leave.
It was the Case for the State that the bottles seized by the police, though labelled "Mrugmadasav", which is an Ayurvedic preparation indicated foruse in delirious fever and cholera, did not contain genuine Mrugmadasav but contained intoxicating liquor, import, transportation and possession whereof without a permit or licence under the Bombay Prohibition Act were prohibited.
H. P. Parikh, Assistant Chemist, Drugs & Excise Laboratory, Baroda, stated that on analysis, the samples were found to contain 75.55% to 79.97% V/V ethyl alcohol and that in his opinion contents of the bottles were not an "Asav" preparation.
In his opinion the liquid analysed was fit for use as intoxicating liquor and that it was not a standard preparation, though he could not say whether it was a medicinal preparation, he having no means of examining the other active ingredients.
M. Y. Lele Principal of R. A. Podar Ayurvedic College, stated that the principal constituent of Mrugmadasav is musk (Mrugmad), which has a characteristic and penetrating odour, and that he could not get any odour of musk out of the sample sent to him and that, in his opinion, the contents of the bottles were not Mrugmadasav at all.
He also stated that in about 6 1/2 seers of Mrugmadasav prepared according to the Ayurvedic formula there would be 20 tolas of musk and that the current market rate of musk was Rs. 60 to Rs. 80 per tola.
One Ansare, Excise Inspector of Sehore, was also examined on behalf of the prosecution.
He stated that the alcoholic proof strength of the liquid in the bottles was 150 and the percentage of alcohol therein was .855% V/V and that the rest was water.
The 20 witness deposed that the Mrugmadasav which was meant for export to Ahmedabad was manufactured under his supervision and that it was a "proprietary ayurvedic preparation of added alcohol", and that it was "not a genuine preparation of self generated alcohol".
To a question asked in cross examination, the witness stated that in his presence 50 tolas of rectified spirit were added to 4 tolas of musk and 2 tolas each of black pepper, jaifal, pipal and cinnamon.
This part of the statement of the witness was disbelieved by the trial Magistrate and by the Sessions Judge.
The Magistrate held on review of the evidence that the respondents had imported into the State of Bombay a preparation which contained a large percentage of alcohol which was not self generated that the preparation did not contain musk and that it did not conform to the standard formula of Mrugmadasav and that the preparation seized by the police was meant for internal consumption and as consumption thereof was likely to cause intoxication it was not exempt from the operation of sections 12 and 13 of the Act.
The Sessions Judge agreed with the Magistrate.
But the High Court disagreed with that view on the ground that the testimony of Lele, who relied solely upon his 'sense of smell" could not justify the conclusion that the liquor(l seized was alcohol meant for consumption as intoxicating liquor and that Parikh, who found on examination that the preparation seized contained 75% alcohol Was unable to state what the other ingredients were.
Section 2(24) of the Bombay Prohibition Act defines "liquor" as including (a) spirit of wine, denatured spirit, beer, toddy and all liquids consisting of or containing alcohol; and (b) any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purpose of the Bombay Prohibition Act.
Section 2(22) defines "intoxicant" as meaning any liquor, intoxicating drug, opium or any other substance, which the State Government may by notification in the official Gazette declares 21 to be an intoxicant.
Sections 12 to 24, in Chapter Ill of the Act, contain diverse prohibitions.
By section 12 it is provided that "No person shall (a) manufacture liquor; ( b) construct or work any distillery or brewery; (c) import, export, transport or possess liquor; or sell or buy liquor.
Section 13 provides that no person shall (a) bottle any liquor for sale; (b) consume or use liquor; or (c) use, keep or have in his possession any materials, still utensils, implements or apparatus whatsoever for the manufacture of any liquor.
These prohibitions have to be read subject to section 11 which, in so far as it is material, provides that notwithstanding the prohibitions contained in the Chapter it shall be, lawful to import, export, transport, manufacture, sell, buy, possess, use or consume any intoxicant in the manner and to the extent provided by the provisions of the Act or any rules, regulations or orders made in accordance with the terms and conditions of a licence, permit pass or authorization granted thereunder.
The prohibitions contained in ss.12 and 13 are also subject to restrictions contained in section 24A which was added by Bombay Act 26 of 1952.
In the Act, as originally enacted, the prohibitions contained in the various sections were, subject to section 11 absolute.
The validity of the Bombay Prohibition Act was challenged in the Bombay High Court, and that High Court declared certain provisions of the Act ultra vires (Fram Nusservanji Balsara vs State of Bombay(l).
Against the decisions of the High Court an appeal was preferred to this Court(2).
Fazal Ali, J., who delivered the judgment of the Court summarised his conclusions in so far as they are material to this appeal, as follows: In the result I declare the following provisions of the Act only to be invalid: (1) 1.
L. R. (2) The State of Bombay vs
F.N. Balsara ; 22 (1) Clause (c), of section 12, so far as it affects possession of liquid medicinal and toilet preparations containing alcohol.
(2) Clause (d) of section 12, so far as it affects the selling or buying or such medicinal and toilet preparations containing alcohol.
(3) Clause (b) of section 13, so far as it affects the consumption or use of such medicinal and toilet preparations containing alcohol." The Bombay Legislature there after enacted Act 26 of 1952 which by section 7 added s.24A, which as subsequently amended reads as follows: "Nothing in this Chapter shall be deemed to apply to (1) any toilet preparation containing alcohol which is unfit for use as intoxicating liquor; (2) any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor; (3) any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor; (4) any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor: Provided that such article corresponds with the description and limitations mentioned in section 59A: Provided further that the purchase, possession or use of any liquor or alcohol for the manufacture of any such article shall not be made or h d except under a licence granted under section 31A." By this addition, the prohibitions imposed by sections 12 and 13 were not to apply to toilet, medicinal, 23 antiseptic and flavouring extract, essence or syrup preparations containing alcohol specified therein.
The respondents contend that Mrugmadasau imported by them and found in their possession by the Sub Inspector of Police was a genuine Ayurvedic medicinal preparation; that in ay event, the State must prove that it was not a medicinal preparation; and that the burden lies on the State to prove their case that the importation and possession by the respondents of the contents of the bottles was in violation of the prohibitions imposed by sections 12 and 13 of the Act inviting as a consequence the penal provisions of sections 65 and 66 of the Act.
In a criminal prosecution, normally the burden lies upon the prosecution to prove all the ingredients which constitute the offence charged against the accused, and we are unable to agree with the submission of the Solicitor General that a different rule is indicate in the trial of offences under the Act.
It was for the State to prove that the substance seized, if a medicinal preparation, was not unfit for use as intoxicating liquor.
The State has even under the Prohibition Act to establish that the respondents had infringed the prohibitions contained in sections 12 and 13.
Undoubtedly, by virtue of section 24 a the prohibitions do not apply to certain categories of toilet, medicinal, antiseptic and flavouring preparations, even if they contain alcohol; but on that account the burden lying upon the State to establish in any given case in which it is alleged that the accused has infringed the prohibitions contained is sections 12 and 13 that the infringement was not in respect of an article or preparation which was not in respect of an article or preparation which was covered by section 24 A is not shifted on to the shoulders of the accused.
Section 24 A is in substance, not an exception; it takes out certain preparations from the prohibitions contained in sections 12 13 But the operation of section 24A does not extend to all medicinal, toilet antiseptic or flavouring preparations containing alcohol; even if the preparation 24 is a toilet, medicinal, antiseptic or flavouring preparation,if it is fit for use as intoxicating liquor the prohibitions contained in sections 12 and 13 will apply.
In order that the provisions contained in section 24A is attracted, the contents of the article.
even as a medicinal preparation has by the first proviso to correspond with the description and limitations" contained in section 59A i.e. no more alcohol shall be used in the manufacture of such article than the quantity necessary for extraction or solution of the elements contained therein and for the preservation of the article, and in case of manufacture of an article in which the alcohol is generated by a process of fermentation the amount of such alcohol does not exceed 12 per cent.
If alcohol in excess of the quantity prescribed by s.59A is found in the article, the provisions of section 24 A will not apply irrespective of the question whether it is fit or unfit to used as intoxicating liquor.
Again, the preparation, even if it is medicinal, toilet, antiseptic or flavouring, must to unfit for use as intoxicating liquor i e. it must be such that it must not be capable of being used for intoxication without danger to health.
If the preparation may be consumed for intoxication it would still not attract the application of section 24 A provided the intoxication would not be accompanied by other harmful effects.
A medicinal preparation which may, because of the high percentage of alcohol contained therein, even if taken in its ordinary or normal dose intoxicate liquor A medicinal preparation containing a small percentage of alcohol ma still be capable of intoxicating if taken in large quantities, but if consumption of the preparation in large quantities is likely to involve danger to the health of the consumer, it cannot be regarded as fit to be used as intoxicating liquor.
In the case before us, the preparation which is styled Mrugmadasau was sought to be passed off as a medicinal preparation.
If genuine, it could have 25 been used in the treatment of certain fevers and cholera.
The preparation, however, contained 75.5 ^ alcohol which is much in excess of the normal percentage of alcohol found in that preparation according to the standard Ayurvedic formula.
The other constituents of Mrugmadasav as given in Bharat Bhishag Ratnakar Part IV are honey, water and comparatively small quantities of musk, black pepper, cloves, nut meg and cinnamon, and these are not such as to create any harmful effects or danger to health.
From the evidence of Lele, it is clear, not withstanding the assertion to the contrary of Ansare (which is disbelieved by the Trial Magistrate and the Sessions Court) that the preparation seized could not contain any substantial quantity of musk.
Having regard to the market price of musk, which ranged between Rs. 60 to Rs. 80 per tola at the material time, it would be impossible for any manufacturer intending to do business as a seller of drugs to price a bottle of Mrugmadasav at Rs.1 12.0 per Lb.
When according to the standard formula it would contain about 4.% of musk and according to Ansare the preparation contained 8% of musk by weight.
Even according to the standard formula, the value of musk alone in one Ib.
Of Mrugmadasav would be from Rs.100 to Rs.140.
The preparation seized by the police, therefore, could not contain genuine musk in any substantial or even appreciable quantity.
The High Court did not rely upon the bare assertion of Lele because it was founded only upon the "sense of smell"; but the evidence of Lele is corroborated by the circumstance that musk could not be a constituent of the preparation, which was seized in the large quantity which it was claimed it contained.
The other constituents of the preparation, according to Ansare, are comparatively speaking harmless drugs and having regard to the large percentage of alcohol even if it be regarded as a medicinal preparation, though not a standard 26 preparation, which was medicinal, prima facie, it was capable of intoxicating taken in a normal dose in which any "Asav" may be consumed.
In any serious danger to health or concomitant deleterious effect.
In that view of the case it must be held that the preparation seized by the police was not saved by virtue of section 24 A from the prohibitions contained in sections 12 and 13 of the Act.
It is not the case of the accused and the burden of proving that case would lie upon the accused, that the importation or possession of the article seized was permitted under section 11 of the Act.
The High Court following an earlier judgement of the Bombay High Court in D. k. Merchant vs The State of Bombay (1), decided against the State also on the ground that the prosecution for the offences under sections 65 and 66 could not be maintained unless the State Government was satisfied after consulting the Board of Experts under section 6A that the article was intoxicating liquor.
In our view section 6A is not susceptible of the interpretation placed upon it by the High Court.
Section 6A provides as follows: "6A. (1) For the purpose of determining whether (a) any medicinal or toilet preparation containing alcohol, or (b) any antiseptic preparation or solution containing alcohol, or (c) any flavouring extract, essence or syrup containing alcohol, is or is not an article unfit for use as intoxicating liquor, the State Government shall constitute a Board of Experts.
(1) 27 (2) The Board of Experts constituted under sub section (1) shall consist of such members, not less than three in number, with such qualifications as may be prescribed.
The members so appointed shall hold office during the pleasure of the State Government.
(3) To members shall form a quorum for the disposal of the business of the Board (4) Any vacancy of the number of the Board shall be filled in as early as practicable: Provided that during any such vacancy the continuing members may act, as if no vacancy had occurred.
(5) The procedure regarding the work of the Board shall be such may be prescribed.
(6) It shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub section (1) containing alcohol is unfit for use as intoxicating, liquor and on such other matters incidental to the said question as may be referred to it by the State Government.
On obtaining such advice the State Government shall determine whether any such article is fit or unfit for use as intoxicating liquor or not and such article shall be presumed accordingly to be fit or unfit for use as intoxicating liquor; until the contrary is proved.
" By the first sub section a duty is cast upon the State Government to constitute a Board of Experts for the purpose of determining whether the medicinal, toilet or antiseptic preparations or flavouring materials containing alcohol are unfit for use as intoxicating liquor.
Sub sections (2) to (5) deal with matters purely procedural.
By sub section
(6) duty is imposed upon the Board to advise the State Government on the question whether any substance mentioned in sub section
( 1 ) containing alcohol is unfit for use as intoxicating liquor and on such other 28 matters incidental to the said question as may be referred to it by the State Government.
If the opinion of the Board is obtained, duty is imposed on the Government to determine whether the article is fir or unfit to be used as intoxicating liquor and on the determination so made by the Government a rebuttable presumption arises that the article is fit or unfit for use as intoxicating liquor.
Substantially, the section creates three distinct obligations: (1) upon the State to constitute a Board for the purposes specified in sub s.(1): (2) upon the Board, when consulted, to advise the State Government whether a substance mentioned in sub section (1) is unfit for use as intoxicating liquor ; and (3) an obligation on the State, when the advice of the Board is received, to determine whether the article is fit or unfit to be used as intoxicating liquor.
There is, however, no obligation expressly imposed upon the State in any given case to consult the Board of Experts, nor can such a provision be implied, and there is nothing in sections 65 and 66 which make the consultation with the Board a condition precedent to the institution of proceedings for breach of the provision of the Act.
Section 6A WAS Incorporated in the Bombay Prohibition Act by Act 26 of 1952 which also incorporated section 24 A.
In view of the judgement of this Court in Balsaras case (1) it was found that the Bombay Prohibition Act, in so far as it sought to impose restrictions and to provide penalties for infringement of those restrictions in respect of genuine medicinal, toilet, antiseptic preparations and flavouring extracts, was ultra vires.
The Legislature enacted section 24 A and restricted the prohibitions contained in sections 12 and 13 qua these preparations.
It also provided for setting up machinery for determining whether the preparations specified were unfit for use as intoxication liquor: but the Legislature did not impose any obligation upon the State to resort to the MACHINERY PROVIDED BY section 6A. By declining to avail itself of the machinery provided (1) The State of Bombay vs F. N. Balsara, [1951] section C. R .
682. 29 by sub section
(6) of section 6A, in cases which are not sent to the Board, the State may undertake an onerous burden, i.e. it will not be entinled to rely on the presumption arising under the last sentence of that sub section and will have affirmatively to establish the ingredients of the offence.
Consultation with the Board and the determination contemplated by 8.
6A would make the task of the State in a prosecution in respect of infringement of prohibitions regarding the liquor contained in ss.12 and 13 somewhat less onerous.
The State may in a prosecution for infringement of the prohibition contained in sections 12 and 13 rely.
upon the presumption, after resorting to the machinery under section 6A(6), but is not obliged to rely upon the presumption.
Imposition of a duty to constitute a Board for the purposes specified in sub section
(1), does lot involve a duty to consult the Board and imposition of a duty upon the Board to advise the State Government does not involve a duty to consult the Board in every case where a prosecution is sought to be launched in respect of any medicinal, toilet, antiseptic or flavouring preparation (containing alcohol.
The plea that because the Government of Bhopal had levied a duty on the preparation an(l had granted a permit, no offence was committed by importing and possessing the offending preparations in the State of Bombay has, in our judgment, no substance.
C which is a permit issued by the Government of Bhopal to export spirit, medicinal, toilet preparations and perfume containing Bhopal made spirit on payment, of duty in Bhopal State does not protect the importer of the preparation in another State against prosecution for an offence according to the law of that other State committed by the importation of such articles.
The export permit has not and cannot have extra territorial effect; it merely enables a person seeking to export preparation to do so.
The statement in Ext.
L, a letter by the Prabhat Trading Co. to 30 Rajkumar Laboratories, Sehore that the former ``hold a licence for possession and sale" without production of such licence, cannot be set up in set up in defence.
If it was the case of the respondents (and the burden of proving lay upon the respondents) that the importation and possession of the article was lawful in view of a licence issued under section 11, it was for them to produce the licence granted under that section.
None such having been produce, the defence is not available to the respondents.
Nor does the order of the Commissioner of Excise Department, Bhopal dated October 14, 1955 (Ext.
M) advising against the exportation to the State of Bombay by the manufacturers to in the State of Bhopal of proprietary spirituous preparations including Mrugmadasav or other Ayurvedic preparations which contain a large percentage of alcohol without getting the preparations classified for duty purposes assist their case.
It appears that in July , 1954 the Excise and prohibition Director of Bombay had addressed a letter to the Chief Commissioner of Bhopal informing that Officer that "28 restricted Asavas and Arishtas" mentioned in the list appended thereto were liable in the State of Bombay to duty at the rate of Rs 3 per Imperial Gallon of six reputed quart bottles and further requesting that Officer to issue instructions to manufacturers in the State of Bhopal that these preparations should not be exported to the State of a Bombay except on payment of the duty at the above prescribed rate to the credit of the State of Bombay and under cover of an export pass granted by the competent Excise authority of the District of export.
The list of restricted Asavas and Arishtas does not include "Mrugmadasav" and it expressly refers to "Ayurvedic preparations prepared according to Ayurvedic process containing self generated alcohol.
" There is nothing in the letter dated July 23, 1954, which may lend support to the contention of the respon 31 dents that they had on payment of excise duty been authorised to import "Mrugmadasav" and the prohibitions contained in sections 12 and 13 in respect of preparations containing alcohol were suspended, for the preparation is not one listed in the Schedule nor does it contain self generated alcohol.
We are of the view, therefore, that the prohibitions contained in 88.
12 and 13 operated in respect of the preparation seized by the police and that the payment of excise duty to the Bhopal State under the law in force in that State, for exporting the preparation from that State did not protect the respondents from liability to prosecution for infringement of provisions of the Bombay Prohibition Act XXV of 1949 within the State of Bombay.
We further hold that the High Court was in error in holding that the consultation with the Board under section 6A(G) of the Act was condition precedent to the launching of prosecution against the respondents.
We set aside the order passed by the High Court and restore the order passed by the Judicial Magistrate, 1st Class, Dohad, and confirmed by the Court of Session at Panch Mahals sentencing the respondent No. 1 to rigorous imprisonment for six months, and to pay a fine of Rs. 500 and in default of payment of fine to suffer rigorous imprisonment for three month, and respondent 2 to rigorous imprisonment for one month and to pay a fine of Rs. 300 and in default of payment of fine to uudergo rigorous imprisonment of one month and fifteen days in addition.
The order of confiscation of the property is also restored.
Appeal allowed.

dataset_name: IN-Abs

summary:
The respondents were charged with offences punishable under sections 65(a) and 66(1)(b) of the Bombay Prohibition Act, 1949, for violating the provisions of sections 12 and 13 of the Act.
The prosecution case was that the respondents brought in their motor truck into the State of Bombay from the adjoining State of Bhopal, bottles labelled Mrugmadasav, and that the bottles did not contain genuine Mrugmasadav, an Ayurvedic preparation, but only intoxicating liquor, import transportation and possession whereof without permit or licence under the Act were prohibited.
The Magistrate found that the bottles contained 75.50% alcohol much in excess of the normal percentage of alcohol used in preparing Mrugmadasav, according to the standard Ayurvedic formula 16 that it did not contain any appreciable quantity of musk essential in such a preparation, and that having regard to the large percentage of alcohol it was capable of being used for purposes of intoxication.
Accordingly he held that the preparation Was not saved by s 24A from the prohibitions contained in sections 12 and 13 of the Act,and convicted the respondents.
The High Court, however, acquitted the respondents on the grounds (a) that the State had failed to prove that the contents of the bottles were.
liquor meant for consumption as intoxicant, and (b) that the State could not validly come to the conclusion that the bottles contained intoxicating liquor without obtaining the opinion of the Board of Experts constituted under.
s 6A if the Act.
In the appeal filed by the State of Bombay with special leave the respondents pleaded that, in any case, as the Government of Bhopal had levied a duty on the preparation and had granted a permit, no offence was committed by importing and possessing the preparations in the State of Bombay.
^ Held:(1) that it was for the State to prove that the substance, if a medicinal preparation.
was not unfit for use as intoxicating liquor and to establish that the prohibitions contained in sections 12 and 13 of the Bombay Prohibitions Act, 1949, had been infringed, and that the burden of proof that infringement was not in respect of a preparation which was covered by s.24A was not shifted on the shoulders of the accused; (2) that if alcohol in excess of the quantity prescribed by s.59A was found in the article, the provisions of section 24A would not apply irrespective of the question whether it was fit or unfit to he used as intoxicating liquor; (3) that a medicinal preparation which may, because of the high percentage of alcohol contained therein, even if taken in its ordinary or normal dose intoxicate a normal person, would be regarded as intoxicating liquor within the meaning of section 24A, but such a preparation containing a small percentage of alcohol even though it might be capable of intoxicating if taken in large quantities, could not be regarded as fit to be used as intoxicating liquor within the meaning of that section.
(4) that a State may in a prosecution for infringement of the prohibitions contained in sections 12 and 13 of the Act rely upon the presumption after resorting to the machinery under s 6A(6), but these was no obligation upon the State in any given case to consult the Board of Experts under section 6A nor was consultation with the Board a condition precedent to the institution of proceedings for breach of the provisions of the Act .
17 D. R. Merchant vs The State of Bombay, (1958) Bom.
I, R. 1183, disapproved.
(5) that the payment of excise duty to the Bhopal State under the law in force in the State for exporting the preparation from the State did not protect the respondents from liability to prosecution for the infringement of the prohibition laws in force in the State of Bombay; and (6) that in the instant case the preparation though styled Mrugmadasav was not a genuine medicinal preparation and having regard to the large percentage of alcohol contained therein it was capable of intoxicating taken even in a normal dose, and was not saved by section 24A from the prohibitions contained in sections 12 and 13 of the Act.