THOMAS VAIDYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners in these writ petitions are manufacturers for sale of ayurvedic or allopathic medicinal preparations. They challenge the validity of S.12A, 56 A and 68A of the Abkari Act, Act 1 of 1077 and the Kerala Spirituous Preparations (Control) Rules, 1969, for short the Rules, passed in exercise of the power conferred by S.29 of the Abkari Act. They challenge the validity of the sections on the ground that the State legislature has no competency to enact them and the Rules, because they impose unreasonable restrictions upon the fundamental right of the petitioners to carry on their trade of manufacturing and selling medicinal preparations.

(2.) S.12A provides that no preparation to which liquor or intoxicating drug is added during the process of its manufacture or in which alcohol is self generated during such process shall be manufactured in excess of the quantity specified by the Commissioner, provided that in specifying the quantity of a medicinal preparation, the Commissioner shall have due regard to the total requirement of that preparation for consumption or use in the State. S.56A provides for the conviction and punishment of a per on who allows any preparation containing liquor or intoxicating drug to be consumed in his business premises otherwise than for the bona fide treatment, mitigation or prevention of any disease; or manufactures or stocks or causes to be manufactured or stocked any such preparation, other than a bona fide medicinal preparation, within the premises under his control. S.68A provides that the government shall appoint an Expert Committee consisting of the Drugs Controller, the Chemical Examiner to the Government, two representatives each one of them shall be a non official, of the Allopathic, Indigenous and Homeopathic systems of medicine appointed by the government, and an officer of the Excise Department not below the rank of Deputy Commissioner: and the Committee shall advise the Commissioner as to whether a medicinal preparation is a bona fide medicinal preparation or not; and as to the total requirements of medicinal preparations containing liquor or intoxicating drugs or in which alcohol is self generated during the process of their manufacture, for the whole of State

(3.) It was contended on behalf of the petitioners that Chap.4A of the Drugs and Cosmetics Act 1940 passed by Parliament provides for regulation of manufacture for sale of ayurvedic, sidha and unani drugs as also of other matters in respect of their production and sale, that the Central Legislature in enacting the provisions has evinced an intention to occupy the field, and that any legislation by the State on a matter covered by Chap.4A would be repugnant to the law enacted by the Central legislature and would be void. This argument is totally misconceived. In the first place the provisions of the Kerala Abkari Act are concerned with the import, export, transport, manufacture, sale and possession of intoxicating liquor and intoxicating drugs. Liquor is defined in S.3(10) of the Act; and it reads: