SUPER BOTTLING PAMANDAS NARANDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner before this Court is an agent selling soft drinks in the city of Rajkot. Feeling aggrieved by the order dated 19th January, 1989 made by the Superintendent of Prohibition and Excise, Rajkot, restraining the petitioner from selling the soft drink in the name of 'Fruit Beer' manufactured in the State of Rajasthan as being violative of the prohibition policy of the State of Gujarat, the petitioner has preferred the present petition.

(2.) It appears that a company running in the name and style of 'Perry Bottling Co.' manufactures a Carbonated drink and sells it in the name of 'Fruit Beer'. The petitioner being desirous of selling the said product in the local market at Rajkot, applied to the Superintendent of Prohibition and Excise for permission to sell the said product in the city of Rajkot. It is the claim of the petitioner that the drink in question is a sweetened carbonated water and is absolutely free from alcohol or any other intoxicating substance. However, since the brand name includes the word 'Beer' indicating an alcoholic drink, by way of abundant caution, the petitioner applied for permission which was refused on the ground that selling of the product would be in contravention of the prohibition policy of the State. Mr. Pandya has relied upon various certificates annexed to the petition indicating that the product in question is a sweetened carbonated water without fruit juice or pulp. It is totally absent of any alcoholic substance or any intoxicating substance. Mr. Pandya has submitted that infact the drink in question being non-alcoholic, the petitioner was not required to apply for permission to sell the same, nor was the refusal warranted. He has submitted that such refusal amounts to infringement of the petitioner's fundamental right of business guaranteed under Art. 19(l)(g) of the Constitution, He has relied upon the judgments of the Supreme Court in the matter of State of Bombay & Anr. vs. F.N. Balsara, ( AIR 1951 SC 318) and of Mohd. Faruk vs. State of Madhya Pradesh & Ors., ( AIR 1970 SC 93). He has also relied upon the judgment of this Court in the matter of Manoj Cold Drinks vs. State of Gujarat (Special Civil Application No. 1674/88, decided on 26th November, 1999, Coram : D.C. Shrivastav J.). He has submitted that the petitioner therein also had been refused permission to sell the 'Fruit Beer'. The refusal was quashed and set aside by this Court. The Court observed that- "Since 'fruit beer' under consideration did not contain any alcoholic substance incidentally no permission was required by the petitioner and if he under mistake applied for such permission it could not be refused mechanically without affording any opportunity of hearing to the petitioner as to what was the material to treat the contents as 'beer' having alcoholic substance". Mr. Pandya has submitted that the petitioner also is entitled to carry on his business without any interference or restriction. The above referred judgment in the matter of Manoj Cold Drinks be followed by this Court.

(3.) The present petition had come up for hearing before this Court (Coram : H.R. Shelat, J) on 28th September, 2000. The petitioner, in support of his submission had relied upon the judgment in the matter of Manoj Cold Drinks (Supra). However, on behalf of the State it was argued that in that case neither the counter-affidavit had been filed by the State, nor Sec. 24 of the Bombay Prohibition Act, 1949 (hereinafter referred to as 'the Act') was brought to the notice of the Court. Having considered the said argument, the learned Judge was of the view that the matter was required to be heard by the Larger Bench. It is under the said reference that the matter is posted before us for hearing.