C THIAGARAJAN Vs. STATE OF TAMILNADU

JUDGEMENT

(1.) SINCE the issue raised in all these matters is one and the same, they are being disposed of by this common Judgment.

(2.) WRIT Appeal No. 2943 of 2001 has been filed against the order of the learned single Judge, dated 01. 11. 2001, made in W. P. No. 11135 of 2001, in and by which, the learned Judge, following the earlier order of this Court, dated 21. 08. 2001, made in W. P. Nos. 2036 to 2038 of 2001, dismissed the Writ Petition along with two other connected Writ Petitions.

(3.) THE brief facts are as follows:-According to the petitioners, they are engaged in the manufacture of unrestricted Ayurvedha preparations of Asawas and Aristas in Kanyakumari District. The public in Kanyakumari District have been consuming Asawas and Aristas for specific ailments and as a tonic. Many in kanyakuamri District are hereditary Ayruvedha Vaidiyas. The preparations of Asawas and aristas are done as per the formulae prescribed in the Ayurvedha Pharmacopea-Shagasra yogam, the original of which has been in Malayalam. The preparations are made out of medicinal plant parts such as their flowers, leaves, nuts, stems, barks etc. and they are crushed in proportions, medicines added with water and the preparations undergo fermentation for a period of 30 days and periodically medicines are added to them. The preparations that do not undergo boiling process are Asawas and those that undergo boiling initially are Aristas and they are not obtained by distillation or by adding alcohol in which case alone the preparations would turn out to be restricted preparations containing high percentage of alcohol. By consumption of asawas and Aristas, there is no harm to the life or parts of the human body as it causes in the case of illicit preparations, which are made in different parts of the State or in other States. In 1955, the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 and its Rules came to govern the Ayurvedha Medicinal and Toilet Preparations. No upper limit of alcohol is prescribed for the preparations. Rule 2 (xix) read with Rule 60 read with the Schedule to the Rules provides a list of restricted preparations. As per Rule 2 (xx) read with Rule 60 all others are unrestricted preparations ie. , those that are not capable of being consumed as ordinary alcoholic beverages. As per Rule 64, Asawas and Aristas are the principal type of Ayurvedic medicinal preparations. As per Rule 53, periodical samples are taken by the officials of the Excise Department for analysis. As per Rule 60 (2), based on the reports, unrestricted preparations could be reclassified as restricted preparations by the Standing Committee constituted under Rule-68. The licensing provisions are in Chapter VI Rules 82-96. Section 3 (9) of the Tamil Nadu Prohibition Act defines the term ' liquor' as all those containing alcohol or consisting of alcohol. Since presence of any percentage of alcohol could make the preparations a liquor bringing under the purview of the Act, Section 16 of the Act exempts medicinal and Toilet Preparations containing alcohol, used as medicines and for scientific and industrial purposes, from the purview of the Act. The same Section provides for punishment for breach of the conditions of the exemption, as per which, the 1st respondent notified the regulations. According to clause 7, there is no restriction or regulation in respect of unrestricted preparations, the regulations having been imparted only on restricted preparations. Then, by virtue of the power under 54 (m) of the Tamil Nadu Prohibition Act, the Government is empowered to frame Rules for regulating the exempted items. Tamil Nadu Spirituous preparations (Control) Rules, 1984, in supercession of the earlier Government order, has been framed. Under Amendment Act 23 of 64, amendment has been brought in, seeking to govern the ayurveda, Homeopathy and Unani medicines as well, and Chapter IV-A has been introduced. The State Government could enforce this by notification and the Tamil Nadu Government enforced it around 1978. As per the drugs Rules, unrestricted Ayurveda preparations should not exceed 12% of alcohol. Schedule-T of the Rules prescribe the detailed equipment and accessories and technical personnel to be provided in an Ayurvedic manufactory and after verification of the equipment the drug licence is issued. In Kanyakumari district, the manufacturers have provided a manufactory as per the Drug Rules, with technical personnel as required by 2002 amendments. The samples of the preparations are periodically taken by drug officials. While thus there are enough regulations in the trade of manufacture of Asawas and aristas, in the past 3 years, L2 licenses for manufacture / sale are not granted or renewed and existing license of more than 100 licences in Kanyakumari District have been cancelled and the police are misusing the Tamil Nadu Spirituous Preparation (Control) Rules by arbitrarily interfering with the trade by arresting the persons in the trade, seizing the stock and launching prosecutions. Hence, the Writ Petitioners are before this Court.