SHREERAM MEDICAL STORES Vs. STATE

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution by the proprietor of medical stores, doing business as chemist and druggist, is for the issue of a direction re raining the opponents from giving effect to, as against the Petitioner, the Notification No. 1323 -1095 -VIII, dated the 19th November 938 as amended from time to time (hereinafter referred to as the Notification) issued by the Government under Section 29(2) of the Central Provinces and Berar Prohibition Act, 1938 (hereinafter referred to as the Act), and from enforcing the terms and conditions of an authorisation issued under the Act permitting the Petitioner to deal in any sell spirituous medicines and toilet preparations under those conditions.

(2.) BEFORE stating the contentions of the Petitioner, it is necessary to refer to the material provisions of the Act and the Notification. By Section 6 of the Act the import, export, transport, possession, manufacture, sale purchase or consumption of liquor is prohibited except in accordance with the provisions of the Act of the terms of any rule, notification, order, licence or permit issued thereunder. The Act was amended in 1953 by the Madhya Pradesh Prohibition Amendment Act, 1953, which inserted new Sections 28 -A to 28 -I in the Act. Section 28 -A provides that 'nothing contained in Section 6 shall apply to any medicinal or toilet preparation not containing more alcohol than is reasonably necessary for the extraction, solution and dilution of the elements contained therein and for the preservation thereof". Sections 28 -B to 28 -G prescribe the procedure for the determination of the question whether any medicinal or toilet preparation contains more alcohol than the quantity permitted under Section 28 -A. If after in investigation in accordance with this procedure it it found that any medicinal or toilet preparation contains more alcohol than the quantity permitted under Section 28 -A, then under Sub -section (2) of Section 28 -B the Prohibition Commissioner is required to punish an order in the gazette declaring that such preparation shall be deemed to be liquor. Section 28 -H gives to the State Government the power to regulate sale of any tincture. It runs as follows:

(3.) IT was submitted by Shri Sen, learned Counsel appearing for the Petitioner, that the medicinal and toilet preparations, which the Petitioner was importing, stocking and selling were all those which did not contain more alcohol than the quantity permitted under Section 28 -A; and that these preparations were expressly exempted by Section 28 -A itself from the operation of Section 6 and thus from all the provisions of the Act and the rules made thereunder and consequently there could be no question of the Government exempting these medicinal and toilet preparations of the druggists or chemists like the Petitioner dealing with those preparations from all or any of the provisions of the Act or the rules made thereunder Learned Counsel proceeded to say that the question of granting an exemption under Section 29 of the Act could not arise unless and until the medicinal and toilet preparations were declared to be liquor in confirmity with the provisions of Sections 28 -B to 28 -F. It was also said that if any tincture did not contain more alcohol than the quantity premitted under Section 28 -A then to such a tincture Section 6 or any of the provisions of the Act and the rules would not be attracted and its sale could not be controlled by the Government by a notification under Section 28 -H. Learned Counsel urged that the Act and the Notification and the terms and conditions embodied in the authorisation issued to the Petitioner had, therefore, no application to the import, possession and sale by the Petitioner of all genuine medicinal and toilet preparations and the opponents were not justified in enforcing them against the Petitioner.