RAMESHWARLAL HARLALKA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner in this case, who is a trader in edibles such as spices, has challenged the validity of the Prevention of Food Adulteration Act, 1954 on the ground, inter alia, that the Act contravenes the provisions of Articles 14, 19 (1) (f) and 19 (1) (g) of the Constitution of India and asks for a declaration of such invalidity of the Act and the rules made thereunder and also for an appropriate writ to restrain the respondents from enforcing the Act and the rules against the petitioner. The petition was filed on the 4th June 1964 and was subsequently amended to add paragraphs 11(a) and 11(b), which seek to explain the cause or action to support the petition.

(2.) The grounds of the alleged invalidity of the said Act are eventually confined to two only inasmuch as the ground under Article 19 (1) (f) has not been pressed. Before I enter into the merits of the said allegations as to unconstitutionality, the preliminary objections in Bar raised by Mr. Nani Kumar Chakraborty on behalf of the respondent must be disposed of. The first preliminary objection raised by Mr. Chakraborty is that the petition should be dismissed in limine and the Rule discharged on the ground that the petitioner obtained the Rule after suppressing a material fact, namely, that there had been two convictions of the petitioner under the Act on 16-1-62 and 17-6-64 and that from the second conviction as aforesaid the petitioner had preferred an appeal to this Court on 20-3-62 and such appeal was pending at the time when the petitioner moved the present petition for the Rule Nisi. It is also argued by Mr. Chakraborty that during the pendency of this Rule the appeal has been disposed of (on 4-12-69) and that since the petitioner has already availed of an alternative remedy he is not entitled to maintain a petition under Article 226 of the Constitution which is a discretionary remedy particularly because the question of unconstitutionality of the statute could have been raised in defence or as a plea in appeal in the criminal proceedings. It has, however, been laid down in various cases by the Supreme Court that the existence of an alternative remedy is not an absolute bar to relief under Article 226 where there has been a contravention of fundamental rights (Himmatlal v. State of Madhya Pra.); Bengal Immunity Co. v. State of Bihar, Zila Parishad v. Kundan Sugar Mills, Amroha; Collector of Customs v. Bava; State of Rajasthan v. Karamchand. It follows therefore that where there are allegations of infringement of a fundamental right in the petition which are not frivolous enough, a petition under Article 226 cannot be dismissed in limine on the ground of existence of an alternative remedy without going into the question of merits. It further follows, if the above proposition be correct, that the fact of suppression or omission to state in the petition anything about the existence of an alternative remedy or the petitioner having pursued an alternative course may not be taken to be such a suppression as would disentitle the petitioner to any consideration under Article 226 of the Constitution on the ground of fraudulent or reprehensible conduct as has been explained by the Court of Appeal in England in the case reported in (1917) 1 KB 486 (The King v. General Commrs. for the Purposes of the Income-tax Acts for the District of Kensington). The point which is to be determined by the Court where such an allegation is made is whether the Court which issued the Rule can be said to have been deceived. No question of deception arises if nothwithstanding a disclosure of such facts the Court might have been inclined to issue the Rule.

(3.) As to the petitioner having already availed of an alternative remedy it might be pointed out that the judgment of the Court of Appeal in the criminal case (Criminal Appeals Nos. 179 and 204 of 1964) D/- 4-12-1969 (Cal.) shows that the appeal was disposed of on the simple question as to whether the ingredients of the offence were proved and no question of unconstitutionality was raised. If that is so, I don't think that this Court can avoid going into the question of unconstitutionality as has been raised by the petitioner in this case.