BISHAMBAR NATH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an application for a writ of mandamus to issue to the State Government and the Excise and Taxation Commissioner, Jullundur, requiring them to forbear from enforcing in this State the provisions of the Punjab Intoxicating Spirituous Preparations, Import, Export, Transport, possession and Sale Rules, 1952, contained in certain notifications. This application also contains a prayer that while declaring the rules and notifications as illegal, void and unenforceable the State and the Excise and Taxation Commissioner be ordered to allow the petitioner to exercise his right to possess, consume or use, import, export, transport and manufacture the articles mentioned in the application which are the subject-matter of the said rules and notifications.

(2.) THE matter arose in this way. The petitioner, Dr. Bashambar Nath, is a chemist registered under the Drugs Act, 1942 and has a business concern in Amritsar and carries on the trade of dispensing prescriptions and manufacture of medicines. He was arrested on 19th May 1952 and put up for trial before a Magistrate's Court in Amritsar for offences in contravention of the provisions of the Punjab Intoxicating Spirituous Preparations, Import, Export, Transport, possession and Sale Rules, 1952. It is alleged that the said notifications issued by the Excise and taxation Commissioner did not allow the sale by the chemist of Tincture Zingiberis and Tincture cardamomi to a certain extent in a calendar month except by a permit previously obtained in that behalf. It was alleged by the State that the petitioner had violated the rules of 1952 and had therefore come within Rule 22 (ii) which provided that any infringement of the provisions of these rules would be an offence under Section 61, Punjab Excise Act, 1914. The proper course for a person who is being prosecuted for the violation of some section or rule of an Act is to raise objection before trying Court for its decision on that point and to move this Court on revision if the decision goes against the petitioner or in the alternative to move this Court under Article 228 of the Constitution and to satisfy this Court that a case pending in a subordinate Court involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case and to request this Court to withdraw the case to itself and either to dispose of the case or to determine the question of law involved. The petitioner did neither of the two things. What he did do was that he put in an application for a writ under article 226 of the Constitution to have the rules and the notifications declared 'ultra vires'. We could have rejected the petition on the ground that the proper procedure had not been followed, but we thought it better to hear the petitioner and to treat the petition as if this Court had been moved under Article 228 of the Constitution.

(3.) MR. R. P. Khosla counsel for the petitioner urged that these rules were 'ultra vires' of the constitution, that the Act itself was 'ultra vires', that it denned liquor in a manner repugnant to the Constitution and that the prohibition of sale of Tincture Zingiberis and Tincture Cardamomi was made by an authority which could not be delegated under the Constitution and that in any case the prohibition of the sale was against Clauses (f) and (g) of Article 19 (1) of the constitution. The discussion on Clause (g) was dropped and the argument proceeded on three questions viz.-