MAHAVEER PRASAD Vs. STATE

JUDGEMENT

(1.) THIS is an application in revision by Mahaveer Prashad proprietor of Metro Hotel and Restaurant, Ganganagar against his conviction under sec. 19/54 of the Rajasthan Excise Act, 1950, (Act No. II of 1950) (hereinafter called the Act).

(2.) ON 22nd January, 1959, the Government of Rajasthan in pursuance of the provisions of sub-sec. (4) of sec. 19 of the Act issued the following Notification No. F. 3(II)SR/50 dated 20/30th June, 1951 : "The Government of Rajasthan hereby directs that notwithstanding any thing contained in subSecs. (1), (2) and (3) of the said section, no person shall take into or keep upon, any premises used as restaurant in the whole of the State of Rajastnan except Abu area any quantity of liquor unless such premises have been licensed for the consumption of liquor thereon under the said Act or Rules made thereunder. Explanation - "Restaurant" means any place to which the public are admitted for the consumption of food or drink, for consideration." Sec. 19 of the Act prohibits possession of excisable articles in excess of the quantity prescribed by the State Government, and is as follows : "19. Possession of excisable article in excess of the quantity Prescribed by the Government prohibited except under permission - (1) No person not being licensed to manufacture, cultivate collector sell any excisable article shall have in his possession any quantity of such article in case of such quantity as the Government has, under sec. 5, declared to be the limit of sale by retail except under a permit granted by the Excise Commissioner (or by an Excise Officer duty empowered) in that behalf. (2) Sub-sec.(1) shall not extend to - (a) any foreign liquor (other than denatured spirit) in the possession of any common carrier of warehouse man as such, or (b) any foreign liquor which has been purchased by any person for his bonafide private consumption and not for sale. (3) A licenced vendor shall not have in his possession at anyplace other than that authorised by his licence any quanity of any excisable article in excess of such quantity as the Government has under sec. 5 declared to be the limit of sale by retail except under a permit granted by the Excise Commissioner (or by an Excise Officer duly empowered) in that behalf. (4) Notwithstanding any thing contained in the foregoing sub-section the Government may by notification in the Rajasthan Gazette prohibit or restrict the possession by any person or class of persons, or subject to such exceptions as may be specified in the notification, by all persons in Rajasthan or any specified area or areas thereof of any excisable articles either absolutely or subject to such conditions as it may prescribe." By virtue of sub-sec. (4) the State Government is empowered to prohibit or restrict possession of any excisable articles either absolutely or subject to such conditions as it prescribes in these parts of the State of Rajasthan where the Act extends or any specified area or areas thereof by any person or class of persons or by all persons subject to such exception as may be specified in the notification. By the notification dated 22nd January, 1959 the State of Rajasthan prohibited the taking into or keeping upon, any premises used as restaurant in the whole of the State of Rajasthan except Abu area any quantity of liquor unless such premises have been licensed for the consumption of liquor thereon under the Act or rules made thereunder. It is not in dispute that some bottles of liquor were recovered from the restaurant of the petitioner. The contention however, is that the above mentioned notification is ultra vires of the Rajasthan Government, inasmuch as the premises where the liquor is alleged to have been found do not come within any specified area or areas under sec. 19(4) of the Act. It is alleged that what the notification does is to prohibit the taking of liquor into a class of premises generally which premises are being used for the purpose of the consumption of food or drink by the public for consideration. It is on this ground that the conviction of petitioner is sought to be set aside. In support of the argument reference was made to Diamond Sugar Mills Ltd. vs. State of Uttar Pradesh(l).