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Judgment
S. Jagadeesan, J.—The question involved in all these writ petitions is the validity of Rule of the Tamil Nadu Spirituous Preparations Control
Rules 1984 (hereinafter referred to as - ''State Rules''). The Petitioners are engaged in manufacturing or distributing agents of Jevakarishtam,
Amirtharishtam, Kanakasaram and Dasamoolarishtam which are all ayurvedic medicinal preparation. They obtained the necessary licence, as
contemplated and required under the Drugs and Cosmetics Rules 1940. After the framing of the Tamil Nadu Spirituous Preparations (Control)
Rules, 1984, the State Government insists the Petitioners to take a licence under Rule 11 of the Sate Rules.
These writ petitions have been filed for the issue of a writ of Mandamus, directing the Respondents to forbear from enforcing the provisions of
the Tamil Nadu Spirituous Preparations (Control) Rules, 1984, as well as forbearing the Respondents or their subordinate officials from in any
manner interfering with manufacture of unrestricted ayurvedic medicinal preparation under the licence issued by the authorities governed by the
Drugs and Cosmetics Rules 1940.
The grievance of the Petitioners is that when they have taken the necessary licence under the Drugs and Cosmetics Rule 1940 and as such there
is absolutely no necessity to take any licence under the State Rules. The preparation of Ayurvedic medicines are governed by the Drugs and
Cosmetics Rules and hence the compulsion on the Petitioners to take the licence under Rule 11 of the State Rules is contrary to law.
The Respondents have filed counter affidavit contending that the Drugs and Cosmetics Rules governed the preparation of Ayurvedic medicines,
when such Ayurvedic medicines contain the Ingredient of alcohol either of self-generated one or otherwise then the state Government has
jurisdiction to control the trade. The state rules are with regard to the Ayurvedic medicines containing alcohol which is a State subject. The licence
as contemplated under Rule 11 of the State Rules Is necessary and being in force so that the State Officials can have the control over the permitted
quantity of the alcohol contents in such ayurvedic medicines. In case the alcohol contents exceeds the permitted quantity, it is open to the state
authorities to initiate proceedings under the prohibition Act.
Mr. Selvaraj, the learned Counsel for the Petitioners contended that the Tamil Nadu Spirituous Preparations (Control) Rules 1984 is ultra vires
and cannot be enforced, as the State Legislature is incompetent to make any rules pertaining to the subject with which already the Parliament has
made Rules. Since the preparation of ayurvedic medicines is governed by the Drugs and Cosmetics Rule, the State Rules are ultra vires of the
provisions of the Drugs and Cosmetics Rules enacted by Parliament and hence the same cannot be enforced.
It may be worthwhile to refer the salient features of the relevant Rules under both the central as well as the State Rules, Section 3(a) of the
Drugs & Cosmetics Act, 1940, defines Ayurvedic, Siddha or Unani drug which is as follows:
Ayurvedic, Sidha or Unani drug includes all medicines intended for internal or external use for or in the diagnosis, treatment, Mitigation or
prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in, the
authoritative books of Ayurvedic, Siddha and Unani Tibb system of medicine, specified in the first Schedule.
Sections 20 to 23 of the said Act deals with the Government Analysts, the Inspectors empowered to inspect the licensed premises and their
powers as well as the procedure to be followed by them. Section 33-E deals with the misbranded drugs, Section 33-EE deals with the adulterated
drugs. Section 33-EEA deals with the spurious drugs. Section 33-EEB envisage that no person shall manufacture for sale or for distribution any
Ayurvedic, Siddha or Unani drug except in accordance with such standards, if any as may be prescribed in relation to that drug. Section 33-EEC
deals with the prohibition of manufacture or sale of certain Ayurvedic, Siddha and Unani drugs. Section 33-I deals with the penalty for the
contravention of any of the provisions of the Act. The Drugs and Cosmetics Rules, 151 to 160 deals with the requirement of the licence for each
premises, the Licensing Authority, the conditions of the licence as well as the conditions for the renewal of the licence and cancellation or
suspension of licence in case of contravention of the conditions. Rule 161 under Chapter 17 deals with the labelling, packing and limit of alcohol
contents in Ayurvedic, including Siddha or Unani Drugs.
The provisions, Sections 33-B to 33-N of the Drugs and Cosmetic Act, 1940 was inserted by the Central Act 13 of 1964 which came into
effect from 1.2.1969. By way of Chapter IV-A the words Ayurvedic, Siddha and Unani Drugs in Section 33-B were substituted by Central Act
68 of 1982 with effect from 1.2.83. The concept of these provisions had been referred above.
The Tamil Nadu Spirituous Preparations (Control) Rules, 1984 came into force from 29.8.84. Clause (b) of Section 3 defines ''Alcohol'' Clause
(c) defines ''bonafide medicinal preparation'' Clause (i) defines ''medicinal preparation'' includes all drugs (Except medicated wines) containing
alcohol or any intoxicating drug, which are a remedy or prescription prepared for internal or external use of human beings or animals and all
substances intended to be used for or in the treatment, mitigation or prevention of diseases in human beings or animals under various systems of
medicine namely, Allopathic, Homeopathic Ayurvedic, Siddha or any other Indian system of medicine Clause (j) defines ''restricted preparations''
as follows.
restricted preparations"" means spirituous preparations that are intended for internal consumption and containing more than 18% v/v of alcohol and
medicinal preparations containing intoxicating drugs ""provided that all ayurvedic preparations containing self generated alcohol and classified as
restricted preparations"" under the Medicinal and Toiled Preparations (Excise Duties) Rules 1959 shall be treated as restricted preparations for the
purpose of these rules
Clause (K) defines ''Spirituous preparations'' as follows:
(i) any medicinal or toilet preparation containing alcohol whether self-generated or otherwise, or any intoxicating drug; or
(ii) Any other substance containing alcohol or intoxicating drugs, whether self- generated or otherwise, notified under Rule 5 to be a spirituous
preparation.
Clause (1) defines ''spurious preparation'' as follows ""spurious preparation"" means any medicinal or toilet preparation containing alcohol or
toxicating Drug which....
(i) In the case of those purported to be a preparation manufactured according to a pharmacopoeia, does, not conform to the formula laid down in
the pharmacopoeia approved by the Government of India or the Government of Tamil Nadu.
(i) in the case of those claiming to be patent or proprietary preparations, does not conform to the formula approved by the Government of Tami''
Nadu and
(ii) containing any substance which when swallowed, inhaled or injected into a human being produces intoxication, drowsiness, sleep, stupefaction
of in consibility, but not approved as a bona fide medicinal preparation by the expert committee. Explanation? Asavas and Arishtas or other
preparations containing alcohol which is only self-generated shall be deemed as spurious preparations if the alcohol content of any such preparation
exceeds 10 percent by volume unless otherwise declared by the expert committee.
Rule 4 of the Rule deals with the application of the Rule to medicinal, toilet or other spirituous preparations as defined in these rules. The proviso to
Rule 4 makes it clear that these Rules shall not affect the operation of the Medicinal and Toilet preparations (Excise Duties) Act 1955 (Central Act
16 of 1955) and the Medicinal and Toiled Preparations (Excise Duties) Rules, 1956 made thereunder and apply to medicinal and toilet
preparations which are the property of the state Government or the Government of India. Rules 11 contemplates the license for sale. Sub-rule 1
(a) deals with the wholesale licence and (b) deals with retail license as follows:
Licenses for sale:
(1) Licenses for the sale of spirituous shal1 be of the following descriptions, namely,
(a) Wholesale licence?
Wholesale Licensee in Form S.P.XI shall be issued by the collector-for sale of allopathic medicinal preparations to those holding licenses in forms
20-B and 21-5 under the Drugs and Cosmetics Rules, 1945
(i) for sale of any homeopathic medical preparation or any preparation coming under the indigenous system of medicine to a registered medical
practitioner or to those holding licence in Form LI or L2 Under the Medical and Toilet Preparations (Excise Duties) Rules 1956 or a licensee
under the Drugs and Cosmetics Act, 1940 (Central Act XXIII of 1940) and (iii) for sale of other preparations to those possessing such
qualifications as may be specified by the commission of prohibition and Excise.
(2) No wholesale licence shall be issued except on payment of a fee of Rs. 100 (Rupees one hundred only) for a years or part thereof.
(b) Retail sale licence,
(i) for sale of allopathic medicinal preparations, to those holding licenses in Forms 20 and 21 under the Drugs and Cosmetics Rules 1945.
(ii) for sale of any homeopathic medicinal preparation or any preparation coming under the indigenous system of medicine, to a registered medical
practitioner or to those recognized by the State Government or the Government of India as competent authorities for dispensing these preparations
to the public or to the holder of licence under the Drugs and cosmetics Act 1940 (central Act XXIII of 1940) and
(iii) for sale of other preparations to those possessing such qualifications as may be specified by the Commissioner of prohibition and Excise.
(2) No retail sale licence shall be issued except on payment of a fee of Rs. 25 (Rupees twenty five only) for a year or part thereof in case of a
licence for sale of allopathic medical preparations.
(3) Explanation - Sale by one wholesale licence to another for purposes of resale sale to medical officers for supply to their patients and sale to
hospitals, dispensaries, maternity homes and other institutions shall be deemed o be wholesales to the retail sales.
Sub-rule (3) envisages that all medicinal preparations containing alcohol or intoxicating drugs can be possessed or sold by registered dealers. The
other sub rules deal with the procedure for the issue of licence and the consequences of the non-observance of the terms of the licence.
Coming to the constitutional provision Entry 59 of List I of VII schedule deals with cultivation manufacture and sale for export of opium. Entry
84 details with the duties of excise on tobacco and other goods manufactured or produced in India, except
(a) Alcoholic liquors for human consumption
(b) Opium, Indian hemp and other narcotic drugs and narcotics but including, medicinal and toilet preparations containing alcohol or any substance
included in sub paragraph (b) of this entry. 8 of List II of schedule VII deals with the intoxicating liquors that is to any the production manufacture
possession, transport, purchase and sale of intoxicating liquors, Entry 51 of the same list deals with the Duties of excise on the following goods
manufactured or produced in the state and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere
in India:
(a) Alcoholic liquors for human consumption;
(b) Opium, Indian hemp and other narcotic drugs and narcotics, but not including medicinal and toilet preparations containing alcohol or any
substance included in sub- paragraph (b) of this Entry.
From the above Entries, it is clear that entry 84 deals with the Duties of excise on tobacco and other goods manufactured or produced in India
except alcoholic liquors for human consumption as well as opium Indian hemp and other narcotic drugs. Under Entry 51 of List II of VII Schedule
the State Government has power to levy Excise Duty on alcoholic liquors for human consumption and on opium, Indian hemp or other narcotic
drugs and Nordics, under Entry 84 of List I of VII Schedule the Union Government has the power to levy Excise Dut, on (a) tobacco and (b)
medicinal and toilet preparations containing alcohol or opium hemp or other narcotic drugs and narcotics.
Hence the learned Counsel for the Petitioners contended that since Entry 84 of List I empowers the central Government to levy Excise Duty on
medicinal and toilet preparations and a special enactment has been made for regulating the manufacture of medicinal and toilet preparations, the
State Government has authority to compel the Petitioners to take a licence under Rule 11 of the Tamil Nadu Spirituous Preparations (Control)
Rules 1984.
The main contention of the learned Counsel for the Petitioners is that Chapter IV of the Drugs and Cosmetics Act regulates the manufacture of
Ayurvedic Siddha and Unani Drugs. The Petitioners herein are engaging themselves in manufacturing or selling Ayurvedic medicines and as such
the said Rule framed by the Central Government govern the trade, the State Government has no authority to insist the Petitioners to take the
necessary licence under Rule 11 of the state Rules.
This argument of the learned Counsel for the Petitioners requires detailed consideration. If the taking a licence under Rule 11 of the State Rule
is considered as a requirement then the contention of the learned Counsel for the Petitioners cannot be countenanced. The Tamil Nadu Spirituous
Preparations (Control) Rules 1984 was framed subsequent to the introduction of chapter IV in the Drugs and Cosmetics Act, which is in the year
1983. The said Rules have been framed in exercise of the powers conferred by Section 4 of the Tamil Nadu Prohibition Act 1937. Sections of the
Tamil Nadu probation Act 1937 Prohibits the manufacture of traffic in, and consumption of liquor and intoxicating drugs. Sub-section (8) of
Section 3 of the Tamil Nadu Prohibition Act defines the ''intoxicating drug'' as follows:
(i) The leaves, small stalks and flowering or fruiting tops of the Indian home plant(cannabis satival) including alt forms known as bhang siddhi or
ganja.
(ii) Charas, that is the resin obtained from the Indian hemp plant, which has not been submitted to any manipulation other than these necessary for
packing and transport;
(iii) any mixture, with or without neutral materials, of any of the above forms of intoxicating drug or any drink prepared there from; and any other
intoxicating or narcotic substance which the State)
Government may by notification declare to be an intoxicating drug, such substance not being opium, cocoa leaf, or a manufactured drug, as defined
in Section 2 of the Dangerous Drugs Act 1930 (Central Act II of 1930)
Sub-section (9) defines ''Liquor'' as follows:
''Liquor'' includes toddy, arrack, spirits or wine denatured Spirits, wine beer and all liquid consisting of or containing alcohol, Explanation?
''Denatured'' means subjected to a process prescribed by the State Government by notification for the purpose of rendering unfit for human
consumption.
From the above provision it is clear that any one who involves himself or themselves in the manufacture of traffic in as well as consumption of liquor
and intoxicating drugs is publishable under the prohibition Act.
It is one thing to say that the Ayurvedic medicines contain alcohol, since the very ingredients utilised in the manufacture of Ayurvedic medicine,
by themselves generate alcohol and that is why the maximum limit of the contents has been prescribed under the Rules framed under the Drugs and
cosmetics. Act. If the contents of alcohol exceeds the prescribed limit, naturally those involved in the manufacturing of such Ayurvedic medicine are
liable to be prosecuted under the Drugs and Cosmetics Act for misbranding and not otherwise.
The question for consideration is whether that would prohibit the State Government from imposing any restriction or regulating the trade in such
Ayurvedic medicines requiring the traders to obtain the licence
It may be worthwhile to refer the judgment of the Supreme Court in the case of Southern Pharmaceuticals and Chemicals, Trichur and Others
Vs. State of Kerala and Others, The question arose for consideration in the said case is whether the enactment of the Medicinal and Toilet
Preparations (Excise Duties) Act 1955 by Parliament under Entry 84, List I of the Seventh Schedule of the Constitution or the framing of the
Medicinal and Toilet Preparations (Excise Duties) Rules 1956 by the Central Government in exercise of their rule making power u/s 19 of the Act,
for the purpose of laying duties of excise on medicinal and toilet preparations containing alcohol etc, would prevent the State Legislature from
making a law under Entry 8 List II of the Seventh Schedule to the Constitution with respect to intoxicating liquors or a law under Entry 51 List II
for levying excise duties on alcoholic requirements for human consumption. It has been held as follows:
There can be no doubt that the impugned Act is relatable to Entry 8 List II of the Seventh Schedule, in The State of Bombay and Another Vs.
F.N. Balsara, the Court held that expression ''liquor'' in Entry 31 List II of the Seventh Schedule to the Government of India Act, 1935 took within
its sweep all liquids containing alcohol. In dealing with the question, Fazal Ali J observed (at p. 325) The framers of the government of India Act
1935 could not have been entirely ignorant of the accepted sense in which the word ''liquor'' has been used in the various Excise Acts of this
country and accordingly, I consider the appropriate conclusion to be that the word ''liquor'' covers not only those alcoholic liquids which are
generally used for beverage purposes and produce intoxication, but also all liquids containing alcohol It may be that the latter meaning is not the
meaning which is attributed to the word, ''liquor'' in common parlance especially when that word is prefixed by the qualifying word ''intoxicating''
but in my opinion having regard to the numerous statutory definitions of that word such a meaning could not have been intended to be excluded
from the scope of the term ''intoxicating liquor'' as used, in entry 31 of List II. It is not disputed by the Appellants that the impugned act does act
levy a duty of excise on medicinal and toilet preparations containing alcohol, but they contend that whatever be the intention, the State Legislature
had in fact, encroached upon as occupied field The contention is in our opinion wholly misconceived, The main purpose of the impugned Act is to
consolidate the law relating to manufacture, sale and possession of intoxicating liquor and intoxicating Drugs which squarely falls under Entry 8 List
II of the Seventh Schedule while the main object of the Central Act is to provide for the levy and collection of duties of excise on medicinal and
toilet preparations containing alcohol falling under Entry 84 List I of the Seventh Schedule. When the Frame work of the two enactment''s is
examined. It would be apparent that the central and the state Legislation operate in two different and distinct fields In the matter of making rules or
detailed provisions to achieve the object and purpose of a legislation there may be some provisions seemingly overlapping or encroaching upon the
forbidden field, but that does not warrant the striking down the impugned Act as ultra virus the State Legislature.
From the above principle, it is clear that the State Legislature has jurisdiction to enact any law to achieve the object or the purpose of the legislation
Chapter IV-A of the Drugs, and Cosmetic Act deals with the issue of licence for the manufactures as well as the traders who are dealing with
the ayurvedic medicine, It is necessary that those persons who obtained the licence under the said Act or the Rules framed there under have to
comply with the conditions imposed in such licenses and also must comply with the requirements of the Rules and Regulations, The State
Legislature has enacted the Tamil Nadu Spirituous Preparations (Control) Rules mainly to prevent the spurious preparation of the Ayurvedic
medicine There is no dispute that the Ayurvedic medicines contain alcohol, There is also no dispute that alcohol is not added as an ingredient for
the medicine but in the manufacturing process alcohol is being self generated Hence it is necessary that the manufacturers have to restrict the
quantity of the raw material or manufacture of each of the Ayurvedic medicines in order to comply with the requirement of the rules with regard to
the maximum contents of Alcohol, In case If the percentage of alcohol contents exceed the maximum quantity prescribed under the Drugs and
Cosmetics Rules, then the prosecution can be only or misbranding when the contents of alcohol exceeds the maximum limit prescribed under law,
then it has to be construed that it is aspires preparation containing alcohol which falls within the definition of ''liquor'' as defined under Sub-section
(9) of Section 3 of the Tamil Nadu Prohibition Act.
Section 4 of the Tamil Nadu Prohibition Act prohibits the manufacture of liquor and intoxicating drugs, Hence the manufacturer or the trader
who engaged themselves in manufacturing or selling the ayurvedic medicine which contains alcohol in excess of the maximum percentage as
prescribed under the Act are liable to be punished under the Tamil Nadu prohibition Act. Hence it would be apparent that the Central and the
State Legislature operation in two different and distinct fields.
The contention of the learned Counsel for the Petitioner that the Rules framed by the State Legislature is repugnant to the Central enactment
cannot be sustained unless it is established that the State Legislature transgressed substantially on the field occupied by the Parliament, there is no
repugnancy.
20 This principle has been laid down in the case of State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, as follows:
A like question arose in a different from in Ch. Tika Ramji v. State of U.P. this Court rejected the challenge in that case against the constitutional
validity of the U.P Sugarcane (Regulation of Supply and Purchase) Act 1953 and the notifications issued there under It was held that the impugned
Act and the notification were intra virus the State Legislator as they were concerned with the regulation of the supply and purchase of sugarcane
which in no way trenched upon the exclusive jurisdiction of the Centre with regard to sugar No question of repugnancy under Article 254 of the
constitution could arise because parliament and the State legislated in different fields and dealt with separate and distinct matters even though of a
cognate and allied character. There is no inconsistency between the two enactments The provisions of Section 18-G of the IDR Act 1951 did not
cover sugarcane or indicate any intention on the part of parliament to hover the entire field of such legislation Raw material did not come within the
ambit of ''any article or class of articles or class of articles relatable to any schedules industry within the meaning of that Act'' The court further
pointed out that even if sugarcane was an article which fell within the purview of Section 18-G of the Act no order having been issued by the
Central Government under that provision, no repugnancy could dries, for repugnancy had to exit as a fact and not as a more possibility The
existence of an order covering the entire field was an essential pre-requisite to give rise to repugnancy
It may be worthwhile to refer another judgment of the Supreme Court in Kanyakumari District Sidha and Ayurveda Vaidyar Sangam and
another Vs. Government of Tamil Nadu and others, where the question arose for consideration is as to whether Rule 11 of the Tamil Nadu
spirituous preparation (Control) Rules is inconsistent with the Tamil Nadu Prohibition Act. The Learned Judges have held as follows
It cannot be disputed that power to frame such Rules, requiring the wholesale dealers and retail dealers to get licenses before dealing in indigenous
system of medicines must follow from the provisions of the Act under which such rules have been framed, Section 3(9) of the Act defines ''liquor''
spirits or wine (denatured spirits)Spirits, wine, beer and all liquid consisting of or containing alcohol.
Section 54 vests power in the State Government to make rules for the purpose of carrying into effect the provisions of the said Act, Clause (m) of
Sub-Section (2) of Section 54 says:
Clause (m) for the prevention of the use of the medicinal or toilet purposes and for the regulation of the use of any liquor of drug exempted from all
or any of the use provisions of this Act.
On a Plain reading Section 54(2)(m) enables the State Government to make rules for regulating the use of any liquor for medicinal or toilet
purposes.
We are not able to appreciate as to how in face of Section 54(2)(m) it can be held that the State Government Could not have regulated the use of
liquor which shall include alcohol in view of definition of liquor u/s 3(S) aforesaid. As already painted out above Rule 3(k) defines ''Spirituous
preparations'' to mean any medicinal or toilet preparations containing alcohol whether self-generated or otherwise or any intoxicating drug The
expression alcohol has already been defined in Rules 3(b) In this background if any wholesale or retail dealer is to soil any preparation which
contains alcohol whether self-generated or otherwise of any intoxicating drug, then he has to obtain licence as required by Rule 11 of the Rule
From reading the Rules it is apparent and obvious that they purport to regulate the sale of spirituous preparations and restricted preparations
through homeopathic or indigenous system of medicines. The restrictions imposed by the Rules are consistent with the provisions of the Act and
the State Government had authority to frame such Rules u/s 54(2)(m). On behalf of the Appellant it was pointed out that they are dealing in many
products of indigenous system of medicines and all of them do not contain alcohol, In other words majority of the medicinal preparations are
neither spirituous preparations nor restricted preparations containing any alcohol. This according to us, is of no significance or consequence. Once
it is found that the Appellants have been dealing and selling any medicinal preparation through indigenous system of medicines which can be held to
be restricted preparation or spirituous preparation then the provisions of the Rules shall be attracted and the Appellant can deal only on basis of
licenses being granted for the same The Notification through which the rules were notified as already mentioned above clearly indicate the object
and the reason for framing such rules The primary object is to regulate the sale of medicinal or toilet preparations containing alcohol and for
intoxicating drugs, which is consistent with the scheme and provisions of the Act i.e., prohibition of the manufacture sale and consumption of
intoxicating liquors and drugs in the state of Tamil Nadu.
From the principles laid down by the Apex Court in the above case it is clear that the power to frame Rules, requiring the wholesale dealers
and retail dealers to get licence for dealing in indigenous system of medicine flows automatically from the provisions of the prohibition Act.
It may not be out of place to mention that the condition to take the licence under Rule 11 of the Tamil Nadu Spirituous preparations (Control)
Rules was challenged on the ground that the persons like the Petitioner have to necessarily take licence under the Medicinal and Toilet Preparation
Rules and as such there is no necessity for them to take a separate licence under Rule 11 of the State Rules.
Such contention was repelled by a Division Bench of this Court in the judgment in Kanyakumari District Siddha and Ayurveda Vaidyar Angam
rep. by President v. The Government of Tamil Nadu W.A. 360/98 dated 19.3.1998 for which one of us (Viz E-Padmanabhan J.) was a party The
learned Division Bench has held as follows:
learned Counsel for the Appellant contends that law does not provide for any licence for unrestricted preparation for import export and
transportation because it does not include unrestricted preparations and by implication, the Authorities cannot import the definition of a restricted
preparation into the unrestricted preparation as no restriction is imposed on the unrestricted preparations being not debarred under the express
statutory provision Reading it otherwise would be an unreasonable restriction There is no dispute with the proposition of law but it is a question of
fact in each individual case, On appreciation of evidence the Authorities will determine whether the substance on which the licence is being
imposed or restriction is being imposed fall within the definition of a restricted preparation or it is not covered by the definition of a restricted
preparation, There cannot be any sweeping litmus test which can be laid down as an explanation for all the licenses by the Authority intended to
apply on the restrict preparation. The Appellant or the aggrieved person will be at liberty to challenge on a question of fact before the appropriate
Authority that the restriction imposed in on an unrestricted preparation and satisfy the Authority who will, on appreciation of the facts and
evidence, come to the conclusion that the restriction is on an unrestricted preparation. So far as Rule 11 is concerned the virus of which have
already been upheld it provides for the licence of the wholesale and retail licence for restricted and unrestricted while is the sole privilege of the
state as the state grants the privilege of the sale of liquor in favour of the individual we find no reason to come to a contrary conclusion as the virus
of the rules have been upheld by the Supreme Court thereby confirming that the licence is required for the restricted as well as the unrestricted
preparations, In view of the observations made above we confirm the finding of the Honorable Single Judge and find no ground to interfere in this
appeal.
The above judgment was followed by another learned single Judge viz., N.V. Balasubramanian, J. in Danieal Vaidyar & Thirunavukkarasu v.
Government of T.N. W.P 16133/91 & 2870/92 dated 17.4.2000 and dismissed those writ petitions.
From the above discussion, it is clear that the Central enactment, either Drugs and Cosmetics Act or the Medicinal and Toilet Preparation Act
as well as the Rules framed under both the Acts would govern the preparation of the medicine.
When it is admitted that the medicinal preparation of the Petitioners herein contain self-generated alcohol it would also fall within the definition
of ""liquor"" as defined u/s 3(9) of the Tamil Nadu Prohibition Act which is as follows:
Liquor"" includes toddy, arrack, spirits or wine, denatured spirit, wine, beer and all liquid consisting of or containing alcohol.
The above definition leaves no doubt that ail liquid consisting of or containing alcohol would be attracted within the definition. It is not as if this
definition excludes medicinal preparations or alike In such case as held by the Supreme Court as well as by the Division Bench of this Court,
followed by the learned single Judge, so long as the Petitioners are preparing liquid medicine containing alcohol even if it be self generated their
trade is to be restricted or regulated by the State Government. Hence it is necessary that they have to take the licence as contemplated under Rule
11 of the Tamil Nadu Spirituous Preparations (Control) Rules.
This is more essential because when the trade in liquor is being controlled or regulated by the State Government the State Government should
have necessary Jurisdiction or authority to exercise the same on all those who are trading in liquor. If no licence is taken by the Petitioners, then the
State Government cannot exercise any control over them or regulate though the Petitioners products or preparations or manufacture falls within the
expression ''liquor'' as defined under the prohibition Act.
As rightly pointed out by the Division Bench of this Court in W.A. 360/96 it is the individual cases to be considered as to whether the action
taken by the State Officials is correct or not. When that be the case, the contention of the learned Counsel for the Petitioners that the Tamil Nadu
Spirituous Preparations (Control) Rules is beyond the legislative competence cannot be countenanced
Wherever the permissive limit or percentage of the contents of alcohol in such medicines exceed, then it is an intoxicating liquor as defined in
the prohibition Act and only the State Government has authority to take action.
As pointed out by the Apex Court in Southern Pharmaceuticals and Chemicals, Trichur and Others Vs. State of Kerala and Others, the Tamil
Nadu Spirituous preparations (Control) Rules occupied totally a different field and never transgress the occupied field of the Central Government
either under the Drugs and cosmetics Act or the Medicinal and Toilet Preparation Rules.
For the reasons stated above, we, are unable to accept the contentions of the learned Counsel for the Petitioners We uphold the legislative
competence of the State Government in enacting the Tamil Nadu Spirituous Preparations (Control) Rules 1984.
Accordingly these writ petitions are dismissed with cost Consequently WMP No. 28460 of 2000 closed.