J. Nageswara Rao vs The State of Madras

Venkatarama Aiyar, J.—The question that is raised for our determination in these applications is as to the validity of the provisions of the

Madras Prohibition Act, 10 of 1937, hereinafter referred to as the Act, in their application to medicinal preparations. The petitioner in W. P. no.

593 of 1952 is a practitioner of Indian medicine who has patented a medicine called ""Vitogen"" and he challenges the validity of an order passed by

the Government on 29-5-1952, declaring that ""Vitogen"" was liable to be taxed as ""medicated wine"". That order was passed under Notification

No. 473 dated 7-3-1949 which runs as follows:

In exercise of the powers conferred by Section 18-A of the Madras Prohibition Act, 1937 (Madras Act X of 1937) and of alt other powers

hereunto enabling, His Excellency the Governor of Madras hereby directs that medicinal preparations containing spirit self-generated from grapes,

grape-juice or raisins which are similar to medicated wines shall be included in the term ""medicated wines"" and duty shall be levied at Rs. 35 per

proof gallon on the spirit contained in such medicinal preparations permitted to be imported, exported, transported, manufactured issued from any

manufactory or institution or sold, under the provisions of the said Act or any rule, notification, licence or permit issued thereunder :

Provided that purely Ayurvedic preparations containing 20 per cent, or less of proof spirit self-generated as aforesaid shall be exempt from duty

and the decision of the Board of Revenue, Madras, arrived at in consultation with the competent medical authority appointed by the Government,

as to whether any medicinal preparation is or is not a purely ayurvedic preparation eligible for exemption from duty, shall be final."" Acting under

this Notification the Government of Madras decided in consultation with the Principal, College of Indian Medicines, that ''Vitogen'' was not a pure

Ayurvedic preparation, that it fell under the category of medicated wines'' and that it was liable for a duty of Rs. 35 per proof gallon of its spirit

contents. The petitioner made several applications to the Board of Revenue for cancellation of this order and by its final order dated 29-5-52,

which is now in question the Board declined to reconsider its previous orders. The contention of the petitioner is that ""Vitogen"" is a purely

Ayurvedic preparation and that it falls within the proviso to the Notification and that the order of the Government classifying it as ""medicated wine

was erroneous and should be set aside. He also contended that the provisions of the Act requiring licence to be taken for the manufacture and sale

of medicinal preparations were repugnant to Article 19(1)(f) of the Constitution and void. He accordingly prays for a refund of Rs. 10 paid as

licence fee.

The petitioner in W. P. No. 672 and W. P. No. 673 of 1952 is an Ayurvedic Doctor at Calicut. His complaint is directed against G. O. No.

1505 dated 7-4-1952, under which the licencees are required to pay a ''duty of Rs. 35 per proof gallon on ail pure Ayurvedic Asavas and

Arishtas containing more than 20 per cent, proof spirit.'' His contention is that this levy is illegal as it is within tile exclusive competence of the

Union. He also contends that the Act in so far as it relates to medicinal preparations is void and that the provisions as to licence are unenforceable.

The notification under challenge, in W. P. No. 672 of 1952 was modified by Notification No. 941, dated 18-11-1952, which provided ''inter

alia'' that a gallonage fee of Rs. 3 per bulk gallon should be paid on such of those preparations as are classified by the Board of Revenue as

potable. It is the validity of this Notification that is questioned in W. P. 149 of 1953. The petitioner is an Ayurvedic Doctor and the Managing

trustee of a Pharmacy called ""Arya Vaidyasala"" which is engaged in the manufacture and sale of Ayurvedic preparations. He contends that the levy

of the duty under Notification No. 941 Is illegal on the ground that it is beyond the competence of the State Government. He also attacks the

validity of the provisions of the Act relating to licences as unconstitutional and void.

On these contentions three points arise for determination:

a(1) Is the Act in so far as it relates to medicinal preparations void? And, are the provisions of the Act with reference to licences unenforceable?

(2) Is the levy of duty under the Notification dated 18-11-1952 ''ultra vires'' of the powers of the State?

(3) Is the order of the State declaring that ''vitogen'' is a medicated wine liable to be set aside?

(1) The statutory provisions bearing on this question are Section 3(9), Section 4, Section 16(1), Section 18, Section 23 and forms III-A, III-B

and III-C prescribed u/s 18 of the Act. Section 3(9) defines liquor as including all liquid consisting of or containing alcohol and that would take In

medicinal preparations, Section 4 generally prohibits the manufacture or traffic in and consumption of liquors. Section 16(1) provides ''inter alia''

that the State Government ''may by notification and subject to such conditions as they think fit, exempt any specified liquor or intoxicating drug or

article containing such liquor or drug from the observance of all or any of the provisions of the Act on the ground that such liquor, drug or article is

required for a medicinal purpose''. Section 18 confers authority on the Government to issue ''licences to any person or in respect of any institution

for the manufacture, export, import, transport, sale or possession of any liquor or article containing such liquor on the ground that such liquor or

article is required by such person or in respect of such institution for ''bona fide'' medicinal purpose''. Section 23 provides for the cancellation or

suspension of licences and is as follows:

Section 23: (1) The Collector may cancel or suspend any such licence or permit:

(a) if any fee payable by the holder thereof be not duly paid; or

(b) in the event of any breach by the holder of such licence or permit or by his servants or by any one acting with his express, or implied permission

on his behalf of any of the terms or conditions of such licence or permit; or

(c) if the holder thereof is convicted of any offence against this Act, or of any cognizable and non-bailable offence; or

(d) if the conditions of such licence or permit provides for its cancellation or suspension at will; or

(e) if the purpose for which the licence or permit is granted ceases to exist.

(2) The State Government may cancel or suspend any such licence or permit without assigning the aforesaid or any other reasons.

In exercise of the powers conferred by Section 18 the Government issued a Notification No. 792 dated 15-10-1937 prescribing forms of the

licences to be issued under that section.

Form III-A is termed ""Ayurvedic Practitioner''s licence"". It is intended to be issued to doctors who"" run their own dispensaries and administer

medicines to the patients there. It authorises the licence-holder to manufacture Indian Medicinal preparations known as Asavas and Arishtas. The

licensees are permitted to sell those medicines to their own patients. Accounts are to be maintained and a fee of one rupee is charged for the

licence. Form III-B is termed ""Ayurvedic pharmacy licence"" and it authorises the manufacture, possession and sale of all Asavas and Arishtas by

the licensees subject to the conditions prescribed therein. The fee charged is Rs. 10 per licence. Form III-C is called ""Ayurvedic depot licence for

import, possession and sale of ""Asavas and Arishtas"". It prescribes the conditions which have to be complied with by the licensee and the fee

charged is Rs. 5 per annum.

On these provisions, the contention of the petitioners is that while a law enacting prohibition might be valid, if it is limited to intoxicating liquors, it

would be bad, if it extends to medicinal preparations and that as the prohibitions enacted In Section 4 of the Act with reference to liquor must also

strike at medicinal preparations by force of the definition in Section 3(9) it would to that extent, be void as repugnant to Article 19(1)(f) of the

Constitution. The correctness of this position is beyond dispute, in view of the decision of the Supreme Court in the -- ''State of Bombay v. F. N.

Balsara'', AIR 1951 SC 318 (A). But that, however, does not answer the real question that arises for determination in these petitions. That

question is not, whether the prohibitions enacted in Section 4 are valid as regards medicinal preparations --that is not contended for; but whether in

view of Section 16 & Section 18, the statute should not be construed as merely providing for the regulation of medicinal preparations. If that is the

true character of the impugned legislation, it cannot be maintained that it is not valid. No question of the character debated in -- Fram Nusservanji

Balsara Vs. State of Bombay and Another, arises as to the competence of the State Legislature to regulate medicinal preparations in enacting a law

in respect of intoxicating liquors under Entry 31 in List II of schedule Seven of the Government of India Act, 1935. That the power to legislate on

intoxicating liquors includes the power to legislate on liquids which contain alcohol is now settled by the decision of the Supreme Court in '' AIR

1951 SC 318 (A). The following observations of Fazl Ali J. bearing on this question might be quoted:

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."" Vide also the observations to the same effect in Fram Nusservanji Balsara Vs. State of

Bombay and Another, '' and the decision of the Judicial Committee in--''Croft v. Dunphy'', AIR 1933 PC 16 (C).

The further question that arises for consideration is whether such a regulation is bad as contravening any of the constitutional limitations. That

there in need for such a regulation cannot be seriously disputed, starting with the position as eslablisued by the Supreme Court in ''AIR 1951 SC

313 (A),'' a law relating to prohibition will be valid with reference to intoxicating liquids, but would be void as regards medicinal preparations. If the

two subjects were wholly unrelated and if their respective fields were separate & distinct, a question of the kind now under discussion cannot arise.

But they overlap, there being several medicinal preparations which contain alcohol in varying degrees & it is this that constitutes the need for

regulating of medicinal preparations. While such preparations should on the one hand be immune from prohibitions relating to intoxicating liquors,

such immunity should not on the other hand be availed of as a means for evading those prohibitions. Therefore, a power to enact a law in respect

of intoxicating liquors must of necessity carry with it the power to regulate medicinal preparations. Such a regulation cannot be attacked as an

encroachment on the right of a citizen to acquire, hold and dispose of property, because its object is not to interfere with those rights, but to

prevent the evasion of prohibition laws under cover of those rights.

In America, the validity of such regulations has been repeatedly affirmed. In -- ''Purity Extract & Tonic. Co v. Lynch'', (1912) 57 Law Ed. 184

(D) the question related to the validity of a State law prohibiting the sale of malt liquors. In holding that it did not contravene the 14th Amendment,

Hughes J. observed: ""That the State, in the exercise of its police power, may prohibit the selling of intoxicating liquors, is undoubted. It is also well

established that, when a State exerting its recognised authority, undertakes to suppress what it is free to regard as a public evil, it may adopt such

measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a

transaction separately considered, is innocuous, it may not be included in a prohibition the scope of which is regarded as essential in the legislative

judgment to accomplish a purpose within the admitted power of the Government. It was competent for the legislature of Mississippi to recognise

the difficulties besetting the administration of laws aimed at the prevention of traffic in intoxicants. It prohibited, among other things, the sale of ''malt

liquors; In thus dealing with a class of beverages which, in general, are regarded as intoxicating, it was not bound to resort to a discrimination with

respect to ingredients and processes of manufacture which, In the endeavour to eliminate innocuous beverages from the condemnation, would

facilitate subterfuges and frauds and fetter the enforcement of the law. A contrary conclusion, logically pressed, would save the nominal power

while preventing its effective exercise.

In -- ''Ruppert v. Caffey'', (1919) 64 Law Ed. 260 (E), the question again related to a law prohibiting malt liquors: In affirming its validity, Brandeis

J. observed:

The decisions of the courts as well as the action of the legislatures make it clear or at least, furnish ground upon which congress reasonably might

conclude that a rigid classification of beverages is an essential of either effective regulation or effective prohibition of intoxicating liquors.

In -- ''Selzman v. United States'', (1924) 69 Law Ed. 1054 (P), the question was whether a law prohibiting the manufacture and sale of

intoxicating liquors could regulate the sale of denatured alcohol. In upholding the validity of the law, Taft C. J. observed:

The power of the Federal Government granted by the 18th Amendment, to enforce the prohibition of the manufacture, sale and transportation of

intoxicating liquor, carries with it power to enact any legislative measures reasonably adapted to promote the purpose. The denaturing in order to

render the making and sale of industrial alcohol compatible with the enforcement of prohibition of alcohol for beverage purposes is not always

effective. The ignorance of some, the craving and the hardihood of others, and the fraud and cupidity of still others, often tend to defeat its object.

It helps the main purpose of the Amendment, therefore, to hedge about the making and disposition of the deqa-tured article every reasonable

precaution and penalty to prevent the proper industrial use of it from being perverted to drinking it.

On the principles laid down in the above decisions, the conclusion follows that a statute relating to prohibition of intoxicating liquors can validly

regulate the manufacture, sale and consumption of allied products like medicinal preparations, not for the purpose of interfering with the rights of

citizens to acquire, hold or dispose of them, but for preventing them from being diverted from their true purpose and utilised for defeating the

provisions of the law relating to prohibition. If, therefore, the impugned provisions can be regarded as a proper regulation of medicinal

preparations, if their object is not to prevent their user as medicine but to prevent intoxicating liquors being passed off under the label of medicinal

preparations, then they must be held to be valid as being incidental to the enforcement of prohibition; That that is the true purpose of the regulations

will be clear from an examination of the licence Forms III-A, III-B and in-C prescribed u/s 18 of the Act. They contain conditions usual in licences

such as maintaining accounts and the licensees are entitled to carry on business subject to such conditions and to payment of a small licence fee.

No argument has been addressed to us that there is anything in the licences which is foreign to their true character. There is therefore no reason

why the impugned provisions should not be upheld as a licensing regulation.

It is, however, contended for the petitioners that the licences issued u/s 18 of the Act cannot properly be regarded as licences because that

section is consequential on exemption being granted u/s 16 of the Act; that on the terms of that section it is not obligatory on the part of the

Government to grant exemption; and that if the Government cannot be compelled to grant exemption -- as it cannot be, if it has a discretion in the

matter, then Section 18 cannot come into operation and will become a dead provision. If that is the correct position u/s 16 and u/s 18, it must be

conceded that it is not possible to give effect to them as a licensing regulation, for it is of the essence of such a regulation that whoever applies for a

licence must be entitled to get it as a matter of right, if he pays the requisite fee and complies with the other conditions. But if under the Act the

obtaining of a licence depends on the exercise of discretion by executive authorities, then it cannot be upheld as a licensing regulation. The question

then is, whether on its true construction Section 16 confers only a discretionary power on the Government to grant exemption or whether it

imposes on it a duty to do so.

The contention of the petitioners is based on the use of the word ""may"" in Section 16. That would in its ordinary acceptation import the

conferment of a discretionary power. But it is well settled that a provision which is directory in form might be mandatory in substance and that

whether it is the one or the other must depend on a number of things such as the declared object of the statute, the indications to be found in

various portions thereof, the persons for whose benefit the power is to be exercised and such other matters as might appear on the statute. On this

principle the word ""may"" has been construed as meaning ""must"" in decisions too numerous to be cited here. They will be found collected in

Maxwell on Interpretation of Statutes, 9th Edn. pp. 246 to 256. Craies on Statute law 5th Edn. pp. 264 to 265 and Swarup on Interpretation of

Indian Statutes, pp. 268 to 276. The law is thus summed up in Halsbury''s Laws of England, Vol. 31, paragraph 692, page 530:

Broadly speaking, it may be said that powers conferring jurisdiction on judicial body, provisions as to time in regard to procedure, and generally in

public statutes, enacting words where the thing to be done is for the public benefit or in advancement of public justice must be taken to have a

compulsory force.

A leading case on the subject is the decision of the House of Lords in -- ''Julius v. Lord Bishop of Oxford'', (1880) 5 AC 214 (G). Dealing with

this question, Earl Cairns L. C. observed:

The words ''it shall be lawful'' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which

there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty

or power. But there may be something in the nature of the tiling empowered to be done, something in the object for which it is to be done,

something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be

exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power

when called upon to do so.

Lord Penzance observed:

The words ''it shall be lawful'' are distinctly words of permission only -- they are enabling and empowering words. They confer a legislative right

and power on the Individual named to do a particular thing, and the true question is not whether they mean something different, but whether, regard

being had to the person so enabled to the subject matter, to the general objects of the statute, and to the person or class of persons for whose

benefit the power may be intended to have been conferred -- they do or do not, create a duty In the person on whom it conferred, to exercise it.

Lord Selbourne observed that the question as to the true import of the word ""is to be solved from the context, from the particular provisions, or

from the general scope and objects, of the enactment conferring the power"".

The question has, therefore, ultimately to be decided on a construction of the particular provision in its setting in the statute and in the light of the

indications furnished by the Act. That the intention of the statute was to exclude medicinal preparations from the operation of the Act is clear from

the preamble and Section 10 CD which was enacted for giving effect to this object must be construed in the light of the intention expressed in the

preamble and in such manner as to effectuate it. If Section 16 is to be read as directory, then it will defeat one of the declared objects of the

legislation. That the preamble is part of the statute and that it could be referred to for explaining or even enlarging the meaning of the words

occurring in the body of the statute is now well-settled. The position is thus stated in Halsbury''s Laws of England, Volume 31, p. 461, para. 558:

The preamble may now be regarded, like the title, as part of the statute for the purpose of explaining, restraining, or even extending enact-ing

words but not for the purpose of qualifying or limiting express provisions couched in clear and unambiguous terms.

in -- Poppatlal Shah Vs. The State of Madras, , the Supreme Court observed as follows:

The title and preamble, whatever their value might be as aids to the construction of a statute, undoubtedly throw light on the intent and design of

the Legislature and indicate the scope and purpose of the legislation itself."" Moreover, if the power to exempt medicinal preparations from the

operation of the Act was conferred on the Government in the interests of the general public, as obviously it has been, it is not consistent with that

purpose that its exercise should be made optional. There are therefore good reasons for construing Section 16 as throwing on the Government the

duty of exempting medicinal preparations and in that view ""may"" should properly be construed as meaning ""must"".

It is next contended that Section 16 and the licensing provisions dependent thereon must be held to have become void because that section is

based on the supposition that medicinal preparations are subject to the prohibitions enacted in Section 4 of the Act and if the legislation is void in

so far as it applies to such preparations, the section based on the supposition that they are within the operation of the Act must also become void,

because with the foundation, what rests on it must also disappear. To be considered as a valid regulation, the Act must, it is argued, first define

''liquor'' in such manner as to exclude medicinal preparations and then enact provisions for regulating them; whereas the Act has illegally included

medicinal preparations within the definition of ''liquor'' and has then sought to take them out by conferring on the Government a power to exempt

them and that makes, according to the petitioners all the difference in the validity of the provisions.

In considering this objection, it has to be remembered at the outset that the Act now under challenge is a pre-constitution enactment and the

principle that in judging of the validity of a statute, regard must be had to its substance and not to its form will apply with even greater force to such

an enactment. What then is the substance of the Act and the Notifications? It has been already mentioned that the preamble itself shows that the

intention of the Legislature was to exclude medicinal preparations from the operation of the prohibition relating to intoxicating liquor and that

Section 16(1) was enacted for giving effect to that intention.

It must be mentioned that the Act came into force on 1-10-1937. On 15-10-1937 the Government issued two Notifications Nos. 739 and 792.

No. 789 was u/s 16 of the Act and that exempted all medicinal preparations from the operation of the Act subject to payment of certain duties

specified therein; and notification No. 792 was u/s 18 of the Act prescribing the licence Forms III-A, III-B and III-C and their conditions. Thus

there was no appreciable period of time at which Section 4 was kept in operation without the Government exercising its powers u/s 16 and

providing for licences u/s 18. There can be no doubt as to what the legislative mind was. In enacting a prohibition law with reference to intoxicating

liquor, it intended to take out ''bona fide'' medicinal preparations out of the operation of Section 4 and introduced for that purpose a system of

licensing and when the Constitution came into force there was both the enactment and the Notifications under the Act all in operation as part of one

scheme of prohibition and regulation.

In -- ''AIR 1951 SC 318 (A)'', in deciding whether the Bombay Prohibition Act 25 of 1949 could be upheld with reference to intoxicating liquors,

when it had been held to be inoperative as regards toilet and medicinal preparations, the Supreme Court relied on the classification made in the

Notifications issued under the Act as showing that the subject-matter was severable, notwithstanding that the Act itself made no such

differentiation. The learned Advocate General also relied on certain observations in the judgment of Patanjali Sastri C. J. in -- The State of

Bombay and Another Vs. The United Motors (India) Ltd. and Others, as supporting the position that it is permissible to read the Act and the

Notifications made thereunder as constituting one single piece of legislation. After referring to the Bombay Sales-tax Act and the rules framed

thereunder, the learned Chief Justice observed:

The position, therefore, was that on the date when the general tax and special tax became leviable under the Act, sales or purchases of the kind

described under Article 286(1)(b) and (2) stood in fact excluded from taxation and the State of Bombay cannot be considered to have made a

''law imposing or authorising the imposition of a tax'' on sales or purchases excluded under the aforesaid clauses of Article 286. The Act and the

Rules having been brought into operation simultaneously, there is no obvious reason why the Rules framed in exercise of the power delegated by

the Legislature should not be regarded as part of the ''law'' made by the State."" It would therefore be legitimate to consider both the Act and the

Notifications together as they stood when the Constitution came into force and determine whether, so taken, they contravene any of the provisions

of the Constitution.

The question then is whether on a reading of the Notifications under Sections 16 and 18 and the licence forms along with Section 4, it could be

said that they encroached on the rights of a citizen as declared in Article 19(1)(f) of the Constitution. If the effect of these provisions is not to

interfere with the rights of a citizen, to acquire, hold and dispose of medicinal preparations, but to merely regulate them, then the objection that they

are in contravention of Article 19(1)(f) must fail. We have already held that it is obligatory on the part of the Government to exempt medicinal

preparations u/s 16 and to issue licences u/s 18. Though it was suggested that the petitioners experienced considerable inconvenience in complying

with the conditions of the licences, no contention was urged that any particular provision in the licence was unreasonable and repugnant to Article

19(1)(f); the attack was that the system as a whole was unconstitutional and void. The ground of the attack has no relation to the substance of the

provisions, it is rather metaphysical in character having reference to the ''modus operandi'' adopted by the State Legislature in including medicinal

preparations in the definition of ""liquor"" and excluding them by a process of exemption, instead of excluding them from the definition of ""liquor"" and

bringing them in by a system of regulation.

It is difficult to see how this mode of the legislative treatment of the subject could, in any way, prejudice the rights of the petitioners. Even if the

Legislature enacted a law limiting the prohibitions to intoxicating liquor and then providing for the regulation of medicinal preparations, the licences

prescribed thereunder must be of the same character as under the impugned legislation. The practical position of the licence-holder must be the

same whether the legislation takes one form or the other. Whether the statute proceeds on the basis of one theory or the other, the burden on the

licence-holder must be the same. In either case he has to pay the licence fee & carry on the business under the same conditions. Indeed it was

conceded by the petitioners that if the very licences which are now in question were to be reissued under a new legislation limited to regulation of

medicinal preparations, no exception could be taken to them. There is clearly, therefore, no substance in this attack.

It is next contended that the decision of the Supreme Court in -- ''AIR 1951 SC 318 (A)'', concludes this question in favour of the petitioners.

There, the point for determination was as to the validity of the Bombay Prohibition Act 25 of 1949. The Bombay High Court had held that as the

definition of liquors in Section 2(24) of the Act took in also non-beverages & medicinal & toilet preparations containing alcohol, it was beyond the

competence of the Legislature under Entry 31 in List II in Sch. 7, ''Government of India Act, 1935 and was therefore void. It also held that even if

the legislation was competent, it was unconstitutional in so far as it related to toilet s.nd medicinal preparations. A contention having been advanced

that it was open to the citizen to possess toilet preps-rations under a permit u/s 31 of the Bombay Act corresponding to Section 18 of the Madras

Act, the Court observed:

It is contended by the Advocate General that a citizen may possess eaudecologne or lavender water under a permit. But that is a restriction upon

the right of the citizen to acquire, hold and dispose of property, and in our opinion, that restriction is not reasonable. The same argument applies to

medicinal & toilet preparations containing alcohol. Therefore, we hold that to the extent which the Prohibition Act prevents the possession, use and

consumption of non-beverages and medicines and toilet preparations containing alcohol for legitimate purposes the provisions are void as offending

against Article 19(1)(f) of the Constitution.

(Vide Vrijlal Mansukhram and Others Vs. Chunilal Fatechand, . On appeal, the Supreme Court held that it was within the competence of the

Legislature to enact a law with reference to toilet and medicinal preparations under Entry 31 of List II, but agreed with the Bombay High Court

that the Act was repugnant to Article 19(1)(i) in so far as it related To them. Fazl Ali J. after quoting the passage in --- ''Pram Nusserwanji v. State

of Bombay'', (B), already extracted, observed:

I am substantially in agreement with the line-of reasoning adopted by the High Court and I consider that the Act is not a law imposing reasonable

restrictions so far as medicinal and toilet preparations containing alcohol are concerned."" The contention on behalf of the petitioners is that as the

material provisions of the Madras Act do not differ from those in the Bombay Act, the decision of the Supreme Court must be taken as decisive of

the present controversy and that the impugned provisions must be held to be obnoxious to Article 19(1)(f) of the Constitution.

Though the passages quoted above would, taken by themselves, appear to support the contention of the petitioners, a reading of the entire

Judgment of the Supreme Court and in particular the provisions of the Bombay Act which were held to be void, as set out at p. 331 show that the

court was not called upon to and did not in fact, decide the point now under discussion.

It must be noticed that the Supreme Court did not hold that because the definition of ''liquor'' in Section 2C24) included medicinal preparations

and toilet, all the provisions in the Act relating to them had become void. On the other hand, the court elaborately considered the question whether

the impugned provisions were in themselves reasonable or not; and they considered this question not merely with reference to the sections in the

Act. but also the Notification issued thereunder. They held that while under the definition of ""liquor"" in Section 3(24) the sweeping prohibitions

enacted in the Act applied to toilets and medicinal preparations, the Notifications issued under the Act had not substantially modified that position.

After a full examination of the several Notifications issued under the Act, Pazl Ali J. observed: ""Having given my careful consideration to the matter,

I am of opinion that the restrictions imposed by the Act even when read with the above notifications are not reasonable, and I would affirm the

conclusion arrived at by the High Court.

Par from supporting the contention of the petitioners that by reason of the inclusion of medicinal preparations within the definition of ""liquor"" the

provisions in the Act relating to them become void, without more, these observations, proceed on the view that notwithstanding that such inclusion

is void, the provisions could be upheld if they are reasonable in character.

Reference must now be made to the provisions in the Bombay Act which were actually held to be bad. They are set out at p. 331.

Out of them, it is only Sections 12(c). 12(d) and 13(b) that are material for the present contention. Sections 12 and 13 are as follows:

No person shall

(a) manufacture a liquor;

(b) construct or work any distillery or brewery;

(c) import, export, transport or possess liquor; and

(d) sell or buy liquor.

No person shall

(a) bottle any liquor for sale;

(b) consume or use liquor, or (c) use, keep or have in h;s possession any materials, still, utensil, implements or apparatus whatsoever-for the

manufacture of any liquor.

It will be seen that it is only these provisions which relate to trafficking in liquor or consumption thereof that were held to be bad. The question of

manufacture of medicines and its regulation which is the point now under consideration was neither raised nor decided. On the other hand Section

12(a) and (b) and Section 13(a) and (c) which relate to manufacture of liquor have not been struck down. Having examined the judgment carefully,

we are unable to see anything in it which compels us to hold that Section 18 of the Act and the licences issued thereunder should be held to be

void because of the inclusion of medicinal preparations in the definition of ""liquor"" u/s 3(0) of the Act, even though such licences arc reasonable.

There is one other provision in the Act whose validity the petitioners question. That is Section 23(2) which authorises the Government to

cancel or suspend a licence without assigning any reasons therefor. The contention is that the exercise of a fundamental right cannot be made to

depend on the unfettered discretion of executive authorities and that, therefore, Section 23(2) is unconstitutional. There is no dispute as to the

correctness of this contention and Section 23(2) must be held to be void. The result is that subject to this, the rest of the provisions will stand as a

reasonable regulation of medicinal preparations.

The next point for determination is the legality of the levy of duty under Notification No. 941 dated 18-11-1952. It has been already

mentioned that under Notification No. 789 dated 15-10-1937 all medicinal preparations were exempted from the operation of the Act subject to

the payment of specified duties. Under this Notification Ayuryedic preparations known as ""asavas"" and ""arishtas"" were exempted on payment of

Rs. 5 per proof gallon on the spirit contents in them. Section 18-A was inserted in the Act by an Amendment Act 19 of 1948 and that gave power

to the Government to impose excise duty or countervailing duty on all liquors. That was a subject within the competence of the State legislature

under entry No. 40 in List II in Schedule 7 to the Government of India Act. It was under this provision that Notification No. 473 dated 7-3-1949

which 1ms been already set out, was issued. That imposed a duty of Rs. 35 per proof gallon on all medicines containing self-generated spirit, they

being classed as ""medicated wine"". The proviso to the Notification exempted from its operation ""purely Ayurvedic preparations containing 20 per

cent, or less of proof spirit self-generated.

Then on 7-4-1953 G. O. No. 1505 was issued imposing a ""duty at Rs. 35 per proof gallon on all pure Ayurvedic Asavas and Arishtas containing

more than 30 per cent, proof spirit"". On 18-11-1952 the Government issued Notification No. 941 exempting ""all indigenous medicinal

preparations known purely as ""asavas and arishtas"" containing self-generated spirit from all the provisions of the Act"", subject to the condition ""that

gallonage fee shall be paid at Rs. 3 per bulk gallon on such of those preparations as are classified by the Board of Revenue in consultation with the

Principal, College of Indigenous Medicines, Madras, as potable"", This was in cancellation of the proviso to Notification No. 473 and in

modification of G. O. No. 1505 dated 7-4-1952. It is the validity of this Notification that is contested by the petitioner in W. P. No. 149 of 1953.

His contention, is that under the Constitution the power to impose duty on medicinal preparations is within the exclusive competence of the Union

under Entry 84 in List I of the 7th Schedule; that the executive power of the State to issue Notification is limited under Article 162 to subjects

which are within the competence of the State Legislature; and that accordingly Notification No. 941, dated 18-11-1952 is ''ultra vires'' and. void.

Under the Government of India Act, 1935, this was a subject within the exclusive competence of the State Legislature under Entry 40 (c) in List II

in Schedule 7 and it was in exercise of the power conferred by this Entry that Section 18-A was enacted by the Madras Legislature, authorising

the Government to levy duties of excise and countervailing duties on alcoholic liquors. Notification No. 473 dated 7-3-1349 was then issued u/s

18-A imposing a duty on medicinal preparations. Article 277 of the Constitution provides that

any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government

of any State may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied

to the same purposes until provision to the contrary is made by Parliament by law.

This provision would enable the Government to continue to levy such duties on medicinal preparations as were being levied by them prior to the

Constitution and that would save the levy of duty under Notification No. 473. But we are here concerned with a new duty imposed for the first

time by the Notification dated 18-11-1953. As neither the Legislature nor the Government of Madras had on that date any competence to impose

a duty on medicinal preparations, the imposition under Notification No. 941 is not within the saving of Article 277 and must be held to be ''ultra

vires''. It was at one stage of the argument suggested on behalf of the Government that the duty levied under Notification No. 941 was in substance

the same as what was imposed under Notification No. 473. But the duty payable under Notification No. 473 was in respect of the spirit contents

of medicinal preparations at Rs. 35 per gallon; whereas the duty under Notification No. 941 is in respect of potable medicinal preparations at Rs.

3 per bulk gallon. The two duties are so dissimilar that it is not possible to treat the one Eg substantially identical with the other. The tax on the

spirit contents of medicinal preparations is in reality a tax on intoxicating liquors which has always been within the competence of the State

Legislature (Vide Entry No. 31 in List II in Schedule 7 to the Government of India Act, 1935 and entry No. 8 in List II in Schedule 7 to the

Constitution). The duty on bulk gallon imposed by Notification No. 941 is clearly excise duty on medicinal preparations and that is under the

Constitution, within the exclusive competence of the Union under Entry 84 in List I. We must, therefore, hold that the imposition of duty under

Notification No. 941 is unauthorised and illegal.

It remains to deal with the Question raised in W. P. No. 593 of 1953 whether the order of the Government, dated 29-5-52 classifying

''Vitogen1 as ""Medicated wine"" and declaring it liable to duty of RS. 35 per proof gallon of spirit contents there-in is liable to be set aside. That

duty was imposed in terms of Notification No. 473 dated 7-3-1949. Being a pre-Constitution levy on a subject which was then within the

competence of the Legislature, it is saved by Article 277 of the Constitution. The only question for determination is whether the medicine in

question is within the proviso to that Notification under which ""purely Ayurvedic preparations containing 20 per cent, or less of proof spirit self

generated"" are exempt from taxation. The contention of the Government is that it Is not ""purely Ayurvedic preparation"" and it is, therefore, not,

within the proviso. No question is raised by them that the spirit contents of the medicine exceed 20 per cent. It appears that ""vitogen"" is

manufactured by mixing certain quantity of an Ayurvedic preparation called ""Asvagandhi Panakam"" with an equal quantity of another Ayurvedic

preparation called ""Dhraksha Savam"".

The contention of the petitioner, who argued his case in person, is that the fact that ""vitogen"" is a compound of several Ayurvedic preparations

does not destroy its character as a ""purely Ayurvedic preparation"" and that, therefore, he is entitled to exemption under the proviso. On the other

hand, the contention of the Government is that by ""purely Ayurvedic preparations"" are meant specifics well-known & recognised in the Ayurvedic

system and that the proviso is not intended to apply to new medicines, even though they may be prepared out of indigenous drugs. A reference to

the several Notifications issued by the Government in respect of this matter clearly sup- ports the contention of the Government that what is meant

by ""purely Ayurvedic preparations"" is only ""asavas"" and ""arishtas"" known to the Ayur-vedic system and not any new medicine that may be

manufactured out of the indigenous drugs. Such a medicine may be Ayurvedic but not ""purely Ayurvedic"". Thus, G. O. No. 1505 dated 7-4-1952

speaks of ''all pure Ayurvedic asavas and arishtas'' and Notification No. 941 dated 18-11-1952 exempts ""all indigenous medicinal preparations

known purely as ""asavas and arishtas"". ""Vitogen"" is not an ""asava or arishta"" known to the Ayurvedic system and that is not claimed. The

Government are, therefore, right in holding that ""vitogen."" is not within the proviso to Notification No. 473 and that it is liable for payment of duty

at Rs, 35 per proof gallon on the spirit contents of the medicine.

The prayer in the petition that the order of the Government dated 29-5-1952 should be set aside is, therefore, refused.

A question was raised as to whether the petitioner was liable to pay duty at Rs. 35 per proof gallon on the spirit contents of ""Vitogen"" and also

a duty at Rs. 3 per bulk gallon under Notification No. 941. The Jatter notification cancels the proviso to Notification No. 473 and imposes a duty

of Rs. 3 per bulk gallon on all potable ""asavas"" and ""arishtas"". The body of Notification No. 473 applies to medicinal preparations which are not

asavas"" and ""arishtas"" and it is on that basis that the petitioner was held not entitled to exemption contained in the proviso to that Notification.

Notification No. 941 applies only to ""asavas"" and ""arishtas"" and therefore, it cannot apply to ""vitogen"". The two Notifications are mutually

exclusive and that is the reason why the proviso to notification No. 473 was cancelled by notification No. 941. The petitioner is, therefore, liable to

pay a duty in respect of ""Vitogen"" only under Notification No. 473 at Rs. 35 per proof gallon of the spirit contents; he is not liable in addition to

pay a duty of Rs. 3 per bulk gallon under Notification No. 941, even if that Notification were valid. In fact the challenged order dated 29-5-1952

declares that the petitioner is liable to pay duty on ""Vitogen"" only on the basis of Notification No. 473.

To sum up, the provisions of the Madras Prohibition Act 10 of 1937 in so far as they relate to medicinal preparations are regulatory and

reasonable in character and are valid; Section 16 of the Act imposes on the Government a duty to exempt medicinal preparations from the

operation of the Act; Section 23(2) of the Act is void, and Notification No. 941 dated 18-11-1952 is ''ultra vires'' & unenforceable to the extent

that it imposes a duty on medicinal preparations.

In the result, W. P. No. 593 of 1952 and W. P. No. 672 and W. P. No. 673 of 1952 are dismissed. In W. P. No. 149 of 1953 prayer No. 1

is granted to the extent mentioned above and the petition is otherwise dismissed. There will be no order as to costs.