The Commissioner of Prohibition and Excise and Others vs Century Wines and Others

P.S. Mishra, C.J.—The Commissioner of Prohibition and Excise and others have preferred these appeals against an order in W.P.M.P. 17319/95 in W.P. 12019/95 and other applications in writ petitions aforementioned. Writ Petitioner- respondents have moved the court with applications under Article 226 of the Constitution against an order in Cr.No. 2288/95/DPE/C2, dated 10-5-1995 issued on behalf of the Commissioner of Prohibition and Excise which is as follows:

"Applications are being received for issue of Through Transport Permits for transportation of IML through the State of Andhra Pradesh. The applicants are informed that in future they have to arrange lorries/ vehicles which are having doors to close and locking facility for transportation of IML through the State of Andhra Pradesh. In future only such applications of such applicants will be considered who can arrange for transportation of IML with the above mentioned facility."

The main objection to the above is that the restriction that only such applications of the transporters shall be accepted who can arrange for transportation of IML in lorries/vehicles which are having doors to close and locking facility, is a restriction on the freedom of trade and is not spelt out anywhere either in the Act under which prohibition has been introduced on the trade and business of hard liquor in the State of Andhra Pradesh or under the Rules including the Rules which prescribe the conditions for grant of permit. The main argument, however, on behalf of the writ petitioner-respondents for setting aside the above order is that the Commissioner does not have the power to do so, that such a condition can be introduced only by a statutory prescription and that any statutory prescription will be unreasonable and violative of the freedom of trade guaranteed under Article 19(1)(d) read with Article 301 of the Constitution of India. The petitioner-respondents also filed applications for interim directions and the court has, ordered as follows:

".....I am convinced that the conditions prima facie, do not appear to be reasonable. The other ground for rejecting issuance of through transport permit to the petitioner as he was involved in Crime No. 93/94-95 is also not justified inasmuch as the name of the petitioner does not find a place in the F.I.R."

He has accordingly directed the appellants (respondents in the writ petition) to issue through transport permits to the petitioners without reference to the criminal complaint or without insisting on closed door containers within 48 hours. However, learned Single Judge has stated :

"......If the respondents find that the goods intended to the destination at Yanam are being diverted, it is always open to them to take action against the petitioner according to law."

Learned counsel for the petitioner-respondents has, before us, developed the ground of unreasonableness by pointing out in particular that only such transports of IML are subjected to the above conditions which are intended to the destination in Yanam which is a part of the Union Territory of Pondichery and not to any other destination in the country and only such transporters are subjected to the imposition of the above conditions who are transporting IML to Yanam and these restrictions are discriminatory and arbitrary and do not qualify as reasonable restrictions under Article 19(6) of the Constitution of India.

The constitutional rights under Article 19 of the Constitution or under Article 301 of the Constitution are subject to the laws made under Articles 302 and 304 as well as 19(6) of the Constitution. It is difficult to think that in case any laws are made either by the Parliament or the State Legislatures, the freedom extends to the trade, commerce and business in complete disregard to the common law principles that every trade and business should be fair and honest and that it should in no way be injurious to the public at large and/or cause harm to the interest of the public. Trade and business must always be in accordance with the rules of fair play and must deal in the commodities which cause no injury to the society. A trader cannot in the absence of law say that as one can in the absence of restrictions trade in the meat of goat he can trade in the human flesh. Such inherent restrictions one shall always read in the freedom otherwise the freedom will mean a licence to trade or business irrespective of any care for others in the society. There is no need for a reference to the provisions of the Constitution in this behalf as no one''s freedom can be at the cost of the freedom of the other and no one can be left free to do as he likes if what he does is likely to affect the freedom of the other. The law, however, has been made by the State Legislature and restrictions have been imposed upon the sale and consumption of certain varieties of liquors and wines in the State of Andhra Pradesh. It has been made illegitimate for all concerned to deal in such varieties of liquor in the State of Andhra Pradesh which are prohibited. In course of the enforcement of the prohibition when it has transpired that there is a likelihood of illegal trade in these restricted commodities, a law has been introduced contemplating that transportation shall be on such conditions of licence which shall be granted to the transporters for the said purpose. Yanam as we have noticed is a small pocket at the sea shore and connected to the land only through the territory of the State of Andhra Pradesh. The small hamlet of a few thousand inhabitants only however, is not subjected to any restriction or prohibition and it seems it has been noticed as a Heaven for those who want their freedom from the law of prohibition and for those who want to make business out of this situation. Yanam has been noticed, thus, as a destination for all such people who wanted to take advantage of the presence of such a territory in the vicinity of the prohibited area. Learned counsel for the writ petitioner-respondents has however brought to our notice mat such transportation of the liquor is prohibited to Yanam from the territory of Pondichery, which is a pocket like Yanam of a few lakhs inhabitants only abutting the shore and abutting the territory of the State of Tamil Nadu, and not from other places. The above restriction is not sought to be imposed upon the transport vehicles coming from West Bengal and other places in the country; but only from Pondichery. What are the reasons, however, for deciding to pick up only transports from Pondichery to Yanam is not disclosed any where. It is not possible to say one way or the other on it until all materials are placed before the court and the matter is finally heard in the writ proceeding.

We are not impressed at this stage by the arguments on behalf of the petitioner-respondents that unless there is a specific rule introduced in this behalf and unless such a condition is made a condition of the licence, the Commissioner cannot enforce the same and in any case even if such power is found in the Commissioner, it is not permissible as it is an unreasonable restriction upon the trade.

Black''s Law Dictionary explains:

"Implied powers are such as are necessary to make available and carry into effect those powers which are expressly granted or conferred, and which must therefore be presumed to have been within the intention of the constitutional or legislative grant." (Black''s Legal Dictionary 4th Edn.Pg. 1334).

In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , a passage from Sutherland (Frank E. Horack Jr.Vol.3) is quoted, which briefly reads as follows:

"Necessary implications : Where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication. Thus it has been stated, "An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty..... That which is clearly implied is as much a part of a law as that which is expressed."

The Supreme Court in the said judgment has added:

"The reason behind the rule is to be found in the fact that legislation is enacted to establish broad or general standards. Matters of minor detail are frequently omitted from legislative enactments, and "if these could not be supplied by implication the drafting of legislation would be an interminable process and the true intent of the legislature likely to be defeated.

The rule whereby a statute, is by necessary implication extended has been most frequently applied in the construction of laws delegating powers to public officers and administrative agencies. The powers thus granted involve a multitude of functions that are discoverable only through practical experience."

There is some dispute before us mat the Commissioner, Excise and Prohibition does not have the power to impose conditions besides the conditions imposed by the rules. But we are not inclined to read the power of the Commissioner, Excise and Prohibition, at this interlocutory stage of the proceeding in such a way that he will have no power to take notice of the practical difficulties in the imposition of the law of prohibition in the State of Andhra Pradesh. We are inclined at this stage to hold that any interference with the order of the Commissioner may leave some loop-holes in the implementation of the law of prohibition in the State and the Court, unless the matter is finally adjudicated, should refrain from doing so.

There may however be some practical difficulties for the writ petitioner- respondents in procuring the vehicles of the type recommended by the Commissioner and without the vehicles as the Commissioner''s order says, they cannot apply for the permit. It is averred in the writ petition. and it is so stated before us on behalf of the petitioner-respondents that they have made attempts but they have not been able to get such vehicles easily. It will be difficult for them to procure such vehicles and use only such vehicles unless there is some relaxation in the conditions aforementioned.

While we have found and we reiterate prima facie that all such matters which are ancillary to the prohibition should be hold to be within the competence of the Commissioner, we are inclined to agree with the contention of the learned counsel for the petitioner-respondents that the imposition will be impractical and may completely destroy the trade of the writ petitioner- respondents if it is not suitably modified. We have considered several alternatives including the alternative suggested by the learned counsel for the petitioner-respondents that when the vehilcles of the writ petitioner- respondents would enter the territory of Andhra Pradesh the Excise authorities may depute some officer to accompany the vehicle through the territory of Andhra Pradesh so that possibility, if any, of any disembarkment of goods on the way and within the territory of Andhra Pradesh is eliminated. In our considered opinion, however, there should be some method which would on the one hand ensure the enforcement of the prohibition law and not give any opportunity to the transporters to deliver any prohibited liquor to any person within the territory of Andhra Pradesh and on the other hand would not completely interfere with the freedom of trade of the petitioner-respondents. That in our opinion can be achieved by regulating the transportation of the prohibited liquor in cartons which are properly sealed by the prohibition enforcement authorities at the entry of the cartons into the territory of Andhra Pradesh and ensuring that the cartons are not delivered on the way and are not interfered with until the cartons are taken beyond the territory of the State of Andhra Pradesh. If sealing of each individual carton is found inconvenient, opportunity may be given to the transporters to wrap more than one carton by jute cloth and seal and secure the ties with such a seal ensuring that the ties are sealed at the entry of the cartons within the territory of Andhra Pradesh and are not interfered with until they are taken beyond the territory of Andhra Pradesh. We are of the opinion that the above, if resorted to, shall meet the requirements of the transportation from one end of the territory of Andhra Prade sh to another end of any prohibited liquor by the petitioner-respondents.

For the reasons aforementioned we allow the appeal to the extent indicated above and order that until the disposal of the writ petitions or until the writ petitioner-respondents produce the vehicles as desired by the Commissioner, Excise and Prohibition, whichever is earlier, the alternatives aforementioned shall be permitted and the transport permits shall not be refused to the petitioner-respondents if they agree to abide by the above conditions.

In the result the appeals are allowed to the extent indicated above. Observations, if any, in the instant judgment however, shall not prejudice hearing of the main writ petition.