Kanyakumari
District Sidha Andayurveda Vaidyar Sangam Vs. The Government of Tamil Nadu
& Ors [1996] INSC 388 (13 March 1996)
Singh
N.P. (J) Singh N.P. (J) Verma, Jagdish Saran (J) Kirpal B.N. (J) N.P. Singh, J
CITATION:
1996 AIR 1314 JT 1996 (3) 427 1996 SCALE (2)824
ACT:
HEAD NOTE:
The
appellants who manufacture and deal in ayurvedic and unani medicines questioned
the validity of the Tamil Nadu Spirituous Preparations (Control) Rules, 1984
(hereinafter referred to as the 'Rules') framed under the exercise of the power
conferred by Section 54 of the Tamil Nadu Prohibition Act, 1937 thereinafter
referred to as the 'Act') before the High Court which has upheld the validity
of the said Rules. The order by which the aforesaid Rules were notified gives
the object of the framing of the Rules, saying that by G.O.Ms. No.3031, Home,
dated 1.11.1958, the Government in exercise of the powers conferred by Section
16 of the aforesaid Act had exempted the medicinal and toilet preparations
containing alcohol and/or intoxicating drugs from all provisions of the said
Act, subject to certain conditions. But the conditions were found to be
inadequate to check effectively the manufacture and sale of medicines
containing alcohol and because of that a decision had been taken to frame a
separate set of Rules. Rule 3(b) defines alcohol to mean ethyl alcohol of any
strength and purity having the chemical composition of C2 H5 OH. Rule 3(J)
defines "restricted preparations" :
"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 Toilet
Preparations (Excise Duties) Rules, 1956 shall be treated as restricted
preparations for the purpose of these rules .
Similarly
Rule 3(k) defines 'spirituous preparations":
"Spirituous
preparations" means –
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 drug, whether selfgenerated
or otherwise, notified under rule 5 to be a spirituous preparation, Rule 11
provides for grant of wholesale and retail sale licences in different forms
prescribed therein for sale of any homeopathic medicinal preparation or
"any preparation coming under the indigenous system of medicine to a
registered medical practioner or to those holding licence in Forms L1 and L2
under the Medicinal and Toilet preparations (Excise Duties) Rules, 1956 or a licence
under the Drugs and Cosmetics Act, 1940 (Central Act of 1940)".
According
to the appellants, the provisions aforesaid requiring licences for sale of
indigenous system of medicines by medical practitioner or by those holding licence
under the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956 or
holders of licences under Drugs and Cosmetics Act, 1940 amounts to unreasonable
restrictions on the right of wholesale and retail dealers to deal in such
indigenous system of medicines.
It
cannot be disputed that power to frame such Rules, requiring the wholesale
dealers and retail dealers to get licences before dealing in indigenous system
of medicines must flow from the provisions of the Act under which such Rules
have been framed. Section 3(9) of the Act defines "liquor" :
"liquor"
includes toddy,/country 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
medicinal or toilet purposes and for the regulation of the use of any liquor or
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 under Section 3(9) aforesaid.
As already pointed 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 rule 3(b). In this background, if any wholesale or
retail dealer is to sell any preparation which contains alcohol whether
self-generated or otherwise or any intoxicating drug, then he has to obtain licence
as required by Rule 11 of the Rules. 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 under Section
54(2)(m).
On
behalf of the appellants 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 licences 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/or 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.
The impugned order of the High Court requires no interference. The appeal is
accordingly dismissed. In the fact and circumstances of the case, there shall
be no orders as to cost.
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