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Bihar prohibition: State says it has made changes to anti-liquor law, seeks time from Supreme Court

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The Supreme Court was informed on Tuesday by Bihar government counsel Senior Advocate Ranjit Kumar that the report from the Patna High Court states that this Court has passed order for transfer of the cases but records have not reached the Apex Court from Patna yet.

He further brought to the notice of the bench of Justices A.M. Khanwilkar, Abhay S. Oka and C.T. Ravikumar that the State has made extensive amendments to the Bihar Prohibition and Excise Act, 2016 on the April 1 and requested for time to place records regarding the same. 

Senior Advocate Nakul Diwan, appearing in International Spirits and Wines Association of India vs the state of Bihar, contended that two days after the High Court had struck down the Act; the State came up with another Act.

The Apex Court granted time to the parties and will hear this matter on April 18, 2022.

The state moved the Supreme Court against the judgment of the Patna High Court which had struck down the amended Section 19(4) of the Bihar Excise Act, 1915 and the notifications issued thereunder by declaring them ultra virus.

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The Patna High Court order came on a batch of writ petitions challenging the validity of Section 19(4) of the Bihar Excise Act, 1915, which was amended, by the State Legislature, on 31.03.2016, and the consequential notification issued by the State thereunder, dated 05.04.2016. The state had imposed a complete ban on wholesale, retail trade and consumption of foreign liquor, in the state of Bihar, with immediate effect. 

The petitioners (manufacturers of Indian Made Foreign Liquor (IMFL)) and brewery, dealers in IMFL and beer and the consumers, doctor and retired army officer) had moved against the Respondent-State on the following issues:

• The term “any person” in Section 19(4)- It was submitted that “any person” should be read ejusdem generis and the prohibition should not cover manufacturing, bottling plant, licence holder, etc. To this, the state responded by stating that that the current interpretation of the term by the impugned notification had been the correct one as the legislative history and the judicial pronouncements in respect of Section 19(4) of the Act are against the petitioners. The High Court was of the view that all the terms are different in species and genus. Hence, the rule of ejesdem generis would not apply.

• Delegated legislation – The petitioners had submitted that this order confers upon the State uncontrolled powers of excessive delegation ultra vires the Constitution. The state submitted that the notification, issued by it under the powers delegated to it by the amended section, would, thus, be deemed to be a part of legislative exercise done by the legislature themselves and, thus, there was no question of any excessive unbridled, unguided exercise of delegated legislation. The Court held that the impugned notification would amount to conferring legislative powers on the delegate with no legislative control.

• Notification in conflict with the New Excise Policy (NEP), 2015- The notification orders for an absolute and immediate ban while NEP considers ‘prohibition’ but in a ‘phased’ manner. The State responded that the NEP has no control over such notification by the State. 

• Bihar Excise Act- Bihar Excise Act, 1915, is an Act for collecting State excise duty and regulation to that regard. The court held, “impugned notification goes beyond the very object of the Act and virtually obliterates the Act itself, which is impermissible and no person has a right to consume liquor and liquor trade being extra commercium, no person can think it as a part of any fundamental right.”

• Reasonable restriction- An absolute restriction was stated to be arbitrary and unreasonable. 

• Whether the impugned notification restricts possession of liquor simpliciter by a person? The court held that if trade in liquor is prohibited, then, automatically possession thereof by any person would be deemed to be prohibited.

• Punishment provisions of the amendment Act are draconian in nature and grossly disproportionate to the delinquency sought to be punished. Punishments are under three categories: (i) Personal punishment and fine; (ii) Confiscation of premises; and (iii) Collective fine.

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The High Court held that the punishment provisions are ultra vires the Constitution being in violation of Articles 14 and 21 of the Constitution. Furthermore, the effect of these provisions would be converting the State into a Police State and citizens would always be living under a threat or, at least, a threat perception of being easily implicated.

These writ petitions put forth an important question: Whether the right to consume alcohol is a fundamental right and any infringement or intrusion into the said right, by means of legislation or otherwise, would amount to a violation of the right to privacy and, therefore, constitutionally untenable? 

On this issue, the CJ of Patna HC, Justice I.A. Ansari and Justice Navaniti Prasad Singh had differing opinion. Justice Singh while discussing the issue made reference to the case of Ramlila Maidan Incident (2012) 5 Supreme Court Cases 1, wherein, paragraph 318, reads as under: 

“318. Thus, it is evident that right of privacy and the right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink, to blink, etc.”  

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Therefore, Justice Singh observed that the right to decide as to what to eat and drink within the confines of one’s house, by an individual citizen, would come within the matter of right of privacy, within Article 21 of the Constitution. Disagreeing with this opinion, Chief Justice Ansari observed that the right to consumption of alcohol is not a fundamental right.

Article 47 of the Constitution states that it is the responsibility of the State to ensure proper and healthy nutrition for its citizen as far as possible and declaring the consumption of intoxicating substances as fundamental right will completely defeat such purpose, and anything that conflicts the Fundamental Rights with the Directive Principles of the State Policy shall stand null and void.

Finally the Court held,

“Section 19(4) of the Bihar Excise Act, 1915, as amended with effect from 01.04.2016 is ultra vires the Constitution and unenforceable. The impugned notification, dated 05.04.2016, issued by the State under Section 19(4) of the said amended Act is also ultra vires the Constitution and, consequently, unenforceable and the penal provisions of enhanced sentence and provision, with regard to confiscation of property, as introduced by the amendments on 31.03.2016, with effect from 01.04.2016, are also held to be ultra vires the Constitution.”

-Hence, the writ petitions were allowed.

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