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Dipankar Bhattacharyya Vs. Union Territory of Tripura - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantDipankar Bhattacharyya
RespondentUnion Territory of Tripura
Excerpt:
- - but the appellate court failed to consider the question whether even granting the notification to be valid, the petitioner had to take out a license under section 8 of the tripura excise act when the foreign liquor was imported by him prior to the said notification. the learned sessions judge has failed to consider this aspect of the matter in his judgment, i have already pointed out that there is no vagueness or doubt in the wording of section 5 on this question as it is clear that foreign liquor which was not liable to duty as having been imported from outside prior to the notification was not a prohibited intoxicant and hence no1 license was necessary for the sale of such liquor......by the tripura administration. it may be mentioned here that the chief commissioner had imposed an excise duty on foreign liquor imported from outside to the state by an order dated 9-5-1956 which was published by gazette notification dated 26-6-1956. it is admitted for the prosecution that the order came into force only by the gazette notification dated 26-6-1956. but the foreign liquor seized from the petitioner and also sold by him en 7-8-1956 were imported before the date of publication of the notification and as such were not liable to the duty.the petitioner's contention before the magistrate was that having imported the brandy before the imposition of the duty, the brand was not 'prohibited drug' within the meaning of section 5 of the i tripura excise act and as such he was not.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. This is a criminal revision against the judgment of the Sessions Judge, Tripura in Criminal Appeal No. 37 of 1957 by which he dismissed the appeal and confirmed the conviction of the petitioner (Under Section 37 of the Tripura Excise Act, 1296 T.E.) and the sentence to pay a fine of Rs. 15/- passed by the Magistrate 1st class, Udaipur in Criminal case No. 39 of 1956.

2. The matter arose under the following circumstances: The petitioner has been running a Medical Store at Udaipur under the name and style of Messrs. Devaki DulaI. On 7-8-1956 he sold one bottle of Imperial Crown Brandy to one Kali Pada Devnath. On learning this the Excise staff searched the Store on the, same day and seiz ed one big bottle of John Exshaw Brandy and one smalL bottle of Imperial Crown Brandy. The prosecution allied that the petitioner had imported the fore liquor (all the 3 bottles of Brandy are foreign liquor) from outside and had therefore committed an offence Under Section 30 of the Tripura Excise Act which provided that no person shall import into the State from any Foreign State any intoxicant without the permission of the Chief Officer of the Excise Department. The prosecution further alleged that the sale of the Imperial Crown Brandy on 7-8-1956 without a license contravenedthe provisions of Section 8 of the same Act under which no person was allowed to sell any intoxicant without taking a written permissiOn or license from 111e Chief Officer of the Excise partment.

3. The petitioner was tried by the first class Magistrate, Udaipur. He admitted the possession of the two bottles of Brandy on 7-8-1956 and also the sale of one bottle on the said date. His vlea was that he had piurchased them from Calcutta on 11-5-1956 and 21-6-1956 from the wellknown Chemist and Druggist Firm of Mis. M, Bhattacharjee and Co. not as foreign liquor but as medicinal preparations and that he had sold one bottle on 7-8-1956 on a doctor's prescription and that he had not committed any offence. He admitted that he did not have any license for im port or sale of the Brandy.

He however contended that his purchase and import of the brandy from Calcutta was prior to the date of imposition of the duty on foreign liquor by the Tripura Administration. It may be mentioned here that the Chief Commissioner had imposed an excise duty on foreign liquor imported from outside to the State by an order dated 9-5-1956 which was published by Gazette Notification dated 26-6-1956. It is admitted for the prosecution that the order came into force only by the Gazette Notification dated 26-6-1956. But the foreign liquor seized from the petitioner and also sold by him en 7-8-1956 were imported before the date of publication of the Notification and as such were not liable to the duty.

The petitioner's contention before the Magistrate was that having imported the brandy before the imposition of the duty, the brand was not 'prohibited drug' within the meaning of Section 5 of the I Tripura Excise Act and as such he was not hound to take a license Under Section 8 for the sale of the brandy and he cannot be said to have contravened Section 30 of the Act. The Magistrate however did not accept the argument and stated that the inference was that the petitioner was guilty of Section 8 of the Act. But he took a lenient view in consideration of the fact that the motive of the petitioner was to supply medicinal requirement and not to provide means of intoxication. He, therefore, convicted the petitioner Under Section 8 and imposed a fine of Rs. 15/-. But he did not specifically give any finding as to whether the petitioner had contravened Section 30 of the Act in importing the Brandy from Calcutta. On the face of it the petitioner cannot be said to have acted against Section 30 as the brandy was brought before the Notification on 26-6-1956. But still the Magistrate confiscated the two bottles seized from the petitioner on 7-8-1956.

4. The petitioner took the matter in appeal to the Sessions Judge. In the Sessions Court a new point was raised namely, that the Notification by the Chief Commissioner dated 9-5-1956 imposing an excise duty on. foreign liquor imported to Tripura from outride was without authority as it amounted to a tax which under Article 265 of the Constitution cannot be levied or collected save by authority of law. The argument was that authority of law meant legislation and that under Article 246 of the Constitution the Union Government alone has got the power to make laws for Part C States and hence the tax could be imposed only by Parliament.

The argument was not accepted by the appellate Court on the ground that Section 5 of the Tripura Excise Act authorised the Government of Tripura to impose the duty and Section 5 of the Tripura (Administration) Order, 1949 continued in force all the liaws existing in Tripura until repealed or amended by the competent legislature or authority and the proviso to the said Section empowered the Chief Commissioner to exercise all the powers exercisable by the Maharajah or the Government of Tripmra. He therefore held that the Notification published on 26-6-1956 was validly issued and the duty was imposed under the authority of law.

But the appellate Court failed to consider the question whether even granting the Notification to be valid, the Petitioner had to take out a license Under Section 8 of the Tripura Excise Act when the foreign liquor was imported by him prior to the said Notification. He however held that the Petitioner has not contravened Section 10 of the Tripura Excise Act and so he directed the return of the two bottles of Brandy seized from the Petitioner. Actually Section 10 has nothing to do with the confiscation but only Section 30. But neither Court considered the matter Under Section 30 at all.

5. Now the revision is filed against the conviction and sentence of the Petitioner Under Sections 8 and 37 of the Tripura Excise Act. It Was first contended that under Article 265 of the Constitution no tax can be levied or collected except by the authority of law which meant an Act of the Legislature, that whatever might have been the powers of the Chief Commissioner Under Section 5 of the Tripura Excise Act and Section 5 of the Tripura 'Administration) Order, 1949, they came to an end when the Constitution came into force on 26-1-1950 and that after 26-1-1950 the Parliament alone had the power to legislate for a Part C State under Article 246 of the Constitution and that the imposition of a duty or tax cannot be made by an executive act which did not have the authority of law.

6. Another argument advanced was that even granting that trip Notification published on 26-6-1956 was valid, the Petitioner having imported the foreing ligour prior to the publication of the said Notification, the said foreign liquor did not become a 'prohibited intoxicant' within the meaning of Section 5 of the Tripura Excise Act and that therefore Under Section 30 of the said Act no license was necessary for the import of the same from outside the State and again no licence was necessary Under Section 8 of the Act for the sale of the said liquor and the that therefore no offence has been committed by the Petitioner either by the import prior to 26-6-11956 or by the sale on 7-8-1956.

7. I may straightaway make it clear that the charge against the Petitioner was only Under Section 8 of the Tripura Excise Act for the sale of one bottle of brandy on 7-8-56 without taking out a license and that there was no charge Under Section 30 of the Act for importing any brandy from outside the State without permission. The learned Sessions [Judge was, therefore, quite correct in ordering the y return to the petitioner of the two bottles of brandy ' which were seized from his shop and which were ordered to be confiscated by the trying Magistrate. We are now only concerned with the conviction of the Petitioner for the sale of one bottle of brandy on 7-8-1956. What we have to see is whether the Petitioner required a license from the Excise authority Under Section 8 of the Act for the sale of the particular bottle of brandy.

8. For deciding that question, it is unnecessary to consider the point raised for the Petitioner as 'to whether the Notification dated 26-6-1956 by which the Chief Commissioner imposed a duty on foreign liquor imported from outside the State was valid or not under Articles 246 and 265 of the Constitution. No doubt the Petitioner argued that because the said Notification was ultra vires the Constitution, no duty was payable for foreign liquor and hence it was not a 'prohibited intoxicant' within the meaning of Section 5 of the Tripura Excise Act and hence no license was required to be taken out for its sale.

Of course, if I find in his favour on that question, he will have to be acquitted. But lie has raised another point namely, that even granting that the said Notification was valid, the foreign liquor imported by him before the Notification would not tie come a 'prohibited intoxicant within the meaning of Section 5 of the Tripura Excise Act and that as Section 8 of the Act required a license only for the salad of an 'intoxicant' declared to be 'prohibited' Under Section 5, he cannot be convicted for the sale of this particular bottle of foreign liquor.

9. I find that the petitioner is entitled to succeed even on the second point raised by him and hence a decision on the first point becomes really unnecessary. If I was against him on the second point, it would have been obligatory on. my part to consider the, other point also. As decisions- of this Court will have the effect of law within this Union Territory, it has to be chary of giving findings which are not absolutely indispensable for giving a finality to the matter in hand.

A decision regarding the validity or otherwise of the Notification dated 26-6-1956 will have far-reaching effect as it will be dealing with the power of the Chief Commissioner to imppse a' tax Under Section 5 of the Tripura Excise Act and it will affect not merely the Petitioner but the entire body of persons who have been subjected to such tax. Mr. Monoranjan Choudhury appearing for the Petitioner urged that the revision was filed not so much to get relief against the conviction and the sentence of Rs. 15/- but more to get a pronouncement ma the validity of the tax. Even when I indicated that he would succeed on the_ second point, he insisted on a decision on the validity of the tax. I am afraid cannot oblige him,

10. I am fortified in this view, by the decision of the Supreme Court in State of Kerala v. P.. J. Joseph, reported in : AIR1958SC296 . That was-an appeal against the decision of the Travancore-Cochin High Court in Joseph v. Asst. Excise Commissioner reported in A.I.R. 1953 Tran-Co. 146. In the latter decision, the Travancore-Cochin High Court had decided this very question and held that Article 205 of the Constitution embodied the principle of 'no taxation without representation' and that the word 'law' under Article 265 meant statute law i. e., an Act of the Legislature and hence an order of His Highness the Raj Pramukh- dated 14-7-1950 imposing a tax was only an executive order and not 'law' within the meaning of Article 265.

When the matter came up in appeal before the Supreme Court, their Lordships desisted from giving a finding as to whether 'law' under Article 265 has necessarily to be an Act of the Legislature, as it was not necessary to give a finding on that question for the final disposal of the appeal1. They held that even granting that the order of the Maharaja was regarded as a rule or notification prescribing the levy of the duty, it was not notified in the Gazette as required under Rule 7 of the Cochin Ablcari Act and hence it did not have the authority of law and was only an executive order and hence the imposition of the tax was illegal. The question whether the Raj Pramukh can impose a valid duty acting Under Sections 17 and 18 of the Cochin Aibkari Act was left undecided.

11. In the present case also, 'a decision on a similar question is not found to be imperative, as I find that the Petitioner is entitled to the relief prayed for by a finding on the second point raised by him. If he wants a decision on the validity of the tax, it will have to be done in other appropriate proceedings.

12. Now I shall proceed to consider the second point advanced by the Petitioner. Sections 5 and 8 of the Tripura Excise Act are as under:

Section 5. All intoxicants such as. Opium, Wine, Ganja, Pachul Wine etc., on which excise duty has been already imposed by the order of the Government or any other intoxicant which may be made liable to excise duty in future by the order of the Maharaja arei to be known as 'prohibited intoxicants.

Section 8. No person shall be allowed to produce, manufacture, or sell any intoxicant mentioned above without taking written permission or license from the Chief Officer of the Excise department.

The above is the English translation of the said Sections from the original which is in Bengali language.

13. Reading the two Sections together, it is clear that what is prohibited from being sold without a license under Section 8 is a 'prohibited intoxicant' defined in Section 5. A 'prohibited intoxicant' Under Section 5 is one in respect of widely excise duty has been already imposed. An intoxicant can also become 'prohibited' when a tax was levied on it at any time after the said Act came into force. Applying the two, Sections to the case in point, foreign liquor became a 'prohibited intoxicant' only on 26-6-1956. the date of publication of the Notification as it became liable to duty from that date. It follows that foreign liquor imported from outside prior to 26-6-1956 was not liable to duty and did_ not therefore become a prohibited intoxicant. This particular bottle of foreign liquor was admittedly imported from Calcutta prior to 26-6-1956 and hence was not liable to duty and therefore was not a prohibited intoxicant within the meaning of Section 5. As license was reqxiired only for the sale of a 'prohibited intoxicant' it meant that no license was required for the sale of this particular bottle.

14. Neither the learned Sessions Judge nor the trying Magistrate actually loqjced at it from this aspect of the matter. The trying Magistrate tilt teat the wording of Section 5 of the Act was not free from doubt on this point. He however inferred that the Petitioner has violated Section 8 of the Tripura Excise Act because he did not produce a license. That was begging the question. The error of the trying Magistrate was that if he felt the wording of Section 5 to be not free from doubt he should not have, made the inference against the Petitioner but against the prosecution and should have given him the benefit of the doubt. The learned Sessions Judge has failed to consider this aspect of the matter in his judgment,

I have already pointed out that there is no vagueness or doubt in the wording of Section 5 on this question as it is clear that foreign liquor which was not liable to duty as having been imported from outside prior to the Notification was not a prohibited intoxicant and hence no1 license was necessary for the Sale of such liquor. The conviction and sentence of the Petitioner by the trying Magistrate cannot therefore be justified. They are set aside and the Petitioner is acquitted of the charge Under Section 8 of the Tripura Excise Act.


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