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Indian Chemical and Pharmaceutical Works, Hyderabad Represented by Its Managing Partner, T. Narasimhalu and ors. Vs. State of Andhra Pradesh Represented by Its Secretary, Revenue Department, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1061 of 1962
Judge
Reported inAIR1964AP430
ActsConstitution of India - Articles 19(1), 19(5), 19(6), 226 and 254(2); Hyderabad Opium and Intoxicating Drugs Act, 1333F; Hyderabad Opium and Intoxicating Drugs (Amendment) Act, 1953; Drugs Act, 1940 - Sections 1 and 2
AppellantIndian Chemical and Pharmaceutical Works, Hyderabad Represented by Its Managing Partner, T. Narasi
RespondentState of Andhra Pradesh Represented by Its Secretary, Revenue Department, Hyderabad
Appellant AdvocateS. Suryaprakasam and M. Satyanarayana Reddy, Advs.
Respondent AdvocateK. Madhava Reddy and ;G. Haridath Reddy, Advs. for ;3rd Govt. Pleader
DispositionPetition dismissed
Excerpt:
constitution - legislative authority - articles 254 (2) and schedule 7 list 1 item 59 and list 3 item 19 of constitution of india and sections 1 and 2 of drugs act, 1940 and hyderabad opium and intoxicating drugs act, 1333f - notifications issued by government under act of 1333f - whether notification repugnant to act of 1940 - act of 1333f received assent of president under article 254 (2) - no law enacted by parliament in contemplation by proviso to article 254 (2) - expression any other law in section 2 of act of 1940 includes any future law and not only law in force at time of coming into existence of act of 1940 - act of 1940 cannot be said to be exhaustive act dealing with drugs - held, state law as envisaged in act of 1333f to prevail in state - notifications issued valid. - .....to carry on trade and business guaranteed under the constitution article 19(1) (f) and (g).3. the state government in their counter affidavit filed by the assistant secretary to government, revenue department, averred that the petitioners are manufacturing nearly forty thousand lbs. of chloral hydrates, that it had come to the notice of the excise authorities that the bulk of this product was being mixed in 'sendi' and liquor to give intoxication, and that the medical opinion is that the drug is highly abnoxious to human health. it is further averred that there was no effective control over the manufacture, sale and possession of the drug by the excise authorities, and that the government have taken necessary steps by the above notification to control its improper use. this notification.....
Judgment:

Narasimham, J.

1. This is an application for the issue of an appropriate writ against the State of Andhra Pradesh to forbear from enforcing the Notification, G. O. Ms. No. 1376, Revenue dated 5th September 1962, issued under the Hyderabad Intoxicating Drugs Act (Act IV of 1333 F.) (hereinafter referred as the Intoxicating Drugs Act), of rules for the manufacture, possession, sale import, export and transport of Chloral Hydrate, a drug within the meaning of the Drugs Act of 1940. One of the rules provided inter alia that the manufacture of the said drug shall be under a licence granted by the Excise Commissioner on payment of Excise duty of Rs. 500/- per annum. It would not be necessary to refer to the other specific rules.

2. The petitioners, three in number, Messrs. Indian Chemical and Pharmaceutical Works, Hyderabad, Messrs. Pankaj Chemical and Pharmaceutical Works, Hyderabad and Messrs. Commercial Chemical Co., Sanathnagar, Hyderabad, are the manufacturers of the said drug under the licences issued under the Drug Rules framed under the Drugs Act of 1940.

They challenge the notification of the respondent Government as ultra vires the powers of the Government on the ground that the Government have no right to include a drug coming within the purview of the Drugs Act of 1940 (Central Act) as an intoxicating drug within the meaning of the Hyderabad Intoxicating Drugs Act (Act IV of 1333 F.) They impugn the Notification on the further ground that Chloral Hydrate is not an intoxicating and narcotic-substance, as defined under Section 2, Clause 4 of the Intoxicating Drugs Act. The further ground of attack is that the Government have no power to impose a duty on the manufacture of Chloral Hydrate and their powers levying impost are confined to the State list (List II of the Seventh Schedule) appended to the Constitution, which, among other items, provides for duties of excise on all alchoholic liquors, opium, Indian hemp and other narcotic drugs and Narcotics (vida item 51). It is further alleged that the Notification infringed their right to carry on trade and business guaranteed under the Constitution Article 19(1) (f) and (G).

3. The State Government in their counter affidavit filed by the Assistant Secretary to Government, Revenue Department, averred that the petitioners are manufacturing nearly forty thousand lbs. of Chloral hydrates, that it had come to the notice of the Excise authorities that the bulk of this product was being mixed in 'Sendi' and liquor to give intoxication, and that the medical opinion is that the drug is highly abnoxious to human health. It is further averred that there was no effective control over the manufacture, sale and possession of the drug by the Excise authorities, and that the Government have taken necessary steps by the above Notification to control its improper use. This Notification does not interfere with the right or the pelitioners to carry on their trade. They repudiated the other allegations impugning the Notification.

4. In support of this petition, Sri Surya Prakasam has raised the following contentions : firstly, that the State control in respect of Chloral hydrate-under the Intoxicating Drugs Act as amended by Act XXII of 1953, is ultra vires the State powers inasmuch as the said drug was covered by the Drugs Act of 1940, a Central enactment; secondly, that assuming that it could exercise such control under the Intoxicating Drugs Act, Chloral hydrate is not an intoxicating and narcotic substance as defined under Section 2(4) of the Intoxicating Drugs Act; thirdly that the imposition of a licence fee is illegal and ultra vires the State powers, as 'Chloral hydrate' cannot be brought under item 51 of list II of Seventh Schedule appended to the Constitution. We will presently deal with these contentions.

5. Taking the first contention, we may notice brielly how the Intoxicating Drugs Act came to be enacted in its present form. The Intoxicating Drugs Act of 1333F, was in force in the erstwhile State of Hyderabad. The State of Hyderabad became part of the Indian Union as a Part-B State under the Indian Constitution as and from 26th January 1950. The Central Laws were made applicable to Part-B States in 1951, the Drugs Act of 1940 being one of the Central enactments thus made applicable. The application of the Central Law necessitated certain amendments to Act IV of 1333F. The amendments were made by Act XXII of 1953. We may appropriately notice that the preamble to the Hyderabad Opium and Intoxicating Drugs (Amendment) Act (Act XXII of 1953) brings out fully the necessity for the amendments made. The preamble reads thus : --

'Whereas in consequence of the extension to the State of Hyderabad of the Opium Act, (Central Act XIII of 1857), the Opium Act, 1878 (Central Act I of 1878) and the Dangerous Drugs Act, 1930 (Central Act II of 1930) and the repeal of the corresponding Hyderabad State Law by the Opium and Revenue Laws (Extension of Application) Act. 1950 (Central Act XXXIII of 1950), it is expedient to amend the Hyderabad Opium and Intoxicating Drugs Act (IV-of 1333 Fasli) for the purpose of bringing its provisions into accord with the provisions of the aforesaid Central Acts and for certain other purposes. It is hereby enacted as follows :--'

The Amendment Act (Act XXII of 1953) received the assent of the President on 31-12-1953 and was published in the Hyderabad Gazette dated 7-1-1954. The Act was manifestly assented to by the President under Article 254(2) of the Constitution, which provides thus : --

'Article 254 (2).

Where a law made by the Legislature of a State

with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that

State :

Provided that nothing in this clause shall prevent Parliament from enacting at any lime any law with respect to the same matter including a law adding to, amending, varying or repealing the law :so made by the Legislature of the State.'

6. It may be noticed that Drugs and Poisons,

subject to the provisions of entry 59 of List I with respect to opium occur as item 19 in the concurrent list III of the Seventh Schedule appended to the Constitution. There can be no controversy over these facts. The important fact to bear in mind about the Intoxicating Drugs Act is that it is a State Law which prevails in the State in that it received the assent of the President under Article 254(2) of the Constitution, and the Parliament has not enacted a law contemplated by the proviso,

7. While so, Sri Sutya Prakasam has contended

that by the application of the Drugs Act of 1940, the State enactment must be deemed to have been repealed by implication on account of the repugnancy between the State Law and the Central enactment. He argued that the law recognized the repeal of an Act by implication. He would urge that the Central Act covered the field of drugs exclusively. According to him, it became an occupied field and the Stale law in respect of the drugs ceased to have validity. The arguments of Sri Surya Prakasam may he crystallized in this form : firstly, that the Intoxicating Drugs Act ceased to have validity after the application of the Drugs Act of 1940 to the erstwhile Hyderabad State; and secondly that 'Drugs' have been exclusively taken over by the Union and so became its occupied field and the Drugs Act is a self-contained enactment.

8. We are unable to accept either of these assumptions. From the evolution of the law relating to Drugs, which we have noticed, it is incorrect to say that the Drugs Act is an exhaustive and self-contained enactment. It is equally incorrect to say that the Intoxicating Drugs Act stood repealed by implication. Section 2 of the Drugs Act, 1940 is in these words :

'Application of other laws not barred--

The provisions of this Act shall be in addition to, and not in derogation of the Dangerous Drugs Act, 1930, and any other law or the time being in force.'

9. Sri Surya Prakasam has sought to interpret 'any other law for the time being in force' occurring in this Section as having reference to law in forcethen and not law as came to be amended later. But, this interpretation cannot be correct. The expression 'for the time being' has a legal connotation. In Stroud's Judicial Dictionary 'time being' is explained thus :

'The phrase 'for the time being' may, according to its context, mean the time present, or denote a single period of time; but its general sense is that of time indefinite, and refers to an indefinite state of facts which will arise in the future and which may (and probably will) vary from time to time.'

It is not, therefore, possible to accede to the restricted meaning placed on this phrase by the learned counsel, The expression 'any other law for the time being in force' must he understood to include any future law and not necessarily the law in force at a point of time when the Drugs Act came to be applied. This displaces the entire argument that the Drugs Act is an exhaustive legislation relating to drugs. Equally unsound is the assumption that the Intoxicating Drugs Act must be deemed to have been repealed by implication hy the application of Drugs Act to the erstwhile Hyderabad State, as manifestly amendments to the Intoxicating Drugs Act had been assented to and approved by the President under Article 254(2) of the Constitution so as to make the state law prevail in the State. Sri Surya Prakasam has cited to us a decision of the erstwhile Hyderabad High Court in Pannalal Lahoti v. State of Hyderabad, AIR 1952 Hyd 187 (FB). In that case, during the pendency of a Criminal case, the Hyderabad Criminal Procedure Code was repealed and the Code of Criminal Procedure (Central Act) came to be applied. An accused person contended that the Hyderabad Criminal Procedure Code could not have been validly repealed on the ground that there was no repugnancy between the Hyderabad Code and the Central Act. The contention was repelled and it was held that the Central Act governed the field of Criminal Procedure, although the subject of criminal procedure was a subject which occurred in the concurrent list (item 2). The decision does not present any similarity to the facts and circumstances under consideration in the instant case.

Sri Surya Prakasam has also cited. In re Adilakshmi Ammal, (1941) 2 Mad LJ 41 : (AIR 1941 Mad 533) (FB). It was decided in that case that the Madras Legislature had no power to interfere with the Madras Abkari Act by passing the Madras Prohibition. Act of 1937 in so far as it related to dangerous drugs. It was observed that the Prohibition Act was not reserved for the assent of the Governor-General or for the signification of His Majesty's pleasure and that being the case, the Madras Legislature had no power to interfere with the Madras Abkari Acts so far as the possession of dangerous drugs was concerned. The Government of India Act 1935 also had provisions relating to the distribution of the legislative powers of the Indian Parliament and the State Legislatures. There was a threefold distribution of powers, certain subjects set apart for the exclusive legislative jurisdiction of the Centre (Federal), while certain other subjects were reserved for the Provincial Legislature to deal with, and in addition to the subject allotted to the Centre and to the States respectivery, certain specified matters were reserved for both the Centre and the Provinces to legislate about, with concurrent powers. That decision does not render any assistance or present any similarity to the instant case. We have, therefore, no doubt that this contention fails.

10. The second contention is that 'Chloral hydrate' is not an intoxicating and narcotic substance within the meaning of Section 2 (iv) of the Hyderabad Intoxicating Drugs Act. Section 2 (iv) reads as follows :

'any other intoxicating and narcotic substance which the Government may, by notification declareto be an intoxicating drug, such substance not being opium, coca leaf or a manufactured drug, as defined in Section 2 of the Dangerous Drugs Act, 1930'.

The learned counsel urges that 'Chloral hydrate' is not a narcotic substance and as such the Government have no power to declare it as intoxicating drug within the meaning of the Act, unless it is also a narcotic. The term narcotic' is not defined in the Act. The ordinary dictionary meaning of the term is 'producing torpor, sleep or deadness'. The effect of Chloral hydrate on human senses might be a matter of evidence. But, certainly such investigation is not within the scope of these proceedings. The words of the provision indicate that the declaration may be made by the Government on its own subjective satisfaction. We are not, therefore, constrained in these proceedings to entertain any objection to the Notification of the Government on that ground. Sri Surya Prakasam has argued that the averments in para 2 of the counter affidavit could be read as admissions that 'Chloral hydrate' is not a narcotic substance. The pertinent part is as under :

'..... this substance in a finished form does

not contain either alcohol, opium, Indian hemp or other narcotic drug or narcotics.'

From this an admission is sought to be spelt that 'Chloral hydrate' is not a narcotic substance. We are not persuaded that this could be construed as an admission in the manner contended tor. The counter-affidavit mentions what substances are not contained in the Drug in question. That does not lead to the necessary inference that Chloral hydrate itself is not a narcotic substance. It is much the same way of stating that water, the chemical formula of which is H 2, O does not contain either hydrogen or oxygen in a militant state so as to be segregated. Neither hydrogen nor oxygen is a liquid, but water as a chemical substance composed of hydrogen and oxygen in certain proportions is a liquid. We are, therefore, unable to accept this contention for at least two main reasons : firstly, that controversial questions of fact are not within the purview of these proceedings, and secondly, that the Intoxicating Drugs Act contemplates a subjective satisfaction on the part of the Government to notify a substance having regard unto its effects on the human body.

11. The third objection with regard to levy presents no difficulty, as the Intoxicating Drugs Act itself empowers the Government to impose licence fee etc. in respect of intoxicating drugs. The relevant provision is Section 5 which provides as under :

'The Government may regulate the matters mentioned in Sections 3 and 4 and provide for the supervision and grant of licences and the recovery of intoxicating drugs revenue in such manner and subject to such terms and conditions as may be prescribed.'

Inasmuch as the Intoxicating Drugs Act has to prevail in the State, the imposition of licence fees is quite legal and intra vires the powers of the Government. The point raised whether such imposition is covered also by the State's powers to impose duties of excise on alcoholic liquors, opium, Indian hemp and other narcolic drugs and narcotics with reference to the State list under the Constitution, does not, therefore arise for a decision in this case.

12. There remains the objection that the Notification is violative of the right of the petitioners under Article 19(1) (f) and (g) of the Constitution, It needs to be noticed that that Article also provides thus : (in so far as it is relevant)

'Article 19 (5) :

Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing lawin so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interest of the general public or for the protection of the interests of any Scheduled Tribe.'

6.. Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause.'

13. Thus, the very Article provides that reason-able restrictions could be imposed in the interests of the general public. From what the respondent has averred in the counter-affidavit, which we have referred to supra, we are not left in doubt as to the reasons for the Notification in respect of 'Chloral; hydrate.' In our considered view, they are reasonable restrictions imposed in the interests of the general public. The objection thus [ails.

14. For all the said reasons, we find that no case has been made out by the petitioners for interference. The writ petition fails and is dismissed with costs. Advocate's lee Its. 100.


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