The Patna High Court has quashed the Bihar government order that prohibited issuance of licence to manufacturers of ayurvedic, homeopathic and other indigenous system of medicines containing alcohol. The notification was issued owing to prohibition in the state.
A division bench of Chief Justice Iqbal Ahmad Ansari and Justice Samarendra Pratap Singh set aside the government order, stating that the government did not have the authority to bring about the ban and that the ‘State Government cannot prohibit manufacture and sale of medicinal preparations, containing alcohol, inasmuch as they cannot be equated to alcoholic beverages simplicitor, which are, as such, injurious to human health. ‘
They stated that even Article 47 of the Constitution of India, which mandates that the State shall endeavour to bring about prohibition of the consumption of intoxicating drinks and drugs, which are injurious to health, exempts medicinal preparations containing alcohol.
The petitioners, Samrat Chemical Industries and Shree Baidyanath Ayurved Bhawan Pvt Ltd, had sought quashing of clause 3 of government notification dated 17.3.2016, which barred issuance or renewal of licences granted under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, thereby banning the use of alcohol in medicinal preparations.
The government counsel put forth that the impugned order was in consonance with the new Excise Policy, 2015, to bring complete prohibition in the State of Bihar in public interest and mortality, because of harmful and dangerous effects of liquor. It was contended that the medicinal preparations can be misused by many as intoxicants.
Stating that the state had transgressed its domain in issuing such prohibitory orders, the court pointed out several legislative and statutory provisions in the respect. It said as per Entry 84 in List I, the Union has an exclusive right of legislation with respect to medicinal and toilet preparations containing alcohol.
Contending the jurisdictional claim of the state in view of the amended definition of liquor, the court stated, ‘Excise Act is a pre-constitution Statute and the extended meaning would only be for the purpose of the Act and only to the extent to which State would have a constitutional jurisdiction and not beyond.’
It was further pointed out that even as per Section 33-EED of the Drugs and Cosmetics Act, 1940, the Central government is endowed with the power to prohibit manufacture, sale or distribution of ayurvedic, siddha or unani drugs which likely to involve any risk to human beings or animals in public interest. The court also rejected the submission of that the state would have exclusive right of legislation in respect of Rectified Spirit and Industrial Spirit.
‘The MNTP Act has been enacted by the Parliament under Entry 84 List I of the 7th Schedule of the Constitution, and the medicinal and toilet preparations, containing alcohol, be it ayurvedic, allopathic, unani, homeopathic or other forms of indigenous medicines, cannot be equated with ordinary alcoholic beverage inasmuch as they are consumed only for medicinal purposes,’ stated the court.
The court quashed the impugned order and directed the state to renew the licences of the petitioners. The court held: ‘There is no escape from the conclusion that the State cannot prohibit manufacture, sale or distribution of medicinal and toilet preparations containing alcohol. The power of the State is restricted to Excise duty and at the maximum, such power may be exercised of place reasonable restrictions in the interest of general public, under Article 19(6) of the Constitution of India, subject to test laid down under Articles 14 and 19 of the Constitution of India.
Read the Judgment here.
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