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Gujarat High Court Holds Petitions Challenging Liquor Prohibition Law As Maintainable

LIVELAW NEWS NETWORK
23 Aug 2021 7:25 AM GMT
Gujarat High Court Holds Petitions Challenging Liquor Prohibition Law As Maintainable
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The Gujarat High Court on Monday held as maintainable a batch of writ petitions challenging the prohibition on manufacture, sale and consumption of liquor in the state as per the Gujarat Prohibition Act, 1949.A division bench comprising Chief Justice Vikram Nath and Justice Biren Vaishnav rejected the preliminary objection raised by the State of Gujarat against the maintainability of...

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The Gujarat High Court on Monday held as maintainable a batch of writ petitions challenging the prohibition on manufacture, sale and consumption of liquor in the state as per the Gujarat Prohibition Act, 1949.

A division bench comprising Chief Justice Vikram Nath and Justice Biren Vaishnav rejected the preliminary objection raised by the State of Gujarat against the maintainability of the petitions and posted them for final hearing on merits on October 12. Detailed copy of the order is awaited. The bench initially posted the matters for final hearing on September 20. However, after the Advocate General Kamal Trivedi sought for more time, the final hearing date was fixed as October 12.

"Though the State has raised preliminary objections as to the maintainability of the petitions in effect unless and until the Court delves into the merits of the issues raised in these petitions, these petitions cannot be dismissed at the threshold on the ground of maintainability," the Court said.

It added,

"The petitions challenge new provisions like the validity of Section 24-1B and other newly added provisions and therefore the petitions have to be heard on merits and cannot be severed as part maintainable and part not-maintainable."

The Court was also of the opinion that the challenge as to the prohibition of intoxicating beverages for human consumption being violative of Part III of the Constitution was never under challenge or was under examination before the Courts before.

The Advocate General hinted that the Government might move the Supreme Court challenging the order. "If at all the government is thinking of testing it before a higher court, it needs some accommodation", the Advocate General told the bench while requesting for more time.

"Who is stopping you from that? That is your right", the Chief Justice told the Advocate General. Finally, the bench agreed to post the matters on October 12, the date suggested by the Advocate General.

The bench had reserved orders on the preliminary question of maintainability on July 23. The petitions challenged the liquor prohibition law as "manifestly arbitrary" and as a violation of right to privacy, which has been recognized as a fundamental right as per the 2017 judgment of the Supreme Court in the KS Puttaswamy case.

The State had raised preliminary objections to the challenge arguing that the High Court cannot sit in appeal over the Supreme Court's decision in State Of Bombay & Anr. v. FN Balsara where validity of some of the sections of the Prohibition Act was upheld.

"A new ground of challenge even on the basis of approach made in later decisions of the Supreme Court are not available," Advocate General Kamal Trivedi argued.

The petitioners however contended that challenge to the legislation before the Supreme Court was only to the limited extent of medicinal and toilet preparation. It was stated that question of validity of prohibiting consumption of alcohol was not decided by the Supreme Court and hence the Gujarat High Court is competent to adjudicate the issue.

The petitioners also argued that right to privacy was not recognized as a fundamental right in 1951 when the Supreme Court upheld the validity of the provisions in the prohibition law in the Balsara case.

The Petitioners had moved the High Court stating that two new grounds for challenging the Act have been laid down by the Supreme Court post 2017, in several cases.

The first new ground is 'manifest arbitrariness' laid down in the cases of Shayara Bano, Navtej Singh Johar and Joseph Shine.

The second ground is based on 'right to privacy' ,'right to be left alone' and 'right to consume liquor within four walls of one's home'— which they argue is a facet of right to privacy that was recognized by the Supreme Court in KS Puttaswamy v. Union of India.

Senior Advocates Mihir Thakore, Mihir Joshi, Advocate Devan Parikh, Saurabh Soparkar etc., appeared for the petitioners.

The question before the High Court was whether by the said Judgment, the Supreme Court had decided the validity of the entire Act so as to render as non-maintainable the instant petitions.

"Before us in the present petitions, the main challenge is of possession, use and consumption of intoxicating drinks which was not the subject of challenge before the Bombay High Court in the case of F.N.Balsara(supra)," the High Court concluded.

It emphasized that each case presents its own features and it is important to analyse a decision and isolate from it the ratio decidendi.

It added,

"The challenge before the Bombay High Court and the Supreme Court in the case of F.N.Balsara (supra) was to the validity of Sections 12 and 13 of the Bombay Prohibition Act, 1949 as being violative of Article 19(1)(f) of the Constitution Of India. Moreover, the challenge was in relation to the liquids containing alcohol not being intoxicating liquors in context of medical and toilet preparations and the provisions which prevented the use of liquids containing alcohol that are not beverages but are medicinal and toilet preparations. Keeping in mind the basic pleading and submissions so made by the Counsels for the petitioners what is under the scrutiny of this Court in the petitions before us are the provisions that deal with purchase, possession and consumption of potable liquor and/or alcoholic drinks, which was not the subject matter of challenge before the Bombay High Court or the Supreme Court in the case of F.N.Balsara (supra).

A Bird's eye view of the Act and the provisions which are a subject matter of challenge in the petitions under consideration are pertaining to prohibition of import, transfer, possession and buying of liquor, consumption and use thereof, prohibition of entry in state of intoxication, prohibition of vendor to sell liquor to anyone except permit holders, permit to use or consume liquor on warships, troopships and in messes and canteen of armed forces and various provisions pertaining to permits. Before the Courts in the case of F.N.Balsara (supra) these Sections were not under challenge and further some of these sections had been introduced by way of amendments."

Case Title :  Peter Jagdish Nazareth vs State of Gujarat(SCA 799/2019) and connected cases).

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