Patna High Court
M/S Mattei Electro Homoeo Industries vs The State Of Bihar on 6 March, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1952 of 2024
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M/s Mattei Electro Homoeo Industries a proprietorship concern having its
registered office at Industrial Area Bikramganj, Plot No. B4 and B5, P.S.-
Bikramganj, District-Rohtas through its proprietor Ashok Kumar Singh, Male,
aged about 55 years, son of Late Daya Shankar Singh, resident of Village-
Dhangain, P.S.-Bikramganj, District-Rohtas-802212.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Registration Excise and
Prohibition Department, Government of Bihar, Patna.
2. The Secretary, Registration Excise and Prohibition Department, Patna.
3. The Commissioner of Excise, Rohtas.
4. The Collector, Rohtas.
5. The Assistant Commissioner of Excise, Rohtas.
6. The State Drug Controller (Ayush) cum State Licensing Authority, Bihar,
Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Satyabir Bharti, Advocate
Mr.Abhishek Anand, Advocate
Ms.Kanupriya, Advocate
For the Respondent/s : Mr.Mujirbaual Haque, GP12
Mr.Pranoy Kumar, AC to GP12
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 06-03-2024
In the instant petition, petitioner has prayed for the
following relief(s):-
"(i) For issuance of an appropriate
writ of certiorari, quashing the order dated
28.12.23
as contained in Memo No.
14/M&TP/2023-8171, passed by the
Respondent No 2 namely The Secretary,
Registration. Excise and Prohibition
Department, Bihar, Patna by which the
application of the petitioner for issuance of
Patna High Court CWJC No.1952 of 2024 dt.06-03-2024
necessary orders enabling the petitioner to
procure/purchase Extra Neutral Alcohol
(ENA) for manufacture of Homeopathic
Medicines, has been rejected on a flimsy
ground that in the light of the judgment and
orders passed by the Hon'ble Supreme Court
and Hon'ble Patna High Court and Section 13
and 17 of the Bihar Prohibition and Excise
Act, 2016, grant of new license to the
petitioner and allotment of ENA would not be
in accordance with law;
(ii) Issuance of a writ of Mandamus,
directing the respondents particularly the
respondent no. 2 to issue necessary orders,
enabling the petitioner to procure/purchase
Extra Neutral Alcohol (ENA) for manufacture
of Homeopathy Medicine;
(iii) Pass such other order(s) as
your Lordships may deem fit and proper in the
facts and circumstances of the present case."
2. Petitioner proprietorship industry established with an
object of manufacture for sale (or distribution of) homeopathic
medicine. In this regard, he had obtained license under the Drugs
and Cosmetics Act, 1940. Such license has been issued by the
State Drug Controller (Ayush)-cum-State Licensing Authority,
Bihar, Patna, and it is in the Form - 25-C (vide Rule-85D), such
license was issued on 25.02.2022, and it would be in vogue for the
period from 25.02.2022 to 24.02.2027. Faced with these dates and
events, petitioner approached the Excise Department in procuring
12,000 litres of ENA (Extra Neutral Alcohol) on 11.04.2023.
Application was not disposed of or his grievance has not been
redressed, resulted in filing CWJC No. 9801 of 2023 and it was
Patna High Court CWJC No.1952 of 2024 dt.06-03-2024
disposed on 28.07.2023 while directing the Excise Commissioner
- respondent to pass a detailed speaking order. Accordingly,
petitioner grievance has been rejected on 28.12.2023. Hence, the
present petition.
3. Learned counsel for the petitioner submitted that
rejection of petitioner's grievance insofar as providing 12,000
liters of ENA is contrary to earlier two decisions of this Court
which were affirmed by the Hon'ble Supreme Court which are part
and parcel of this petition, namely, CWJC No. 6415 of 2016
decided on 27.10.2016 and CWJC No. 8705 of 2017 decided on
12.02.2018. Hon'ble Supreme Court in Civil Appeal No. 247 of
2017 affirmed the decision of this Court on 20.04.2018 in SLP(C)
No. 9375 of 2018. The principle laid down in the aforementioned
decision of the Co-ordinate Bench has been completely ignored.
However, it is submitted that earlier decisions are applicable to
such of those existing license at the relevant point of time whereas
the petitioners intends to manufacture homeopathic medicine with
reference to license dated 25.02.2022. In other words, for new
manufacturer providing ENA is not permissible. In support of such
contention learned counsel for the respondents relied on Section
13 & 17 read with Section 2 (40) of Bihar Prohibition and Excise
Act, 2016.
Patna High Court CWJC No.1952 of 2024 dt.06-03-2024
4. Learned counsel for the petitioner submitted that
reasoning assigned in the impugned order dated 28.12.2023 is
incorrect. It is submitted that State has come up with policy
decision insofar as manufacture of medicines it is dated
17.03.2016 bearing memo no. 1507 which was subject matter of
CWJC No. 6415 of 2016 and it was set aside by Co-ordinate
Bench on 27.10.2016. The same principle was reiterated in
subsequent decision in CWJC No. 8705 of 2017 and it was dispose
of on 12.02.2018. It is further submitted that denial of providing
requesite ENA for the purpose of manufacture homeopathy
medicine to the petitioner amounts to discrimination and it is in
violation of Article 19(1)(g) of the Constitution.
5. Per contra, learned counsel for the respondents
submitted that there is no infirmity in the impugned decision of the
respondent dated 28.12.2023. The concerned authority has
assigned the reasons as to why the petitioner is not entitled to
procure ENA and other related spirits in respect of manufacture of
homeopathic medicine. He relied on Section 13 & 17 of the Act,
2016 read with subsequent Section 2 (40) Act, 2016.
6. Heard learned counsel for the respective parties.
7. Undisputed facts are that petitioner is a license holder
to manufacture for sale or for distribution of homeopathic
Patna High Court CWJC No.1952 of 2024 dt.06-03-2024
medicines pursuant to license issued by the State Drugs Controller
on 25.02.2022, and it is in vogue for the period from 25.02.2022
to 28.02.2027. Pursuant to license, petitioner has approached the
respondents seeking for procurement of ENA for the purpose of
manufacture of homeopathic medicine. The same was not acted
upon in the result petitioner was compelled to approach this Court
in the seeking Writ of Mandamus. It was granted thereafter the
Excise Commissioner proceeded to reject the grievance of the
petitioner. Hence the present petition.
8. State Government evolved a policy decision in respect
of refusal of providing certain intoxicants/ENA material for the
purpose of manufacture of medicine vide circular dated 17.03.2016
cited (supra), policy decision dated 17.03.2016 involving issuance
of new license and renewal of existing license was banned and it
was subject matter of litigation before this Court in CWJC No.
6415 of 2016 and subsequently in CWJC No. 8750 of 2017 both
the petitions were allowed. In fact 17.03.2016 policy decision of
the State Government was struck down while directing the
concerned official respondent to renew the existing license. That
does not mean that permission granted by this Court only to such
of those existing license holder. On the other hand, we have to take
note of the fact that policy decision dated 17.03.2016 is in respect
Patna High Court CWJC No.1952 of 2024 dt.06-03-2024
of issuance of new license and renewal of existing license as on
that particular date. In other words, insofar as banning new license
was also one of the subject matter of policy decision dated
17.03.2016 and it has been struck down.
9. Taking note of these facts and circumstances, in all
fairness Excise Commissioner should have permitted petitioner to
procure related intoxicants for the purpose of manufacture of
homeopathic medicine. There can't be a discrimination among the
existing manufacture of homeopathic medicine and new license
holder insofar as procurement or supply of intoxicant materials on
behalf of the State Government.
10. It is to be noted that there is a violation of Article
19(1)(g) of the Constitution. On this issue, Hon'ble Supreme Court
decision in the case of State of Punjab & Another vs. Devans
Modern Breweries Ltd. & Another reported in (2004) 11 SCC
26, in Para 344(3), which reads as under:-
"344 (3) The right to carry on trade
in liquor is a fundamental right within the
meaning of Article 19(1)(g) of the
Constitution and the State may, however,
legislate prohibiting such trade either in
whole or in part in terms of clause (6)
thereof."
In the light of principle laid down by the Hon'ble
Supreme Court, it is evident that State is permitted to invoke
Patna High Court CWJC No.1952 of 2024 dt.06-03-2024
Article 19(6). At this stage, it is necessary to re-produce Article
19:-
"19. Protection of certain rights
regarding freedom of speech, etc.--(1) All
citizens shall have the right--
(a) to freedom of speech and
expression;
(b) to assemble peaceably and
without arms;
(c) to form associations or unions;
(d) to move freely throughout the
territory of India;
(e) to reside and settle in any part of
the territory of India;
(g) to practise any profession, or to
carry on any occupation, trade or business.
[(2) Nothing in sub-clause (a) of
clause (1) shall affect the operation of any
existing law, or prevent the State from making
any law, in so far as such law imposes
reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the
interests of [the sovereignty and integrity of
India,] the security of the State, friendly
relations with foreign States, public order,
decency or morality, or in relation to contempt
of court, defamation or incitement to an
offence.]
(3) Nothing in sub-clause (b) 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 sovereignty and integrity
of India or] public order, reasonable
restrictions on the exercise of the right
conferred by the said sub-clause.
(4) Nothing in sub-clause (c) 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 sovereignty and integrity
of India or] public order or morality,
Patna High Court CWJC No.1952 of 2024 dt.06-03-2024
reasonable restrictions on the exercise of the
right conferred by the said sub-clause.
(5) Nothing in [sub-clauses (d) and
(e)] 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, reasonable restrictions on the
exercise of any of the rights conferred by the
said sub-clauses either in the interests 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, and, in
particular, [nothing in the said sub-clause
shall affect the operation of any existing law
in so far as it relates to, or prevent the State
from making any law relating to,--
(i) the professional or technical
qualifications necessary for practising any
profession or carrying on any occupation,
trade or business, or
(ii) the carrying on by the State, or
by a corporation owned or controlled by the
State, of any trade, business, industry or
service, whether to the exclusion, complete or
partial, of citizens or otherwise]."
No doubt, State is empowered to impose restrictions
under Article 19(6). However, it should be only by means of law
and not by means of executive order. Even such executive order
dated 17.03.2016 has been struck down by Co-ordinate Bench of
this Court and matter was taken up to Hon'ble Supreme Court and
it has been affirmed and examined in detailed to the extent that
Patna High Court CWJC No.1952 of 2024 dt.06-03-2024
right cannot be taken away for the purpose of engaging trade and
other activities in accordance with law. Further, the State
respondents have not come up with any policy decision to
overcome Article 14 of the Constitution to the extent that there is a
reasonable classification among the existing manufacture of
homeopathy medicine or newly license holder. In other words,
there would be a violation of Article 14 of the Constitution. On
this issue, Hon'ble Supreme Court in number of cases held that
there is a reasonable restriction insofar as invoking Article 14 of
the Constitution. Even the respondents State has not come up with
any policy decision in the form of law so as to distinguish or
classifying that existing traders form a separate class of trader or
manufacturer and so also newly license holder form a separate
class of trader/manufacture.
11. In the absence of these material information and the
fact that policy decision of the State Government dated 17.03.2016
was already subjected to judicial review. Therefore, rejection of
the petitioner for procurement of ENA for the purpose of
manufacture of homeopathic medicine is arbitrary. Accordingly,
impugned communication dated 12.10.2023 stands set aside.
12. Respondent No. 2 - Secretary, Registration Excise
and Prohibition Department, Patna is hereby directed to provide
Patna High Court CWJC No.1952 of 2024 dt.06-03-2024
intoxicants/ENA material for the purpose of manufacture of
homeopathic medicine to the petitioner, in accordance with law
and on par with such of those manufactures who are being
provided by the State without their being any discriminatory.
Necessary intoxicants/ENA materials demanded by the petitioner
shall be provided to the petitioner within a period of two months
from the date of receipt of this order.
13. Further, till any policy decision or any statutory rules
are issued petitioner shall be provided intoxicants/ENA materials
for the purpose of manufacture of homeopathic medicine from
time to time.
14. With the above observations, the present writ
petition stands allowed.
(P. B. Bajanthri, J)
( Alok Kumar Pandey, J)
abhishekkr/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 15.03.2024
Transmission Date NA
