Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 WA NO. 1618 OF 2016 AGAINST THE ORDER/JUDGMENT DATED 02.11.2015 IN WPC NO.11615 OF 2014 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:
DR.M.L.AJITH KUMAR PLAVILAMALEYPUTHENBANGLOW, KAZHIVOOR.P.O, KANJIRAKULAM,T HIRUVANANTHAPURAM DISTRICT, PIN-695526.
BY ADVS.
SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA RESPONDENTS/PETITIONER & RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNEMNT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001.
2 EXCISE COMMISSONER EXCISE HEADQUARTERS, NANDAVANAM, VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM,PIN-695033.
3 DEPUTY COMMISISONER OF EXCISE EXCISE DIVISION OFFICE, FORT.P.O, THIRUVANANTHAPURAM-695023.
4 CIRCLE INSPECTOR OF EXCISE EXCISE CIRCLE OFFICE, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN-695121.
WA NO. 1618 OF 2016 2 5 DRUGS CONTROLLERISM OFFICE OF THE DRUGS CONTROLLER, VANCHIYOOR.P.O, THIRUVANANTHAPURAM, PIN-695035.
SR GP SRI BIMAL K NATH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 1618 OF 2016 3 JUDGMENT Amit Rawal, J.
1.
Writ petition filed by the appellant/petitioner challenging Ext.P27 order dismissing his licence and the declaration of the provisions of the Kerala Spirituous Preparations (Control) Rules, 1969, was not accepted by the Single Bench, thus preferred this intra court appeal inter alia on the following points:
Appellant/petitioner is a registered medical practitioner in Ayurvedic Medicine and also a licensee for manufacture for sale of Ayurvedic including Siddha or Unani drugs at his pharmaceuticals since 30.11.2009 and has also been issued a licence in FORM 25-D under the Drugs and Cosmetic Acts, 1940, (hereinafter called 1940 Act) and Drugs and Cosmetic Rules, 1945 (hereinafter called 1945 Rules) which was valid upto 29.11.2012. On submission of the application for renewal of the licence under Section 25A, the authorities empowered to do so had been renewing the same from time to time. When the Medicinal and Toilet Preparations (Excise
WA NO. 1618 OF 2016 4 Duties) Act, 1955 was in vouge, had been issued a licence in FORM L-2 as well as the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956, for the preparation of medicines containing alcohol, opium, Indian hemp and other narcotic drugs. The aforementioned licence was issued by the then Assistant Excise Commissioner as evident from Ext.P5 which had been renewed from time to time. It is pertinent to mention here by provisions of Section 174 of the GST Act, the 1955 Act had been repealed. Therefore, there was no necessity to obtain the licence.
2.
Grievance in the writ petition arose when the respondent-authorities established under the Abkari Act and for implementation of the Rule called the Kerala Spirituous Preparations (Control) Rules, 1969 (hereinafter called ‘1969 Rules’ for short) forced the petitioner to obtain a licence in FORM SP VII as prescribed under Rule 11 of the 1969 Rules.
The said act of the respondent-Authorities was totally without jurisdiction as the licence in FORM 25-D under 1940 Act and 1945 Rules had already been issued. In view of the
WA NO. 1618 OF 2016 5 law laid down in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of Tamil Nadu And Others (1996) 3 SCC 15, there is a repugnancy in the Central and State Act leading to a contradiction and as per the settled law, in view of such contradictions, it will be the Central law which would prevail,. Show Cause Ext.P27 was issued owing to the registration of the crime cases while transportation of two medicines namely ‘Arishtas’ and ‘Asavas’ lacked issuance of licence provided under Rule 11 ie., FORM SP VI.
Various crime cases though have been compounded, few are still pending.
3. The aforementioned pleas were countered by the State on the premise that the appellant/petitioner had not taken the licences ie., SP VI and SP VII prescribed under Rule 11 of the 1969 Rules for wholesale and retail sale of the medicines referred to above ie., ‘Arishtas’ and ‘Asavas’ manufactured in FORM L2 licence for medicines. At earlier point of time, appellant/petitioner had obtained SP VI licence
WA NO. 1618 OF 2016 6 as evident from Ext.P7 and challan Ext.P8 but under a wrong notion did not deposit the challan and taken the licence on the premise that he had already been issued a licence under Form 25-D of 1940 Act. Ten (10) Abkari cases were registered against the appellant/petitioner in various Excise Ranges of Thiruvananthapuram Division for violation of the repealed Act ie., 1955. It was reported by the concerned authorities that products were sold through some SP VII licence premises to public without any prescription from a qualified practitioner. The licence FORM L-2 issued under the Repealed Act, 1955, authorised the appellant/petitioner to manufacture Ayurvedic Medicines but the medicines referred to above contain liquor upto 12% v/v. In order to test whether it exceeds the said limit, it is required to obtain a licence under Rule 11 of 1969 Rules. Emphasis was laid to the report of Superintendent of Police Ext.R1(a). The contention of asking for illegal rectification and stealing of money were emphatically denied. Learned Single Bench on analysis of the case law and the provisions of the Act much
WA NO. 1618 OF 2016 7 less the entries in List-I, List-II as well as List-III of Seventh Schedule of the Constitution of India did not accept the contention and dismissed the writ petition.
3.
Learned counsel appearing on behalf of the appellant/petitioner in support of the memorandum of appeal has raised the following submissions:
(a) Article 254 of the Constitution of India deals with the repugnancy between the State and Central Acts and in case it is found that the enactment of the Act by the State have contradictory provisions, the provisions of Central Act would prevail in view of the judgment cited supra.
(b) Rule 168 of the 1945 Rules as amended in 1983 applicable to Kerala with effect from 1985, was relied upon to contend that the medicines manufactured by the appellant do not exceed liquor at 12% v/v and therefore once the licence is issued under the Act which also envisage the penal provisions for violation thereof, State cannot impel/implore
on
the
manufacturer
like
the appellant/petitioner in manufacturing of the medicines
WA NO. 1618 OF 2016 8 referred above, for obtaining the licence SP VI provided under Rule 11. Now the appellant/petitioner is not required to obtain FORM L-2 licence under 1955 Act as it stood repealed owing to the promulgation of GST Act as per the provisions of Section 174.
(c) On account of non-obtaining of the licence, the authorities have been confiscating the goods manufactured by the appellant/petitioner and also registering the crime cases, few of them were compounded but the said practice is unabated. It is in that circumstances a cause of action arose, filed the aforementioned writ petition.
(d) In support of the aforementioned contention relied on the judgment in Priyamvada P.G.(Dr.) v. State of Kerala and Others [2015 (5) KHC 63] to contend that the medicines manufactured by the appellant/petitioner were also the point of consideration before the Single Bench whereby the action taken by the Excise Department for confiscating the goods being sold and transported was found to be not in favour of Excise Department and it was held
WA NO. 1618 OF 2016 9 that the department was not entitled to initiate the proceedings under Section 67B of the Abkari Act to confiscate the vehicles containing such medicines.
(e) The
aforementioned
Ayurvedic
Medicines containing self generated alcohol when processed can not be an intoxicating liquor for human consumption or be brought under the definition of 'alcohol' defined under Section 3(b) or Section 3(k) Spirituous preparation as in section 3(l), while defining spurious preparation there has been a note that it will be spirituous in case these two medicines are on preparation contained alcohol more than 12% of volume.
Thus, even if the manufacturing of these drugs contain less than 12% appellant/petitioner is forced to obtain a licence under Rule 11 dealing with spirituous preparation by depositing the requisite charges.
There is no provision in the Abkari Act or the 1969 Rules to effectively control the manufacture, sale of spurious misbranded, adulterated or substandard Ayurvedic preparations.
(f) The provisions of the Abkari Act and Rules framed
WA NO. 1618 OF 2016 10 thereunder so far as the product manufactured under licence in FORM 25-D of 1940 Act and 1945 Rules are concerned, are unconstitutional as FORM 25-D is a composite licence permitting to manufacture and sell medicinal preparations throughout India and for that, no other separate licence other than the licence under 1955 Act which is now repealed is required. In support of the contention relied upon the Full Bench judgment in Enoch Pharma v. State of Kerala [1979 KHC 423:ILR 1979 (1) Ker. 655] (g) Learned Single Judge relied upon the aforesaid judgment which is not applicable to the present case for it is a case connected with Allopathic Medicines containing rectified spirit whereas Thomas Vaidyan and Others v.
State of Kerala and Others [1971 KLJ 641] is connected with Ayurvedic medicine containing self generated liquor.
Judgment was rendered in 1971 ie., before Chapter IV A of the Drugs and Cosmetic Act was amended and came into force with effect from 01.05.1985.
(h) Kerala Spirituous Preparation (Control) Rules 1969
WA NO. 1618 OF 2016 11 have been framed not only against the provisions of the parent Act ie., Abkari Act but also against the Drugs and Cosmetic Act, 1940. It clearly violates Article 254 (1) and (2) and the proviso of the Act. In Priyamvada case this Court has held that two Ayurvedic Medicines cannot be treated as liquor under Sections 3(10), 56(b) or 67B(a) of the Abkari Act, at the best they can be 'intoxicating drug' which would thus for all intends and purposes outside the purview of the Abkari Act. Transportation of such non- notified intoxicating drugs would not attract applicability of the provisions of Section 55B of the Act and much less any offence under Section 67B or Rules 9 and 10 of the 1969 Rules, as Rule 10 of the 1969 Rules puts an embargo on any person process any spirituous preparation except under and in accordance with the conditions of a licence or permit issued under 1969 Rule or in excess of quantity handed in such licence or permit.
4.
On the other hand, Mr.Bimal.K.Nath, learned State Counsel relied upon the judgment of the Supreme Court in
WA NO. 1618 OF 2016 12 State of Bihar v. Shree Baidyanath Ayurved Bhavan [2005 (2) SCC 762, 2005 KHC 271] to contend that an Ayurvedic Medicinal preparation containing alcohol is capable of being used as alcoholic beverage and can be diverted to human consumption, though it is regulated under the provisions of 1940 Act and 1945 Rules by incorporating penal provisions. However, the State cannot be prevented from enacting a law for licensing and regulation of an activity like use and misuse of medicines. There is no contradiction or repugnancy or violation of provisions of Article 254 of the Constitution of India. Manufacture, possession, sale, import, export, etc., of all liquor containing alcohol are always controlled and governed by the relevant provision of the Abkari Act under the Regulations/Rules framed thereunder. The medicines ‘Arishtas’ and ‘Asavas’ contain self generated alcohol, its handling is attracted by the provisions of Abkari Act and 1969 Rules. The said interpretation by the appellant/petitioner is wholly misplaced. The whole purpose of enacting 1969 Rules and
WA NO. 1618 OF 2016 13 the Act is to regulate the sale of intoxicating drugs exceeding permissible level of liquor content. Condition No.1 of the SP VI licence provides that the privilege extends to the possession and sale of spirituous preparations to other holders of licences in FORM SP VII for the purpose of retail sale, to medical practitioners, for supply to patients, hospitals, dispensaries, maternity homes, etc. It is mandatory for the manufacture of the Ayurvedic drugs which on processing generate natural alcohol to have licence under 1969 Rules. In support of the contention, provisions of Section 33E, 33EE, 33EEA of the 1940 Act was also referred.
5.
We have heard the learned counsel for the parties and appraised the paper book.
6.
Drugs and Cosmetics Act 1940 was amended in 1983 and has been made applicable to State of Kerala, concededly, with effect from 01.05.1985. Part IVA deals with the provisions relating to Ayurvedic, Siddha and Unani drugs. It would be expedient to extract provisions of Section
WA NO. 1618 OF 2016 14 33C, 33E, 33EE, 33EEA of the Act. The same reads as under:
“33E. Misbranded drugs For the purposes of this Chapter, an Ayurvedic, Siddha or Unani drug shall be deemed to be misbranded— (a) if it is so coloured, coated, powdered or polished that damage is concealed, or if it is made to appear of better or greater therapeutic value than it really is; or (b) if it is not labelled in the prescribed manner; or (c) if its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular.
33EE. Adulterated drugs For the purposes of this Chapter, an Ayurvedic, Siddha or Unani drug shall be deemed to be adulterated,— (a) if it consists, in whole or in part, of any filthy, putrid or decomposed substance; or (b) if it has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or (c)if its
WA NO. 1618 OF 2016 15 container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or (d) if it bears or contains, for purposes of colouring only, a colour other than one which is prescribed; or (e) if it contains any harmful or toxic substance which may render it injurious to health; or (f) if any substance has been mixed therewith so as to reduce its quality or strength.
Explanation.—For the purpose of clause (a), a drug shall not be deemed to consist, in whole or in part, of any decomposed substance only by reason of the fact that such decomposed substance is the result of any natural decomposition of the drug:
PROVIDED that such decomposition is not due to any negligence on the part of the manufacturer of the drug or the dealer thereof and that it does not render the drug injurious to health.
33EEA. Spurious drugs For the purposes of this Chapter, an Ayurvedic, Siddha or Unani drug shall be deemed to be spurious— (a) if it is sold, or offered or exhibited for sale, under a name which belongs to another drug; or
WA NO. 1618 OF 2016 16 (b) if it is an imitation of, or is substitute for, another drug or resembles another drug in a manner likely to deceive, or bears upon it or upon its label or container the name of another drug, unless it is plainly and conspicuously marked so as to reveal its true chara cter and its lack of identity with such other drug; or (c) if the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, which individual or company is fictitious or does not exist; or (d)if it has been substituted wholly or in part by any other drug or substance; or (e) if it purports to be the product of a manufacturer of whom it is not truly a product.” 7.
Various specifications have been provided for bringing the drugs under different heads like spurious, misbranded, adulterated drugs, Ayurvedic drugs and penal provisions have also been enumerated under section 33L onwards. Rule 168 of 1945 Rules under Part XIX inserted with effect from 26.06.1995 provided as under:
“168. Standards to be complied with in manufacture
WA NO. 1618 OF 2016 17 for sale or for distribution of Ayurvedic, Siddha and Unani Drugs.- Class of Drugs Standards to be complied with 1. Drugs included in Ayurvedic Pharmacopoeia The standards for identity, purity and strength as given in the editions of Ayurvedic Pharmacopoeia of India for the time being in force.
2. Asavas and Aristas The upper limit of alcohol as self generated alcohol should not exceed 12%v/v excepting those that are otherwise notified by the Central Government from time to time.
8.
Licence under the aforementioned Rule is prescribed to be issued in a FORM 25-D. The contents of the same reads as under:
“FORM 25-D [Refer Rule 154] LICENCE TO MANUFACTURE FOR SALE OF AYURVEDIC, SIDDHA OR UNANI DRUGS No.of Licence and date of issue...............................
1. ............is/are hereby licenced to manufacture the following Ayurvedic, Siddha or Unani drugs on the premises situated at.................under the direction and supervision of the following competent technical staff:-
WA NO. 1618 OF 2016 18 (a) Competent Technical staff (Names).
(b) Names of drugs categorized as per Schedule T (each item to be separately specified) with specific Product Code/QR Code for each approved drug.
2. The licence shall be in force from.................
3. The licence is subject to the conditions stated below and to such other conditions as may be specified in the Rules for the time being in force under the Drugs and Cosmetics Act, 1940.
Date.......................
Designation............. Signature...............” 9.
No doubt the appellant had been issued licence which would extend to all additional items which the licensee is required to intimate assessing authority from time to time with a deterrent provisions that in case of violation of the conditions of the Act and Rules framed thereunder, can be cancelled, suspended or otherwise.
10.
Various schedules have been prescribed for sale of Allopathic and Ayurvedic medicines. These schedules have been for the purpose of selling the drugs off the shelf. The Schedule H drugs pertain to an Allopathic medicine whereas Schedule T of the Drug Rules 1945 deals with Ayurveda, Siddha or Unani drugs. No doubt in the two medicines
WA NO. 1618 OF 2016 19 referred to above the upper limit of alcohol self generated should not exceed 12% v/v. The question arises is whether manufacturer manufacturing such product is required to obtain a licence under the enactments of State or not.
Pursuant to the powers conferred under Section 29 of the Act, Government of Kerala framed Kerala Spirituous Preparation (Control) Rules 1969. Section 3(b) 3(d) 3(k) 3(l) defines alcohol, bonafide medicinal preparation, Spirituous preparation and spurious preparation respectively. On compendious perusal of the aforementioned provisions by putting a note under the definition of spurious medicine is a clarification that medicines manufactured by the appellant containing alcohol on such generation shall be deemed to be spurious preparation in case it exceeds 12% of alcohol v/v, but vis-à-vis the spirituous preparation even in any medicine containing alcohol content irrespective of the proof of percentage under the provisions of Rule 11 is required to obtain a licence in the FORM of SP VI. Rule 11 prescribes various kinds of licence ie., wholesale and retail. Sub Rule 4
WA NO. 1618 OF 2016 20 of Rule 11 of the Kerala Spirituous Preparations (Control) Rules, 1969, envisaged that any licence issued under this Rule shall be valid only in respect of preparations coming under any of the medicines namely Allopathic, Ayurvedic, Siddha, Unani or Homeopathic. The same reads as under:
“(4) Any licence issued under this rule, shall be valid only in respect of preparations coming under any one of the following systems of medicine, namely; Allopathic, Ayurvedic, Sidha, Unani or Homeopathic as may be specified in the incence.” 11.
Article 254 of the Constitution of India has been enacted for the purpose of eradicating inconsistency between the laws made by the Centre and or by the State legislature. The same reads under:
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after
WA NO. 1618 OF 2016 21 the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(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 time 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.” 12.
The aforementioned Article has been pondered in various judgments and in respect of the controversy involving the applicability of Excise Act as well as 1940 Act, it has been held that the State is empowered to enact local laws for the purpose of use and possession of alcoholic beverage as it would fall under the domain of the State government. Licensing and Regulation of an activity like use
WA NO. 1618 OF 2016 22 and misuse of medicine is an enormous activity involving heavy expenditure. It is open to the State to delegate some of its power to the Board of Revenue to prescribe forms of licence, licence fees, regulation of retail sales. Thus State as well as the Board are competent to issue notifications, communications, show cause notices in case a manufacturer like the appellant/petitioner does not have the licence issued under Rule 11 of 1969 Rules. Paragraphs 26 and 27 of the judgment in State of Bihar reads as under:
“26.
As stated above, use/misuse of Ayurvedic preparations as alcoholic beverage can become the subject matter of regulation and control by the State. It is the subject of the Bihar Act, 1915. Hence, the State Act is relatable to Entry 8 read with Entry 6 of List-II. The State law operates in a different field vis-`-vis Medicinal Act, 1955 which is relatable to Entry 84 List-I. We have examined the scheme of the two Acts. Medicinal Act, 1955 levies excise duty on the manufacture of medicinal and toilet preparations. The said 1955 Act is a taxing statute. Entry 84 List-I is an entry which deals with taxing power. On the other hand, Entry 8 read with Entry 6 of List-II refers to general subject of legislation.
It refers to regulation and control of substances in public interest. The Act is enacted in public interest to secure good health for the citizens. Therefore, the two Acts are in different spheres. There is no trenching even incidentally by
WA NO. 1618 OF 2016 23 the Bihar Rules and the impugned notifications into the provisions of the Medicinal Act, 1955 read with the Rules. It is well settled that even if at all there is any trenching or incidental encroachment such encroachment will not affect the competence of the Legislature to enact the law nor will it affect its validity. [See: State of Bombay v. Narothamdas Jethabai & Another reported in [1951 SCR 51]. In the case of Gallagher v. Lynn reported in [1937 A.C. 863], the Privy Council held that although the impugned Act was in pith and substance an Act to protect the health of the inhabitants of Northern Ireland and though incidentally it affected trade, which came in the Union List, the State law was not passed in respect of the trade and was therefore not subjected to attack on that ground.
27.
As stated above, an Ayurvedic medicinal preparation containing alcohol is capable of being used as an alcoholic beverage, just as an industrial alcohol is capable of being diverted to human consumption. It is now well settled by a catena of decisions that the manufacture of industrial alcohol is covered by the Central laws, however, its diversion can be regulated by State laws enacted with reference to Entries 6 & 8 of List-II. Similarly, duty on manufacture of medicinal preparations containing alcohol would fall under the said 1955 Act, however, use and possession thereof will fall under the State law, like the said 1915 Act. Similarly, manufacture for sale of a substance containing alcohol as a drug would stand covered by the said 1940 Act, however, its use and possession as an alcoholic beverage would fall under the State law. Licensing and regulation of an activity like use/misuse of medicine is an enormous activity involving heavy expenditure. Hence, it is open to the State Government to delegate some of its powers to the Board of
WA NO. 1618 OF 2016 24 Revenue to prescribe forms of license, license fees, regulation of retail sales etc. In the circumstances, the State as well as the Board was competent to issue the impugned notifications/ communications under sections 5, 19(4), 38, 39 and 90 of the said 1915 Act (as amended) to license and regulate the use of such preparations as alcoholic beverages.
In the circumstances, we hold, that, the High Court had erred in holding that the impugned notifications/ communications had encroached upon the filed occupied by the said 1940 Act and the said 1955 Act and the Rules framed thereunder.” 13.
The conclusion drawn in paragraph 27 had been on the basis of reference to the various entry of Central, State or concurrent list culled out in paragraph 26. It has been found that both Acts like Bihar Act and 1940 Act are in different spheres. There was no trenching even incidentally in the Bihar Rule system. In this view of the matter, we are of the considered view that there is no trenching even incidentally of the Spiritual Rules 1969, the provisions of 1940 Act and 1945 Rules. Such encroachment or trenching will not effect the competence of the legislature to enact the law. In the instant case also, the judgment cited on behalf
WA NO. 1618 OF 2016 25 of the appellant/petitioner with regard to the contravention of repugnancy would not be of any significance and does not merit acceptance. Not only this, the plain reading of the provisions of 1969 Rules and 1940 Act do not in any way convey any trenching or overlapping much less inconsistency prohibiting the State from regulating the usage, control and sale of Ayurvedic medicines which are, through processing naturally generate alcohol to prevent its misuse. Learned Single Bench in extenso have dealt each and every point by not accepting the contentions.
14.
No doubt, the Central Government had notified the State of Kerala through two communications dated 23.12.2016 and 04.11.2016 with regard to the registration of the licence and the applicability of Rule 68 with regard to the manufacturing of two medicines containing 12% of alcohol v/v, but would not be having a binding effect upon the State in view of the findings referred to above.
15.
Priyamvada (supra) was a case where transporting of the medicines containing alcohol was
WA NO. 1618 OF 2016 26 intercepted and taken into custody on the ground of breach of provisions of Section 56. We cannot remain oblivious of the fact that the manufacturer in the aforementioned case did not have any lilcence under SP VI but only under the repealed Act ie., Medicinal and Toilet preparation (Excise Duty) Rules, 1956 and Drugs and Cosmetic Act, 1940. It is in that context, it was found that for that purpose a person may not be having a license, but for the purpose of manufacturing, it is sine qua non for a manufacturer to have a licence. Question raised is answered as above.
16.
As an upshot of our observations, we do not deem it appropriate to differ with the findings of the learned single Bench. Appeal sans merit, accordingly dismissed.
Sd/- AMIT RAWAL JUDGE Sd/- C.S. SUDHA JUDGE nak