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2001 DIGILAW 692 (GUJ)

Super Bottling Pamandas Narandas v. STATE

2001-09-13

A.L.DAVE, R.M.DOSHIT

body2001
R. M. DOSHIT, J. ( 1 ) THE petitioner before this Court is an agent selling soft drinks in the city of rajkot. Feeling aggrieved by the order dated 19th January, 1989 made by the superintendent of Prohibition and Excise, Rajkot, restraining the petitioner from selling the soft drink in the name of fruit Beer manufactured in the State of Rajasthan as being violative of the prohibition policy of the State of Gujarat, the petitioner has preferred the present petition. ( 2 ) IT appears that a company running in the name and style of perry Bottling Co. manufactures a Carbonated drink and sells it in the name of fruit Beer. The petitioner being desirous of selling the said product in the local market at Rajkot, applied to the superintendent of Prohibition and Excise for permission to sell the said product in the city of Rajkot. It is the claim of the petitioner that the drink in question is a sweetened carbonated water and is absolutely free from alcohol or any other intoxicating substance. However, since the brand name includes the word beer indicating an alcoholic drink, by way of abundant caution, the petitioner applied for permission which was refused on the ground that selling of the product would be in contravention of the prohibition policy of the State. Mr. Pandya has relied upon various certificates annexed to the petition indicating that the product in question is a sweetened carbonated water without fruit juice or pulp. It is totally absent of any alcoholic substance or any intoxicating substance. Mr. Pandya has submitted that infact the drink in question being non-alcoholic, the petitioner was not required to apply for permission to sell the same, nor was the refusal warranted. He has submitted that such refusal amounts to infringement of the petitioners fundamental right of business guaranteed under Art. 19 (l) (g) of the Constitution, He has relied upon the judgments of the Supreme Court in the matter of State of Bombay and Anr. vs. F. N. Balsara, ( AIR 1951 SC 318 ) and of mohd. Faruk vs. State of Madhya Pradesh and Ors. , ( AIR 1970 SC 93 ). He has also relied upon the judgment of this Court in the matter of Manoj Cold Drinks vs. State of gujarat (Special Civil Application No. 1674/88, decided on 26th November, 1999, coram : D. C. Shrivastav J. ). Faruk vs. State of Madhya Pradesh and Ors. , ( AIR 1970 SC 93 ). He has also relied upon the judgment of this Court in the matter of Manoj Cold Drinks vs. State of gujarat (Special Civil Application No. 1674/88, decided on 26th November, 1999, coram : D. C. Shrivastav J. ). He has submitted that the petitioner therein also had been refused permission to sell the fruit Beer. The refusal was quashed and set aside by this Court. The Court observed that- "since fruit beer under consideration did not contain any alcoholic substance incidentally no permission was required by the petitioner and if he under mistake applied for such permission it could not be refused mechanically without affording any opportunity of hearing to the petitioner as to what was the material to treat the contents as beer having alcoholic substance". Mr. Pandya has submitted that the petitioner also is entitled to carry on his business without any interference or restriction. The above referred judgment in the matter of Manoj cold Drinks be followed by this Court. ( 3 ) THE present petition had come up for hearing before this Court (Coram : H. R. Shelat, J) on 28th September, 2000. The petitioner, in support of his submission had relied upon the judgment in the matter of Manoj Cold Drinks (Supra ). However, on behalf of the State it was argued that in that case neither the counter-affidavit had been filed by the State, nor Sec. 24 of the Bombay Prohibition Act, 1949 (hereinafter referred to as the Act) was brought to the notice of the Court. Having considered the said argument, the learned Judge was of the view that the matter was required to be heard by the Larger Bench. It is under the said reference that the matter is posted before us for hearing. ( 4 ) MR. V. M. Pancholi, the learned AGP has relied upon Sec. 24 of the Act and has submitted that the said Sec. 24 of the Act prohibits any person from printing or publishing in any newspaper the book, leaflet, etc. which is calculated to encourage any individual or class of individual or public in general to commit an offence under the Act or to commit a breach of or to evade the provision of any Rule, Regulation or Order made under the Act. The drink in questin viz. which is calculated to encourage any individual or class of individual or public in general to commit an offence under the Act or to commit a breach of or to evade the provision of any Rule, Regulation or Order made under the Act. The drink in questin viz. beer indicates presence of alcohol and that a consumer believing that the drink contains alcohol may be encouraged or lured to consume the said drink. It is, therefore, essential that the marketing of such product in the State should be prohibited. In support of his argument, he has relied upon the judgment of the Supreme Court in the matter of Razakbhai Issakbhai Mansuri and Ors. vs. State of Gujarat and Ors. , (1993 Supp (2) SCC 659 ). ( 5 ) IN the matter of F. N. Balsara (Supra), what was under challenge was certain provisions of the Bombay Prohibition Act. Mr. Pandya has specifically relied upon paragraph-27 of the said judgment. We are unable to see how the said judgment can lend support to the claim of the petitioner. In the matter of Mohd. Faruk (Supra), the restriction on the trade in slaughtering bulls and bullocks imposed by the State of madhya Pradesh was held to be violative of Art. 19 (l) (g) of the Constitution. The honble Supreme Court was of the opinion that the impugned Notification directly infringed the fundamental right of the petitioner guaranteed by Art. 19 (l) (g) of the constitution and may be upheld only if it be established that it sought to impose reasonable restriction in the interest of the general public and a less drastic restriction would not ensure the interest of the general public. In the matter of Razakbhai issakbhai (Supra) the State Government had imposed prohibition against possession of rotten gur in excess of the prescribed limit and regulation of manufacture, use of consumption thereof. While considering the validity of the said restriction, the Honble court observed that "the question which arises is as to whether the restrictions are permissible only in relation to the alcoholic liquors directly or can be extended to such articles which are not intoxicating by themselves but which have the potentiality to defeat the policy". While considering the validity of the said restriction, the Honble court observed that "the question which arises is as to whether the restrictions are permissible only in relation to the alcoholic liquors directly or can be extended to such articles which are not intoxicating by themselves but which have the potentiality to defeat the policy". The Court further observed that "it is, therefore, within the authority of the State to prohibit consumption of intoxicating liquor and the State of gujarat was fully justified when it adopted the policy of prohibition. In order that this policy may succeed, it is not sufficient to merely ban manufacture and consumption of alcoholic drinks. To render it really effective further measures became essential in order to defeat the illegal activities of the anti-social elements engaged in illicit manufacture and illegal distribution of the liquor in the market. It, therefore, became obligatory for the State to take all such steps as found necessary for implementing the prohibition policy by not only placing restrictions on the manufacture, sale and consumption of liquors but also by adopting such other regulatory measures, essential to achieve the objective". ( 6 ) BE it noted that in the present case, it is an undisputed fact or an admitted fact that the drink in question i. e. fruit Beer does not contain any alcoholic substance or any intoxicating substance. It is the case of the petitioner that the crown of the bottle of the drink and the label both contain express information that the drink is a non-alcoholic drink. Thus there is no question of luring people to drink an alcoholic substance or to incite them to commit breach of any provision of the Act. The real grievance is against the use of the word beer which generally indicates the presence of alcohol. However, we are of the view that what name should be selected by the manufacturer is not within the purview of the authorities under the Act. The powers under the Act could be invoked only if the drink in question contained alcohol. Section 24 (1) of the Act which is sought to be relied upon reads as under : section-24 : prohibition of publication of advertisement relating to intoxicant, etc. The powers under the Act could be invoked only if the drink in question contained alcohol. Section 24 (1) of the Act which is sought to be relied upon reads as under : section-24 : prohibition of publication of advertisement relating to intoxicant, etc. (1) No person shall print or publish in any newspaper, news-sheet, book, leaflet, booklet or any other single or periodical publication or otherwise display or distribute any advertisement or other matter (a) which solicits the use of or offers any intoxicant or hemp; (b) which is calculated to encourage or individual or class of individuals or the public generally to commit an offence under this Act, or to commit a breach of or to evade the provisions of any rule, regulation or order made thereunder or the conditions of any licence, permit, pass or authorization granted, thereunder. ( 7 ) IT is clear that what is prohibited is the publication of advertisement with respect to any intoxicant or inciting the people in general to commit breach of any of the provisions of the Act or the condition of any licence or permit, pass or authorization granted under the Act. We fail to understand as to how Sec. 24 of the Act empowers an officer to prohibit a person from selling non-alcoholic substance. None of the provisions under the Act requires a person to obtain permission to sell non-alcoholic substance merely because the name includes the word beer. We are, therefore, of the view that the application made by the petitioner and the refusal by the respondents both were equally unwarranted and unsustainable. ( 8 ) IN view of the above discussion, the petition is allowed. The impugned order dated 19th January, 1989 at Annexure-C is quashed and set aside. Rule is made absolute. The parties shall bear their own costs. .