Decided on August 26,1963

STATE Respondents


J.M.SHELAT - (1.) These two petitions challenge the validity of secs. 2(10a) 59 and 595 of the Bombay Prohibition Act XXV of 1949 certain rules made thereunder the two notifications issued by the Government of Gujarat dated April 6 1962 and the order dated September 26 1962 refusing the wholesalers licence and the pass to import French Polish and Varnish from outside the State of Gujarat. As both the petitions raise identical questions it is expedient to dispose of both of them together by a common judgment
(2.) Both the petitioners carry on business as wholesale dealers in French Polish and Varnish and have been importing for their business these two articles from States such as the Uttar Pradesh Madhya Pradesh etc. The petitioners in Special Civil Application No. 996 of 1962 have been importing on an average about 1500 gallons of French Polish per month and have been selling the same both wholesale and retail the average monthly sale of French Polish coming to about 1500 gallons per month.
(3.) Prior to June 1 1962 there were no restrictions on the import export transport possession use consumption and sale of these articles in the State of Gujarat but as these articles are commodities liable to central excise duty there existed supervision on their manufacture under the relevant provisions of the Central Excise Act and the rules made thereunder. Whenever barrels of French Polish and Varnish are taken after their manufacture outside the gates of the manufactory the manufacturer has to pay central excise duty and a seal is affixed on every such barrel by the excise department and a label is further affixed on every such barrel bearing the inscription French Polish Poison and these labels are stamped by the excise department. Besides secs. 21 21 67 and 67(1)(a) of the Bombay Prohibition Act contain provisions to prevent any alteration of denatured spirits or denatured spirituous preparations. On April 6 1962 the State of Gujarat purporting to exercise powers conferred upon it by sec. 143 of the Act made and published rules known as the Gujarat Denatured Spirituous Preparations Rules 1962 These rules were brought into force with effect from June 1 1962 They purport to impose certain restrictions on the manufacture import export transport possession use consumption and sale of French Polish and Varnish. After these rules were brought into force the petitioners in application No. 996 of 1962 made an application required under the said rules for an import pass and a wholesalers licence to the Prohibition Excise Sub-Inspectors Surat dated August 17 1962 The third respondent by his letter dated September 26 1962 in reply to this application stated that the petitioners application was rejected as there was no necessity to give a licence to them. Correspondence thereafter ensued between the petitioners and the petitioners attorneys on the one hand and respondents 1 and 2 on the other and the third respondent by his letter dated November 8 1962 in continuation of his earlier letter dated September 26 1962 alleged that in Surat city and Surat district there were adequate licences to sell and manufacture French Polish and therefore it was not necessary to issue licences for sale of wholesale imported French Polish and that for that reason the petitioners aforesaid application was rejected. The petitioners application for an import pass was not expressly rejected by these letters but since his application for wholesalers licence was refused his application for an import pass was taken as having been rejected. The petitioner in Special Civil Application No. 415 of 1962 has also like the petitioners in the other application been carrying on business as wholesale dealer of French Polish at Baroda and for that purpose has been importing barrels of French Polish from States like Rajasthan and Uttar Pradesh. As a wholesaler he is also selling these barrels so imported by him in the same condition in which he receives them. Both these petitioners as aforesaid have challenged the constitutional validity of the aforesaid sections of the Act the rules made thereunder the said notifications dated April 6 1962 and the said order rejecting the aforesaid application.;

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