Decided on July 24,1953



Venkatarama Aiyar, J. - (1.) The question that is raised for our determination in these applications is as to the validity of the provisions of the Madras Prohibition Act, 10 of 1937, hereinafter referred to as the Act, in their application to medicinal preparations. The petitioner in W. P. no. 593 of 1952 is a practitioner of Indian medicine who has patented a medicine called "Vitogen" and he challenges the validity of an order passed by the Government on 29-5-1952, declaring that "Vitogen" was liable to be taxed as "medicated wine". That order was passed under Notification No. 473 dated 7-31949 which runs as follows: "In exercise of the powers conferred by Section 18-A of the Madras Prohibition Act, 1937 (Madras Act X of 1937) and of alt other powers hereunto enabling, His Excellency the Governor of Madras hereby directs that medicinal preparations containing spirit self-generated from grapes, grape-juice or raisins which are similar to medicated wines shall be included in the term "medicated wines" and duty shall be levied at Rs. 35 per proof gallon on the spirit contained in such medicinal preparations permitted to be imported, exported, transported, manufactured issued from any manufactory or institution or sold, under the provisions of the said Act or any rule, notification, licence or permit issued thereunder : Provided that purely Ayurvedic preparations containing 20 per cent, or less of proof spirit self-generated as aforesaid shall be exempt from duty and the decision of the Board of Revenue, Madras, arrived at in consultation with the competent medical authority appointed by the Government, as to whether any medicinal preparation is or is not a purely ayurvedic preparation eligible for exemption from duty, shall be final." Acting under this Notification the Government of Madras decided in consultation with the Principal, College of Indian Medicines, that 'Vitogen' was not a pure Ayurvedic preparation, that it fell under the category of medicated wines' and that it was liable for a duty of Rs. 35 per proof gallon of its spirit contents. The petitioner made several applications to the Board of Revenue for cancellation of this order and by its final order dated 29-5-52, which is now in question the Board declined to reconsider its previous orders. The contention of the petitioner is that "Vitogen" is a purely Ayurvedic preparation and that it falls within the proviso to the Notification and that the order of the Government classifying it as "medicated wine" was erroneous and should be set aside. He also contended that the provisions of the Act requiring licence to be taken for the manufacture and sale of medicinal preparations were repugnant to Article 19(1)(f) of the Constitution and void. He accordingly prays for a refund of Rs. 10 paid as licence fee.
(2.) The petitioner in W. P. No. 672 and W. P. No. 673 of 1952 is an Ayurvedic Doctor at Calicut. His complaint is directed against G. O. No. 1505 dated 7-41952, under which the licencees are required to pay a 'duty of Rs. 35 per proof gallon on ail pure Ayurvedic Asavas and Arishtas containing more than 20 per cent, proof spirit.' His contention is that this levy is illegal as it is within tile exclusive competence of the Union. He also contends that the Act in so far as it relates to medicinal preparations is void and that the provisions as to licence are unenforceable.
(3.) The notification under challenge, in W. P. No. 672 of 1952 was modified by Notification No. 941, dated 18-11-1952, which provided 'inter alia' that a gallonage fee of Rs. 3 per bulk gallon should be paid on such of those preparations as are classified by the Board of Revenue as potable. It is the validity of this Notification that is questioned in W. P. 149 of 1953. The petitioner is an Ayurvedic Doctor and the Managing trustee of a Pharmacy called "Arya Vaidyasala" which is engaged in the manufacture and sale of Ayurvedic preparations. He contends that the levy of the duty under Notification No. 941 Is illegal on the ground that it is beyond the competence of the State Government. He also attacks the validity of the provisions of the Act relating to licences as unconstitutional and void.;

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