Decided on February 02,1977

Government Of Bangladesh Appellant
Sree Kundeswari Aushadhalaya Respondents


KEMALUDDIN HOSSAIN J. - (1.) These three appeals are heard together as both facts and law are the same. The consideration is the vires of a Notification dated 19th December, 1974 issued by the Ministry of Finance (National Board of Revenue) amending rule 15 of the Rules framed under section 86(2) of the Bengal Excise Act 1909 r Bengal Act IV of 1909). These Rules originally were framed on August 12, 1936 under section 86 (2) of the Act for the purpose of regulating the manufacture of Ayurvedic preparations. Mritasanjibani Sura. Mrita-sanjibani Sudha, etc. to a certain fixed percentage of spirit strength. The amended rule reduced the spirit strength from 42% to 25%. It appears that these Ayurvedic preparations use a process of fermentation and distillation, and manufacture them according to the recipe and direction set out in Arkaprokash, Ayurved sangraha and Vaisaja Ratnabali. The three respondents challenged the vires of the amended rule, chiefly on the ground that the proposed rule will destroy the medicinal efficacy of those Ayurvedic preparation. This Government however resisted the challenge denying the destruction of medicinal efficacy, and ascertaining that the reduction of spirit strength was done to avoid their misuse for alcoholic beverages in conformity of advancing the policy of prohibition among the Muslims.
(2.) A Bench of the High Court Division on consideration of the rival contentions of the parties allowed the writ petitions and declared the impugned notification invalid. Leave was granted at the instance of Bangladesh, the appellant, to consider the following points: (1) Whether the High Court Division correctly interpreted s. 86(2) of the Excise Act which expressly empowers the Government, amongst others, to fix the spirit strength of medicinal preparation which is liquor within the meaning of the Act, and whether it is correct in holding the amendment of rule 15 ultra vires the Act. (2) Whether the High Court Division is right in holding that the amendment of rule 15 is not related to the purpose of the Excise Act and s. 86 (2) of the Act and that the fixation of spirit strength of the medicinal preparation at 25% will destroy the medicinal efficacy. Mr. Attorney-General appearing for Bangladesh, and Mr. M. H. Khondker for Respondent, Sree Kundeswari Aushadhalaya, and Sakti Aushadhalaya (P) Limited and Mr/ Serajul Huq for Ayurvedic Kutir, have raised various controversies, and have elaborated them by many refinements of arguments. Important among them is whether the amendment of rule 15 is intra vires the Government's rule making power. It appears that both the points are interrelated and interdependent upon each other, and it is appropriate that they are dealt with together and not separately.
(3.) To appreciate the points some of the relevant provisions of the Act may be set out for discussion. The specific rule making power is to be found in sub-section (2) of section 86 of the Bengal Excise Act 1909 (as amended) and the relevant portion may be set out as follows: "86. The provincial Government may make rules (1) . .. .. . . (2) for fixing the strength, price or quantity in excess of or below which any (intoxicant) shall not be supplied or sold, and the quantity in excess of which denatured spirit shall not be possessed and for prescribing a standard of quality- for any (intoxicant); ;

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