- (1.) This appeal, by specil leave, is directed against a judgment of the Kerala High Court by which the High Court dismissed the writ petition of the appellants who are manufacturers of medicinal and toilet preparations containing alcohol and upholding the constitutional validity of Sections 12A, 12B, 14 (e) and (f) and 68A of the Abkari Act, 1077 (1 of 1077) (hereinafter called 'the Act'), introduced by the Abkari (Amendment) Act, 1967 (10 of 1967), and Rr. 13 and 16 of the Kerala Rectified Spirit Rules, 1972. The main question in the appeal is as to the legislative competence of the State to enact a law relating to medicinal and toilet preparations containing alcohol under Entry 8, List II of the Seventh Schedule to the Constitution.
(2.) The appellants, by virtue of a licence in Form 25 granted under the Drugs and Cosmetics Act, 1940 and a licence in Form L1 granted under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (hereinafter referred to as 'the Central Act') are entitled to manufacture the drugs specified therein. They filed a writ petition in the High Court complaining that they were entitled to the supply of alcohol free of duty for the manufacture of their medicinal and toilet preparations under R. 21 of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956 (hereinafter referred to as 'the Central Rules'), and R. 8 of the Kerala Rectified Spirit Rules, 1972, and challenged the validity of the impugned provisions mainly on the ground that the State Legislature has no power to enact the law relating to medicinal and toilet preparations as the topic of legislation is within the exclusive domain of Parliament under Entry. 84, List I of the Seventh Schedule to the Constitution. The High Court held that there was no conflict between the impugned provisions and the Central law as they dealt with different subjects.
(3.) The impugned provisions, as introduced by the Abkari (Amendment) Act, 1967, in so far as they are relevant, are as follows. Section 12A reads : 12A. No preparation to which liquor or intoxicating drug is added during the process of its manufacture or in which alcohol is self-generated during such process shall be manufactured in excess of the quantity specified by the Commissioner : Provided that in specifying the quantity of a medicinal preparation the Commissioner shall have due regard to the total requirement of that preparation for consumption or use in the State. Section 12B provides : 12B. (1) No person shall utilise liquor or intoxicating drug in the manufacture of any preparation, in excess of the quantity specified by the Commissioner and except under and in accordance with the terms and conditions of a licence granted by the Commissioner in that behalf : Provided that where such preparation is a medicinal preparation, the Commissioner shall, in specifying the quantity of liquor or intoxicating drug have due regard to the total requirement of such medicinal preparation for consumption or use in the State. Section 14 provides : 14. The Commissioner may, with the previous approval of the Government,- xx xx xx (d) prescribe the mode of supervision that may be necessary in a ......... manufactory where preparations containing liquor or intoxicating drugs are manufactured to ensure the proper collection of duties, taxes and other dues payable under this Act or the proper utilisation of liquor or intoxicating drugs : (e) prescribe the size and nature of the establishment necessary for such supervision and the cost of the establishment and other incidental charges in connection with such supervision to be realised from the licensees; and (f) prescribe the allowance for wastage of alcohol that may occur in- (i) x x x x (ii) the process of manufacture of any preparation containing alcohol, and (iii) x x x x Section 68A provides that the Government shall appoint an Expert Committee consisting of the Drugs Controller, the Chemical Examiner to the Government, two representatives each one of whom shall be a non-official, of the Allopathic, Indigenous and Homoeopathic systems of medicine appointed by the Government, and an officer of the Excise Department not below the rank of Deputy Commissioner, and the Committee shall advise the Commissioner (a) as to whether a medicinal preparation is a bona fide medicinal preparation or not: and (b) as to the total requirements of medicinal preparations containing liquor or intoxicating drugs or in which alcohol is self-generated during the process of their manufacture, for the whole of the State during one year.;