Sharma, C.J.I- - (1.) The petitioners in all these cases (including the appellants in the civil appeals) have challenged the constitutional validity of the amendments made to the Bombay Prohibition Act, 1949 (for short "the principal Act") by the Gujarat Legislature prohibiting possession of rotten gur in excess of the prescribed limit without a permit and regulating manufacture etc. of rotten gur. The provisions which have been challenged are those of Section 2 (39A) defining "rotten gur", Section 64 imposing restriction on possession of "rotten gur", Section 64A regulating manufacture etc. of "rotten gur" and S. 70A providing for imposition of punishment for contravention of the relevant statutory provisions. It has been contended on behalf of the petitioners that gur and jaggery are popular commodities, consumed by humans and cattle and used in the preparation of sweets and Ayurvedic medicines as also in certain industries; and, consequently the provisions under challenge are causing serious difficulties in carrying on the business not only in "rotten gur" but also in jaggery and gur, which are not "rotten".
(2.) The main points raised in support of the present petitions (including the civil appeals) are mentioned below :- (i) The impugned amendments are ultra vires on the ground of lack of legislative competence. Entry 8, List II of the Seventh Schedule of the Constitution, under which the State legislature has purported to act, does not cover the subject matter; and Entries 26 and 27 of List II of the Constitution being subject to the provisions of Entry 33 of List III are not available as the legislative field referable to Entry 33 of List III is occupied by the Gur Control Order, 1968 read with Essential Commodities Act, 1955. (ii) As a result of the impugned amendments, the police and the other authorities of the State have been vested with arbitrary and uncontrolled power. The same is violative of Article 14 of the Constitution. (iii) Even otherwise also the impugned provisions are violative of Articles 19(1) (g) and 301.
(3.) Mr. Ashok Desai, appearing in writ petition No. 12532 of 1985, arguing on the question of legislative competence, contended that none of the entries in List II of the Seventh Schedule to the Constitution authorises the Gujarat legislature to incorporate the impugned provisions in the principal Act. Referring to the entries in the List the learned counsel proceeded to say that at the most, it is only three entries, i.e., 8, 26 and 27, which can be said to have some relevance in the present context. Yet, none of them can cover the present case.;