Pathak, J. - (1.) The petitioners firm, Messrs. Nebha and Company carries on business at Rajkot in Gujarat. The business includes the import of toilet preparations including Eau-de-cologne from the State of Andhra Pradesh and their sale in the State of Gujarat. The petitioners challenge the legality of the restrictions imposed on the import of toilet preparations into the State.
(2.) The controversy arising in this case is concerned with statutory measures operating in the State of Gujarat for prohibiting the consumption of intoxicating liquors. The Bombay Prohibition Act, 1949 has been in operation in the State of Gujarat and for the consideration of the issue before us it would be appropriate to go back to State of Bombay v. F. N. Balsara (1957) SCR 682. In this, one of the first decisions of this Court on the subject, the Court declared that the provisions of Ss. 12 and 13 of the Bombay Prohibition Act, 1949 were invalid so far as they affected the buying, possession, consumption or use or selling of liquor medicinal and toilet preparations containing alcohol. Pursuant to that decision, the Bombay Prohibition Act was amended and S. 24A was inserted in Chapter III of the Act exempting medicinal and toilet preparations containing alcohol which were unfit for use as intoxicating liquor from the scope of the prohibitions enacted in that Chapter against the manufacture, sale or purchase, import, export, transport or possession of liquor. Section 24A reads:- "24A. Nothing in this Chapter shall be deemed to apply to - (1) any toilet preparation containing alcohol which is unfit for use as intoxicating liquor; (2) any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor; (3) any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor; (4) any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor; Provided that such article corresponds with the description and limitations mentioned in section 59A: Provided further that the purchase, possession or use of any liquor or alcohol for the manufacture of any such article shall not be made or had except under a licence granted under section 31 A. (Explanation - Nothing in this section shall be construed to mean that any person may drink any toilet preparation, or antiseptic preparation, or solution, containing alcohol; and it is hereby provided that no person shall drink any such preparation.)" Thereafter S. 59AA was inserted in the same enactment. It provided that no article mentioned in S. 24A could be manufactured, imported or exported except under a licence which could, subject to the provisions of any rules made in that behalf, be granted by an officer authorised in that behalf by an order in writing by the State Government, provided, however, that no such licence would be necessary for the import or export of such article to the extent of such quantity as may be prescribed. To give effect to S. 59AA the Government of Gujarat promulgated the Gujarat Articles Unfit for Use as Intoxicating Liquor (Manufacture and Import) Regulation Rules, 1966. The rules deal with, among other things, the regulation of the import of spirituous articles. A "spirituous article" means, by R. 2(h), any of the articles mentioned in S. 24A of the Bombay Prohibition Act, 1949. R. 11 declares that no spirituous article can be imported into the State of Gujarat "except by a person holding an import licence in Form S. A. 2 and save as provided in R. 16, except under an import pass in Form S. A. 3". R. 12 specifies the authority to whom the application for the grant of an import licence lies and the manner in which the application should be made. R. 13 provides that the Import licence will be granted for no longer than one year at a time. The licence is required, by R. 14, to maintain true and proper accounts of all spirituous articles imported by him, and to furnish a monthly return to the licensing authority in respect of the spirituous articles imported by him. An import licensee desiring to import a spirituous article is, by R. 15, required to apply for an import pass for each consignment, and the import pass in Form S. A. 3 may be granted to him after the Superintendent of Prohibition and Excise or the District Inspector of Prohibition and Excise has made enquiries and is satisfied that there is no objection to granting the pass. R. 17 details the cases in which no import licence for import pass is necessary. Under that rule, the import of any spirituous article can be imported without such an import licence or import pass if it is exempted under the Spirituous Preparations (Inter-State Trade and Commerce) Control Act, 1955.
(3.) It may be mentioned at this point that in exercise of the power conferred by S. 4 of the Spirituous Preparations (Inter-State Trade and Commerce) Control Act, 1955, the Central Government issued a notification declaring Eau-de-cologne to be a "spirituous preparation" within the meaning of that Act. The petitioners filed a writ petition in the High Court of Gujarat challenging the validity of that notification, and the High Court, by its judgment dated April 24, 1970, allowed the writ petition and quashed the notification on the ground that objections had not been invited before issuing the notification. It has not been shown to us whether a fresh notification has been issued or not thereafter.;