Jagmohan Lal, J. - (1.) I have gone through the judgment prepared by my brother Prem Prakash. I agree with him that both the writ petitions should be allowed. I would however state my own reasons for coming to this conclusion.
(2.) In both these writ petitions the constitutional validity of Section 5 of the Opium Act, 1878 (to be hereinafter called as the Act) and the rules framed thereunder by the State Government of Uttar Pradesh known as U. P. Poppy-Heads (Amendment) Rules, 1969 (to be hereinafter called as the Rules) promulgated under a notification dated July 1, 1969 is being assailed.
(3.) The first contention of Sri R. N. Trivedi, learned counsel for the petitioners, was that even if Section 5 is held constitutional, the State Government under the authority delegated to it by that section could provide for levy of a duty on the retail sale of opium and since the petitioners are whole-sellers of opium they could not be subjected to that duty and to that extent the Rules are ultra vires the section itself. Sec. 5 of the Act provides as follows:- "5. The State Government may, from time to time, by notification in the official Gazette, make rules consistent s with this Act, to permit absolutely or subject to the payment of duty or to any other conditions', and to regulate within the whole or any specified part of the territories administered by such Government, all or any of the following matters:- (a) the possession of opium; (b) the transport of opium; (c) the importation or exportation of opium; and (d) the sale of opium. and the farm of duties leviable of the sale of opium by retails:- Provided that no duty shall be levied under any such rule on any opium I imported and on which a duty is imposed by or under the law relating to sea customs for the time being in force or under the dangerous Drugs Act, 1930".;