N.D.OJHA, J. - (1.) THESE writ petitions challenge the validity of certain notifications issued by the State Government of Uttar Pradesh and Excise Commissioner, U. P. under various sections of the U. P. Excise Act (hereinafter referred to as the Act). Notification No. 1130-E/XIII-523-72 under S. 4, No. 1128-E/XIII-523-72 under S. 40, No. 1131-E/XIII-523-72 under S. 75 and No. 1132-E/XIII-523-72 under S. 76 of the Act were issued by the State Government. All these notifications are dated February 13, 1978. A fifth Notification No. 11719/XXV-19 was issued on the same date by the Excise Commissioner, U. P. All these five notifications were published in the U. P. Gazette Extraordinary dated Feb. 13, 1978. By the notification under S. 4 it was declared that 16 spirituous medicinal preparations specified therein shall be deemed to be liquor for the purposes of transport, possession and sale only within the meaning of the Act One of these 16 spirituous medicinal preparations, viz., Mrit Sanjiwani Sura, is an Ayurvedic preparation and the remaining 15 are spirits and tinctures. The notification under S. 40 contained rules framed by the State Government, under the said section known as the Uttar Pradesh Transport and Possession of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978. By the notification under S. 75 the State Government directed that the provisions of Ss. 1 to 74 of the Act and the Uttar Pradesh Transport and Possession of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978, shall apply to the possession, sale or supply of 16 " bona fide medicated articles for medicinal purposes by medical practitioners, chemists, druggists, apothecaries and keepers of dispensaries." These 16 medicated articles are the same as were declared liquor by the notification under S. 4. By the notification under S. 76 the State Government exempted throughout Uttar Pradesh the " Notified Restricted Spirituous Preparations" as defined in Rule 2 (ii) of the Uttar Pradesh Transport and Possession of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978, from the operation of the provisions of the U. P. Excise Act, other than Ss. 1, 3, 4, 6 to 8, 10, 11, 13, 14 to 16, 20, 21, 32 to 41, 41 to 55, 57, 58, 60 and 63 to 79 of the Rules made under the aforesaid Act other than the Uttar Pradesh Transport and Possession of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978. The notification under S. 41 contained Rules framed by the Excise Commissioner with the previous sanction of the State Government known as the Uttar Pradesh Sale of Notified Restricted Spirituous Preparations (Prevention of Misuse) Rules, 1978.
(2.) SUBSEQUENTLY the State Government issued two more notifications on May 30, 1978 - one being No. 5368-E/XIII-564-77 under S. 4 of the Act declaring that homeopathic dilutions containing alcohol and Mrit Sanjiwani as well as Mrit Sanjiwani Sudha shall be deemed to be liquor for the purposes of transport, possession and sale only within the meaning of the Act and the other being No. 5369-E/XIII-564-77 under S. 75 of the Act directing that the provisions of Ss. 1 to 74 of the Act and the 1978 Rules aforesaid framed under S. 40 shall apply to the possession, sale or supply of homeopathic dilutions containing alcohol and Mrit Sanjiwani as well as Mrit Sanjiwani Sudha. It is these seven notifications which are sought to be quashed in one or the other of these connected 23 Writ Petitions which broadly speaking can be placed in three sets. One set of these writ petitions challenges the aforesaid notifications in so far as they relate to Mrit Sanjiwani Sura and the other in so far as they relate to the 15 spirits and tinctures as specified in the relevant notifications dated February 13, 1978. The third set challenges them as also the two notifications dated May 30, 1978, in so far as they relate to the homeopathic dilutions. During the pendency of these Writ Petitions certain amendments have been made by different notifications issued simultaneously on August 5, 1978 and published in U. P. Gazette Extraordinary of the same date. By the notifications dated August 5, 1978 the following amendments have been made :- " (1) The definition of the term notified restricted spirituous preparation has been substituted in the notifications issued under Ss. 40 and 41 of the Act on February 13, 1978. The said term has now been defined as notified restricted spirituous preparation means a medicinal or toilet preparation containing alcohol which is capable of being misused as ordinary alcoholic beverage or spirituous preparation and which has been or is declared to be liquor by the State Government under sub-sec. (1) of S. 4 of the U. P. Excise Act, 1910, whether or not included in the Schedule to the Medicinal and Toilet Preparations (Excise Duties) Rules 1956." (ii) The definition of the term spurious preparation has been deleted. (iii) In the two notifications issued under S. 75 on Feb. 13, 1978 and May 30, 1978, between the word following and the words bona fide medicated articles the words and figures spirituous medicinal preparations declared liquor under sub-sec. (1) of S. 4 of the aforesaid Act for use as have been inserted. (iv) In the notification under S. 76 dated Feb. 13, 1978 between the figure 37 and the figure 38 the figure and the letter 37-A have been inserted. Having cleared the ground we now proceed to consider the submissions made by counsel for the petitioners appearing in each of the three sets of petitions stated above. Some of these submission are common and we propose to deal with them first.
(3.) THE foremost contention raised by counsel for the petitioners in support of their challenge to the impugned notifications was that the State Legislature has no jurisdiction to make any legislation in regard to the various medicinal preparations specified in the impugned notifications as stated above inasmuch as the jurisdiction to make laws in respect of medicinal preparations and drugs vested in the Central Government. It was urged that as a necessary corollary the State Government in the exercise of its delegated legislative power did not have the jurisdiction to issue the impugned notifications. In this connection it would be seen that a perusal of Entry 45 of List I, viz., Federal Legislative List and Entry 40 of List II, viz., Provincial Legislative List of the 7th Schedule to the Government of India Act, 1935, indicates that the power to legislate in respect of dues of excise on medicinal and toilet preparations containing alcohol vested in the Provincial Legislature. On the other hand Entry 34 of List 1, i.e., Union List and Entry 51 of List II, i. e., State List, of the 7th Schedule to the Constitution of India make it clear that the power to levy dues of excise on medicinal and toilet preparations containing alcohol vests in the Parliament and not in the State Legislature. Entry 8 of List II of the 7th Schedule to the Constitution is " intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors" . Entry 19 of List III, viz., the Concurrent List, reads : " Drugs and poisons subject to the provisions of Entry 59 of List I with respect to opium." It may also be noticed that none of the three Lists of Sch. 7 to the Government of India Act, 1935, included " drugs" in general as has been done in Entry 19 of List III of Sch. 7 to the Constitution. Entry 19 of List III of Sch. 7 to the Government of India Act was about poisonous and dangerous drugs" . It, however appears that the power to legislate in respect of drugs as such was treated to be with the provincial legislature in view of Entry 14 of List II, viz., the Provincial Legislative List of the 7th Schedule to the Government of India Act, 1935 which inter alia included " public health and sanitation" . This conclusion finds Support from the fact that the Drugs and Cosmetics Act (Act 23 of 1940) was passed by the Federal Legislature as is clear from the preamble to the Act itself on the strength of resolutions in terms of S. 103 of the Government of India Act, 1935, passed by the legislatures of all the provinces. Section 103 reads :- " If it appears to the Legislatures of two or more Provinces to be desirable that any of the matters enumerated in the Provincial Legislative List should be regulated in those Provinces by Act of the Federal Legislature and if resolutions to that effect are passed by all the Chambers of those Provincial Legislature, it shall be lawful for the Federal Legislature to pass an Act for regulating that matter accordingly, but any Act so passed may, as respects any Province to which it applies, be amended or repealed by an Act of the Legislature of that Province." Thus power under S. 103 could be exercised only if it was considered desirable by two or more legislatures that " any of the matters enumerated in the Provincial Legislative list should be regulated in those Provinces by Act of the Federal Legislature" . Further the words " any Act so passed may, as respects any Province to which it applies, be amended or repealed by an Act of the Legislature of that Province" are also important. So it is clear that the subject-matter of this Act was covered by List II of the 7th Schedule to the Government of India Act, 1935 and the power to legislate on this matter Vested in the Provincial legislature. That such an enactment would be covered by the Entry of " public health" also finds support from para. 17 of State of Bombay v. F. N. Balsara (AIR 1951 SC 318) where in relation to the Bombay Prohibition Act, 1949, it was observed that the power even to prohibit use consumption, possession and sale of intoxicating liquor could be referable to Entry 14 which refers inter alia to public health . ;