D.P.Mohapatra, C.J. - (1.) By this petition under Article 226 of the Constitution of India, petitioners have chalknged the Notification No. 325-E-2/XIII-40 (280)-83, dated 30.1.1991, by which Governor of Uttar Pradesh. In exercise of powers under sub-section (1) of Section 4 of the U. P. Excise Act. 1910 (hereinafter referred to as the Act), declared all patent or proprietary medicinal preparations containing more than 12 per cent alcohol manufactured under the Medicinal and Toilet Preparations [Excise Duties) Act. 1955, together with 49 spirituous medicinal preparations to be deemed to be liquor for the purposes of transport, possession, sale and supply within the meaning of the Act. Petitioners have further challenged the order dated 21.9.1991 by which Excise Commissioner directed Collectors of all the districts and enforcement authorities under the Excise Act to ensure compliance of the Notification No. 310-E-2/XII1-40/280-83, dated 29.1.1991, under Section 75 of the Act. and the Notification No. 325-E-2/XII!-40/(280)-83, dated 30.1.1991 by which the spirituous medicinal preparations mentioned therein have been declared to be liquor. Petitioners also prayed for a writ of mandamus directing respondenls not to Interfere in any manner with the petitioners' carrying on their business, sale, purchase, storage of medicinal preparations mentioned in the impugned notification.
(2.) It may be observed that several writ petitions involving the controversy as in the instant case had been entertained by this Court and were pending decision when the present writ petition was filed. It appears that before the Bench hearing the case for admission, the petitioners sought an interim relief in the terms granted in the other identical cases. However, the learned Judges constituting the Bench found themselves unable to agree with the interim orders said to have been granted in the other cases on the grounds, inter alia, that once a commodity is declared to be liquor, any trade therein is to be governed by the provisions contained in the U. P. Excise Act, Section 21 whereof provides that no intoxicants shall be sold without a licence from the Collector, and admittedly petitioners have not obtained any licence from the Collector. For the aforesaid reasons, they directed that the matter be placed before Hon'ble the Chief Justice for referring the matter to the larger Bench. Hon'ble the Chief Justice by order dated 5.8.1996 directed that the case be listed before this Bench. This is how this matter has come before us.
(3.) We have heard Shrt Ramendra Asthana. learned counsel appearing for the petitioners, and learned standing counsel for the respondents. Learned counsel for the petitioners has submitted that the Notification under Section 4 (1) of the Act cannot be implemented in the absence of corresponding notification under Section 37A (4) of the Act. It has also been submitted that the petitioner cannot be deprived of the protection of Section 75 of the Act without there being a corresponding notification under Section 37A (4) of the Act. Learned counsel for the petitioners has submitted that the impugned order dated 21.9.1991 passed by the Excise Commissioner, U. P. could not take away the rights of petitioners to carry on their trade and business in medicines mentioned in the impugned notification. They are bona fide medicated articles for medicinal purposes. Petitioners are holding valid licence under the Drugs and Cosmetics Act. Learned counsel has further submitted that as this Court had already granted Interim orders in other writ petitions involving Identical points to avoid anomalous position and two contradictory judgments, it was necessary in the ends of justice to provide same interim protection to the petitioners. Strong reliance has been placed in the Judgment of Hon'ble Supreme Court in case of Bir Bajrang Kunwar v. State of Bihar and others, AIR 1987 SC 1345 and Vishnu Traders v. State of Haryana and others. 1995 Supp. (1) SCC 461.;