Manash Nath Roy, J. - (1.) The petitioner is a licensee of a country spirit shop at Durgapur, which shop is known as Viringhee Country Spirit Shop and is located at Viringhee, Durgapur, Burdwan. This license was granted to the petitioner by the Collector of Excise, Burdwan, under Bengal Excise Act, 1909 and rules framed thereunder. It appears that at the time of the issue of the Rule, which was on 14th March, 1975, license, which was valid and was held by the petitioner, was operating. Such license would be available from Annexure-A to the petition. It has been stated that the said license was operative on the date as mentioned above on due renewal.
(2.) It is the case of the petitioner that the license for country spirit is rigidly regulated and controlled by the provisions of the Bengal Excise Act 1909 (hereinafter referred to the said Act) and the Rules framed thereunder which would also hereinafter be described as the said Rules. The petitioner has stated that in terms of the conditions of the license, he could not in fact he was not authorised to act in violation of them either in regard to the parties to which country spirit is required to be sold or for charging the price thereof and to choose his customers. In fact, the petitioner has stated that he was required to sell country spirit to any ore tendering money except to those who are debarred from getting such supply according to the said Act and the said Rules.
(3.) The petitioner has stated that in course of his dealings as aforesaid he was required to purchase country spirit only from the wholesalers, appointed by the Government and as mentioned above not only the selling prices but also the purchase prices are regulated and controlled by the Government and the petitioner has no option to sell such country spirit to any other than those as mentioned above. These apart, the petitioner has stated that he cannot sell more than the prescribed quantity either to any person or he cannot sell on credit or receive any pledge for payment of the price thereof except money. In view of the above it has been claimed by the petitioner that such sale as effected by him cannot constitute sale either in the legal or any other sense and further more when any violation of the conditions of license or the said Act and the said Rules would subject him to forfeiture of the said license and would expose him to the various penalties as prescribed. There is no doubt that the petitioner cannot also, unlike other shops, keep his shop or the business open apart from the restricted hours as required under the concerned license. The petitioner has categorically stated that he is required to transact under various-strains and restrictions and since the sale or transaction by him cannot be called a sale either in the legal or any other sense so the provisions of Sales-tax Act should not be made or held to be applicable on sales effected by him. It is his categorical case that the restriction as imposed on the business and as mentioned hereinbefore, would be restrictions unreasonably imposed on his trade and as such, such restrictions should be held and found to be unconstitutional. He has also stated that such restrictions as imposed to constitute and operate as denial to him of his fundamental right of Freedom of Trade and Commerce and as such the levy of sales-tax which is sought to be made and in fact, is being made, is ultra vires the Constitution of India and should thus be struck down.;