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[Cites 56, Cited by 0]

Andhra HC (Pre-Telangana)

A.P. Sampoorna Madya Nisheda Samithi ... vs State Of Andhra Pradesh And Others on 6 May, 1997

Equivalent citations: AIR1997AP312, 1997(2)ALD(CRI)64, 1997(3)ALT1, AIR 1997 ANDHRA PRADESH 312, 1997 A I H C 3943, (1997) 1 LS 560, (1997) 3 ANDH LT 1, (1997) 3 RECCRIR 159, (1997) 3 ANDHLD 516, (1997) 3 RECCIVR 4, (1997) 2 APLJ 179

Bench: Syed Shah Mohammed Quadri, P. Venkata Rama Reddi

ORDER

P. S. Mishra, C. J.

1. An organisation mailed 'A. P. Sampoorna Madya Nishedha Samithi' and two persons Smt. Malladi Subbamma and Smt.Sandhyanvadanam Lakshmi Devi have moved this Court under Art. 226 of the Constitution of India seeking any appropriate writ, order or direction, more particularly one in the nature of a writ of mandamus declaring the A.P. Prohibition (Amendment) Act, 1997. Act 5 of 1997 (hereinafter called Amendment Act) as unconstitutional and void and consequently directing the Government of Andhra Pradesh to strictly implement the provisions of the A.P. Prohibition Act, 1995, Act 17 of 1995 (hereinafter called Prohibition Act). Smt. Malladi Subbamma who has claimed to be the President of the Samithi has stated that it is an unregistered society formed on 20-9-94 of persons drawn from different walks of life and from different places as a culmination of movement for imposition of total prohibition in the State. It is said on 24-9-94 nearly 20,000 people participated in a rally demanding ban of Indian made Foreign liquor and a memorandum signed by several prominent leaders was submitted to the Governor on 1-10-1994. Thus, according to the petitioners, total prohibition was imposed upon any trade or business, storate or consumption of intoxicating liquor called l.M.L. and I.M.F.L. besides arrack by Act 17 of 1995. A state level committee as envisaged under Sec. 27 of the Prohibition Act was constituted by which Smt. Malladi Subbamma and Smt. Sandyavandanam Lakshmi Devi were appointed members. They, however, "because of the indifferent attitude adopted by the Government to the policy of prohibition in the Suite" resigned from the committee on 2-6-1996.

2. A brief history of the policy of total prohibition is narrated by ihe petitioners which is substantially acknowledged by the respondents. State of Andhra Pradesh and the Commissioner of Excise & Prohibition, for information and appreciation of the matter. There were two sets of enactments, one in regard to Telangana area and the other in regard to Andhra area called the A.P. (Telangana Area) Abkari Act, 1360 F (Act 1 of 1360 F) and the A.P. (Telangana Area) Intoxicating Drugs Act, 1333 F (Act IV of 1333F) in regard to Telangana area of the State and the A.P. (Andhra Area) Abkari Act, 1886 which was replaced by the A.P. (Andhra Area) Prohibition Act, 1937. The latter Act of 1937 empowered the State to issue notification to the effect that provisions of the Act other than Sections 1, 3 and 6 would cease to be in force in any local area on any particular date and the A.P. (Andhra Area) Abkari Act, 1886 would revive and come into force in the local area from the said date. To integrate the laws which applied in two areas of the State the A.P. Excise Act, 1968 ws brought into force which in the first instance extended only to the Telangana area and by a notification under proviso to Sec. 2 of the A.P. (Andhra Area) Prohibition Act, 1937 extended to Andhra area with effect from 1-11-1969. This Act prohibited/ prohibits manufacture, possession and sale of all excisable articles except under a licence, 'Excisable article' is defined in this Act as meaning any alcoholic liquor for human consumption and certain other substances as enumerated in Sec. 2 sub-section (9) thereof.

2A. Long and short, however, of the story is that on 16-1-95 the State promulgated an Ordinance and subsequently the legislature adopted the A.P. Prohibition Act, 1995 vires of which was decided by a Full Bench of this Court in M. C. Dowell and Co. Ltd. v. State of A.P., and in Kanaka Durga Wines v. Govt. of A.P., and in the light of the lacuna/deficiencies pointed out by the Court it received an amendment by Act 35 of 1995. Based, however, on experience in course of the implementation of the Prohibition Act, the Government of the State introduced the Bill and the legislature of the State has passed the Amendment Act which, according to the petitioners, is opposed to the directive principles of State policy under Art. 47 of the Constitution of India which as provided under Art. 37 thereof is not enforceable by any Court, but the principles nevertheless being fundamental in the governance of the country having been violated has rendered the Amendment Act unconstitutional.

3. Besides the petition of A. P. Sampoorna Madhya Nishedha Samithi and others there are other petitions being VV.P. 7474/97, 8039/97, 8148/97 and 8526/97 in which the vires of the Amendment Act is questioned. Since they too have agreed to the facts as stated above no special mention to the fuels stated in these petitions is necessary.

4. Before we proceed to deal with the contentions raised on behalf of the petitioners as well as on behalf of the respondents, we propose to delineate and determine the parameters of the Courts' powers to decide upon the validity or otherwise of an Act. Courts in India have taken notice of the presence of ordinance making power of the Governor of the Slate under Art. 213 of the Constitution and the power of the legislature to enact a law in respect of a subject in the State list or the concurrent list and pointed out that even a plain reading of Art. 213 of the Constitution which falls in Chapter IV thereof and is called the legislative power of the Governor of the State has got two distinct aspects, one being pristinely objective and the other being entirely subjective. The objective and the factual aspect is that the Legislature, where it is a unicameral one must not be in session and where it is a bicameral one, both the Houses of the legislature should not be in session. If the legislature is in session, the power of the Governor to issue ordinance is negatived. The other aspect which is purely subjective is with regard to the existence of circumstances which necessitate the immediacy of the promulgation of the Ordinance. Once the above two are satisfied the ordinance has the same force and effect as an Act of the legislature of the State as assented to by the Governor. Validily of an Act of the legislature, however, is presumed and one who questions the validity is required to show how the Act of the legislature is invalid. It will be permissible for the petitioner for showing invalidity of the law made by the legislature to demonstrate that in sum and substance the legislature has gone beyond its competence and/or violated any provision in Part III of the Constitution (Fundamental Rights) or any other provision of the Constitution and while impeaching the constitutional validity of the law also can show that the impugned law is irrational and is opposed to public interest, thus invalid for transgressing the constitutional limitations. In K.C. Gajapati Narayan Deo and Ors v. State of Orissa, the Supreme Court has stated (at page 279) :

"It is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The Legislature cannot violate the constitutional prohibitions by employing an indirect method."

Sometimes it is stated that a legislation is bad as it is a colourable one. What is, however, meant by the expression 'colourable legislation' is that the legislature has transgressed its legislative power in a covert or indirect manner. In construing a statute for testing its vires, it is necessary to see the consequences and then to test the legislative intent. It is the conseqence for which a law is designed i.e. to achieve some object or to remove or arrest a mischief. The motive behind the legislation has to be distinguished from the legislative intent. The former will fall in the category of bona fides or malice in law or malice in fact generally called mala fides. Bona fides or mala fides of the legislature are not available in judicial review. The latter, however, which is post-enactment operation or effect may show that the Act in substance is something which Is beyond the powers of the Legislature to legislate upon and that the Legislature has transgressed its power by adopting a device in a covert or indirect planner to achieve something other than the subject of legislation.

5. The above view is supported by several authorities including the judgments of the Supreme Court in the case of K.G. Gajapati Narayanan Deo v. State of Orissa, and P. Vajravelu Mudaliar v. Spl. Dy. Collector, Madras, .

6. How, however, irrationality or unreasonableness or arbitrariness of the law made by the Legislature is viewed by the Courts is aptly stated in the case of Ameerunnissa v. Mahboob Begum, . The Supreme Court has observed (at page 94) :

"It is well settled that a Legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not 'per se' amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the Legislature has in view........The British parliament enjoys legislative omnipotence and there are no constitutional limitations upon its authority or power. There were indeed a few statutes passed by the provincial legislature in India during British days which regulated succession to the estate of certain princely families..........But at that lime the Governor-General of India had express authority under the provisions of the Government of India Act, 1915, to authorise the provincial legislatures to make laws regarding the subjects of a private nature. Quite apart from this, no question of infraction of the equal protection rule could arise in pre-Constitution days. We are not unmindful of the fact that the presumption is in favour of the constitutionality of an enactment but when on the fact of it a piece of legislation is palpably unreasonable and discriminatory and the selection or classification made by it cannot be justified on any conceivable or rational ground, the Court has got to invalidate the enactment on the ground of its violating the equal protection clause."

Yet another aspect which we keep in mind is the essence of the distinction between the legislative power and judicial power. Legislature makes the law which becomes binding on all persons over whom the legislature exercises legislative power. Judicature applies the already existing law in the resolulion of disputes between particular parties. Yet, as De Loime has stated in the Constitution of England, New Edn. (1800 p. 149) the Courts of equity continually employed in finding out and providing law remedies for those new species of cases for which neither the Courts of common law nor the legislature have as yet found it convenient or practicable to establish any. Mathew J. explained his observations in His Holiness Kesavananda Bharati Sirpadagalavaru v. State of Kerala. :

".............Under the Indian Constitution, the original sovereign the people-created, by the amending clause of the Constitution, a lesser sovereign, almost co-extensive in power with itself. This sovereign, the one established by the revolutionary act of the full or complete sovereign has been called by Max Radin, the "pro-sovereign", the holder of the amending power under the Constitution"

by saying, in Smt. Indira Gandhi v. Rajnarain, :

"I fully appreciate that 'sovereign', if conceived of as an omnipotent being, has no existence in the real world. Several thoughtful writers have deprecated the use of the expression in legal discussion as it has the logical and religious overtones. Nevertheless, as the practice has become inveterate, it will only create confusion if any departure is made in this case from the practice. If it is made clear that the sovereign is not a 'mortal God' and can express himself or itself only in the manner and form prescribed by law and can be sovereign only when he or it acts in a certain way also prescribed by law, then perhaps the use of the expression will have no harmful consequences".

He has also quoted in the said judgment from "The Theory of Sovereignty Restated by W.J. Rees:

"Legal sovereignty is a capacity to determine the actions of persons in certain intended ways by means of a law..........Where the actions of those who exercise the authority, in those respects in which they do exercise it, are not subject to any exercise by other persons of the kind of authority which they are exercising".

It is clear and there is no ambiguity in demarcation of power of the legislatures and the Courts and except inadvertent encroachments which have been set right by superior courts themselves, i.e., High Courts and the Supreme Court, Courts have refrained from entering into the precinets of legislature to find out how legislators decided to make a law and whether in making the law they were actuated by malice or motive. Jurisdictional scales have been kept in balance for when legislatures go beyond their competence and make laws which violate the Constitution of India and transgress public interests. Courts declare such laws ultra vires the legislative competence and unconstitutional and the laws accordingly are nullified or modified. When in the light of the judgments of the Courts legislators re-enact laws after removing the defects which render them invalid, the Courts do not react as if their judgment is nullified by the legislaturccxcept the cases in which the legislature plays the role of ihe Court and makes a taw to operate as decree to set aside the Court's judgment.

7. Coming closcr to the controversy we borrow from the Full Bench judgment of this Court in the case of Kanaka Durga Wines v. Govt. of A.P., "Intoxicating drinks, a much desired beverage, a favourite topic of poetry in oriental countries, a routine drink and indispensable item of parties and dinners in occidental countries, have none the less been subject of controversy from time immemorial. Their virtues and vices have been, debated by the addicts and the reformists for ages. Some religions prohibited their use on the ground of their predominantly delirious effects which outweigh the pleasure, enjoyment and benefits, if any, of the drinks. Though the petitioners have placed some material on record to show that all intoxicating drinks are not injurious to health and that some drinks like beer, draught beer have good nutrition value and that some others, if taken in small quantities, not only have no delirious effect but also have many advantages and the State relied on some literature to show that intoxicating drinks are injurious to health, we are not inclined to discuss these aspects inasmuch as our constitutional trainers imposed a duty on every State to endeavour to bring about prohibition of the consumption except for medicinal purposes of the intoxicating drinks and of drugs which are injurious to health as one of the Directive Principles of the State Policy by including it in Article 47 (Part IV) of the Constitution of India."

and add that, "Prohibition of the consumption of the intoxicating drinks and drugs which are injurious to health being one of the Directive Principles of the State Policy, it would be illegitimate for any person to support any law which is based on the principle that intoxicating drinks are indispensible items of parties and dinners, are a much desired beverage or thus their enjoyment and/or benefits are welcome to our society.

One of us (Mishra, C.J.) had the occasion to deal with the case of Tamilnadu Freedom Fighters' Association v. The Government of Tamil Nadu, 1992 (1) Law Weekly 551, in which the petitioner appellant society had moved the Court under Art. 226 of the Constitution seeking to restrain the State of Tamil Nadu from manufacturing and doing business or trade in the so-called cheap liquor. The offending provisions according to the petitioner-appellant in the said case were the exclusive privilege of manufacturing country liquor for the whole of the Stale of Tamil Nadu conferred upon the State Government and authority to it to licence the Tamil Nadu Spirit Corporation Limited for the purpose of manufacturing and selling liquor. In the return" the Government of the State had said.

"However, the long experience of implementation of prohibition showed that the evil cannot be eradicated and a core of addicts remain and continue to patronise illicit liquor. Under the provisions of the Tamil Nadu Prohibition Act, 1937 as on 7-3-90 only relatively, affluent could afford to buy Indian made Foreign Liquor while those belonging to poorer sections who cannot afford to buy Indian-made Foreign Liquor have no other way except to resort to illicit liquor thereby rendering themselves vulnerate to tragic effects leading to imminent death as a result of consumption of such illicit liquor. To avoid such a situation, the Government have introduced country liquor, keeping in view the following objects :--
i) to enable those belonging to poorer sections who are desirous of consuming liquor, and could not afford to pure base costly Indian-made Foreign Liquor to get liquor at lesser cost :
ii) to prevent them from becoming victims of anti-social elements indulging in the sale of illicit liquor; and
iii) to avoid the loss of revenue which was hitherto flowing into the hands of anti-social elements and to divert from the sale of privilege of selling country liquor for welfare schemes that can ultimately benefit the common people."

Before, however, the case was finally heard the Government changed and the successor Government filed an affidavit stating as follows :

"The present Government is totally dedicated to the philosophy of total prohibition and one of its first executive acts was the withdrawal of Tamil Nadu Country Liquor (Retail Vending) Rules, 1990 By G.O. Ms. No. 174, Prohibition and Excise (V) Department, dated 27-6-1991. Act 12 of 1990 amends the Principal Act, namely, Tamil Nadu Act X of 1937 for reintroduction of country liquor which had been prohibited under Act 33 of 1986. It is the avowed policy of the present Government to make prohibition total and the first step was taken immediately on assumption of office by the Government by removing country liquor. The Government gives its solemn word that steps will be taken by this Government to amend the principal Act suitably so as to do away with the amendments introduced by Tamil Nadu Act 12/90 relating to country liquor,"

The Court upon the same observed :

"Indeed one may commend the stand of the Government of the State. The petitioner/appellant shall be too happy to do so. His grievance stands fully vindicated. We however, think it necessary to remove a certain misapprehension that has primarily been created by the acceptance of the stand of the respondent in the writ petition that the petitioner intended to seek implementation of the Directive Principles of the State policy by the State Government, which the Court would decline to do and that there has been no Constitutional infirmity in the Tamil Nadu Act 12 of 1990."

The Court thereafter proceeded to take notice of Art. 246 of the Constitution. List II or State List in the VII Schedule and Art. 47 in Part IV of the Constitution of India, to which provisions we shall advert later, and after necessary predications into the vires of the law observed as follows :

"We have already noticed that Courts in India found that something which is opposed to public interest cannot be claimed as a right by a citizen under Art. 19 of the Constitution. We have seen that what the Supreme Court of India has said that freedom of trade, business or commerce cannot extend to freedom to indulge in crimes or to act against public interest. If such would be not the rule, there may be many who would not see anything immoral in prostitution, slavery or bonded labour. It is obvious that the State has to play a role by imposing reasonable restriction and if restrictions are warranted by the call of the interest of the public. Court shall find it justifiable. If the State lakes a reverse role and decides to revive or legalise prostitution, one may come and say that it is without the law making competence of the State Legislature or Parliament and since it is without the law making competence of the State Legislature or Parliament and since it is without the Legislative competence Courts would strike off without any demur. Once this legal position is understood, it is no more in doubt, and that widespread consumption of liquor has been noticed as an evil, it has to be conceded that anything done to encourage the production and trade in liquor will be opposed to public interest. One can understand a State taking shelter under the Directive Principles of State Policy to escape any challenge to legislation. The question in the instant case is not whether the Court can direct the State to implement the Directive Principles of State Policy but whether the State can ignore the directive principle and make a law which is opposed to the State Policy, there can be no State policy which is opposed to public interest. Everyling which is in consonance with the directive principle of State policy in Part 4 of the Constitution must ordinarily be in the public interest. No authority, whether Legislature. Executive or Judiciary can do a thing which is opposed to public interest. If the Legislature in the instant case is found to have made a law which is opposed to the directive principle of State policy, why the Court cannot say that it made a law which it cannot make?"

For coming to the above conclusion the Madras Court relied upon the judgment of the Supreme Court in The State of Bombay v. R.M.D. Chamarbaghwala. , in which the Supreme Court rejected the argument that the words 'trade or business or commerce' be read in their widest amplitude as meaning any activity which is undertaken or carried on with a view to carring profit and that there is nothing in Articles 19(1)(g) and 301 of the Constitution which qualify or cut down the meaning of the critical words. The Supreme Court in the said judgment observed :

"On this argument it will follow that criminal activities undertaken and carried on with a view to earning profit will be protected as fundamental rights until they arc restricted by law. Thus there will be guaranteed light to carry on a business of hiring out goondas to commit assault or even murder, of housebreaking or selling obscene pictures, of trafficking on women and so on, until the law curbs or stops such activities. This appears to us to be completely unrealistic and incongruous. We have no doubt that there are certain activities which can under no circumstances be regarded as trade or business although the usual forms and instructions are employed therein. To exclude those activities from the meaning of those words is not to cut down their meaning at all but, they say only that they are not within the true meaning of those words. Learned counsel has to concede that there be no 'trade or business' in crime but submits that this principle shouId not be extended and that in any event there is no reason to hold that gambling does not fall within the words 'trade' or 'business' or 'commerce' as used in the Articles under consideration."

and then said, "what is opposed to public morality or public interest would he opposed to public policy and those can never be fundamental to any citizen."

The Madras Court in the said case also referred to the judgment of the Supreme Court in Nashirwar v. State of Madhya Pradesh, , in which it is pointed out (at page 365; of AIR) :

"There are three principal reasons to hold that there is no fundamental right of citizens to carry on trade or to do business in liquor. First, there is the police power of the State to enforce pubic morality, to prohibit trades in noxious or dangerous goods. Second, there is power of the State to enforce an absolute prohibition of manufacture or sale of intoxicating liquor. Art. 47 states that the Stale shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Third, the history of excise law shows that the State has the exclusive right of privilege of manufacture or sale of liquor."

Nashirwar's case is not alone in its pronouncement to the above effect. In Cooverji R. v. Excise Commissioner, and State of Orissa v. Hari Narayan Jaiswal. the above view is reiterated.

There can thus be no doubt that the State possesses the right of complete control over all aspects of intoxicants, i.e., manufacture, collection, sale and consumption. The reasons are public morality, public interest and harmful and dangerous character of Iiquor. On the basis of such authoritative pronouncements of the Courts it is to be concluded without hesitation that.

1) Free or unregulated sale of intoxicating drinks and of drugs which are injurious to health is opposed to public morality, public interest and the State policy which is stated in Art. 47 of the Constitution of India. The State has the right to put a complete ban and exerise complete control over all aspects of intoxicants, manufacture, collection, sale and consumption of the intoxicating liquor.
2) Since the directive is clear, and unambiguous that the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of all intoxicating drinks and drugs which are injurious to health, any law made by the legislature of the State to achieve prohibition in all respects of intoxicating liquor will be protected as the State's endeavour to fulfil the policy as stated under Art. 47 of the Constitution.
3) Any act of the State including the law made by the Legislature which ignores the Directive Principle of a State policy to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health and is thus opposed to the Slate policy can be assailed as opposed to public interest and beyond the competence of the State Legislature.

Petitioners have questioned the constitutionality of the Amendment Act mainly on the ground that it is opposed to the State policy/public policy and is thus beyond the legislative competence of the State.

8. Validity of the provisions of the Prohibition Act has been upheld and any doubts as to its validity in any respect have to be eschewed for in State of A.P. v. McDowell & Co., . the Supreme Court has clearly stated that the Act in so far as it prohibits the manufacture of liquor within the State of Andhra Pradesh is not beyond the legislative competence of the State. This judgment has clearly pronounced that the State Legislature is competent to make law on the subject of intoxicating liquors in Entry VIII in List II of VII Schedule of the Constitution of India and that it does not violate any fundamental rights guaranteed under Part III of the Constitution of India or any other provision of the Constitution. The Supreme Court in this case has also pointed out that no enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. An enactment cannot be struck down by applying the principle of proportionality when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted.

9. The Amendment Act has inserted the definition of 'arrack' in Sec. 2 of the Act and substituted the definition of 'liquor' therein. It has also substituted Sec. 7-A by it provision for prohibition of production, manufacture, storage, possession, collection, purchase, sale and transport of arrack, made certain changes by additions and/or substitution of certain parts of the provisions in Sections 8 and 9 of the Act and has made certain other corresponding amendments in some other provisions of the Prohibition Act. The Prohibition Act originally, before it received amendment by Act 35 of 1995 with effect from 16-1-95 provided under Section 7. that the selling, buying, being in possession and consumption of liquor, otherwise than in accordance with the provisions of the Act or as the case may be, the A.P. Excise Act, 1968 is prohibited. Section 7-A when introduced stated, "manufacturing of liquor is hereby prohibited." Section 8 provided for punishment for buying, selling, consumption etc., of liquors and the same received some amendments before the Amendment Act was enforced to read as follows :

"8. Punishment for buying, selling, consumption etc., of liquors :-- Whoever.-
(a) consumes any liquor except in accordance with the provisions of this Act, or the terms of any rule, notification, order, licence or permit issued thereunder shall be punished with imprisonment for a term which may extend up to six months or with fine which may extend up to one thousand rupees or with both;
(b) possesses, collects, buys, sells or transports any liquor without any licence or permit granted under the Andhra Pradesh Excise Act, 1968 (Act 17 of 1968) shall be punished-
i) where the liquor involved in the offence is less than such quantity as may be notified in this behalf with imprisonment for a term which shall not be less than six months but which may extend upto three years and with fine which shall not be less than rupees ten thousand or shall not be less than thrice the value of the liquor involved in the offence, whichever is higher but which may extend up to six times the value of such liquor. Such value being arrived at in the manner prescribed.
ii) where the liquor involved in the offence is not less than the quantity notified as aforesaid with imprisonment for a term which shall not be less than one year but which may extend up to five years and with fine which shall not be less than rupees twenty thousand or shall not be less than thrice the value of the liquor involved in the offence whichever is higher but which may extend up to six times the value of such liquor, such value being arrived at in the manner prescribed.

Provided that any person in possession of any liquor of a quantity of or less than 375 ml. and who is a first, offender under this Act shall be punished with imprisonment for a term which may extend up to three months and with fine which may extend up to five thousand rupees.

iii) where the commission of any offence either under sub-clause (i) or sub-clause (ii) is abetted, the abettor shall be liable for punishment with imprisonment of either description and with fine as provided therein;

(c) having obtained a licence or permit granted under the Andhra Pradesh Excise Act, 1968 sells any liquor otherwise than in accordance with the provisions of this Act or terms of any rule, notification, order, licence or permit issued thereunder shall be punished with imprisonment for a term which may extend up to six months or with fine which may extend up to rupees one thousand or with both;

(d) allows consumption of liquor upon premises in his immediate possession shall be punished with imprisonment for a term which may extend up to three years or with fine which may extend up to ten thousand rupees or with both.

(e) whoever contravenes the provisions of Section 7-A shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend up to five years and with fine which shall not be less than rupees ten thousand but which may extend up to rupees one lakh."

The Amendment Act has retained Sec. 7 of the Prohibition Act and substituted Sec. 7-A to read as follows :

"The production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is hereby prohibited."

Section 8 after amendment reads as follows :

"8. Punishment for buying, selling, consumption etc., of liquors :-- Whoever,--
(a) consumes any liquor except in accordance with the provisions of this Act or the Andhra Pradesh Excise Act, 1968 (Act 17 of 1968) or the terms of any rule, notification, order licence or permit issued thereunder shall be punished with imprisonment for a term which may extend upto six months or with fine which may extend up to one thousand rupees or with both;
(b) possesses, collects, buys, sells, transports produces or manufactures any liquor other than arrack except in accordance with the provisions of the Andhra Pradesh Excise Act, 1968 (Act 17 of 1968) or the terms of any rule, notification, order, licence or permit issued thereunder
(i) where the liquor involved in the offence is less than such quantity as may be notified in this behalf with imprisonment for a term which shall not be less than six months but which may extend up to three years and with fine which shall not be less than rupees twenty thousand or shall not be less than thrice the value of the liquor involved in the offence whichever is higher but which may extend up to six times the value of such liquor, such value being arrived at in the manner prescribed;
(ii) where the liquor involved in the offence is not less than the quantity notified as aforesaid with imprisonment for a term which shall not be less than one year but which may extend upto five years and with fine which shall not be less than rupees twenty thousand rupees or shall not be less than thrice the value of the liquor involved in the offence whichever is higher hut which may extend up to six times the value of such liquor, such value being arrived at in the manner prescribed :
Provided that any person in possession of any liquor other than arrack of a quantity of or less than 375 ml. and who is a first offender under this Act shall be punished with imprisonment for a term which may extend up to three months and with fine which may extend up to five thousand rupees.
(iii) where the commission of any offence either under sub-clause (i) or sub-clause (ii) is abetted, the abettor shall be liable for punishment with imprisonment of either description and with fine as provided therein;
(c) having obtained a licence or permit granted under the Andhra Pradesh Excise Act, 1968 sells any liquor other than arrack otherwise than in accordance with the provisions of this Act or terms of any rule, notification, order, licence or permit issued thereunder shall be punished with imprisonment for a term which may extend up to six months or with fine which may extend up to rupees one thousand or with both;
(d) allows consumption of arrack upon premises in his immediate possession shall be punished with imprisonment for a term which may extend up to three years or with fine which may extend up to ten thousand rupees or with both;
(e) Whoever contravenes the provisions of Section 7-A shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend up to five years and with fine which shall not be less than rupees ten thousand but which may extend up to rupees one lakh."

There has been a provision under Section 9 of the Prohibition Act with the explanation added thereto by Act 35 of 1995 that any person found in a state of intoxication in any public place and not having been permitted to consume any liquor in pursuance of the Act found in a State of intoxication in any private place would be punishable with imprisonment which would not be less than two months but which might extend up to one year and with fine which might extend up to Rupees two thousand or with both. Intoxication to attract punishment was explained to mean a state of mind and behaviour in which a person was incapable of knowing the nature of his actions or incapable of judging the consequences thereof by reason of intoxication. Punishment provision in Section 9 has undergone a change and the Amendment Act has prescribed as follows :

"Whoever is found in a state of intoxication in any public place otherwise than as permitted under any law, shall be punishable with imprisonment which shall not be less than two months but which may extend up to one year and with fine which may extend up to two thousand rupees, or with both.
EXPLANATION : For the purposes of this section 'intoxication' means a state of mind and behaviour in which a person is incapable of knowing the nature of his actions or incapable of judging the consequences thereof by reason of intoxication."

10. Legislative competence for the Prohibition Act is not in doubt and even after the amendments by the impugned Amendment Act it still continues to be an Act within the legislative competence of the State under entry VIII in list II of VII Schedule of the Constitution of India. Objection, however, is taken by the petitioners to the amendments which appear to lift the ban upon manufacturing of liquor and impositions by the State of prohibition of selling, buying, being in possession and consumption of liquor in private places by confining the prohibition to the manufacture of arrack under Section 7-A and extending the prohibition to product ion, storage, possession, collection, purchase, sale and transport of arrack. Section 9 after amendment confines punishment to a person who is found in a state of intoxication in any public place otherwise than as permitted under any law which was the law before the amendment, but has lifted the punishment to a person who consumed any liquor except Arrack and found in a state of intoxication in any private place. According to the petitioners manufacture, production, storage, possession, collection, purchase, sale and transport of liquor for consumption at a private place thus is permitted except arrack by the Amendment Act. Section 8 is couched in such terms that the prohibition can completely be lifted on production, manufacture, storage, possession, collection, purchase, sale, consumption and transport of liquor except arrack by the executive Government of the State. This according to the learned counsel for the petitioners is opposed to public interest and since the Amendment Act has diluted the prohibition to such a large extent that it is opposed to public policy and the directive principle of State policy, and is thus beyond the legislative competence of the State.

11. Learned Advocate-General has contended, however, that the impugned legislation is eminently within the legislative competence of the legislature having regard to Entry VIII of List II of the VII Schedule of the Constitution and that apart the Court shall not direct for enforcement of the directive in Art. 47 read with Art. 37 in Part IV of the Constitution. According to him legislative intent is not to dulute or retract from the policy of prohibition but an attempt to adopt a rational approach for effectuating the directive on prohibition by recognising appropriate area, manner, extent and degree of the harm and control and regulate the availability of intoxicating liquor to the residents of the State. He has drawn our attention to the statement of the objects and reasons to emphasise that lifting of the ban with effective control upon the production, manufacture, sale, storage, transport and consumption of Indian-made Foreign Liquor and Indian-made Liquor while continuing the prohibition on Arrack is a step to effectively enforce the prohibition law on the one hand and on the other hand to protect the State and its people from attendant/resultant evils of total prohibition. Statement of objects and reasons reads as follows :

"Government have introduced total prohibition of the manufacture, sale and consumption of all types of intoxicant liquors except toddy vide Act 17 of 1995. Based on the experience gained in the implementation of Prohibition Act and with a view to make the implementation more rigorous and effective, the Act was further amended through Act 35 of 1995 and Act 10 of 1996.
The State Government made earnest efforts and took a series of steps to effectively enforce the prohibition law, throughout the State. Despite the best efforts of the Government the prohibition related offences, particularly illicit distillation and smuggling have been steadily increasing. The growing money and muscle power of the violators of the prohibition law has the dangerous potential of disturbing peace and harmony in the society. Government have repeatedly elicited the cooperation and support of the neighbouring States in arresting smuggling across the borders. In the absence of total prohibition in the neighbouring States, smuggling of liquor continued unabated. The growing menace of illicit liquor has posed grave danger to the health and well being of the gullible consumers.
Government have come to the painful conclusion that the Andhra Pradesh Prohibition Act, 1995 needs to be modified to bring it in tune with the relatives on ground, while protecting effectively the vulnerable sections of the people. In pursuance of this objective, it is now decided to continue prohibition of arrack, which has singularly caused enormous harm to the vulnerable sections and to effectively regulate the other types of intoxicating liquors."

The State has supported the statement that arrack has been singularly causing enormous harm to the vulnerable sections by filing an affidavit and a statement showing the percentage of the people in the State who consumed arrack. Object of the amendment as stated thus is to protect effectively the vulnerable sections of the people and to achieve the same, it is said the State has decided to continue the prohibition of arrack. Government's efforts to enforcc total prohibition is frustrated, it is said, due to illicit distillation and smuggling and related developments like the growing money and muscle power of the violators of the prohibition law which has the dangerous potential of disturbing peace and harmony in the society. Learned Advocate-General has contended that without co-operation and support of the neighbouring States smuggling across the borders cannot he effectively controlled and it has been found impracticable to keep State of Andhra Pradesh as the land of total prohibition when it is surrounded by States of Karnataka, Maharashtra, Madhya Pradesh, Tamil Nadu and Orissa which do not exercise total prohibition. Illicit liquor as well as liquor smuggled from the neighbouring States has posed grave danger to the health and well being of the gullible consumers.

12. The Supreme Court while dealing with the case of Horse racing and the provisions of the Madras State Police Act, Act 3 of 1889 and Tamil Nadu Gaming Act, Act 3 of 1930 in K. R. Lakshmanan v. State of T.N., has taken notice of the amendments made to the Acts which disclosed inconsistency in the policy and stated as follows :

"It is true that the presumption is in favour of the constitutionality of a legislative enactment and it is to be presumed that a legislature understands and appreciates the needs of its own people, but when on the face of the Statute there is no classification and no attempt has been made to select an individual with reference to any differentiating attributes peculiar to that individual and not possessed by others, the presumption is of the assistance to the State. We see no reasonable basis for classifying the race-club for the purposes of acquiring and transfer of its undertaking on the ground of mismanagement.
We see considerable force in the contention of Mr. Parasaran that the acquisition and transfer of the undertaking of the club is arbitrary. The two Acts were amended by the 1949 Act and the definition of 'gaming' was amended. The object of the amendment was to include horse racing in the definition of 'gaming'. The provisions of the 1949 Act were, however, not enforced till the 1974 Act was enacted and enforced with effect from March 31, 1975. The 1974 Act was enacted with a view to provide for the abolition of wagering or betting on horse races in the State of Tamil Nadu. It is thus obvious that the consistent policy of the State Government, as projected through various legislations from 1949 onwards, has been to declare horse racing as gambling and as such prohibition under the two Acts. The operation of the 1974 Act was stayed by this Court and as a consequence the horse races are continuing under the orders of this Court. The policy of the State Government as projected in all the enactments on the subject prior to 1985 shows that the State Government considered horse racing as gambling and as such prohibited under the law. The 1985 Act on the other hand declares horse racing as a public purpose and in the interest of the general public. There is apparent contradiction in the two stands. We do not, agree with the contention of Mr. Parasaran, that the 1985 Act is a colourable piece of legislation, but at the same lime we are of the view that no public purpose is being served by acquisition and transfer of the undertaking of the club by the Government. We fail to understand how the State Government can acquire and take over the functioning of the race club when it has already enacted the 1974 Act with the avowed object of declaring horse racing as gambling? Having enacted a law to abolish belling on horse racing and stoutly defending the same before this Court in the name of public good and public morality, it is not open to the State Government to acquire the undertaking of horse racing again in the name of public good and public purpose. It is ex facie irrational to invoke 'public good and public purpose' for declaring horse racing as gambling and as such prohibited under law, and at the same lime speak of 'public purpose and public good' for acquiring the race club and conducting the horse racing by the Government itself. Arbitrariness is writ large on the face of the provisions of the 1985 Act."

13. Observations of the Supreme Court in K. R. Lakshmanan's case supra go a long way to show that a stand in conflict with the avowed object of the Act for amending the same would unfold discrimination and arbitrariness and violate and infract the right of equality enshrined under Art. 14 of the Constitution, Thus, if the stand in support of the Amendment is found to be opposed to or in conflict with avowed object of the Prohibition Act, the same may be found to be discriminatory and arbitrary. Can it be said with respect to the reasons and objects of the Amendment Act that the Amendment Act has any such purpose which conflicts with the purpose of the Prohibition Act? If the answer is in the affirmative the Amendment Act is opposed to public interest, discriminatory and arbitrary and as such violative of the right to equality enshrined under Article 14 of the Constitution and if the answer is in the negative the Amendment Act docs not suffer from such vices which would render it invalid. In one of the latest judgments dealing with a validating statute which provided statutory basis and legislative imprimatur to the price fixation for the sale of country liquor in the State of Bihar governed by Bihar and Orissa Excise Act, 1915, the Supreme Court in State of Bihar v. Bihar Distillery Ltd., 1997 (2) SCC 455 has referred lo a few decisions rendered by the Supreme Court to emphasise that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles and that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

It has referred to an earlier judgment of the Supreme Court in Burrakur Coal Co. Ltd. v. Union of India, in which the Constitution Bench of the Supreme Court has stated (at page 963):

"Where the validity of a taw made by a competent legislature is challenged in a Court of law, that Court is hound to presume in favour of its validity. Further, while considering the validity of the law the Court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained."

In another judgment in the case of State of Orissa v. Narain Prasad, the Supreme Court has dealt with the change in the vending and licensing policy of liquor in the State of Orissa and explained the observations in respect of the theory of privilege in Synthetics and Chemicals Ltd. v. State of U.P., and observed :

"In the context of excise enactments, the expression 'privilege' really means the licence or permit granted by the State. We may explain; the State is entitled to prohibit the trade in intoxicating liquors altogether; it can impose a total ban; no citizen can claim any fundamental right to manufacture or to trade in these liquor; it is, however, open to the State to lift the ban partially and allow the trade in liquor to be carried on the in the manner prescribed; the State says that a citizen can trade in liquor only under a licence to be granted by it for the consideration specified in that behalf and that the trade therein can be carried on only in accordance with the regulatory provisions prescribed by it in that behalf. It is this grant of licence/permit, which is called or is described sometimes as grant of 'privilege'."

Legislative power thus to prohibit the trade in intoxicating liquor or to impose total ban in view of the above observations of the Supreme Court includes competence to lift the ban partially and allow the trade in liquor to be carried on in the manner prescribed. Attempts to effectively enforce the prohibition law, it is said, are frustrated by existence of atleast one factor which is beyond the control of the State. The State Government has placed before the Court information about the correspondence it has made with the neighbouring Stales, particularly, the State of Karnataka eliciting co-operation and support for arresting smuggling across the borders and it is not possible to hold that the statement that in the absence of total prohibition in the neighbouring States smuggling of liquor has continued unabated is incorrect. When smuggled liquor is available and smuggling of liquor has continued unabated it is not unlikely that illegal money has been growing and violators of the prohibition law have been using such money and muscle power and causing danger to peace and harmony in the Society. While enforcement of total prohibition is the State policy and the State thus has to pursue it, it is equally necessary to see that violators of prohibition do not grow beyond proportion and peace and harmony in the society is not disturbed by inflow of liquor from the neighbouring States by illegal means. Violatory activities like illicit distillation and smuggling of liquor from the neighbouring States, true, have to be checked. The State cannot say that because it is not able to contain illicit distillation and smuggling, it is entitled to withdraw the prohibition. Failure of State mechanism in effectively dealing with the prohibition related offences in itself cannot be a ground to abandon the prohibition policy. Yet, without abandoning the policy, when circumstances require, the State can Choose to be flexible to deal with more serious menace so that the menace which the law contemplates to remove, is firmly and effectively dealt with. The theory of non-retract which is so candidly stated in the judgment of the Madras Court in Tamil Nadu Freedom Fighters' Association v. The Government of Tamil Nadu, 1992(1) Law Weekly 551 supra, "there can be no State policy which is opposed to public interest"

cannot be extended to postulating that the principle contained in Part IV of the Constitution is a limitation on the legislative choice and that once a law is made pursuant to a directive such as one in Art. 47 of Part IV of the Constitution read with Art. 37 thereof, the legislature is rendered incompetent to decide upon amending, extending or repealing the law which is not serving the purpose for which it is enacted. Total prohibition imposed by the Prohibition Act is not destroyed merely because the legislature for effective enforcement of prohibition has chosen to lift the ban to the extent it has found necessary. This must also dispose of the alleged violation of Art. 21 of the Constitution. Such legislation cannot be found to cause any injury to the constitutional guarantee to life.

14. Learned counsel for the petitioners has also contended that it must be accepted as a constitutional convention that a political party stands committed when elected to power to its manifesto and when it is found to have gone against its manifesto it be asked to seek a fresh mandate. He has urged that the party in power in the State has besides other promises sought vote and obtained it on the promise of total prohibition from which promise it has backed out. According to the learned counsel Amendment Act has been passed by the State Legislature in breach of the manifesto and thus in violation of the constitutional convention. He has drawn our attention to a passage in 'the Law and the Constitution' by Jennings 5th Edn. In the Chapter dealing with the conventions of the Constitution before speaking on the mandate at page 176 Jennings has pointed out:

"The short explanation of the constitutional conventions is that they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas. A constitution does not work itself; it has to be worked by men. It is an instrument of national co-operation, and the spirit of co-operation is as necessary as the instrument. The constitutional conventions are the rules elaborated for effecting that co-operation. Also, the effects of a constitution must change with the changing circumstances of national life. New needs demand a new emphasis and a new orientation even when the law remains fixed. Men have to work the old law in order to satisfy the new needs. Constitutional conventions are the rules which they elaborate."

(pg. 81 5th Edn. 'The Law and the Constitution', Jennings) At page 176 Jennings has stated : "There is, too, a convention which limits the power of Parliament in respect of internal matters. Apart altogether from political expediency, it is now recognised that fundamental changes of policy must not be effected unless they have been in issue at a general election. This appears as a limitation upon the Government. But since the Government, as I shall explain presently, controls Parliament, it is a limitation upon Parliament itself."

And at page 178, "It is not a matter of deducting the convention from the precedents, for the accusation that 'the Government has no mandate' is one of the commonest allegations of an Opposition. There is, too, a reason for it. It establishes that in major issues the policy of the country shall be changed only after a definite expression of the opinion of the electorate at a general election. General policies are all that can reasonably be submitted to the voter. Within their ambit Parliament may constitutionally legislate as it pleases. Nor can any general issue be submitted unless it is so important that it is debated in every constituency in the United Kingdom. At the present time, for example, the opinion of the electors on the demand for Home Rule for Scotland cannot be taken, because in only a small proportion of constituencies is it likely even to be mentioned. The contrary was true of the demand for Home Rule for Ireland in 1885 and 1892."

Jennings has spoken of the mandate as a rule of convention as has been developed in Great Britain. We have already noticed that the Constitution had mandated in Art. 47 though not enforceable but as Art. 37 has pronounced fundamental in the governance of the country that the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. We have noticed that the State Government cannot reverse the State Policy enshrined in the Constitution and do things which undermine the mandate in Article 47 of the Constitution and in a given case the Court may find such act of the State opposed to public interest, and for such reasons discriminatory and arbitrary and violative of Article 14 of the Constitution. State's legislative endeavours to effectively eradicate the menace of intoxicating liquor, however, in the instant case, cannot be said to have been reversed by the Amendment Act by partially lifting the total ban upon some varieties of liquor and such partial lifting cannot be branded as reversal of the policy of enforcement of prohibition. In fact prohibition still exists. The law only empowers the State to lift to such extent it deems necessary. Jeenings is apparently correct in endorsing a healthy convention of a political party in power to implement the manifesto and in case it finds that it cannot implement the premises or proposals, to go for a fresh mandate. This, however, cannot enter into the precincts of the legislature to test the validity of the law which, as we have already noticed, has to be judged on the principles of constitutionality and irrationality within the limits as laid down by the Courts in India. In a multi party system legislature may not have one party majority and for the purpose of the legislative and other functions legislators may have to make adjustment within the bounds of the Constitution. In Bromley LBC v. GLD, 1982(1) All England Law Reports 129 House of Lords dismissed the appeal against the judgment of the Court of Appeal, Civil Division in a case which related to a cut in the fares of London Buses and tubes by 25% by the Greater London Council. Labour Party had issued a manifesto promising that if they won, they would within six months cut the fares on London's buses and tubes by 25%. They kept their promise. They told the London Transport Executive to cut the fare by 25%. The Transport Executive did as it was told. Within six months it cut the fares by 25%. The travelling public were well pleased with the gift. It meant millions of pounds in their pockets instead of in the ticket machines. But not the ratepayers of London. They were required to contribute 69 m to pay for it. In order to enforce payment, the council made a supplementary precept. This was an order directed to all the 35 London boroughs commanding them to raise the necessary funds. They were to do it by making a supplementary rate on all the rate-payers. One London borough, Bromley, challenged the validity of the whole procedure. The Court of Appeal held that the actions of the Council went beyond its statutory powers and were null and void. The House of Lords affirmed and dismissed the appeal. Commenting upon the manifesto Lord Denning said.

"A manifesto issued by a political party, in order to get votes, is not to be taken as gospel. It is not to be regarded as a bond, signed, sealed and delivered. It may contain, and often does contain, promises or proposals that are quite unworkable or impossible of attainment. Very few of the electorate read the manifesto in full. A goodly number only know of it from what they read in the newspapers or hear on television. Many know nothing whatever of what it contains. When they come to the polling booth, none of them vote for the manifesto. Certainly not for every promise or proposal in it. Some may be influenced by one proposal. Others by another. Many doubt that in this case many ratepayers voted for the Labour Party even though, on this one item alone, it was against their interests. And vice versa. It seems to me that no party can or should claim a mandate and commitment for any one item in a long manifesto. When the party gets into power, it should consider any proposal or promise afresh, on its merits, without any feeling of being obliged to honour it or being committed to it. It should then consider what is best to do in the circumstances of the case and to do it if it is practicable and fair."

Lord Bradon of Oakbrook along with others in the House of Lords observed :

"In my view it is plain for two reasons that the GLC did not exercise its discretion lawfully. The first reason is that, if and in so far as they exercised their discretion at all, the majority of the GLC considered themselves bound to exercise it in the way they did because they had promised to do so in their election manifesto. It is, of course, entirely appropriate for a council, the majority of whose members have been elected after setting out a particular policy in their election manifesto, to take into account, and give considerable weight to, that circumstance when exercising their discretion in relation to that policy after they have been elected and come to power. It is, however, entirely wrong for such a majority to regard themselves as bound to exercise their discretion in relation to that policy in accordance with their election promises, whatever the cost and other counter-vailing considerations may turn out to be. In my view it is an inevitable inference from the evidence taken as a whole that the majority on the GLC, when they approved the proposals for a 25% overall reduction in fares, were motivated solely by the brief that, because they had promised such a reduction before their election, they were completely and irrevocably bound to implement it after being elected. The second reason why I consider that the GLC did not exercise its discretion lawfully in that it presisted in implementing the pre-election policy even after it had become apparent to it that, because of the withdrawal by Central Government of a large amount of block grant which it had expected to be available to it, the cost to the ratepayers of the London boroughs of its doing so, already very large, was going to be nearly doubted. On the assumptions made, it was the duty of the GLC to balance fairly against each other the interests of the travelling public on the one hand and those of the ratepayers in the London boroughs on the other. In my view the decision of the GLC to persist in the implementation of the election policy on public transport, after it had become apparent that the originally contemplated cost to the ratepayers of the London boroughs would be nearly doubled, was not a decision which the council, directing itself properly in law, could reasonably have made."

15. It follows thus that a promise or proposal in the election manifesto cannot provide to those who vote for a political party a right to claim that the elected representatives must implement the manifesto and that there is a breach of the Constitution or the constitutional convention if they do not implement it. In the instant case the legislature of the State cannot be said to have done anything which can lead to the inference that it has withdrawn its endeavours to prohibit consumption of intoxicating liquor.

16. Petitioners in W.P. Nos. 7211, 7465,7529,7551,7552,7575,7681,7710,7713,7715,7724,7732,8071, 8158 and 8205 of 1997 have claimed that before the Prohibition Act was introduced they had obtained dealer's licences/ permits as contemplated in Chapter 6 of the A.P. Excise Act, 1968 and before their licence/permits expired, since the Prohibition Act was enforced the respondent State Government issued notices and withdrew the licences. Since the Amendment Act has revived the trading in liquor their licences/ permits also must revive.

17. Section 31 of the Excise Act provides for cancellation or suspension of the licence. Section 32 gives power to the competent authority which granted the licence to withdraw the same on the expiration of not less than thirty days notice in writing of its intention to do so. It is not denied that petitioners (old licensees) have been given such a notice and their licences have been withdrawn. Sub-section (2) of Section 32 says, "When a licence is withdrawn under subsection (1) part of the licence fee proportionate to the unexpired portion of the term of the licence and the deposit made by the licensee in respect thereof shall be refunded to him after deducting the amount if any, due from him to the Government."

It is unthinkable thus, that the licences which have been withdrawn can revive merely because by the Amendment Act licencing/granting permission is contemplated. As a consequence of the withdrawal such licensees/permit holders became entitled to claim part of the licence fee proportionate to the unexpired portion of the term of the licence and the deposit made in respect thereof. They are not entitled to any further right to carry on trade or business under the licences which are already withdrawn.

18. A serious endevaour, however, has been made in W.P. No. 7211 of 997 in spite of authoritative pronouncements and there being no ambiguity in law in this behalf, on behalf of the petitioner, the A.P. State Wine Dealers' Association, that the doctrine of 'a privilege' is not available to the State to impose tax under item VIII, list II of the VII Schedule of the Constitution and that they can levy excise duty or counter-veiling duty only under Entry 51 of the State list. We have already taken notice of the judgment of the Supreme Court in the case of State of Orissa v. Narain Prasad, supra in which observations in Synthetics and Chemicals Ltd. v. State of U.P., by G.L.Oza, J., as respects doctrine of privilege is explained and it is clarified that the consideration payable by the licensee for grant of licence along with the excise duty which is passed on is not a tax and the law as stated by the Supreme Court in Bimal Chandra Banerjee v. State of M.P., 1990 (2) SCC 467 is reiterated in these words :

"The argument of the licensee based upon Bimal Chandra Banerjee was that the Stale is really levying excise duty in the name of issue price and that it has no power to do so. Basing upon certain observations in Panna Lal it was contended by the licensee that issue price can only relate to liquor drawn by the contractor and that it cannot pertain to undrawn liquor. This Court repelled the contention based upon observations in Panna Lal in the following words:
"There can be no question that issue price must generally relate to liquor which is drawn by the contractors but it does not follow therefrom that issue price cannot be adopted by agreement between the parties as the measure of compensation to be paid in the case of undrawn liquor. In fact, it may not be quite correct even to view it as compensation as well shall presently see. It is no more and no less than the price which the contractor agrees to pay for the grant of the privilege to sell liquor, drawn or undrawn."

It is also observed in the said judgment :--

"the privilege of selling liquor -- and the licence to sell liquor herein may be granted by the State by public auction subject to (1) payment of rental being the highest bid at the auction........ (2) the requirement that the licensee shall purchase arract at the issue price, and (3) the further requirement that the licensee shall purchase a minimum guaranteed quantity of arrack which he has to make good in case of shortfall. The consideration for the grant of the privilege to sell liquor is not merely the rental to be paid by the lessee but also the issue price of the arrack supplied or treated as supplied in case of shortfall, which is also to be paid by the lessee-licensee. There is no question of the lessee-licensee having to pay the excise duty though it may be that the issue price is arrived at after taking into account the excise duly payable."

Thus the law is fully settled and argument that the State has chosen to impose a tax by asking for the deposits and bid money has no legs to stand. Petitioners in this case on the one hand have chosen to claim that their licence would revive and that the rate fixed for the licence by the State is illegal, on the other hand they have also chosen to question the vires of the Amendment Act. They have thus blown both hot and cold simultaneously. Their dealing in liquor is established. Their attempt to revive their licence is understandable. Challenge to the Amendment Act by them, however, appears ingeniously contrived. They cannot be said to have come to the Court with clean hands.

19. There are quite a few angry bursts and emotional diatribes and in affidavits filed by some of the petitioners particularly petitioners in W.P. Nos. 7552/97, 8158/97,7465/97,7211/97 reference is made to the views of the Governor of the State as an individual on the evil drinking of intoxicating liquor. They have used expressions which show that assent to the amendment bill by the Governor of the Slate who as an individual has held strong views in favour of prohibition is unexpected and objectionable. It is time, however, that we realise that constitutional functionaries too can have their individual opinions. They are however, not expected to use their personal views while discharging their constitutional functions. They like any other person have the freedom of speech and expression of their thought on any subject of public importance so long as they do not infringe their constitutional obligations. It will be objectionable if a constitutional functionary is guided by his or her personal opinion and allows his or her views to affect his or her constitutional duty. Such functionary has to keep personal views away and work within the bounds of the laws under which he or she has to function. Article 154 of the Constitution has recognised the executive power of the State to be exercised by the Governor either directely or through officers subordinate to him in accordance with the Constitution and Article 163 has made it imperative that the Governor shall act with the aid and advice of the Council of Ministers with the Chief Minister at the head except in so far as he has discretion to act under the Constitution. Clause (2) of Article 163 provides :--

"If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to, have acted in his discretion."

Clause (3) of Article 163 says that the question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any Court. Article 168 which speaks of the Constitution of Legislatures in the State says, "(1) For every State there shall be a Legislature which shall consisl of the Governor, and-

(a) in the States of Bihar, Maharashtra, Karnataka and Uttar Pradesh, two Houses;

(b) in other States, one House."

Article 175 empowers the Governor to address the Legislative Assembly or in the case of a State having a Legislative Council, either House of the Legislature of the State or both Houses assembled together and to send messages to the House or Houses of the Legislature of the State with respect of a bill then pending in the Legislature or otherwise and a House to which any message is so sent to consider any matter required by the message to be taken into consideration. Article 176 provides for special address by the Governor and of Legislative procedure in particular. Article 200 states:

"Assent to Bills: When a Bill has been passed by the Legislative Assembly of a State or in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:
Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular will consider the desirability of introducing any such amendments as he may recommend in his message and when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom;
Provided further that the Governor shall not assent to, but shall reserve for the reconsideration of the President any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill."

Article 201 says, "Bill reserved for consideration : When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom:

Provided that, where the bill is not a Money bill, the President may direct the Governor to return the bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as is mentioned in the first' proviso to Article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and if it is again passed by the House or Houses with or without amendment it shall be presented again to the President for his consideration."
When thus a Bill is passed by the Assembly (Andhra Pradesh State has only one House) the Governor has two options, either to assent to the Bill or to withhold assent or reserve the bill for consideration of the President. In case he decides to withhold assent he can return the bill requesting that the House would reconsider the bill or any specific provision thereof and if the House after re-consideration with or without amendment presented the bill once again for assent the Governor cannot withhold assent. Such discretion to withhold assent, Governor can exercise only if there is something which required reconsideration. He cannot introduce as a ground for reconsideration his personal views outside the Constitution and the laws as that would amount to the Governor imposing his views upon the legislators for consideration. Governor's act in assenting to the Bill cannot be termed as something which was undesirable or unwarranted. Moreover, why and in what circumstances Govern or assented to the Bill is not a question germane to the issue of the constitutionality or rationality of the act of the Legislature. Petitioners have, however, stated that they have withdrawn all such allegations which appear to question the role or conduct of the Governor of the State. We are thus spared of examining whether in the course of the passage of the Bill when the Assembly is constituted with the Governor and the Legislature (the Assembly) assent to the Bill as contemplated under Article 200 of the Constitution is also a part of the proceedings in the Legislature of the State (Assembly) and thus its validity cannot be examined by the Court under Article 212 of the Constitution of India or the Governor as a member of the Legislature as contemplated under Art. 168 of the Constitution is entitled to the privilege as contemplated under Article 194(2) and (3) of the Constitution of India. When and in what circumstances the Courts can enter into the precincts of the Legislatures and examine validity of the legislation as well as others acts of the Legislature is by now well demarcated and if there are some grey areas in suitable cases they can always be decided. We, however, order that all such allegations as withdrawn by the petitioners which arc referable to the role or conduct of the Governor of the State are cancelled as withdrawn and do not form part of the proceedings before the Court.

20. Petitioners have also questioned the repeal of Section 27 of the Act. This repeal has removed the statutory compulsion to appoint Advisory Committees. It does not seem to us, however, that enforcement of the law shall suffer if there is no Advisory Committee and that any repeal of a provision to appoint the Advisory Committee has in any manner affected the imposition of prohibition as contemplated under Sections 7 and 7A of the Act after amendment. There is nothing unconstitutional, unreasonable or arbitrary in the removal of the provision for the Advisory Committee.

21. In the result the petitions are dismissed. No costs.

WRIT APPEAL No. 393 OF 1997 :

22. In view of the judgment in the main writ petition, the writ appeal has become infructuous. It is dismissed.

23. An oral application is made on behalf of the petitioners in Writ Petition Nos. 7710, 7732, 7323, 8526, 7687, 7211 and 7937 of 1997 and the appellants in Writ Appeal No. 393 of 1977 for certificate for appeal to the Supreme Court under Article 133(1)(a) and (b) of the Constitution of India on the ground that the case involves substantial question of law of general importance. Since we have relied upon clear and authoritative judgments of the Supreme Court and thus the law as declared by the Supreme Court under Article 141 of the Constitution of India, we are not satisfied that the questions involved in these petitions need to be decided by the Supreme Court. The applications for certificate for appeal to the Supreme Court are accordingly rejected.

24. Order accordingly.