Madras High Court
Tamil Nadu Freedom Fighters ... vs The Government Of Tamil Nadu on 19 November, 1991
Equivalent citations: (1992)1MLJ582
JUDGMENT Mishra, J.
1. This appeal under Clause 15 of the Letters Patent of this Court is preferred against the judgment in W.P. No. 19417 of 1990. A learned single Judge of this Court has dismissed the writ petition holding that it is not possible to declare that Tamil Nadu Act 12 of 1990 is ultra vires the Constitution of India.
2. The petitioner/appellant is the president of the Tamil Nadu Freedom Fighters' Association, a Society registered under the Societies' Registration Act. Earlier to the instant petition, he filed W.P. No. 1852 of 1990 seeking to restrain the State of Tamil Nadu from manufacturing and thereby doing business or trade in the so-called cheap liquor. That was dismissed on the ground that the State Government was acting under the Tamil Nadu Prohibition (Amendment Act 12 of 1990 and so long as the validity of the said Act was not challenged, no writ would lie. The petitioner/appellant then filed the instant petition.
3. We have the advantage of the return of the respondent herein in the writ petition in which in short a history of various amendments to the law is available. What is gathered from the statements therein can be summarised as follows:- The Tamil Nadu Prohibition Act 1937 which inter alia operated to curb the production, possession and use of liquor or intoxicating drug for all purposes other than medicinal, scientific, industrial or such like purposes was amended and some provisions suspended with effect from 30th August, 1971 in so far as it related to matters in respect of which the State Legislature had exclusive power to make law, vide Section 2 of the Tamil Nadu Prohibition (Suspension of Operation) Act 1971, Tamil Nadu Act 33 of 1971. The State Legislature however revived the provisions of the said act except Section 4(1)(j) and Section 4-A thereof in so far as they related to toddy and its consumption, vide Section 3 of the Tamil Nadu Prohibition (Suspension of Operation) Act 1973, (Tamil Nadu Act 37 of 1973). It underwent another amendment on and from the 1st September 1974, vide Tamil Nadu Prohibition (Revival of Operation) Amendment Act 1974, Tamil Nadu Act 34 of 1974 by which the operation of the Tamil Nadu Prohibition (Suspension of Operation), Act, 1973, Tamil Nadu Act 37 of 1973 was suspended. In the year 1981, again some amendments were made introducing Section l7(b) and Section l7(c) in the Act authorising the grant of licence for manufacture, sale by wholesale and retail of various kinds of liquor followed by Tamil Nadu Act 33 of 1986 which repealed all the rules under the Tamil Nadu Prohibition Act 1937 for grant of any licence, in respect of any privilege for manufacture, supply by wholesale, selling by retail of arrack/toddy with effect from 1.1.1987 and thereafter Tamil Nadu Ordinance 2 of 1990 was promulgated and published in Tamil Nadu Government Gazette Extraordinary dated 7.3.1990 which was duly replaced by Tamil Nadu Act 12 of 1990. This brought into operation the phenomenon of the State manufacturing liquor and selling it.
4. Besides the previous amendments that still existed in the Act as part of the Act, the impugned Act introduced various amendments including a change of the expression 'Indian-made foreign spirits' in Section 3(1) of the Tamil Nadu Prohibition Act 1937 by the expression 'country liquor or Indian-made foreign spirits' and the expression 'or pot' substituted by 'sachet or pot' in Clause (1-A) thereof. It further introduced a new clause in the said Section No. 4 defining country liquor to mean spirit manufactured and compounded in India from rectified spirits and made in any colour but not to include denatured spirits and amended Clause (56-A) thereof substituting for the expression 'Indian-made foreign spirits', the expression 'country liquor, Indian-made foreign spirits', amended Clause 7A by adding the expression 'but does not include country liquor' after the expression 'other liquors consisting of or containing spirits', and also amended Clause (9) by substituting the expression 'arrack' by the expression 'country liquor'. Further amendments in the Prohibition Act by the impugned Act are as follows:
3. In Section 4 of the principal Act, in Sub-Section (1),--
1. for Clause (j), the following clause shall be substituted, namely:
(j) consumes or buys,-
(i) any liquor other than such liquor as may be specified by the State Government by notification, in this behalf: or
(ii) any intoxicating drug: or
2. in the proviso,-
a. in Clause (i), the word 'or' occurring at the end, shall be omitted:
b. in Clause (ii), the word 'or' shall be added at the end:
c. after Clause (ii), the following clause shall be added, namely:
(iii) to the transport or possession for personal consumption, of the prescribed quantity of any liquor specified by the State Government under Sub-clause (i) of Clause (j).
4. In Section l7-C of the principal Act,-
1. in Sub-Section (1),-
A. in Clause (a), for the expression 'Indian-made foreign spirits', the expression 'country liquor or Indian-made foreign spirits' shall be substituted:
b. in Clause (b), for the expression 'Indian-made foreign spirits', the expression 'country liquor or Indian-made foreign spirits' shall be substituted:
2. in Sub-Section (1-A), in Clause (a), for the expression 'Indian-made foreign spirits' occurring in two places, the expression 'country liquor or Indian-made foreign spirits' shall be substituted:
i. After Sub-sec(l-A), the following Sub-section shall be inserted, namely: (1-B) (a) Notwithstanding anything contained in this Act, the Tamil Nadu Spirit Corporation Limited, which is a Corporation controlled by the State Government, shall have the exclusive privilege of manufacturing country liquor for the whole of the State of Tamil Nadu and no other person shall be entitled to any privilege of manufacturing country liquor of the whole or any part of the State.
(b) Notwithstanding anything contained in this Act, the Tamil Nadu Spirit Corporation Limited shall be granted the licence by the Commissioner for the exercise of the exclusive privilege referred to in Clause (a) and such licence shall be subject to the rules made by the State Government in this behalf and to such conditions and restrictions as the Commissioner may, from time to" time, specify.
(c) The Tamil Nadu Spirit Corporation Limited shall, as soon as may be, after the grant of licence under Clause (b) for the exercise of the exclusive privilege referred to in Clause (a), open its blending units in the State in such places and subject to such conditions as the Commissioner may specify.
5. In Section 20 of the principal Act, in Clause (a), for the expression 'the consume and possess for personal consumption any liquor', the expression 'to consume and possess for personal consumption any liquor (other than those specified by the State Government under Sub-clause (i) of Clause (j) of Sub-sec(1) of Section (4), shall be substituted.
6. Section 22-B and 23-B of the principal Act shall be omitted and Section 8 of the Tamil Nadu General Clauses Act, 1891 shall apply to such omission as if the said sections had been repealed by a Tamil Nadu Act.
7. In Section 24-A of the principal Act, (1) in the opening portion, after the expression 'Tamil Nadu State Marketing Corporation Limited', the expression 'or the Tamil Nadu Spirit Corporation Limited, shall be inserted:
2. after Clause (a), the following clause shall be inserted, namely:
(aa) mixes or permits to be mixed with the country liquor sold or manufactured by him any colour and flavour to reassemble any Indian-made foreign spirit with the intention of causing it to be believed that such country liquor is Indian-made foreign spirit; or'.
8. In Section 32 of the principal Act, in the third proviso, for the expression 'illicit arrack', wherever it occurs, the expression 'illicit country liquor' shall be substituted.
9. (1) The Tamil Nadu Prohibition (Amendment) Ordinance, 1990 is hereby repealed....
The most of offending provisions thus according to the petitioner-appellant are the exclusive privilege of manufacturing country liquor for he whole of the State of Tamil Nadu conferred upon the State Government Spirit Corporation Limited for the purposeof manufacturing and selling liquor.
5. The return in the writ petition on behalf of the respondent however justified the amendments saying, However the long experience of implementation of prohibition showed that the evil cannot be eradicated and a core of addicts remain and continue to patronize illicit liquor. Under the provisions of the Tamil Nadu Prohibition Act 1937, as on 7.3.1990 only relatively affluent could afford to buy Indian-made Foreign Liquor while those be-longing to the poorer sections, who cannot afford to buy Indian-made Foreign Liquor have no other way except to resort to illicit liquor thereby rendering themselves vulnerage 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 purchase 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 the income thus derived from the sale of privilege of .selling country liquor for welfare schemes that can ultimately benefit the common people.
6. Following the enactment, the State Government also framed rules known as Tamil Nadu Country Liquor Retail Vending Rules 1990. The learned Judge hearing the writ petition however rejected various contentions of the petitioner, first on the ground that the amendment Act had only suspended the operation of Tamil Nadu Act 10 of 1937, second, on the ground that the court could not enforce the directive principle of State Policy as under Article 47 of the Constitution and third on the ground that it would be some other forum where any opposition to the vice of liquor could be raised but not the court, for, the court had to act strictly within the confines of law. When the writ appeal was admitted there was no change in the stand of the respondent. An affidavit however has since been filed on behalf of the successor Government which took over during the pendency of the appeal, stating:
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 of 1990 relating to country liquor.
Since the rules have been repealed, the operating arm of the State has stopped working as a result of which there is no more manufacture and/or sale of the so-called cheap liquor by and/or on behalf of the State. The solemn words in the affidavit filed before us expressed the resolve of the Government of the State to proceed with the amendment, so that the provisions introduced into Tamil Nadu Act 12 of 1990 ceased to exist. That should satisfy all concerned. Should the appeal however stand disposed of on the acts and promises of the state as above?
7. 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. Part XI of the Constitution of India deals with extent of laws made by Parliament and by the Legislatures of States, subject-matter of laws made by Parliament and by the Legislatures of States, Residuary powers of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State, etc. Article 246 in that part of the Constitution states:
246(1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with, respect to any of the mailers enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List') (2) Notwithstanding anything in Clause (3), Parliament, and, subject to Clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the 'Concurrent List').
(3) Subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List').
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List.
Seventh Schedule of the Constitution gives the 1ist called List II or State List which includes at item S - 'Intoxicating liquors, that is to say, the production, manufacture, possession transport, purchase and sale of intoxicating liquors' and at item 51 'Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India:-(a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and . narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this country;' Article 47 in Part IV of the Constitution provides as follows:
The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injuries to health." The law-making power of the State Legislature thus extends to matters concerning intoxicating liquor, that is to, say the production, manufacture, possession, transport, purchase and sale of intoxicating liquors and the directive of the Constitution to it is to endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Before we proceed to examine how the legislative power should conform to the State policy which is a constitutional directive and what role the court of law can play in it, we may indicate that the Constitutional guarantee of fundamental freedom in Article 19(1)(g) extends to all citizens to practise any profession or to carry on any occupation, trade or business and incidentally the question as to whether such a fundamental freedom will also include trade or business in liquor has been considered more than once by the courts, Article 19(1)(g) of the Constitution is however subject to Clause 6 of the said Article which states:
Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing in the interests of the general public, reasonable restrictions on the exercise of the right-conferred by the said Sub-clause, and, in particular, nothing in the said Sub-clause shall affect the operation of any existing law in so far as it relates, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or,
(ii) the carrying on by the State, or by a corporation winder controlled by the State, of any trade, business, industry or service, whether to the conclusion, complete or partial, of citizens or otherwise.
The extent of the meaning the words 'trade or business or commerce' should receive has been considered by the Supreme Court in Suite of Bombay v. B.M.D. Chamarbaughwala . It was argued before the Supreme Court that the words 'trade or business or commerce" should be read in their widest amplitude as meaning any activity which is undertaken or carried on with a view to earning profit and contended that there is nothing in those two Articles 19(1)(g) and 301 which may qualify or cut down the meaning of the critical words, the Supreme Court held:
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 are restricted by law. Thus there will be guaranteed right to carry on a business of hiring out goondas to commit assault or even murder, of housebreaking, or selling obscene pictures of trafficking in 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 circumstance 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 to 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 should 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 of public interest would be opposed to public policy and those can never be fundamental to any citizen.
Coming exactly to such a right in the trade, business or commerce in liquor, the Supreme Court in the case of Nashinwar v. State of Madhya Pradesh , has said:
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 publicmorality to prohibit trades in noxious or dangerous goods. Second there is power of the State to enforce an absolute prohibition of manufacture of sale of intoxicating liquor. Article 47 states that the State shall and endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injuries to health. Third, the history of excise Jaw shows that the State has the exclusive right or privilege of manufacture or sale of liquor.
Nashinwar v. State of Madhya Pradesh , case is one in which the court considered a regulation as to trade in foreign liquor. It has some interesting informations as to the history of excise in our country including informations about the regulations which operated in the State of Tamil Nadu, the earliest being one of 1802. The Supreme Court has said:
Traditionally tobacco, opium and intoxicating liquors have been the subject-matter of State monopoly. (See Section 1V of the Madras Regulation XXV of 1802 relating the permanent settlement of land revenue). Section IV states that the Government having reserved to itself the entire excise of its discretion in continuing or abolishing, temporarily or permanently, the articles of revenue included, according to the custom and practice of the country, under the several heads inter alia of the abkari, or tax on the sale of spirituous liquors and intoxicating drugs, of the excise on articles of consumption, of all taxes personal and professional, as well as those derived from markets, fairs, or bazaars, of lakhiraj lands (or lands exempt from the payment of public revenue,), and of all other lands paying only favourably quit rents, the permanent assessment of the land-tax shall be made exclusively of the said articles now recited.
This was followed by Section XXXlI of Regulation II of 1803 in the Madras Presidency. That Section provided that Collectors shall collect the revenue arising from sayer, spirituous liquors or from other sources, in the manner prescribed by the regulations.
Regulation I of 1813 in the Madras Presidency provided that the licensed retail dealer shall be supplied exclusively by the Collector of Madras with the quantity of liquor which they may require,-at such price as may be from time to time determined. Regulation I of l820 of the Madras Presidency inter alia provided that the Board of Revenue was authorised to empower the Collectors either to retain the exclusive privilege of manufacturing country arrack, , toddy, and other fermented liquors so well as the retail sale of foreign or country manufactured spirits, toddy and other fermented liquors in their respective districts, under their own immediate management, on account of Government; or to rent out these privileges, jointly or separately, for such periods as may be deemed eligible.
The Board of Revenue as aforesaid was also authorised to alter, amend and enlarge rules for regulating the exclusive manufacture and sale of country arrack, toddy and other fermented liquors, and the exclusive sale of foreign spirits. The other provisions were that licences for renting out the exclusive privilege of manufacturing of country arrack, toddy or other fermented liquor, and of retailing spirituous liquors would be prepared by the Board of Revenue Act XXIII of 1841 of the Madras Presidency, Act XXXII of 1845 of the Madras Presidency, Section XLIII to XLVII of Regulation VII of 1832 of the Madras Presidency all indicate that it is the right and privilege of the State Government to manufacture, sell intoxicant liquors and the State grants lease of such rights by public auction on rental in consideration of the grant of such right.
The Supreme Court of India, has besides in the case of Nashinwar v. State of Madhya Pradesh , in several other cases, noticed that trade in liquor has historically stood on a different footing from other trades. Restrictions which are not permissible in other trades or lawful and reasonable in other trades are lawful and reasonable so far as the trade in liquor is concerned. That is why even prohibition of the trade in liquor is not only permissible but is also reason able. The Supreme Court has said:
The reasons are public-morality, public interest and harmful and dangerous character of the liquor. The State possesses the right of complete control over all aspects of intoxicants, viz., manufacture, collection, sale and consumption. The State has exclusive right to manufacture and sell liquor and to sell the said right in order to raise revenue." (See Cooverje B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer and State of Orissa v. Han Narayan Jaiswal .
This, however, has to be understood in the light of what has been noticed as a part of history of our tradition that prohibition of the trade in liquor is not only permissible, but is also reasonable. The reasons are, public morality, public interest and harmful and dangerous character of liquor and that it why in the directive principles of the State policy, it is said:
The State shall regard the raising of the level of the nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes or intoxicating drinks and of drugs which are injurious to health.
8. The Prohibition Act, 1937, received the assent of the Governor on the 1st of October, 1937 and published in Part IV of the Fort. St.George, Gazette Extraordinary on the 1st of October, 1937 under the Government of India Act, 1935. It had the pronounced object of bringing about prohibition except for medicinal, scientific, industrial or such like purposes, of the production, manufacture, possession, export, import, transport, purchase, sale and consumption of intoxicating liquors and drugs in the State of Tamil Nadu, a laudable object achieved before the Constitution and the abovequoted directive principles of the State policy. This law stood the test of time and existed for many decades both before and after constitution, until things started moving in the opposite direction by such amendments to the Prohibition Act as has been mentioned in the counter affidavit of the respondent, Interference started only in 1971 and continued until Tamil Nadu Act 12 of 1990. It was Act 33 of 1971, which for the first time, suspended the operation of Tamil Nadu Act 10 of 1937 in so far as the Prohibition Act relating to matters mentioned in Entries, 8,51,64,65 and 66 of the State List in the Seventh Schedule to the Constitution. The items for which the Prohibition Act was suspended by Act 33 of 1971 were intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, duties of excise in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India and allied matters. This amendment, however, was made ineffective in so far as it related to toddy and the Prohibition Act was revived by Tamil Nadu Act 37 of 1973. The extract from the counter affidavit of the respondent that we have incorporated in our judgment would thus show that there has been a lot of tinkering with the Prohibition Act, sometime the Legislature decided to implant the prohibition, sometime lifted it with respect to toddy or any other type of liquor, but finally came by amending Clause (j) of Sub-section (1) of Section 4 and other provisions to give into the hands of the Government of the State a new authority to notify such classes of liquor which they wanted to exempt from prohibition and similar other amendments in the other provisions aforementioned by which the State Government could become manufacture and trader in liquor. The petitioner-appellant challenged this amendment as arbitrary and opposed to public interest, and beyond the legislative competence and violative of Article 14 of the Constitution of India.
9. 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 Article 19 of the Constitution. We have soon 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 takes 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 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 principle of the 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 principle 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. Everything which is in consonance with the directive principle of State policy in Part 4 of the Constitution must ordinarily be in the public interest. As a corollary something done which is opposed to the directive principle of State policy must be said to have been done against the public interest. No authority, whether legislature, Executive of Judiciary can do a thing which is opposed to public 1 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 has made a law which it cannot make?
10. We have posed the above question and we are leaving it at that because the answer is clear and pronounced. Anything opposed to public interest has to be declared ultra vires because that will be against the very basic feature of the Constitution of India. Which Constitution has established the institutions like Legislatures, executives and courts for the avowed objects to serve the welfare of the people and for achieving for its citizens justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation. What has made the present amendment more obnoxious is the fact that this State to have pre-constitution law on prohibition, a law which stood the test of time and also stood as one of the achievements in accordance with the directive principles of the State policy. Why the amendment was made is stated in the counter affidavit: "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 7.3.1990 only relatively affluent could afford to buy Indian-made Foreign liquor while those belonging to the poorer sections, who cannot afford to buy Indian-made Foreign Liquor have no other way except to resort to illicit liquor thereby rendering themselves vulnerable to tragic effects leading to imminent death as a result of consumption of such illicit liquor .... The Government have introduced country liquor.
(1) To enable those belonging to poorer sections who are desirous of consuming liquor, and could not afford to purchase costly Indian-made Foreign Liquor to get liquor at lesser cost;
(2) To prevent them from becoming victims of anti-social elements indulging in the sale of illicit liquor; and (3) To avoid the loss of revenue which was hither-to flowing into the hands of anti-social elements and to divert the income thus derived from the sale of privilege of selling country liquor for welfare schemes that can ultimately benefit the common people.
How conveniently, the very purpose of the establishment, of a welfare Government has been ignored when it is said the long experience of implementation of prohibition showed that this vice cannot be eradicated? Who has failed? People or the Government? Why prohibition was not implemented to avoid such additions. Will the State remain passive and not act to prevent illicit liquor trade and consumption? Will, for it failed to perform its duty patronise the evil? The addicts who existed in 1937 or before when the Act came into force, could not be found in the 90's. It must be a new generation of addicts. If such patronage is extended by the State, it shall create yet another generation of addicts. Instead of using its arms to prevent illegal manufacture, sale and consumption, it seems the State decided to legalise the vice.' It is, indeed, a case where the State has failed in implementing the law..
11. We are, however, spared of the exercise of declaring the amendment invalid because the rules framed for implementation of the Act have already been repealed and the amendment Act has thus become inoperative. The present Government has shown its dedication to the philosophy of total prohibition by withdrawing the Tamil Nadu Country Liquor (Retail Vending) Rules, 1990 by G.O.Ms.No.174; Prohibition and Excise (V) Department, dated 27.6.1991. Before us, the Government has given its solemn word that steps will be taken by it to amend the principle Act so as to do away with the amendment introduced by Tamil Nadu Act 12 of 1990 relating to country liquor. Thus, when they would be so, as promised, they would remove the offending amendment. We, however, part with this case with a note that it would be in the interest of all concerned that the amendment Act 12 of 1990 is kept under suspension until suitable amendments are made in the Prohibition Act as undertaken by the State Government.
12. In the result, we accept the undertaking of the State Government that it would take immediate steps to amend the Principal Act suitably so as to do away with the amendment introduced by Tamil Nadu Act 12 of 1990 relating to country liquor and order that until such amendment, Tamil Nadu Act 12 of 1990 shall remain suspended.
13. The appeal is allowed to the extent indicated above. Consequently, the writ petition is also allowed has indicated above. There shall, however, be no order as to costs.