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85.04. In my view, the first thing that is to be considered is, what is the nature of powers being delegated by the amended Section 19 (4) of the Act. Whether it is delegated legislation or it is conditional legislation? The legal issue and the legal distinction are now well recognized and the leading case, which has consistently been followed, is the Constitution Bench judgment of the Supreme Court in the case of Hamdard Dawakhana and another Vs. Union of India & Ors., (AIR 1960 Supreme Court 554). In Hamdard Dawakhana case (supra), the provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and the actions taken thereunder were under challenge in a petition under Article 32 of the Constitution. One of the provisions, under challenge, was Section 3 (d) of the Drugs and Magic Remedies (Objectionable Patna High Court CWJC No.6675 of 2016 dt.30-09-2016 Advertisements) Act, 1954, on the ground that it was a piece of delegated legislation and in absence of legislative policy appearing from the Act itself, it conferred unbridled and undefined powers on the State and, therefore, was ultra vires. The contention was upheld and the provision was declared ultra vires. The provision is apparent from the judgment, which is quoted hereunder:

(d) the diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act."

85.05. In paragraph 29 of the decision in Hamdard Dawakhana's case (supra), this is what their Lordships observed drawing distinction between delegated legislation and conditional legislation, the relevant part whereof is quoted hereunder with emphasis supplied.

(Emphasis is added) 85.06. In Hamdard Dawakhana case (supra), while dealing with delegated legislation and the discretion conferred therein upon the delegatee, their Lordships further held, in paragraph 29, as under:

"But the discretion should not be so wide that it is impossible to discern its limits. There must instead be definite boundaries within which the powers of the administrative authority are exercisable. Delegation should not be so indefinite as to amount to an abdication of the legislative function. Schwartz - American Administrative Law, Page 21."

85.14. With regard to the above, I may point out that compared to the provisions of Section 3 (d) of the Drugs Patna High Court CWJC No.6675 of 2016 dt.30-09-2016 and Magic Remedies (Objectionable Advertisements) Act, 1954, which was under consideration in the case of Hamdard Dawakhana (supra), as quoted above, and the provisions of Section 19 (4) of the present Act, which also stands quoted above, there is no material difference. In respect of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, being dealt with by the Supreme Court, in the case of Hamdard Dawakhana (supra), the preamble did give a guideline, but the section was found to be absolutely vague. In the present case, the preamble and the other provisions, if read together, give a different guideline and those are all in relation to permitting, facilitating and regulating manufacture, storage and sale of intoxicants and for collection of excise revenue and except for Section 19 (4) of the Act, there is no provision for imposing prohibition . The Supreme Court, in Hamdard Dawakhana case (supra), while declaring the provision of Section 3 (d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, held Section 8, too, as void and unconstitutional. The relevant observations, appearing in para 36 of the decision of Hamdard Dawakhana case (supra), reads as follows: