Hon'ble Vishnu Chandra Gupta,J.
(Delivered by Hon'ble Devi Prasad Singh, J)
1. The petitioner, who has been a licensee of country liquor shop from the year 2003 to 2009, has preferred the instant writ petition under Article 226 of the Constitution of India, challenging the order passed by the Excise Commissioner, U.P. whereby, security has been forfeited on the ground that the petitioner could not lift the country liquor in the month of March, 2009 to the extent of minimum guaranteed quantity (in short MGQ), provided by the authorities. The petitioner has also impugned the Rule 2 (c) and Rule 2 (o) of the Uttar Pradesh Excise (Settlement of Licences of Country Liquor) Rules, 2002 (in short as 2002 Rules), with a prayer to declare it ultra-vires.
2. The petitioner was excise licensee, granted license to sell country liquor in the year 2003-2004. The license was continued and extended upto the year 2008-2009. In lieu of license granted by the State, the petitioner furnished security money amounting to Rs.5,22081/-. However, in spite of lapse of license tenure when the security money was not refunded, he moved an application dated 20.5.2009 followed by reminders dated 23.3.2010 and 15.4.2010 under the Right to Information Act that why the security money deposited by him with regard to country liquor shop has not been refunded.
3. In response to the application moved under Right to Information Act, 2005, the Public Relation Officer/District Excise Officer, Varanasi, by his letter dated 2.6.2010 (Annexure No.2 to the writ petition), informed that in view of the Circular dated 9.3.2009 of the Excise Commissioner, U.P., by the impugned letter dated 21.2.2010, issued by the Finance Controller, the security has been forfeited since the petitioner has not lifted the MGQ of the month of March,2009.
After receipt of letter dated 2.6.2010 (supra), being aggrieved with it, the petitioner preferred Writ Petition No.6359 (M/B) of 2010, which was decided by the Division Bench of this Court by the judgment and order dated 9.3.2009 with liberty to the petitioner to prefer the representation to the Excise Commissioner U.P., who in turn, was directed to decide it in accordance with law by passing a reason order.
In compliance thereof, the petitioner submitted fresh representation to the respondent No.2 on 23.7.2010 (Annexure No.3 to the writ petition), which has been decided by the impugned order dated 27.12.2010 (Annexure No.1 to the writ petition), indicating therein that since the petitioner has not lifted MGQ in the month of March, 2009, the security of Rs.5,22,081/- has been forfeited. It has been alleged that the District Excise Officer Varanasi has informed by letter dated 14.8.2010 that in the month of March, 2009 MGQ prescribed for the petitioner licensee, was 4187.50 bulk litres but the petitioner has lifted only 887.61 bulk litres. Hence in terms of MGQ, the petitioner has paid less license fee to the extent of Rs.2,56,088.56 P.
4. While preferring the writ petition, it has been stated by the petitioner's counsel that annual quota provided to the petitioner was 50,250 bulk litres and monthly quota was 4187.5 bulk litres. In support of the claim the petitioner filed pass book of the year 2008-2009 as Annexure No.6 to the writ petition. It has been submitted by the petitioner that I n the month of March, 2009, the petitioner has lifted lesser liquor i.e., 887.61 bulk litres but in case entire liquor lifted by the petitioner in the financial year is taken into account, he had lifted the entire MGQ rather, more liquor than the quota allotted to him i.e., 50257.87 bulk litres. The pleading contained in para-10 of the writ petition is reproduced as under:
"10. That for the excise year 2008-09 the total quota of country liquor was fixed 50,250 bulk liters and monthly quota was also indicated 4,187.5 bulk liters. The petitioner has lifted the excess total quota of the country liquor i.e., 50,257.87 bulk liters from the month of April, 2008 to March, 2009. it is further submitted that month wise quota which was lifted by the petitioner for the year 2008-09 is given in a chart, a copy of which is being annexed as Annexure No.5 to this writ petition. A pass book for the excise year 2008-09 was issued by the opposite party number 4 in which the annual quota is also mentioned as 50,250 bulk liters and monthly quota is provided 4187.5 bulk liters. A copy of the relevant pages of the Pass Book No.04240 is being annexed herewith as Annexure No.6 to this writ petition."
5. In response to the aforesaid pleading on record, while filing counter affidavit, respondents have not disputed the fact that the petitioner has lifted the entire annual quota (MGQ). However, the State reiterated that I n the month of March, 2009, the petitioner has not lifted the MGQ. For convenience, para 17 of the counter affidavit filed by the State is reproduced as under:
"17. That the contents of para no 10 is misleading, misconceived and erroneous. It is submitted that the annexure no 5 and 6 unfold that petitioner had lifted barely 887.61 Bulk Litre of MGQ in the month March, 2009 which is less than the required lifting of 8-% of the MGQ defined for the month March, 2009. Thus there is a shortfall I n lifting of 2462.39 BL of M.G.Q. which entailed the loss of licence fee Rs.256088.56. Only reparation of the damnification of the above said loss the licence fee was adjusted against the deposit of security amount."
6. In view of the above, there appears to be no foom of doubt that entire MGQ for the year 2008-2009 was 50,250 bulk litres and the petitioner has lifted 50257.87 bulk litres MGQ but it is admitted fact on record that in the month of March, 2009, there was deficiency in lifting the stock. The deficiency had arisen because of division of annual quota in two monthly. But the fact remains that the petitioner has lifted the entire liquor provided under MGQ for the excise year in question.
7. However, the District Excise Commissioner has relied upon the Circular of the Excise Commissioner, U.P., dated 9.3.2009 (Annexure No.10 to the writ petition), by which the District Excise Officer and other subordinate authorities have been directed to ensure that MGQ is lifted by every licensee and in case they fail to do so, the security may be forfeited. License fee to the extent of 20% may be adjusted with regard to shortfall of previous month. Meaning thereby, the District authorities shall ensure that monthly MGQ is lifted by every licensee except the adjustment to the extent of 20% shortfall. The impugned circular dated 9.3.2009, does not contain any provision with regard to lifting annual quota earmarked for licensee at the time of grant of license. It also does not notice of the fact that monthly quota is division of quota in 12 parts.
STATUTORY PROVISIONS
8. Rule 2 of 2002 Rules contains the definition clause which defines annual minimum guaranteed quantity, basic licence fee, additional basic licence fee, credit balance of licence fee, licence fee, monthly instalment of licence fee and consideration fee. For convenience, Rule 2 (b) (c), (d), (f), (m) (n) and (o) are reproduced as under:
"2(b) "Additional basic licence fee" means additional part of consideration which is payable by the licencee for lifting of liquor in excess of 120% of the monthly minimum guaranteed quantity on such rate as notified by the Excise Commissioner with prior sanction of the Government.
2(c) "annual minimum guaranteed quantify" means the quantity of "strong" country liquor as fixed by the licensing authority in accordance with the general or specific instructions issued by the Excise Commissioner and guaranteed by the licensee to be lifted by him for his retail shop during an excise year for the purpose of retail sale. However if any licence is granted after the commencement of the excise year then its annual minimum guaranteed quantity shall be reduced proportionately according to the number of days remaining in the excise year.
2(d) "Basic Licence fee" means that part of consideration for the grant of licence for the exclusive privilege of retail sale of country liquor under Section-24 of the Act, payable by the person selected as licensee before the licence is granted to him for the whole excise year or part thereof on such rates as notified by the Excise Commissioner in consultation with the State Government from time to time, Provided that if such shop is settled after 30th September the basic licence fee shall be half of the amount so fixed as basic licence fee for the year.
2(f) "credit balance of licence fee" is the amount of money equivalent to the duty involved in the excess quantity of country liquor, over and above the monthly minimum guaranteed quantity, lifted by the licensee in a month. This credit balance of licence fee may be carried forward in the ongoing months and may be adjusted against the future monthly instalments of licence fee in accordance with the provisions of these rules.
2(m) "licence fee" means the remaining part of consideration for grant of licence for exclusive privilege of retail sale of country liquor under Section 24 of the Act, payable by the licensee, in addition to the basic licence fee. This sum shall be equal to the excise duty leviable on the annual minimum guaranteed quantity fixed for the shop.
2(n) "monthly installment of licence fee" shall be 1/12th part of the licence fee in addition to basic licence fee and shall be payable every month. However the excise duty involved in the quantity of country liquor lifted during the month by the licensee, may be adjusted against the monthly instalment of the licence fee subject to the provisions of these rules.
2(o) "monthly minimum guaranteed quantity" shall be 1/12th part of annual minimum guaranteed quantity."
9. A perusal of the aforementioned provisions of 2002 Rules, reveals that for every licensee annual MGQ is to be fixed to which the licensee is obliged to lift in the excise year. Apart from the basic license fee, a license fee is to be paid equivalent to the excise duty lesser to the annual minimum guaranteed fee by the monthly instalment of licence fee. The monthly instalment of license fee is 1/12 part of licence fee in addition to basic licence fee. In the event of licencee lifts excess quantity of country liquor over and above the monthly MGQ, he is entitled for credit balance of licence fee.
Reliance has been placed by both sides which relates to payment of monthly instalment of licence fee and consequence of failure. For convenience, Rule 14 and 15 of 2002 Rules are reproduced as under:-
"14. Payment of monthly instalment of licence fee and consequences of failure.-(a) The licensee shall be liable to pay the monthly instalment of licence fee by the last day of the month. However the duty involved in the quantity of country liquor lifted by him during the month and credit balance of licence fee from previous month, if any, shall be adjusted against the monthly instalment of licence fee according to the provisions of these rules.
b) The licensee shall be required to submit his account and licence fee passbook, giving details of the country liquor by him and the licence fee deposited, to the District Excise officer by 5.00 p.m., of the 1st day of the next month for verification and calculation of licence fee due from him.
(c) In case there is any short fall in the licence fee, after due adjustment of duty involved in the country liquor lifted by the licensee and credit balance of licence fee from previous month, according to provisions of these rules and district Excise Officer shall adjust the outstanding balance amount of licensee fee from the security deposit of the licensee and also issue a notice to the licensee by the 3rd day of the next month to replenish the deficit in security amount either by lifting such quantity of country liquor involving duty equivalent to the adjusted amount or by depositing cash or a combination of both. In case the licensee fails to replenish the deficit in security amount by the 10th day of the next moth his licence shall stand cancelled.
15. Lifting of country liquor in excess of monthly minimum guaranteed quantity and earning of credit balance of licence fee.-(a) the licensee may lift excess quantity of country liquor in a month over and above the monthly minimum guaranteed quantity without any extra payment.
(b) In case he wants to lift extra quantity of country liquor over and above 120% of the monthly minimum guaranteed quantity he shall pay additional basic licence fee on that quantity after obtaining permission of the District Excise Officer.
(c) In case the licensee lifts excess quantity of country liquor in a month over and above the monthly minimum guaranteed quantity, he shall be entitled to earn a credit balance of licence fee:
Provided that such adjustment shall not exceed 20% of the monthly licence fee of the month:
Provided further that the credit balance of licence fee shall be limited to the extent of licence fee only and he shall not be entitled for refund of licence fee or discount in excise duty."
Apart from 2002 Rules, there is one another Rule namely, Uttar Pradesh Excise Licences (Tender-cum-Auction) Rules, 1991 (in short 1991 Rules). Under the said Rules, provision has been made with regard to settlement of grant for retail sale licence. Rule 3 (g) and (n) govern ''basic licence fee' and ''minimum guaranteed quantity', which are reproduced as under:-
"3 (g) ''basic licence fee' means that part of bid-money which is payabvle by the auction purchaser calculated on the entire minimum guaranteed quantity at the rate notified by the Excise Commissioner from time to time.
(n) ''minimum guaranteed quantity' means the minimum quantity of Bhang, country liquor or foreign liquor as the case may be, fixed by the Licensing Authority, if any guaranteed by the auction purchaser to be lifted by him from the licenced excise bonded warehouse or otherwise as specified by the Excise Commissioner, for the purpose of being sold by retail in his shop or group of shops during the excise year or part of the excise year for which he has obtained the licence, so however, that the total minimum guaranteed quantity for the district shall not be less than the quantity fixed by the Excise commissioner for the whole district."
Rule 20 deals with the licence security. Rule 28, 29, 30 and 32 deal with the commencement of period of licence declaration of minimum guaranteed quantity and monthwise division and lifting of minimum guaranteed quantity and lifting of intoxicants over and above the minimum guaranteed quantity. For convenience Rule 20, 28, 29, 30 and 32 are reproduced as under:-
"20. Licence Security - (1) In case the Licensing Authority has accepted the highest bid which shall include basic licence fees in the case of Bhang and country liquor, a sum equal to one-forth of the total bid offered by the highest bidder shall be paid in advance as security for the due performance of the contract in the following manner:-
(i) A sum equal to one-half of the aforesaid security shall be paid immediately on the fall of harmmer in cash or by Bank Draft. In case is bidder has already furnished some cash or Bank Draft under the proviso to clause (b) of Rule 10, such amount shall be adjusted towards the security.
(ii)The balance one-half of the aforesaid security shall be deposited by the auction purchaser within 10 days of the auction out of which one-third shall be deposited in cash or Bank Draft and rest two-third either in cash or in the form of fixed deposit receipts obtained from a scheduled Bank for the period of the licence duly pledged to the Licensing Authority or in the form of Bank guarantee valid till the final settlement of all the claims and dues to the Government in respect of the auctioned shop or group of shops. The Licensing Authority may, under very special circumstances to be recorded in writing and only in the case of auction for a whole excise year, grant further time but not beyond the 1st day of the excise year immediately preceding, for compliance of the conditions specified in this clause. In case a bidder has already deposited bank guarantee under proviso to clause (b) of Rule 10 the same may be adjusted towards the bank guarantee required under the clause.
(2)If the Licensing Authority decides to recommend the second highest bid for sanction to the Excise Commissioner second highest bidder will also be required to deposit the security amount as required in sub-rule (1) before such recommendation is made.
28.Commencement of period of licence- The licence in favour of an auction purchaser shall be effective from 1st April of the excise year unless the licensing authority otherwise directs. The auction purchaser shall be responsible to pay the bid-money from the first day of the licenced period although he may not have actually received the licence.
29. Declaration of minimum guaranteed quantity- The Excise Commissioner shall declare for every excise year will in advance, in the auction proclamation the licences to be settled and the minimum guaranteed quantity of the intoxicants to be lifted by the auction purchaser under those licences and the basic licence fee therefor.
30. Month-wise division and lifting of minimum guaranteed quantity- The minimum guaranteed quantity of the intoxicant for the whole excise year shall be divided in twelve equal parts and the auction purchaser shall have to lift one part every month. The licences can lift the minimum guaranteed quantity for a month till the last day of that month. The quantity left un-lifted on the close of the last working day of the month shall be forfeited unless specially permitted to be lifted in the subsequent months by the District Excise Officer.
32. Lifting of intoxicants over and above the minimum guaranteed quantity- If the licensee desires to lift and self intoxicant over and above the minimum guarantee quantity, if any, he shall be required to pay such further sum at the rate fixed by the Excise Commissioner, as further consideration for the grant of privilege of sale of such intoxicant."
A combined and over all reading of 1991 rules reveals that MGQ shall be for whole of the excise year and shall be divided in 12 equal parts and auction purchaser shall have to lift one part every month. It can be lifted till the last calender month. However, there appears to be no provision with regard to penal action in case in any month the lifting of liquor is less than monthly quota to be compensated by other months. The mandate of Rule 30 of 1991 Rules is that licensee must lift the MGQ earmarked for whole of the excise year. Since tax is assessed on the basis of whole sale and consumption of particular year, the deficiency in one month compensation by other month does not seem to create a ground to forfeit security or penal action.
10. From the factual matrix on record, there appears to be no room of doubt that security has been forfeited only on the ground that the petitioner could not lift the required quantity of MGQ in one particular month i.e., March, 2009 which seems to be contrary to the statutory provisions. From the plain reading of Rule 2(c) read with 2(d) and 2 (m), it is abundantly clear that aprt from the basic licence fee, the additional licence fee which the licensee shall liable to pay, shall be based on annual minimum guaranteed quantity fixed for the shop. Under Rules, there is nothing like monthly MGQ. Hence impugned action seems to suffer from vice of arbitrariness.
11. It is the submission of the State counsel that in case licencee lifts excess quantify of liquor in a month over and above the MGQ, he shall be entitled to earn a credit balance of licence fee which may not extend 20% of the month. The definition of "credit balance of licence fee" under Rule 2(f) provides that the credit balance of licence fee may be carried forward in the ongoing months when the licencess lifts excess quota of country liquor over and above the monthly MGQ. It is continuous process which may continue from month to month and liable for adjustment accordingly.
12. A Division Bench of this Court while deciding identical controversy in a WRIT TAX No. - 507 of 2011: Jafar Ali and Others Versus, State Of U.P. And Others at Allahabad, by the judgment and order dated 30.5.2012, recorded a finding as under:
"In the facts of the present case, no liability could have been imposed of making payment of balance licence fee from the petitioners on alleged ground of less lifting in one particular month of monthly "MGQ" when all the petitioners have fulfilled the annual "MGQ". Thus, the action of the respondents demanding the balance licence fee is wholly unjustified.
In view of the import of the 2002 Rules, as noticed above since the licensee is entitled to the benefit of credit balance of licence fee of earlier months short fall in one particular month is not determinative of the liability since the short-fall in one particular month is not determinative and while fastening any liability of excise duty in respect to short-fall in monthly "MGQ", the credit balance of licence fee of earlier months is also to be taken into consideration and since the respondents have not taken into consideration the benefit of credit balance licence fee of earlier months and has confined the consideration of only one month the demand of duty raised by the respondents is illegal and beyond the 2002 Rules.
13. While considering the statutory provisions, this Court held that the month of March being the last month of Excise Year, the short lifting of the MGQ in the month of March, cannot be claimed as a fault when a licencee has lifted the annual MGQ of country liquor in the respective financial/excise year including the month of March. With profound respect, there appears to be no reason to disagree with the finding recorded by the Division Bench of this Court in the case of Jafar Ali (supra).
14. Much emphasis has been given by the learned standing counsel while challenging the impugned order as well as the circular dated 9.3.2009 Annexure No.10 to the writ petition.
15. Attention has been invited by the petitioner's counsel to Article 47 of the Constitution under the Directive Principles of State Policy, which is reproduced as under:
"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-
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 injurious to health.
16. A plain reading of Article 47 shows that State shall endeavour to bring about the prohibition of the consumption except for medicinal purposes.
17. Hon'ble Supreme Court in the case reported in AIR 1980 1622: Municipal Council, Ratlam Vs. Shri Vardhichand and others, held that State shall endeavour to improve the public health as it is primary duty. Court should enforce this duty against the defaulting local authority prescribed by law regardless to the financial resources of such authority. In another case reported in (1996) 6 SCC 101: Tapan Kumar Sadhukhan vs Food Corporation Of India & Ors., their lordships held that FCI being the agency of State, must conform to the letter and spirit of Article 47 to improve the public health.
18. The object of directive principles (Part-IV of the Constitution), is to embody the welfare of State as held by Hon'ble Supreme Court in the case reported in (1973) 4 SCC 225: Kesavananda Bharati Vs. State of Kerala.[para 134, 139, 174]. However, the directive principles under Part IV) of the Constitution does not confer any enforceable right and their alleged breach does not invalidate any law. It also does not entitle a citizen to complain of its violation by the State so as to seek mandatory relief against the State, vice AIR 1959 SC 956 Kerala Education Bill In Re AIR 1959 SC 648: Deep Chand Vs. State of U.P. ; State of Madras v. Champakam Dorairajan, and AIR 1979 SC 65 U.P.S.E.B. Vs. Hari.
19. However, at later stage, Hon'ble Supreme Court further given teeth to the directive principles holding that directive principles and fundamental rights are to be construed harmoniously, vide 1991 1 SCC 611, MUNICIPAL CORPORATION OF GREATER BOMBAY. Vs. NEW STANDARD ENGINEERING CO. LTD.; Literature Daily Wage Employees Association v. State of Kamataka. (1990) 2 SCC 396.
20. Further, giving strength to directive principles in catena of judgments, their lordships of Hon'ble Supreme Court held that it has got positive aspect and it supplements fundamental rights provided under Part III of Constitution in achieving the welfare of State. Parliament can amend fundamental rights for implementing directive principles to the extent it does not touch the basic feature. Legislation enacted in tune with the directive principles should be held as far as possible. The legislative entries may be given wider interpretation for effecting the directive principles and may be construed in the light of directive principles, vide AIR 1976 SC 2042: Chandra Bhawan Vs. State of Mysore, AIR 1976 SC 496 State of Kerala Vs. N.M. Thomas; AIR 1985 SC 389:Lingappa Pochanna Appelwar And ... vs State Of Maharashtra And Anr; AIR 1984 SC 1151, Manchegowda Etc vs State Of Karnataka; (1979 2 SCC 34: Chief Justice Vs. Dikshitulu; AIR 1979 SC 233: Jalan Trading Co. (P) Ltd. And Ors. vs D.M. Aney And Anr. ; AIR 1987 SC 232: Laxmi Kant Vs. Union of India and AIR 1981 SC 298: A.B.S.K. Sangh (Rly) Vs. Union of India.
21. Article 21 of the Constitution, has been further expanded by the Hon'ble Supreme Court covering every facets of life, necessary for quality of life.
22. Now, right to life includes right of livelihood, quality and dignity of life, vide (2003)6 SCC 1 Kapila Hingorani versus State of Bihar,AIR 1981 SC 746: Francis Coralie Mullin v. Administrator Union Territory of DelhI.
23. Keeping aforesaid proposition of law, and particularly, Article 47 of the constitution, the preamble of U.P. Excise Act was amended by sub-section (2) of U.P. Act No.3 of 1941 by the Governor in exercise of power under Section 93 of Government of India Act, 1935 as continued by U.P. Act No.13 of 1948 and still continues in the post constitutional period in view of the Article 372. The second para of the preamble is reproduced as under:
"And whereas in order to promote, enforce and carry into effect the policy of prohibition, it is necessary to authorise the State Government to prohibit the import, export, transport, manufacture, sale and possession of liquor and intoxicating drugs in the United Provinces or in any specified area or areas thereof."
24. Section 40 of the Act empowers the State Government to frame Rules whereas under Section 41, the Excise Commissioner has also been empowered to frame rules subject to approval by State Government regulating the manufacture, supply storage or sale of intoxicants. Section 37A was added by U.P. Act No.30 of 1978 and came into force from 1.5.1972. It deals with the State power to regulate or impose prohibitions on import export,transport, possession or consumption of intoxicants. Section 37A has been added keeping in view the mandate of Article 47 of the Constitution of India. The Government has been conferred power to enforce prohibition in specified area with regard to possession, consumption, import, export or transport of intoxicants.
AIMS AND OBJECT
25. Aims and object of enactment may be guiding factor in case there appears to be ambiguity with regard to applicability of the fact for the particular purpose.
26. Privy Council in Emperor versus Benoari Lal 1913 PC 36 held that the history of legislation and the facts which give rise to the enactment may usefully be employed to interpret the meaning of the statute, though they do not afford a conclusive argument.
27. In a case reported in AIR 1955 SC 604 M.K. Ranganathan versus Govt. of Madras, Hon'ble Supreme Court observed that though the Statement of Objects and Reasons is not admissible as an aid to the construction of a statute but it can be referred to for the limited purpose of ascertaining the conditions prevaling at the time which actuated the sponsor of the bill to introduce the same and the extent and urgency of the evil which he sought to remedy.
28. In AIR 1958 SC 578 Express Newspapers Pvt. Limited versus Union of India, their Lordships of Hon'ble Supreme Court held that when the terms of statute are ambiguous or vague, the statement of Objects and reasons may be resorted for the purpose of arriving at true intention of the legislature.
29. In AIR 1963 SC 1356 S.C. Prashar versus Vasantasen, Hon'ble Supreme Court held that the Statement of Objects and Reasons may be referred for the purpose of ascertaining the circumstances which led to the legislation in order to find out what was the mischief which the legislation sought to remove is aimed at.
30. In State of West Bengal versus Union of India AIR 1963 SC 1241, Hon'ble Supreme Court observed that the statement of Objects and Reasons may be used for limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation.
31. Same principle has been reiterated in AIR 1973 SC 913 A.C. Sharma versus Delhi Administration.
32. In AIR 1987 SC 138 Kameswar Singh versus Addl. Dist. Judge, Lucknow, Hon'ble Supreme Court has widened the scope of object and reasons and observed that the court may strive to so interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The courts must therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of the case.
33. In (1984)2 SCC 183 R.S. Nayak versus A.R. Antulay, while considering the purpose of Prevention of Corruption Act, 1947 and mode of construing a provision of the Act, their Lordships observed that the purpose of Act is to make more effective provisions for prevention of bribery and corruption. To quote :
"18. The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the court as would advance the object and purpose underlying the Act and at any rate not defeat it............. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the statute would be self-defeating. The court is entitled to ascertain the intention of the legislature to remove the ambiguity by construing the provision of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted the statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the court to adopt that construction which would advance the object underlying the Act, namely, to make effective provision for the prevention of bribery and corruption and at any rate not defeat it."
34. In a case reported in AIR 1986 SC 1499 M/s. Girdhari Lal & Sons versus Balbir Nath Mathur and others, Hon'ble Supreme Court observed that while interpreting the statutory provisions, the Court has to ascertain the intention of the legislature, actual or imputed and the Court must strive to interpret the statute as to promote and advance the object and purpose of the enactment. To reproduce relevant portion, to quote :
"9. So we see that the primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing, the written word if necessary."
35. Hon'ble Supreme Court in a case reported in AIR 1957 SC 29 State versus Govindan Thampi Bhaskaran Thampi observed that resort to the history of the legislation to construe the meaning of any provisions therein is more often taken exception to than not. At the same time it is common knowledge that when the words of a statute are ambiguous, attempts are not infrequently made to ascertain their true meaning by reference to the state of the law at the time the statute was passed, the mischief sought to be avoided and the stages through which the concerned legislation passed.
36. Allahabad High Court in a case Kunwar Murli Manohar versus State of U.P. AIR 1957 All 159, observed that in the interpretation of a statute, the history of the legislation and the surrounding circumstances which existed at the time and demanded a change of law or the enactment of a new one, can all be taken into consideration.
37. A Full Bench of Patna High Court in a case reported in 1993 CrLJ 3246 on a reference made by Ravinandan Sahai, Sessions Judge, Patna held that while interpreting the Prevention of Corruption Act, 1988, the legislative history of object and reasons though do not contain meaning of any expression used in the statute but can be used for interpreting the meaning of the statute.
38. In view of the above, keeping in view the aims and object of the U.P. Excise Act read with Section 37A and Article 47 of the constitution, the State cannot compel the licencess to sell more liquor than for what the licence is granted. It is well settled proposition of law that what cannot be done directly, it cannot be done indirectly vide, (2003) 2 Supreme Court Cases, 593- Dayal Singh and Others Vs Union of India and Others. Accordingly, under the garb of MGQ, it shall not be justifiable for the State Government to enhance the sale of liquor in the State of U.P. by increasing MGQ every year.
39. It is unfortunate that in spite of Article 47 and in terms of constitutional mandate and wider interpretation of Article 21 given by Hon'ble Supreme Court, and statutory mandate under U.P. Excise Act, the aforesaid principle has been given go bye only for the sake of revenue at the cost of public health and miseries and the Government every year tries to enhance consumption against the constitutional and statutory mandate.
40. U.P. Excise Manual, the compilation of different Government orders and circulars cast duty upon the excise authorities to work for prohibition. In the year 2010-2011 keeping in view the mandate of Article 47 of Constitution, read with statutory provisions and the Excise manual and different circulars and orders passed from time to time, the Government has allocated 23 lakhs to work for prohibition out of which Rs.22,99,781/- has been spent in different ways to enforce the prohibition and discourage the consumption of liquor. An amount of Rs.80,000/- was allocated in the year 2010-2011 for the advertisements to awake the people from the injuries which may be caused because of consumption of liquor. The utilisation of fund allocated through budget was communicated by the State Prohibition Officer, vide his the letter dated 28.4.2011 to the State Government, which was placed on record by the learned standing counsel during the course of argument. The entire letter dated 28.4.2011 is reproduced as under:
"मा० उच्च न्यायालय प्रकरण अ०शा०प०सं०--1273 पी०पी०/26-126/11 सरोज कुमारी राज्य मद्यनिषेध अधिकारी उ०प्र० मद्यनिषेध विभाग 808 जवाहरभवन अशोक मार्ग लखनऊ दिनांक 28 अप्रैल 2011 आदरणीय महोदय, कृपया रिट याचिका संख्या --12467 एम० बी०/ 2010 सुधांशु गुप्ता बनाम उ०प्र० राज्य व अन्य में मा० उच्च न्यायालय लखनऊ खण्डपीठ लखनऊ द्वारा दिनांक 5अप्रैल 2011 को अंतरिम आदेश पारित किये जाने विषयक अपने अ० शा०प० संख्या--902 ई-2/तेरह--11--30 (रिट)/2011 दिनांक 27 अप्रैल 2011 का संदर्भ ग्रहण करें।
उक्त संबंध में निवेदन कर अवगत कराना है कि भारतीय संविधान के अनुच्छेद-47 के नीति निर्देशक सिद्घान्त के तहत केन्द्र एवं प्रदेश सरकार की मद्यनिषेध नीति के तहत मद्य एवं मादक पदार्थों व औषधियों के दुरुपयोग को रोकने के लिए उ०प्र० सरकार द्वारा सर्वसाधारण को नश् से विरत रखने हेतु मद्यनिषेध से संबंधित विभिन्न प्रचार प्रसार विधाओं के माध्यम से व्यसनियों को नशे के कुसेवन के प्रति जागरूक करने हेतु विभिन्न दृश्य एवं श्रव्य माध्यमों यथा--चलचित्र प्रदर्शन, स्कूल कालेजों व ग्रामीण अंचलों में मद्यनिषेध के प्रति संचेतना जागृत करने हेतु विभिन्न खेलकूद, वाद विवाद प्रतियोगिताओं प्रभातफेरी, दौड़, रैली, पदयात्राओं, जनसम्पर्क व सूचना विभाग के माध्यम से पंजीकृत दलों के माध्यम से विभिन्न सांस्कृतिक कार्यक्रमों के आयोजन, विभिन्न अवसरों पर मद्यनिषेध प्रदर्शिनयों का आयोजन एवं बैनर्स, पोस्टर्स, स्टीकर्स, होर्डिंग्स, वालपेंटिंग एवं प्रचार साहित्य के वितरण आदि माध्यमों से नशे से दूर रहने हेतु जनजागरण का कार्य किया जाता है। जनपद स्तर पर जिलाधिकारियों की अध्यक्षता में गठित जिला मद्यनिषेध एवं समाजोत्थान समितियों द्वारा मद्यनिषेध के शिक्षात्मक कार्यक्रमों को शहरी व ग्रामीण अंचलों में प्रचारित-प्रसारित किया जा रहा है। विभागीय कार्यक्रम प्रमुखता से मलिन बस्तियों अम्बेडकर ग्रामों में भी आयोजित किये गये हैं। वित्तीय वर्ष 2010-11 में मद्यनिषेध विभाग को आयोजनेत्तर की मद में मद्यनिषेध के शिक्षात्मक प्रचार प्रसार कार्य हेतु 42--अन्य व्यय की मद में रु०2300000.00 (रु० तेइस लाख मात्र) की धनराशि शासन द्वारा स्वीकृत की गयी थी जिसके सापेक्ष मद्यनिषेध विभाग उ०प्र० द्वारा प्रचार प्रसार हेतु रु०2299781.00 (रु०बाइस लाख निन्यान्नबे हजार सात सौ इक्यासी मात्र) की धनराशि व्यय की गयी है। इसके अलावा मद संख्या--19 विज्ञापन बिक्री और विख्यापन व्यय मद में रु०80000.00 (रु० अस्सी हजार मात्र) स्वीकृत की गयी थी जिसके सापेक्ष रु०76465.00 (रु० छिहत्तर हजार चार सौ पैंसठ मात्र) व्यय की गयी। इस प्रकार कुल रु०2380000.00 (रु० तेइस लाख अस्सी हजार मात्र) स्वीकृत धनराधि के सापेक्ष रु०2376246.00 (रु० तेइस लाख छिहत्तर हजार दो सौ छियालिस मात्र) की धनराशि व्यय की गयी।
सादर।
भवदीया ह० अपठनीय (सरोज कुमारी) श्री नवल किशोर विशेष सचिव, उत्तर प्रदेश शासन, आबकारी अनुभाग--2 सचिवालय लखनऊ।
41. In view of the above, the question cropped up as to whether the Government can compel the licensee to lift the liquor for sale by providing quota. To fulfil its target of course, by public auction, the Government can grant license with regard to licence shop but it shall not be permissible for the Government to compel the licensee to increase the sale of country liquor on the one hand and on the other hand, spent the fund from the public exchequer with regard to prohibition in the State keeping in view the mandate of article 47 of the Constitution. It is not a case where, the Government had not acted upon to fulfil the mandate of Article 47, hence no direction may be issued but in the present case, the Government itself has issued orders, made necessary provisions in preamble of Excise Act and its aims and object with regard to prohibition. Hence appropriate directions may be issued by this Court.
42. Learned standing counsel has relied upon the cases reported in (2004) 6 SCC 254 - Kusum Ingots & Alloys Ltd. Union of India and another; (1975) SCC 737:Har Shankar and others etc., etc. Vs. The Deputy Excise and Taxation Commissioner and others etc.; (1995) 1 SCC 574: Khoday Distilleries Ltd. And others. Vs. State of Karnataka and others; (JT 1995 (2) SC 1940): Asstt. Excise Commissioner. Vs. Issack Peter and others. He submits that Court cannot compel the State Government to reduce the consumption of country liquor discouraging the licensee. The Government has right to proceed in pursuance of the statutory provisions. Arguments advanced by the learned standing counsel does not carry force. There appears to be no dispute with regard to proposition of law raised by the State counsel but when the State Government itself took a decision to work for liquor prohibition and spend money, then there appears to be no reason to compel the licensee to increase the sale of country liquor or other intoxicants contrary to Government's own decision with regard to prohibition.
43. Much emphasis has been given by the learned standing counsel on the Apex Court judgment in Kusum Ingots's case (supra). Submission is that the controversy may be referred to alternative forum. In Kusum Ingots's case (supra), their lordship held that even for small fraction of cause of action, Court may exercise discretion but power conferred on the ground is not determinative factor in appropriate case, Court may refuse to exercise discretion. Same proposition has been reiterated by the Hon'ble Supreme court in the case reported in (2007) 6 SCC 769: M/S. Ambica Industries vs Commissioner Of Central Excise.
However, in the present case, the Division bench of this Court, had permitted the petitioner to represent his cause and now, the representation submitted by the petitioner, has been rejected by the impugned order defending the forfeiture of security. The order has been passed by the Excise Commissioner defending its action. No purpose shall be served by remitting to the alternative forum under the Excise Act to the same authority (Excise Commissioner) to adjudicate the controversy.
Reliance placed by the learned counsel on the Har Shankar's case (supra), also seems to be misconceived and does not apply to the facts of the present case. In Har Shankar's case (supra), the controversy was with regard to enforcement of contractual obligation. In the present case the validity of Rule has been challenged coupled with the validity of order passed in compliance of judgment of this Court. Hence the judgment seems to be not applicable to the facts of the present case.
The Constitution Bench judgment of the Hon'ble Supreme court in the case of Khoday Distilleries Ltd. (supra) relates to turnover tax and duty on levy which does not seem to be applicable to the facts of the present case.
44. In the case reported in 1995 SCC (5) 753: State of U.P. and others. Vs. Modi Distelleries, the dispute before the Hon'ble Supreme court was with regard to power of State Government to levy excise on Indian made foreign liquor exported outside the State of U.P. Their lordship held that power of State to demand duty is limited by provisions of the Constitution. Demand of excise duty is not a regulatory measure, it cannot be explained to regular manufacture. The judgment is not applicable to the facts of the present case.
45. The Constitution Bench judgment relied upon by the State counsel referred in the counter affidavit i.e., Khoday Distilleries Ltd. (supra) rules that Article 19 (1) (g) confers only unqualified and not absolute right. A citizen has no fundamental right to trade or business in liquor as beverage. The State can prohibit completely the trade or business in potable liquor since liquor as beverage is res extra commercium. The State may also create a monopoly in itself for trade or business in such liquor. The State can further place restrictions and limitations on such trade or business which may be in nature different from those on trade or business in articles res commercium. The restriction can be imposed by subordinate legislation as well. Their lordship has summed up law on the power of State Government or right to carry on a trade in para 60 of the judgment (supra) which is reproduced as under:
"60. We may now summarise the law on the subject as culled from the aforesaid decisions.
(a) The rights protected by Article 19(1) are not absolute but qualified. The qualifications are stated in clauses (2) to (6) of Article 19. The fundamental rights guaranteed in Article 19(1)(a) to (g) are, therefore, to be read along with the said qualifications. Even the rights guaranteed under the Constitutions of the other civilized countries are not absolute but are read subject to the implied limitations on them. Those implied limitations are made explicit by clauses (2) to (6) of Article 19 of our Constitution.
(b) The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilised societies. It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra commercium, (outside commerce). There cannot be business in crime.
(c) Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra commerce being inherently harmful. A citizen has, therefore, no fundamental right to do trade or business in liquor. Hence the trade or business in liquor can be completely prohibited.
(d) Article 47 of the Constitution considers intoxicating drinks and drugs as injurious to health and impeding the raising of level of nutrition and the standard of living of the people and improvement of the public health. It, therefore, ordains the State to bring about prohibition of the consumption of intoxicating drinks which obviously include liquor, except for medicinal purposes. Article 47 is one of the directive principles which is fundamental in the governance of the country. The State has, therefore, the power to completely prohibit the manufacture, sale, possession, distribution and consumption of potable liquor as a beverage, both because it is inherently a dangerous article of consumption and also because of the directive principle contained in Article 47, except when it is used and consumed for medicinal purposes.
(e) For the same reason, the State can create a monopoly either in itself or in the agency created by it for the manufacture, possession, sale and distribution of the liquor as a beverage and also sell the licences to the citizens for the said purpose by charging fees. This can be done under Article 19(6) or even otherwise.
(f)For the same reason, again, the State can impose limitations and restrictions on the trade or business in potable liquor as a beverage which restrictions are in nature different from those imposed on the trade or business in legitimate activities and goods and articles which are res commercium. The restrictions and limitations on the trade or business in potable liquor can again be both. under Article 19(6) or otherwise. The restrictions and limitations can extend to the State carrying on the trade or business itself to the exclusion of and elimination of others and/or to preserving to itself the right to. sell licences to do trade or business in the same, to others.
(g) When the State permits trade or business in the potable liquor with or without limitation, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business.
(h) The State can adopt any mode of selling the licences for trade or business with a view to maximise its revenue so long as the method adopted is not discriminatory.
(i) The State can carry on trade or business in potable liquor notwithstanding that it is an intoxicating drink and Article 47 enjoins it to prohibit its consumption. When the State carries on such business, it does so to restrict and regulate production, supply and consumption of liquor which is also an aspect of reasonable restriction in the interest of general public. The State cannot on that account be said to be carrying on an illegitimate business.
(j)The mere fact that the State levies taxes or fees on the production, sale and income derived from potable liquor whether the production, sale or income is legitimate or illegitimate, does not make the State a party to the said activities. The power of the State to raise revenue by levying taxes and fees should not be confused with the power of the State to prohibit or regulate the trade or business in question. The State exercises its two different powers on such occasions. Hence the mere fact that the State levies taxes and fees on trade or business in liquor or income derived from it, does not make the right to carry on trade or business in liquor a fundamental right, or even a legal right when such trade or business is completely prohibited.
(k) The State cannot prohibit trade or business in medicinal and toilet preparations containing liquor or alcohol. The State can, however, under Article 19(6) place reasonable restrictions on the right to trade or business in the same in the interests of general public.
(l) Likewise, the State cannot prohibit trade or business in industrial alcohol which is not used as a beverage but used legitimately for industrial purposes. The State, however, can place reasonable restrictions on the said trade or business in the interests of the general public under Article 19(6) of the Constitution.
(m) The restrictions placed on the trade or business in industrial alcohol or in medicinal and toilet preparations containing liquor or alcohol may also be for the purposes of preventing their abuse or diversion for use as or in beverage."
46. Keeping in view the law summarised by Hon'ble Supreme Court (supra), their appears to be no room of doubt that in view of the mandate of Article 47, read with provision contained in U.P. Excise Act prohibitory power vests in the State Government to prohibit the manufacture, sale, possession, distribution, and consumption of potable liquor as beverage because it is inherent contingency article of consumption and because of the directive principles of Constitution contained in Article 47 except where res extra commercium. is used and consumed for medical purpose.
47. Citizen have no right to carry on trade and business and any activities which are immoral and criminal and any article or goods which are of obnoxious and injurious to health, safety and welfare of general public i.e., res commercium. There cannot be business in crime.
48.. Power conferred on the State Government under Section 37-A with regard to prohibition of import, export, transport, possession or consumption of intoxicants, is regulatory. However, regulatory power may not be used against the constitutional and statutory mandate (supra).
49. In (2004) 5 SCC 430:U.P.Co-Operative Cane Unions. vs. West U.P.Sugar Mills Association, their lordships held that the word, "prohibit", would mean to forbid by authority or command. The expressions "regulate" and "prohibit" inhere in them elements of restriction but it varies in degree. The element of restriction is inherent both in regulative measures as well as in prohibitive or preventive measures.
50. However, in (1979) 3 SCC 229, State of U.P. Vs. Hindustan Aluminum Corporation, their lordships held as under:-
"34. It appears that a distinction between 'regulation' and 'restriction' or 'prohibition' has always been drawn, ever since Municipal Corporation of the City of Toronto v. Virgo. 'Regulation' promotes the freedom or the facility which is required to be regulated in the interest of all concerned, whereas 'prohibition' obstructs or shuts off, or denies it to those to whom it is applied. Oxford English Dictionary does not define "regulate" to include prohibition so that if it had been the intention to prohibit the supply, distribution, consumption or use of energy, the Legislature would not have contented itself with the use of the word "regulating" without using the word "prohibiting" or some such word, to bring out that effect.".
51. In view of the above, since the power conferred by Section 37-A is regulatory, keeping in view the aims and object or preamble of Excise Act, 1910, read with Article 47 of the Constitution, the State cannot be permitted to compel the liquor manufacturers to increase the sale of liquor to fetch higher revenue under the garb of MGQ.
52. In view of the aims and object read with Article 47 of the Constitution, the Government neither can make statutory provisions, rules or regulations to encourage the sale of liquor nor compel the licensee to increase the sale.
53. In view of the above, under the aims and object as well as Article 47 of the Constitution, the State is not entitled to encourage the sale of liquor under the garb of MGQ. Moreover, once the State itself has invested huge money from public exchequer through advertisement or other means for people's awakening not to consume liquor, it has no right to encourage the consumption of liquor or compel for lifting of MGQ by the licencee. In none of the case relied upon by the learned standing counsel, the provisions contained in Section 37-A of the Act as well as the aims and object of the Act has been considered and interpreted by the Hon'ble Supreme Court. There cannot be approbate and reprobate in the system of governance. On the one hand, the Government takes steps by investing huge fund for peoples awakening for discouraging the consumption of liquor in the State of U.P., discharging its constitutional obligation provided under Article 47 of the Constitution read with preamble of the Act and on the other hand, it shall be unjustified on the part of the State Government to encourage the liquor consumption by providing MGQ or compelling the shop keepers to lift more liquor every year.
54. While preferring the present writ petition, the petitioner has not challenged the relevant provisions of the Rules and the Act. Only the definition clause has been challenged, hence no order may be passed by this Court with regard to validity of Rules relating to State right to provide MGQ. However, the Court has ample power to mould the relief in public interest and facts of the case vide,2010 (28) LCD 1248, Dhirendra Kumar Rai Vs. State of U.P.; AIR 2003 SC 4531, General Manager, Kisan Sahkari Chini Mills Limited, Sultanpur, U.P. versus Satrughna Nishad.
55. Impact of alcohol abuse on the American Society was long back published in a magazine namely, Rescue Magazine, in the year 1994, a bimonthly journal of the International Union of Gospel Missions. The problem which the American societies are facing because of use of intoxicants, has been noted by the Journal as under:-
Number of traffic fatalities annually related to drugs and/or alcohol Alcohol related crashes kills someone in the U.S. every 22 minutes. At any minute, one of 50 drivers on the road is drunk and every weekend night, one out of 10 is drunk.
According to the Center for Disease Control in Atlanta, there are 105,000 alcohol related deaths annually due to drunken drivers and alcohol related injuries and diseases. AFA journal - 6/90 Alcohol related accidents are the leading cause of deaths among young people. Dallas Times - Sat., 6/9/90 The damage caused by alcohol impaired drivers is the same as if a Boeing 747 with over 500 passengers crashed every eight days killing everyone.
Drunk drivers are responsible for 1/2 of highway fatal injuries.
65 people each day die on our highways due to alcohol. California Capitol Report - 11/89 In 1988, 25,000 Americans were killed in auto accidents involving alcohol. Over one half million were injured. AFA journal - 1/90 Number of handgun or violent crimes annually related to drugs and/or alcohol and Number of murders annually related to drugs and/or alcohol?
One half of all traffic accidents are alcohol related. U.S.A. Today - 1/24/90 An estimated 23,200 murdered in U.S. last year Newsweek - 3/25/91 Of all murders, alcohol was involved in at least 34% of cases.
Rape - More than 1/2 of rapists had been drinking.
Child abuse - mothers convicted are 3 times more likely to be alcoholics - fathers 10 times more likely.
Suicide - Up to 36% of victims were drinking just before. Prodigy Services Co. - 3/3/92 Heavy drinking is involved in 60% of violent crimes, 30% of suicides, and 80% of fire and drowning accidents.
The suicide rate of alcoholics is 30 times that of the general population. AFA journal - 1/90 The percentage of households that were scenes of violent crime or of burglary or property crime in 1989 was 24.9%. LA Times - 9/3/90 Among men arrested for serious crime in 12 major cities, 53% (in Phoenix) to 79% (New York) tested positive for illicit drugs in voluntary urine analysis at time of arrest. Insight - 2/29/89 About 2/3 of people arrested in larger cities for felonies. . .test positive for illegal drugs. Economist - 1/21/89 Annual cost to health! insurance industry related to drugs and/or alcohol.
More than half of all confirmed abuse reports and 75% of child deaths involve drug or alcohol abuse on the part of the parents. Time - 1/27/92 The use of alcohol cost $15 billion (1983) for health care and treatment.
The economic cost of alcohol abuse is projected to be $150 billion in 1995. Alcohol & Health - U.S. dept. of H.H.S. 1/90 The economic cost of America's drug habit is somewhere between $50 billion and $100 billion a year. (Does not include alcohol) Economist - 1/21/89 Number of babies born annually with problems related to drugs and/or alcohol.
2.9% of 1,000 live births have fetal alcohol syndrome.
Alcohol & Health - U.S. Dept. of H.H.S. - 1/90 It is costing one half billion dollars per year to treat F.A.S. and F.A.E.
It is estimated that 375,000 babies born each year are exposed to one or more illicit drugs prenatally.
The Office of National Drug Control Policy uses an estimate of 100,000 drug exposed babies per year. Maternal Drug Abuse and Drug Exposed children - U.S. Dept. of H.H. S. - 9/92 The cost of government to prepare drug babies to enter kindergarten will soon reach $15 billion per year. Reader's Digest - 2/91 More than 1,000 babies a day are being born drug damaged. More than 100,000 per year are "crack babies." CBS Nightly News - 4/5/90 Aids related to drug use.
One baby with Fetal Alcohol Syndrome will cost $405,000 in direct special services from birth to 65 years. San Diego County Dept. of Health Services Newborns got AIDS at a faster rate than gays or IV drug users 30-40% of children born to infected women are HIV positive. Newsweek - 6/25/90 One in 2,200 infants born in the U.S. in 1989 was infected with HIV. Journal of A.M.A. - 4/3/91 Prenatally acquired.. .AIDS is the 9th leading cause of death among children 1 to 4 years.
80% of all pediatric AIDS cases are attributed to transmission from mothers at risk for HIV infection. IV drug abuse is a major contributing factor. Nearly 75% of Pediatric AIDS is attributed to maternal transmission involving IV drug use. Maternal Drug Abuse and Drug Exposed Children.
Now, in last two decade, problem become worst with rise of crime in campus and other places.
56. World Health Organization (WHO) in its publication, has shown its deep concern with regard to youth violence because of use of alcohol, to quote:-
"Alcohol use are risk factors both for being victimized and perpetrating youth violence. Youth violence takes many forms including bullying, gang violence, sexual aggression, and assaults occurring in streets, bars and nightclubs. The victims and perpetrators alike are young people, and the consequences of youth violence can be devastating. Across the world an average of 565 young people aged 10 to 29 die every day through interpersonal violence, with males at greater risk, and for each death there are an estimated 20 to 40 youth that require hospital treatment for a violence-related injury (1). The impact of youth violence reaches all sectors of society, placing huge strains on public services and damaging communities. Reducing harmful alcohol use and violence among young people should thus be considered a priority for policy makers and practitioners across a broad range of agencies, with public health professionals having a key role in leading partnerships and prevention. This fact sheet summarizes the role of alcohol in youth violence, the magnitude of the problem, risk factors for involvement in alcohol-related youth violence, prevention measures and the role of public health."
57. While considering the magnitude of alcohol-related youth violence, the WHO further proceeded to observe, to quote:
"At a global level, uniform data for cross-national comparisons of youth alcohol consumption are scarce. However, a range of international and regional surveys (e.g. World Health Survey [16], WHO global school-based student health survey [17], the European Schools Survey on Alcohol and Other Drugs [18]) show levels and patterns of alcohol consumption vary widely between countries. Thus, the World Health Survey shows abstinence rates among 18-24 year olds to range from 6.7% in Latvia to 98.6% in the Comoros, with the percentage of heavy episodic drinkers ranging from 0.2% in Lebanon and Malaysia to 20.1% in the Czech Republic (16). Particularly in the WHO European Region and the WHO Region of the Americas, young adults (aged 18-24) are more likely to engage in heavy episodic drinking than the general adult population (e.g. Brazil, Czech Republic, Spain, Dominican Republic [16]). Increasing consumption among young people else- where (e.g. Israel [19], Philippines [20]) is raising concerns that a youth culture of excessive drinking is spreading internationally. Further, while in most countries heavy episodic drinking is more common in males, alcohol consumption by females is increasing and in some countries heavy episodic drinking is now reported more by girls than boys (e.g. Australia, age 14-19; Lithuania, age 15-16 [16]).
Levels of youth violence also vary widely between countries. Mortality rates from homicide among 10-29 year olds range from 84.4 per 100 000 population (156.3 for males and 11 .9 for females) in Colombia to less than 1 per 100 000 (males and females) in Japan and France (1). Globally, across all age groups, alcohol is estimated to be responsible for 26% and 16% of years of life lost through homicide by males and females respectively . This ranges from 18% for males and 12 % for females in high mortality developing countries (where there is high mortality from other causes such as disease and famine) to 41% and 32% respectively in developed countries (16). While non-fatal violence is more difficult to measure cross-nationally, studies conducted in numerous countries identify links between non-fatal youth violence and harmful alcohol consumption by both perpetrators and victims.".
58. While summarizing the impact and consequence of youth violence with far reaching consequence, affecting the health and wellbeing of victims, relationship with family and friends, the WHO observed as under:
" The consequences of youth violence are far reaching, affecting the health and well being of victims, relationships with family and friends, levels of fear within communities, and pressure on health and other public services. For victims, alcohol-related violence can be more likely to result in physical injury (22 ), with alcohol consumption often leading to more severe injury (46). In Wales, 72% of assault patients presenting at an Accident and Emergency department at weekend nights had some form of facial injury (47), while across the United Kingdom 8% of facial injuries sustained in assaults were inflicted with the paraphernalia of alcohol use (i.e. the use of glasses and bottles as weapons [46]). Such injuries can cause permanent scarring and emotional and psychological trauma (48). Further, victims of violence during adolescence report higher levels of alcohol consumption in later life (7). For perpetrators of alcohol-related violence, judicial penalties can also affect future prospects in terms of education and employment (49).
Health and criminal justice surveys frequently show young people to account for the largest proportion of treatment demands and criminal justice responses for alcohol-related violence (e.g. Norway [50], the USA [51]), with substantial economic costs. In the United States, the costs of violent crime related to harmful alcohol use among youth were estimated at US$ 2 9 billion in 1996 (1998 prices [52]). In England and Wales, violent crime is estimated to cost £24.4 billion annually (approximately US$ 44 billion; including medical treatment, criminal justice, lost earnings and physical and emotional costs to victims [53]). Half of this violence is alcohol-related and half is committed by youths aged 16-24 (54)."
59. Father of Nation Mahatma Gandhi, while expressing his opinion against the use of intoxicants, deprecated it and canvassed for its prohibition, to quote:-
"The intoxicants used in India might be taken as the following: alcohol, bhang, ganja, tobacco and opium. Alcohol or liquor includes the country-made liquor and arak, besides the large quantities of liquor imported from foreign countries. All these should be strictly prohibited. Alcohol makes a man forget himself and while its effects last, he becomes utterly incapable of doing anything useful. Those who take to drinking, ruin themselves and ruin their people. They lose all sense of decency and propriety.
There is a school who favour limited and regulated consumption of alcohol and believe it to be useful. I have not found any weight in their argument. Even if we accept their view for a moment, we have still to face the fact that innumerable human beings cannot be kept under discipline. Therefore, it becomes our duty to prohibit alcoholic drinks even if it were only for the sake of this vast majority."
["The Selected Works of Mahatma Gandhi"
Vol.III: Page 355-356] After discussing how the Western and African countries suffer because of use of intoxicants, Mahatma Gandhi in Indian context, observed as under:
"On my return from Sought Africa to India I had a similar painful experience of the evils of drink. Several Princes have been and are being ruined by liquor. What applies to them applies more or less to many a rich youth. The condition of labour as a result of taking alcohol is also pitiable. That, as a result of such bitter experiences, I have become a staunch opponent of alcohol, will not surprise the readers."
["The Selected Works of Mahatma Gandhi"
Vol.III: Page 358]
60. In view of the above, it shall be appropriate for the State Government to consider to amend the Rules and Regulations and the Government orders and other statutory provisions by which the licencees are compelled to lift the liquor under the garb of MGQ which is increased every year. The writ petition deserves to be allowed and the findings are summarised as under:-
A) Keeping in view the Division Bench judgment of this Court in the case of Jafar Ali (supra), the writ petition deserves to be allowed. Respondents have no right to forfeit security on account of the fact that the petitioner has failed to lift the MGQ of only one month i.e., March, 2009 but fulfilled the quota of MGQ fo the entire excise year i.e., 2009-2010 and lifted more liquor than the quota allotted to him.
B) By providing MGQ, which is increased almost every year, the Government indirectly encourages the sale of liquor. It also compels the licencee to lift the liquor upto the prescribed quota. It is against the spirit of preamble as well as Section 37-A of the Act read with Article 47 of the Constitution and Khodey's case (supra). The Government should consider to change the statutory provisions which indirectly or directly encourages the sale of liquor in the State of U.P.
C) In view of the aims and object read with Section 37 of the Act and Article 47 of the Constitution, though no order may be passed by this Court to impose prohibition in the State of U.P. but once the State Government keeping in view the mandate of Article 47 of the Constitution and Excise Act & Rules framed thereunder invests huge amount for people's awakening not to consume liquor and Prohibition Officers have been appointed for the purpose then the State shall not be justified to do anything which may amount to encourage the sale of liquor in the State of U.P. There cannot be approbate and reprobate in the system of Governance.
61. In view of the above, the writ petition deserves to be allowed. The relief is moulded keeping in view the discussion and finding recorded in the preceding paras of this instant judgment. To secure public interest, it shall be appropriate that the Government should not do anything which may amount to propagate and canvass for use of liquor directly or indirectly. In case the shopkeepers are encouraged and compelled to sell more liquor, then they shall take steps to increase the sale of liquor from their shops persuading the people in different ways. Such indirect violation of constitutional and statutory mandate seems to be neither permissible nor justified.
ORDER
62. Accordingly, the writ petition is allowed and the reliefs are moulded. A writ in the nature of certiorari is issued quashing the order contained in Annexure No.1 to the writ petition and the circular dated 9.3.2009 contained in Annexure No.10 to the writ petition with consequential benefit.
A writ in the nature of mandamus is issued directing the respondents to refund the security deposited by the petitioner forthwith say, within a period of two months.
A writ in the nature of mandamus is issued commanding the State Government to consider and take appropriate steps by making necessary changes in the statutory provisions with regard to MGQ and other provisions under which the sale of liquor is encourage and licencees are compelled to lift and sell the liquor to fulfil the quota which is increased every year keeping in view the observations made in the body of present judgment.
No orders as to costs.
[Justice Vishnu Chandra Gupta] [Justice Devi Prasad Singh] Order Date :-
Rajneesh AR-PS) [Judgment Delivered Today on 09:08:2012]