Full Judgement
State of Punjab and Anr Vs. M/S. Devans Modern Brewaries & Anr [2003] Insc 581 (20 November 2003)
B.N. Agrawal B.N. Agrawal,J.
Appeal (civil) 2696-2697 of 2003
The question involved in this batch of appeals, arising out of an order of reference made by a three Judge Bench of this Court, is as to whether Article 301 of the Constitution of India (hereinafter referred to as "the Constitution") will have any application in relation to potable liquor the business whereof is said to be res extra commercium; in view of the Commissioner & The Chief Commissioner, Ajmer, & Ors., [(1954) SCR Commissioner & Ors., [(1975) 1 SCC 737] and Khoday Distilleries Ltd.
These appeals arise out of judgements and orders passed by Punjab and Haryana High Court and Kerala High Court. The State of Punjab imposed tax on import of potable liquor manufactured in other States. The State of Kerala also imposed a similar levy. The Punjab and Haryana High Court by its judgment dated 17.01.1997 passed in Writ Petition (Civil) No. 5358 of 1996 quashed the notification dated 27.03.1996 imposing levy of import duty by the State of Punjab in exercise of its powers conferred upon it under Sections 31, 32 and 58 of the Punjab Excise Act, 1914 (hereinafter referred to as "the Punjab Act') on two grounds viz.;
(i) the State has no power to levy such tax under the Punjab Act and
(ii) in view of the of Orissa and others [1966(1) SCR 865], the imposition of duty is ultra vires Article 301 of the Constitution.
So far as challenge to imposition of import duty on potable liquor by the State of Kerala under Abkari Act, 1077 (hereinafter referred to as "the Abkari Act") is concerned, the Kerala High Court has dismissed the writ application on grounds, inter alia, that such duty, being regulatory in nature, is not ultra vires the Abkari Act. The High Court did not enter into the question of applicability of Article 301 of the Constitution vis-`-vis effect of imposition of such import duty on potable liquor.
Mr. P.N.Misra, learned Senior Counsel appearing on behalf of the appellant - State of Punjab in the Punjab matter having regard to several provisions of the Punjab Act submitted that the High Court committed a manifest error in holding that the State has no power to impose such a tax.
As regards applicability of Article 301 of the Constitution, the learned counsel contended that as the State has the exclusive privilege to deal in potable liquor in any manner it likes, it has the concomitant requisite power to impose such tax by way of restriction on import. The learned counsel further contended that as no trader can claim any fundamental right in carrying on trade or business in potable liquor, question of applicability of Article 301 of the Constitution would not arise. It may not be out of place to mention that at the stage of reply Dr. A.M. Singhvi, learned Senior Counsel filed written submissions on behalf of the State of Punjab more or less reiterating the contentions raised by Mr. P.N. Misra.
Mr. T.L.V. Iyer, the learned senior counsel appearing on behalf of State of Kerala submitted that it is within the province of the State to impose restrictions on import of potable liquor by imposing import duty.
According to learned counsel such a duty has not been imposed by the State in exercise of its statutory power conferred upon it in terms of Entry 51, List II of the Seventh Schedule to the Constitution but regulatory powers as envisaged in Entry 8 thereof. In other words, Mr. Iyer contended that the import duty has been levied not as a measure of tax but as a part of regulation on the trade. The learned counsel further contended, although such a stand has not been taken by the State before the High Court, but having regard to the well-settled principle of law as laid down by this Court and referred to hereinafter, the State can impose such duty as a price for parting with its exclusive privilege.
In support of the contentions the learned senior counsel appearing for the State of Punjab and that of Kerala relied upon the decisions of this Court Madhya Pradesh and Others (1975) 1 SCC 29, State of Orissa and Kerala and Others (2001) 3 SCC 694, Khoday Distilleries Ltd. and Deokar's Distillery JT 2003 (3) SC 86.
Mr. Mohan Jain, learned counsel appearing on behalf of the respondents-licensees of the State of Punjab and Mr. R.Venkataramani, learned Senior Counsel, appearing on behalf of the intervenor, on the other hand, contended that power to impose tax by the State of Punjab is circumscribed by Sub-section 3 of Section 33A of the Punjab Act. It was submitted that power to impose countervailing duty being statutorily restricted, the State cannot be permitted to achieve the same object indirectly by taking recourse to 'exclusive privilege' theory.
Mr. Ashok H. Desai and Mr. R.F. Nariman, learned senior counsel appearing on behalf of the licensees - appellants in the Kerala matter raised the following contentions:
(1) Levy of import duty having been expressly conferred by the statute, the State cannot justify such a levy on the spacious ground of having exclusive privilege of dealing in potable liquor.
(2) The State of Kerala having specifically raised a plea that such a levy was justified by way of a fee and/or as a regulatory measure cannot now turn round and contend that the levy was imposed by way of a price for parting with the exclusive privilege of the State.
As the State of Kerala has not granted any licence to the appellants, the question of parting of any privilege in their favour does not arise. Pointing out to the admitted fact that Kerala State Beverages Corporation has been granted the monopoly to deal in liquor and the appellants and other traders having been selling liquor to the Corporation, the question of rendition of any service by the State of Kerala to the licensees so as to justify imposition of a fee or regulatory tax therefor does not arise.
(3) Any fee regulating trade by grant of a licence would amount to 'tax' within the meaning of clause (28) of Article 366 of the Constitution. Reliance in this connection has been placed on D.C. Cinema [1965(2) SCR 477].
(4) The applicability of the doctrine of "res extra commercium" and/ or the concept of privilege theory on the part of the State would be attracted only in a 'no right' situation. Once a right to trade has been conferred by the State, it cannot take umbrage under the privilege doctrine. Even the State, at the time of grant of licence by way of exclusive privilege, is bound by its own action, which in a given case, may attract the wrath of Article 14 of the Constitution. Reliance in this behalf has been placed on State of
(5) The Constitution Bench of this Court in Krishna Kumar Narula having clearly laid down that trade in liquor would come within the purview of Article 19(1)(g) of the Constitution, the State can only impose a reasonable restriction in terms of Clause (6) of Article 19 thereof. In Khoday Distilleries Ltd. (supra), this Court having clearly held that when a licence is granted, persons similarly situated cannot be discriminated against which would clearly lead to the conclusion that not only a fundamental right in terms of Article 14 of the Constitution but also other constitutional rights including those contained in Part XIII of the Constitution are available in relation to trade in liquor.
Bhailal Bhai & Ors. 1964(6) SCR 261 this Court having clearly held that Article 301 of the Constitution would be applicable also in relation to obnoxious trade, there is no reason as to why the said decisions shall be departed from.
(7) Keeping in view the decisions of this Court in Atiabari Tea State of Rajasthan and Others [1963 (1) SCR 491] the purpose of Article 301 of Constitution being to maintain economic unity of the entire country, the State cannot by imposition of a tax infringe upon the provisions contained in Part XIII of the Constitution which is a self-contained part.
(8) The phraseology, used in Article 301 of the Constitution, namely, trade, commerce and intercourse being of wide amplitude, the right to carry on trade and business as envisaged in Article 19(1)(g) or Article 298 of the Constitution cannot restrict the scope and ambit thereof.
In view of the rival contentions, as noticed hereinbefore, the following questions arise for consideration:
(i) Whether the impugned notifications issued by the State of Punjab and that of Kerala are illegal being fraud on the Constitution.
(ii) Whether the import duty can be said to have been validly imposed having regard to the doctrine of 'exclusive privilege' of the State to deal in obnoxious matters?
(iii) Whether dealing in liquor which is said to be 'res extra commercium' would nonetheless attract Part XIII of the Constitution? Re: Question (i) The impugned notifications issued by the State of Punjab and that of Kerala read as under:
I "Government of Punjab Department of Excise and Taxation
NOTIFICATION
The 27th March, 1996 No. G.S.R. 28/P.A.I./14/Ss. 31, 32 and 58/Amd. (118)/96 In exercise of powers conferred by sections 31, 32 and 33 of the Punjab Excise Act, 1914 (Punjab Act 1 of 1914) and all other powers enabling him in this behalf, the Governor of Punjab is pleased to make the following order, without previous publication, further to amend the Punjab Excise Fiscal Orders, 1932, namely:-
ORDERS
1. (1) These orders may be called the Punjab Excise Fiscal (Second Amendment) Orders, 1996.
(2) They shall come into force on and with effect from the first day of April, 1996.
2. In the Punjab Excise Fiscal Orders, 1932 (hereinafter referred to as the said Orders),in order 1, in the table, under column "Rate of duty per proof litre" –
(a) in item (1), against sub item (c) for the figures "4.00" the figures "3.00" shall be substituted;and
(b) in item (3) against sub-item (b) for the figures "3.50" the figures "3.00" shall be substituted.
3. In the said Orders in order 1-B - (a) for the words "rupees three" the words "rupees two" shall be substituted; and (b) for clause (iii) to the proviso, the following clause shall be substituted namely:- "(iii) the Indian Made Beer shall be at the rate of thirty- eight paise per bulk litre."
4. In the said orders in order 1-D, for item (iii), the following item shall be substituted namely:- "(iii) rupees four and sixty paise per bulk litre." II. "S.R.O. No. 330/96. In exercise of the powers conferred by sections 6, 7, 17 and 18 of the Abkari Act, 1 of 1077 and in modification of notification issued under G.O. (p) No. 24/94/TD dated 3rd March, 1994 and published as S.R.O. No. 256/94 in the Kerala Gazette Extraordinary No. 180 dated 3rd March, 1994, as subsequently amended, the Government of Kerala hereby direct that the import and export fees, the excise duty and luxury tax under the said sections shall be levied on the following kinds of liquors manufactured in the State and exported outside the State under bond in force or manufactured elsewhere in India and imported into the State by land, air, or sea under bond, at the rates mentioned against each kind of liquor.
The excise duty, import fee or luxury tax on liquor manufactured elsewhere in India and imported into the State by land, air or sea otherwise than under bond shall be equal to the duty to which such liquor manufactured in the State are liable under the Act such as import fee, excise duty or luxury tax namely:- Kind of Liquor Rate of excise duty Rate of luxury tax Rate of import fee Rate of export fee
1. Indian Made Foreign Liquor including beer except those consumed by Defence Service.
(1) When exported by distilleries/ Foreign Liquor (compounding, Blending and (Bottling) Units/ Breweries to other State and not reimported into this State, in cases where the following terms and conditions are satisfied namely:- Rs. 5 (Rupees five only) per proof litre in the case of Indian Made Foreign Liquor and Rs. 2 (Rupees two only) per bulk litre in the case of beer
(i) The export is under bond to cover the duty at the rate of an amount equal to 200 per cent of the value of Indian Made Foreign Liquor and gallonage fee at the rate of Rs. 3 per bulk litre in the case of beer.
(ii) No objection certificate for import certificate from the excise authorities of the importing State is produced by the Distilleries/ Foreign Liquor (Compounding, Blending and Bottling) Units/ breweries.
(iii) Excise duty, luxury tax and export fee paid to Kerala Government before export.
(iv) The verification certificate from the Excise Authorities of the importing State is produced before the Excise officers in charge of the Distilleries/ Foreign Liquor (Compounding, Blending and Bottling) Units/ Breweries within 42 days of dispatch or within such further time as the Excise Commissioner may allow for sufficient cause.
(v) The duty at the rate of an amount equal to 200 per cent of the value of Indian Made Foreign Liquor and gallonage fee at the rate of Rs. 3 per bulk litre in the case of Beer is paid on all quantities unaccounted for;and
(vi) Export is through air, rail road or ship.
(2) in the case of:-
(a) Indian Made Foreign liquor other than beer imported (bond or under bond) Rs. 5 per proof litre
(b) Beer imported (bond or under bond) Rs. 2 per bulk litre
(c) wine imported (duty paid or under Bond) Rs. 2 per bulk litre (3) In other cases:
(a) Indian Made Foreign Liquor (excluding beer and wine) An equal amount to 100 per cent of its value
(b) Beer Rs. 3 per bulk litre
(c) Wine Rs. 3 per bulk litre IV. Medicated wine and similar preparations but not including preparations on which duty is leviable under the Medicinal and toilet preparations (Excise Duties) Act, 1955 Rs. 12 (Rupees twelve only) per proof litre Published in K.G. Ex. No. 379 dt. 29.3.1997 as S.R.O.No. 210/97 Explanation:-Where any liquor is chargeable with duty at a rate depending on the value of the liquor, such value shall be the value at which the Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd., purchases such liquor from the suppliers and in case any such liquor is not purchased by the Kerala State Beverages (Manufacturing and Marketing) Corporation, such value shall be the value fixed by the Commissioner.
This notification shall come into force on 1st day of April, 1996." Before embarking upon the questions raised in these appeals, the relevant provisions of the Punjab Act may be noticed which run thus:- S.3.(9) "Excise revenue" means revenue derived or derivable from any payment, duty fee, tax, confiscation, or fine imposed or ordered under the provisions of this Act, or of any other law for the time being in force relating to liquor or intoxicating drugs, but does not include a fine imposed by a court of law.
S.3(12). "Import" (except in the phrase "import into India") means to bring into Punjab and Haryana otherwise than across a custom frontier as defined by the Central Government.
S.16. Import, export and transport of intoxicants:- No such intoxicant shall be imported, exported or transported except –
(a) after payment of any duty to which it may be liable under this Act or execution of a bond for such payment, and
(b) in compliance with such condition as the State Government may impose.
S.17. Power of State Government to prohibit import, export and transport of intoxicants:- The State Government may by notification:- (a) prohibit the import or export of any intoxicant into or from Punjab, Haryana or any part thereof; or (b) prohibit the transport of any intoxicant.
S.18. Pass necessary for import, export and transport:- Except as otherwise provided by any rule made under this Act, no intoxicants exceeding such quantity as the State Government may prescribe by notification shall be imported or transported except under a pass issued under the provision of the next following section;
Provided that in the case of duty paid foreign liquor such passes shall be dispensed with unless the State Government shall by notification otherwise direct;
Provided further, that no such conditions as may be determined by the Financial Commissioner, a pass granted under the excise law in force in another State may be deemed to be a pass granted under this Act.
S.19. Grant of passes for import, export and transport:-Passes for the import, export and transport of intoxicants may be granted by the Collector.
Provided that passes for the import and export of such intoxicant as the Financial Commissioner may from time to time determine shall be granted only by the Financial Commissioner.
S.31. Duty on excisable articles:- An excise duty or a countervailing duty as the case may be at such rate or rates as the State Government shall direct, may be imposed either generally or for any specified local area, on any excisable article.
(a) imported, exported or transported in accordance with the provisions of section 16; or
(b) manufactured or cultivated under any licence granted under section 23; or
(c) manufactured in any distillery established or any distillery or brewery licensed under section 21.
Provided as follows:-
(i) duty shall not to be so imposed on any article which has been imported into India and was liable on importation to duty under the Indian Tariff Act, 1894, or the Sea Customs Act, 1878.
Explanation:- Duty may be imposed under this section at different rates according to the places to which any excisable article is to be removed for consumption, or according to the varying strength and quality of such article.
S.32. Manner in which duty may be levied:- Subject to such rules regulating the time, place and manner as the Financial Commissioner may prescribed such duty shall be levied rateably, on the quantity of exciseable article imported, exported, transported, collected or manufactured in or issued from a distillery brewery or warehouse;
Provided that duty may be levied:-
(a) on intoxicating drugs by an acreage rated levied on the cultivation of the hemp plant or by a rate charged on the quantity collected.
(b) On spirit or beer manufactured in any distillery established or any distillery or brewery licensed, under this Act in accordance with such scale of equivalents calculated on the quantity of materials used or by the degree of attenuation of the wash or wort, as the case may be as the State Government may prescribe.
(c) On tari, by a tax on each tree from which the tari is drawn;
Provided further that, where payment is made upon issue of an exciseable article for sale from a warehouse established or licensed under section 22(a) it shall be made –
(a) If the State Government by notification so directs, at the rate of duty which was in force at the date of import of that article; or
(b) In the absence of such direction by the State Government, at the rate of duty which is in force on that article on the date when it is issued from the warehouse.
S.33. Payment for grant of leases: - Instead of or in addition to any duty leviable under this chapter the State Government may accept payment of a sum in consideration of the lease of any right under section 27.
S.33-A. Saving for duties being levied at commencement of the Constitution:-
(1) Until provision to the contrary is made by Parliament, the State Government may continue to levy any duty which it was lawfully levying immediately before the commencement of the Constitution under this Chapter as then in force.
(2) The duties to which this section applies are:-
(a) any duty on intoxicants which are not exciseable articles within the meaning of this Act; and
(b) any duty on exciseable article produced outside India and imported into Punjab/Haryana whether across a customs frontier as defined by the Central Government or not.
(3) Nothing in this section shall authorize the levy by the State Government of any duty which as between goods manufactured or produced in the State and similar goods not so manufactured or produced discriminates in favour of the former or which in the case of goods manufactured or produced outside the State discriminates between goods manufactured or produced in one locality and similar goods manufactured or produced in another locality.
S.34. Fees for terms, conditions and form of, and duration of licences, permit and passes:-
(1) Every licence, permit or pass granted under this Act shall be granted:-
(a) on payment of such fees, if any.
(b) Subject to such restrictions and on such conditions,
(c) In such form and containing such particulars,
(d) For such period, as the Financial Commissioner may direct.
(2) Any authority granting a licence under this Act may require the licensee to give such security for the observance of the terms of his licence, or to make such deposit in view of security, as such authority may think fit.
S.58. Power of State Government to make Rules:
(1)....
(2) in particular and without prejudice to the generality of the foregoing provision, the State Government may make rules:- (d) regulating the import, export, transport or possession of any intoxicant or Excise bottle and the transfer, price or use of any type or description of such bottle.
(e) regulating the period and localities for which and the persons or classes of persons to whom licenses, permits and passes for the vend by wholesale or by retail of any intoxicants may be granted and regulating the number of such licences which may be granted in any local area;
(f) prescribing the procedure to be followed and the matters to be ascertained before any licence is granted for the retail vend for consumption on the premises.
S.59. Powers of Financial Commissioner to make rules:- The Financial Commissioner may by notification make rules:- (d) prescribing the scale of fees or the manner of fixing the fees, payable in respect of any licence, permit or pass or in respect of the storing of any intoxicant;
Apart from provisions of the Punjab Act, it would also be necessary to notice Sections 17 and 18 of the Abkari Act occurring in Chapter V dealing in "Duties, Taxes and Rentals" applicable in the State of Kerala which read thus:
"17. Duty on liquor or intoxicating drugs:- A duty of excise or luxury tax or both shall, if the Government so direct, be levied on all liquor and intoxicating drugs:
(a) permitted to be imported under Section 6; or
(b) permitted to be exported under Section 7; or
(c) permitted under Section 11 to be transported; or
(d) manufactured under any licence granted under Section 12; or
(e) manufactured at any distillery, brewery, winery or other manufactory established under Section 14; or
(f) issued from a distillery, brewery, winery or other manufactory or warehouse licensed or established under Section 12 or Section 14; or
(g) sold in any part of the State;
Provided that no duty or gallonage fee or vend fee or other taxes shall be levied under this Act on rectified spirit including absolute alcohol which is not intended to be used for the manufacture of potable liquor meant for human consumption.
Explanation:- For the purpose of this section and Section 18, the expression "duty of excise", with reference to liquor or intoxicating drugs, include countervailing duty on such goods manufactured or produced elsewhere in India and brought into the State.
18. How duty may be imposed:- (1) Such duty of excise may be levied:
(a) in the case of spirits or beer, either on the quantity produced in or passed out of a distillery, brewery or warehouse licensed or established under Section 12 or Section 14 as the case may be or in accordance with such scale of equivalents, calculated on the quantity of materials used or by the degree of attenuation of the wash or wort or on the value of the liquor as the case may be, as the Government may prescribe;
(b) in the case of intoxicating drugs on the quantity produced or manufactured or issued from a warehouse licensed or established under Section 14;
(c) xxx (d) xxx (e) in the case of toddy, or spirits manufactured from toddy, in the form of a tax on each tree from which toddy is drawn, to be paid in such instalments and for such period as the Government may direct; or (f) by import, export or transport duties assessed in such manner as the Government may direct; or xxx (2) The luxury tax on liquor or intoxicating drugs shall be levied:-
(i) in the case of any liquor in the form of a fee for licence for the sale of the liquor and in the form of a gallonage fee or vending fee, or in any one of such forms; and;
(ii) in the case of an intoxicating drug, in the form of a fee for licence for the sale of the intoxicating drug.
(3) The duty of excise under sub-section (1) and the luxury tax under sub-section (2) shall be levied at such rates as may be fixed by the Government, from time to time, by notification in the Gazette, not exceeding the rates specified below:- (1) Duty of excise Maximum rates
(i) Duty of excise on liquors (Indian made) Rs. 200 per proof litre or an amount equal to 200 per cent of the value of the liquor.
(ii) Duty of excise on intoxicating drugs Rs. 1 per gram or Rs. 933.10 per seer.
(iii) Duty of excise in the form of tax on trees tapped for toddy Rs. 50 per tree per half-year or part thereof (2) Luxury tax:
(a) When levied in the form of a fee for licence for sale of foreign liquor –
(i) For licence for sale of foreign liquor in wholesale Rs. 15000 for a year or part thereof
(ii) For licence for sale of foreign liquor in hotels or restaurants Rs. 12000 for a year or part thereof
(iii) For licence for sale of medicated wines Rs. 1000 for a year or part thereof
(iv) For licence for sale of foreign liquor in non- proprietory clubs to members Rs. 1500 for a year or part thereof
(v) Xxx
(b) When levied in the form of gallonage fee Rs. 10 per bulk litre or Rs. 45.46 per bulk gallon
(c) When levied in the form of a fee for licence for the sale of foreign liquor (Foreign made)
(i) In wholesale Rs. 25,00,000 (Rupees Twenty Five lakhs) for a year or part thereof
(ii) In retail Rs. 10,00,000 (Rupees Ten lakhs) for a year or part thereof
(iii) In hotels or restaurants Rs. 25,00,000 (Rupees Twenty Five lakhs )for a year or part thereof
(iv) In non-proprietory clubs to its members Rs. 10,00,000 (Rupees Ten lakhs) for a year or part thereof
(v) In Seamen's and Marine Officer's clubs to its members Rs. 10,00,000 (Rupees Ten lakhs) for a year or part thereof
(d) When levied in the form of gallonage fee
(i) Foreign Liquor (Foreign made) other than beer and wine Rs. 200 (Rupees Two hundred) per bulk litre
(ii) For foreign made beer and wine Rs. 25 (Rupees Twenty Five) per bulk litre Provided that where there is a difference of duty of excise or luxury tax as between two licence periods, such difference may be collected in respect of all stocks of Indian made foreign liquor or intoxicating drugs held by licensees at the close of the former period.
Note: The expression 'Foreign Liquor (Foreign made) means any liquor produced, manufactured, or blended and compounded abroad and imported into India by land, air or sea.
Explanation:- Where any liquor is chargeable with duty at a rate depending on the value of the liquor, such value shall be the value at which the Kerala State Beverages (Manufacturing and Marketing) Corporation Limited purchases such liquor from the suppliers and in case any such liquor is not purchased by Kerala State Beverages (Manufacturing and Marketing) Corporation limited such value shall be the value fixed by the Commissioner." Provision to grant licence is contained in Chapter VI of the Abkari Act, Section 24 whereof is as under:
"24. Forms and conditions of licenses, etc:-Every license or permit granted under this Act shall be granted:-
(a) on payment of such fees, if any;
(b) for such period;
(c) subject to such restrictions and on such conditions; and
(d) shall be in such form and contain particulars - as the Government may direct either generally, or in any particular instance in this behalf." The State of Kerala raised a contention that the imposition of levy is referable to Entry 66 of List II of the Seventh Schedule to the Constitution.
An additional affidavit was filed before the Kerala High Court wherein it was averred that such a levy has been imposed also by way of a regulatory fee. No plea whatsoever has been raised that such a levy is towards a price or a part of price for parting with exclusive privilege. The High Court accepted plea of the State that the levy is by way of regulatory fee in relation whereto doctrine of 'quid pro quo' has no application.
Before the High Court of Punjab and Haryana although a plea was raised that the impost was by way of a price for parting with the exclusive privilege but in its impugned judgment the High Court rejected the same having regard to the provisions contained in Section 33A of the Punjab Act.
The Excise Acts referred to hereinbefore seek to regulate trade and business in liquor. They have their origin before coming into force of the Government of India Act, 1935 or the Constitution and, thus, being pre- constitutional laws, validity thereof and/or any statutory impost levied thereunder would be subject to Articles 372 and 305 of the Constitution vis- `-vis Article 13 thereof. The statutory rights and obligations created by reason of the aforementioned Acts, after coming into force of the Constitution, would, therefore, be subject to the extent saved by the Constitution itself and, thus, the provisions thereof, the rules made thereunder and actions taken must conform to the limitations imposed thereby. The said Acts, therefore, must be construed keeping in view Entries 8 and 51 of List II of the Seventh Schedule to the Constitution. Before dealing with the matter further, it may be noticed that in the instant case I am not concerned with validity or the interpretation of a pre-constitutional law but a post-constitutional one. The impugned levy, therefore, must be justified having regard to the relevant entries made in List II of the Seventh Schedule to the Constitution. Section 6 of the Abkari Act permits import of liquor on payment of duties, taxes, fees and such other sums as are due to the Government and Section 7 thereof provides for export. Section 17 provides for levy of a duty of excise or luxury tax or both on liquor permitted to be imported under Section 6 thereof. Section 18 deals with the manner in which such duty should be imposed. Sections 31 and 32 of the Punjab Act are in pari materia with Section 17 and Section 18 respectively of the Abkari Act.
A question arises as to what is "excise duty". An excise duty can be imposed on manufacturer of goods only in terms of statute made by the Parliament. An exception thereto has been made in the case of liquor in terms whereof the State Legislature has been empowered to levy excise duty by reason of Entries 8 and 51 of List II of the Seventh Schedule to the Constitution which read thus:
"Entry 8: Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors.
Entry 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 entry."
Legislative competence of the State to levy any fee is, therefore, limited to levy of countervailing duty. In other words, any levy on import can not exceed the excise duty levied on the manufacturers of the State. The State, therefore, cannot levy any duty in addition to the countervailing duty.
The notification refers to excise duty and countervailing duty, which in terms of Section 3(6-B) of the Punjab Act mean any such excise duty or countervailing duty as the case may be, as is mentioned in Entry 51 of List II of the Seventh Schedule to the Constitution. The State, therefore, cannot levy any import fee over and above the excise duty/countervailing duty, having regard to the said definition. Sections 17 and 18 of the Abkari Act, which are in pari materia with Sections 31 and 32 of the Punjab Act, are referable to Entry 51 alone. As Entry 51 puts an embargo on the State to make a legislation, there cannot be any gainsaying that any levy in terms of Sections 17 and 18 of the Abkari Act would be subject thereto.
Can the levy be said to be valid if thereby regulatory licencee fees have been imposed? The answer to the said question must be rendered in the negative.
Clause (28) of Article 366 reads as under:
"taxation" includes the imposition of any tax or impost, whether general or local or special, and "tax" shall be construed accordingly;
A regulatory impost would, thus, come within the purview of the tax.
A fee in terms of the constitutional schemes may be either a regulatory licence fees or a fee in lieu of rendition of service. When no service is rendered a fee can be justified only by way of licence fees. Such impost, however, would be a tax and, thus, would clearly be referable to Entry 51 of List II to the Constitution and not Entry 66 thereof. (See Liberty Cinema State of U.P. and Anr., JT 2002 (9) SC 317).
Indisputably, the State while imposing import duty has exercised its power under the statute. The impugned notifications in no uncertain terms and unequivocally refer to the source of power therefor. The functions of the State to impose a fee or tax in terms of the provisions of the statute is a legislative function. Such legislative function must be attributed to the source of the State's power in terms of Entry 51 of List II to the Constitution and not otherwise. If the legislations in question are found to be unreasonable in nature or fraud on the Constitution, would it still be permissible for the State to turn round and contend that such imposts are not being levied in exercise of its taxation power but attributable to its regulatory power? In other words, can the State turn round and contend that what it sought to do was not in terms of legislative function but merely by way of executive action? Answer to the said question again must be rendered in the negative. It is a well-settled principle of law that a thing which cannot be done directly cannot be done indirectly. (See Priyanka Supp (1) SCC 102). In relation to an administrative act, it is well-settled that a statutory authority is not permitted to support its decision on a ground d'hors the ground stated in the order. (See Commissioner of Police, others, AIR 1978 SC 851). On the same analogy, a legislation which is found to be fraud on the Constitution, cannot, inter alia, be upheld on any other ground. Entry 8 of List II of the Seventh Schedule to the Constitution does not permit the State to levy a fee on import of liquor. It deals only with production, manufacture, possession, transport, purchase and sale of intoxicating liquors and nothing else. Entry 8 of List II, thus, does not speak of import or export. Its purpose is to regulate and not impose any statutory impost. The State in exercise of its delegated powers cannot do what would constitutionally be impermissible.
A subsidiary question which arises for consideration is as to whether the State of Punjab, having regard to Section 33A of the Punjab Act, could levy such duty. In Sub-Section (1) of Section 33A provision has been made permitting the State to continue to levy any duty which it had lawfully been levying immediately before the commencement of the Constitution. The said provision is in tune with Article 305 of the Constitution, therefore, the same calls for a strict construction. Sub-section (3) of Section 33A is couched in negative language by reason whereof power of the State to levy any duty has been taken away in the event thereby any discrimination is made in favour of goods manufactured or produced in the State and similar goods manufactured or produced in another locality. Clearly such a provision is in consonance with Article 304 of the Constitution. If by reason of a statute an embargo has been placed on the State's power to levy any fee, it is beyond any cavil of doubt that such a levy cannot be held to be justified by reason of an executive action or otherwise.
It is trite that even a term of the contract cannot be in violation of an express provision contained in a statute. By reason of provisions of the Abkari Act or the Punjab Act, no power has been conferred upon the State to impose any import fee over and above the excise duty/countervailing duty. It is not disputed that such countervailing duty has been levied and the licensees pay the same. The power to levy fee and the power to grant licences, permits and passes occur in different chapters of the Acts. The powers under different chapters are required to be exercised for different purposes. One is legislative in character and the other refers to executive action. Furthermore, under the Punjab Act fees for grant of licences, permits and passes are required to be paid on the terms as the Financial Commissioner may direct. Having regard to the fact that the Financial Commissioner is the statutory authority in relation thereto, the State cannot be said to have any jurisdiction thereover, particularly, in the matter of levy of import fee which clearly is referable to Chapter V of the Punjab Act and has nothing to do with grant of licence occurring in Chapter VI.
The matter may be considered from another angle. Having regard to Article 265 of the Constitution a tax must be imposed by a statute. Even such impost is impermissible by any bye-law or rule. (See Bimal Chandra 897.
Others (1990) 1 SCC 109 at page 158, a Seven-Judge Bench of this Court has equated excise duty with the price for privileges. In the matter of interpretation of Constitution, the said decision has been referred to with Gohil & Ors. [JT 2003 (2) SC 335]. In the said seven Judge Bench decision, this Court observed thus:
"On an analysis of the various Abkari Acts and Excise Acts, it appears that various provinces/States reserve to themselves in their respective States the right to transfer exclusive or other privileges only in respect of manufacture and sale of alcohol and not in respect of possession and use. Not all but some of the States have provided such reservation in their favour. The price charged as a consideration for the grant of exclusive and other privileges was generally regarded as an excise duty. In other words, excise duty and price for privileges were regarded as one and the same thing. So-called privilege was reserved by the State mostly in respect of country liquor and not foreign liquor which included denatured spirit." In view of the foregoing discussions, I am of the opinion that the impugned levy cannot be sustained.
Re: Questions (ii) and (iii) What is Res-Extra-Commercium:
In Black's Law Dictionary, Fifth Edition, 'Res' has been defined as follows:
"By "res", according to the modern civilians, is meant everything that may form an object of rights, in opposition to "persona," which is regarded as a subject of rights. "Res", therefore, in its general meaning, comprises actions of all kinds;
while in its restricted sense it comprehends every object of right, except actions." In Trayner's Latin Maxims, Fourth Edition, 'Extra Commercium' is stated as "Beyond Commerce. This is said of things which cannot be bought or sold, such as public roads, rivers, titles of honour, etc." In Words and Phrases, Volume 15 A, it has been stated:
"Property once dedicated to public use is "extra commercia", and inalienable by seizure and sale under execution against a municipal corporation, unless it is made affirmatively and clearly to appear that its use had been abandoned or lost by nonuser." In Bouvier's Law Dictionary, Volume I, Third Edition, at page 531, it is stated:
"It has been frequently said by the Supreme Court that commerce includes intercourse, though usually the term is qualified as "commercial intercourse"; Gibbons v. Ogden, 9 Wheat. (U.S.) 1, 6 L.Ed 23; U.S. v. E.C. Knight Co., 156 U.S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325; Welton v. Missouri, 91 U.S. 275, 280, 23 L.Ed. 347; Pensacola Telegraph Co. v. Western Telegraph Co., 96 U.S. 1, 9, 24 L.Ed. 708; Mobile County v. Kimball, 102 U.S. 691, 702, 26 L.Ed. 238 (where the phrase is "intercourse and traffic"); Addyston Pipe & Steel Co. v. U.S., 175 U.S. 211, 241, 20 Sup. Ct. 96, 44 L.Ed. 136; Lindsay & P. Co. V. Mullen 176 U.S. 126, 20 Sup. Ct. 325, 44 L.Ed.400; Interstate Commerce Commission v. Brimson, 154 U.S. 447, 470, 14 Sup Ct. 1125, 38 L.Ed. 1047; Lottery Case, 188 U.S. 321, 346, 23 Sup. Ct. 321, 47 L.Ed. 492. The first expression of this was by Marshall, C.J., in Gibbons v. Ogden, 9 Wheat (U.S.) 1, 6 L.Ed. 23; quoted by Fuller, C.J., in U.S. v. Knight Co., 156 U.S. 1, 15 Sup. Ct. 249, 39 L.Ed. 325; and characterized by White, J., as a "luminous definition" in Northern Securities Co. v. U.S., 193 U.S. 197, 24 Sup. Ct. 436, 48 L.Ed. 679, to the effect that commerce is something more than traffic; "It is intercourse; it describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse."
This has been practically, if not literally, quoted in all the cases cited. There is nothing in the decisions to define or limit so broad a term as intercourse, except the word commercial, usually attached to it. As it is hardly likely that the courts intended to say that commerce is intercourse in the sense in which it is defined "communication between persons or places"; Cent. Dict.: it is probable that the word was not intended to be used to express more than such intercourse as is connected with traffic and transportation with foreign countries or between the States." Dealing in liquor or for that matter in lottery, tobacco is not prohibited under the Constitution. On the other hand, in the constitutional schemes itself Parliament or the State Legislature has been conferred power to regulate the said trade like any other trade. In fact India has entered into trade agreements to deal in liquor with other sovereign countries. India has entered into International treaties in the matter of foreign investment in liquor. Trade in liquor finds place in World Trade Organization (WTO) and General Agreement on Trade and Tariff (GATT). In terms of the WTO and GATT guidelines have been laid down as regards import and export of potable liquor. India, as a signatory to WTO and GATT, is expected to follow the said guidelines. It is expected to remove all trade barriers subject to the other provisions contained therein. It is also supposed to levy taxes/ countervailing duties in terms of such international treaties.
No constitutional provision or statute prohibits trade in liquor. Article 47 of the Constitution empowers the State to impose prohibition. Once a prohibition is imposed by any State in exercise of said powers, indisputably no person will have any right to deal in potable liquor.
Applicability of Res-extra commercium is a judge made law.
Constitution does not provide for it. Even if Entries 8, 51 and 54 of List II, on the other hand, lead to the conclusion that the State has the legislative power to make regulatory enactment in the spheres provided for them, the State indisputably may exercise its right to prohibit dealings in liquor either wholly or partially but if it allows trade and business in liquor by parting with its exclusive privilege; a presumption will arise unless contrary intention is shown in the statute or licence granted therefor that it has not retained unto itself a right to deal with a part of the trade itself or through its agency. As has been noticed in the Kerala matter the State has given the monopoly to trade in liquor in favour of the Kerala State Beverages Corporation. Nowhere it is stated either by way of counter-affidavit or under the statute that the State has reserved unto itself any right in the matter relating to carrying on trade or business in potable liquor. As soon as a licence is granted upon receipt of a fee fixed by it, the State would be presumed to part with its entire privilege. To say that while exercising its regulatory power for the purpose of controlling the trade and business in potable liquor, it has reserved unto itself a part of its exclusive privilege would not be correct unless the same is explicitly pleaded and proved.
Regulatory measures in the matter of trade and business in potable liquor have been taken by reason of a statute. All regulations on the trade, thus, must be governed by the statutes operating in the field and not by way of executive action. The provisions of the statute or the contracts made thereunder must scrupulously be followed by all concerned as they are bound by the same. When a legislation referable to Entries 8, 51 and 66 etc.
had occupied the field, the State, in absence of any provision contained in the statute, cannot turn round and contend that it will exercise its power of exclusive privilege even though it had granted licence in terms of the statute.
Having regard to the constitutional scheme the power of the State to undertake trade and business is referable to Article 298 of the Constitution.
The duties, functions and responsibilities of a Government in a democracy are different from monarchism. Rights and privileges of a monarch cannot be equated with an elected Government in a democratic set-up. If the power of the Government in other words to deal in trade or commerce, be it liquor or any other commodity, can only be traced to Article 298 of the Constitution, it goes without saying that the same would be subject to all constitutional limitations applicable in relation thereto. The State while exercising its constitutional power under Article 298 of the Constitution cannot itself be an extra constitutional authority so as to violate the constitutional provisions. It like any other trader must confine itself within the four corners of the statutes governing the field which are enacted in terms of one entry or the other made in any of the three lists to the Seventh Schedule of the Constitution.
A State, therefore, may be entitled to either completely prohibit a trade or business in liquor and create monopoly either in itself or in any other agency and furthermore it can for the purpose of selling the licence adopt any mode with a view to maximize its revenue but while doing so it must, having regard to a large number of decisions of this Court, not act arbitrarily. The State while carrying on business by way of parting with its privilege or distribution of largess must conform to the equality clause enshrined in Article 14 of the Constitution. It has been so held in Nandlal Jaiswal (supra) at pages 604-605 in the following terms:
"But, before we do so, we may at this stage conveniently refer to a contention of a preliminary nature advanced on behalf of the State Government and respondents 5 to 11 against the applicability of Article 14 in a case dealing with the grant of liquor licences. The contention was that trade or business in liquor is so inherently pernicious that no one can claim any fundamental right in respect of it and Article 14 cannot therefore be invoked by the petitioners. Now, it is true, and it is well settled by several decisions of this Court including the decision in Har Shanker v. Deputy Excise & Taxation Commissioner [(1975) 3 SCR 254 : (1975) 1 SCC 737 : AIR 1975 SC 1121] that there is no fundamental right in a citizen to carry on trade or business in liquor. The State under its regulatory power has the power to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export, import, sale and possession. No one can claim as against the State the right to carry on trade or business in liquor and the State cannot be compelled to part with its exclusive right or privilege of manufacturing and selling liquor. But when the State decides to grant such right or privilege to others the State cannot escape the rigour of Article 14. It cannot act arbitrarily or at its sweet will. It must comply with the equality clause while granting the exclusive right or privilege of manufacturing or selling liquor. It is, therefore, not possible to uphold the contention of the State Government and respondents 5 to 11 that Article 14 can have no application in a case where the licence to manufacture or sell liquor is being granted by the State Government. The State cannot ride roughshod over the requirement of that article." Privilege, thus, can be claimed by a State in a 'no right' situation, namely, when citizen is not permitted to carry on trade. But once the State takes a decision to part with its privilege, it cannot make any discrimination whatsoever. Dealing in liquor by the persons in whose favour licences have been granted in terms of the statutory enactments derive a right therefor which cannot be said to be "Res-Extra Commercium" Now comes the question as to how far and to what extent, if any, the fundamental and other rights of a citizen could be available in the matter of trade in potable liquor. Article 19(1)(g) guarantees that all citizens shall have the right to practice any profession or to carry on any occupation, trade or business. However, in terms of Article 19(6) this right can be restricted by a statute imposing reasonable restrictions. A combined reading of clauses (1) and (6) of Article 19 makes it clear that a citizen has a fundamental right to carry on any trade or business and the State can make a law imposing reasonable restrictions on the said right in the interest of the general public.
It is, therefore, obvious that unless dealing in liquor is excluded from `trade or business', a citizen has a fundamental right to deal in that commodity.
This right was recognized in the The State of Bombay and Another that "we hold that to the extent to which the prohibition Act prevents the possession, use and consumption of non-beverages and medicinal and toilet preparations containing alcohol for legitimate purposes the provisions are void as offending against Art. 19(1)(f) of the Constitution even if they may be within the legislative competence of the provincial legislature," But in Cooverjee B. Bharucha (supra) a Constitution Bench of this Court held that there is no inherent right in a citizen to sell intoxicating liquors. This decision was rendered relying on P.Crowley, Chief of Police Christenses [(1890) 34 Law. Ed.620(A)].
However, this exclusive privilege theory was rejected by a U.P. & Ors. [AIR 1954 SC 728] stating that this doctrine has no place under Indian Constitution. It was observed that establishment of a monopoly does not create a reasonable restriction. The observations made in Cooverjee B. Bharucha (supra) stating that the general observations occurring in the judgment have to be taken with reference to the facts of that case were duly explained. It was reiterated that the State has a right to prohibit trade which is illegal or immoral or injurious to the health and welfare of the public by taking recourse to regulating legislation contemplated by Article 19(6).
The fundamental right to trade in intoxicant liquor was recognized in Government of Travancore and Cochin imposed 20% commission for sanction of extra quota of Foreign Liquor to wholesale licencees. The said impost was challenged before the High Court of Judicature for Travancore Cochin, which was struck down by said High Court. On Appeal by State this Court while upholding the judgment of High Court observed "an impost not authorised by law cannot possibly be regarded as a reasonable restriction and must, therefore, always infringe the right of the respondent to carry on his business which is guaranteed to him by Article 19(1)(g) of the Constitution." It was held that an impost in terms of an executive order having no authority of law would be illegal imposition.
This principle has been affirmed by a Constitution Bench of this Court 1967(3) SCR 50. After discussing all previous decisions, Subba Rao, C.J., held that "a scrutiny of these decisions does not support the contention that the court held that dealing in liquor was not business or trade. They were only considering the provisions of the various Acts which conferred a restricted right to do business. None of them held that a right to do business in liquor was not a fundamental right". It was observed that "If the activity of a dealer, say, in ghee is business; then how does it cease to be business if it is in liquor. Liquor can be manufactured, brought or sold like any other commodity. It is consumed throughout the World though some countries restrict or prohibit the same on economic or moral grounds". It was further held that "dealing in liquor is business and a citizen has a right to do business in that commodity; but the State can make a law imposing reasonable restrictions on the said right, in public interests." In R.M.D. Chamarbaugwala(supra) S.R. Das, C.J. observed that the American Congress have no power to control gambling and like spurious transactions under its power over 'inter-State commerce' if they were not held to be 'commerce'.
Even in Har Shankar (supra) Chandrachud, J. (as the learned Chief Justice then was) held that the right to trade in liquor is not absolute and it is to be treated as a separate class. But therein also it has not been held that despite fulfilling the regulatory measures, the trade would be illegal. The point that arose for consideration therein was the State's power to prohibit trade. In that case, this Court had no occasion to consider the question involved in the present one.
A large number of decisions, as noticed hereinbefore, have been cited at the Bar for the proposition that by reason of grant of licence, the licensee is merely granted a permissive privilege subject to the degree of regulatory control as may be deemed necessary and appropriate having regard to the fact that nobody has any constitutional right to trade in liquor in view of its inherently pernicious and noxious nature. I may deal with some of the decisions cited at the bar a little later but the principles which emerge from the various decisions of this Court and particularly by Constitution Benches of this Court are:
(i) Trade in liquor is against public morality and thus res extra commercium. No citizen has any Fundamental Right to carry on business in liquor. [See R.M.D. Chambarbaugwala (supra)]. As there does not exist any right to carry on trade, Article 301 shall not apply.
(ii) Right to trade in liquor is a Fundamental Right within the meaning of Article 19(1)(g) of the Constitution subject, of course, to the reasonable restrictions in terms of Clause (6) of Article 19. [See Krishna Kumar Narula (supra)]
(iii) Right of the State to deal exclusively in liquor is its own privilege.
It does not matter as to whether such right is restricted while parting with privilege by reason of a statute in terms of Article 19(6) of the Constitution.
(iv) (a) The equality clause even in the matter of carrying on trade is not available. The right of the State to part with its privilege being a superior right, the inferior right of a citizen to carry on trade, shall give way to State's superior right.
(b) The State while carrying on any trade or business itself cannot make any discrimination and its acts must be fair and reasonable.
[See Nandlal Jaiswal (supra)]
(v) The State's right is absolute when a complete prohibition is imposed and at that stage the State can part with its exclusive privilege in any manner it likes and it is also entitled to take any measures for having the best price. [See Har Shankar (supra)].
In Khoday Distilleries Ltd. (supra) at pages 608-609, a Constitution Bench referred to some of the decisions as referred to hereinbefore and summed up its findings [para 60(a)(b)(e)(f)(g)]:
"(a) The rights protected by art. 19(1) are not absolute but qualified. The qualifications are stated in cls. (2) to (6) of art. 19. The fundamental rights guaranteed in art. 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 cls.
(2) to (6) of art. 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.
(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 art. 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 art. 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." The decisions of this Court including those rendered by the Constitution Benches struck different notes. They at times stand poles apart.
Inconsistencies and contradictions in the said decisions are galore. Some latter Constitution Bench decisions although took note of the earlier Constitution Bench decisions, but only sought to distinguish the same and not referred the matter to a larger Bench for consideration of correctness of one view or the other. I may, therefore, proceed on the premise that some of the principles in Khoday (supra) are correct, although one may have strong reservations even in this behalf. In Khoday (supra) expressly or by necessary implication fundamental right to deal in any goods is accepted.
Only exception which was made are those commodities, business of which is inherently noxious and pernicious and is condemned by the civilized society. It has sought to lay down the law that there cannot be a business in crime.
Dealing in a commodity which is governed by a statute cannot be said to be inherently noxious and pernicious. A society cannot condemn a business nor there exists a presumption in this behalf if such business is permitted to be carried out under statutory enactments made by the legislature competent therefor. The legislature being the final arbiter as to the morality or otherwise of the civilized society has also to state as to business in which article (s) would be criminal in nature. The society will have no say in the matter. The society might have a say in the matter which could have been considered in a Court of law only under common law right and not when the rights and obligations flow out of statutes operating in the field. Health, safety and welfare of the general public may again be a matter for the legislature to define and prohibit or regulate by legislative enactments. Regulatory statutes are enacted in conformity with clause (6) of Article 19 of the Constitution to deal with those trades also which are inherently noxious and pernicious in nature and furthermore thereby sufficient measures are to be taken in relation to health, safety and welfare of the general public. The courts while interpreting a statute would not take recourse to such interpretation whereby a person can be said to have committed a crime although the same is not a crime in terms of the statutory enactment. Whether dealing in a commodity by a person constitutes a crime or not can only be subject matter of a statutory enactment.
The Excise Acts enacted by the States mandate the licensees to carry on their activities in terms of the conditions of licence and the provisions contained therein. So long as the business activities of the licensees are within the four-corners of the conditions of the licence and the provisions of the Licensing Act, they, without any obstruction whatsoever, are entitled to carry on their trade, business or commerce. They would be liable to be proceeded against for commission of an offence only in the event they v
