Read Judgment: Peter Jagdish Nazareth vs. State Of Gujarat

LE Correspondent

Ahmedabad, August 25, 2021: The Gujarat High Court has upheld the maintainability of petitions challenging the Constitutional validity of specific provisions of the Gujarat Prohibition Act of 1949 claiming them to be ultra vires the Constitution of India as being hit by Articles 14, 19 and 21 thereof. 

Noticing that the petitioners have assailed some of the provisions of the 1949 Act on the ground that they violate the Right to Privacy, a Division Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav observed that the Apex Court in the case of Justice K.S.Puttuswamy (Privacy-9J) vs. Union Of India [(2017) 10 SCC 1] for the first time had recognized the “Right to Privacy” of the citizen as a fundamental right. 

However, the same has never been tested before in the context of personal food preferences weaved within the right to privacy, added the Bench. 

The counsel for the Petitioners contended that the Act, to the extent it makes the provisions with regard to use, consumption and possession of liquors which may consist of or contain alcohol but which are not intoxicating liquors, was beyond the competence of the Provincial Legislature to enact. 

On the other hand, counsel for the State opposed the maintainability of the petition by contending that the validity of the entire Act was under challenge, tested and upheld by the Supreme Court in the case of State of Bombay and another vs. F.N. Balsara [AIR 1951 SC 318]. 

After considering the arguments, the Division Bench found that the provisions which are a subject matter of challenge, are pertaining to prohibition of import, transfer, possession and buying of liquor, consumption and use thereof, prohibition of entry in state of intoxication, prohibition of vendor to sell liquor to anyone except permit holders, permit to use or consume liquor on warships, troopships and in messes and canteen of armed forces and various provisions pertaining to permits. 

“The challenge therefore as opposed by the State as being cosmetic in nature and that the substance of challenge has not changed, is a submission not accepted at this stage as the newly added provisions in our opinion are not mere cosmetic in nature but they confer valuable rights,” noted the High Court. 

The petitions challenge new provisions like the validity of Section 24-1B and other newly added provisions and therefore the petitions have to be heard on merits and cannot be severed as part maintainable and part not-maintainable, added the Bench.

Further, the Bench reiterated that the submission of the State opposing the maintainability of the petitions on the ground that once some of the provisions are held valid the whole Act is held to be valid as the provisions of the Act are not severable, needs to be examined. 

When entirely new sections and the amended provisions of the existing Sections are under scrutiny, the petitioners cannot be ousted on the plea that the whole Act has been held to be valid, added the Court. 

Therefore, observing that the petitions cannot be dismissed at the threshold on the ground of maintainability, the High Court listed the matter for final hearing on Oct 12, 2021. 

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