Supreme Court of India
THE STATE OF TAMILNADU REP. BY ITS SECRETARY HOME, PROHIBITION & EXCISE DEPT & ORS.versusK. BALU & ANR.
- Citation
- 2017 INSC 302
- Decided
- 15 December 2016
- Disposal
- Disposed off
- Bench
- T S THAKUR
Holding
No licences for liquor shops shall be granted on national or state highways, including stretches within municipal limits, and existing licences may continue only until expiry, not later than 1 April 2017.
Summary
The Supreme Court examined the presence of retail liquor shops on national and state highways after the Union Government, through expert bodies and advisories, highlighted the danger of drunken driving on these roads. The petitioners (State of Tamil Nadu and other states) sought a blanket prohibition on granting licences for liquor vends along highways, including stretches that pass through municipal limits, arguing that such shops jeopardise road safety and violate Articles 21, 14 and 47 of the Constitution. Respondents contended that the prohibition infringed the right to trade under Article 19(1)(g) and that states retain the power to issue licences under the State List. The Court accepted the expert view, held that the policy is a reasonable restriction aimed at protecting life, and declared that no new licences may be issued for liquor shops on any national or state highway, with existing licences allowed to run only until their expiry, but not beyond 1 April 2017. It also directed that liquor shops must not be visible or directly accessible from the highways and must be situated at least 500 metres away. The judgment reinforced the primacy of public health and road safety over commercial interests in the context of highway liquor vending.
Issues considered
- The constitutionality of allowing liquor shops on national and state highways, including stretches within municipal limits.
- Whether the State's power to grant liquor licences under the State List can be curtailed by Union policy and judicial direction.
- Whether the prohibition violates the fundamental right to trade under Article 19(1)(g).
- Whether the exclusion of highway stretches within local authorities is arbitrary and violative of Article 14.
- Whether the restriction is a reasonable limitation under Article 21 and Article 47 of the Constitution.
Legislation cited
- Motor Vehicles Act, 1988s. 185
- Punjab Excise Act, 1941s. 26A
Subjects
liquor licencehighwaysroad safetydrunk drivingconstitutional lawArticle 21Article 14Article 19Motor Vehicles Actpublic healthprohibitionModel Policy
Judgment
[2016] 11 S.C.R. 244
A THE STATE OF TAMILNADU REP. BY ITS SECRETARY
HOME, PROHIBITION & EXCISE DEPT & ORS.
v.
K. BALU & ANR.
B (Civil Appeal Nos. 12164-12166of2016)
DECEMBER 15,2016
[T. S. THAKUR, CJJ, DR. D. Y. CHANDRACIIUD AND
L. NAGESWARA RAO, .JJ.J
Liquor:
c
National Highways and State Highways - Drink and drive
accidents -Alarming statistics - Policy 011 removal of retails oullets
for liquor on national and state highways across the country adopted
by Union Government - Challenged - Held: Court must accept the
considered view formed by expert body as same was based 011
D
statistics and data which made out a consistent pattern year after
year - The existence of liquor vends; advertisements a11d sign hoards
drawing attention to the availability of liquor coupled with the
arduous drives particularly in heavy vehicles makes it ahunda11tly
necessary to enforce the policy of the Union government to safeguard
E human life - Constitution of India - Art.47 - Public health.
Exclusion of stretches of National Highway and State
Higln-11ays which fall within the limits of municipal or local authority
from the ambit of prohibition - Propriety of - Held: Where National
or State Highway passes through a city, town or through the area of
F iurisdiction of a local authority, it would he illogical to allow the
sale of /iqour along that stretch of the Highway - Such an exclusion
would defeat the policy since the presence of liquor shops along
such stretches of a National or State Highway would allow drivers
to replenish their stock of alcohol, resulting in a situation which the
policy seeks to avoid in the first place - Once it is an accepted
G position that the presence of liquor vends along the highways poses
a grave danger to road safety an exception cannot he carved out to
permit the sale of liquor along a stretch of the Highway which passes
through the limits of a city, town or local authority - Such a11
exception would he wholly arbitrary and violative of Art.14 -
H Constitution of India - Art.14.
244
STATE OF T. N. REP. BY JTS SECY. HOME, PROHIBITION & 245
EXCISE DEPT v. K. BALU
Highways - National/State Highways - Location of liquor A
shops - Held: No distinction can be made between National and
State Highways in regard to the local ion of liquor shops - It would
defy common sense to prohibit liquor shops along National
Highways while permitting !hem on State Highways - The prohibition
should extend not merely to the National and State Highways but
B
must be so appropriately tailored so as to ensure that !he policy is
not defeated by locating liquor shops even in close proximity of the
Highway - A restriction that the shop should not be acceMible or
visib!e from the National or State Hig/nvays or fi·om a service lane
along such highways is necessary to ensure I hat the policy is not
surreptitiously violated. c
Licence for liquor shops - Held: No licences for liquor shops
should be allowed both on the National and State Highways -
Moreover, in order to ensure that this provision is not defeated by
the adoption of subterfuge, no exception can be carved out for the
gram of liquor licences in respect of those stretches of the National D
or State Highways which pass through the limits of any municipality
corporation, city, town or local authority - Necessary safeguards
must be introduced to ensure that liquor vends are not visible or
directly accessible from the highway within a stipulated distance of
500 111etres from the outer edge of the higlnff1y; or fi·om a service
E
lane along the highway.
Motor Vehicles Act, 1988: s.185 - Object of - Held: s.185 is
indicative of a parliamentary intent to follow a zero tolerance policy
towards driving under the influence of alcohol.
Constitution of India: Art.19(1){g) -There is no funda111ental F
right under Art.19(1)(g) to trade in liquor - Liquor has been
regarded as res extra co111111ercium.
· Disposing of the appeals and transfer petition, the. Court
HELD: 1. It is trite law that in matters of policy, in this
case a policy on safety, the court will defer to and accept a G
considered view formed by an expert body. Second, this view of
the Union government is based on statistics and data which make
out a consistent pattern year after year. Third the existence of
liquor vends on highways presents a potent source for easy
availability of alcohol. The existence of liquor vends;
H
246 SUPREME COURT REPORTS [2016) 11 S.C.R.
A advertisements and sign boards drawing attention to the
availability of liquor coupled with the arduous drives particularly
in heavy vehicles makes it abundantly necessary to enforce the
policy of the Union government to safeguard human life. In doing
so, the court does not fashion its own policy but enforces the
, B right to life under Article 21 of the Constitution based on the
considered view of expert bodies. There is no fundamental right
under Article 19(1)(g) to trade in liquor. [Paras 11, 1211254-E-H]
State of Bihar v. Nirmal Kumar Gupta (2013) 2 SCC
565 : 2013 (1) SCR 916; Amar Chandra Chakraborty,
Appellant v. Collector of Excise, Govt of Tripura,
c Agartala (1972) 2 SCC 442 : 1973 (1) SCR 533;
Nashirwar v. State of Madhya Pradesh (1975) 1 SCC
29; Har Shankar v. Deputy Excise and Taxation
Commissioner (1975) 1 SCC 737 : 1975 (3) SCR 254;
Secretary to Government, Tamil Nadu v. K.
D Vinayagamurthy (2002) 7 SCC 104 : 2002 (1) Suppl.
SCR 683; State of Punjab v. Devans Modern Breweries
Ltd. (2004) 11 sec 26 : 2003 (5) Suppl. scR 930;
State of Kera/a v. Kandath Distilleries. (2013) 6 SCC
573 : 2013 (4) SCR 1053 - relied on.
E 2. Liquor licences in respect of potable alcoholic liquor
are granted by the state governments. Entry 51 of the state list
provides for duties of excise on alcoholic liquors for home
consumption manufactured and produced in the state and
countervailing duties at the same or lower rates on similar goods
'
manufactured or produced elsewhere in India. The power uf the
F states to grant liquor licences is undoubted. Such liquor licences
should not be granted on national and state highways at the cost
of endangering human lives and safety. Though, excise duty is
an important source of revenue to the states, a prohibition on
the grant of liquor licences to liquor shops on the national and
G state highways would only regulate the grant of such licences in a
manner that would ensure that the consumption of alcoholic llquor
docs not pose dangers to the lives and safety of the users of
national and state highways. (Para 13)(255-C-D]
3. Over a decade ago, the Union Government had
H formulated for consideration and adoption by the States a
STATE OF T. N. REP. BY ITS SECY. HOME, PROHIBITION & 247
EXCISE DEPT v. K. BALU
document titled "Model Policy/Taxation/Axt/Rules for alcoholic A
beverages and alcohol". This Model Policy provided for a
minimum distance from the state/national highways for locating
liquor shops. However, an exception was carved out to tt..e effect
that the national or state highways would not include such parts
of them as are situated within the limits of the local authorities
B
with a population of 20,000 or more. There is no rational basis to
exclude stretches of national highways and state highways which
fall within the limits of a municipal or local authority (with a
population exceeding a stipulated figure) from the ambit of the
suggested prohibition. Such an exclusion would defeat the policy
since the presence of liquor shops along such stretches of a c
national or state highway would allow drivers to replenish their
stock of alcohol, resulting in a situation which the policy seeks to
avoid in the first place. Once it is an accepted position that the
presence of liquor vends along the highways poses a grave danger
to road safety an exception cannot be carved out to permit the
D
sale of liquor along a stretch of the highway which passes through
the limits of a city, town or local authority. Such an exception
would be wholly arbitrary and violative ofArticle 14. [Para 14][255-
G; 256;D, G-H; 257-A-B]
4. No distinction can be made between national and state
highways in regard to the location of liquor shops. In rc~ulating E
the use of national and state highways, the safety of the users of
the road is of paramount concern. It would defy commC'n sense
to prohibit liquor shops along national highways while permitting
them on state highways. Drunken driving as a menace and as a
cause of road accidents is a phenomenon common to both national F
and state highways. Nor, is it a plausible defence to urge that
while it is impermissible to drink and drive on a national highway,
it is permissible to do so on a state highway. The prohibition
should extend not merely to the national and state highways but
must be so appropriately tailored so as to ensure that the policy
is not defeated by locating liquor shops in close proximity of the G
highway. [Paras 20, 21][259-G-H; 260-A-C]
5. No licences for liquor shops should be allowed both on
the national and state highways. Moreover, in order ti.' ensure
that this provision is not defeated by the adoption of subterfuge,
H
248 SUPREME COURT REPORTS [2016] 11 S.C.R.
A it would be necessary to direct that no exception can be carved
out for the grant of liquor licences in respect of those stretches
of the national or state highways which pass through the limits of
any municipality corporation, city, town or local authority.
Necessary safeguards· must be introduced to ensure that liquor
vends are not visible or directly accessible from the highway within
8
a stipulated distance of 500 metres form the outer edge of the
highway, or from a service lane along the highway. However,
current licences may continue for the existing term but not later
than 1.4.2017. [Paras 22, 23) (260-G-H; 261-A-B, CJ
Case I"aw Reference
c
2013 n> SCR 916 relied on Para 12
1973 (1) SCR 533 relied on Para 12
(1975) 1 sec 29 relied on Para 12
D 1975 (3) SCR 254 relied on Para 12
2002 (1) Suppl. SCR 683 relied on Para 12
2003 (5) Suppl. SCR 930 relied on Para 12
2013 (4) SCR 1053 relied on Para 12
E CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 12164-
12166 of2016.
From the Judgment and Order dated 25.02.2013 of the High Court
of Judicature at Madras in Writ Petition No. 23 773 of2012
WITH
F
Civi!Appea!Nos. 12167, 12168, 12169, 12170, 12171-12172and
12173 of2016, T. P. (C) No. 739-741 of 2016.
Nikhil Nayyar, AAG, Rakesh Dwivedi, Sr. Adv., Rajshekhar Rao,
Sameer Dawan, Yadav Narender Singh, Ravi Kamal Gupta, Nikunj
G Dayal, Ms. Paya! Dayal, Pramod Dayal, P. Ramesh, Advs. for
Appellants.
Ms. PinkiAnand,ASG, K. K. Venugopal, R.Venkatramani, Rakesh
Dwivedi, A. K. Panda, N idesh Gupta, Sr. Ad vs., Himanshu Gupta, V. K.
Biju, Umesh Kumar, V. G. Pragasam, Prabu Ramasubramannian,
Mrs. Neelam Singh, Sameer Singh, Yashraj Singh Bundela, Jagjit Singh
H
STATE OF T. N. REP. BY ITS SECY. HOME, PROHil31TION & 249
EXClSE DEPT v. K. BALU
Chhabra, Sanjay Kumar Visen, Rakesh K. Sharma, Mr. Vipin Nair, A
P. B. Suresh, Abhay Pratap Singh, B. Balaji, Muthuvel Palani, A. Arv ind
Athithan, Manoj V. George, Ms. Shilpa M. George, Towseei Ahmad
Dar, Yash Sampat, Ravi Kamal Gupta, Ms. Binu Tamta, S. S. Rawat,
G. S. Makker, Pankaj Pandey, V. Balaji, Ashok Kumar, R. Mohan, MSM
Asaithambi, Rakesh K. Sharma, Sameer Shrivastava, Kuna! Jema, Sun ii
B
Fernandes, Ms. Mithu Jain,Arnav Vidyarthi, S.Thananjayan, D.S. Mahra,
Kuna! Verma, Ritesh Khatri, Ms. Sunita Sharma, Advs. for the
Respondents/Intervenor
The Judgment of the Court was delivered by
DR. D. Y. CHANDRACHUD, J. Delay condoned. c
Leave granted.
1. The issue which we address in this case is about the presence
of liquor vends on national and state highways across the country. The
backdrop to the case is provided by alarming statistics on the occurrence
of road accidents. They have claimed human lives and caused debility D
and injury. Both on a personal scale (in terms of the injuries and loss of
life) as well as in a social context, restitution in the form of mandatory
awards of compensation can never undo the trauma of loss and the pain
of suffering. The Jaw can only imperfectly alleviate the consequences
of road accidents. In terms of personal suffering caused to individuals E
and families as well as in terms of.deprivation caused to society of its
productive social capital, road accidents impose unacceptable costs. We
will analyse the issues which have been raised in this case on the basis
of facts which are not in dispute !\rid on the foundation of policy statements
of the Union government which have been formulated after careful
consideration. In doing that, the court must ensure that the parameters F
for the exercise of its jurisdiction are confined to the familiar terrain of
enforcing the consti_tutional right to lead a life of dignity and self-worth.
2. The Union and the State Lists of the Seventh Schedule to the
Constitution distribute (in conjunction with Articles 245 arid 246) legislative
jurisdiction over the highways which traverse the length and breadth of G
India, between Parliament and the State Legislatures. The constitutional
pattern in relation to the distribution oflegislative heads is replicated in
this area : what is national is reserved to Parliament while that which
has a state-centric orientation is reserved to the state legislatures. Entry
23 of the Union List is thus:
H
250 SUPREME COURT REPORTS [2016] 11 S.C.R.
A "23. Highways declared by or under law made by Parliament to
be national highways".
Entry 13 of the State List is thus :
"13. Communications, that is to say, roads, bridges, ferries, and
other means of communication not specified in List I; municipal
B tramways; ropeways; inland waterways and traffic thereon
subject to the provisions of List I and List III with regard to such
waterways; vehicles other than mechanically propelled vehicles."
3. The Union Ministry of Road Transport and Highways in its
Transport Research Wing has brought out a publication titled "Road
c Accidents in India - 2015". The cover depicts in rather graphic terms
vehicles involved in car crashes. There is a large group of persons
assembled in the foreground, an ambulance bearing the' I 08' logo and a
police car. Familiar sights on Indian roads. The publication tells us that:
"1 LI During 2015, within the category of drivers' fault, accidents
D caused and persons killed due to 'Exceeding lawful speed',
accounted for a high share of 62.2 per cent (2,40,463 out of
3,86,481 accidents) and 61.0 per cent (64,633 out of 1,06,021
deaths), respectively.
However taking into account the total road accidents and total
E road accident ki Ilings, the share of over speeding comes to 4 7 .9
per cent (2,40,463 out of5,0l ,423 accidents) and 44.2 per cent
(64,633 out of 1,46, 133 deaths) respectively.
: 1.2 Intake of alcohol/drugs by drivers resulted in 16,298 road
accidents and 6, 755 fatalities in 2015 within the category of drivers'
F fault, intake of alcohol/drugs accounted for 4.2 per cent and 6.4
per cent respectively.
However taking into account the total road accidents and total
road accident killing, the share of intake of alcohol/drugs comes
to 3.3 per cent (16,298 out of 5,01,423 accidents) and 4.6 per
G cent (6, 755 out of 1,46, 133 deaths) respectively."
4. The total number of persons killed in road accidents on national
highways was48,768 in 2012and 51,204 in 2015. In 2014, on the national
highways there were 1.24 lakh accident cases resulting in 1.35 lakh
persons injured and 46, 110 deaths. During the same year, on state
H
STATE OF T. N. REP. BY ITS SECY. HOME, PROHIBITION & 251
EXCISE DEPT v. K. BALU [DR. D. Y. CHANDRACHUD, J.]
highways, there were 1.13 lakh accident cases resulting in 1.24 lakh A
injured and 39,352 deaths. The expressways witnessed 4,208 accident
cases, 4,229 injured and 1,802 deaths.'. Figures are also available of the
distribution of road accidents by causes during 2014. 1.38 lakh persons
were injured in road accidents involving dangerous or careless driving
and 42, 127 deaths occurred. Injuries caused in accidents due to over-
B
speeding stood at 1.81 lakh while there were48,654 deaths. 7,307 accident
cases involving driving under the influence of drugs/alcohol were
registered resulting in 7,398 injuries and 2,591 deaths. In regard to the
figurns of death or injury due to drunken driving there is a tendency to
under estimate or under-report in order not to impede the right of victims
and/ or their legal heirs to receive compensation. c
5. Now in this background, it would be necessary to elucidate the
policy adopted by the Union government. The National Road Safety
Cour.cil (NRSC) is an apex body for road safety established under Section
215 of the Motor Vehicles Act, 1988. NRSC unanimously agreed in a
meeting which was held nearly thirteen years ago on 15 January 2004 D
that licences for liquor shops should not to be given along the national
highways. The Ministry of Road Transport and Highways (MoRTH)
issued a circular to all the state governments advising them to remove
liquor shops situated along national highways and not to issue fresh
licen5es. Since 26 October2007, when an advisory was issued, MoRTH
has consistently advised all the state governments to remove liquor shops E
and not to issue fresh licences to liquor vends along national highways.
6. On 1 December 2011, MoRTH in an advisory to the Chief
Secretaries of all the States and Union Territories noted that India had
reported the highest number of road accident fatalities in the world and
data of2009 indicated that a road accident occurred ever:y four minutes. F
Drunken driving, it was stated, was a leading cause of road accidents
with as many as 27, 152 road accidents being caused under the influence
of alcohol in that year. The advisory drew attention to the provisions of
Section 185 of the Motor Vehicles Act, 1988 and solicited the following
enforcement action: G
"(i) Strict enforcement of section 185 ofMV Act 1988 preferably
pursuing cases in various courts for award of penalty of
imprisonment followed by adequate publicity which will together
act as a deterrent for drunken driving.
1
Sec death A. 7 page 160 H
252 SUPREME COURT REPORTS (2016) 11 S.C.R.
A (ii) Removal of Liquor shops along National highways.
(iii) No fresh license may be issued to Liquor vendors to open
shops along National highways.
(iv) Wherever licenses have been given in the past to open liquor
shops along National highways, such cases may be reviewed
B and corrective action taken under intimation to this Ministry."
Section 185 to which a reference has been made in the above circular
provides as follows :
"185. Driving by a drunken person or by a person under
c the influence of drugs.
Whoever, while driving, or attempting to drive, a motor vehicle,-
(a) has, in his blood, alcohol in any quantity, howsoever small
the quantity may be, or
(b) is under the influence of a drug to such an extent as to be
D
incapable of exercising proper control over the vehicle, shall be
punishable for the first offence with imprisonment for a term
which may extend to six months, or with fine which may extend
to two thousand rupees, or with both; and for a second or
subsequent offence, if committed within three years of the
E commission of the previous similar offence, with imprisonment
for a term which may extend to two years, or with fine which
may extend to three thousand rupees, or with both.
Explanation.-For the purposes of this section, the drug or drugs
specified by the Central Government in this behalf, by notification
F in the Official Gazette, shall be deemed to render a person
incapable of exercising proper control over a motor vehicie."
Section 185 is indicative of a Parliamentary intent to follow a zero-
tolerance policy towards driving under the influence ofalcohol.
The position was illustrated in another advisory dated 18 March 2013 of
G MoRTH to the Chief Secretaries of States and Union Territories where
it was stated that in 2011, 1.42 lakh people were killed in 4.9 lakhs road
accidents. 24,655 road accidents were caused due to drunken driving
resulting in 10,553 deaths and injuries to 21, 148 persons. The advisory
requested the removal ofall liquorvends on national highways and a ban
H
STATE OFT. N. REP. BY ITS SECY. HOME, PROHIBITION & 253
EXCISE DEPT v. K. BALU [DR. D. Y. CHANDRACHUD, J.]
on the issuance of fresh licences on the ground that "prevention is better A
than cure".
7. In an advisory dated 21 May 2014, MoRTH stated that in 2012,
1.38 lakh people were killed in 4.9 lakh road accidents. 23,979 road
accidents were caused due to drunken driving resulting in 7835 deaths
and injuries to 23,403 persons. B
8. The Union government has constantly issued advisories setting
out, as a matter of policy, its position.
9. The material which has been placed on record indicates that:
(i) India has a high rate of road accidents and fatal road accidents-one c
of the advisories states that it is the highest in the world with an accident
occurring every four minutes;
(ii) There isa high incidence of road accidents due to driving under the
influence ofalcohol;
(iii) The existence ofliquorvends on national highways is in the considered D
view of the National Road Safety Council and MoRTH - expert
authorities with domain knowledge - a cause for road accidents on
national highways;
(iv) Advisories have been issued to the State Governments and Union
Territories to close down liquor vends on national highways and to ensure E
that no fresh licences are issued in the future. The reason why these
advisories are confined to the national highways is because of the
distribution oflegislative competence between the Union and the States
under the Seventh Schedule to the Constitution. State highways fall under
the domain of the states.
F
10. The figures which are available on the record indicate that the
occurrence of a large number of road accidents is not a phenomenon
. confined to national highways nor is the prevalence of road accidents,
including fatalities, confined only to the national highways. Both the
national highways and state highways share a common experience of
an unacceptably high number ofroad accidents, the prevalence injuries G
and fatalities; drunken driving being one of the major causes. Hence, the
conknt of the advisories which have been issued by the Union
government as well as their basis, rationale and foundation would equally
apply to state highways. Human life is precious. As the road network
H
254 SUPREME COURT REPORTS r20I6l ll S.C.R.
A expands in India, road infrastructure being an integral part of economic
development, accidents profoundly impact on the life of the common
citizen. For a nation on the cusp of economic development, India can
well avoid the tag of being the accident capital of the world. Our highways
are expanding, as are the expressways. They provide seamless
connectivity and unheralded opportunities for the growth of trade and
B
industry and for the movement of goods, persons and capital. They are
the backbone of the freedom of trade and commerce guaranteed by
Article 30 I of the Constitution. Our highways are dotted with sign boards
warning of the dangers of combining speed and alcohol. Together, they
constitute a heady cocktail. The availability ofliquor along the highways
c is an opportunity to consume. Easy access to liquor shops allows for
drivers of vehicles to partake in alcohol, in callous disregard to their
own safety and the safety of others. The advisories of the Union
government to the states are founded on a logical and sound rationale.
11. We are conscious of the fact that the policy of the Union
D government to discontinue liquor vends on national highways may not
eliminate drunken driving completely. A driver of a motor vehicle can
acquire liquor even before the commencement of a journey or, during a
journey at a place other than a national or state highway. The law on
preventing drunken driving also requires proper enforcement. H11ving
said this, the court must accept the policy of the Union government for
E more than one reason. First and foremost, it is trite law that in matters of
policy, in this case a policy on safety, the court wi II defer to and accept a
conside1ed view formed by an expert body. Second as we have seen,
this view of the Union government is based on statistics and data which
make out a consistent pattern year after year. Third the existence of
F liquor vends on highways presents a potent source for easy availability
of alcohol. The existence ofliquor vends; advertisements and sign boards
drawing attention to the availability of liquor coupled with the arduous
drives particularly in heavy vehicles makes it abundantly necessary to
enforce the policy of the Union government to safeguard human life. In
doing so, the court does not fashion its own policy but enforces the right
G to life under Article 21 of the Constitution based on the considered view
of expert bodies.
12. There is no fundamental right under Article l 9(l)(g) to trade
in liquor. Liquor has been regarded as res extra co11111)erciu111 : State of
Bihar v. Nirmal Kumar Gupta, (2013) 2 SCC 565; Amar Chandra ·
H
STATE OFT. N. REP. BY ITS SECY. HOME, PROHIBITION & 255
EXCISE DEPT v. K. BALU [DR. D. Y. CHANDRACHUD, J.]
Chakraborty, Appellant v. Collector of Excise, Govt ofTripura, Agartala, A
(1972) 2 SCC 442; Nashirwar v. State of Madhya Pradesh, (1975) 1
SCC 29; Har Shankar v. Deputy Excise and Taxation Commissioner,
(1975) 1 SCC 737; Secretary to Government, Tamil Nadu v. K.
Vinayagamurthy, (2002) 7 SCC 104; State of Punjab v. Devans Modern
Breweries Ltd. (2004) 11 SCC 26. State ofKerala v. Kandath Distilleries,
B
(2oq) 6 sec 573.
13. Liquor licences in respect of potable alcoholic liquor are granted
by the state governments. Entry 51 of the state list provides for duties of
excise on alcoholic liquors for home consumption manufactured and
produced in the state and countervailing duties at the same or lower
rates on similar goods manufactured or produced elsewhere in India. c
The power of the states to grant liquor licences is undoubted. The issue
is whether such liquor licences shou Id be granted on national and state
highways at the cost of endangering human lives and safety. In our
view, which is based on the expert determination of the Union gow:rnment,
we hold that the answer should be in the negative. Though, excise duty D
is an important source ofrevenue to the states, a prohibition on the grant
of liquor licences to liquor shops on the national and state highways
would only regulate the grant of such licences in a manner that would
ensure that the consumption ofalcoholic liquor does not pose dangers to
the lives and safety of the users of national and state highways. May we
also remind ourselves that among the Directive Principles contained in E
the Constitution is that in Article 47:
"4 7. Duty of the State to raise the level of nutrition and the
standard ofliving and to improve public health:
The State shall regard the raising of the level of nutrition and the F
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."
G
14. Well over a decade ago, the Union government had formulated
for c0nsideration and adoption by the states a document titled "Model
Policy/taxation/act/rules for alcoholic beverages and alcohol''. The Model
Policy inter alia made general provisions relating to liquor ver.ds. Para
92(2) of the Model Policy inter alia provides as follows:
.H
256 SUPREME COURT REPORTS f2016l 1I S.C.R.
A "(2) No licence for sale of liquor shall be granted to a retail vend
selected within a distance of I 00 metres from any religious or
educational institution or hospital or outside the inhabited site of
village /town/city or any Office of the. State/Central Government
or Local Authorities or within a distance of220 metres from the
middle of the State/National Highways.
B
Explanation -For the purpose of this rule:
(a) "National Highway" or "State Highway" shall not include
·such parts of the National Highway or State Highway as are
~ituated within the limits of Municipal Corporation, City or Town
Municipal Council or such other authority having a population of
c twenty thousand or more."
This Model Policy provided for a minimum distance from the state/national
highways for locating liquor shops. However, an exception was carved
out to the effect that the national or state highways would not include
such parts of them as are situated within the limits of the local authorities
D with a population of20,000 or more. By an order of this Court dated 8
September 2015, the attention of the authorities was drawn to the fact
that the model policy had been prepared nearly a decade earlier and
several decisions of the High Courts have been delivered since. Hence,
the court opined that it was necessary that the policy is revisited Ly the
E states and union territories and by the Union government together in
regard to the sale of liquor and alcoholic beverages in the proximity of
national and state highways. MoRTH however has informed the court
on affidavit that a model policy on alcoholic beverages and alcohol does
not fall within its purview, and hence it may not be in a position to ~view
the model policy. MoRTH while stating this has emphasised its considered
F view and position based on the statistics of road accidents that liquor
shops should not be situated along national highways. We see no rational
basis to exclude stretches of national highways and state highways which
fall within the limits of a municipal or local authority (with a population
exceeding a stipulated figure) from the ambit of the suggested prohibition.
G Where a national or state highway passes through a city, town or through
the area of jurisdiction of a local authority, it would completely deny
sense and logic to allow the sale of liquor along that stretch of the higliway.
Such an exclusion would defeat the policy since the presence of liquor
shops along such stretches of a national or state highway would allow
. drivers to replenish their stock of alcohol, resulting in a situation which
H the policy seeks to avoid in the first place. Once it is an accepted position
STATE OFT. N. REP. BY ITS SECY. HOME, PROHIBITION & 257
EXCISE DEPT v. K. BALU [DR. D. Y. CHANDRACHUD, J.]
that the presence of liquor vends along the highways poses a grave A
danger to road safety an exception cannot be carved out to pt:rmit the
sale of liquor along a stretch of the highway which passes through the
limits of a city, town or local authority. Such an exception would be
wholly arbitrary and violative of Article 14.
15. During the course of the hearing, learned counsel appearing B
on behalf of the State of Punjab stated before the court that based on
the model policy the Pu1tjab Excise (Amendment) Act, 2016 was brought
into force on 28 March 2016. Section 26A of the Punjab Excise Act,
1941 provides as follows :
"26-A. (I) The location of the liquor vends shall be regulated by
the Government: Provided that this section shall be applicable c
only to liquor vends situated in areas adjoining the National
Highways and State Highways for consumption, off the premises.
(2) No licence for sale of liquor shall be granted to a liquor vend
situated within the road reservation of National Highways and
State Highways and beyond road reservation neither the liquor D
vends nor their entry points shall be visible or directly accessible
from the National Highways and State Highways. Explanation.-
(i) "Visibility" means existence of any signboard, direction mark,
display of stock of liquor, display of rates or any direct/indirect
invitation to the commuter travelling on such Highway; and (ii)
"Directly Accessible" means such liquor vend shall not bl.l directly E
approachable from the National Highway and State Highway.
(3) The restrictions referred to in sub-section (2) shall not apply
to the liquor vends situated in the areas adjoining to National
Highway and State Highway, passing through the limits of
Municipal Corporation/Municipal Council/ Municipal Committee/ F
Notified Area Committee/ Nagar Council/ Cantonment Board
or any other Authority having a population of twenty thcusand or
more."
16. Explanation,3 by its operation merely confers an enabling
power upon the state government to grant liquor licences in the area as G
described therein. We are of the view that the exercise of this enabling
power by the State government must not obstruct or impede the
overwhelming public interest in ensuring that the sale of liquor along
national or state highways should be discontinued having regard to the
danger to road safety.
' H
•
258 SUPREME COURT REPORTS [2016] 11 S,C.R.
A 17. These proceedings have arisen under Article 136 of the
Constitution from the judgments of the High Courts at Madras and Punjab
and Haryana respectively. The Madras High Court was seized with a
public interest litigation seeking the removal ofretail outlets for liquor on
national and state highways, contrary to the advisory of the l fnion
B government dated I December 2011. The High Court noted that in the
state of Tamil Nadu liquor shops along the highways are being r:.in by
Tamil Nadu State Marketing Transport Corporation (TASMAC). Before
the High Court, the Managing Director ofTASMAC stated that:
"'It was also submitted that TASMAC Ltd has been taking all
prudent steps to remove the shops located in Highways and has
c instructed all the Senior Regional Managers to refrain from i;iving
new licenses to shops that are proposed to be located on the
Highways and also shift the existing shops to some other place
without violating the Rule 8 of the Tamil Nadu Liquor Retail
Vending (in Shops and Bars) Rules, 2003 and other relevant
D laws."
The affidavit stated that nearly 504 shops are situated along national
highways and sometime would be required to relocate them. Ir was
stated that 75 shops have been shifted and a new location for 335 shops
had been identified. Six months' time was sought for shifting the shops;
E the affidavit having being filed in March 2013. The High Court by a
judgment and order of its Division Bench dated 25 February 2013 granted
time until 31 March 2013 for the relocation of existing liquor shops being
run on national/state highways. This order of the High Court has been
questioned by the State of Tamil Nadu and TASMAC.
F 18. During the pendency of these proceedings, this Court l:iy its
order dated 7 May 2013 directed that liquor vends along national highways
be removed by 14 August 2013. Notice was issued, confined to the
closure ofliquor vends along state highways. An affidavit was filed before
this Court on 22 August 2013 by the state government stating that 504
TASMAC retail liquor shops along the national highways have been
G shifted. The additional affidavit filed by the state on 29 April 2013 sets
out the position in regard to state highways.
The total length of state highways is divided into five regions namely,
(i) Chennai; (ii) Coimbatore (iii) Madurai; (iv) Salem; and (v) Trichy and
H
STATE OFT. N. REP. BY ITS SECY. HOME, PROHIBITION & 259
EXCISE DEPT v. K. BALU [DR. D. Y. CHANDRACHUD, J.]
traverses 9520.4 kilometres. The total number of shops situateci thereon A
is stated to be 1731. 839 liquor shops out of them are situated in market
areas abutting the state highways in towns, municipalities and corporations
while 892 are liquor shops in rural areas abutting the state highways.
These figures which have been disclosed by the state government indicate
the serious nature of the problem. The proliferation ofliquor shops on
B
state highways (1731 shops over 9520 kilometres) indicates the easy
availability of liquor on the state highways. Evidently within a distance
of a few kilometres a liquor shop is available to cater to the demand of ·
the users of the highways. There can be no valid distinction between a
national highway and state highway insofar as the location ofliquor shops
abutting the highway is concerned. Accidents take place both on national c
and s.tate highways and the easy availability of liquor possess a grave
danger to the safety and lives of those who use these highways.
19. Insofar as the State of Punjab is concerned, the petition for
special leave has been filed by the state government against a judgment
and order ofa Division Bench of the High Court dated 18 Mar-::h 2014. D
Like the case before the Madras High Court, the proceedings before
the Punjab and Haryana High Court were instituted in public interest (in
this case by the Arrive Safe Society of Chandigarh) seeking directions
forthe removal ofliquor vends from highways. The High Court directed
the State of Haryana to ensure in its liquor policy that no liquor vend
shall be located along the national highways/state highways'and that E
liquor shops are not accessible or visible from those highways or from
the service lanes running along such highways. The High Court rejected
the case of the state that the prohibition should be confined only to the
national highways. The High Court has, in our view, justifiably held that
it can hardly be contended that drunken driving is not permissible on F
national highways but does no harm on state highways. In relation to the
States of Punjab as well as Haryana the High Court has held that the
prohibition would apply to state and national highways.
20. For the reasons that we have already indicted, we have come
to the conclusion that the views of the High Court of Madras and the G
High Court of Punjab and Haryana are unexceptionable. No distinction
can be made between national and state highways in regard to the location
ofliquor shops. In regulating the use of national and state highways, the
safety of the users of the road is of paramount concern. It would defy
common sense to prohibit liquor shops along national highways while
H
260 SUPREME COURT REPORTS [2016] 11 S,C.R.
A permitting them on state highways. Drunken driving as a menace and as
a cause ofroad accidents is a phenomenon common to both national and
state highways. Nor, is it a plausible defence to urge that while it is
impermissible to drink and drive on a national highway, it is permissible
to do so on a state highway.
B 21. Moreover, we find merit in the restrictions suggested l:;y the
Punjab and Haryana High Court that the prohibition should extend not
merely to the national and state highways but must be so appropriately
tailored so as to ensure that the policy is not defeated by locating liquor
shops in close proximity of the highway. A restriction that the shop should
not be accessible or visible from the national or state highways or from
c a service lane along such highways is necessary to ensure that the policy
is not surreptitiously violated. Our attention has been drawn during the
course of the hearing to a report filed by the OSD Vigilance before the
High Court indicating that the prohibition was sought to be defeated by
setting up liquor vends which, though not visible from the highway, were
D situated in close proximity with signboards indicating their presenct:. The
entry to the shop is camouflaged or placed at the rear portion to evade
the judicial direction. A detailed survey has been made by the OSD in
which observations in regard to liquor shops located along the highway
have been recorded. We may also advert at this stage to a letter dated 4
August 2012 of the Project Director ofNational Highways Authority of
E India (NHAI) to the Deputy Commissioners of various regions in Punjab.
The letter highlights that on a stretch of29 I kilometres on the Panipat-
Jalandhar section ofNH-1, there are as many as 185 liquor shops (though
in comparison the trauma centres and hospitals where immediate medical
service can be provided to road accident victims is almost negligible).
F Many of the liquor shops have encroached on national highway land.
Though, NHAI has sought the removal of these shops, "concrete action"
is yet to be taken due to the lack of support from various quarters.
Liquor shops, the Project Director notes, are owned by influential people
making the removal of unauthorised encroachment impossible without
the support of the district administration.
G
22. For all these reasons, we have come to the conclusion that no
licences for liquor shops should be allowed both on the national and state
highways. Moreover, in order to ensure that this provision is not defeated
by the adoption of subterfuge, it would be necessary to direct that no
exception can be carved out for the grant ofliquor licences in respect of
H
STATE OFT. N. REP. BY ITS SECY. HOME, P.ROHIBITION & 261
EXCISE DEPT v, K. BALU [DR'. D. Y. CHANDRACHUD, J.]
those stretches of the national or state highways which pass through the A
limits. of~y municipality corporation, city, town or local authority.
Necessary·safeguards must be introduced to ensure that liquor vends
.ate notvi~ible or directly accessible from the highwaywithin a stipulated
distance ofSOO .metres form the outer ecjge of th.e highway, or from a
service lane along the highway,
B
23. H~weve~, we have also duly borne in mind the practical
·difficulty: which has been expressed on behalf of the licence holders
(includin'g those in.tile town of Mahe) and.the states that there are licences
which havt";been cjuly renewed and whose term is still to expire. the
states apprehend that premature termination may lead to claims for refund
oflicence fee for the unexpired term, with large financial implications. C
Hence we would direct that current licences may continue for the existing
term but notfater than 1April2017.
24, We accordingly hereby direct and order as follows :
(i) ·All states and union territories shall forthwith cease and D
desist from granting licences for the sale .of liquor along
national and state highways;
(ii) The prohibition contained iri (i) above shall extend to and
. include stretches of such highways which fall within the
·.. limits of a municipal corporation, city, town or local authority; E
(iii) The existing licences which have already been renewed
prior to the date of this order shall continue until the term of
the licence expires but no later than I April 2017;
(iv) All signages and advertisements of the availability of liquor
· . shall be prohibited and existing ones removed forthwith both F
on national and state highways;
(v) No shop for the sale of liquor shall be (i) visible from a
national or state highway; (ii) directly accessible from a
national or state highway and (iii) situated within a distance
of 500 metres of the outer edge of the national or state G
highway or of a service lane along the highway..
(vi) All States and Union territories are mandated to strictly
enforce the above directions. The Chief Secretaries and
Directors General of Police shall within one month chalk
H
262. SUPREME COURT REPORTS [2016] 11 S.C.R.
A out a plan for enforcement in consultation with the state
revenue and home departments. Responsibility shall be
assigned inter alia to District Collectors and
Superintendents of Police and other competent authorities~
Compliance shall be strictly monitored by calling for
fortnightly reports on action taken.
B
(vii) These directions issue under Article 142 of the Constitution.
· 25. We dispos.e of the appeals and transfer petitions in the above
terms·. There shall be no order as to costs.
c Devika Gujral Matters.disposed of.
..
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "liquor licence"Sign in to search