Appellate Division Case
Department of Narcotrics Control of represented by its Directore General, 1 Segunbagacha, Dhaka and another……………………..Petitioners
Crown Beverage Ltd. Senakalyan Bhaban (12th Floor),195 Motijheel Commercial Area, Dhaka and another………………………………………Respondents
Syed J.R. Mudassir Husain CJ
M.M Ruhul Amin J
Amirul Kabir Chowdhury J
The Narcotics Control Act, 1990, Section 11
That mere investment of money and setting up a factory does not acquire the vested right to obtain a Brewery licence . Because a brewery licence is to be granted by the competent authority only on merit and with due consideration of the necessity of granting such licence in the perspective of degradation of moral values, increasing social crimes and negative public stance against the products in question .(6)
Section 3 of the Narcotics control Act,1990
(as amended in 2000, 2002 and 2004) establishes the predominance of the said act over
other existing laws Right to protection of life is more than right to trade and as such the impugned judgment cannot be maintained (7)
Article No.18 of the Constitution of the peoples Republic of Bangladesh clearly empowers the Government to take appropriate measures to save the people of the country from any possible health hazards and bad effects that may be caused by any narcotics items whatsoever (8)
A. J. Mohammad AH , Attorney General, instructed by Abu Sams Khalequzzaman, Advocate – on -Record. For the petitioners .Rfique- ul Huq, Senior Advocate, instructed
by Mvi . Md. Wahidullah, Advocate -on Record For the Respondents
1. Amirul Kabir Chowdhury J.- Department of Narcotics control represented by its Director General and another seek leave to appeal against the judgment and order dated 15.03.2005 passed by the High Court Division in writ petition No.6818 of 2004 making the rule absolute.
2. Respondent Nos.l and 2 filed writ petition No.6818 of 2004 for a direction upon the writ respondents i.e. the present petitioners to grant licence in favour of the writ petitioner
No. 1 under Section 11 of the Narcotics Control Act, 1990 for manufacture, process, carry, Transport, export, supply, sell, hold, preserve, warehousing and exhibit of products
under the trade name “Hunter” and “Crown”. It was stated in the writ petition that respondent No.l a private limited company incorporated under Companies Act, 1994, in
short the company, carries on business, inter alia, of manufacturing and marketing of beverage products having established a modern factory in Gazipur and after taking necessary licence from the relevant authority of the Government produced , “malt beverage” and the company markets its products under the trade name “Crown” and “Hunter” and that when the company launched the above products both of them contained below 5% of alcohol but under Narcotics Control Act 1990 in short the Act none of the products were alcoholic and the company did not require any licence under the said Act and that the product “Hunter” contains maximum 4.5 percent alcohol and “Crown” contains less than 0.5 percent alcohol and as such the same were non alcoholic products within the definition of 2 (=0 of the Act. It was further stated that on 11.05.2004 the Act was amended and the percentage 5% was substituted with . 5%which came into force with effect from 11.05.2004 and that the company by letter dated 07.08.2002 applied to Board of Investment, in short, BOI for registration of “Malt Beverage product” and got registered on 26.08.2002 and the company launched two products “Crown”and “Hunter” in January 2004, hunter containing 4.5 % alcohol and “Crown” containing less than 5% alcohol and the two products were thus non – alcoholic within the definition of Section 2(^of the Act and that the products gained tremendous response from consumers in the whole country as a result of which the interested quarters became jealous and ntade various propaganda and BOI then cancelled’ the registration by memo dated 05.03.2004 and directed various agencies of the Government to stop marketing of the aforesaid products .
3. It has further been averred that being aggrieved the company filed writ petition No. 1119 of 2004 and the High Court Division by judgment and order dated 06.04.2004 made
the rule absolute declaring cancellation of the registration by BOI as illegal and in civil petition for Leave to Appeal No. 856 of 2004 filed by the writ petitioner for expunction of some findings the Appellate Division disposed of the said petition allowing expunction of the disputed lines in the operative portion of the judgment making the rule absolute and allowed the writ petitioner to market its beverages using the cans bearing trade mark of “Crown” and “Hunter” containing beverage within permissible limit in accordance with law and the light of the aforesaid decision of the Appellate Division the company can lawfully continue manufacturing and marketing accorded by the respondent No. 1 (leave petitioner) and that the company submitted application dated 20.10.2004 requesting the writ respondent No.l i.e. leave petitioners to licence under the said Act ( Annexure – D to the writ petition ) and the writ respondent No. 1 inspite of being bound to grant licence under the said Act to the company did not issue the licence and hence was the writ petition .
4. The leave petitioner No. 1, Department of Narcotics Control, contested the rule filing
affidavit – in – opposition stating inter -alia, that the petitioners are not entitled to any licence under Section 11 of the Narcotics Control Act inasmuch as if the aforesaid drinks are allowed to be manufactured and sold it would bring degeneration to the morality of the people in general and young generation in particular and that the company did not apply for the licence in accordance with law.
5. After hearing the parties the High Court Division by the impugned judgment and order made the rule absolute directing the leave petitioners to grant licence infavour of the company under Section 11 of the Act on realization of the fees/charges under the law and also to grant permit or pass to dispose of the unsold stocks to the licenced dealers . 6. Hence is this petition
7. In support of the petition Mr. A.J. Mohammad Ali, learned Attorney General submits, inter alia, that mere investment of money and setting up a factory does not acquire the vested right to obtain a Brewery licence . Because a brewery licence is to be granted by the competent authority only on merit and with due consideration of the necessity of granting such licence in the perspective of degradation of moral values, increasing social crimes and negative public stance against the products in question .
8. He further submits that Section 3 of the Narcotics control Act, 1990 (as amended in 2000, 2002 and 2004) establishes the predominance of the said act over other existing laws. The writ petitioners in question violated the said Act and set up a factory at Gazipur to produce Crown and Hunter in the “brewing process” and market them to the utmost dissatisfaction and protests of the country and such action cannot be legalized through granting licence defying the public sentiment against the products in question and that it
would be unwise to give licence to produce and marketing of such type of alcoholic drinks in the name of right to trade .Right to protection of life is more than right to trade and as such the impugned judgment cannot be maintained.
9. He further submits that Article No.18 of the Constitution of the people’s Republic of
Bangladesh clearly empowers the Government to take appropriate measures to save the people of the country from any possible health hazards and bad effects that may be caused by any narcotics items whatsoever. So the Government stance on the products in question is not at all violative of the constitution of the country. An individual businessmen’s claim cannot be entertained by stampeding the desire of the common people and in gross violation of the rules and regulations of the land and that in view of above cricumstances the petitioners are under obligation to refuse granting licence to the petitioner for producing and marketing the Hunter and Crown and that the writ petition is not maintainable in the eye of law and as such the impugned judgment making the rule absolute is liable to be set aside.
10. Mr. Rafique – ul Huq, learned Counsel appearing for the respondent submits that the
government including BOI accorded necessary permission for establishment of required
industry for manufacturing and marketing malt beverage product under the trade name
“Crown” and “Hunter” and pursuant thereto the respondent set up and established huge
industrial complex by importing capital machinery and accessories for manufacturing
the said products and also employed foreign technicians at a huge investment and when the company manufactured a sizeable quantum of the beverage with permissible alcohol and was ready to market the same the Act was suddenly amended on 11. 05. 2004 as a result of which the respondents were debarred from selling the unsold stocks of the products earlier and that after amendment of the law the company applied for the licence fulfilling the requirement of law but with malafide intention the leave petitioners refused to grant the licence and the action is arbitrary and discriminatory inasmuch as some other business concerns in the country have been favoured with licence to manufacture and market similar products.
11. We have considered the submissions and perused the impugned Judgment.
12. In the facts and circumstances the submissions made on behalf of the petitioners merit
13. Leave is, therefore, granted to consider the same.
14. Preparation of paper book is dispensed with as prayed for.
15. The order of stay granted earlier be extended till disposal of the appeal.
16. The petitioners are directed to make the appeal ready within 3 (three) months from date for expeditious disposal.
Source: III ADC (2006) 924