Case No: Civil Appeal No. 62 of 2006
Judge: Md. Abdul Matin,
Court: Appellate Division ,,
Advocate: Mr. Rafique-ul-Huq,Mr. Mansur Habib ,,
Citation: VII (ADC) (2010) 132
Case Year: 2010
Appellant: Department of Narcotics Control Dhaka and another
Respondent: Crown Beverage Ltd. and another
Delivery Date: 2008-12-2
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Abdul Matin J
Department of Narcotics Control Dhaka and another
Crown Beverage Ltd. and another
December 2, 2008.
“If the petitioners are allowed to carry on with their business in manufacturing and marketing the said products that would substantially contribute to the economy of the state. Such drinks e.g., beers would not be required to be imported by spending valuable foreign exchange, rather export of the same would help earn foreign exchange for the country.” ….. (13)
In such view of the matter the High Court Division held that withholding of the license was not proper and legal and made the Rule absolute with direction upon the respondent to grant the required license in favour of the writ petitioner under Section 11 of the Narcotics Control Act, 1990. …. (14)
Monsur Habib, Additional Attorney General instructed by A. S. M. Khalequzzaman, Advocate-on-Record-For the Appellants.
Rafique-ul Huq, Senior Advocate (Dr. M. Zahir, Senior Advocate with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Respondents.
Civil Appeal No. 62 of 2006.
(From the judgment and order dated 15.03.2005 passed by the High Court Division in Writ Petition No.6818 of 2004.)
Md. Abdul Matin J.
This appeal is directed 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.1 and 2 filed Writ Petition No.6818 of 2004 for a direction upon the writ respondents i.e. the present petitioners to grant license in favour of the writ petitioner No. 1 under Section 11 of the Narcotics Control Act, 1990 to 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.1 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 license 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 license 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(M) of the Act. It was further stated that on 11.05.2004 the Act was amended and the percentage 5% was substituted with 0.5% which came into force with effect from 11.05.2004 and that the company by letter dated 07.08.2002 applied to the Board of Investment, in short, BOI for registration of "Malt Beverage Product" and got it 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(M) 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 made 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 the 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 in the light of the aforesaid decision of the Appellate Division the company can lawfully continue manufacturing and marketing of the said products subject to approval accorded by the respondent No.1 (leave petitioner) and that the company submitted application dated 20.10.2004 requesting the writ respondent No.1 i.e. leave petitioners to grant license under the said Act (Annexure-D to the writ petition) and the writ respondent No.1 inspite of being bound to grant license under the said Act to the company did not issue the license 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 appellants are not entitled to any license 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 license 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 appellants to grant license in favour 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 licensed dealers.
6. In support of the petition it was submitted that mere investment of money and setting up a factory does not acquire the vested right to obtain a Brewery license. Because a brewery license is to be granted by the competent authority only on merit and with due consideration of the necessity of granting such license in the perspective of degradation of moral values, increasing social crimes and negative public stance against the products in question.
7. It was further submitted 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 license defying the public sentiment against the products in question and that it would be unwise to give license 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.
8. It was further submitted that 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. So the Government stance on the Products in question is not at all violative of the constitution of the county. 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 circumstances the petitioners are under obligation to refuse granting license to the appellant 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.
9. On behalf of the respondent it was submitted 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 produced earlier and that after amendment of the law the company applied for the license fulfilling the requirement of law but with mala fide intention the leave appellants refused to grant the license and the action is arbitrary and discriminatory inasmuch as some other business concerns in the country have been favored with license to manufacture and market similar products.
10. Leave was granted to consider the above submissions.
11. Heard Monsur Habib, learned additional Attorney General appearing for the appellants and Rafique-ul Huq, learned Counsel appearing for the respondents and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
12. It appears that the appellants admitted before the High Court Division about the issuance of license for manufacturing various alcoholic drinks and the High Court Division observed as under:-
14. In such view of the matter the High Court Division held that withholding of the license was not proper and legal and made the Rule absolute with direction
upon the respondent to grant the required license in favour of the writ petitioner under Section 11 of the Narcotics Control Act, 1990.
15. In view of the facts and circumstances of the case there is no ground to allow the appeal. However, the operative portion of the judgment of the High Court Division in respect of the direction to issue license needs modification and accordingly this appeal is dismissed with direction upon the appellant who were the respondent in the High Court Division and the direction is modified in the following terms:-
The respondent who are the appellants here are directed to consider and dispose of the application of the writ petitioner's praying for license under Section 11 of the Narcotics Control Act, 1990 in accordance with law in the light of the judgment delivered by the High Court Division in Writ Petition No. 6818 of 2004 affirmed here by this Court with above modification.