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PETITIONER: M/S.  INDIAN CHEMICAL & PHARMACEUTICAL WORKS

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT: 07/10/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR  713            1966 SCR  (2) 110

ACT: The   Andhra  Pradesh  (Telangana  Area)   Chloral   Hydrate (Chloral) Rules 1962-Validity of.

HEADNOTE: The  appellant  was  a  manufacturer  of  drugs,  (including chloral hydrate) in Hyderabad.  In 1962, the State of Andhra Pradesh issued the Andhra Pradesh (Telangana Area).  Chloral Hydrate   (Chloral)  Rules  with  respect  to   manufacture, possession,  sale  import, export and transport  of  chloral hydrate   under   the  Andhra   Pradesh   (Telangana   Area) Intoxicating  Drugs  Act of 1333 Fasli, as  amended  by  the Hyderabad  Opium and Intoxicating Drugs (Amendment)  Act  of 1953.   The Rules provided that the manufacture  of  chloral hydrate  shall  be in accordance with the  conditions  of  a licence granted by the Excise Commissioner on payment of the excise duty of Rs. 500 per annum.  The appellant refused  to take  licence and challenged the validity of the Rules by  a writ petition, but the High Court -dismissed the petition. In  appeal to this Court, the appellant contended  that  (i) the 1333 F Act had been repealed in toto by the introduction into  the  State of the Dangerous Drugs Act,  1930  and  the Drugs  Act 1940, and therefore., there was no power  in  the Hyderabad  legislature to amend the 1333-F Act by -the  1953 Act,  and in consequence; there was no law in force  on  the basis  of which the Rules could be promulgated in 1962;  and (ii)  even if the Act was not repealed, the Rules  were  not within the powers conferred by the 1333-F Act as amended  in 1953, as chloral hydrate was not a narcotic or narcotic drug within  the meaning of item 51, List II of the 7th  Schedule to the Constitution. HELD:     The 1333-F Act continued in existence in so far as it  dealt with collection of duties of excise on  substances covered by it and it -could therefore be amended by the 1953 Act. [117 F] The  1333-F  Act  was in the nature of  an  excise  Act  and provided for licences and collection of duties of excise and made  provisions  incidental  thereto.  It  applied  to  the intoxicating drugs mentioned therein and other  intoxicating

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drugs  which might be notified by the Government.   The  Act continued in force in Hyderabad after 26th January 1950.  In 1950, the Dangerous Drugs Act was applied by Parliament,  to Hyderabad, by Central Act 33 of 1950.  This Act however.  is not  an  Act imposing duties of excise.   Consequently.,  it could  not  affect that part of the 1333-F Act  which  dealt with  the  grant of licences, and collection  of  duties  of excise.   Further, as a result of s. 39(1) of the  Dangerous Drugs Act dealing ’With the saving of local and special laws and  entry  51 of List II, the introduction -of the  Act  in Hyderabad did not result in complete effacement of the 1333- F, Act.  It remained alive with respect to substances  which might  be  notified as intoxicating drugs under  the  1333-F Act.   If there was any such notification before 1950,  that notification  would be valid and the Act would apply to  it. If  there was no such notification, the Act would remain  on the  statute  book as a conditional statute  under  which  a notification could be issued., [114 G-H; 115 E-F; 116 A-C]                             111 The Drugs Act was extended to Hyderabad by Central Act 3  of 1951.   This Act is mainly concerned with the  standard  and quality  of  drugs manufactured and therefore  controls  the manufacture,  sale and distribution of drugs.  It  has  also nothing  to  do  with  duties  of  excise  and  with   their imposition on narcotics and narcotic drugs.  Therefore,  the fact  that this.  Act was introduced into Hyderabad in  1951 would  not  affect in any way that part of  the  1333-F  Act which  dealt with collection of excise duties  and  provided for  licences  in  that connection, as such  duties  can  be imposed only by the State legislature under item 51 of  List II.   Hence, the 1333-F Act in so far as it deals  with  the collection  of  duties  of excise on  any  drugs  which  are narcotics  or  narcotic  drugs would remain  alive  to  that extent. [116 D-G; 117 D-F] (ii) Narcotic  is a substance which in small doses  relieves pain  and  produces sleep and since it was admitted  by  the appellant that chloral hydrate is hypnotic and sedative,  it would  be a narcotic within the meaning of entry 51 of  List II.  The statement in the respondents’ affidavit that it did not  contain  narcotic or a narcotic drug was only  made  in reply to the appellants allegation that chloral hydrate  was a medicinal preparation.  All that was intended by the State by  using  those  words was that  chloral  hydrate  did  not contain  any  narcotic drug or narcotic is  defined  in  the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. Chloral  hydrate has also an intoxicating effect when  mixed with  liquor  and  so is an  intoxicating  drug  within  the meaning of the Amendment Act. [119 A-F] The 1333-F Act after the amendment of 1953 is also an excise Act  and defines intoxicating drugs to mean inter  alia  any intoxicating and narcotic substance which the Government may by notification declare to be an intoxicating drug. [118  A- B] Since  chloral  hydrate  is  an  intoxicating  and  narcotic substance it could be notified under the Amendment Act.   It would be liable to excise duty and therefore the Rules could be  framed  with respect to its control, and  the  appellant could be asked to take out a licence and pay excise duty  on the manufacture thereof. [118 D-F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 649 of 1964. Appeal  by special leave from the judgment and  order  dated

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March 30, 1963 of the Andhra Pradesh High Court in W.P.  No. 1061 of 1962. Arun B. Saharya and Sardar Bahadur, for the appellant. P.   Ram  Reddy and T. V. R. Tatachari, for  respondent  No. No. 1. The Judgment of the Court was delivered by Wanchoo,  J. This is an appeal by special leave against  the judgment  of the Andhra Pradesh High Court.   The  appellant manufactures   drugs  in  Hyderabad  and  among  the   drugs manufactured  by it is chloral hydrate.  In September  1962, the  State of Andhra Pradesh issued rules called the  Andhra Pradesh  (Telangana Area) Chloral Hydrate  (Chloral)  Rules, 1962 with respect to manufacture, possession, sale,  import, export and transport of chloral hyd- 12 rate (hereinafter referred to as the Rules).  We shall refer to the Rules in detail later; but in brief they provide that the manufacture of chloral hydrate shall take place only  in accordance  with the conditions of a licence granted by  the Excise  Commissioner and only on payment of excise  duty  of Rs. 5001- per annum. The Rules also provide for  possession, import,  export, sale and transport of chloral hydrate.   In consequence  of  the issue of the Rules, the  appellant  was called  upon  to take out a licence and  pay  the  necessary excise duty.  The appellant refused to do so and in November 1962  filed  a writ petition in the High  Court  challenging inter  alia the validity of the Rules.  It may be  mentioned that  the  Rules  were  issued  under  the  Andhra   Pradesh (Telangana  Area)  Intoxicating Drugs Act, No.  IV  of  1333 Fasli,  (hereinafter  referred  to as  the  1333-F  Act)  as amended  by  the  Hyderabad  Opium  and  Intoxicating  Drugs (Amendment) Act, No. XXII of 1953. The main contention of -the appellant in the High Court  was that  the  1333-F  Act  had been repealed  in  toto  on  the introduction of the Dangerous Drugs.  Act, No. 2 of 1930  by the  Opium and Revenue Laws (Extension of application)  Act, No. 33 of 1950, and of the Drugs Act, No. 23 of 1940 by  the Part  B  States (Laws) Act, No. III of 1951,  and  therefore there was no power in the Hyderabad legislature to amend  it by Act 22 of 1953.  In consequence there was no law in force on  the  basis of which the Rules could  be  promulgated  in 1962.   Secondly, it was contended that even if  the  1333-F Act did not stand repealed as above, the Rules framed by the State  of  Andhra Pradesh in 1962 with  respect  to  chloral hydrate  were not within the powers conferred by the  1333-F Act  as  amended  in  1953, as chloral  hydrate  was  not  a narcotic or narcotic drug and was not covered by item 51  of List II of the Seventh Schedule to the Constitution. The petition was opposed on behalf of the State, and it con- tended  that  there was no repeal of the 1333-F Act  by  the introduction  of the Dangerous Drugs Act 1930 and the  Drugs Act, 1940, and consequently the amendment of the 1333-F  Act by the Hyderabad Act No. 22 of 1953 was good, and the 1333-F Act  as  amended was in force in 1962 when  the  Rules  were framed.  It was further contended that the Rules were  intra vires  the 1333-F Act as amended in 1953 as chloral  hydrate was a narcotic and an intoxicating drug. The High Court repelled the contentions raised on behalf  of the   appellant  and  dismissed  the  writ  petition.    The appellant then applied for a certificate for leave to appeal to this Court, which was                             113 refused.   It then obtained special leave from  this  Court; and that is how the matter has come before us. Before we consider the points raised in the High Court which

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have also been raised before us, we should like to refer  to certain  provisions  in the three legislative Lists  in  the Seventh  Schedule to the Constitution dealing  with  various aspects  that  arise  in  this case.   The  first  of  these provisions   is   item  59,  List  I,   which   deals   with "cultivation,  manufacture, and sale for export, of  opium". Then  there  are. two items in List 11, item 8  which  deals with "intoxicating liquors, that is to say, the  production, manufacture, possession, transport and sale of -intoxicating liquors"  and item 51 which deals with "duties of excise  on the   following  goods  manufactured  or  produced  in   the State......  :-(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".  Lastly reference may  be made  to  item 19 of List III, which deals with  "drugs  and poisons,  subject  to the provisions of entry 59 of  List  I with respect to opium". It  will  be  seen from a perusal of these  entries  that  a substance may fall in a number of them.  For example,  opium falls under item 59 of List I for certain purposes mentioned therein but also falls in item 51 of List II for the purpose of  duties of excise thereon and for such control as may  be required for the purpose of collecting the duties of excise. Thus for the purpose of cultivation and manufacture opium is exclusively a Union subject but for the purpose of duties of excise  it  is  an exclusive State  subject.   Take  another substance  like chloral hydrate with which we are  concerned in  the  present  appeal.   It is  undoubtedly  a  drug  and therefore  falls under item 19 of List Ill.  Drugs being  in the  Concurrent  List  both the Union  and  the  States  can legislate  thereon.  There are two Central Acts which  deals with  drugs,  namely, the Dangerous Drugs Act 1930  and  the Drugs  Act,  1940.   Now  a substance  may  fall  under  the Dangerous Drugs Act if it is so defined there.  It may  also fall  under  the Drugs Act and may be subject  to  its  pro- visions  if  so indicated therein.  But at the same  time  a substance  which  is a drug may also fall under item  51  of List  11  if it is a narcotic or is a narcotic  drug.   Even intoxicating liquor which falls under entry 8 of List II  as well as under entry 51 of List II may fall under entry 19 of List  III  if it is a drug.  This will show that even  if  a substance  is  governed by the Dangerous Drugs Act  and  the Drugs  Act it may well be liable to duties of  excise  under entry 114 51 of List II and of such control as is incidental  thereto. It is in this background that we have to consider the points raised on behalf of the appellant. We  now  come  to the first point raised on  behalf  of  the appellant,  namely,  whether  the 1333-F  Act  survived  the introduction of the Dangerous Drugs Act and the Drugs Act in the  State  of Hyderabad.  The 1333-F Act was  in  force  in Hyderabad State as it was before the Constitution from 1924. At  that time the, State of Hyderabad was a sovereign  State and  had full power to deal with all subjects now  contained in  Lists  1,  II and III of the  Seventh  Schedule  to  the Constitution  subject of course to British  paramountly  and effect  thereof on the sovereignty of the  Hyderabad  State. The  1333-F  Act dealt with opium  and  intoxicating  drugs. Intoxicating  drugs  were  defined in this  Act  as  meaning "ganja, bhang, charas, cocaine and all such things which are prepared  therefrom and will also include such  intoxicating substances   which   the   Government   may,   by    gazette

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notification, include in it, (S. 2)".  This definition shows that   besides  the  four  substances   mentioned   therein, intoxicating  drugs  could  include other  substances  if  a notification  was issued by the Government in  that  behalf. We do not know as a fact whether any notification was issued after 1924 and before the Constitution came into force under this  provision.  But in any case the - 1333-F  Act  applied not  only to the four substances mentioned therein but  also to  others which might be notified.  The 1333-F Act  further provided  that "save as authorised under this Act  or  rules thereunder, no person shall possess sell, manufacture, opium or  intoxicating  drug, (s’ 4)".  The  Government  was  also given  the power to make rules regarding administration  and supervision,  grant of licences and collection of duties  of excise,   (s.  5)".   The  1333-F  Act  also  provided   for punishment  for the contravention of the Act and  the  Rules and for confiscation under certain circumstances, (ss. 7  to 11). It gave powers to excise officers for search of  houses and  arrest of accused persons, (S. 16).  It  also  provided for  other  powers for such officers, (S. 17).   There  were other  provisions  therein  to which it  is  unnecessary  to refer.   It  will" be seen from this brief analysis  of  the 1333-F  Act that it was in the nature of an excise  Act  and provided for licences and collection of duties of excise and made  provisions incidental thereto.  We have  already  said that  this  Act  applied  not only to  opium  and  ’he  four intoxicating  drugs  mentioned  therein but  also  to  other substances which might be notified thereunder.  It continued in  force  in  the  Part B  State  of  Hyderabad  after  the Constitution came into force in January 1950. 115 In 1950, Parliament applied the Opium Act (No. 13 of  1857), the Opium Act (t of 1878) and the Dangerous Drugs Act (No. 2 of 1930) to the Part B State of Hyderabad by Central Act  33 of 1950.  Section 4 of this Act inter alia provided that  if immediately before the commencement of this Act there was in force in any Part B State, other than Jammu and Kashmir, any law corresponding to any of the Acts specified therein, that law would upon the commencement of this Act, stand repealed. The   Dangerous  Drugs  Act  -deals  with  coca-leaf,   coca derivative,  hemp  including bhang, siddhi,  ganja,  charas, medicinal  hemp, opium and opium derivative.  It  also  gave power  to  Central Government to notify any  other  narcotic substance    as   a   manufactured   drug   under    certain circumstances.   The Dangerous Drugs Act thus  deals,  among others,  with  coca-leaf, hemp, opium and  all  manufactured drugs  therefrom, though there is power in the Central  Gov- ernment  to  notify  other  substances.   The  Act   further provides  for  prohibition  and  control  of  these   drugs. Further  S. 39(1) lays down that "nothing in this Act or  in the  rules made thereunder shall affect the validity of  any Provincial  Act or an Act of any State Legislature  for  the time  being in force, or of any rule made thereunder,  which imposes any restriction not imposed by or under this Act, or imposes a restriction greater in degree than a corresponding restriction imposed by or under this Act, on the consumption of or traffic in any dangerous drug within India".  It  will be   seen  that  the  Dangerous  Drugs  Act   provides   for prohibition  or  control,  creates  offences,  provides  for penalties and lays down procedure in that behalf.  It is not an Act imposing duties of excise.  Therefore, when this  Act deals with hemp, which includes ganja, bhang and charas,  it does  not deal with that aspect of hemp which  is  concerned with the imposition and collection of duties of excise on it and  with  incidental provisions in that  behalf.   We  have

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already  said  that  a substance can  come  both  under  the Dangerous  Drugs Act as well as under the Drugs Act and  may also be liable to duties of excise under entry 51 of List II of the Seventh Schedule.  The fact that hemp is defined as a dangerous drug under this Act would not therefore in any way affect any law dealing with the imposition and collection of duties  of excise on hemp.  Consequently when the  Dangerous Drugs Act was introduced in the Part B State of Hyderabad in 1950, it could not affect that part of the 1333-F Act  which dealt  with ganja, bhang and charas, as  intoxicating  drugs and provided for grant of licences and collection of  duties of excise thereon.  Similarly, with the introduction of  the Dangerous  Drugs Act, the operation of the 1333-F Act  could not  be affected with respect even to opium insofar as  that Act dealt with grant of licence and 116 collection of duties of excise thereon, though insofar as it dealt  with manufacture of opium which comes under entry  59 of List 1, there was a repeal of the provisions relating  to manufacture  contained in the 1333-F Act and the Rules.   We are  therefore  of  opinion that  the  introduction  of  the Dangerous Drugs Act in the Part B State of Hyderabad in 1950 did  not result in complete effacement of the,  1333-F  Act. It  remained alive even so far as opium, charas,  bhang  and ganja were concerned for the purpose of collection of duties of  excise thereon.  It also remained alive with respect  to other  substances  which might be notified  as  intoxicating drugs under the 1333-F Act.  If there was any such notifica- tion  between 1924 and 1950 that notification  would  remain valid  and the 1333-F Act would apply’ to it.  If there  was no  such  notification, the 1333-F Act would remain  on  the statute  book  as  a  conditional  statute  under  which   a notification  in respect of any substance could  be  issued. The  argument that the introduction of the  Dangerous  Drugs Act  in 1950 completely repealed the 1333F Act has no  force and must fail. Then we come to the Drugs Act of 1940 which was extended  to the  Part  B State of Hyderabad by the Central  Act  III  of 1951.    Section  6  of  the  1951-Act  provides  that   "if immediately  before the appointed day, there is in force  in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall,  save as   otherwise  expressly  provided  in  this   Act,   stand repealed".   It is not in dispute that chloral  hydrate  was controlled  under the Drugs Act, and the argument on  behalf of  the  appellant is that on the coming into force  of  the Drugs  Act,  -the  1333-F  Act  so  far  as  it  applied  to intoxicating drugs which could be notified thereunder,  must be  deemed  to have been repealed.  We are of  opinion  that there is no force in this argument either.  The Drugs Act is mainly   concerned  with  standard  and  quality  of   drugs manufactured  in  this country and  therefore  controls  the manufacture, sale and distribution of drugs.  It has nothing to  do  with duties of excise and with their  imposition  on ’narcotics  and narcotic drugs.  We have  already  indicated that narcotics and %,narcotic drugs are to be found in entry 51  of List II, which provides -for imposition of duties  of excise on such drugs.  If a substance is a narcotic drug, it is  liable to be controlled under the Drugs Act as  a  drug. But at the same time it is liable to duties of excise  under entry 51 of List 11, and such duties can be imposed only  by the  State legislature.  Further the State legislature  will have power to enact necessary provisions for the  imposition and  collection of duties of excise and for  all  incidental matters which might be neces-

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                           117 sary for such imposition and collection.  The fact that  the Drugs Act was introduced in the Part B State of Hyderabad in 1951 would not therefore affect in any way that part of  the 1333-F  Act which dealt with collection of duties of  excise and  provided for licences in that connection.  As  we  have said  before,  the 1333-F Act is more in the  nature  of  an excise  Act while the Drugs Act has nothing to do  with  the collection  of duties of excise.  Further s. 2 of the  Drugs Act  specifically provides that "the provisions of this  Act shall be in addition to, and not in derogation of, the  Dan- gerous Drugs Act, 1930, and any other law for the time being in force." Therefore even if s. 6 of the Central Act III  of 1951 cad be said to have repealed any provision of the 1333- F Act which is concerned with matters other than  collection of  duties  of excise thereunder, that will not  affect  the later amendment made in the 1333-F Act by the Hyderabad  Act No.  22  of  1953, for that amendment  will  be  treated  in addition  to the provisions of the Drugs Act so long as  the 1333-F Act was not completely dead before the Hyderabad  Act No.  22  of  1953 was passed.  We  have  already  said  when dealing  with the Dangerous Drugs Act that the  introduction of  that Act could not be said to have  completely  repealed the  1333F Act which dealt with matters not covered  by  the Dangerous Drugs Act at all, (namely, collection of duties of excise  and  matters incidental thereto).  The same  in  our opinion  applies to the Drugs Act which did not deal at  all with the collection of duties of excise on drugs covered  by it.   Therefore the 1333-F Act insofar as it deals with  the collection  of  duties  of excise on  any  drugs  which  are narcotics  or  narcotic  drugs would remain  alive  to  that extent.  There can be no doubt therefore that the 1333-F Act continued in existence so far as it dealt with collection of duties  of excise on substances covered by it and  it  could therefore be amended by Hyderabad Act No. 22 of 1953. This  brings  us to the second point raised in  the  present appeal,  namely,  that even if the 1333-F Act had  not  been completely  repealed  by the introduction of  the  Dangerous Drugs Act and the Drugs Act and could be properly amended by the  Hyderabad  Act of 1953, the Rules were not  within  the power  conferred  by the Act.  For that purpose we  have  to look  at the 1333-F Act as it stands after the amendment  of 1953.  The amended Act defines "intoxicating drugs" to  mean (i)  Indian hemp including all forms known as bhang,  sendhi or ganja, (ii) charas, (iii) any mixture of the above or any drink  prepared therefrom, and (iv) any  other  intoxicating and   narcotic  substance  which  the  Government   may   by notification  declare  to  be  an  intoxicating  drug,  such substance not being opium, 118 coca  leaf or a manufactured drug as defined in S. 2 of  the Dangerous  Drugs  Act.  The amended Act is also  clearly  an excise  Act  as  will  be  clear  from  the  definition   of "intoxicating drugs revenue" in S. 2(2) which means  revenue from  any duty, fee, tax, fine or confiscation  imposed,  or ordered under the provisions of this Act.  It was  therefore open to the State Government to declare by notification  any substance as an intoxicating drug within the meaning of  the Act provided it was an intoxicating and narcotic  substance, If such a declaration is made, the substance will be  liable to  excise duty under the amended Act and the  Rules  framed thereunder and will be liable to such incidental control  as may  be  necessary for the collection of  duties.   Further, drugs  being in the Concurrent List, the provisions  of  the 1953 amendment Act will also be a law under item 19 of  List

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III  and  will be in addition to the Drugs Act  of  1940  by virtue  of  S.  2 thereof.  Now,  it  appears  that  chloral hydrate  has  been  notified by  the  Government  of  Andhra Pradesh  as an intoxicating drug within the meaning  of  the amended Act.  It was thereafter that the Rules were  framed. The  Rules  provide for the manufacture of  chloral  hydrate under  a licence and for payment of duties of excise of  Rs. 500  per  year on such manufacture.  They also  provide  for possession, sale, import, export and transport.  If  chloral hydrate is a narcotic drug or a narcotic within the  meaning of  entry  51 of List II of the Seventh Schedule and  is  an intoxicating drug and narcotic substance within the  meaning of  s.  2(1) (iv) of the Amended Act, it could  be  notified under  the amended Act and on such notification it would  be liable to excise duty and to such incidental control as  may be  necessary for the purpose of collection of excise  duty. We  are in the present case mainly concerned with the  grant of  licence  and imposition of excise duty  of  Rs.  5001per annum.   If chloral hydrate is an intoxicating and  narcotic substance,  the  Rules could be framed with respect  to  its control  and  the  appellant could be asked to  take  out  a licence and pay excise duty on the manufacture thereof, even though  chloral  hydrate may be a drug which  is  controlled under the Drugs Act. The case of the State Government in this connection is  that chloral hydrate is a narcotic drug or a narcotic within  the meaning of entry 51 of List II of the Seventh Schedule.  Its further case is that it increases intoxication if mixed with liquor and that it is being produced in large -quantities in order that it may be mixed with liquor.  That is the  reason why the State has framed the Rules to control the production of  chloral  hydrate.  The appellant in  its  writ  petition admitted  that chloral hydrate was used in small doses as  a hypnotic and sedative.  Now the dictionary meaning of 119 the  word  "narcotic" is a substance  which  relieves  pain, produces  sleep, and in large doses brings on stupor,  coma, and even death, as opium, hemlock, alcohol etc.   Obviously, therefore,  if chloral hydrate is hypnotic and  sedative  as admitted  by  the appellant, it would be  a  narcotic.   The appellant  however relies on the statement in the  affidavit filed on behalf of the State to show that chloral hydrate is not  a  narcotic or a narcotic drug within  the  meaning  of entry  5  1  of List II, for if it is not a  narcotic  or  a narcotic  drug within that meaning no duty of excise can  be imposed  by the State legislature thereon.  The part of  the affidavit  on  behalf  of  the  State  relied  upon  by  the appellant  was  dealing  with  a  vague  allegation  of  the appellant that chloral hydrate was a medicinal  preparation. In  that connection it was submitted on behalf of the  State that   chloral  hydrate  was  not  a  medicinal  or   toilet preparation  coming within the definition of  the  Medicinal and.   Toilet Preparations (Excise Duties) Act, 16  of  1955 "as  this  substance  in a finished form  does  not  contain either alcohol, opium, Indian hemp or other narcotic drug or narcotics".   These last words were taken from the  schedule to the Act of 1955 which mentions any medicinal  preparation not containing alcohol but containing opium, Indian hemp  or other  narcotic drug or narcotic.  In the 1955-Act  narcotic drug  or  narcotic has been defined as meaning  a  substance (other than alcohol) which when swallowed or inhaled by,  or injected  into,  a human being  induces  drowsiness,  sleep, stupefaction  or insensibility in the human being and  which is  a  dangerous drug within the meaning  of  the  Dangerous Drugs Act, 1930.  Obviously, therefore, the words " narcotic

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drug"  and  "narcotic" used in the 1955-Act have  a  special meaning  and  this  was all that was intended  when  in  the affidavit filed by the State these words were used.  But all narcotics or narcotic drugs are not covered by the Dangerous Drugs  Act  and there, can be narcotics and  narcotic  drugs which are not covered by the Dangerous Drugs Act.  There can be  no other conclusion on the evidence in the present  case than  that chloral hydrate is a narcotic or a narcotic  drug within  the  meaning of entry 51 of List 11 of  the  Seventh Schedule.   It also has intoxicating effect when mixed  with liquor and so is an intoxicating drug within the meaning  of the amended Act. The  appellant  also  relies on  the  Medicinal  and  Toilet Preparations  (Excise Duties) Act, No. 16 of 1955,  in  this Court.   It  is true that the appellant stated in  its  writ petition  that it was holding a licence under the  1955-Act; but there was no clear averment in the petition that chloral hydrate  was being manufactured as a  medicinal  preparation under  the  1955-Act.  The licence which has  been  produced shows that chloral hydrate is being manufactured under the 120 Drugs  Act  and the rules framed  thereunder.   Further  the judgment of the High Court shows that no argument was raised before it to the effect that choral hydrate was a  medicinal preparation under the 1955-Act.  In the circumstances we are not prepared to allow the appellant to raise this point  for the first time before us, even though there was some kind of denial  on  this  point  by  the  State  Government  in  its affidavit to which we have already referred. In the result the appeal fails and is hereby dismissed  with costs. Appeal dismissed. 121