Patna High Court on Thursday called the state government ban on use of alcohol and rectified spirit to make homoeopathic and ayurvedic drugs, and use in industries, "illegal" and stayed the order.

When the Nitish Kumar government was enforcing the ban on country liquor, it also put strong curbs on sale of homoeopathic drugs in the state, ordering against its sale in bottles over 100ml in size. It also banned the use of alcohol for manufacture of drugs.

Bihar Rajya Homoeopathic Sangh, led by Doud Ali (a former JDU MLA who was denied a ticket in last year's Assembly polls), pleaded with the chief minister to exempt homoeopathic drugs. The Sangh said 12,000 people in the state traded in homoeopathic drugs, which had a turnover of around Rs 400 crore. Besides, the state has 13 homoeopathic drug units. But Nitish had turned down the request.

"The government has the power to take action against people misusing alcohol meant for medicinal use," said Doud Ali, who welcomed the court decision. He said the earlier restriction had badly hit homoeopathic drug trade and industry, prompting a few units to shift out of Bihar.

The bench also directed the state government to renew the licence of homoeopathic and ayurveda drug manufacturers, pending since March 31. A division bench of Chief Justice Iqbal Ahmed Ansari and Justice Samarendra Pratap Singh passed Thursday's order while hearing petitions filed by Samrat Chemical Industries and Shree Baidyanath Ayurveda Bhawan Private Limited.

The court held that the state government has no power to ban the use of alcohol for medicinal purpose, as it falls under the Concurrent List and Parliament had already made laws in this regard.

The court further held that the issue raised in this petition falls under the Concurrent List and though both the central and the state governments can make laws under the Concurrent List, as Parliament has already made a law in this regard, the state had no jurisdiction over it.

Harsh Singh, the petitioner's counsel, said The Drugs and Cosmetics Act, 1940, enacted by Parliament, mentions alcohol use for ayurvedic and unani medicines. The said Act was amended to include ayurvedic and unani drugs in 1964. The Act clearly states: "Ayurvedic, Siddha or Unani drug which includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in the authoritative books are allowed."

Thursday's court order came as a jolt for the state government, as the chief minister had earlier told Bihar homoeopaths, ayurveda and unani practitioners, who routinely use minute quantities of alcohol, to do without it.

Nitish had told representatives of Bihar State Homoeopathic Association, who had sought relief for the homoeopathic sector: "I have no sympathy for an estimated Rs 2 crore loss for homoeopathic drugs when the state government is going to sustain a whopping Rs 4,000 crore revenue loss because of the liquor ban."

The petitioner had moved high court, alleging that the ban on medicinal use for alcohol was affecting the quality of the medicine, which involves use of alcohol and spirit. They had also stated that the ban was damaging the homoeopathy, ayurveda and unani image and the action will hit poor people the most, as these alternative medicine streams can not only cure chronic and incurable diseases but improve resistance against viral and chronic diseases.

The court also held that nobody can be deprived of treatment on the mere suspicion that provision of alcohol in alternate medicine can be misused. The bench referred to some apex court orders. The court had ruled that the "misuse ground cannot be a pre-condition to ban alcohol use for medicinal purpose", counsel Harsh said, before adding: "Even the Bombay High Court had passed a similar order after prohibition was first introduced there in 1949."

The court also referred to an order in which the apex court ruled that state governments cannot ban the use of alcohol for medicine purpose simply on the ground that it is "intoxicating".

The apex court had ruled that only alcoholic beverages such as wine and beer, which are consumed directly, can be termed as "intoxicants".