PETITIONER:
THE STATE OF BOMBAY AND ANOTHER
Vs.
RESPONDENT:
F.N. BALSARA
DATE OF JUDGMENT:
25/05/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
1951 AIR 318 1951 SCR 682
CITATOR INFO :
F 1952 SC 75 (21,54,70)
RF 1952 SC 123 (45)
F 1953 SC 156 (49)
F 1953 SC 333 (13)
R 1955 SC 58 (6)
E 1955 SC 123 (6,7,9,17,20,21,22,23,24,25,27
R 1955 SC 191 (5)
F 1957 SC 503 (15,16)
F 1957 SC 628 (12,14,19,20,21)
R 1957 SC 877 (16)
D 1957 SC 927 (9)
R 1958 SC 328 (22)
R 1958 SC 468 (44A)
E 1958 SC 538 (11,12,17)
F 1958 SC 560 (20)
RF 1958 SC 578 (211)
R 1959 SC 648 (21)
R 1960 SC 554 (9)
RF 1963 SC 703 (37,43)
D 1963 SC1470 (7)
R 1963 SC1531 (4,5)
RF 1964 SC 648 (48)
R 1966 SC 722 (7)
RF 1967 SC1110 (16)
F 1968 SC 888 (6)
RF 1970 SC 564 (53)
RF 1972 SC 425 (10)
RF 1973 SC1461 (456,616,742,1212,1218)
R 1974 SC 543 (30,32)
RF 1975 SC 360 (19,24)
F 1975 SC1121 (44,53)
R 1977 SC 722 (29)
E 1978 SC 449 (29)
F 1978 SC 771 (13,44)
RF 1980 SC 614 (10,11,12,15,16)
RF 1980 SC1789 (121)
RF 1981 SC 873 (33)
RF 1981 SC1863 (15,17)
R 1983 SC1019 (52)
RF 1986 SC 987 (2)
RF 1986 SC1541 (9)
RF 1988 SC 771 (5)
E 1990 SC1927 (27,28,29,41,56,67,73,75,76)
RF 1990 SC2072 (48)
RF 1991 SC 672 (33)
RF 1992 SC1277 (85)
ACT:
Bombay Prohibition Act (XXV of 1949)--Constitutional
validity --Applicability of Act to foreign liquors--To
medicinal and toilet preparations containing alcohol--Valid-
ity of ss. 2(24) (a), 12, 13, 23, 24, 39, 40(1) (b), 46, 52,
53, 139 (c)--Law of Province prohibiting possession and sale
of foreign liquor within Province--Whether encroaches on
power of Dominion to make laws as to "import and
export"--Doctrine of original package--Applicability to
India--Construction of Lists--Restriction on fundamental
right "to acquire, hold and dispose of property" and to
"equal protection of the laws" --Government of India Act,
1935, s. 297 (4), Seventh Sched., List I entry 19 --List II
entry 31--Constitution of India, Arts. 14, 19(1), 19 (2).
HEADNOTE:
Under entry 31 of List II of the Seventh Schedule to
the Government of India Act, 1935, the Provincial Legisla-
tures had the power to make laws in respect of "intoxicating
liquors, that is to say, the production, manufacture, pos-
session, transport, purchase and sale of intoxicating liq-
uors" and under entry 19 of List I, the Dominion Legislature
had the power to make laws with respect to "import and
export across customs frontiers". The constitutional validi-
ty of the Bombay Prohibition Act, 1949, in so far as it
restricted the possession and sale of foreign liquors was
impugned on the ground that it was an encroachment on the
field assigned to the Dominion Legislature under entry 19 of
List I:
Held, (i) that the words "possession and sale" occurring
in entry 31 of List II must be read without any qualifica-
tion, and the word "import" in entry 19 of List 1 standing
by itself will not include either sale or possession of the
article imported into the country. There was thus no con-
flict between entry 31 of List i1 and entry 19 of List I and
the Bombay Prohibition Act, in so far as it purported to
restrict the possession and sale of foreign liquors, did not
encroach upon the field of the Dominion Legislature; (ii)
even assuming that the prohibition of purchase, use,
683
possession, transport and sale of liquor will affect its
import, the Bombay Prohibition Act was in pith and substance
an Act falling within entry 31 of List II and the fact that
the law incidentally encroached upon the powers of the
Dominion Legislature under entry 19 of List I would not
affect its validity.
The American doctrine of "original package" which laid
down that importation was not over so long as the goods were
still in the original package, has no application in India
having regard to the scheme of legislation that has been
outlined in the Government of India Act, 1935, and in the
present Constitution in which the various entries in the
Legislative Lists have been expressed in clear and precise
language.
Bhola Prasad v. The King Emperor [1942] F.C.R 17 and
Miss Kishori Shetty v. The King [1949] F.C.R. 650 relied on.
In re the Central Provinces and Berar Act No. XIV of 1938
[1939] F.C.R. 18, The United Provinces v. Atiqa Begum [1940]
F.C.R. 110, Governor. General in Council v. Province
o/Madras [1945] F.C.R. 179, Prafulla Kumar Mukherjea and
Others v. Bank of Commerce, Khulna [1947] F.C.R. 28, Subrah-
manyan Chettiar v. Muthuswami Goundan [1948] F.C.R. 207
referred to: Brown v. Maryland (25 U.S. 419) and Leisy v.
Hardin (135 U.S. 100)distinguished.
The Bombay Prohibition Act, 1949, does not in any way
contravene the provisions of s. 297(1) (a) of the Government
of India Act. 1935, inasmuch as it is not a law made by
virtue of the entry relating to "trade and commerce within
the Province" (entry 2 of List II) or the entry relating to
"the production, supply and distribution of commodities"
(entry 29 of List If). Bhola Prasad v. King Emperor [1942]
F.C.R. 17 followed.
The word "liquor" as understood India at the time of the
Government of India Act, 1935, covered not only those
alcoholic liquids which are generally used as beverages and
produce intoxication, but also all liquids containing
alcohol; the definition of" liquor" contained in s. 2 (24)
of the Bombay Prohibition Act, 1949, is not therefore ultra
vires.
Section 39 of the Act which empowers the Provincial Govern-
ment to permit the use or consumption of foreign liquor on
cargo boats, warships and troopships and in military and
naval messes and canteens does not contravene Art. 14 of the
Constitution (which provides that the State shall not deny
to any person equality before the law or the equal protec-
tion of the laws) inasmuch as the relaxation of the general
law in respect of the persons contemplated by the section is
not arbitrary or capricious but is based on a reasonable
classification.
Rule 67 of the Bombay Foreign Liquor Rules which autho-
rises the granting of a permit to "any foreigner on a tour
of lndia who enters the State of Bombay and desires to
possess, use and consume foreign liquor" is not void on the
ground of discrimination, firstly because, though it pro-
vides for the case of a foreign
684
visitor, there is no prohibition against any other outsider
being granted a permit, and secondly, because the policy
underlying the rule is quite consistent with the policy
underlying s. 40 of the Act which enables permits to be
granted to foreigners under certain conditions.
Sections 52, 53 and 139 (c) of the Act do not constitute
delegation of legislative power, and delegation of the
character which these sections involve cannot in any view be
held to be invalid
In re Delhi Laws Act, 1912 etc.(1) relied on.
The restrictions imposed by ss. 12 and 13 of the Act on
the possession, sale, use and consumption of liquor are not
reasonable restrictions on the fundamental right guaranteed
by Art. 19 (1) (1) of the Constitution "to acquire, hold and
dispose of property", so far as medicinal and toilet prepa-
rations containing alcohol are concerned and the said sec-
tions are invalid so far as they prohibit the possession,
sale, use and consumption of these articles, but the
sections are not wholly void on this ground as the earlier
categories mentioned in the definition of liquor, namely,
spirits of wine, methylated spirit, wine, beer and toddy are
distinctly separable items which are easily severable. from
the last category, namely, all liquors containing alcohol,
and the restrictions on the possession, sale, use and con-
sumption of these earlier categories are not unreasonable
restrictions.
Romesh Thappar v. The State of Madras [1950] S.C.R. 594
and Chintaman Rao v. The State of Madhya Pradesh [1950]
S.C.R. 759 distinguished.
Sections 23 (a) and 24 (1) (a) of the Act in so far as
they refer to "commending "any intoxicant, conflict with the
fundamental right of freedom of speech and expression gua-
ranteed by Art. 19 (1) (a) of the Constitution and none of
the conditions mentioned in cl. (2) of Art. 19 applies to
the case and therefore these provisions are void. Section
23 (b) is also void, because the words "incite" and "encour-
age" are wide enough to include incitement and encouragement
by words and speeches and also by acts and the words used in
the section are so wide and vague that the clause must be
held to be void in its entirety.
There is nothing unreasonable in a law relating to
prohibition discriminating between Indian citizens against
whom it is primarily to be enforced and foreigners who have
no intention of permanently residing in India. A provision
enabling a certain class of persons holding permits to offer
drink to persons holding similar permits is also not unrea-
sonable. Notifications No. 10484/45C and 2843/49 (a) are
not therefore invalid.
The requirement that an applicant for a permit on the
ground of health under s. 40 (1) (b) must get a medical
certificate declaring that he is an "addict" is not warrant-
ed by the provisions of
(1) Reported infra.
685
the Act. The word "addict" in the form of the medical
certificate should therefore be replaced by the words used
in s. 40 (1) (b) of the Act or words corresponding to them.
The provisions of the Act which have been held to be
invalid are not so inextricably bound up with the remaining
provisions of the Act as to render the whole Act void.
[The decision of the High Court that ss. 136 (1), 136
(2) (b), 136 (2) (c), 136 (2) (e) and 136 (21 (f) were void
inasmuch as they offended against Art. 19 of the Constitu-
tion was not assailed before the Supreme Court.]
JUDGMENT:
CIVIL APPELLATE JURISDICTION. Appeal under Article 132
(1) of the Constitution of India from the Judgment and Order
dated the 22nd August, 1950, of the High Court of Judicature
at Bombay in Miscellaneous Application No. 139 of 1950.
M.C. Setalvad and C.K. Daphtary (M. M. Desai and H.M.
Seervai with them) for the appellants in Case No. 182 and
respondents in Case No. 183.
N.P. Engineer (G. N. Joshi, R.J. Kolah and N.A. Palki-
wala, with him) for the respondent in Case No. 182 and
appellant in Case No. 183.
1951. May 25. The Judgment of the Court was delivered by
FAZL ALI J.–These appeals arise from the judgment and
order of the High Court of Judicature at Bombay upon the
application of one F.N. Balsara (hereinafter referred to as
the petitioner), assailing the validity of certain specific
provisions of the Bombay Prohibition Act, 1949 (Bombay Act
No. XXV of 1949), as well as of the Act as whole. The
petitioner, claiming to be an Indian citizen, prayed to the
High Court inter alia for a writ of mandamus against the
State of Bombay and the Prohibition Commissioner ordering
them to forbear from enforcing against him’ the provisions
of the Prohibition Act and for the issue of a writ of manda-
mus ordering them (1) to allow him to exercise his right to
possess, consume and use certain articles, namely, whisky,
brandy, wine, beer, medicated wine, eau-de-cologne, etc.,
and to import and export across the Customs frontier and
to
686
purchase, possess, consume and use any stock of foreign
liquor, eau-de-cologne, lavender water, medicated wines and
medicinal preparations containing alcohol, and (2) to for-
bear from interfering with his right to possess these arti-
cles and to take no steps or proceedings against him, penal
or otherwise, under the Act. The petitioner also prayed for
a similar order under section 45 of the Specific Relief Act
against the respondents. The High Court, agreeing with some
of the petitioner’s contentions and disagreeing with others,
declared some of the provisions of the Act to be invalid and
the rest to be valid. Both the State of Bombay and the
petitioner, being dissatisfied with the judgment of the High
Court, have appealed to this Court after obtaining a certif-
icate from the High Court under article 132(1) of the Con-
stitution.
The Act in question was passed by the Legislature of the
Province of Bombay as it was constituted in 1949, and was
published in the Bombay Government Gazette on the 20th May,
1949, and came into force on the 16th June, 1949. The Act
consists of 148 sections with 2 schedules and is divided
into 11 chapters. It is both an amending and consolidating
Act and incorporates the provisions of the Bombay Abkari Act
which it repeals and also those of the Bombay Opium and
Molasses Acts and contains new provisions for putting into
force the policy of prohibition ‘which is one of the objects
mentioned in the preamble of the Act. The most important
provision in Chapter I is the definition of “liquor” which
has been vigorously assailed as being too wide and therefore
beyond the powers of the Provincial Legislature. Chapter
II relates to establishment and is not relevant to the
present appeal. Chapter III, which contains a number of
prohibitions in regard to liquor as defined in the Act, is
said to enact sweeping provisions which are liable to be
assailed. Sections 12 and 13 and the relevant provisions of
sections 23 and 24 in this chapter may be quoted:’-
12. No person shall(a) manufacture liquor;
687
(b) construct or work any distillery or brewery, (c) import,
export, transport or possess liquor; or
(d) sell or buy liquor. 13. No person shall –
(a) bottle any liquor for sale; (b) consume or use liquor;
or
(c) use, keep or have in his possession any materials,
still, utensils, implements or apparatus whatsoever for the
manufacture of any liquor.
23. No person shall-
(a) commend, solicit the use of, offer any intoxicant or
hemp, or
(b) incite or encourage any member of the public or any
class of individuals or the public generally to commit any
act which frustrates or defeats the provisions of this Act,
or any rule, regulation or order made thereunder,
or ………….
24(1). No person shall print or publish in any news-
paper, news-sheet, book, leaflet, booklet or any other
single or periodical publication or otherwise display or
distribute any advertisement or other matter-
(a) which commends, solicits the use of, or offers any
intoxicant or hemp,
(b) which is calculated to encourage or incite any
individuals or the public generally to commit an offence
under this Act, or to commit a breach of or to evade the
provisions of any rule, regulation or order made thereunder
or the conditions of any licence, permit, pass or authorisa-
tion granted thereunder.
Chapter IV relates to “control, regulation and exemp-
tions “, and contains inter alia sections 30 to 38 and
section 44 which provide for cases in which licenses for the
manufacture, export, import, transport, sale or possession
of liquor may be granted; section 39, which authorises the
Government to permit the use or consumption of foreign
liquor on cargo boats, warships, troopships and in military
and naval messes and canteens; section 40, which provides
for the grant of
688
permits for the use or consumption of foreign liquor to
persons whose health would be seriously and permanently
affected if they were not permitted to use or consume such
liquor and to foreigners who do not intend to stay perma-
nently in India; section 41, which enables special permits
to be granted to diplomats and foreign sovereigns; section
45, which authorises use of liquor for sacramental purposes;
section 52, which empowers an authorized officer to grant
licenses, permits, etc., in cases not specifically provided
for; section 53, which deals with the form in which and the
conditions under which licenses, etc., may be granted; and
section 54 which provides for the cancellation or suspension
of licenses and permits. The other material chapters of the
Act are Chapter VII, which provides for offences and penal-
ties, and Chapter IX which deals with “powers and duties of
officers and procedure.” Sections 118 and 119 of the Act
declare the offences under the Act to be cognisable and some
of them to be non-bailable. Under section 121, any autho-
rised prohibition officer or any police officer may open any
package and examine any goods and may stop any vessel,
vehicle or other means of conveyance and search for any
intoxicant..Section 136 (1)provides that if any of the
officers mentioned therein is satisfied that any person is
acting or is likely to act in a manner which amounts to
preparation, attempt, abetment or commission of any of the
offences punishable under section 65 or 68 of the Act, he
may arrest such person without a warrant and direct that
such person shall be committed to such’ custody as such
officer may deem fit for a period not exceeding 15 days.
By section 136(2), the State Government is given the ex-
traordinary power of imposing restriction on the right of
free movement of any person if it is satisfied that such
person is acting or is likely to act in the manner afore-
said. Chapter XI contains certain miscellaneous provisions
and the only sections of this Chapter which need be referred
to are section 139 (c), which states that the State Govern-
ment may by general or special order exempt any person or
class of persons or institution or class of institutions
from the
689
observance of all or any of the provisions of the Act or any
rule, regulation or order made thereunder, and section 147,
which declares that nothing in the Act shall be deemed to
apply to any intoxicant or other article in respect of its
import or export across the customs frontier as defined by
the Central Government.
The High Court accepted the contention of the petitioner
that the definition of “liquor” in the Act was too wide and
went beyond the power vested in the legislature to legislate
with regard to intoxicating liquors under item 31 of List
II. It also held the following sections to be invalid :-
Sections 23 (a) and 24 (1) (a) so far as they refer to
“commending”; section 23 (b); 24 (1) (b) so far as it refers
to “evasion”; section 39; section 52; section 53 in part;
section 136 (1); section 136 (2) (b), (c), (e), (f); and
section 139 (c). The High Court also held Rule 67 of the
Bombay Foreign Liquor Rules and Notifications Nos. 10484/45
(c) and 2843/49 (a), dated the 30th March, 1950, invalid.
It further held that the word”addict” in the medical certif-
icate was not warranted by the provisions of the Act.
The two important questions which this Court is called
upon to decide in these appeals are :–
(1) whether there are sufficient grounds for declaring
the whole Act to be invalid; and
(2) to what extent the judgment of the High Court can be
upheld with regard to the specific provisions of the Act
which have been declared by it to be void. It seems to me
that it will be convenient to deal in the first instance
with the argument assailing the validity of the Act as a
whole, which is based on three grounds, these being :–
(1) that the law is an encroachment on the field which
has been assigned exclusively to the Central Legislature
under entry 19 of List I;
(2) that some of the material provisions of the Act
interfere with or are calculated to interfere with inter-
State trade and commerce and as such transgress the
690.
provisions of section 297 of the Government of India Act,
1935 ;and
(3) that the High Court having ‘held a number of material
provisions to be void, should have declared the Act as a
whole to be invalid, especially as the provisions found by
the High Court to be void’ are not severable from the rest
of the Act and it cannot be said that the legislature would
have passed the Act in the truncated form in which it is
left after the decision of the High Court.
It is obvious that the proper occasion to deal with the
third ground will be after examining the specific provisions
which have been declared by the High Court to be void, but
the first two grounds may be dealt with at once.
The first question is whether the impugned law can be
said to have made any encroachment upon the field of legis-
lation assigned to the Centre. In order to decide this
point, it will be necessary to refer to entry No. 31 in List
II, under which the law purports to have been made, and
entry No. 19 of List I, which is said to have been trans-
gressed. These entries run as follows:–
Entry 31, List II: Intoxicating liquors and narcotic
drugs, that is to say, the production, manufacture, posses-
sion, transport, purchase and sale of intoxicating liquors,
opium and other narcotic drugs, but subject, as respects
opium, to the provisions of List I and, as respects poisons
and dangerous drugs, to the provisions of List I11.
Entry 19, List I: Import and export across customs
frontiers as defined by the Dominion Government.
Prima facie, it would seem that there is no real con-
flict between these two entries, because entry 31 of List II
has no reference to import or export but merely deals with
production, manufacture, possession, transport, purchase and
sale. Dealing with this entry, Gwyer C.J. observed as fol-
lows in the case of Bhola Prasad v. The King Emperor (1):–
(1) [1942] F.C.R. 17 at 25.
691
“A power to legislate ‘with respect to intoxicating
liquors’ could not well be expressed in wider terms, and
would, in our opinion, unless the meaning of the words used
is restricted or controlled by the context or by other
provisions in the Act, undoubtedly include the power to
prohibit intoxicating liquors throughout the Province or in
any specified part of the Province.”
Thus, under entry 31, the Provincial Legislature can
pass any law regarding production, manufacture, transport,
purchase, possession and sale of intoxicating liquor. But
the point that is pressed for our consideration is that
“import” does not end with mere landing of the goods on the
shore or their arrival in the customs house, but it implies
that the imported goods must reach the hands of the importer
and he should be able to possess them. On this basis, it is
contended that there is no difference in effect between a
power to prohibit the possession and sale of an article and
a power to prohibit its import or introduction into the
country, since the one would be a necessary consequence of
the other. This contention is based upon some American
cases to which I shall refer later, but it may be stated at
once that the point which is raised in this case is precise-
ly the point which was raised and negatived in Miss Kishori
Sherry v. The King (1). In that case, the appellant had been
convicted under section 14-B of the Bombay Abkari Act,
1878, as amended by the Bombay Abkari (Amendment) Act, 1947,
for having in her possession a certain quantity of foreign
liquor in excess of the limit prescribed by a notification
issued under the following provision of the Act :–
“14-B (2) ……… the Provincial Government may
by notification in the Official Gazette prohibit the posses-
sion by any individual or a class or a body of individuals
or the public generally, either throughout the whole Presi-
dency or in any local area, of any intoxicant, either abso-
lutely or subject to such conditions as it may prescribe.”
(1) [1949] F.C.R. 6S0.
692
The main argument advanced in that case was reproduced in
the judgment in these words :-
“But counsel for the appellant drew attention to item 19
of List I which covers “Import and export across customs
frontiers as defined by the Dominion Government”, and
argued that if “intoxicating liquors” in item 31 of List II
were held to include also liquors imported from abroad, then
the Provincial Legislature, by prohibiting possession of
such liquors by all persons, whether private consumers,
common carriers or warehousemen, could defeat the power of
the Federal Legislature to regulate imports of foreign
liquors across the sea or land frontiers of British India
which are customs frontiers as defined by the Central Gov-
ernment and thus seriously jeopardise an important source of
central customs revenue. As under section 100 of the Con-
stitution Act the Provincial legislative powers under List
11 were subject to the exclusive powers of the Federal
Legislature in List I, the Bombay Act to the extent to which
it trenched upon the subject of item 19 of the latter List
must, it was submitted, be regarded as a nullity.”
It will be seen that the rationale of the argument
there is the same as that of the argument advanced in the
present case, but it was rejected for reasons which are
clearly set out in the following passage :–
“These is, in our view, no irreconcilable conflict here
such as would necessitate recourse to the principle of
Federal supremacy laid down in section 100 of the Consti-
tution Act. Section 14-B does not purport to restrict or
prohibit dealings in liquor in respect of its importation or
exportation across the sea or land frontiers of British
India. It purports to deal with the possession of intoxicat-
ing liquors which, in the absence of limiting words, must
include foreign liquors. It is far-fetched, in our opinion,
to suggest that, in so far as the provision covers foreign
liquors, it is legislation with respect to import of liquors
into British India by sea or land”
693
Since the enactment of the Government of India Act,
1935, there have been several cases in which the principles
which govern the interpretation of the Legislative Lists
have been laid down. One of these principles is that none of
the items in each List is to be read in a narrow or re-
stricted sense(1). The second principle is that where there
is a seeming conflict between an entry in List II and an
entry in List I, an attempt should be made to see whether
the two entries cannot be reconciled so as to avoid a con-
flict of jurisdiction. This principle has been stressed in a
number of cases by the Federal Court as well as by the Privy
Council.. In In re The Central Provinces and Berar Act No.
XIV of 1938(2), the question arose as to whether a tax on
the sale of motor spirits was a tax on the sale of goods
within entry 48 of the Provincial List or a duty of excise
within entry 45 of the Federal List. Dealing with the diffi-
culty which arose in that case, Gwyer C.J. observed as
follows :–
“Only in the Indian Constitution Act can the particular
problem arise which is now under consideration; and an
endeavour must be made to solve it, as the Judicial Commit-
tee have said, by having recourse to the context and scheme
of the Act, and a reconciliation attempted between two
apparently conflicting jurisdictions by reading the two
entries together and by interpreting, and, where necessary,
modifying, the language of the one by that of the other. If
indeed such a reconciliation should prove impossible, then,
and only then, will the non-obstante clause operate and the
federal power prevail; for the clause ought to be regarded
as a last resource, a witness to the imperfections of human
expression and the fallibility of legal draftsmanship.”
To the same effect are the following observations made
by the Judicial Committee of the Privy Council in Governor-
General in Council v. Province of Madras(3),
(1) Vide United Provinces v. Atiqa Begum, [1940] F.C.R.
110 at 134.
(2) [1939] F.C.R. 18. (3) [1945] F.C.R. 179 at 191.
694
after referring to section 100 of the Government of India
Act, 1935 :–
“Their Lordships do not doubt that the effect of these
words is that, if the legislative powers of the Federal and
Provincial Legislatures, which are enumerated in List I and
List II of the Seventh Schedule, cannot fairly be recon-
ciled, the latter must give way to the former. But it ap-
pears to them that it is right first to consider whether a
fair reconciliation cannot be effected by giving to the
language of the Federal Legislative List a meaning which, if
less wide than it might in another context bear, is yet one
that can properly be given to it, and equally giving to the
language of the Provincial Legislative, List a meaning which
it can properly bear.” In the present case, as already
pointed out. the words “possession and sale” occurring in
entry 31 of List II are to be read without any qualification
whatsoever, and it will not be doing any violence to the
construction of that entry to hold that the Provincial
Legislature has the power to prohibit the possession, use
and sale of intoxicating liquor absolutely. If we forget for
the time being the principles which have been laid down in
some of the American cases, it would be difficult to hold
that the word ‘import’ standing by itself will include
either sale or possession of the article imported into the
country by a person residing in the territory in which it is
imported. There is thus no real conflict between entry 31 of
List II and entry 19 of List I, and I find it difficult to
hold that the Bombay Prohibition Act in so far as it pur-
ports to restrict possession, use and sale of foreign liq-
uor. is an encroachment on the field assigned to the Federal
Legislature under entry 19 of List I.
There is also another way of dealing with the contention
raised before us. It is well settled that the validity of
an Act is not affected if it incidentally trenches on mat-
ters outside the authorised field, and therefore it is
necessary to inquire in each case what is the pith and
substance of the Act impugned. If the Act, when so viewed,
substantially falls within the
695
powers expressly conferred upon the Legislature which enact-
ed it, then it cannot be held to be invalid, merely because
it incidentally encroaches on matters which have been as-
signed to another legislature. This was emphasised very
clearly in Gallagher v. Lynn(1) in these words :–
“It is well established that you are to look at the
`true nature and character of the legislation ‘: Russell v.
The Queen(2) the pith and substance of the legislation’.
If,. on the view of the statute as a whole, you find that
the substance of the legislation is within the express
powers, then it is not invalidated if incidentally it af-
fects matters which are outside the authorised field “.
In Prafulla Kumar Mukherjee and Others v. Bank of Com-
merce, Ltd., Khulna(3) the question arose before the Privy
Council whether the Bengal Money-lenders Act, 1940, which
provided that no borrower shall be liable to pay after the
commencement of the Act more than a limited sum in respect
of principal and interest, was intra vires the Provincial
Legislature as dealing in pith and substance with money-
lending and moneylenders, a subject-matter within the compe-
tence of the Provincial Legislature under entry 27 of List
II, or whether it trenched on “promissory notes” and
“banking”, which were subjects reserved for the Federal
Legislature under entries 28 and 38 respectively of List I.
The Privy Council, notwithstanding the fact that loans on
promissory notes would also have been subject to the provi-
sions of the impugned Act, held that the Act was valid, and,
while rejecting the argument that it was beyond the legisla-
tive competence of the Provincial Legislature which had
enacted it, their Lordships observed as follows :–
“As Sir Maurice Gwyer C.J. said in the Subrahmanyam
Chettiar case: “It must invevitably happen from time to time
that legislation, though purporting to deal with a subject
in one list, touches also on a
(1) [1937] A.C. 863 at 870 (3) [1947] F.C.R. 28.
(21 7 A.C. 829.
696
subject in another list, and the different provisions of the
enactment may be so closely inter-twined that blind observ-
ance to a strictly verbal interpretation would result in a
large number of statutes being declared invalid because the
legislature enacting them may appear to have legislated in a
forbidden sphere. Hence the rule which has been evolved by
the Judicial Committee, whereby the impugned statute is
examined to ascertain its `pith and substance’, or its true
nature and character, for the purpose of determining whether
it is legislation with respect to matters in this list or in
that “. Their Lordships agree that this passage correctly
describes the grounds on which the rule is founded, and that
it applies to Indian as well as to Dominion legislation-(1).
The same principle was reiterated by the Federal Court
in Ralla Ram v. The Province of East Punjab(2), and was also
referred to in Miss Kishori Shetty v. The King(3) in the
following passage :–
“It may be that a general adoption of the policy of
prohibition by the Provinces will lead to a fall in the
import of foreign liquors and to a consequential diminution
of the Central customs revenue, but where the Constitution
Act has given to the Provinces legislative power with re-
spect to a certain matter in clear and unambiguous terms,
the Court should not deny it to them or impose limitations
on its exercise, on such extraneous considerations. It is
now well settled that if an enactment according to its true
nature, its pith and substance, clearly falls within one of
the matters assigned to the Provincial Legislature, it is
valid notwithstanding its incidental encroachment on a
Federal subject.”
The short question therefore to be asked is whether the
impugned Act is in pith and substance a law relating to
possession and sale etc. of intoxicating liquors or whether
it relates to import and export of intoxicating liquors. If
the true nature and character
(1) [1947] F.C.R. at p. 51. (3) [1949] F.C.R. 650 at 655.
(2) [1948] F.C.R. 207 at 225
697
of the legislation or its pith and substance is not import
and export of intoxicating liquor but its sale and posses-
sion etc., then it is very difficult to declare the Act to
be invalid. It is said that the prohibition of purchase,
use, possession, transport and sale of liquor will affect
its import. Even assuming that such a result may follow, the
encroachment, if any, is only incidental and cannot affect
the competence of the Provincial Legislature to enact the
law in question.
On these considerations, there is really nothing else to
be said on the question before us, but in view of the very
great stress laid upon the American doctrine of “original
package”, it seems necessary to deal with what that doc-
trine means and under what conditions it was evolved. The
wide meaning of ‘import’ on which reliance was placed on
behalf of the petitioner was adopted for the first time by
Marshall C.J. in Brown v. Maryland(1), in which the facts
were these. The State of Maryland had passed an Act prohib-
iting importers of foreign goods from selling their goods
without taking a license for which a certain amount had to
be paid. The question which was raised in that case was that
the Act was repugnant to the provisions of the Constitution
which provided that “no State shall without the consent of
Congress allow any imposts or duties on imports or exports
except what may be absolutely necessary for executing its
inspection laws.” In the course of his judgment, Marshall
C.J. observed inter alia as follows :-
“There is no difference, in effect, between a power to
prohibit the sale of an article and a power to prohibit its
introduction into the country. The one would be a necessary
consequence of the other. No goods would be imported if
none could be sold. No object of any description can be
accomplished by laying a duty on importation, which may not
be accomplished with equal certainty by laying a duty on the
thing imported in the hands of the importer.”(2)
The learned Chief Justice further observed :–
(1) (1827) 25 U.S, 419. (2) (1827) 25 U.S. at p. 439.
698
“Sale is the object of importation, and is an essential
ingredient of that intercourse, of which importation consti-
tutes a part. It is as essential an ingredient, as indis-
pensable to the existence of the entire thing, then, as
importation itself. It must be considered as a component
part of the power to regulate commerce. Congress has a
right, not only to authorise importation, but to authorise
the importer to sell.”(1)
Upon principles so stated, what is known as the “origi-
nal package” doctrine was evolved in America, which was
applied not only to commodities imported from foreign coun-
tries but also to commodities which were the subject of
inter-state commerce. This doctrine laid down that importa-
tion was not over so long as the goods were in the original
package and hence a State had no power to tax imports until
the original package was broken or there was one sale while
the goods were still in the original package. The principle
upon which this doctrine was founded is explained by Mar-
shall C.J. in the case referred to in these words:-
” There must be a point of time when the prohibition
ceases, and the power of the State to tax commences;we
cannot admit that this point of time is the instant that the
articles enter the country …It is sufficient for the
present to say, generally, that when the importer has so
acted upon the thing imported that it has become incorporat-
ed and mixed up with the mass of property in the country, it
has, perhaps, lost its distinctive character as an import,
and has become subject to the taxing power of the State; but
while remaining the property of the importer, in his ware-
house, in the original form of package in which it was
imported, a tax upon it is too plainly a duty on imports to
escape the prohibition in the Constitution.”(2)
The doctrine was reiterated in a number of cases, and in
Leisy v. Hardin(8), it was laid down that “the importers had
the right to sell in the original packages unopened and
unbroken, articles brought into the
(1) (1827)25 U.S. at p. 447. (a) 135 U.S. 100.
(2) (1827) 25 U.S. at p. 441.
699
State from another State or territory notwithstanding a
statute of the State prohibiting the sale of such articles
except for purposes mentioned therein and under a license
from the State’ ‘. The American writers have however pointed
out the difficulty which arose from time to time in applying
the “original package” doctrine, since sometimes very intri-
cate questions arose before the courts, such as whether the
doctrine applied to the larger cases only or to the smaller
packages contained therein, or whether it applied to smaller
paper packages of cigarettes taken from loose piles of
packages at the factory and transported in baskets. The
difficulty in applying the doctrine was particularly experi-
enced in working prohibition schemes, and to combat its
mischief and uncertainty, new legislative measures had to be
passed by the Congress like the Wilson Act, Webb-Kenyon Act,
etc. I do not wish to pursue the matter, but wish only to
point out that the doctrine has no place in this country,
having regard to the scheme of legislation that has been
outlined in the Government of India Act, 1935, and in the’-
present Constitution, in which the various entries in the
Legislative Lists have been expressed in clear and precise
language. In The Province of Madras v. Boddu Paidanna and
Sons(1), Gwyer C.J. while expressing his profound respect
for the views expressed by Marshall C.J. in Brown v. Mary-
land(2), mildly hinted that it was easier to follow the line
of reasoning of Thompson J. in his dissenting judgment in
that case and concluded with the following remarks :–
“Next, it is to be observed that the American Constitu-
tion also provides that Congress alone has power “to regu-
late commerce with foreign nations, among the several
States, and with the Indian tribes”, and it was held that
the Maryland tax was no less repugnant to this provision
also. Marshall C.J. asked: “To what purposes should the
power to allow importation be given, unaccompanied with the
power to authorise the sale of the thing imported ? Con-
gress has a right, not only to authorise importation, but to
(1) [1942] F.C.R. 90. (2) (1827) 25 U.S. 419.
700
authorize the importer to sell…What does the importer
purchase, if he does not purchase the privilege to sell?” On
this view of the Commerce Clause, it would indeed be diffi-
cult to recognize the right of the State to impose a tax
upon the first sale of the commodity, at any rate so long as
it remained in the importer’s hands. In the Indian Constitu-
tion Act no such question arises; and the right of the
provincial Legislature to levy a tax on sales can be consid-
ered without any reference to so formidable a power vested
in the Central Government. Lastly, the prohibition in the
American Constitution is against the laying of “any imposts
or duties on imports or exports “the prohibition is not
merely against the laying of duties of customs, but is
expressed in what we conceive to be far wider terms; and it
does not appear to us that it would necessarily follow from
the principle of the Maryland decision that in India the
payment of customs duty on goods imported from abroad or the
payment of an excise duty on goods manufactured or produced
in India can be regarded as conferring some kind of license
or title on the importer or manufacturer to sell his goods
to any purchaser without incurring a further liability to
tax. That was the view which commended itself to the Court
in the Maryland Case(1) and it was a view adopted and argued
before us. The analogy with the American case is an attrac-
tive one, but for the reasons which we have given we are
wholly unable to accept it.” (2)
I find considerable force in the opinion thus expressed
by Gwyer C.J. and agree that the “original package” doctrine
has no application to this country. In the United States,
the widest meaning could be given to the Commerce Clause,
for there was no question of reconciling that Clause with
another Clause containing the legislative power of the
State. Under the provisions of the Government of India Act,
a limited meaning must be given to the word “import” in
entry 19 of List I in order to give effect to the very
general words used in entry 31 of List II.
(1) (1827) 25 U.S. 419. (2) [1942] F.C.R. 90 at 106-7.
701
The second attack on the Act is founded upon the provi-
sion contained in section 297(1)(a) of the Government of
India Act, 1935, and it is contended that the prohibitions
contained in the impugned Act in regard to the use, consump-
tion, purchase, transport, possession and sale of intoxicat-
ing liquor will necessarily_ amount to prohibiting and
restricting inter-provincial. commerce, and inasmuch as they
tend to stop and restrict entry into or export from the
Province of Bombay of goods of a particular class or de-
scription, the Act contravenes section 297(1)(a). This
section runs as follows :–
“No Provincial Legislature or Government shall–
(a) by virtue of the entry in the Provincial Legislative
List relating to trade and commerce within the Province, or
the entry in that List relating to the production, supply
and distribution of commodities, have power to pass any law
or take any executive action prohibiting or restricting the
entry into, or export from the Province of goods of any
class or description …… ‘ ‘
It should be noticed that this provision refers to
“trade and commerce within the Province”, which is the
subject of entry 27 of List II and to “production, supply
and distribution of commodities”, which is the subject of
entry 29 of List II. The provision virtually means that
import into or export from a Province of goods of any class
or description cannot be prohibited or restricted on the
ground that it will affect, trade and commerce within the
Province or the production, supply and distribution of
commodities. If therefore by any law framed by a Provincial
Legislature relating to or based on the subjects of entry 27
or entry 29 of List II, the entry into or export from the
Province of any goods is prohibited or restricted, such a
law will be invalid. But, here, we are concerned not with a
law which purports to be made and was made by virtue of
entry 27 or entry 29 of List I1, but a law which is claimed
to have been made
702
and was made by virtue of entry 31 of that List and certain
other entries therein. Section 297 (1) (a) therefore has no
application to the present case. This was clearly pointed
out in the case of Bhola Prasad v. King Emperor(1). In that
case, the Bihar Excise (Amendment) Act, 1940, which amended
the Bihar and Orissa Excise Act, 1915, was challenged as
contravening section 297 (1) (a), but it was held to be a
valid Act on grounds already stated, as will. appear from
the following observations of Gwyer C.J. :-
“The second point-raised on behalf of the appellant was
that s. 19 (4) of the Act of 1915, as amended by the Act of
1940, is invalid because repugnant to s. 297 (1) (a) of the
Constitution Act. We confess that we have difficulty in
appreciating this argument. Section 297 (1)(a) enacts
that …… It is plain beyond words that this provision
only refers to legislation with respect to entry No. 27 and
entry No. 29 in the provincial Legislative List; it has no
application to legislation with respect to anything in entry
No. 31. A Provincial Legislature, if it desires to pass a
law prohibiting export from, or. import into, the Province,
must therefore seek for legislative authority to do so in
entries other than entry No. 27 or entry No. 29. If it can
point to legislative powers for the purpose derived from any
other entry in the Provincial Legislative List, then its
legislation cannot be challenged under section 297 (1) (a).
There is no substance at all in the appellant’s arguments on
this point”
Having dealt with and negatived the first two conten-
tions upon which the validity of the entire Act was as-
sailed, I now proceed to deal with certain sections of the
Act, the validity of which also was brought into question.
The provision which was most vigorously assailed and in
regard to which the attack was successful in the High Court,
is the definition of the word ‘liquor’ in section 2 (24) of
the Act. The definition runs thus:–
“Liquor” includes–
(1) [1942] F.C.R, 17 at 27. (2) [1942] F.C,R. 17 at 27, 28.
703
(a) spirits of wine, methylated spirits, wine, beer,
toddy and all liquids consisting of or containing alcohol;
and
(b) any other intoxicating substance which the Provin-
cial Government may, by notification in the Official Ga-
zette, declare to be liquor for the purposes of this Act.
The High Court has held that the word “liquor” ordinari-
ly means”a strong drink as opposed to soft drink” but it
must in any event be a beverage which is ordinarily drunk.
Proceeding upon this view, the High Court has held that
although the legislature may while legislating under entry
31 prevent the consumption of non-intoxicating beverages and
also prevent the use as drinks of alcoholic liquids which
are not normally consumed as drinks, it cannot prevent the
legitimate use of alcoholic preparations which are not
beverages nor the use of medicinal and toilet preparations
containing alcohol. This view of the High Court was very
strongly supported on the one hand and equally strongly
challenged on the other before us, and I therefore proceed
to deal with the question at some length.
In the Oxford English Dictionary, edited by James Mur-
ray, several meanings are given to the word “liquor”, of
which the following may be quoted:-
Liquor… 1. A liquid; matter in a liquid state; in wider
sense a fluid.
2. A liquid or a prepared solution used as a wash or
bath, and in many processes in the industrial arts.
3. Liquid for drinking; beverage, drink. Now almost
exclusively a drink produced by fermentation or distilla-
tion. Malt liquor, liquor brewed from malt; ale, beer,
porter etc.
4. The water in which meat has been boiled; broth,’
sauce; the fat in which bacon, fish or the like has been
fried; the liquid contained in oysters.
5- The liquid produced by infusion (in testing the
quality of a tea). In liquor, in the state of an infusion.
704
Thus, according to the Dictionary, the word ‘liquor’ may
have a general meaning in the sense of a liquid, or it may
have a special meaning, which is the third meaning assigned
to it in the extract quoted, above, viz. a drink or beverage
produced by fermentation or distillation. The latter is
undoubtedly the popular and most widely accepted meaning,
and the basic idea of beverage seems rather prominently to
run through the main provisions of the various Acts of this
country as well as of America and England relating to intox-
icating liquor, to which our attention was drawn. But, at
the same time, on a reference to these very Acts, it is
difficult to hold that they deal exclusively …… with
beverages and are not applicable to certain articles which
are strictly speaking not beverages. A few instances will
make the point clear. In the National Prohibition Act, 1919,
of America (also known as the Volstead Act), the words,
liquor and intoxicating liquor, are used as having the same
meaning and the definition states that these words shall be
construed to “include alcohol, brandy, whisky, rum, gin,
beer, ale, porter and wine, and in addition thereto any
spirituous, vinous malt, or fermented liquor, liquids, and
compounds, whether medicated, proprietary, patented or not,
and by whatever name called, containing one-half of 1 per
centum or more of alcohol by volume which are fit for use
for beverage purposes.” Having defined ‘liquor’ and ‘intoxi-
cating liquor’ rather widely, the Volstead Act excepted
denatured alcohol, medicinal preparations, toilet and
antiseptic preparations, flavoring extracts and sirups,
vinegar and preserved sweet cider (s. 4) which suggest that
they were included in the definition. In some of these
items, we have the qualifying words “unfit for use for
beverage purposes”, but the heading of section 4 of the
Volstead Act, under which these exceptions are enumerated is
exempted liquors.” ‘
The Licensing (Consolidating) Act, 1910, of England was
an Act relating to licenses for the sale of intoxicating
liquor, etc. The definition of “intoxicating liquor” in this
Act was as follows;–
705
“‘Intoxicating liquor’ means (unless inconsistent with
the context) spirits, wine, beer, porter, cider, perry and
sweets, and any fermented, distilled, or spirituous liquor
which cannot, according to any law for the time being in
force, be legally sold without an excise licence.”
The word spirits has been defined in the Spirits Act,
1880, as meaning spirits of any description, and includes
all liquors mixed with spirits, and all mixtures, compounds,
or preparations made with spirits.” It was contended before
us that the definition of the word “spirits” in the Spirits
Act should not be imported in the Act of 1910, but in our
view for the purpose of understanding the definition of
‘intoxicating liquor’, the two Acts should be read together.
I do not suggest that the definition of “liquor” in the
present Act was borrowed from those Acts, but I am only
trying to show that the word ‘liquor’ is capable of being
used in a wide sense.
Coming now to the various definitions given in the
Indian Acts, I may refer in the first instance to the Bombay
Abkari Act of 1878 as amended by subsequent Acts, where the
definition is substantially the same as in the Act with
which we are concerned. In the Bengal Excise Act, 1909,
“liquor, is said to mean ‘liquid consisting of or containing
alcohol’ and includes spirits of wine, spirit, wine, tari
pachwai, beer, and any substance which the Provincial Gov-
ernment may …… declare to be liquor for the purposes of
the Act.” In several other Provincial Acts, e.g., the Punjab
Excise Act, 1914, the U.P. Excise Act, 1910, “liquor” is
used as meaning intoxicating liquor and as including all
liquids consisting of or containing alcohol. The definition
of “liquor” in the Madras Abkari Act, 1886., is the same as
in the Bombay Act of 1878. Even if we exclude the American
and English Acts from our consideration, we find that all
the Provincial Acts of this country have consistently in-
cluded liquids containing alcohol in the definition of
`liquor’ and ‘intoxicating liquor’. The framers of the
Government India Act, 1935, could not have been entirely
706
ignorant of the accepted sense in which the word ‘liquor’
has been used in the various excise Acts of this country
and, accordingly I consider the appropriate conclusion to be
that the word “liquor” covers not only those alcoholic
liquids which are generally used for beverage purposes
and produce intoxication, but also all liquids containing
alcohol. It may be that the latter meaning is not the mean-
ing which is attributed to the word “liquor” in common
parlance especially when that word is prefixed by the quali-
fying word “intoxicating”, but in my opinion having regard
to the numerous statutory definitions of that word, such a
meaning could not have been intended to be excluded from the
scope of the term “intoxicating liquor” as used in entry 31
of List II.
There is in my opinion another method of approaching the
question which also deserves consideration. Remembering that
the object of the Prohibition Act was not merely to levy
excise duties but also to prohibit use, consumption, posses-
sion and sale of intoxicating liquor, the legislature had
the power to legislate upon the subjects included in the Act
not only under entry 31 of List II, but also under entry
14, which refers inter alia to public health. Article 47 of
the Constitution, which contains one of the directive prin-
ciples of State policy, provides that “the State shall
regard the raising of the level of nutrition and the. stand-
ard of living of its people and the improvement
of public health as among its primary duties and, in partic-
ular, the State shall endeavour to bring about prohibition
of the consumption, except for medicinal purposes, of intox-
icating drinks and of drugs which are injurious to health”.
This article has no direct bearing on the Act which was
passed in 1949, but a reference to it supports to some
extent the conclusion that the idea of prohibition is con-
nected with public health, and to enforce prohibition effec-
tively the wider definition of the word “liquor” would have
to be adopted so as to include all alcoholic liquids which
may be used as substitutes for intoxicating drinks, to
707
the detriment of health. On the whole, I am unable to agree
with the High Court’s finding, and hold that the definition
of “liquor” i,2 the Bombay Prohibition Act is not ultra
vires.
The learned Attorney-General also relied upon entry 1 of
List II which relates among other items to “public’ order”,
and though at first sight it may appear to be far-fetched to
bring the subject of intoxicating liquor under “public
order”, yet it should be noted that there has been a tenden-
cy in Europe and America to regard alcoholism as a menace to
public order. In Russel v. The Queen(1), Sir Montague Smith
held that the Canada Temperance Act, 1878, the object and
scope of which was to promote temperance by means of a
uniform law throughout the Dominion, was a law relating to
the “peace, order, and good government” of Canada, and, in
so deciding, said as follows:–
“Laws of this nature designed for the promotion of
public order, safety, or morals and which subject those who
contravene them to criminal procedure and punishment, belong
to the subject of public wrongs rather than to that of civil
rights. They are of a nature which falls within the general
authority of Parliament to make laws for the order and good
government of Canada …… ” (2)
Again, referring to liquor laws and liquor control, a
learned British author(3) says as follows :-
“The dominant motive everywhere, however, has been a
social one, to combat a menace to public order and the
increasing evils of alcoholism in the interests of health
and social welfare. The evils vary greatly from one country
to another according to differences in climate, diet, eco-
nomic conditions and even within the same country according
to differences in habits, social customs and standards of
public morality. A new factor of growing importance since
the middle of the 19th
(1) 7 A.C. 829.
(2) 7 A.C. 829 at p. 839.
(3) The Encyclopaedia Britannica, 14th Edition, Volume 14,
page 191.
708
century has been the rapid urbanisation, industrialization
and mechanization of our modern every day life in the lead-
ing nations of the world, and the consequent wider recogni-
tion of the advantages of sobriety in safeguarding public
order and physical efficiency.”
These passages may lend some support to the contention
of the learned Attorney-General that the Act comes also
within the subject of “public order”, but I prefer to leave
out of account this entry, which has a remote bearing, if
any, on the object and scope of the present Act.
I now come to section 39 of the Act which has been
impugned on the ground that it offends against article 14 of
the Constitution which states that “the State shall not deny
to any person equality before the law or the equal protec-
tion of the laws within the territory of India”. The meaning
and scope of this article has been fully discussed in the
case of Chiranjit Lal Chowdhury v. The Union of India and
Others(1), and the principles laid down in that case may be
summarized as follows:
(1) The presumption is always in favour of the constitu-
tionality of an enactment, since it must be assumed that the
legislature understands and correctly appreciates the needs
of its own people, that its laws are directed to problems
made manifest by experience and its discriminations are
based on adequate grounds.
(2) The presumption may be rebutted in certain cases by
showing that on the face of the statute, there is no classi-
fication at all and no difference peculiar to any individual
or class and not applicable to any other individual or
class, and yet the law hits only a particular individual or
class.
(3) The principle of equality does not mean that every
law must have universal application for all persons who are
not by nature, attainment or circumstances in the same
position, and the varying needs of different classes of
persons often require separate treatment.
(1) [1950] S.C.R. 869.
709
(4) The principle does not take away from the State
the power of classifying persons for legitimate purposes.
(5) Every classification is in some degree likely to produce
some inequality, and mere production of inequality is not
enough.
(6) If a law deals equally with members of a well de-
fined class, it is not obnoxious and it is not open to the
charge of denial of equal protection on the ground that it
has no application to other persons.
(7) While reasonable classification is permissible, such
classification must be based upon some real and substantial
distinction bearing a reasonable and just relation to the
object sought to be attained, and the classification cannot
be made arbitrarily and without any substantial basis.
Similarly, Professor Willis, dealing with the Fourteenth
Amendment of the Constitution of the United States, which
guarantees equal protection of the laws, sums up the law as
prevailing in that country in these words:
“The guaranty of the equal protection of the laws means
the protection of equal laws. It forbids class legislation,
but does not forbid classification which rests upon reasona-
ble grounds of distinction. It does not prohibit legisla-
tion, which is limited either in the objects to which it is
directed or by the territory within which it is to operate.
`It merely requires that all persons subjected to such
legislation shall be treated alike under like circumstances
and conditions both in the privileges conferred and in the
liabilities imposed’. The inhibition of the
amendment …… was designed to prevent any person or
class of persons from being singled out as a special subject
for discriminating and hostile legislation.’ It does not
take from the states the power to classify either in the
adoption of police laws or tax laws, or eminent domain laws,
but permits to them the exercise of a wide scope of discre-
tion, and nullifies what they do only when it is without any
reasonable basis. Mathematical nicety and perfect equality
are not required. Similarity, not identity of
710
treatment, is enough. If any state of facts can reasonably
be conceived to sustain a classification, the existence of
that state of facts must be assumed. One who assails a
classification must carry the burden of showing that it does
not rest upon any reasonable basis.”(1)
With these principles in view, I have to decide whether
article 14 of the Constitution has been violated by the
provisions contained in section 39 of the Act before us.
That section runs as follows :-
“The Provincial Government may, on such conditions as
may be specified in the notification published in the Offi-
cial Gazette, permit the use or consumption of foreign
liquor on cargo boats, warships and troopships and in mili-
tary and naval messes and canteens.”
What is contended is that the concession shown to the
warships, troopships, and military and naval messes and
canteens is a violation of the principle of equality and the
legislature has acted arbitrarily and capriciously in se-
lecting certain bodies or groups of people for favoured
treatment, while subjecting the petitioner and other citi-
zens to the general provisions of the Act. It is said that
the law should have been enforced alike against the civil
population and military personnel, between whom no distinc-
tion can be made at all on any rational ground in the en-
forcement of the policy of prohibition.
The scheme of Chapter IV of the Prohibition Act, in
which the impugned provision finds a place, seems inter alia
to relax the law in favour of certain persons or groups of
persons or institutions by introducing the system of passes,
licences, permits and authorizations. A few examples will
show that the legislature did not proceed without making
any classification. For instance, section 35 deals with
licences to hotels, section 37 with licences to dining ears
and coastal setamers, section 38 with licences to shipping
companies, section 40 with permits to foreigners and persons
who need liquor on grounds of health, section 41 with per-
mits to foreign sovereigns and diplomats, section 44
(1) Constitutional Law, by Prof. Willis, (1st Edition) p.
578.
711
with licences to clubs, section 45 with authorisations for
sacramental purposes, section 46 with visitors’ permits, and
so on. These sections were not challenged before us, and it
may be assumed that the classification made by the legisla-
ture has been accepted so far as they are concerned. The
question is whether in relaxing the rule in favour of war-
ships, troopships, and military and naval messes and can-
teens, the legislature has acted arbitrarily and capricious-
ly or it has proceeded here also on the basis of reasonable
classification. The learned Attorney-General referred us to
several statutes, army regulations and certain provisions of
the Constitution, in order to show that the military force
has been regarded in this country as a class by itself, and
there are many special provisions with regard to it. But it
is contended that this is not enough and that no classifica-
tion can be held to be valid unless it is shown to bear a
just and reasonable relation to the objects of the particu-
lar legislation before us. The argument, in other words, is
this: Assuming that the armed forces may be treated as a
class for certain purposes, can it be treated as a class for
the purpose of enforcing prohibition ? This argument found
favour with the High Court, and section 39 was declared to
be void. In ray opinion, the judgment of the High Court
cannot be supported, because I think that there is an under-
standable basis for the exemptions granted to the military
canteens, etc. by the Act. The armed forces have their own
traditions and mode of life, conditioned and regulated by
rules and regulations which are the product of long experi-
ence and which aim at maintaining at a high level their
morale and those qualities which enable them to face dangers
and perform unusual tasks of endurance and hardship when
called upon to do qualities such as dash and courage, un-
breakable tenacity and energy ready for any sacrifice which
should be unfaltering for long days together. By these
rules and regulations, drinking among the forces is not
prohibited, but it is properly and carefully regulated,
712
It is easy to understand that the legislature chose not to
interfere with the mode of life to which the forces have
been accustomed, lest such interference should affect their
morale and and lead to subterfuges which may prove unwhole-
some for their discipline and good behaviour. Besides, when
drinking is regulated among a class of persons by specific
rules and regulations and drunkenness is made an offence,
the relaxation of the law of prohibition in their case is
not likely to produce the same evil results as it may pro-
duce under other circumstances. I find therefore nothing
wrong prima facie in the legislature according special
treatment to persons who form a class by themselves in many
respects and who have been treated as such in various enact-
ments and statutory provisions. In my opinion, therefore,
section 39, in so far as it affects the military and naval
messes and canteens, warships and troop: ships, cannot be
held to be invalid. So far as the cargoboats are concerned,
it was contended on behalf of the petitioner that no ration-
al differentiation could be made between them and the pas-
senger boats, and there was no conceivable ground for grant-
ing exemption or concession of any kind to the former. Here
again, we cannot assume that the legislature has proceeded
arbitrarily. The cargoboats being slower boats have to be
on the sea for long periods, the number of persons affected
by the exemption is comparatively small, and they are mostly
sojourners who stay at the port for a short time and then go
away. These considerations may well have induced the legis-
lature to show some concession to them, and we cannot say
that these are irrelevant considerations. The provision
relating to exemption of cargoboats should therefore be held
to be valid.
I have already referred to section 46 which deals with
visitors’ permits. That section provides that the Provincial
Government may authorize an officer to grant visitors’
permits to consume, use and buy foreign liquor to persons
who visit the Province for a period of not more than a week.
The High Court held this provision to be valid, but it
considered rule 67 of the
713
Bombay Foreign Liquor Rules, framed under section 143 of the
Act, to be invalid. That rule provides that any foreigner on
a tour of India who enters the State of Bombay and desires
to possess, use and consume foreign liquor shall apply to
certain officers for obtaining a permit, which may be grant-
ed for a period not exceeding one month subject to subse-
quent renewal. The High Court declared this rule to be
invalid on the ground that it discriminated between foreign
visitors and Indian visitors who visit Bombay from neigh-
bouring Provinces. It seems to me that this is hardly a
matter which should have been gone into on the petitioner’s
application, since he claims to be neither a foreigner nor
an Indian visitor from another Province. But, in any event,
the rule cannot be assailed on the ground of discrimina-
tion, firstly because though it provides for the case of a
foreign visitor there is no prohibition against any other
outsider being granted a permit, and secondly, because the
policy underlying the rule is quite consistent with the
policy underlying section 40 of the Act which enables per-
mits to be granted to foreigners under certain conditions.
The High Court has also declared sections 52, 53 and 139
(c) of the Act invalid on the ground that they constitute
“delegation of legislative power”. The reasons given by the
High Court for arriving at this conclusion are stated in its
judgment as follows: —
“Under section 52 power is given to the Government to
grant licences in cases other than those specifically
provided under any of the provisions of the Act. Under
section 53 Government is inter alia empowered to vary or
substitute any of the Conditions of the licence laid down in
the Act, and under section 139 (c) power is given to Govern-
ment to exempt any person or institution or any class of
persons or institutions from the observance of all or any of
the provisions of the Act or any rule or regulation or order
made thereunder. The policy of legislation has been clearly
laid down by the legislature in the Act itself. As pointed
out by us before, the legislature intended
714
to grant permits ordinarily only on grounds of health and
certain exceptions were made in the case of certain classes.
It is always open to the legislature to leave it to the
Government to work out the policy in details. It would be
impossible for the legislature to provide for all circum-
stances and all eventualities that may arise in the actual
working of the Act. But it is not open to the legislature
to permit Government to alter the policy itself. In our
opinion, in leaving it to Government to issue permits in
cases other than those provided for by the Act, in permit-
ting Government to vary or substitute conditions of the
licence, and in permitting Government to exempt persons or
classes from the provisions of the Act, the legislature was
clearly delegating to Government its own power of legisla-
tion. This it can clearly not do.”
This Court had to consider quite recently the question
as to how far “delegated legislation” is permissible, and a
reference to its final conclusion will show that delegation
of the character which these sections involve cannot on any
view be held to be invalid. (See Special Reference No. 1 of
1951: In re The Delhi Laws Act, 1912, etc.(1)). A legisla-
ture while legislating cannot foresee and provide for all
future contingencies, and section 52 does no more than
enable the duly authorized officer to meet contingencies and
deal with various situations as they arise. The same con-
siderations will apply to sections 53 and 139 (c). The
matter however need not be pursued further, as it has al-
ready been dealt with elaborately in the case referred to.
I now proceed to deal with a group of sections in regard
to which I find myself in agreement up to a point with the
views expressed by the High Court. Section 12 of the Act
provides inter alia that no person shall possess or sell or
buy liquor and section 13 provides inter alia that no person
shall consume or use liquor. Substituting for the word
“liquor” occurring in these two sections the definition of
that word as given in clause (a) of section 2 (24) of the
Act, the effect of these two sections is that no person
shall
(1) Reported infra.
715
possess, or sell or buy or consume or use “spirits of wine,
methylated spirit, wine, beer, toddy and all liquids con-
sisting of or containing alcohol.” I have already held that
under entry 51 of List II, the Bombay Legislature was quite
competent to make a law with respect to “liquor “even as
broadly defined. It is however contended that the power of
making laws has to be exercised subject to the other provi-
sions of the Constitution and in particular to those relat-
ing to the fundamental rights guaranteed under Part/II of
the Constitution. The provisions to which I have referred
have been assailed on the ground that they are in conflict
with article 19 (1)(f) of the Constitution which guarantees
that all the citizens shall have the right “to acquire, hold
and dispose of property”. This clause is wide enough to
include movable as well as immovable property. The provi-
sions in question undoubtedly prevent a citizen from pos-
sessing, selling,. buying, consuming or using “liquor” as
defined, and therefore they prima facie infringe the funda-
mental right of the Indian citizens to acquire, hold and
dispose of a kind of property, namely, “liquor” as defined
in section 2(24) of the Act, and as such would be void under
article 13. The question to be considered is whether they
can be saved by clause (5) of article 19, which runs as
follows :–
“Nothing in sub-clauses (d), (e) and (f) of the said
clause shall affect the operation of any existing law in so
far as it imposes, or prevent the State from making any law
imposing, reasonable restrictions on the exercise of any of
the rights conferred by the said subclauses either in the
interests of the general public or for the protection of the
interests of any scheduled tribe. ”
The question boils down to ascertaining whether the
restrictions imposed by the provisions to which reference
has been made are reasonable. In judging the reasonableness
of the restrictions imposed by the Act, one has to bear in
mind the directive principles of State policy set forth in
article 47 of the Constitution, “The State is charged with
the duty of bringing about
716
prohibition of the consumption, except for medical purposes,
of intoxicating drinks and of drugs which are injurious to
health.” That the restrictions imposed by the sections on
the right of a citizen to possess, or sell or buy or consume
or use spirits of wine, methylated spirits, wine, beer,
toddy are in view of the aforesaid directive principles of
State policy quite reasonable, has not been disputed before
us. The controversy has centred round the words “and all
liquids consisting of or containing alcohol.” It is said
that those words include “all liquids, toilet or medicinal
preparations containing alcohol” and the restrictions im-
posed upon the ordinary use of such toilet or medicinal
preparations are unreasonable and therefore void. So far as
these preparations are concerned, the High Court has dealt
with the matter as follows :-
To put it in a simple form, the question to which we
have to address ourselves is whether the legislature can
prohibit the legitimate use of an article which ordinarily
is not drunk, merely because its use may be perverted for
the possible purpose of defeating or frustrating the objects
and purposes of the Prohibition Act. Let us take the con-
crete case of eau-de-cologne or lavender water. Their legit-
imate use is only for the purpose of toilet. They contain
spirit and it may be that an addict deprived of his drink
may drink it in order to satisfy his thirst. Is it permis-
sible to the legislature under such circumstances to deprive
the general public of the legitimate use of eau-de-cologne
or lavender water as articles of toilet ? The legislature
may prevent the abuse of these articles, but can it prevent
their legitimate use ? It is difficult to understand how
any restriction on the legitimate use of these articles can
be in the interests of the general public so as to make
these restrictions reasonable within the meaning of article
19)(5). If a citizen uses eau-de-cologne or lavender water
for the purpose of toilet, he is not doing anything against
public interest. It is only when he is perverting their use
that it may be said that he is acting against public inter-
est. Therefore, in our opinion, while it was open
717
to the legislature to provide against the abuse of these
articles, it was not open to it to prevent its legitimate
use. But the legislature has totally prohibited the use and
possession of all liquids containing alcohol except under
permits to be granted by Government. It is contended by the
Advocate-General that a citizen may possess eau-de-cologne
or lavender water under a permit. But that is a restriction
upon the right of the citizen to acquire, hold and dispose
of property, and, in our opinion, that restriction is not
reasonable. The same argument applies to medicinal and
toilet preparations containing alcohol. Therefore we hold
that tO the extent to which the Prohibition Act prevents the
possession, use and consumptiOn of non–beverages and
medicinal and toilet preparations containing alcohol for
legitimate purposes the provisions are void as offending
against article 19 (1) (f) of the Constitution even if they
may be within the legislative competence of the Provincial
Legislature.”
The next step in the argument is that as the law pur-
ports to authorise the imposition of a restriction on a
fundamental right in language wide enough to cover restric-
tions both within and without the limits of constitutionally
permissible legislative action affecting such right. it is
not possible to uphold it even so far as it may be applied
within the constitutional limits, as it is not severable.
This line of reasoning, no doubt, seeks to find support from
the observations made in the majority decisions of this
Court in Romesh Thappar v. The State of Madras(1) and in
Chintaman Rao v. The State of Madhya Pradesh(2), but in my
opinion those observations do not apply to the case before
us. It will be noticed that the legislature has defined the
term “liquor” as including several distinct categories of
things followed by a general category. There can be no
doubt whatever that the earlier categories of liquor, name-
ly, spirits of wine, methylated spirit, wine, beer, toddy,
are distinctly separable items which are easily severable
from the last category, namely, all liquids consisting of or
containing alcohol. These
(1) [1950] S.C.R. 594, (2) [1950] S.C.R. 759,
718
items being thus treated separately by the legislature
itself and being severable, and it not being contended, in
view of the directive principles of State policy regarding
prohibition, that the restrictions imposed upon the right to
possess or sell or buy or consume or use those categories of
properties are unreasonable, the impugned sections must be
held valid so far as these categories are concerned. The
next question is whether those sections are void in so far
as they purport to impose restrictions on the citizens right
to acquire, hold or dispose of all liquids consisting of or
containing alcohol. It is said that this is one general
item and it cannot be split up into different sub-categories
and therefore the sections in so far as they relate to this
general item must be held to be void. This argument at first
appears to have some force but a close scrutiny will reveal
that it is not in the circumstances of this case sound.
Section 139 of the Act authorises the Provincial Government,
by general or special order, to exempt any intoxicants or
class of intoxicants from all or any of the provisions of
the Act. An order made by the Provincial Government in
exercise of the power conferred by this section owes its
legal efficacy to this section and therefore in the eye of
the law the notification has the force of law as if made by
the legislature itself. In exercise of powers vested in it
by section 139(d) the Provincial Government issued an order
No. 10484/45(e) exempting intoxicants specified in column 1
of the Schedule thereto annexed from the provisions of the
Act specified against them in column 2 of that Schedule.
Turning to the Schedule, we find that in item (1) duty-paid
perfumed spirits (except eau-de-cologne), in item (3) duty-
paid spirituous toilet preparations (except lavender water)
and in item (4) duty-paid spirituous medicinal preparations
other than 123 specified liquids, are exempted from the
operation of sections 12(c) and (d) and 13(b) to the extent
specified therein. This notification was superseded on the
1st April, 1950, by another notification which is more
liberal in certain respects, and these notifications, being
made in exercise of the power given by the Act itself,
719
have undoubtedly the force of law and must be read along
with the Act. So read, it is quite clear that “all liquids
consisting of or containing alcohol” are capable of being
split up into and have in fact been split up into several
distinctly separate sub-items including liquid toilet and
medicinal preparations containing alcohol. The legislature
itself contemplated this sub-division, for by section 139
it authorised the Provincial Government to exempt any intox-
icant or class of intoxicants from the operation of the Act.
This circumstance takes the case out of the principles laid
down in the two cases mentioned above and the item being
thus severable I am free to consider whether the restric-
tions imposed on a sub-item, namely, liquid toilet and
medicinal preparations containing alcohol, are reasonable or
not. I am substantially in agreement with the line of rea-
soning adopted by the High Court and I consider that the Act
is not a law imposing reasonable restrictions so far as
medicinal and toilet preparations containing alcohol are
concerned. The National Prohibition Act or the Volstead Act
of America, to which I have referred, was also an Act relat-
ing to prohibition, but toilet and medicinal preparations
containing alcohol were expressly excluded from the scope of
that Act. I refer to that Act simply to show that a complete
scheme of prohibition can be worked without including such
articles among those prohibited. Again, article 47 of the
Constitution also takes note of the fact that medicinal
preparations should be excluded in the enforcement of prohi-
bition. I do not consider that it is reasonable that the
possession, sale, purchase, consumption or use of medicinal
and toilet preparations should be prohibited merely because
there is a mere possibility of their being misused by some
perverted addicts.
It was contended that there was no meaning in declaring
the provisions relating to purchase, sale, possession, use
and consumption of medicinal and toilet preparations con-
taining alcohol to be invalid, since in the Notification No.
10484/45, issued by the Provincial
720
Government on the 1st April; which is no part of the Act,
the Government have exempted duty-paid perfumed spirits
(including eau-de-cologne), duty-paid spirituous toilet
preparations and certain classes of duty-paid spirituous
medicinal preparations from the
following provisions of the Act :(i) Section 12 (c);
(ii) Section 12 (d), in so far as it relates to buying
of such preparations;
(iii) Section 13 (b), in so far as it relates to use of
such preparations.
But it is to be noted that the sale of these articles is
not covered by the above notification, but is regulated by
two other notifications, namely, Notification No. 2843/49,
dated the 6th April, 1950, and Notification No. 2843/49,
dated the 11th April, 1950. In these two Notifications,
there are provisions imposing limits on sales. For example,
in the first notification issued on the 6th April, rule
10(1) provides as follows:-
”The licensee shall not sell to any person on any one
day any kind of perfumed spirits, spirituous toilet prepara-
tions or essences in excess of such quantity as may be
prescribed by the Commissioner under the
Similarly, in the second notification of the 11th April,
rules 9 and 10 run as follows :–
“9. The licensee shall not sell medicated tonics or
medicated wines containing more than 10 per cent of alcohol
(or containing alcohol in strength more than 17.5 per cent.
of proof spirit) except those which are classified as spir-
ituous medicinal preparations and regulated as such under
the Drugs Act, 1940.
10. Subject to the provisions of rule 9 the licensee
shall not sell the following spirituous medicinal prepara-
tions to any person unless he produces a medical prescrip-
tion in that behalf, namely :–
(a) medicated tonics and medicated wines;
(b) asaves and arishtas specified in the Schedule hereto
annexed;
721
(c) any other spirituous medicinal preparations con-
taining more than 10 per cent of alcohol (or containing
alcohol in strength more than 17.5 per cent of proof spirit)
which are intended for internal use:
Provided that the following spirituous medicinal prepa-
rations may be sold to any person without the production by
such person of any medical prescription, namely …… ”
In view of the restrictions imposed on the sale of these
preparations, it is pertinent to enquire whether those
restrictions will not also affect their purchase, posses-
sion, use and consumption, and whether the socalled exemp-
tions contained in the notification of the 1st April really
go as far as they purport to go: (vide in this connection
conditions in col. 7 of Notification No. 10484/45 (a) of the
1st April, 1950). Again, in the Notification No. 10484/45 of
the 1st April, only 8 medicinal preparations are totally
exempted as regards their purchase, possession, and use, and
so far as medicinal preparations for internal consumption
are concerned, only those containing not more than 10% of
alcohol or 17.5% of proof spirit are exempted. This notifi-
cation has to be read along with another notification No.
10484/45(a) of the same date, which was to remain in force
till 31st March,. 1951, only. In the latter notification,
for the purpose of possession, purchase, consumption and
use, the quantity of medicinal preparations containing not
more than 10% of alcohol, etc., is restricted to such quan-
tity as may be prescribed by a registered medical practi-
tioner. Even these notifications may be withdrawn, supersed-
ed or amended at any moment by the Provincial Government, as
was done in the case of the notifications issued on the 16th
June, 1949, which have been referred to. An ordinary citizen
may find it a perplexing task to attempt to extract informa-
tion out of the long series of complicated regulations, as
to the true nature and extent of the right which the law
confers upon him. Indeed it was only with the help of the
learned counsel appearing for the parties that we were able
to know what the position was up to the 31st March, 1950,
and
722
what changes were made on the 1st April, 1950. But in the
bundle of notifications which have been placed before us.
there is no notification stating what step has been taken
after the 31st March, 1951, and none was brought to our
notice in the course of the arguments. Having given my
careful consideration to the matter, I am of the opinion
that the restrictions imposed by the Act even when read with
the above notifications are not reasonable, and I would
affirm the conclusion arrived at by the High Court.
The next group of sections which the High Court has held
to be invalid, are sections 23(a) and 24(1) (a) in so far as
they refer to “commending” any intoxicant, section 23(b) in
its entirety, and section 24(1)(b) in so far as it refers
to. “inciting or encouraging” any individual or class of
individuals or the public generally “to evade the provisions
of any rule, regulation or order made thereunder or the
conditions of any licence, etc.” These provisions run as
follows :–
“23. No person shall–
(a) commend, solicit the use of, or offer any intoxi-
cant or hemp, or
(b) incite or encourage any member of the public or any
class of individuals or the public generally to commit any
act which frustrates or defeats the provisions of this Act,
or any rule, regulation or order made thereunder, or ……
24. (1) No person shall print or publish in any news-
paper, news-sheet, book, leaflet, booklet or any other
single or periodical publication or otherwise display or
distribute any advertisement or other matter,–
(a) which commends, solicits the use of or offers any
intoxicant or hemp, or
(b) which is calculated to encourage or incite any
individual or class of individuals or the public generally
to commit an offence under this Act, or to commit a breach
of or to evade the provisions of any rule, regulation or
order made thereunder or the conditions of any licence,
permit, pass or authorization granted thereunder.”
723
Sections 23(a) and 24(1)(a) in so far as they refer to
“commending” any intoxicant are said to conflict with the
fundamental right guaranteed by article 19 (1) (a) namely,
the right to freedom of speech and expression and there can
be no doubt that the prohibition against “commending” any
intoxicant is a curtailment of the right guaranteed. and it
can be supported only if it is saved by clause (2) of arti-
cle 19 which, as it stands at present, provides that “noth-
ing in sub-clause (a) of clause (1) shall affect the opera-
tion of any existing law in so far as it relates to, or
prevent the State from making any law relating to, libel,
slander, defamation, contempt of court or any matter which
offends against decency or morality or which undermines the
security of, or tends to overthrow, the State.” It seems to
me that none of the conditions mentioned in clause applies
to the present case, and therefore the provisions in ques-
tion must be held to be void. Section 23 (b) must also be
held to be void. because the words “incite” and “encourage”
are wide enough to include incitement or encouragement by
words and speeches and also by acts. The words “which
frustrates or defeats the provisions of the Act or any rule,
regulation or order made thereunder” are so wide and. vague
that it is difficult to define or limit their scope. I am
therefore in agreement with the view of the High Court that
this provision is invalid in its entirety. So far as article
24(1)(b) is concerned the judgment of the High Court in
regard to it cannot be upheld. The learned counsel for the
petitioner also conceded before us that he was not going to
assail this provision.
The High Court has also declared sections 136(1),
136(2) (b), 136(2)(c), 136(2)(e), 136(2)(1)to be void as
offending against various provisions of article 19 the
Constitution, but no argument was addressed to us on behalf
of the Government of Bombay assailing the judgment of the
High Court with regard to these provisions. The judgment of
the High Court in regard to them will therefore stand.
I will now deal with two Notifications Nos. 10484/45
(c) and 2843/49(a), dated the 30th March, 1950, which
724
the High Court has held to be invalid. As regards the first
notification, the High Court has stated that section 139 (c)
having been held to be ultra vires the legislature, this
notification, which was issued under that section is ultra
vires the Bombay Government. But. since this Court has
taken a different view in regard to the validity of section
139(c), the decision of the High Court as regards the above
notification cannot stand. It appears from certain observa-
tions in the judgment under appeal, firstly that the High
Court upheld section 40(1) (c) (i) and (ii), which deals
with the grant of permits to foreigners who do not intend to
stay permanently in India, merely because the Explanation to
that section provided that “a person shall be deemed to be
residing or intending to reside in India temporarily, if the
period of his residence does not exceed six months”; and
secondly, that the High Court would have found it difficult
to uphold the classification on which section 40(1)(c) is
based if the restriction regarding six months’ residence was
not there, as would be the result of reading the section
subject to the above notification. I am however unable to
see how the notification will turn a classification which is
otherwise a good classification into a bad one. There is
nothing unreasonable in a law relating to prohibition dis-
criminating between Indian citizens against whom it is
primarily to be enforced, and foreigners who have no inten-
tion of permanently residing in this country. The condition
of six months’ residence which is laid down in the Explana-
tion to section 40 is somewhat arbitrary., and the mere fact
that the Government by notification withdrew this condition
cannot in principle alter the basis of the classification.
The High Court has declared the other notification
issued by the Government on the 30th March, 1950, to be
invalid on grounds which are stated in these words :–
“That notification exempts persons holding permits under
clause (c) of sub-section (1) of section 40, special permits
under section 41, or interim permits under section 47, from
the provisions of section 23(a)
725
in so far as it relates to the offering of foreign liquor to
persons holding similar permits. This is clearly not justi-
fied. Having created a class, having given to that class the
right of obtaining a permit on grounds other: than those of
health, it will be totally wrong to permit that class not to
abide by the same provisions with regard to permits as
others to whom permits have been given. The restrictions
placed by the legislature itself on a permit-holder regard-
ing the use and consumption of his stock of liquor is to be
found in section 43 under which the permit-holder shall not
allow the use and consumption by any person who is not a
permit-holder. That restriction must apply equally to
permits issued under section 40 to Indian citizens as well
as foreigners, and in our opinion it is improper to allow a
foreigner permit-holder to stand drinks to other permit-
holders and to deny that privilege to Indian permit-holders.
The guarantee of equality before the law extends under our
Constitution not only to legislation but also to rules and
notifications made under statutory authority and even to
executive orders and as the notification offends against the
principle of equality it is, therefore, void.”
In order to understand these remarks, it will be neces-
sary to state that persons holding permits under clause (c)
of sub-section (1) of section 40 are foreigners as described
in sub-clauses (i)and (ii)of clause (c), that persons hold-
ing special permits under section 41 are foreign sovereigns,
ambassadors, etc., and that persons holding interim permits
under section 47 are persons applying for permits under
either section 40, or section 41. The last class will in-
clude not only foreigners but also Indian citizens applying
for permits on the ground that their health will be serious-
ly and permanently affected if they are not permitted to use
or consume liquor. Thus, the assumption on which the con-
clusion of the High Court is based, does not appear to be
correct. Besides, I do not find anything in this notifica-
tion which violates the principle of equality. It simply
enables a certain class of persons holding permits to offer
drinks to persons holding similar permits,
726
This is in accord with the principle underlying the provi-
sions of section 43 which has not been assailed before us
and which provides that “no holder of a :permit granted
under section 40 or 41 shall allow the use or consumption of
any part of the stock held by him under the permit to any
person who is not the holder of such a permit”. In my
opinion, there is no substantial ground for holding the
notification to be invalid. The points relating to the
notifications are extremely small, and the subtle distinc-
tions upon which they are based, are hardly worth the atten-
tion which the High Court has bestowed on them.
There is another point which arises on the judgment of
the High Court, which may also be noticed. The point is set
out in that judgment in these words :–
“When a person applies for a permit on the ground of
health. he has to forward with it a certificate from the
medical board and when we turn to the form of this certifi-
cate, it requires the medical board to declare the applicant
an addict. Therefore the position is that it is only on the
applicant being found an addict by the medical board that he
would be entitled to a permit if his health would be seri-
ously and permanently affected if he was not permitted to
use or consume liquor. It is not only in the case of ad-
dicts that such a contingency would arise. Even persons who
are not addicts may have been accustomed to drink for a long
period of time and a sudden discontinuance of drink may
seriously and permanently affect their health. It may also
happen that without being accustomed to drink at all a
person may contract an illness which may require the use by
him of alcoholic drink under medical opinion. To be an
addict, in our opinion, means something more than being
merely accustomed to drink. We must give to it its plain
natural meaning. It is certainly not a term of art, and
giving to it its plain natural meaning, the expression
“addict” does carry with it a sense of moral obloquy. The
intention of the Government seems to be that only persons
who confess that they are deviating from standards of moral-
ity should be given permits..Now,
727
insistence upon a medical certificate in this form is not
at all warranted by the provisions of the Act.”
The point is a small one, but it seems to me that
there is some substance in it. In my opinion, the word
“addict” in the medical certificate should be replaced
by the words used in section 40(1)(b) of the Act or
words corresponding to them.
The only other point which remains to be decided is
whether as a result of some of the sections of the Act
having been declared to be invalid, what is left of the Act
should survive or whether the whole Act should be declared
to be invalid. This argument was raised before the High
Court also, but it was rejected and it was held that it was
not possible on a fair review of the whole matter to assume
that the legislature would not have enacted the part which
remained without enacting the part that was held to be bad.
It is to be noted that upon the findings of the High Court,
the question should have assumed a more serious aspect
than it presents now, because the High Court has de-
clared several important sections of the Act including
the definition of “liquor” to be ultra vires the legisla-
ture. I have now examined those sections and have held
many of them to be valid. The provisions which are in my
view invalid cannot affect the validity of the Act as a
whole. The test to be applied when an argument like the
one addressed in this case is raised,has been very correctly
summed up by the Privy Council in Attorney-General for
Alberta v. Attorney- General for Canada(1) in these words:–
” The real question is whether what remains is so
inextricably bound up with the part declared invalid
that what remains cannot independently survive or. as it
has sometimes been put, whether on a fair review of the
whole matter it can be assumed that the legislature would
have enacted what survives without enacting the part
that is ultra vires at all.”
It is quite clear that the provisions held by me to be
invalid are not inextricably bound up with the
(1) [1947] A.C. 505 at 518.,
728
remaining provisions of the Act, and it is difficult to hold
that the legislature would not have enacted the Act at all
without including that part which is found to be ultra
vires. The Act still remains substantially the Act as it was
passed, i.e., an Act amending and consolidating the law
relating to the promotion and enforcement of the policy of
prohibition and also the Abkari law in the Province of
Bombay.
In the result, I declare the following provisions of the
Act only to be invalid :–
(1) Clause (c) of section 12, so far as it affects the
possession of liquid medicinal and toilet preparations
containing alcohol.
(2) Clause (d)of section 12, so far as it affects the
selling or buying of such medicinal and toilet preparations
containing alcohol.
(3) Clause (b) of section 13, so far as it affects the
consumption or use of such medicinal and toilet preparations
containing alcohol.
(4) Clause (a) of section 23, so far as it prohibits
the commendation of any intoxicant or hemp.
(5) Clause (b) of section 23, in entirety.
(6) Clause (a) of sub-section (1) of section 24, so far
as it prohibits commendation of any intoxicant or hemp.
(7) Sub-section (1) of section 136, in entirety.
(8) Clauses (b), (c), (e), and (f) of sub-section (2)
of section 136, in their entirety.
I hold that the rest of the provisions of the Act are
valid, and I also hold that my decision declaring some of
the provisions of the Act to be invalid does not affect the
validity of the Act as it remains. Appeal No. 182, pre-
ferred by the State of Bombay, is therefore substantially
allowed and Appeal No. 183 preferred by the petitioner is
dismissed.
On the question of costs, I am disposed to make the same
order as the High Court has made, not only because some of
the provisions of the Act are still found to be invalid, bUt
also because the present case
729
appears to have been instituted to test the validity of a
controversial measure and to secure a final decision on it
to set at rest the doubts and uncertainties which may have
clouded the minds of a section of the public as to how far
the provisions of the Act conform to law and to the Chapter
on Fundamental Rights in the present Constitution.
PATANJALI SASTRI J.-I agree and have nothing more to
add.
MUKHERJEA J.–I have read the judgment of my learned brother
Mr. Justice Fazl Ali and I am in entire agreement with his
conclusions and reasons. There is nothing further which I
can usefully add.
S.R. DAS J.–I agree and I have nothing further to add.
VlVlAN BOSE J.–I also agree.
Appeal No. 182 allowed.
Appeal No. 183 dismissed.
Agent for the appellants in Case No. 182 and respondents
in Case No. 183: P.A. Mehta.
Agent for the respondent in Case No. 182 and appellant
in Case No. 183. Rajinder Narain for R.A. Gagrat.
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