{"id":256959,"date":"1951-05-25T00:00:00","date_gmt":"1951-05-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-bombay-and-another-vs-f-n-balsara-on-25-may-1951"},"modified":"2018-09-17T15:48:35","modified_gmt":"2018-09-17T10:18:35","slug":"the-state-of-bombay-and-another-vs-f-n-balsara-on-25-may-1951","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-bombay-and-another-vs-f-n-balsara-on-25-may-1951","title":{"rendered":"The State Of Bombay And Another vs F.N. Balsara on 25 May, 1951"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The State Of Bombay And Another vs F.N. Balsara on 25 May, 1951<\/div>\n
Equivalent citations: 1951 AIR 318, 1951 SCR 682<\/div>\n
Author: S Fazal Ali<\/div>\n
Bench: Fazal Ali, Saiyid, Sastri, M. Patanjali, Mukherjea, B.K., Das, Sudhi Ranjan, Bose, Vivian<\/div>\n
           PETITIONER:\nTHE STATE OF BOMBAY AND\t ANOTHER\n\n\tVs.\n\nRESPONDENT:\nF.N. BALSARA\n\nDATE OF JUDGMENT:\n25\/05\/1951\n\nBENCH:\nFAZAL ALI, SAIYID\nBENCH:\nFAZAL ALI, SAIYID\nSASTRI, M. PATANJALI\nMUKHERJEA, B.K.\nDAS, SUDHI RANJAN\nBOSE, VIVIAN\n\nCITATION:\n 1951 AIR  318\t\t  1951 SCR  682\n CITATOR INFO :\n F\t    1952 SC  75\t (21,54,70)\n RF\t    1952 SC 123\t (45)\n F\t    1953 SC 156\t (49)\n F\t    1953 SC 333\t (13)\n R\t    1955 SC  58\t (6)\n E\t    1955 SC 123\t (6,7,9,17,20,21,22,23,24,25,27\n R\t    1955 SC 191\t (5)\n F\t    1957 SC 503\t (15,16)\n F\t    1957 SC 628\t (12,14,19,20,21)\n R\t    1957 SC 877\t (16)\n D\t    1957 SC 927\t (9)\n R\t    1958 SC 328\t (22)\n R\t    1958 SC 468\t (44A)\n E\t    1958 SC 538\t (11,12,17)\n F\t    1958 SC 560\t (20)\n RF\t    1958 SC 578\t (211)\n R\t    1959 SC 648\t (21)\n R\t    1960 SC 554\t (9)\n RF\t    1963 SC 703\t (37,43)\n D\t    1963 SC1470\t (7)\n R\t    1963 SC1531\t (4,5)\n RF\t    1964 SC 648\t (48)\n R\t    1966 SC 722\t (7)\n RF\t    1967 SC1110\t (16)\n F\t    1968 SC 888\t (6)\n RF\t    1970 SC 564\t (53)\n RF\t    1972 SC 425\t (10)\n RF\t    1973 SC1461\t (456,616,742,1212,1218)\n R\t    1974 SC 543\t (30,32)\n RF\t    1975 SC 360\t (19,24)\n F\t    1975 SC1121\t (44,53)\n R\t    1977 SC 722\t (29)\n E\t    1978 SC 449\t (29)\n F\t    1978 SC 771\t (13,44)\n RF\t    1980 SC 614\t (10,11,12,15,16)\n RF\t    1980 SC1789\t (121)\n RF\t    1981 SC 873\t (33)\n RF\t    1981 SC1863\t (15,17)\n R\t    1983 SC1019\t (52)\n RF\t    1986 SC 987\t (2)\n RF\t    1986 SC1541\t (9)\n RF\t    1988 SC 771\t (5)\n E\t    1990 SC1927\t (27,28,29,41,56,67,73,75,76)\n RF\t    1990 SC2072\t (48)\n RF\t    1991 SC 672\t (33)\n RF\t    1992 SC1277\t (85)\n\n\nACT:\n    Bombay  Prohibition\t Act (XXV  of  1949)--Constitutional\nvalidity  --Applicability  of  Act  to\tforeign\t liquors--To\nmedicinal and toilet preparations containing alcohol--Valid-\nity of ss. 2(24) (a), 12, 13, 23, 24, 39, 40(1) (b), 46, 52,\n53, 139 (c)--Law of Province prohibiting possession and sale\nof  foreign  liquor within Province--Whether  encroaches  on\npower\tof  Dominion  to  make\tlaws  as  to   \"import\t and\nexport\"--Doctrine  of  original\t package--Applicability\t  to\nIndia--Construction  of\t Lists--Restriction  on\t fundamental\nright  \"to  acquire, hold and dispose of  property\"  and  to\n\"equal\tprotection of the laws\" --Government of\t India\tAct,\n1935, s. 297 (4), Seventh Sched., List I entry 19 --List  II\nentry 31--Constitution of India, Arts. 14, 19(1), 19 (2).\n\n\n\nHEADNOTE:\n     Under  entry 31 of List II of the Seventh\tSchedule  to\nthe  Government of India Act, 1935, the Provincial  Legisla-\ntures had the power to make laws in respect of \"intoxicating\nliquors,  that is to say, the production, manufacture,\tpos-\nsession,  transport, purchase and sale of intoxicating\tliq-\nuors\" and under entry 19 of List I, the Dominion Legislature\nhad  the  power\t to make laws with respect  to\t\"import\t and\nexport across customs frontiers\". The constitutional validi-\nty  of\tthe Bombay Prohibition Act, 1949, in so\t far  as  it\nrestricted  the possession and sale of foreign\tliquors\t was\nimpugned  on the ground that it was an encroachment  on\t the\nfield assigned to the Dominion Legislature under entry 19 of\nList I:\n    Held, (i) that the words \"possession and sale\" occurring\nin  entry 31 of List II must be read without any  qualifica-\ntion,  and the word \"import\" in entry 19 of List 1  standing\nby itself will not include either sale or possession of\t the\narticle\t imported into the country.  There was thus no\tcon-\nflict between entry 31 of List i1 and entry 19 of List I and\nthe  Bombay  Prohibition Act, in so far as it  purported  to\nrestrict the possession and sale of foreign liquors, did not\nencroach  upon the field of the Dominion  Legislature;\t(ii)\neven assuming that the prohibition of purchase, use,\n683\npossession,  transport\tand sale of liquor will\t affect\t its\nimport, the Bombay Prohibition Act was in pith and substance\nan Act falling within entry 31 of List II and the fact\tthat\nthe  law  incidentally\tencroached upon the  powers  of\t the\nDominion  Legislature  under entry 19 of List  I  would\t not\naffect its validity.\n    The\t American doctrine of \"original package\" which\tlaid\ndown that importation was not over so long as the goods were\nstill  in the original package, has no application in  India\nhaving\tregard\tto the scheme of legislation that  has\tbeen\noutlined  in the Government of India Act, 1935, and  in\t the\npresent\t Constitution  in which the various entries  in\t the\nLegislative  Lists have been expressed in clear and  precise\nlanguage.\n    Bhola  Prasad  v. The King Emperor [1942] F.C.R  17\t and\nMiss Kishori Shetty v. The King<\/a> [1949] F.C.R. 650 relied on.\nIn  re the Central Provinces and Berar Act<\/a> No. XIV  of\t1938\n[1939] F.C.R. 18, The United Provinces v. Atiqa Begum [1940]\nF.C.R.\t110,  Governor.\t General  in  Council  v.   Province\no\/Madras  [1945] F.C.R. 179,  Prafulla Kumar  Mukherjea\t and\nOthers v. Bank of Commerce, Khulna<\/a> [1947] F.C.R. 28, Subrah-\nmanyan\tChettiar  v. Muthuswami Goundan\t [1948]\t F.C.R.\t 207\nreferred  to: Brown v. Maryland (25 U.S. 419) and  Leisy  v.\nHardin (135 U.S. 100)distinguished.\n    The\t Bombay Prohibition Act, 1949, does not in  any\t way\ncontravene the provisions of s. 297(1)<\/a> (a) of the Government\nof  India  Act. 1935, inasmuch as it is not a  law  made  by\nvirtue\tof the entry relating to \"trade and commerce  within\nthe Province\" (entry 2 of List II) or the entry relating  to\n\"the  production,  supply and distribution  of\tcommodities\"\n(entry\t29 of List If). Bhola Prasad v. King Emperor  [1942]\nF.C.R. 17 followed.\n    The word \"liquor\" as understood India at the time of the\nGovernment   of\t India\tAct,  1935,  covered not only  those\nalcoholic liquids which are generally used as beverages\t and\nproduce\t intoxication,\tbut  also  all\tliquids\t  containing\nalcohol;  the definition of\" liquor\" contained in s. 2<\/a>\t(24)\nof the\tBombay Prohibition Act, 1949, is not therefore ultra\nvires.\nSection 39<\/a> of the Act which empowers the Provincial  Govern-\nment  to permit the use or consumption of foreign liquor  on\ncargo  boats,  warships and troopships and in  military\t and\nnaval messes and canteens does not contravene Art. 14<\/a> of the\nConstitution  (which provides that the State shall not\tdeny\nto  any person equality before the law or the equal  protec-\ntion of the laws) inasmuch as the relaxation of the  general\nlaw in respect of the persons contemplated by the section is\nnot  arbitrary\tor capricious but is based on  a  reasonable\nclassification.\n    Rule 67 of the Bombay Foreign Liquor Rules which  autho-\nrises  the granting of a permit to \"any foreigner on a\ttour\nof  lndia  who\tenters the State of Bombay  and\t desires  to\npossess, use and consume foreign liquor\" is not void on\t the\nground\tof  discrimination, firstly because, though it\tpro-\nvides for the case of a foreign\n684\nvisitor, there is no prohibition against any other  outsider\nbeing  granted\ta permit, and secondly, because\t the  policy\nunderlying  the\t rule is quite consistent  with\t the  policy\nunderlying  s.\t40<\/a> of the Act which enables  permits  to  be\ngranted to foreigners under certain conditions.\n    Sections 52<\/a>, 53<\/a> and 139<\/a> (c) of the Act do not constitute\ndelegation  of\tlegislative  power, and\t delegation  of\t the\ncharacter which these sections involve cannot in any view be\nheld to be invalid\n In re Delhi Laws Act<\/a>, 1912 etc.(1) relied on.\n    The restrictions imposed by ss. 12<\/a> and 13<\/a> of the Act  on\nthe possession, sale, use and consumption of liquor are\t not\nreasonable restrictions on the fundamental right  guaranteed\nby Art. 19 (1) (1)<\/a> of the Constitution \"to acquire, hold and\ndispose of property\", so far as medicinal and toilet  prepa-\nrations\t containing alcohol are concerned and the said\tsec-\ntions  are invalid so far as they prohibit  the\t possession,\nsale,  use  and\t consumption of these  articles,   but\t the\nsections  are not wholly void on this ground as the  earlier\ncategories  mentioned in the definition of  liquor,  namely,\nspirits of wine, methylated spirit, wine, beer and toddy are\ndistinctly separable items which are easily severable.\tfrom\nthe  last category, namely, all liquors containing  alcohol,\nand  the restrictions on the possession, sale, use and\tcon-\nsumption  of these earlier categories are  not\tunreasonable\nrestrictions.\n    Romesh Thappar v. The State of Madras<\/a> [1950] S.C.R.\t 594\nand  Chintaman\tRao v. The State of  Madhya  Pradesh<\/a>  [1950]\nS.C.R. 759 distinguished.\n    Sections  23<\/a> (a) and 24 (1) (a) of the Act in so far  as\nthey refer to \"commending \"any intoxicant, conflict with the\nfundamental  right of freedom of speech and expression\tgua-\nranteed\t by Art. 19 (1) (a)<\/a> of the Constitution and none  of\nthe  conditions mentioned in cl. (2) of Art. 19<\/a>\t applies  to\nthe  case and therefore these provisions are void.   Section\n23<\/a> (b) is also void, because the words \"incite\" and \"encour-\nage\" are wide enough to include incitement and encouragement\nby words and speeches and also by acts and the words used in\nthe  section are so wide and vague that the clause  must  be\nheld to be void in its entirety.\n    There  is  nothing\tunreasonable in a  law\trelating  to\nprohibition  discriminating between Indian citizens  against\nwhom it is primarily to be enforced and foreigners who\thave\nno  intention of permanently residing in India. A  provision\nenabling a certain class of persons holding permits to offer\ndrink to persons holding similar permits is also not  unrea-\nsonable.   Notifications No. 10484\/45C and 2843\/49  (a)\t are\nnot therefore invalid.\nThe  requirement  that an applicant for a permit  on  the\nground\tof  health under s. 40<\/a> (1) (b) must  get  a  medical\ncertificate declaring that he is an \"addict\" is not warrant-\ned by the provisions of\n(1) Reported infra.\n685\nthe  Act.   The\t word \"addict\" in the form  of\tthe  medical\ncertificate  should therefore be replaced by the words\tused\nin s. 40<\/a> (1) (b) of the Act or words corresponding to them.\n    The\t provisions  of the Act which have been held  to  be\ninvalid are not so inextricably bound up with the  remaining\nprovisions of the Act as to render the whole Act void.\n    [The  decision of the High Court that ss. 136<\/a>  (1),\t 136\n(2) (b), 136 (2) (c), 136 (2) (e) and 136 (21 (f) were\tvoid\ninasmuch  as they offended against Art. 19<\/a> of the  Constitu-\ntion was not assailed before the Supreme Court.]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION. Appeal under Article\t 132
\n(1)<\/a> of the Constitution of India from the Judgment and Order
\ndated the 22nd August, 1950, of the High Court of Judicature
\nat Bombay in Miscellaneous Application No. 139 of 1950.
\n   M.C.\t Setalvad and C.K. Daphtary (M. M. Desai  and  H.M.
\nSeervai\t with them) for the appellants in Case No.  182\t and
\nrespondents in Case No. 183.\n<\/p>\n
    N.P.  Engineer (G. N. Joshi, R.J. Kolah and N.A.  Palki-
\nwala,  with  him) for  the respondent in Case  No.  182\t and
\nappellant in Case No. 183.\n<\/p>\n
    1951. May 25. The Judgment of the Court was delivered by
\n    FAZL  ALI J.–These appeals arise from the judgment\t and
\norder  of  the High Court of Judicature at Bombay  upon\t the
\napplication of one F.N. Balsara (hereinafter referred to  as
\nthe petitioner), assailing the validity of certain  specific
\nprovisions  of the Bombay Prohibition Act, 1949 (Bombay\t Act
\nNo.  XXV  of  1949), as well as of the Act  as\twhole.\t The
\npetitioner, claiming to be an Indian citizen, prayed to\t the
\nHigh  Court  inter alia for a writ of mandamus\tagainst\t the
\nState  of Bombay and the Prohibition  Commissioner  ordering
\nthem  to forbear from enforcing against him’ the  provisions
\nof the Prohibition Act<\/a> and for the issue of a writ of manda-
\nmus ordering them (1) to allow him to exercise his right  to
\npossess,  consume and use certain articles, namely,  whisky,
\nbrandy,\t wine, beer, medicated wine,  eau-de-cologne,  etc.,
\nand  to import and export across  the Customs frontier\t and
\nto
\n686<\/span>
\npurchase,  possess,  consume and use any  stock\t of  foreign
\nliquor, eau-de-cologne, lavender  water, medicated wines and
\nmedicinal  preparations containing alcohol, and (2) to\tfor-
\nbear from interfering with his right to possess these  arti-
\ncles and to take no steps or proceedings against him,  penal
\nor otherwise, under the Act.  The petitioner also prayed for
\na similar order under section 45<\/a> of the Specific Relief\t Act
\nagainst the respondents. The High Court, agreeing with\tsome
\nof the petitioner’s contentions and disagreeing with others,
\ndeclared some of the provisions of the Act to be invalid and
\nthe  rest  to be valid.\t Both the State of  Bombay  and\t the
\npetitioner, being dissatisfied with the judgment of the High
\nCourt, have appealed to this Court after obtaining a certif-
\nicate  from the High Court under article 132(1)<\/a> of the\tCon-
\nstitution.\n<\/p>\n
    The Act<\/a> in question was passed by the Legislature of the
\nProvince  of Bombay as it was constituted in 1949,  and\t was
\npublished in the Bombay Government Gazette on the 20th\tMay,
\n1949,  and came into force on the 16th June, 1949.  The\t Act<\/a>
\nconsists  of  148 sections with 2 schedules and\t is  divided
\ninto  11 chapters. It is both an amending and  consolidating
\nAct and incorporates the provisions of the Bombay Abkari Act
\nwhich  it  repeals and also those of the  Bombay  Opium\t and
\nMolasses  Acts and contains new provisions for putting\tinto
\nforce the policy of prohibition ‘which is one of the objects
\nmentioned  in the preamble of the Act.\tThe  most  important
\nprovision  in Chapter I is the definition of “liquor”  which
\nhas been vigorously assailed as being too wide and therefore
\nbeyond\tthe powers of the Provincial  Legislature.   Chapter
\nII  relates  to\t establishment and is not  relevant  to\t the
\npresent\t appeal.  Chapter III, which contains  a  number  of
\nprohibitions  in regard to liquor as defined in the Act,  is
\nsaid  to  enact sweeping provisions which are liable  to  be
\nassailed. Sections 12<\/a> and 13<\/a> and the relevant provisions  of
\nsections 23<\/a> and 24<\/a> in this chapter may be quoted:’-\n<\/p>\n
 12. No person shall(a) manufacture liquor;\n<\/p>\n
  687<\/span><\/p>\n
(b) construct or work any distillery or brewery, (c) import,
\nexport, transport or possess liquor; or\n<\/p>\n
      (d) sell or buy liquor. 13. No person shall –\n<\/p>\n
(a)  bottle any liquor for sale; (b) consume or use  liquor;
\nor\n<\/p>\n
    (c)\t use, keep or have in his possession any  materials,
\nstill, utensils, implements or apparatus whatsoever for\t the
\nmanufacture of any liquor.\n<\/p>\n
23. No person shall-\n<\/p>\n
(a)  commend,  solicit the use of, offer any  intoxicant  or
\nhemp, or\n<\/p>\n
    (b) incite or encourage any member of the public or\t any
\nclass  of individuals or the public generally to commit\t any
\nact which frustrates or defeats the provisions of this\tAct,
\nor   any   rule,  regulation  or  order\t  made\t thereunder,
\nor  ………….\n<\/p>\n
    24(1).  No\tperson shall print or publish in  any  news-
\npaper,\tnews-sheet,  book,  leaflet, booklet  or  any  other
\nsingle\tor  periodical publication or otherwise\t display  or
\ndistribute any advertisement or other matter-\n<\/p>\n
    (a)\t which commends, solicits the use of, or offers\t any
\nintoxicant or hemp,\n<\/p>\n
    (b)\t which\tis  calculated to encourage  or\t incite\t any
\nindividuals  or\t the public generally to commit\t an  offence
\nunder  this  Act, or to commit a breach of or to  evade\t the
\nprovisions of any rule, regulation or order made  thereunder
\nor the conditions of any licence, permit, pass or authorisa-
\ntion granted thereunder.\n<\/p>\n
    Chapter  IV\t relates to “control, regulation and  exemp-
\ntions  “,  and\tcontains inter alia sections 30<\/a>\t to  38<\/a>\t and
\nsection 44<\/a> which provide for cases in which licenses for the
\nmanufacture,  export, import, transport, sale or  possession
\nof  liquor may be granted; section 39<\/a>, which authorises\t the
\nGovernment  to\tpermit\tthe use or  consumption\t of  foreign
\nliquor on cargo boats, warships, troopships and in  military
\nand  naval messes and canteens; section 40<\/a>,  which  provides
\nfor the grant of
\n688<\/span>
\npermits\t for  the use or consumption of\t foreign  liquor  to
\npersons\t whose\thealth would be\t seriously  and\t permanently
\naffected  if they were not permitted to use or consume\tsuch
\nliquor\tand to foreigners who do not intend to\tstay  perma-
\nnently\tin India; section 41<\/a>, which enables special  permits
\nto  be granted to diplomats and foreign sovereigns;  section
\n45<\/a>, which authorises use of liquor for sacramental purposes;
\nsection\t 52<\/a>, which empowers an authorized officer  to  grant
\nlicenses, permits, etc., in cases not specifically  provided
\nfor; section 53<\/a>, which deals with the form in which and\t the
\nconditions  under which licenses, etc., may be granted;\t and
\nsection 54<\/a> which provides for the cancellation or suspension
\nof licenses and permits. The other material chapters of\t the
\nAct are Chapter VII, which provides for offences and  penal-
\nties, and Chapter IX which deals with “powers and duties  of
\nofficers  and  procedure.” Sections 118<\/a> and 119<\/a> of  the\t Act
\ndeclare the offences under the Act to be cognisable and some
\nof  them to be non-bailable. Under section 121<\/a>,\t any  autho-
\nrised prohibition officer or any police officer may open any
\npackage\t and  examine  any goods and may  stop\tany  vessel,
\nvehicle\t or  other means of conveyance and  search  for\t any
\nintoxicant..Section  136<\/a>  (1)provides  that if\tany  of\t the
\nofficers  mentioned therein is satisfied that any person  is
\nacting\tor  is likely to act in a manner  which\t amounts  to
\npreparation,  attempt, abetment or commission of any of\t the
\noffences  punishable under section 65<\/a> or 68 of the  Act,  he
\nmay  arrest such person\t without a warrant and\tdirect\tthat
\nsuch  person  shall  be committed to such’ custody  as\tsuch
\nofficer may    deem fit for a period not exceeding 15  days.
\nBy  section  136(2)<\/a>, the State Government is given  the\t ex-
\ntraordinary  power of imposing restriction on the  right  of
\nfree  movement\tof any person if it is satisfied  that\tsuch
\nperson\tis acting or is likely to act in the  manner  afore-
\nsaid.  Chapter XI contains certain miscellaneous  provisions
\nand the only sections of this Chapter which need be referred
\nto are section 139<\/a> (c), which states that the State  Govern-
\nment  may by general or special order exempt any  person  or
\nclass  of  persons or institution or class  of\tinstitutions
\nfrom the
\n  689<\/span>
\nobservance of all or any of the provisions of the Act or any
\nrule, regulation or order made thereunder, and\tsection 147<\/a>,
\nwhich  declares that nothing in the Act shall be  deemed  to
\napply  to any intoxicant or other article in respect of\t its
\nimport\tor export across the customs frontier as defined  by
\nthe Central Government.\n<\/p>\n
The  High  Court accepted the contention of  the  petitioner
\nthat the definition of “liquor” in the Act was too wide\t and
\nwent beyond the power vested in the legislature to legislate
\nwith  regard to intoxicating liquors under item 31  of\tList
\nII. It also held the following sections to be invalid :-
\nSections  23<\/a>  (a)  and 24 (1) (a) so far as  they  refer  to
\n“commending”; section 23<\/a> (b); 24 (1) (b) so far as it refers
\nto  “evasion”; section 39<\/a>; section 52<\/a>; section 53<\/a>  in  part;
\nsection\t 136<\/a>  (1); section 136<\/a> (2) (b), (c), (e),  (f);\t and
\nsection\t 139<\/a>  (c). The High Court also held Rule 67  of\t the
\nBombay Foreign Liquor Rules and Notifications Nos.  10484\/45\n<\/p>\n
(c)  and 2843\/49 (a), dated the 30th March,  1950,  invalid.
\nIt further held that the word”addict” in the medical certif-
\nicate was not warranted by the provisions of the Act.
\nThe  two important questions which this Court  is     called
\nupon to decide in these appeals are :–\n<\/p>\n
   (1)\twhether there are sufficient grounds  for  declaring
\nthe whole Act to be invalid; and
\n   (2) to what extent the judgment of the High Court can  be
\nupheld\twith  regard to the specific provisions of  the\t Act
\nwhich  have been declared by it to be void. It seems  to  me
\nthat  it  will be convenient to deal in the  first  instance
\nwith  the  argument assailing the validity of the Act  as  a
\nwhole, which is based on three grounds, these being :–
\n   (1)\tthat the law is an encroachment on the\tfield  which
\nhas  been  assigned exclusively to the\tCentral\t Legislature
\nunder entry 19 of List I;\n<\/p>\n
   (2)\tthat  some  of the material provisions\tof  the\t Act
\ninterfere  with or are calculated to interfere\twith  inter-
\nState trade and commerce and as such transgress the\n<\/p>\n
690.
\nprovisions  of section 297 of the Government of\t India\tAct,
\n1935 ;and
\n(3)  that the High Court having ‘held a number\tof  material
\nprovisions  to\tbe void, should have declared the Act  as  a
\nwhole  to be invalid, especially as the provisions found  by
\nthe  High Court to be void’ are not severable from the\trest
\nof the Act and it cannot be said that the legislature  would
\nhave  passed  the Act in the truncated form in which  it  is
\nleft after the decision of the High Court.\n<\/p>\n
   It is obvious that the proper occasion to deal with\tthe
\nthird ground will be after examining the specific provisions
\nwhich  have been declared by the High Court to be void,\t but
\nthe first two grounds may be dealt with at once.
\n    The\t first question is whether the impugned law  can  be
\nsaid to have made any encroachment upon the field of  legis-
\nlation\tassigned  to the Centre.  In order  to\tdecide\tthis
\npoint, it will be necessary to refer to entry No. 31 in List
\nII,  under  which the law purports to have  been  made,\t and
\nentry  No. 19 of List I, which is said to have\tbeen  trans-
\ngressed.  These entries run as follows:–\n<\/p>\n
    Entry  31,\tList II: Intoxicating liquors  and  narcotic
\ndrugs, that is to say, the production, manufacture,  posses-
\nsion, transport, purchase and sale of intoxicating  liquors,
\nopium  and  other narcotic drugs, but subject,\tas  respects
\nopium, to the provisions of List I and, as respects  poisons
\nand dangerous drugs, to the provisions of List I11.
\n    Entry  19,\tList  I: Import and  export  across  customs
\nfrontiers as defined by the Dominion Government.
\n    Prima  facie, it would seem that there is no  real\tcon-
\nflict between these two entries, because entry 31 of List II
\nhas  no reference to import or export but merely deals\twith
\nproduction, manufacture, possession, transport, purchase and
\nsale.  Dealing with this entry, Gwyer C.J. observed as\tfol-
\nlows in the case of Bhola Prasad v. The King Emperor (1):–
\n(1) [1942] F.C.R. 17 at 25.\n<\/p>\n
  691<\/span><\/p>\n
       “A  power to legislate ‘with respect to\tintoxicating
\nliquors’  could\t not well be expressed in wider\t terms,\t and
\nwould, in our opinion, unless the meaning of the words\tused
\nis  restricted\tor  controlled by the context  or  by  other
\nprovisions  in\tthe Act, undoubtedly include  the  power  to
\nprohibit intoxicating liquors throughout the Province or  in
\nany specified part of the Province.”\n<\/p>\n
       Thus, under entry 31, the Provincial Legislature\t can
\npass any law regarding production,  manufacture,  transport,
\npurchase,  possession and sale of intoxicating liquor.\t But
\nthe  point  that is pressed for our  consideration  is\tthat
\n“import” does not end with mere landing of the goods on\t the
\nshore or their arrival in the customs house, but it  implies
\nthat the imported goods must reach the hands of the importer
\nand he should be able to possess them. On this basis, it  is
\ncontended  that there is no difference in effect  between  a
\npower to prohibit the possession and sale of an article\t and
\na  power  to prohibit its import or  introduction  into\t the
\ncountry,  since the one would be a necessary consequence  of
\nthe  other.   This contention is based\tupon  some  American
\ncases to which I shall refer later, but it may be stated  at
\nonce that the point which is raised in this case is precise-
\nly the point which was raised and negatived in Miss  Kishori
\nSherry v. The King (1). In that case, the appellant had been
\nconvicted   under  section 14-B of the\tBombay\tAbkari\tAct,
\n1878, as amended by the Bombay Abkari (Amendment) Act, 1947,
\nfor  having in her possession a certain quantity of  foreign
\nliquor\tin excess of the limit prescribed by a\tnotification
\nissued under the following provision of the Act :–\n<\/p>\n
       “14-B  (2)  ………  the Provincial Government\t may
\nby notification in the Official Gazette prohibit the posses-
\nsion  by any individual or a class or a body of\t individuals
\nor the public generally, either throughout the whole  Presi-
\ndency or in any local area, of any intoxicant, either  abso-
\nlutely or subject to such conditions as it may prescribe.”
\n(1) [1949]  F.C.R. 6S0.\n<\/p>\n
692<\/span><\/p>\n
The  main argument advanced in that case was  reproduced  in
\nthe judgment in these words :-\n<\/p>\n
    “But counsel for the appellant drew attention to item 19
\nof  List I which covers “Import and export   across  customs
\nfrontiers  as  defined\tby the\tDominion  Government”,\t and
\nargued that if “intoxicating liquors” in item 31 of List  II
\nwere held to include also liquors imported from abroad, then
\nthe  Provincial\t Legislature, by prohibiting  possession  of
\nsuch  liquors  by all persons,\twhether\t private  consumers,
\ncommon\tcarriers or warehousemen, could defeat the power  of
\nthe  Federal  Legislature  to regulate\timports\t of  foreign
\nliquors\t across the sea or land frontiers of  British  India
\nwhich  are customs frontiers as defined by the Central\tGov-
\nernment and thus seriously jeopardise an important source of
\ncentral\t customs revenue.  As under section 100 of the\tCon-
\nstitution  Act the Provincial legislative powers under\tList
\n11  were  subject  to the exclusive powers  of\tthe  Federal
\nLegislature in List I, the Bombay Act to the extent to which
\nit  trenched upon the subject of item 19 of the latter\tList
\nmust, it was submitted, be regarded as a nullity.”\n<\/p>\n
     It\t will  be seen that the rationale  of  the  argument
\nthere  is the same as that of the argument advanced  in\t the
\npresent\t case,\tbut it was rejected for\t reasons  which\t are
\nclearly set out in the following passage :–\n<\/p>\n
    “These is, in our view, no irreconcilable conflict\there
\nsuch  as would\tnecessitate  recourse to  the  principle  of
\nFederal\t supremacy  laid down in section 100 of the  Consti-
\ntution\tAct.  Section 14-B<\/a> does not purport to\trestrict  or
\nprohibit dealings in liquor in respect of its importation or
\nexportation  across  the sea or land  frontiers\t of  British
\nIndia. It purports to deal with the possession of intoxicat-
\ning  liquors which, in the absence of limiting\twords,\tmust
\ninclude foreign liquors. It is far-fetched, in our  opinion,
\nto  suggest that, in so far as the provision covers  foreign
\nliquors, it is legislation with respect to import of liquors
\ninto British India by sea or land”\n<\/p>\n
693<\/span><\/p>\n
    Since  the\tenactment of the Government  of\t India\tAct,
\n1935, there have been several cases in which the  principles
\nwhich  govern  the interpretation of the  Legislative  Lists
\nhave been laid down. One of these principles is that none of
\nthe  items  in each List is to be read in a  narrow  or\t re-
\nstricted sense(1). The second principle is that where  there
\nis  a  seeming conflict between an entry in List II  and  an
\nentry  in List I, an attempt should be made to\tsee  whether
\nthe  two entries cannot be reconciled so as to avoid a\tcon-
\nflict of jurisdiction. This principle has been stressed in a
\nnumber of cases by the Federal Court as well as by the Privy
\nCouncil..  In In re The Central Provinces and Berar Act<\/a>\t No.
\nXIV  of 1938(2), the question arose as to whether a  tax  on
\nthe  sale  of motor spirits was a tax on the sale  of  goods
\nwithin\tentry 48 of the Provincial List or a duty of  excise
\nwithin entry 45 of the Federal List. Dealing with the diffi-
\nculty  which  arose  in that case, Gwyer  C.J.\tobserved  as
\nfollows :–\n<\/p>\n
    “Only in the Indian Constitution Act<\/a> can the  particular
\nproblem\t arise\twhich  is now under  consideration;  and  an
\nendeavour must be made to solve it, as the Judicial  Commit-
\ntee have said, by having recourse to the context and  scheme
\nof  the\t Act,  and a reconciliation  attempted\tbetween\t two
\napparently  conflicting\t jurisdictions by  reading  the\t two
\nentries together and by interpreting, and, where  necessary,
\nmodifying, the language of the one by that of the other.  If
\nindeed such a reconciliation should prove impossible,  then,
\nand only then, will the non-obstante clause operate and\t the
\nfederal\t power prevail; for the clause ought to be  regarded
\nas a last resource, a witness to the imperfections of  human
\nexpression and the fallibility of legal draftsmanship.”\n<\/p>\n
    To\tthe same effect are the following observations\tmade
\nby the Judicial Committee of the Privy Council in  Governor-
\nGeneral in Council v. Province of Madras(3),
\n    (1) Vide United Provinces v. Atiqa Begum, [1940]  F.C.R.
\n110 at 134.\n<\/p>\n
(2) [1939] F.C.R. 18.\t (3) [1945] F.C.R. 179 at 191.\n<\/p>\n
694<\/span><\/p>\n
after  referring to section 100 of the Government  of  India
\nAct, 1935 :–\n<\/p>\n
    “Their  Lordships do not doubt that the effect of  these
\nwords is that, if the legislative powers of the Federal\t and
\nProvincial Legislatures, which are enumerated in List I\t and
\nList  II  of the Seventh Schedule, cannot fairly  be  recon-
\nciled,\tthe latter must give way to the former. But  it\t ap-
\npears  to them that it is right first to consider whether  a
\nfair  reconciliation  cannot be effected by  giving  to\t the
\nlanguage of the Federal Legislative List a meaning which, if
\nless wide than it might in another context bear, is yet\t one
\nthat can properly be given to it, and equally giving to\t the
\nlanguage of the Provincial Legislative, List a meaning which
\nit  can\t properly  bear.” In the present  case,\t as  already
\npointed\t out. the words “possession and sale”  occurring  in
\nentry 31 of List II are to be read without any qualification
\nwhatsoever,  and  it will not be doing any violence  to\t the
\nconstruction  of  that\tentry to hold  that  the  Provincial
\nLegislature  has the power to prohibit the  possession,\t use
\nand sale of intoxicating liquor absolutely. If we forget for
\nthe  time being the principles which have been laid down  in
\nsome  of the American cases, it would be difficult  to\thold
\nthat  the  word\t ‘import’ standing by  itself  will  include
\neither\tsale or possession of the article imported into\t the
\ncountry by a person residing in the territory in which it is
\nimported. There is thus no real conflict between entry 31 of
\nList  II and entry 19 of List I, and I find it difficult  to
\nhold  that the Bombay Prohibition Act in so far as  it\tpur-
\nports  to restrict possession, use and sale of foreign\tliq-
\nuor. is an encroachment on the field assigned to the Federal
\nLegislature under entry 19 of List I.\n<\/p>\n
    There is also another way of dealing with the contention
\nraised\tbefore us.  It is well settled that the validity  of
\nan  Act is not affected if it incidentally trenches on\tmat-
\nters  outside  the  authorised field, and  therefore  it  is
\nnecessary  to  inquire\tin each case what is  the  pith\t and
\nsubstance  of the Act impugned. If the Act<\/a>, when so  viewed,
\nsubstantially falls within the
\n   695<\/span>
\npowers expressly conferred upon the Legislature which enact-
\ned it, then it cannot be held to be invalid, merely  because
\nit  incidentally encroaches on matters which have  been\t as-
\nsigned\tto  another legislature. This  was  emphasised\tvery
\nclearly in Gallagher v. Lynn(1) in these words :–\n<\/p>\n
    “It\t is  well established that you are to  look  at\t the
\n`true nature and character of the legislation ‘: Russell  v.
\nThe  Queen(2)  the pith and substance of  the  legislation’.
\nIf,.  on the view of the statute as a whole, you  find\tthat
\nthe  substance\tof  the legislation is\twithin\tthe  express
\npowers,\t then it is not invalidated if incidentally  it\t af-
\nfects matters which are outside the authorised field “.
\n    In\tPrafulla Kumar Mukherjee and Others v. Bank of\tCom-
\nmerce,\tLtd., Khulna(3) the question arose before the  Privy
\nCouncil\t whether the Bengal Money-lenders Act,\t1940,  which
\nprovided  that no borrower shall be liable to pay after\t the
\ncommencement  of the Act more than a limited sum in  respect
\nof  principal and interest, was intra vires  the  Provincial
\nLegislature  as\t dealing in pith and substance\twith  money-
\nlending and moneylenders, a subject-matter within the compe-
\ntence  of the Provincial Legislature under entry 27 of\tList
\nII,  or\t whether  it trenched  on   “promissory\t notes”\t and
\n“banking”,  which  were subjects reserved  for\tthe  Federal
\nLegislature under entries 28 and 38 respectively of List  I.
\nThe  Privy Council,  notwithstanding the fact that loans  on
\npromissory notes would also have been subject to the  provi-
\nsions of the impugned Act, held that the Act was valid, and,
\nwhile rejecting the argument that it was beyond the legisla-
\ntive  competence  of the Provincial  Legislature  which\t had
\nenacted it, their Lordships observed as follows :–\n<\/p>\n
    “As\t Sir  Maurice Gwyer C.J. said  in  the\tSubrahmanyam
\nChettiar case: “It must invevitably happen from time to time
\nthat  legislation, though purporting to deal with a  subject
\nin one list, touches also on a
\n (1) [1937] A.C. 863 at 870\t  (3) [1947] F.C.R. 28.
\n (21 7 A.C. 829.\n<\/p>\n
696<\/span><\/p>\n
subject in another list, and the different provisions of the
\nenactment may be so closely inter-twined that blind  observ-
\nance  to a strictly verbal interpretation would result in  a
\nlarge number of statutes being declared invalid because\t the
\nlegislature enacting them may appear to have legislated in a
\nforbidden  sphere. Hence the rule which has been evolved  by
\nthe  Judicial  Committee, whereby the  impugned\t statute  is
\nexamined to ascertain its `pith and substance’, or its\ttrue
\nnature and character, for the purpose of determining whether
\nit is legislation with respect to matters in this list or in
\nthat  “. Their Lordships agree that this  passage  correctly
\ndescribes the grounds on which the rule is founded, and that
\nit applies to Indian as well as to Dominion legislation-(1).
\n    The\t same principle was reiterated by the Federal  Court
\nin Ralla Ram v. The Province of East Punjab<\/a>(2), and was also
\nreferred  to  in Miss Kishori Shetty v. The King<\/a>(3)  in\t the
\nfollowing passage :–\n<\/p>\n
    “It\t may  be that a general adoption of  the  policy  of
\nprohibition  by\t the Provinces will lead to a  fall  in\t the
\nimport of foreign liquors and to a consequential  diminution
\nof  the Central customs revenue, but where the\tConstitution
\nAct<\/a>  has given to the Provinces legislative power  with\t re-
\nspect  to a certain matter in clear and\t unambiguous  terms,
\nthe  Court should not deny it to them or impose\t limitations
\non  its exercise, on such extraneous considerations.  It  is
\nnow well settled that if an enactment according to its\ttrue
\nnature, its pith and substance, clearly falls within one  of
\nthe  matters assigned to the Provincial Legislature,  it  is
\nvalid  notwithstanding\tits  incidental\t encroachment  on  a
\nFederal subject.”\n<\/p>\n
    The short question therefore to be asked is whether\t the
\nimpugned  Act  is in pith and substance a  law\trelating  to
\npossession and sale etc. of intoxicating liquors or  whether
\nit relates to import and export of intoxicating liquors.  If
\nthe true nature and character
\n(1) [1947] F.C.R. at p. 51.   (3) [1949] F.C.R. 650 at\t655.
\n(2) [1948] F.C.R. 207 at 225
\n  697<\/span>
\nof  the legislation or its pith and substance is not  import
\nand  export of intoxicating liquor but its sale and  posses-
\nsion  etc., then it is very difficult to declare the Act  to
\nbe  invalid.  It is said that the prohibition  of  purchase,
\nuse,  possession, transport and sale of liquor\twill  affect
\nits import. Even assuming that such a result may follow, the
\nencroachment,  if any, is only incidental and cannot  affect
\nthe  competence of the Provincial Legislature to  enact\t the
\nlaw in question.\n<\/p>\n
    On these considerations, there is really nothing else to
\nbe  said on the question before us, but in view of the\tvery
\ngreat  stress laid upon the American doctrine  of  “original
\npackage”,  it seems necessary to deal with what  that\tdoc-
\ntrine  means and under what conditions it was  evolved.\t The
\nwide  meaning  of ‘import’ on which reliance was  placed  on
\nbehalf\tof the petitioner was adopted for the first time  by
\nMarshall  C.J. in Brown v. Maryland(1), in which  the  facts
\nwere these.  The State of Maryland had passed an Act prohib-
\niting  importers of foreign goods from selling\ttheir  goods
\nwithout\t taking a license for which a certain amount had  to
\nbe paid. The question which was raised in that case was that
\nthe Act was repugnant to the provisions of the\tConstitution
\nwhich  provided that “no State shall without the consent  of
\nCongress  allow any imposts or duties on imports or  exports
\nexcept\twhat may be absolutely necessary for  executing\t its
\ninspection  laws.” In the course of his\t judgment,  Marshall
\nC.J. observed inter alia as follows :-\n<\/p>\n
    “There  is no difference, in effect, between a power  to
\nprohibit the sale of an article and a power to prohibit\t its
\nintroduction into the country. The one would be a  necessary
\nconsequence  of\t the other.  No goods would be\timported  if
\nnone  could  be sold.  No object of any description  can  be
\naccomplished by laying a duty on importation, which may\t not
\nbe accomplished with equal certainty by laying a duty on the
\nthing imported in the hands of the importer.”(2)
\nThe learned Chief Justice further observed :–
\n(1) (1827) 25 U.S, 419.\t    (2) (1827) 25 U.S. at p. 439.\n<\/p>\n
698<\/span><\/p>\n
    “Sale is the object of importation, and is an  essential
\ningredient of that intercourse, of which importation consti-
\ntutes  a part.\tIt is as essential an ingredient, as  indis-
\npensable  to  the existence of the entire  thing,  then,  as
\nimportation  itself.  It must be considered as\ta  component
\npart  of  the  power to regulate commerce.  Congress  has  a
\nright,\tnot only to authorise importation, but to  authorise
\nthe importer to sell.”(1)
\n    Upon principles so stated, what is known as the  “origi-
\nnal  package”  doctrine was evolved in\tAmerica,  which\t was
\napplied not only to commodities imported from foreign  coun-
\ntries  but  also to commodities which were  the\t subject  of
\ninter-state commerce. This doctrine laid down that  importa-
\ntion was not over so long as the goods were in the  original
\npackage and hence a State had no power to tax imports  until
\nthe original package was broken or there was one sale  while
\nthe goods were still in the original package. The  principle
\nupon  which this doctrine was founded is explained  by\tMar-
\nshall C.J. in the case referred to in these words:-\n<\/p>\n
    ”  There  must be a point of time when  the\t prohibition
\nceases,\t and  the  power of the State  to  tax\tcommences;we
\ncannot admit that this point of time is the instant that the
\narticles  enter\t the  country …It is\tsufficient  for\t the
\npresent\t to  say, generally, that when the importer  has  so
\nacted upon the thing imported that it has become incorporat-
\ned and mixed up with the mass of property in the country, it
\nhas,  perhaps, lost its distinctive character as an  import,
\nand has become subject to the taxing power of the State; but
\nwhile  remaining the property of the importer, in his  ware-
\nhouse,\tin  the\t original form of package in  which  it\t was
\nimported, a tax upon it is too plainly a duty on imports  to
\nescape the prohibition in the Constitution.”(2)
\n    The doctrine was reiterated in a number of cases, and in
\nLeisy v. Hardin(8), it was laid down that “the importers had
\nthe  right  to sell in the original  packages  unopened\t and
\nunbroken, articles brought into the
\n (1) (1827)25 U.S. at p. 447.\t   (a) 135 U.S. 100.
\n (2) (1827) 25 U.S. at p. 441.\n<\/p>\n
    699<\/span><\/p>\n
State  from  another State or  territory  notwithstanding  a
\nstatute\t of the State prohibiting the sale of such  articles
\nexcept\tfor purposes mentioned therein and under  a  license
\nfrom the State’ ‘. The American writers have however pointed
\nout the difficulty which arose from time to time in applying
\nthe “original package” doctrine, since sometimes very intri-
\ncate questions arose before the courts, such as whether\t the
\ndoctrine applied to the larger cases only or to the  smaller
\npackages contained therein, or whether it applied to smaller
\npaper  packages\t of  cigarettes taken from  loose  piles  of
\npackages  at  the factory and transported in  baskets.\t The
\ndifficulty in applying the doctrine was particularly experi-
\nenced  in  working prohibition schemes, and  to\t combat\t its
\nmischief and uncertainty, new legislative measures had to be
\npassed by the Congress like the Wilson Act, Webb-Kenyon Act,
\netc.   I do not wish to pursue the matter, but wish only  to
\npoint  out that the doctrine has no place in  this  country,
\nhaving\tregard\tto the scheme of legislation that  has\tbeen
\noutlined in the Government of India Act, 1935, and in  the’-
\npresent\t Constitution, in which the various entries  in\t the
\nLegislative  Lists have been expressed in clear and  precise
\nlanguage.  In The Province of Madras v. Boddu  Paidanna\t and
\nSons<\/a>(1),  Gwyer C.J. while expressing his  profound  respect
\nfor  the views expressed by Marshall C.J. in Brown v.  Mary-
\nland(2), mildly hinted that it was easier to follow the line
\nof  reasoning of Thompson J. in his dissenting\tjudgment  in
\nthat case and concluded with the following remarks :–\n<\/p>\n
    “Next, it is to be observed that the American  Constitu-
\ntion  also provides that Congress alone has power “to  regu-
\nlate  commerce\twith  foreign  nations,\t among\tthe  several
\nStates,\t and with the Indian tribes”, and it was  held\tthat
\nthe  Maryland  tax was no less repugnant to  this  provision
\nalso.  Marshall\t C.J. asked: “To what  purposes\t should\t the
\npower to allow importation be given, unaccompanied with\t the
\npower  to authorise the sale of the thing imported  ?\tCon-
\ngress has a right, not only to authorise importation, but to
\n(1) [1942] F.C.R. 90.\t   (2) (1827) 25 U.S. 419.\n<\/p>\n
700<\/span><\/p>\n
authorize  the\timporter to sell…What\t does  the  importer
\npurchase, if he does not purchase the privilege to sell?” On
\nthis view of the Commerce Clause, it would indeed be  diffi-
\ncult  to  recognize the right of the State to impose  a\t tax
\nupon the first sale of the commodity, at any rate so long as
\nit remained in the importer’s hands. In the Indian Constitu-
\ntion  Act  no  such question arises; and the  right  of\t the
\nprovincial Legislature to levy a tax on sales can be consid-
\nered  without any reference to so formidable a power  vested
\nin  the Central Government. Lastly, the prohibition  in\t the
\nAmerican Constitution is against the laying of “any  imposts
\nor  duties  on imports or exports “the\tprohibition  is\t not
\nmerely\tagainst\t the  laying of duties of  customs,  but  is
\nexpressed in what we conceive to be far wider terms; and  it
\ndoes not appear to us that it would necessarily follow\tfrom
\nthe  principle\tof the Maryland decision that in  India\t the
\npayment of customs duty on goods imported from abroad or the
\npayment of an excise duty on goods manufactured or  produced
\nin India can be regarded as conferring some kind of  license
\nor  title on the importer or manufacturer to sell his  goods
\nto  any purchaser without incurring a further  liability  to
\ntax.  That was the view which commended itself to the  Court
\nin the Maryland Case(1) and it was a view adopted and argued
\nbefore us. The analogy with the American case is an  attrac-
\ntive  one,  but for the reasons which we have given  we\t are
\nwholly unable to accept it.” (2)
\n    I find considerable force in the opinion thus  expressed
\nby Gwyer C.J. and agree that the “original package” doctrine
\nhas  no application to this country. In the  United  States,
\nthe  widest meaning could be given to the  Commerce  Clause,
\nfor  there was no question of reconciling that\tClause\twith
\nanother\t Clause\t containing  the legislative  power  of\t the
\nState. Under the provisions of the Government of India\tAct,
\na  limited  meaning must be given to the  word\t“import”  in
\nentry  19  of  List I in order to give effect  to  the\tvery
\ngeneral words used in entry 31 of List II.\n<\/p>\n
(1) (1827) 25 U.S. 419.\t  (2) [1942] F.C.R. 90 at 106-7.\n<\/p>\n
    701<\/span><\/p>\n
    The second attack on the Act is founded upon the  provi-
\nsion  contained\t in section 297(1)(a) of the  Government  of
\nIndia  Act, 1935, and it is contended that the\tprohibitions
\ncontained in the impugned Act in regard to the use, consump-
\ntion, purchase, transport, possession and sale of intoxicat-
\ning  liquor  will  necessarily_ amount\tto  prohibiting\t and
\nrestricting inter-provincial. commerce, and inasmuch as they
\ntend  to  stop and restrict entry into or  export  from\t the
\nProvince  of  Bombay of goods of a particular class  or\t de-
\nscription,  the\t Act contravenes  section  297(1)(a)<\/a>.\tThis
\nsection runs as follows :–\n<\/p>\n
    “No Provincial  Legislature or  Government shall–\n<\/p>\n
    (a) by virtue of the entry in the Provincial Legislative
\nList relating to trade and commerce within the Province,  or
\nthe  entry in that List relating to the\t production,  supply
\nand distribution of commodities, have power to pass any\t law
\nor take any executive action prohibiting or restricting\t the
\nentry  into,  or export from the Province of  goods  of\t any
\nclass or description  ……  ‘ ‘
\n    It\tshould\tbe  noticed that this  provision  refers  to
\n“trade\tand  commerce  within the Province”,  which  is\t the
\nsubject\t of entry 27 of List II and to\t“production,  supply
\nand  distribution of commodities”, which is the\t subject  of
\nentry  29  of List II.\tThe provision virtually\t means\tthat
\nimport into or export from a Province of goods of any  class
\nor  description\t cannot be prohibited or restricted  on\t the
\nground\tthat it will affect, trade and commerce\t within\t the
\nProvince  or  the  production, supply  and  distribution  of
\ncommodities. If therefore by any law framed by a  Provincial
\nLegislature relating to or based on the subjects of entry 27
\nor  entry 29 of List II, the entry into or export  from\t the
\nProvince  of any goods is prohibited or restricted,  such  a
\nlaw will be invalid.  But, here, we are concerned not with a
\nlaw  which  purports to be made and was made  by  virtue  of
\nentry 27 or entry 29 of List I1, but a law which is  claimed
\nto have been made
\n702<\/span>
\nand was made by virtue of entry 31 of that List and  certain
\nother entries therein. Section 297<\/a> (1) (a) therefore has  no
\napplication to the present case.  This was  clearly  pointed
\nout in the case of Bhola Prasad v. King Emperor(1).  In that
\ncase, the Bihar Excise (Amendment) Act, 1940, which  amended
\nthe  Bihar  and Orissa Excise Act, 1915, was  challenged  as
\ncontravening  section 297<\/a> (1) (a), but it was held to  be  a
\nvalid  Act on grounds already stated, as will.\tappear\tfrom
\nthe following observations of Gwyer C.J. :-\n<\/p>\n
     “The second point-raised on behalf of the appellant was
\nthat s. 19<\/a> (4) of the Act of 1915, as amended by the Act  of
\n1940, is invalid because repugnant to s. 297<\/a> (1) (a) of\t the
\nConstitution  Act<\/a>.   We confess that we have  difficulty  in
\nappreciating  this  argument.  Section\t297<\/a>  (1)(a)   enacts
\nthat   ……  It is plain beyond words that this  provision
\nonly refers to legislation with respect to entry No. 27\t and
\nentry  No. 29 in the provincial Legislative List; it has  no
\napplication to legislation with respect to anything in entry
\nNo.  31. A Provincial Legislature, if it desires to  pass  a
\nlaw prohibiting export from, or. import into, the  Province,
\nmust  therefore seek for legislative authority to do  so  in
\nentries\t other than entry No. 27 or entry No. 29. If it\t can
\npoint to legislative powers for the purpose derived from any
\nother  entry  in the Provincial Legislative List,  then\t its
\nlegislation cannot be challenged under section 297<\/a> (1)\t(a).
\nThere is no substance at all in the appellant’s arguments on
\nthis point”\n<\/p>\n
     Having  dealt with and negatived the first two  conten-
\ntions  upon  which the validity of the entire  Act  was\t as-
\nsailed,\t I now proceed to deal with certain sections of\t the
\nAct,  the validity of which also was brought into  question.
\nThe  provision\twhich was most vigorously  assailed  and  in
\nregard to which the attack was successful in the High Court,
\nis the definition of the word ‘liquor’ in section 2<\/a> (24)  of
\nthe Act. The definition runs thus:–\n<\/p>\n
      “Liquor” includes–\n<\/p>\n
(1) [1942] F.C.R, 17 at 27.  (2) [1942] F.C,R. 17 at 27, 28.\n<\/p>\n
     703<\/span><\/p>\n
    (a)\t spirits  of wine, methylated spirits,\twine,  beer,
\ntoddy  and all liquids consisting of or containing  alcohol;
\nand\n<\/p>\n
    (b)\t any other intoxicating substance which the  Provin-
\ncial  Government  may, by notification in the  Official\t Ga-
\nzette, declare to be liquor for the purposes of this Act.
\n    The High Court has held that the word “liquor” ordinari-
\nly  means”a  strong drink as opposed to soft drink”  but  it
\nmust  in any event be a beverage which is ordinarily  drunk.
\nProceeding  upon  this view, the High Court  has  held\tthat
\nalthough  the legislature may while legislating under  entry
\n31 prevent the consumption of non-intoxicating beverages and
\nalso  prevent the use as drinks of alcoholic  liquids  which
\nare  not normally consumed as drinks, it cannot prevent\t the
\nlegitimate  use\t of  alcoholic preparations  which  are\t not
\nbeverages  nor the use of medicinal and toilet\tpreparations
\ncontaining  alcohol.  This view of the High Court  was\tvery
\nstrongly  supported  on\t the one hand and  equally  strongly
\nchallenged  on the other before us, and I therefore  proceed
\nto deal with the question at some length.\n<\/p>\n
    In\tthe Oxford English Dictionary, edited by James\tMur-
\nray,  several  meanings are given to the word  “liquor”,  of
\nwhich the following may be quoted:-\n<\/p>\n
Liquor…  1. A liquid; matter in a liquid state;  in  wider
\nsense a fluid.\n<\/p>\n
    2.\tA  liquid or a prepared solution used as a  wash  or
\nbath, and in many processes in the industrial arts.\n<\/p>\n
    3.\tLiquid\tfor drinking; beverage, drink.\t Now  almost
\nexclusively  a drink produced by fermentation  or  distilla-
\ntion.  Malt  liquor,  liquor brewed from  malt;\t ale,  beer,
\nporter etc.\n<\/p>\n
4.  The\t water in which meat has  been\tboiled;\t broth,’
\nsauce;\tthe  fat in which bacon, fish or the like  has\tbeen
\nfried; the liquid contained in oysters.\n<\/p>\n
    5-\tThe  liquid  produced by infusion  (in\ttesting\t the
\nquality of a tea). In liquor, in the state of an infusion.\n<\/p>\n
704<\/span><\/p>\n
Thus,  according  to the Dictionary, the word  ‘liquor’\t may
\nhave  a general meaning in the sense of a liquid, or it\t may
\nhave a special meaning, which is the third meaning  assigned
\nto it in the extract quoted, above, viz. a drink or beverage
\nproduced  by  fermentation or distillation.  The  latter  is
\nundoubtedly  the popular and most widely  accepted  meaning,
\nand  the basic idea of beverage seems rather prominently  to
\nrun through the main provisions of the various Acts of\tthis
\ncountry as well as of America and England relating to intox-
\nicating\t liquor, to which our attention was drawn.  But,  at
\nthe  same  time, on a reference to these very  Acts,  it  is
\ndifficult  to hold that they deal exclusively  ……\twith
\nbeverages  and are not applicable to certain articles  which
\nare  strictly speaking not beverages.  A few instances\twill
\nmake the point clear. In the National Prohibition Act, 1919,
\nof  America  (also known as the Volstead  Act),\t the  words,
\nliquor and intoxicating liquor, are used as having the\tsame
\nmeaning and the definition states that these words shall  be
\nconstrued  to  “include alcohol, brandy, whisky,  rum,\tgin,
\nbeer,  ale,  porter and wine, and in  addition\tthereto\t any
\nspirituous,  vinous malt, or fermented liquor, liquids,\t and
\ncompounds, whether medicated, proprietary, patented or\tnot,
\nand  by whatever name called, containing one-half of  1\t per
\ncentum\tor more of alcohol by volume which are fit  for\t use
\nfor beverage purposes.” Having defined ‘liquor’ and ‘intoxi-
\ncating\tliquor’\t rather widely, the  Volstead  Act  excepted
\ndenatured  alcohol,  medicinal\tpreparations,\ttoilet\t and
\nantiseptic   preparations,  flavoring extracts\tand  sirups,
\nvinegar and preserved sweet cider (s. 4)  which suggest that
\nthey  were  included  in the definition. In  some  of  these
\nitems,\twe  have  the qualifying words “unfit  for  use\t for
\nbeverage  purposes”,  but the heading of section  4  of\t the
\nVolstead Act, under which these exceptions are enumerated is
\nexempted liquors.”\t\t\t      ‘
\n     The Licensing (Consolidating) Act, 1910, of England was
\nan  Act\t relating to licenses for the sale  of\tintoxicating
\nliquor, etc. The definition of “intoxicating liquor” in this
\nAct was as follows;–\n<\/p>\n
   705<\/span><\/p>\n
    “‘Intoxicating  liquor’ means (unless inconsistent\twith
\nthe  context) spirits, wine, beer, porter, cider, perry\t and
\nsweets,\t and any fermented, distilled, or spirituous  liquor
\nwhich  cannot,\taccording to any law for the time  being  in
\nforce, be legally sold without an excise licence.”\n<\/p>\n
    The\t word spirits  has been defined in the Spirits\tAct,
\n1880,  as meaning spirits of any description,  and  includes
\nall liquors mixed with spirits, and all mixtures, compounds,
\nor preparations made with spirits.” It was contended  before
\nus that the definition of the word “spirits” in the  Spirits
\nAct  should not be imported in the Act of 1910, but  in\t our
\nview  for  the purpose of understanding\t the  definition  of
\n‘intoxicating liquor’, the two Acts should be read together.
\nI  do  not suggest that the definition of  “liquor”  in\t the
\npresent\t Act  was borrowed from those Acts, but\t I  am\tonly
\ntrying\tto show that the word ‘liquor’ is capable  of  being
\nused in a wide sense.\n<\/p>\n
    Coming  now\t to  the various definitions  given  in\t the
\nIndian Act<\/a>s, I may refer in the first instance to the Bombay
\nAbkari Act of 1878 as amended by subsequent Acts, where\t the
\ndefinition  is\tsubstantially the same as in  the  Act\twith
\nwhich  we  are concerned. In the Bengal\t Excise\t Act,  1909,
\n“liquor, is said to mean ‘liquid consisting of or containing
\nalcohol’  and includes spirits of wine, spirit,\t wine,\ttari
\npachwai,  beer, and any substance which the Provincial\tGov-
\nernment may ……  declare to be liquor for the purposes of
\nthe Act.” In several other Provincial Act<\/a>s, e.g., the Punjab
\nExcise\tAct,  1914, the U.P. Excise Act, 1910,\t“liquor”  is
\nused  as  meaning intoxicating liquor and as  including\t all
\nliquids consisting of or containing alcohol.  The definition
\nof “liquor” in the Madras Abkari Act, 1886., is the same  as
\nin  the Bombay Act of 1878. Even if we exclude the  American
\nand  English Act<\/a>s from our consideration, we find  that\t all
\nthe  Provincial Act<\/a>s of this country have  consistently\t in-
\ncluded\tliquids\t containing  alcohol in\t the  definition  of
\n`liquor’   and\t‘intoxicating liquor’. The  framers  of\t the
\nGovernment India Act, 1935, could not have been entirely
\n706<\/span>
\nignorant  of the accepted sense in which the  word  ‘liquor’
\nhas  been  used in the various excise Acts of  this  country
\nand, accordingly I consider the appropriate conclusion to be
\nthat  the  word “liquor” covers not  only  those   alcoholic
\nliquids\t   which  are generally used for  beverage  purposes
\nand  produce intoxication, but also all\t liquids  containing
\nalcohol. It may be that the latter meaning is not the  mean-
\ning  which  is\tattributed to the word\t“liquor”  in  common
\nparlance especially when that word is prefixed by the quali-
\nfying  word “intoxicating”, but in my opinion having  regard
\nto  the numerous statutory definitions of that word, such  a
\nmeaning could not have been intended to be excluded from the
\nscope of the term “intoxicating liquor” as used in entry  31
\nof List II.\n<\/p>\n
    There is in my opinion another method of approaching the
\nquestion which also deserves consideration. Remembering that
\nthe  object  of the Prohibition Act<\/a> was not merely  to\tlevy
\nexcise duties but also to prohibit use, consumption, posses-
\nsion  and sale of intoxicating liquor, the  legislature\t had
\nthe power to legislate upon the subjects included in the Act
\nnot   only under entry 31 of List II, but also\tunder  entry
\n14, which refers inter alia to public health. Article 47<\/a>  of
\nthe Constitution, which contains one of the directive  prin-
\nciples\tof  State  policy, provides that  “the\tState  shall
\nregard the raising of the level of nutrition and the. stand-
\nard of living of its people and the improvement
\nof public health as among its primary duties and, in partic-
\nular,  the State shall endeavour to bring about\t prohibition
\nof the consumption, except for medicinal purposes, of intox-
\nicating drinks and of drugs which are injurious to  health”.
\nThis  article  has no direct bearing on the  Act  which\t was
\npassed\tin  1949,  but a reference to it  supports  to\tsome
\nextent\tthe conclusion that the idea of prohibition is\tcon-
\nnected with public health, and to enforce prohibition effec-
\ntively the wider definition of the word “liquor” would\thave
\nto  be adopted so as to include all alcoholic liquids  which
\nmay be used as substitutes for intoxicating drinks, to
\n707<\/span>
\nthe detriment of health. On the whole, I am unable to  agree
\nwith the High Court’s finding, and hold that the  definition
\nof  “liquor”  i,2 the Bombay Prohibition Act  is  not  ultra
\nvires.\n<\/p>\n
    The learned Attorney-General also relied upon entry 1 of
\nList II which relates among other items to “public’  order”,
\nand though at first sight it may appear to be far-fetched to
\nbring  the  subject  of intoxicating  liquor  under  “public
\norder”, yet it should be noted that there has been a tenden-
\ncy in Europe and America to regard alcoholism as a menace to
\npublic order. In Russel v. The Queen(1), Sir Montague  Smith
\nheld  that the Canada Temperance Act, 1878, the\t object\t and
\nscope  of  which  was to promote temperance by\tmeans  of  a
\nuniform\t law throughout the Dominion, was a law relating  to
\nthe  “peace, order, and good government” of Canada, and,  in
\nso deciding, said as follows:–\n<\/p>\n
    “Laws  of  this  nature designed for  the  promotion  of
\npublic order, safety, or morals and which subject those\t who
\ncontravene them to criminal procedure and punishment, belong
\nto the subject of public wrongs rather than to that of civil
\nrights. They are of a nature which falls within the  general
\nauthority of Parliament to make laws for the order and\tgood
\ngovernment of Canada  ……  ” (2)
\n    Again,  referring to liquor laws and liquor\t control,  a
\nlearned British author(3) says as follows :-\n<\/p>\n
    “The  dominant  motive everywhere, however, has  been  a
\nsocial\tone,  to  combat a menace to public  order  and\t the
\nincreasing  evils of alcoholism in the interests  of  health
\nand social welfare.  The evils vary greatly from one country
\nto  another according to differences in climate, diet,\teco-
\nnomic conditions and even within the same country  according
\nto  differences in habits, social customs and  standards  of
\npublic\tmorality. A new factor of growing  importance  since
\nthe middle of the 19th
\n (1) 7 A.C. 829.\n<\/p>\n
 (2) 7 A.C. 829 at p. 839.\n<\/p>\n
(3) The Encyclopaedia Britannica, 14th Edition, Volume 14,
\npage 191.\n<\/p>\n
708<\/span><\/p>\n
century\t has been the rapid urbanisation,  industrialization
\nand mechanization of our modern every day life in the  lead-
\ning nations of the world, and the consequent wider  recogni-
\ntion  of the advantages of sobriety in\tsafeguarding  public
\norder and physical efficiency.”\n<\/p>\n
    These  passages may lend some support to the  contention
\nof  the\t learned Attorney-General that the  Act\t comes\talso
\nwithin the subject of “public order”, but I prefer to  leave
\nout  of account this entry, which has a remote\tbearing,  if
\nany, on the object and scope of the present Act.
\n    I  now  come  to section 39<\/a> of the Act  which  has\tbeen
\nimpugned on the ground that it offends against article 14<\/a> of
\nthe Constitution which states that “the State shall not deny
\nto  any person equality before the law or the equal  protec-
\ntion of the laws within the territory of India”. The meaning
\nand  scope of this article has been fully discussed  in\t the
\ncase  of Chiranjit Lal Chowdhury v. The Union of  India\t and
\nOthers<\/a>(1), and the principles laid down in that case may  be
\nsummarized as follows:\n<\/p>\n
    (1) The presumption is always in favour of the constitu-
\ntionality of an enactment, since it must be assumed that the
\nlegislature understands and correctly appreciates the  needs
\nof  its own people, that its laws are directed\tto  problems
\nmade  manifest\tby experience and  its\tdiscriminations\t are
\nbased on adequate grounds.\n<\/p>\n
    (2) The presumption may be rebutted in certain cases  by
\nshowing that on the face of the statute, there is no classi-
\nfication at all and no difference peculiar to any individual
\nor  class  and\tnot applicable to any  other  individual  or
\nclass, and yet the law hits only a particular individual  or
\nclass.\n<\/p>\n
    (3)\t The principle of equality does not mean that  every
\nlaw must have universal application for all persons who\t are
\nnot  by\t nature,  attainment or circumstances  in  the\tsame
\nposition,  and\tthe varying needs of  different\t classes  of
\npersons often require separate treatment.
\n(1) [1950] S.C.R. 869.\n<\/p>\n
  709<\/span><\/p>\n
(4) The principle does not take away from the State
\nthe  power of classifying persons for  legitimate  purposes.
\n(5) Every classification is in some degree likely to produce
\nsome  inequality,  and mere production of inequality is\t not
\nenough.\n<\/p>\n
    (6)\t If a law deals equally with members of a  well\t de-
\nfined  class, it is not obnoxious and it is not open to\t the
\ncharge\tof denial of equal protection on the ground that  it
\nhas no application to other persons.\n<\/p>\n
    (7) While reasonable classification is permissible, such
\nclassification must be based upon some real and\t substantial
\ndistinction  bearing a reasonable and just relation  to\t the
\nobject sought to be attained, and the classification  cannot
\nbe made arbitrarily and without any substantial basis.
\n    Similarly, Professor Willis, dealing with the Fourteenth
\nAmendment  of the Constitution of the United  States,  which
\nguarantees equal protection of the laws, sums up the law  as
\nprevailing in that country in these words:\n<\/p>\n
    “The guaranty of the equal protection of the laws  means
\nthe protection of equal laws. It forbids class\tlegislation,
\nbut does not forbid classification which rests upon reasona-
\nble  grounds of distinction.  It does not prohibit  legisla-
\ntion, which is limited either in the objects to which it  is
\ndirected or by the territory within which it is to  operate.
\n`It  merely  requires  that all persons\t subjected  to\tsuch
\nlegislation shall be treated alike under like  circumstances
\nand  conditions both in the privileges conferred and in\t the
\nliabilities\timposed’.    The    inhibition\t  of\t the
\namendment   ……   was designed to prevent any  person  or
\nclass of persons from being singled out as a special subject
\nfor  discriminating and hostile legislation.’  It  does\t not
\ntake  from  the states the power to classify either  in\t the
\nadoption of police laws or tax laws, or eminent domain laws,
\nbut permits to them the exercise of a wide scope of  discre-
\ntion, and nullifies what they do only when it is without any
\nreasonable  basis. Mathematical nicety and perfect  equality
\nare not required.  Similarity, not identity of
\n710<\/span>
\ntreatment,  is enough. If any state of facts can  reasonably
\nbe  conceived to sustain a classification, the existence  of
\nthat  state  of\t facts must be assumed. One  who  assails  a
\nclassification must carry the burden of showing that it does
\nnot rest upon any reasonable basis.”(1)
\n    With these principles in view, I have to decide  whether
\narticle\t 14<\/a>  of the Constitution has been  violated  by\t the
\nprovisions  contained  in section 39<\/a> of the Act\t before\t us.
\nThat section runs as follows :-\n<\/p>\n
    “The  Provincial Government may, on such  conditions  as
\nmay be specified in the notification published in the  Offi-
\ncial  Gazette,\tpermit\tthe use or  consumption\t of  foreign
\nliquor on cargo boats, warships and troopships and in  mili-
\ntary and naval messes and canteens.”\n<\/p>\n
    What  is contended is that the concession shown  to\t the
\nwarships,  troopships,\tand military and  naval\t messes\t and
\ncanteens is a violation of the principle of equality and the
\nlegislature  has acted arbitrarily and capriciously  in\t se-
\nlecting\t certain  bodies or groups of  people  for  favoured
\ntreatment,  while subjecting the petitioner and other  citi-
\nzens  to the general provisions of the Act. It is said\tthat
\nthe  law should have been enforced alike against  the  civil
\npopulation and military personnel, between whom no  distinc-
\ntion  can be made at all on any rational ground in  the\t en-
\nforcement of the policy of prohibition.\n<\/p>\n
    The\t scheme\t of Chapter IV of the  Prohibition  Act,  in
\nwhich the impugned provision finds a place, seems inter alia
\nto  relax the law in favour of certain persons or groups  of
\npersons or institutions by introducing the system of passes,
\nlicences,  permits and authorizations. A few  examples\twill
\nshow  that the legislature did not proceed  without   making
\nany  classification.   For instance, section 35<\/a>\t deals\twith
\nlicences to hotels, section 37<\/a> with licences to dining\tears
\nand  coastal setamers, section 38<\/a> with licences to  shipping
\ncompanies, section 40<\/a> with permits to foreigners and persons
\nwho  need liquor on grounds of health, section 41<\/a> with\tper-
\nmits to foreign sovereigns and diplomats, section 44<\/a>
\n(1)  Constitutional Law, by Prof. Willis, (1st\tEdition)  p.\n<\/p>\n
578.
\n711<\/span>
\nwith  licences to clubs, section 45<\/a> with authorisations\t for
\nsacramental purposes, section 46<\/a> with visitors’ permits, and
\nso on.\tThese sections were not challenged before us, and it
\nmay be assumed that the classification made by the  legisla-
\nture  has been accepted so far as they are  concerned.\t The
\nquestion  is whether in relaxing the rule in favour of\twar-
\nships,\ttroopships, and military and naval messes  and\tcan-
\nteens, the legislature has acted arbitrarily and capricious-
\nly or it has proceeded here also on the basis of  reasonable
\nclassification. The learned Attorney-General referred us  to
\nseveral statutes, army regulations and certain provisions of
\nthe  Constitution, in order to show that the military  force
\nhas been regarded in this country as a class by itself,\t and
\nthere are many special provisions with regard to it.  But it
\nis contended that this is not enough and that no classifica-
\ntion  can be held to be valid unless it is shown to  bear  a
\njust and reasonable relation to the objects of the  particu-
\nlar legislation before us.  The argument, in other words, is
\nthis:  Assuming\t that the armed forces may be treated  as  a
\nclass for certain purposes, can it be treated as a class for
\nthe purpose of enforcing prohibition ?\tThis argument  found
\nfavour\twith the High Court, and section 39<\/a> was declared  to
\nbe  void.   In ray opinion, the judgment of the\t High  Court
\ncannot be supported, because I think that there is an under-
\nstandable  basis for the exemptions granted to the  military
\ncanteens, etc. by the Act.  The armed forces have their\t own
\ntraditions  and mode of life, conditioned and  regulated  by
\nrules and regulations which are the product of long  experi-
\nence  and  which aim at maintaining at a  high\tlevel  their
\nmorale and those qualities which enable them to face dangers
\nand  perform  unusual tasks of endurance and  hardship\twhen
\ncalled\tupon to do qualities such as dash and  courage,\t un-
\nbreakable tenacity and energy ready for any sacrifice  which
\nshould\tbe  unfaltering for long days  together.   By  these
\nrules  and  regulations, drinking among the  forces  is\t not
\nprohibited, but it is properly and carefully regulated,
\n712<\/span>
\nIt  is easy to understand that the legislature chose not  to
\ninterfere  with\t the mode of life to which the\tforces\thave
\nbeen accustomed, lest such interference should affect  their
\nmorale and and lead to subterfuges which may prove  unwhole-
\nsome for their discipline and good behaviour. Besides,\twhen
\ndrinking  is regulated among a class of persons by  specific
\nrules  and regulations and drunkenness is made\tan  offence,
\nthe  relaxation of the law of prohibition in their  case  is
\nnot  likely to produce the same evil results as it may\tpro-
\nduce  under other circumstances.  I find  therefore  nothing
\nwrong  prima  facie  in the  legislature  according  special
\ntreatment to persons who form a class by themselves in\tmany
\nrespects and who have been treated as such in various enact-
\nments  and statutory provisions.  In my opinion,  therefore,
\nsection\t 39<\/a>, in so far as it affects the military and  naval
\nmesses\tand canteens, warships and troop: ships,  cannot  be
\nheld to be invalid. So far as the cargoboats are  concerned,
\nit was contended on behalf of the petitioner that no ration-
\nal  differentiation could be made between them and the\tpas-
\nsenger boats, and there was no conceivable ground for grant-
\ning exemption or concession of any kind to the former.\tHere
\nagain,\twe cannot assume that the legislature has  proceeded
\narbitrarily.   The cargoboats being slower boats have to  be
\non the sea for long periods, the number of persons  affected
\nby the exemption is comparatively small, and they are mostly
\nsojourners who stay at the port for a short time and then go
\naway. These considerations may well have induced the  legis-
\nlature\tto show some concession to them, and we\t cannot\t say
\nthat  these  are irrelevant  considerations.  The  provision
\nrelating to exemption of cargoboats should therefore be held
\nto be valid.\n<\/p>\n
I  have\t already  referred to section 46<\/a>  which\t deals\twith
\nvisitors’ permits. That section provides that the Provincial
\nGovernment  may\t authorize  an officer\tto  grant  visitors’
\npermits\t to consume, use and buy foreign liquor\t to  persons
\nwho visit the Province for a period of not more than a week.
\nThe  High  Court  held this provision to be  valid,  but  it
\nconsidered rule 67 of the
\n 713<\/span>
\nBombay Foreign Liquor Rules, framed under section 143<\/a> of the
\nAct, to be invalid. That rule provides that any foreigner on
\na  tour of India who enters the State of Bombay and  desires
\nto  possess, use and consume foreign liquor shall  apply  to
\ncertain officers for obtaining a permit, which may be grant-
\ned  for a period not exceeding one month subject  to  subse-
\nquent  renewal.\t  The High Court declared this\trule  to  be
\ninvalid on the ground that it discriminated between  foreign
\nvisitors  and Indian visitors who visit Bombay\tfrom  neigh-
\nbouring\t Provinces.  It seems to me that this  is  hardly  a
\nmatter which should have been gone into on the\tpetitioner’s
\napplication,  since he claims to be neither a foreigner\t nor
\nan Indian visitor from another Province. But, in any  event,
\nthe rule  cannot  be assailed on the ground  of\t discrimina-
\ntion,  firstly because though it provides for the case of  a
\nforeign\t visitor there is no prohibition against  any  other
\noutsider  being granted a permit, and secondly, because\t the
\npolicy\tunderlying  the rule is quite  consistent  with\t the
\npolicy\tunderlying section 40<\/a> of the Act which enables\tper-
\nmits to be granted to foreigners under certain conditions.
\n    The High Court has also declared sections 52<\/a>, 53<\/a> and 139<\/a>\n<\/p>\n
(c)  of the Act invalid on the ground that  they  constitute
\n“delegation of legislative power”.  The reasons given by the
\nHigh Court for arriving at this conclusion are stated in its
\njudgment as follows: —\n<\/p>\n
    “Under  section 52<\/a> power is given to the  Government  to
\ngrant  licences\t in  cases other  than\t those\tspecifically
\nprovided  under\t any of the provisions of  the\tAct.   Under
\nsection\t 53<\/a>  Government is inter alia empowered to  vary  or
\nsubstitute any of the Conditions of the licence laid down in
\nthe Act, and under section 139<\/a> (c) power is given to Govern-
\nment  to  exempt any person or institution or any  class  of
\npersons or institutions from the observance of all or any of
\nthe provisions of the Act or any rule or regulation or order
\nmade thereunder.  The policy of legislation has been clearly
\nlaid  down by the legislature in the Act itself. As  pointed
\nout by us before, the legislature intended
\n714<\/span>
\nto  grant permits ordinarily only on grounds of\t health\t and
\ncertain exceptions were made in the case of certain classes.
\nIt  is\talways open to the legislature to leave\t it  to\t the
\nGovernment  to work out the policy in details. It  would  be
\nimpossible  for the legislature to provide for\tall  circum-
\nstances\t and all eventualities that may arise in the  actual
\nworking\t of the Act.  But it is not open to the\t legislature
\nto  permit  Government to alter the policy itself.   In\t our
\nopinion,  in leaving it to  Government to issue\t permits  in
\ncases  other than those provided for by the Act, in  permit-
\nting  Government  to vary or substitute\t conditions  of\t the
\nlicence,  and in permitting Government to exempt persons  or
\nclasses from the provisions of the Act, the legislature\t was
\nclearly\t delegating to Government its own power of  legisla-
\ntion. This it can clearly not do.”\n<\/p>\n
    This Court had to  consider quite recently the  question
\nas to how far  “delegated legislation” is permissible, and a
\nreference to its final conclusion will show that  delegation
\nof the character which these sections involve cannot on\t any
\nview be held to be invalid.  (See Special Reference No. 1 of
\n1951:  In re The Delhi Laws Act<\/a>, 1912, etc.(1)). A  legisla-
\nture  while legislating cannot foresee and provide  for\t all
\nfuture\tcontingencies,\tand  section 52<\/a> does  no  more\tthan
\nenable the duly authorized officer to meet contingencies and
\ndeal  with various situations as they arise.  The same\tcon-
\nsiderations  will  apply to sections 53<\/a> and  139<\/a>  (c).\t The
\nmatter\thowever need not be pursued further, as it  has\t al-
\nready been dealt with elaborately in the case referred to.
\nI    now proceed to deal with a group of sections in  regard
\nto  which I find myself in agreement up to a point with\t the
\nviews  expressed  by the High Court. Section 12<\/a> of  the\t Act
\nprovides inter alia that no person shall possess or sell  or
\nbuy liquor and section 13<\/a> provides inter alia that no person
\nshall  consume\tor  use liquor. Substituting  for  the\tword
\n“liquor”  occurring in these two sections the definition  of
\nthat  word as given in clause (a) of section 2<\/a> (24)  of\t the
\nAct,  the  effect of these two sections is  that  no  person
\nshall
\n(1) Reported infra.\n<\/p>\n
715<\/span><\/p>\n
possess, or sell or buy or consume or use “spirits of  wine,
\nmethylated  spirit, wine, beer, toddy and all  liquids\tcon-
\nsisting of or containing alcohol.”  I have already held that
\nunder entry 51 of List II, the Bombay Legislature was  quite
\ncompetent  to  make a law with respect to “liquor  “even  as
\nbroadly defined.  It is however contended that the power  of
\nmaking laws has to be exercised subject to the other  provi-
\nsions of the Constitution and in particular to those  relat-
\ning  to the fundamental rights guaranteed under\t Part\/II  of
\nthe  Constitution. The provisions to which I  have  referred
\nhave  been assailed on the ground that they are in  conflict
\nwith article 19 (1)(f)<\/a> of the Constitution which  guarantees
\nthat all the citizens shall have the right “to acquire, hold
\nand  dispose  of property”. This clause is  wide  enough  to
\ninclude\t movable as well as immovable property.\t The  provi-
\nsions  in question undoubtedly prevent a citizen  from\tpos-
\nsessing,  selling,. buying, consuming or using\t“liquor”  as
\ndefined, and therefore they prima facie infringe the  funda-
\nmental\tright  of the Indian citizens to acquire,  hold\t and
\ndispose\t of a kind of property, namely, “liquor” as  defined
\nin section 2(24)<\/a> of the Act, and as such would be void under
\narticle\t 13.<\/a>  The question to be considered is whether\tthey
\ncan  be\t saved by clause (5) of article 19<\/a>,  which  runs  as
\nfollows :–\n<\/p>\n
    “Nothing  in  sub-clauses (d), (e) and (f) of  the\tsaid
\nclause shall affect the operation of any existing law in  so
\nfar as it imposes, or prevent the State from making any\t law
\nimposing, reasonable restrictions on the exercise of any  of
\nthe  rights conferred by the said subclauses either  in\t the
\ninterests of the general public or for the protection of the
\ninterests of any scheduled tribe. ”
\n    The\t question  boils down to  ascertaining\twhether\t the
\nrestrictions  imposed by the provisions to  which  reference
\nhas been made are reasonable.  In judging the reasonableness
\nof  the restrictions imposed by the Act, one has to bear  in
\nmind  the directive principles of State policy set forth  in
\narticle\t 47<\/a> of the Constitution, “The State is charged\twith
\nthe duty of bringing about
\n716<\/span>
\nprohibition of the consumption, except for medical purposes,
\nof  intoxicating drinks and of drugs which are injurious  to
\nhealth.”  That the restrictions imposed by the\tsections  on
\nthe right of a citizen to possess, or sell or buy or consume
\nor  use\t spirits of wine, methylated  spirits,\twine,  beer,
\ntoddy  are in view of the aforesaid directive principles  of
\nState policy quite reasonable, has not been disputed  before
\nus.   The controversy has centred round the words  “and\t all
\nliquids\t consisting of or containing alcohol.”\tIt  is\tsaid
\nthat  those words include “all liquids, toilet or  medicinal
\npreparations  containing alcohol” and the  restrictions\t im-
\nposed  upon  the ordinary use of such  toilet  or  medicinal
\npreparations are unreasonable and therefore void.  So far as
\nthese  preparations are concerned, the High Court has  dealt
\nwith the matter as follows :-\n<\/p>\n
    To\tput it in a simple form, the question to   which  we
\nhave  to  address ourselves is whether the  legislature\t can
\nprohibit  the legitimate use of an article which  ordinarily
\nis  not drunk, merely because its use may be  perverted\t for
\nthe possible purpose of defeating or frustrating the objects
\nand  purposes of the Prohibition Act<\/a>. Let us take  the\tcon-
\ncrete case of eau-de-cologne or lavender water. Their legit-
\nimate  use is only for the purpose of toilet.  They  contain
\nspirit\tand it may be that an addict deprived of  his  drink
\nmay drink it in order to satisfy his thirst.  Is it  permis-
\nsible to the legislature under such circumstances to deprive
\nthe  general public of the legitimate use of  eau-de-cologne
\nor  lavender water as articles of toilet ?  The\t legislature
\nmay prevent the abuse of these articles, but can it  prevent
\ntheir  legitimate use ?\t It is difficult to  understand\t how
\nany restriction on the legitimate use of these articles\t can
\nbe  in\tthe interests of the general public so\tas  to\tmake
\nthese restrictions reasonable within the meaning of  article\n<\/p>\n
19)(5).\t If a citizen uses eau-de-cologne or lavender  water
\nfor the purpose of toilet, he is not doing anything  against
\npublic interest. It is only when he is perverting their\t use
\nthat it may be said that he is acting against public  inter-
\nest. Therefore, in our opinion, while it was open
\n717<\/span>
\nto  the\t legislature to provide against the abuse  of  these
\narticles,  it was not open to it to prevent  its  legitimate
\nuse. But the legislature has totally prohibited the use\t and
\npossession  of all liquids containing alcohol  except  under
\npermits to be granted by Government. It is contended by\t the
\nAdvocate-General that a citizen\t may possess  eau-de-cologne
\nor lavender water under a permit. But that is a\t restriction
\nupon  the right of the citizen to acquire, hold and  dispose
\nof  property, and, in our opinion, that restriction  is\t not
\nreasonable.  The  same\targument applies  to  medicinal\t and
\ntoilet\tpreparations containing alcohol.  Therefore we\thold
\nthat tO the extent to which the Prohibition Act<\/a> prevents the
\npossession,  use  and  consumptiOn  of\tnon–beverages\t and
\nmedicinal  and\ttoilet preparations containing\talcohol\t for
\nlegitimate  purposes  the provisions are void  as  offending
\nagainst article 19 (1) (f)<\/a> of the Constitution even if\tthey
\nmay  be within the legislative competence of the  Provincial
\nLegislature.”\n<\/p>\n
    The\t next step in the argument is that as the  law\tpur-
\nports  to  authorise the imposition of a  restriction  on  a
\nfundamental right in language wide enough to cover  restric-
\ntions both within and without the limits of constitutionally
\npermissible  legislative action affecting such right. it  is
\nnot  possible to uphold it even so far as it may be  applied
\nwithin\tthe constitutional limits, as it is  not  severable.
\nThis line of reasoning, no doubt, seeks to find support from
\nthe  observations  made in the majority\t decisions  of\tthis
\nCourt  in  Romesh Thappar v. The State of Madras<\/a>(1)  and  in
\nChintaman  Rao v. The State of Madhya Pradesh<\/a>(2), but in  my
\nopinion\t those observations do not apply to the case  before
\nus. It will be noticed that the legislature has defined\t the
\nterm  “liquor” as including several distinct  categories  of
\nthings\tfollowed  by a general category.  There\t can  be  no
\ndoubt whatever that the earlier categories of liquor,  name-
\nly,  spirits of wine, methylated spirit, wine, beer,  toddy,
\nare  distinctly separable items which are  easily  severable
\nfrom the last category, namely, all liquids consisting of or
\ncontaining alcohol.  These
\n(1) [1950] S.C.R. 594,\t     (2) [1950] S.C.R. 759,
\n718<\/span>
\nitems  being  thus  treated separately\tby  the\t legislature
\nitself\tand being severable, and it not being contended,  in
\nview  of the directive principles of State policy  regarding
\nprohibition, that the restrictions imposed upon the right to
\npossess or sell or buy or consume or use those categories of
\nproperties  are unreasonable, the impugned sections must  be
\nheld  valid  so far as these categories are  concerned.\t The
\nnext  question is whether those sections are void in so\t far
\nas they purport to impose restrictions on the citizens right
\nto acquire, hold or dispose of all liquids consisting of  or
\ncontaining  alcohol.   It is said that this is\tone  general
\nitem and it cannot be split up into different sub-categories
\nand therefore the sections in so far as they relate to\tthis
\ngeneral item must be held to be void. This argument at first
\nappears to have some force but a close scrutiny will  reveal
\nthat  it  is not in the circumstances of  this\tcase  sound.
\nSection 139<\/a> of the Act authorises the Provincial Government,
\nby  general or special order, to exempt any  intoxicants  or
\nclass  of intoxicants from all or any of the  provisions  of
\nthe  Act.  An  order made by the  Provincial  Government  in
\nexercise  of  the power conferred by this section  owes\t its
\nlegal  efficacy to this section and therefore in the eye  of
\nthe law the notification has the force of law as if made  by
\nthe legislature itself.\t In exercise of powers vested in  it
\nby section 139(d) the Provincial Government issued an  order
\nNo. 10484\/45(e) exempting intoxicants specified in column  1
\nof  the Schedule thereto annexed from the provisions of\t the
\nAct  specified\tagainst them in column 2 of  that  Schedule.
\nTurning to the Schedule, we find that in item (1)  duty-paid
\nperfumed spirits (except eau-de-cologne), in item (3)  duty-
\npaid spirituous toilet preparations (except lavender  water)
\nand in item (4) duty-paid spirituous medicinal\tpreparations
\nother  than  123 specified liquids, are\t exempted  from\t the
\noperation of sections 12(c)<\/a> and (d) and 13(b) to the  extent
\nspecified  therein. This notification was superseded on\t the
\n1st  April,  1950,  by another notification  which  is\tmore
\nliberal in certain respects, and these notifications,  being
\nmade in exercise of the power given by the Act itself,
\n   719<\/span>
\nhave  undoubtedly  the force of law and must be\t read  along
\nwith  the Act. So read, it is quite clear that “all  liquids
\nconsisting  of or containing alcohol” are capable  of  being
\nsplit  up into and have in fact been split up  into  several
\ndistinctly  separate sub-items including liquid\t toilet\t and
\nmedicinal preparations containing alcohol.  The\t legislature
\nitself\tcontemplated  this sub-division, for by section\t 139<\/a>
\nit authorised the Provincial Government to exempt any intox-
\nicant or class of intoxicants from the operation of the Act.
\nThis circumstance takes the case out of the principles\tlaid
\ndown  in  the two cases mentioned above and the\t item  being
\nthus  severable I am free to consider whether  the  restric-
\ntions  imposed\ton  a sub-item, namely,\t liquid\t toilet\t and
\nmedicinal preparations containing alcohol, are reasonable or
\nnot.  I am substantially in agreement with the line of\trea-
\nsoning adopted by the High Court and I consider that the Act
\nis  not\t a law imposing reasonable restrictions\t so  far  as
\nmedicinal  and\ttoilet preparations containing\talcohol\t are
\nconcerned. The National Prohibition Act or the Volstead\t Act
\nof America, to which I have referred, was also an Act relat-
\ning  to prohibition, but toilet and  medicinal\tpreparations
\ncontaining alcohol were expressly excluded from the scope of
\nthat Act. I refer to that Act simply to show that a complete
\nscheme\tof prohibition can be worked without including\tsuch
\narticles  among those prohibited.  Again, article 47<\/a> of\t the
\nConstitution  also  takes note of the  fact  that  medicinal
\npreparations should be excluded in the enforcement of prohi-
\nbition.\t I  do not consider that it is reasonable  that\t the
\npossession, sale, purchase, consumption or use of  medicinal
\nand toilet preparations should be prohibited merely  because
\nthere  is a mere possibility of their being misused by\tsome
\nperverted addicts.\n<\/p>\n
    It was contended that there was no meaning in  declaring
\nthe  provisions relating to purchase, sale, possession,\t use
\nand  consumption of medicinal and toilet  preparations\tcon-
\ntaining alcohol to be invalid, since in the Notification No.
\n10484\/45, issued by the Provincial
\n720<\/span>
\nGovernment  on the 1st April; which is no part of  the\tAct,
\nthe  Government\t have exempted\tduty-paid  perfumed  spirits
\n(including  eau-de-cologne),  duty-paid\t spirituous   toilet
\npreparations  and  certain classes of  duty-paid  spirituous
\nmedicinal preparations from the
\nfollowing provisions of the Act :(i) Section 12<\/a> (c);\n<\/p>\n
    (ii)  Section 12<\/a> (d), in so far as it relates to  buying
\nof such preparations;\n<\/p>\n
    (iii) Section 13<\/a> (b), in so far as it relates to use  of
\nsuch preparations.\n<\/p>\n
    But it is to be noted that the sale of these articles is
\nnot  covered by the above notification, but is regulated  by
\ntwo other notifications,  namely,  Notification No. 2843\/49,
\ndated  the  6th April, 1950, and Notification  No.  2843\/49,
\ndated  the  11th April, 1950. In  these\t two  Notifications,
\nthere are provisions imposing limits on sales. For  example,
\nin  the\t first notification issued on the  6th\tApril,\trule
\n10(1) provides as follows:-\n<\/p>\n
    ”The  licensee shall not sell to any person on any\t one
\nday any kind of perfumed spirits, spirituous toilet prepara-
\ntions  or  essences  in excess of such quantity\t as  may  be
\nprescribed by the Commissioner under the
\n    Similarly, in the second notification of the 11th April,
\nrules 9 and 10 run as follows :–\n<\/p>\n
    “9.\t The  licensee shall not sell  medicated  tonics  or
\nmedicated wines containing more than 10 per cent of  alcohol
\n(or containing alcohol in strength more than 17.5 per  cent.
\nof proof spirit) except those which are classified as  spir-
\nituous\tmedicinal preparations and regulated as\t such  under
\nthe Drugs Act<\/a>, 1940.\n<\/p>\n
    10.\t Subject  to the provisions of rule 9  the  licensee
\nshall  not sell the following spirituous medicinal  prepara-
\ntions  to any person unless he produces a medical  prescrip-
\ntion in that behalf, namely :–\n<\/p>\n
(a)  medicated\ttonics and medicated wines;\n<\/p>\n
(b)  asaves  and arishtas specified in the  Schedule  hereto
\nannexed;\n<\/p>\n
  721<\/span><\/p>\n
     (c)  any other spirituous medicinal  preparations\tcon-
\ntaining\t more  than 10 per cent of  alcohol  (or  containing
\nalcohol in strength more than 17.5 per cent of proof spirit)
\nwhich are intended for internal use:\n<\/p>\n
     Provided that the following spirituous medicinal prepa-
\nrations may be sold to any person without the production  by
\nsuch person of any medical prescription, namely\t ……\t ”
\n    In view of the restrictions imposed on the sale of these
\npreparations,  it  is  pertinent to  enquire  whether  those
\nrestrictions  will not also affect their  purchase,  posses-
\nsion,  use and consumption, and whether the socalled  exemp-
\ntions contained in the notification of the 1st April  really
\ngo  as far as they purport to go: (vide in  this  connection
\nconditions in col. 7 of Notification No. 10484\/45 (a) of the
\n1st April, 1950). Again, in the Notification No. 10484\/45 of
\nthe  1st  April, only 8 medicinal preparations\tare  totally
\nexempted as regards their purchase, possession, and use, and
\nso  far as medicinal preparations for  internal\t consumption
\nare  concerned, only those containing not more than  10%  of
\nalcohol or 17.5% of proof spirit are exempted.\tThis notifi-
\ncation\thas to be read along with another  notification\t No.
\n10484\/45(a)  of the same date, which was to remain in  force
\ntill  31st March,. 1951, only. In the  latter  notification,
\nfor  the  purpose of possession, purchase,  consumption\t and
\nuse,  the quantity of medicinal preparations containing\t not
\nmore than 10% of alcohol, etc., is restricted to such  quan-
\ntity  as may be prescribed by a registered  medical  practi-
\ntioner. Even these notifications may be withdrawn, supersed-
\ned or amended at any moment by the Provincial Government, as
\nwas done in the case of the notifications issued on the 16th
\nJune, 1949, which have been referred to. An ordinary citizen
\nmay find it a perplexing task to attempt to extract informa-
\ntion  out of the long series of complicated regulations,  as
\nto  the\t true nature and extent of the right which  the\t law
\nconfers\t upon him.  Indeed it was only with the help of\t the
\nlearned counsel appearing for the parties that we were\table
\nto  know what the position was up to the 31st March,   1950,
\nand
\n722<\/span>
\nwhat  changes were made on the 1st April, 1950. But  in\t the
\nbundle\tof notifications which have been placed\t before\t us.
\nthere  is no notification stating what step has\t been  taken
\nafter  the  31st March, 1951, and none was  brought  to\t our
\nnotice\tin  the\t course of the arguments.  Having  given  my
\ncareful\t consideration\tto the matter, I am of\tthe  opinion
\nthat the restrictions imposed by the Act even when read with
\nthe  above  notifications are not reasonable,  and  I  would
\naffirm the conclusion arrived at by the High Court.
\n    The next group of sections which the High Court has held
\nto be invalid, are sections 23(a)<\/a> and 24(1)<\/a> (a) in so far as
\nthey refer to “commending” any intoxicant, section 23(b)<\/a>  in
\nits  entirety, and section 24(1)(b)<\/a> in so far as  it  refers
\nto.  “inciting\tor encouraging” any individual or  class  of
\nindividuals or the public generally “to evade the provisions
\nof  any\t rule, regulation or order made\t thereunder  or\t the
\nconditions  of\tany licence, etc.” These provisions  run  as
\nfollows :–\n<\/p>\n
“23. No person shall–\n<\/p>\n
     (a)  commend, solicit the use of, or offer any  intoxi-
\ncant or hemp, or\n<\/p>\n
     (b) incite or encourage any member of the public or any
\nclass  of individuals or the public generally to commit\t any
\nact which frustrates or defeats the provisions of this\tAct,
\nor any rule, regulation or order made thereunder, or  ……\n<\/p>\n
     24.  (1) No person shall print or publish in any  news-
\npaper,\tnews-sheet,  book,  leaflet, booklet  or  any  other
\nsingle\tor  periodical publication or otherwise\t display  or
\ndistribute any advertisement or other matter,–\n<\/p>\n
     (a)  which commends, solicits the use of or offers\t any
\nintoxicant or hemp, or\n<\/p>\n
     (b)  which\t is calculated to encourage  or\t incite\t any
\nindividual  or class of individuals or the public  generally
\nto  commit an offence under this Act, or to commit a  breach
\nof  or\tto evade the provisions of any rule,  regulation  or
\norder  made  thereunder or the conditions  of  any  licence,
\npermit, pass or authorization granted thereunder.”\n<\/p>\n
723<\/span><\/p>\n
    Sections  23(a)<\/a> and 24(1)(a)<\/a> in so far as they refer  to
\n“commending”  any intoxicant are said to conflict  with\t the
\nfundamental  right guaranteed by article 19 (1) (a)<\/a>  namely,
\nthe right to freedom of speech and expression and there\t can
\nbe  no doubt that the prohibition against  “commending”\t any
\nintoxicant is a curtailment of the right guaranteed. and  it
\ncan be supported only if it is saved by clause (2) of  arti-
\ncle 19 which, as it stands at present, provides that  “noth-
\ning in sub-clause (a) of clause (1) shall affect the  opera-
\ntion  of  any existing law in so far as it  relates  to,  or
\nprevent\t the State from making any law relating\t to,  libel,
\nslander,  defamation, contempt of court or any matter  which
\noffends against decency or morality or which undermines\t the
\nsecurity of, or tends to overthrow, the State.”\t It seems to
\nme  that none of the conditions mentioned in clause  applies
\nto  the present case, and therefore the provisions in  ques-
\ntion  must be held to be void. Section 23<\/a> (b) must  also  be
\nheld to be void. because the words “incite” and\t “encourage”
\nare  wide enough to include incitement or  encouragement  by
\nwords  and  speeches  and also by acts.\t  The  words  “which
\nfrustrates or defeats the provisions of the Act or any rule,
\nregulation or order made thereunder” are so wide and.  vague
\nthat  it is difficult to define or limit their scope.  I  am
\ntherefore in agreement with the view of the High Court\tthat
\nthis provision is invalid in its entirety. So far as article
\n24(1)(b)<\/a>  is  concerned the judgment of the  High  Court  in
\nregard\tto it cannot be upheld. The learned counsel for\t the
\npetitioner also conceded before us that he was not going  to
\nassail this provision.\n<\/p>\n
     The  High\tCourt  has also\t declared  sections  136(1)<\/a>,
\n136(2)<\/a>\t(b),  136(2)(c), 136(2)(e), 136(2)(1)to be  void  as
\noffending  against  various  provisions of  article  19<\/a>\t the
\nConstitution, but no argument was addressed to us on  behalf
\nof  the Government of Bombay assailing the judgment  of\t the
\nHigh Court with regard to these provisions. The judgment  of
\nthe High Court in regard to them will therefore stand.\n<\/p>\n
     I\twill now deal with two Notifications  Nos.  10484\/45\n<\/p>\n
(c) and 2843\/49(a), dated the 30th March, 1950, which
\n724<\/span>
\nthe High Court has held to be invalid. As regards the  first
\nnotification, the High Court has stated that section 139<\/a> (c)
\nhaving\tbeen  held to be ultra vires the  legislature,\tthis
\nnotification,  which was issued under that section is  ultra
\nvires  the  Bombay Government.\tBut. since  this  Court\t has
\ntaken a different view in regard to the validity of  section
\n139(c)<\/a>, the decision of the High Court as regards the  above
\nnotification cannot stand. It appears from certain  observa-
\ntions  in the judgment under appeal, firstly that  the\tHigh
\nCourt  upheld  section 40(1)<\/a> (c) (i) and (ii),\twhich  deals
\nwith the grant of permits to foreigners who do not intend to
\nstay permanently in India, merely because the Explanation to
\nthat  section provided that “a person shall be deemed to  be
\nresiding or intending to reside in India temporarily, if the
\nperiod\tof  his residence does not exceed six  months”;\t and
\nsecondly, that the High Court would have found it  difficult
\nto  uphold the classification on which section\t40(1)(c)<\/a>  is
\nbased if the restriction regarding six months’ residence was
\nnot  there,  as would be the result of reading\tthe  section
\nsubject\t to the above notification.  I am however unable  to
\nsee how the notification will turn a classification which is
\notherwise  a good classification into a bad one.   There  is
\nnothing\t unreasonable in a law relating to prohibition\tdis-
\ncriminating  between  Indian  citizens against\twhom  it  is
\nprimarily to be enforced, and foreigners who have no  inten-
\ntion of permanently residing in this country. The  condition
\nof six months’ residence which is laid down in the  Explana-
\ntion to section 40<\/a> is somewhat arbitrary., and the mere fact
\nthat the Government by notification withdrew this  condition
\ncannot in principle alter the basis of the classification.
\n    The\t High  Court  has declared  the\t other\tnotification
\nissued\tby  the Government on the 30th March,  1950,  to  be
\ninvalid on grounds  which are stated in these words :–\n<\/p>\n
    “That notification exempts persons holding permits under
\nclause (c) of sub-section (1) of section 40<\/a>, special permits
\nunder section 41<\/a>, or interim permits under section 47<\/a>,\tfrom
\nthe provisions of section 23(a)<\/a>
\n   725<\/a><\/span>
\nin so far as it relates to the offering of foreign liquor to
\npersons holding similar permits. This is clearly not  justi-
\nfied. Having created a class, having given to that class the
\nright of obtaining a permit on grounds other: than those  of
\nhealth, it will be totally wrong to permit that class not to
\nabide  by  the\tsame provisions with regard  to\t permits  as
\nothers\tto  whom permits have been given.  The\trestrictions
\nplaced by the legislature itself on a permit-holder  regard-
\ning the use and consumption of his stock of liquor is to  be
\nfound in section 43<\/a> under which the permit-holder shall\t not
\nallow  the  use and consumption by any person who is  not  a
\npermit-holder.\t That  restriction  must  apply\t equally  to
\npermits\t issued under section 40<\/a> to Indian citizens as\twell
\nas foreigners, and in our opinion it is improper to allow  a
\nforeigner  permit-holder  to stand drinks to  other  permit-
\nholders and to deny that privilege to Indian permit-holders.
\nThe  guarantee of equality before the law extends under\t our
\nConstitution  not only to legislation but also to rules\t and
\nnotifications  made  under statutory authority and  even  to
\nexecutive orders and as the notification offends against the
\nprinciple of equality it is, therefore, void.”\n<\/p>\n
    In order to understand these remarks, it will be  neces-
\nsary to state that persons holding permits under clause\t (c)
\nof sub-section (1) of section 40<\/a> are foreigners as described
\nin sub-clauses (i)and (ii)of clause (c), that persons  hold-
\ning special permits under section 41<\/a> are foreign sovereigns,
\nambassadors, etc., and that persons holding interim  permits
\nunder  section\t47<\/a> are persons applying\t for  permits  under
\neither\tsection 40<\/a>, or section 41<\/a>. The last class  will\t in-
\nclude not only foreigners but also Indian citizens  applying
\nfor permits on the ground that their health will be serious-
\nly and permanently affected if they are not permitted to use
\nor  consume liquor.  Thus, the assumption on which the\tcon-
\nclusion\t of the High Court is based, does not appear  to  be
\ncorrect.  Besides, I do not find anything in this  notifica-
\ntion  which  violates the principle of equality.  It  simply
\nenables a certain class of persons holding permits to  offer
\ndrinks to persons holding similar permits,
\n726<\/span>
\nThis  is in accord with the principle underlying the  provi-
\nsions  of section 43<\/a> which has not been assailed  before  us
\nand  which  provides that “no holder of\t a  :permit  granted
\nunder section 40<\/a> or 41 shall allow the use or consumption of
\nany  part of the stock held by him under the permit  to\t any
\nperson\twho  is\t not the holder of such a  permit”.   In  my
\nopinion,  there\t is no substantial ground  for\tholding\t the
\nnotification  to  be  invalid. The points  relating  to\t the
\nnotifications are extremely small, and the  subtle  distinc-
\ntions upon which they are based, are hardly worth the atten-
\ntion which the High Court has bestowed on them.
\n    There  is another point which arises on the judgment  of
\nthe High Court, which may also be noticed. The point is\t set
\nout in that judgment in these words :–\n<\/p>\n
    “When  a  person applies for a permit on the  ground  of
\nhealth.\t he  has to forward with it a certificate  from\t the
\nmedical board and when we turn to the form of this  certifi-
\ncate, it requires the medical board to declare the applicant
\nan addict. Therefore the position is that it is only on\t the
\napplicant being found an addict by the medical board that he
\nwould  be entitled to a permit if his health would be  seri-
\nously  and permanently affected if he was not  permitted  to
\nuse  or consume liquor.\t It is not only in the case  of\t ad-
\ndicts that such a contingency would arise. Even persons\t who
\nare not addicts may have been accustomed to drink for a long
\nperiod\tof  time and a sudden discontinuance  of  drink\t may
\nseriously  and permanently affect their health. It may\talso
\nhappen\tthat  without  being accustomed to drink  at  all  a
\nperson may contract an illness which may require the use  by
\nhim  of\t alcoholic  drink under medical opinion.  To  be  an
\naddict,\t in  our opinion, means something  more\t than  being
\nmerely\taccustomed  to drink. We must give to it  its  plain
\nnatural\t meaning.  It is certainly not a term  of  art,\t and
\ngiving\tto  it\tits plain natural  meaning,  the  expression
\n“addict”  does carry with it a sense of moral  obloquy.\t The
\nintention  of the Government seems to be that  only  persons
\nwho confess that they are deviating from standards of moral-
\nity should be given permits..Now,
\n   727<\/span>
\ninsistence  upon a medical certificate in this form  is\t not
\nat all warranted by the provisions of the Act.”
\n   The\tpoint  is  a  small one, but it\t seems\tto  me\tthat
\nthere  is  some\t substance in it. In my\t opinion,  the\tword
\n“addict”  in  the  medical certificate\tshould\tbe  replaced
\nby  the\t words\tused  in section  40(1)(b)<\/a>  of\tthe  Act  or
\nwords corresponding to them.\n<\/p>\n
   The\tonly other point which remains to be decided\t  is
\nwhether\t as  a\tresult of some of the sections\tof  the\t Act
\nhaving been declared to be invalid, what is left of the\t Act
\nshould survive or whether the whole Act should\tbe  declared
\nto  be\tinvalid. This argument was raised  before  the\tHigh
\nCourt also, but it was rejected and it\twas held that it was
\nnot possible on a fair review of the whole matter to  assume
\nthat  the legislature would not have enacted the part  which
\nremained without enacting the part that was held to be\tbad.
\nIt is to be  noted that upon the findings of the High Court,
\nthe  question  should  have assumed a  more  serious  aspect
\nthan  it  presents now, because the High Court\thas\t de-
\nclared\tseveral\t important  sections of\t the  Act  including
\nthe  definition of “liquor” to be ultra vires  the  legisla-
\nture.  I have now examined those sections and have\theld
\nmany of them to be valid. The provisions which\t   are in my
\nview  invalid  cannot affect the validity of the  Act  as  a
\nwhole.\t The test to be applied when an\t argument  like\t the
\none addressed in this case is raised,has been very correctly
\nsummed\tup by the Privy\t    Council in Attorney-General\t for
\nAlberta v. Attorney- General for Canada(1) in these words:–\n<\/p>\n
    ”  The  real  question is whether  what  remains  is  so
\ninextricably  bound  up\t with  the  part  declared   invalid
\nthat what remains cannot independently survive or.     as it
\nhas sometimes been put, whether on a fair review     of\t the
\nwhole  matter it can be assumed that the  legislature  would
\nhave  enacted  what survives without\t enacting  the\tpart
\nthat is ultra vires at all.”\n<\/p>\n
It  is\tquite  clear that the provisions held by  me  to  be
\ninvalid are not inextricably bound up with the
\n(1) [1947] A.C. 505 at 518.,
\n728<\/span>
\nremaining provisions of the Act, and it is difficult to hold
\nthat the legislature would not have enacted the\t Act at\t all
\nwithout\t including  that  part which is found  to  be  ultra
\nvires. The Act<\/a> still remains substantially the Act as it was
\npassed,\t i.e.,\tan Act amending and  consolidating  the\t law
\nrelating  to the promotion and enforcement of the policy  of
\nprohibition  and  also\tthe Abkari law in  the\tProvince  of
\nBombay.\n<\/p>\n
In the result, I declare the following provisions of the
\nAct only to be invalid :–\n<\/p>\n
    (1)\t Clause (c) of section 12<\/a>, so far as it affects\t the
\npossession  of\tliquid\tmedicinal  and\ttoilet\tpreparations
\ncontaining alcohol.\n<\/p>\n
    (2)\t Clause (d)of section 12<\/a>, so far as it\taffects\t the
\nselling or buying of such medicinal and toilet\tpreparations
\ncontaining alcohol.\n<\/p>\n
    (3)\t Clause (b) of section 13<\/a>, so far as it affects\t the
\nconsumption or use of such medicinal and toilet preparations
\ncontaining alcohol.\n<\/p>\n
    (4) Clause (a) of section 23<\/a>, so far as it prohibits
\nthe  commendation of any intoxicant or hemp.
\n    (5) Clause (b) of section 23<\/a>, in entirety.\n<\/p>\n
    (6) Clause (a) of sub-section (1) of section 24<\/a>, so\t far
\nas it prohibits commendation of any intoxicant or hemp.
\n   (7) Sub-section (1) of section 136<\/a>, in entirety.
\n     (8)  Clauses (b), (c), (e), and (f) of sub-section\t (2)
\nof section 136<\/a>, in their entirety.\n<\/p>\n
     I\thold that the rest of the provisions of the Act\t are
\nvalid,\tand I also hold that my decision declaring  some  of
\nthe provisions of the Act to be invalid does not affect\t the
\nvalidity  of  the Act as it remains.  Appeal No.  182,\tpre-
\nferred\tby the State of Bombay, is  therefore  substantially
\nallowed\t and Appeal No. 183 preferred by the  petitioner  is
\ndismissed.\n<\/p>\n
 On  the question of costs, I am disposed to make  the\tsame
\norder  as the High Court has made, not only because some  of
\nthe provisions of the Act are still found to be invalid, bUt
\nalso because the present case
\n729<\/span>
\nappears\t to have been instituted to test the validity  of  a
\ncontroversial  measure and to secure a final decision on  it
\nto  set at rest the doubts and uncertainties which may\thave
\nclouded\t the minds of a section of the public as to how\t far
\nthe provisions of the Act conform to law and to the  Chapter
\non Fundamental Rights in the present Constitution.\n<\/p>\n
     PATANJALI\tSASTRI J.-I agree and have nothing  more  to
\nadd.\n<\/p>\n
MUKHERJEA J.–I have read the judgment of my learned brother
\nMr.  Justice Fazl Ali and I am in entire agreement with\t his
\nconclusions  and reasons. There is nothing further  which  I
\ncan usefully add.\n<\/p>\n
   S.R. DAS J.–I agree and I have nothing further to add.
\nVlVlAN BOSE J.–I also agree.\n<\/p>\n
\t\t    Appeal  No. 182 allowed.\n<\/p>\n
\t\t    Appeal No. 183 dismissed.\n<\/p>\n
    Agent for the appellants in Case No. 182 and respondents
\nin Case No. 183: P.A. Mehta.\n<\/p>\n
    Agent for the respondent  in Case No. 182 and  appellant
\nin Case\t No. 183. Rajinder  Narain for R.A. Gagrat.\n<\/p>\n
\t\t    ———–<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The State Of Bombay And Another vs F.N. Balsara on 25 May, 1951 Equivalent citations: 1951 AIR 318, 1951 SCR 682 Author: S Fazal Ali Bench: Fazal Ali, Saiyid, Sastri, M. Patanjali, Mukherjea, B.K., Das, Sudhi Ranjan, Bose, Vivian PETITIONER: THE STATE OF BOMBAY AND ANOTHER Vs. RESPONDENT: F.N. BALSARA DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-256959","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe State Of Bombay And Another vs F.N. 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