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PETITIONER:

BEHRAM KHURSHED PESIKAKA

Vs.

RESPONDENT:

THE STATE OF BOMBAY.REFERENCE UNDER ARTICLE 145(3) OF THE CO

DATE OF JUDGMENT:

19/02/1954

BENCH:

ACT:

Constitution of India, Arts. 13 and 141-Statute

declared unconstitutional-Effect of-Declaration in Balsara's

case--Effect of-If the decision throws onus on the accused-

Bombay Prohibition Act, 1949 (Bombay Act XXV of 1949), ss. 2

(24),13 (b), 66(b).

HEADNOTE:

Held (Per MEHR CHAND MAHAJAN C. J., MUKHERJEA, VIVIAN

BOSE and GHULAM HASAN JJ., S. R. DAS J. dissenting) that

the effect of the declaration in the case of The State of

Bombay and Another v. F. N. Balsara(1) that clause (b) of s.

13 of the Bombay Prohibition Act (XXV of 1949) is void under

Art. 13(1) of the Constitution in so far as it affects the

consumption or use of liquid medicinal or toilet

preparations containing alcohol, is to render part of s.

13(b) of the Bombay Prohibition Act inoperative, ineffective

and ineffectual and thus unenforceable.

In view of the constitutional invalidity of a

part of s. 13(b) of the Bombay Prohibition Act having been

declared void by the Supreme Court, that part of the section

ceased to have legal effect in judging cases of citizens and

must be regarded as null and void in determining whether a

citizen was guilty of an offence.

The clear enactment of Art. 141 of the Constitution

leaves no scope in India for the application of the American

doctrine that "the declaration by a court of

unconstitutionality of a statute which is in conflict with

the Constitution affects the parties only and there is no

judgment against the statute and it does not strike the

statute from the statute book."

In India, on the other hand, once a law has been -struck

down as unconstitutional by the Supreme Court, no notice can

be taken of it by any Court because after it is declared as

unconstitutional it is no longer law and is null and void.

The bare circumstance that a citizen accused of an offence

under s. 66(b) of the Bombay Prohibition Act is smelling of

alcohol is compatible both with his innocence as well as his

guilt. The smell of alcohol may be due to the fact that the

accused had contravened the enforceable part of s. 13(b) of

the Bombay Prohibition Act or it may well be due to the fact

that he had taken alcohol which fell under the unenforceable

and inoperative part of the section. Therefore the onus was

laid on the prosecution to prove that the

(I) [1951] S.C.R. 682.

79

614

alcohol of which he was smelling came under the category of

prohibited alcohol within the meaning of the enforceable

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part of s. 13(b).

Per S. R. DAS J. :-The declaration in the case of The

State of Bombay and Another v. F. N. Balsara gives a citizen

who has consumed or used liquid medicinal or toilet

preparations a defence to a charge under s. 66(b) read with

s. 13(b) of the Bombay Prohibition Act and it is for the

accused person to prove the facts on which that declaration

of law is based.

The State of Bombay and Another v. F. N. Balsara

([1951] S.C.R. 682) explained.

Kesava Madhava Menon v. The State of Bombay ([1951]

S.C.R. 228) followed.

rangarao Bala Maize v. The State ([19511 54 Bom. L. R.

325), In re Kanakasabai Pillai (A.I.R. 1940 Mad. 1) and

Norton v. Shelby County (118 U. S. 425) referred to.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 42 of

1953.

Appeal by Special Leave from the Judgment and Order

dated the 5th February, 1953, of the High Court of

Judicature at Bombay in Criminal Appeal No. 1149 of 1952

arising out of the Judgment and Order dated the 22nd April,

1952, of the Court of the Presidency Magistrate 19th Court,

Bombay, in Case No. 933/P of 1951.

B. M. Mistry, J. B. Dadachanji, Rajinder Narain and

R. D. Chadda for the appellant.

M. C. Setalvad, Attorney-General for India (R.

Ganapathy Iyer and P. G. Gokhale, with him) for the

respondent.

1954. February 19, April 28, September 23, and September

24.

[The present Criminal Appeal (No. 42 of 1953) came up for

hearing in the first instance before a Bench of Hon'ble

Judges composed of Bhagwati, Jagannadhadas and Venkatarama

Ayyar JJ. who delivered the following Judgments dated 19th

February, 1954].

BHAGWATI J.-This is an appeal by special leave from a

judgment of the High Court of Judicature at Bombay reversing

the order of acquittal passed in favour of the appellant by

the Court of the Presidency

615

Magistrate, 19th Court, Bombay, and convicting him of

an offence under section 66(b) of the Bombay Prohibition

Act, 1949, and sentencing him to one month's' rigorous

imprisonment and a fine of Rs. 500.

The appellant, who was the Officiating Regional

Transport Officer, Bombay Region, was on the 29th May, 195

1, at about 9.30 P.m., proceeding in his jeep car towards

the Colaba Bus Stand when he knocked down three persons,

Mrs. Savitribai Motwani, her husband and Miss Parvatibai

Abhichandani. The police arrested the appellant and took

him to the police station. From the police station he was

taken to St. George's Hospital in order to be examined by

the doctor for alleged consumption of liquor. The doctor

found his breath smelling of alcohol. He however found the

conjunctiva were congested, the pupils were semi-dilated and

reacting to light. The speech was coherent and he could

behave himself and walk along a straight line. The doctor

was therefore of opinion that he did not seem to be under

the influence of alcohol though he had taken alcohol in some

form or the other.

The appellant was put up before the Presidency

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Magistrate for his trial under two offences, one under

section 338 of the Indian Penal Code on three counts for

causing grievous hurt to the three injured persons by doing

a rash and negligent act, i.e., driving his motor car in a

rash and negligent manner, and the other under section 66

(b) of the Bombay Prohibition Act. The appellant cross-

examined the doctor and suggested that he had taken a

medicinal preparation, B. G. Phos, and also stated in answer

to the Magistrate on the 20th December, 1951, that he had

not consumed any liquor but had taken medicinal preparation

containing a small percentage of alcohol. He also filed a

written statement on the 13th March, 1952, setting out in

detail the whole history of his case. He stated there that

owing to his ill health he had been recommended to take

tonics, specially those containing vitamin B Complex and

Phosphates and had regularly taken tonics, such as Wampole's

Phospho Lecitin, B. G. Phos, and Huxley's Nerve Vigour. He

further stated that on the night in question he had at about

9 or 9.15 P.m. after dinner

616

taken a dose of B. G. Phos and was proceeding in his jeep

car for a drive via Cuffee Parade and Marine Drive when the

accident took place. He produced his driving licence and

registration certificate and a copy of the agenda of the

Regional Transport Authority's meeting to be held next day

and a carton of B. G. Phos on which it was stated that it

contained 17 per cent alcohol according to its formula.

The learned Presidency Magistrate acquitted the

appellant of both these offences. In regard to the offence

under section 66(b) of the Bombay Prohibition Act he

observed that the evidence did not go to show conclusively

that the appellant had consumed alcohol without a permit,

that there were certain medicinal preparations which were

allowed to be used by law and there was no satisfactory

evidence to show that the appellant had not consumed those

tonics but only liquor for which he ought to have a permit.

The respondent, the State of Bombay, took two appeals

before the -High Court against each of these two cases. The

High Court confirmed the acquittal in regard to the charge

under section 338 of the Indian Penal Code but reversed the

order acquitting him of the charge under section 66(b) of

the Bombay Prohibition Act. The High Court followed a

decision of its own Division Bench in Rangarao Bala Mane v.

State(1) where it had been held that-"Once it is proved by

the prosecution that a person has drunk or consumed liquor

without a permit, it is for that person to show that the

liquor drunk by him was not prohibited liquor, but was

alcohol or liquor which he is permitted by law to take,

e.g., medicated alcohol. The prosecution is not to

discharge the burden of the accused, and if in answer to a

charge of drinking liquor without a permit the accused

suggests that the liquor which was drunk by him was not

liquor in a prohibited form or was alcohol in a medicated

form, he must show it." The High Court observed that the

Magistrate had misdirected himself on a point of law and it

was therefore open to it to examine the evidence and come to

its own conclusion whether the appellant had shown that he

had

(1) (1951) 54 Bom. L. R. 325.

617

taken B. G. Phos that night after dinner and that the

alcoholic smell which was still found in his mouth as late

as 11.30 P.m. when he was examined by the doctor"' was the

smell of the alcoholic con-tents of B. G. Phos. It came to

the conclusion that the appellant had failed to prove the

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existence of circumstances from which the Court could come

to the conclusion that the liquor which was consumed by the

appellant was not prohibited liquor but liquor which was

excepted by the Bombay Prohibition Act from its operation

and set aside the order of acquittal passed by the learned

Presidency Magistrate in his favour convicting him of the

offence and sentencing him as above.

It was contended on behalf of the appellant before us

that the Bombay Prohibition Act, 1949, was impugned after

the advent of the Constitution and this Court by its

decision in The State of Bombay and Another v.F.N.Balsara(1)

inter alia declared the provisions of clause (b) of section

13 to be invalid so far as it affects the consumption or use

of liquid medicinal and toilet preparations containing

alcohol, that the effect of that declaration was to lift the

consumption or use of liquid medicinal and toilet

preparations containing alcohol from the prohibition enacted

in section 13(b) and that section 66(b) was inoperative and

unenforceable so far as such medicinal and toilet

preparations containing alcohol were Concerned. It was

therefore incumbent on the prosecution, if a charge under

section 66(b) was framed against an accused, to prove that

the accused had consumed or used an intoxicant in

contravention of the provisions of the Act, which provision

so far as section 13(b) was concerned was to be read as

prohibiting the consumption or use of liquor, i.e., spirits

of wine, methylated spirits, wine, beer, toddy and all non-

medicinal and non-toilet liquid preparations consisting of

or containing alcohol, which were the only categories of

validly prohibited liquor. On this interpretation of the

effect of the judgment in The State of Bombay and Another v.

P. N. Balsara (supra) there was no question whatever of the

applicability of section 105 or of section 106 of the

(1) [1951] S.C.R. 682.

618

Evidence Act as was sought to be done by the High Court.

It was further' -urged that even if an onus was cast on the

accused to prove that he had consumed a liquid medicinal or

toilet preparation containing alcohol that onus was lighter

in burden than the onus on the prosecution and the moment

the accused indicated his defence the onus again shifted on

the prosecution to negative such defence.

It was urged on the other hand on behalf of the

respondent that the effect of the declaration in The -State

of Bombay and Another v. F. N. Balsara (supra) was to graft

an exception or a proviso to section 13(b) and that the onus

and the burden of proving the existence of circumstances

bringing his case within the exception or proviso lay on the

accused and the Court was to presume the absence of such

circumstances. (Vide section 105 of the Evidence Act). It

was further urged that the prosecution could not possibly

prove that no form of liquid medicinal or toilet

preparation containing alcohol was taken by the accused,

that the fact of the consumption of such medicinal or toilet

preparation containing alcohol was especially within the

knowledge of the accused and that therefore the burden of

proving such fact was upon him, and that once the

prosecution had discharged the onus which lay upon it to

prove that the accused had consumed liquor it would be for

the accused to show that the liquor which was taken by him

was a liquid medicinal or toilet preparation containing

alcohol. (Vide section 106 of the Evidence Act).

The relevant provisions of the Bombay Prohibition Act,

1949, may be here set out. The Act was passed inter alia to

amend and consolidate the law relating to the promotion and

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enforcement of and carrying into effect the policy of

prohibition in the Province of Bombay. Section 2(22)

defined 'an "intoxicant" to mean any

liquor..................... Section 2(24) defined "liquor"

to include (a) spirits of wine, methylated spirits, wine,

beer, toddy and all liquids consisting of or containing

alcohol. Chapter III enacted the prohibitions and section

13(b) provided:-No person shall..................... (b)

consume or use

619

liquor Section 66(b) is the penal section and provided:-

"Whoever in contravention of the provisions of this Act,

or of any rule, regulation or order made, or of any licence,

permit, pass or authorisation issued, thereunder (b)

consumes, uses, possesses or transports any intoxicant or

hemp shall, on conviction, be punished."

It may be noted that the Act as it stood before the

amendment by Bombay Act XXVI of 1952 which came into

operation on the 22nd October, 1952, enacted in section 103

the only presumption as to the commission of offences in

certain -cases which cases had nothing to do with the

question before us.

This Court in The State of Bombay and Another v. F. N.

Balsara (supra) held that the definition of liquor contained

in section 2(24) was not ultra vires inasmuch as the word

liquor as understood in India at the time of the Government

of India Act, 1935, covered not only those alcoholic liquids

which are generally used as beverages and produce

intoxication but also all liquids containing alcohol. It

however considered the restrictions imposed by sections 12

and 13 of, the Act on the possession, sale, use and

consumption of liquor not reasonable restrictions on the

fundamental right guaranteed by article 19(1) (b) of the

Constitution to "acquire, hold and dispose of property" so

far as medicinal and toilet preparations containing alcohol

were concerned and declared the said sections invalid so far

as they prohibited the possession, sale, use and consumption

of these articles. The sections were however not wholly

declared void on this ground as the earlier categories

mentioned in the definition of liquor, viz., spirits of

wine, methylated spirits, wine, beer and toddy, were

distinctly separable items which were easily severable from

the last category, viz., all liquids containing alcohol, and

the restrictions on the possession, sale, use and

consumption of these earlier categories were not

unreasonable restrictions. It therefore declared section

13(b) invalid to the extent of the inconsistency, i.e., so

far as it affected the

620

consumption or use of liquid medicinal and toilet

preparations containing alcohol. The question that falls to

be determined is what was the effect of this declaration

The effect of the declaration of a statute as un-

constitutional has been thus set out by Cooley on

Constitutional Limitations, Vol. I, page 382.-

"Where a Statute is adjudged to be unconstitutional, it

is as if it had never been. Rights cannot be built up under

it; contracts which depend upon it for their consideration

are void; it constitutes a protection to no one who has

acted under it and no one can be punished for having refused

obedience to it before the decision was made. And what is

true of an Act void in toto is true also as to any part of

an Act which is found to be unconstitutional and which

consequently has to be regarded as having never at any time

been Possessed of any legal force........

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See also the dictum of Field J. in Norton v. Shelby

County(1):

"An unconstitutional Act is not law, it confers no

rights, it imposes no duties, it affords no protection, it

creates no office; it is, in legal contemplation, as

inoperative as though it had never been passed."

To the same effect are the passages from Rottschaefer on

Constitutional Law, at page 34:

"The legal status of a legislative provision in so far as

its application involves violation of constitutional

provisions, must however be determined in the light of the

theory on which Courts ignore it as law in the decision of

cases in which its application produces unconstitutional

results. That theory implies that the legislative provision

never had legal force as applied to cases within that

class."

Willoughby on Constitution of the United States, Second

Edition, Vol. 1, page 10:-

"The Court does not annul or repeal the statute if it

finds it in conflict with the Constitution. It simply

refuses to recognise it, and determines the rights of the

(1) 118 U. S. 425: 30 L.Ed. 178,

621

parties just as if such statute had no application. The

Court may give its reasons for ignoring or disregarding the

statute, but the decision affects the parties only, and

there is no judgment against the statute. The opinion or

reasons of the Court may operate as a precedent for the

determination of other similar cases, but it does not strike

the statute from the statute book; it does not repeal the

statute. The parties to that suit are concluded by the

judgment, but no one else is bound. A new litigant may

bring a new suit, based on the very same statute, and the

former decision can be relied on only as a precedent "

"It simply refuses to recognise it and determines the

rights of the parties just as if such statute had no

application "

And Willis on Constitutional Law, at page 89

" A judicial declaration of the unconstitutionality of a

statute neither annuls nor repeals the statute but has the

effect of ignoring or disregarding it so far as the

determination of the rights of private parties is concerned.

The courts generally say that the effect of an

unconstitutional statute is nothing. It is as though it had

never been passed

The declaration was a judicial pronouncement and. even

though under article 141 of the Constitution the -law

declared by this Court is binding on all the Courts within

the territory of India and is to be the law of the land the

effect of that declaration was not to enact a statutory

provision or to alter or amend section 13(b) of the Act. No

exception or proviso was also grafted in terms on section

13(b). The only effect of the declaration was that the

prohibition enacted in section 13(b) was to be enforceable

in regard to the consumption or use of validly prohibited

liquor, i.e., spirits of wine, methylated spirits, wine,

beer, toddy and all non-medicinal and non-toilet liquid

preparations consisting of or containing alcohol. The

prohibition which was enacted in section 13(b) against the

consumption or use of liquor could in the light of the

declaration made by this Court only refer to the consumption

or use of validly prohibited liquor, i.e., spirits of wine,

methylated spirits, wine, beer, today and all non-medicinal

and

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622

non-toilet liquid preparations consisting of or containing

alcohol, and that was the only prohibition which could be

enforced under section 13(b) and the penal section 66(b).

The consumption or use of liquid medicinal or toilet

preparations. containing alcohol could not be validly

prohibited and any person consuming or using such medicinal

or toilet preparations containing alcohol could not be

hauled up for having contravened the provisions of the Act.

No offence could be committed by the consumption of liquid

medicinal or toilet preparations containing alcohol and the

provision enacted in section 13(b) read in the light of the

definitions of intoxicant and liquor contained in sections 2

(22) and 2(24) of the Act in so far as it prohibited the

consumption or use of liquor including liquid medicinal or

toilet preparations containing alcohol was rendered

inoperative and unenforceable by the declaration to the

extent of the inconsistency and liquid medicinal or toilet

preparations containing alcohol were lifted out of the

category of validly prohibited liquor. Whatever may be the

implications or the consequences of the unconstitutionality

of section 13(b) to the extent of the inconsistency in other

respects, here was the State enforcing the penal provisions

of section 66(b) and encroaching upon the liberties of the

subject. Penal statutes should be strictly construed and

the, State could only penals the consumption or use of

validly prohibited liquor which only could constitute an

offence under section 66(b). The consumption or use of any

intoxicant meaning any liquor in contravention of the

provisions of this Act was to be punished and unless and

until the prosecution proved that the accused had consumed

or used liquor in contravention of the enforceable provi-

sions of the Act the accused could not be held guilty and

punished under section 66(b). The accused could be held

guilty only if he had contravened the enforceable provisions

of the Act and for the purpose of the present enquiry the

only provision of the Act which he could be charged with

having contravened was section 13(b), the prohibition

contained in which was by reason of the declaration made by

this Court enforceable only in regard to the consumption or

use of Validly prohibited liquor, i.e., spirits of wine.,

methylated spirits,

623

wine, beer, toddy and all non-medicinal and non-toilet

liquid preparations consisting of or containing alcohol.

It was strenuously urged before us on behalf of the

respondent that the declaration in effect, though not in

terms, enacted an exception or proviso to section 13(b) and

that therefore the onus lay upon the appellant to prove the

existence of circumstances bringing his case within the

exception or proviso. (Vide section 105 of the Evidence

Act.) It cannot be disputed that no exception or proviso was

in terms enacted by this declaration. It had the effect of

rendering the prohibition of consumption or use of liquid

medicinal and toilet preparations containing alcohol as

having never at any time been possessed of any legal force

and so not to be enforceable wherever any accused person was

charged with having contravened the provisions of section

13(b) of the Act. The effect of the declaration on the

provisions of section 13(b) could be worked out in any of

the following modes:

No person shall consume or use spirits of wine,

methylated spirits, wine, beer, toddy and all liquids

consisting of or containing alcohol as are not or which are

not or other than or save or except or provided they are not

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or but shall not include liquid medicinal or toilet

preparations containing alcohol or all non-medicinal and

non-toilet liquid preparations consisting of or containing

alcohol.

When these several interpretations were possible in

regard to the effect of the declaration on the provisions of

section 13(b), where would be the justification for

interpreting the effect of the declaration to be that of

grafting an exception o r proviso on section 13(b) so as to

attract the operation of the provisions of section 105 of

the Evidence Act? It is clear that where several

interpretations are possible, the Court should adopt an

interpretation favourable to the accused, rather than one

which casts an extra or special burden upon him, which if at

all should be done by clear and unequivocal provision in

that behalf rather than in this indirect manner. (See also

In re Kanakasabai Pillai(1) ). It would be more in

consonance with the principles of

(1) A.I.R. 1940 Mad. 1.

624

criminal jurisprudence to interpret the effect of this

declaration to be that the prohibition enacted in section

13(b) where it came to be enforced against any accused

person after the declaration should be enforceable as

regards the consumption or use of validly prohibited liquor,

?I.e., spirits of wine, methylated spirits, wine, beer,

toddy and all non-medicinal and non-toilet liquid

preparations consisting of or containing alcohol, as above

stated.

If this is the effect of the declaration made by this

Court there is no room for holding that the only duty of the

prosecution was to prove that the accused had taken liquor

in some form or the other and that the burden lay on the

accused to prove that be had taken a liquid medicinal or

toilet preparation containing alcohol. When an accused

person is charged with having committed an offence it is for

the prosecution to prove all the ingredients of the offence

with which he has been charged and the ingredients of the

offence under section 13(b) as stated above were that he had

consumed or used liquor validly prohibited, i.e. spirits of

wine, methylated spirits, wine, beer, toddy and all non-

medicinal and non-toilet liquid preparations consisting of

or containing alcohol. There was no presumption enacted in

the Act as it stood which would throw the burden of proof on

the accused to show that he had consumed or used liquid

medicinal or toilet preparation containing alcohol. There

was no exception or proviso enacted either in terms or in

effect in section 13(b) which attracted the operation of

section 105 of the Evidence Act and cast upon the accused

the burden of proving the existence of circumstances

bringing his case within such exception- or proviso. The

mere circumstance that the fact in regard to his consumption

or use of liquid medicinal or toilet preparation containing

alcohol was specially within the knowledge of the accused

also could not shift the burden of proving the ingredients

of the offence from the prosecution to the accused, because

it is a cardinal principle of criminal jurisprudence as

administered in this country that it is for the prosecution

and prosecution alone to prove all the ingredients of the

offence with which the

625

accused has been charged. The accused is not bound to open

his lips or to enter upon his defence unless and until the

prosecution has discharged the burden which lies upon it and

satisfactorily proved the guilt of the accused. Section 106

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of the Evidence Act cannot be construed to mean that the

accused has by reason of the circumstance that the facts are

especially within his own knowledge to prove that he has not

committed the offence. (See Attygalle v. The King(1), also

In re Kanakasabai Pillai(2)). It is for the prosecution to

prove that he has committed the offence and that burden is

not in any manner whatsoever displaced by section 106 of the

Evidence Act.

The High Court in arriving at its decision in Rangarao

Bala Mane v. State (supra) above referred to was impressed

with the circumstance that the prosecution could not

possibly prove that no form of medicated alcohol was taken

by the accused, that there were evidently numerous forms of

medicated alcohol and that it was impossible for the

prosecution on the very face of things to exclude all those

forms. The difficulty was illustrated by the High Court in

the manner following:-

"For instance, if the prosecution were to lead evidence

to show that the accused had not taken medicated alcohol in

the form of B. G. Phos, the accused would contend that he

had taken it in some other form. If the prosecution were to

lead evidence that the accused had not taken it in the form

of Winedex, the accused would say that he had taken it in

the form of Waterbury's Compound or Hall's Wine. These are

only two instances to show how, it is impossible for the

prosecution to exclude all forms of medicated alcohol."

It therefore came to the conclusion that once the

prosecution had discharged the onus which was upon it to

prove that the accused person had consumed liquor, it would

be for the accused to show that the liquor which was taken

by him was liquor in the form of medicated alcohol, in other

words, not prohibited liquor. The difficulty thus envisaged

by the High Court was, in my opinion, imaginary. Where an

accused

(1) A.I.R. 1936 P.C. 169. (2) A.I.R. 1940 Madras 1.

626

person is suspected of having committed the prohibition

offence, it would be for the police to investigate the

offence and while investigating the offence, it would be for

the police to find out whether the accused has consumed

liquor which falls within 'the enforceable prohibition

enacted in section 13(b). As there are a number of

preparations which come within the category of liquid

medicinal and toilet preparations consisting of or

containing alcohol, there are a number of preparations which

come within the category of non-medicinal or non-toilet

liquid preparations consisting of or containing alcohol and

it would be really for the police investigating the alleged

offence to find out which out of the latter category of

preparations the accused had consumed and bring him to book

for the same. The circumstance that the accused person was

smelling of alcohol and that he had consumed liquor in some

form or the other would not be an unequivocal circumstance

pointing to the guilt of the accused. The smell of alcohol

could as well be the result of his having consumed medicinal

or toilet preparations consisting of or containing alcohol

as his having consumed validly prohibited liquor, i.e.,

spirits of wine, methylated spirits, wine, beer, toddy and

all non-medicinal and non-toilet liquid preparations

consisting of or containing alcohol. To hold the accused

guilty under these circumstances would be to convict him

merely because he was smelling of alcohol and depriving him

of the benefit of doubt which an accused person is always

entitled to in the event of the facts and circumstances

being consistent either with his guilt or his innocence. To

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adopt the reasoning which appealed to the High Court would

further be tantamount to laying down that once an accused

person was shown to have consumed liquor in some form or the

other the presumption was that he had consumed validly

prohibited liquor and the onus would be-upon him to rebut

that presumption by showing that lie had consumed medicinal

or toilet preparation containing alcohol.

The difficulty in the way of the prosecution proving its

case need not deflect the Court from arriving at a correct

conclusion. If these difficulties are genuinely

627

felt it would be for the Legislature to step in and amend

the law. It would not be the function of the Court to read

something in the provisions of the law' which is not there

or to find out a way of obviating the difficulties in

enforcing the law- howsoever meritorious the intentions of

the Legislature might be. If these difficulties were felt

in the matter of enforcing the policy of prohibition by the

State of Bombay the only remedy was to effect the necessary

amendments when the Bombay Act XXVI of 1952 was enacted on

the 22nd October, 1952, after this Court made the declara-

tion in The State of Bombay and Another v. F. N. Balsara

(supra).

In my opinion it was not enough for the prosecution in

the present case merely to prove that the appellant had

taken alcohol in some form or the other. The prosecution

ought to have proved that the appellant had in contravention

of the provisions of the Act med an intoxicant meaning any

liquor which consumer regard to the declaration made by this

Court having could only be validly prohibited liquor, i.e.,

spirits of wine, methylated spirits, wine, beer, toddy and

all non-medicinal and non-toilet liquid preparations con-

sisting of or containing alcohol. The evidence of the

doctor only went to show that the appellant had consumed

alcohol in some form or the other. That was not enough and

I have therefore come to the conclusion that the prosecution

failed to prove that the appellant had committed the offence

with which he was charged.

In view of the conclusion reached above it is un-

necessary to go into the interesting question which was

canvassed before us at some length as to the burden of proof

on the prosecution as well as the defence in a criminal

trial having regard to the provisions of section 105 of the

Evidence Act as also the applicability in India of the

principles enunciated in Woolmington v. The Director of

Public Prosecutions(1).

I would therefore allow the appeal, and quash the

conviction and sentence passed upon the appellant by the

High Court.

(1) [1935] A.C. 462,

628

JAGANNADHADAS J.-I have had the benefit of the

judgments of both my learned brothers. perusing But, with

great regret, I feel unable to agree with the view taken by

my learned brother Justice Bhagwati.

Two questions of law have been raised in this case,

viz., (1) on whom does the burden of proof lie to make out

that the "liquor" consumed by the appellant was or was not

medicinal or toilet preparations though contain ing alcohol,

and (2) what is the nature and quantum of proof required if

the burden is upon the appellant. The answer to question

No. 1 depends upon the effect of the decision of this Court

in The State, of Bombay and Another v. F. N. Balsara (supra)

which, while holding that the definition of liquor in sub-

section (24) of section 2 of the Bombay Prohibition Act,

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1949 (Act XXV of 1949) is valid, has declared that clause

(b) of section 13 in so far as it affects the consumption or

use of medicinal or toilet preparations containing alcohol,

is invalid. My learned brother Justice Bhagwati, while

holding that the effect of the declaration was not to alter

and amend section 13(b) of the Act, is of the opinion that

in the light-thereof the prohibition under section 13(b) is

to be understood to relate (so far as is relevant for the

present purpose) to consumption or use of "non-medicinal or

non-toilet liquid preparation containing alcohol" and that,

therefore, the burden lies on the prosecution to make out

all the ingredients of the prohibition so understood with

the negative thereof On the other hand, my learned brother

Justice Venkatarama Ayyar is of the opinion that the effect

of the decision in The State of Bombay and Another v. F. N.

Balsara (Supra) is not to amend or alter section 13(b) but

only to render it partly unenforceable, and hence to provide

a defence to the accused, on the ground of

unconstitutionality in so far as that section is sought to

be applied to medicinal or toilet preparations containing

alcohol and that, therefore, the burden of making out the

facts required for this plea is on the accused.

I agree that no legislative function can be attributed

to a judicial decision and that the decision in The State of

Bombay and Another v. F. N. Balsara (supra) does not,

629

proprio vigore amend the Act. The effect of a judicial

declaration of the unconstitutionality of a statute has been

stated at page 10 of Vol. I of Willoughby on the

Constitution of the United States, Second Edition, as

follows:

"The Court does not annul or repeal the statute if it

finds it in conflict with the Constitution. It simply

refuses to recognize it, and determines the rights of the

parties just as if such statute had no application. The

Court may give its reasons for ignoring or disregarding the

statute, but the decision affects the parties only, and

there is no judgment against the statute. The opinion or

reasons for the court may operate as a precedent for the

determination of other similar cases, but it does not strike

the statute from the statute book; it does not

repeal............... the statute. The parties to that suit

are concluded by the judgment, but no one else is bound. A

new litigant may bring a new suit, based on the very same

statute, and the former decision............ can be relied

on only as a precedent."

This and other similar passages from other treatises

relate, however, to cases where the entire legislation is

unconstitutional from the very commencement of the Act, a

situation which falls within the scope of article 13(2) of

our Constitution. They do not directly cover a situation

which falls within article 13(1). In the present case,

though the decision in The State of Bombay and Another v. F.

N. Balsara (Supra) does not by itself bring about a change

in the Act, the declarations made therein are founded on

article 13(1) and it is with the effect thereof we are

concerned. The question is what is the effect of article

13(1) on a pre-existing valid statute, which in respect of a

severable part there. of violates fundamental rights. Under

article 13(1) such part is "void" from the date of the

commencement of the Constitution, while the other part

continues to be valid. Two views of the result brought

about by this voidness are possible, viz., (1) the said

severable part becomes unenforceable, while it remains part

of the Act, or (2) the said part goes out of the Act and the

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Act stands -appropriately amended pro tanto. The first is

the view which appears to have been adopted

81

630

by my learned brother, Justice Venkatarama Ayyar, an the

basis of certain American decisions. I feel inclined to

agree with it. This aspect, however, was not fully

presented by either side and was only suggested from the

Bench in the course of arguments. We have not had the

benefit of all the relevant material being placed before us

by the learned advocates on either side. The second view

was the basis of the arguments before us. It is, therefore,

necessary and desirable to deal with this case on that

assumption.

The question, then, for consideration is what is the

notional amendment which must be imported into the Act

consistently with the decision in The State of Bombay and

Another v. F. N. Balsara (supra). The relevant portions

thereof are as follows: (1) The definition of "liquor" in

the Act to its full extent continues to be valid, (2)

section 13(b) of the Act in so far as it relates to liquid

toilet or medicinal preparations containing alcohol is

invalid, and (3) this portion of the content of section

13(b) is severable. The argument of the appellant's learned

counsel is that the essence of the valid prohibition under

section 13(b) now is the consumption or use of liquor other

than liquid medicinal or toilet preparations containing

alcohol. - Ha urges, therefore, that section 13(b) must be

taken to stand amended accordingly. The argument, if I

understood it a right, was that the word "liquor" stands

amended as "prohibited liquor" or that it must be understood

with this limited connotation. I am unable to see how this

can be done. The definition of the word "liquor" with its

inclusive content remaining intact and valid, that content

has to be imported wholesale into the meaning of the word

"liquor" in section 13(b) and it appears to me that it is

not permissible to read it or understand it in a different

sense. So to read it or understand it would be to import a

new definition of "prohibited liquor" into the Act and to

make the consumption or use of "prohibited liquor", the

offence. What, however, the Balsara decision has done is

not to authorise the importation of a new definition and the

rewriting of section 13(b). It keeps section 13(b) intact

631

but treats the consumption or use of liquid toilet or

medicinal preparations containing alcohol as severable and

takes such consumption or use out of the ambit of the

section itself as the prohibition thereof is un-

constitutional. This can be done and only done, in my

opinion, by grafting an appropriate exception or proviso

into section 13(b).

My learned brother, Justice Bhagwati, has in his,

judgment suggested that, if it is a question of treating

section 13(b) as amended,. the amendment can be made in one

of many modes and that there is no reason to choose between

them and that it is not fair to an accused person to read it

in a manner throwing the burden on him, when a more

favourable mode is open. The various modes of amendment are

indicated in the following suggested reading of section

13(b).

"No person shall consume or use spirits of wine,

methylated spirits, wine, beer, toddy and all liquids

consisting of or containing

'A' alcohol as are not or which are not or other than or

save or except or provided they are not or but shall include

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liquid medicinal or toilet preparations containing alcohol,

or

all non-medicinal and non-toilet liquid 'B' preparations

consisting of or containing alcohol."

(The underlinings and markings are mine).

Now, if the relevant portion of the section is recast in

the manner above indicated, in any of the alternative modes

in the portion marked 'A' above, I have no doubt that every

one of these modes is only an exception or a proviso which

falls within the specific terms of section 105 of the

Evidence Act, i.e., an exception or proviso "in the law

defining the offence." If, on the other hand, the section is

treated as amended by incorporating the portion marked 'B'

omitting the portion marked 'A', it appears to me, with

great respect, that it is to alter the very content of the

word' "liquor" in the section, for which I can find no legal

justification. What the decision in The State of Bombay

632

and Another v. F. N. Balsara (supra) authorises is, as I

have already explained above, to keep the word "liquor"

intact with its full content and sever from the provision

taken as alcohol (not merely from the word "liquor")

medicinal or toilet preparations. I feel accordingly

confirmed in the view that I have taken, viz., that this can

only be done by engrafting an exception or a proviso.

As regards the other view suggested by my learned

brother Justice Bhagwati, that without importing any

alteration or amendment in the section itself, the same is

to be understood as having reference to what maybe called

"prohibited liquor", understanding that word with reference

to the decision in The State of Bombay and Another v. F. N.

Balsara (supra), here again, with great respect, I feel

difficulty in imputing into a specific statutory provision a

meaning different from what its plain words, in the light of

the definition, indicate. The decision in The State Of

Bombay and Another v. F. N. Balsara (supra), if it does not

bring about an amendment in the provision does not also

provide any mere aid to interpretation.

The question is not done of insisting on a merely

technical view of the matter. I feel unable to impute to

the decision in The State of Bombay and Another v. F. N.

Balsara (supra), taken with article 13(1), the effect of

rendering section 13(b) unworkable, which certainly was not

intended. In this view, therefore, (and on the basis put

forward by learned counsel on both sides), the effect of

article 13(1) on section 13(b) of the Act in the light of

the decision in The State of Bombay and Another v. F. N.

Balsara (supra) is that it stands amended pro tanto by means

of an appropriate exception or proviso. It follows that

section 105 of the Evidence Act would in terms apply to such

a situation. Thus in either view of the effect' of article

13(1) of the Constitution on section 13(b) of the Bombay Act

in the light of the judgment in The State of Bombay and

Another v. F. N. Balsara (supra) the opinion expressed by

the learned Judges of the Bombay High Court that the burden

of proof in a case like this lies on the accused is correct.

633

As regards the second question that has been raised

namely as to the nature and quantum of the evidence required

to discharge this burden of proof, considerable arguments

have been advanced before us. Our attention has been drawn

to the existence of conflicting decisions in the High Courts

on this topic. On the one side there is the decision of the

Full Bench of the Allahabad High Court in Prabhoo v.

Emperor(1) and on the other, there is a later Special Bench

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decision of the Bombay High Court in Government of Bombay v.

Sakur(2). In my opinion it is unnecessary for us to resolve

that conflict in this case, since, on either view, the

finding of the appellate Court that the burden has not been

discharged on the available material seems to me to be

correct. In particular it is to be noticed that the

appellant put forward a specific defence in Paragraph 8 of

the written statement filed by him into Court in answer to

the charge. In support of this defence he has given no

proof of any circumstances, which must be within his

knowledge, to render the defence reasonably probable even if

be may not have been able to prove the same strictly to the

hilt.

I am, therefore, of the opinion that the conviction of

the appellant under section 66(b) of the Bombay Prohibition

Act, 1949, is correct. But in the circumstances, it is not

necessary to send him back to jail. I would, therefore,

reduce the sentence of imprisonment to the period already

undergone. In the result, the appeal has to be dismissed

subject to this modification.

VENKATARAMA AYYAR J.-I regret that I am unable to agree

with the view taken by my learned brother, Bhagwati J. The

facts giving rise to this appeal have been stated in his

Judgment which I have had the advantage of reading and it is

unnecessary to restate them. The point for decision shortly

is whether in a prosecution under section 66(b) of the

Bombay Prohibition Act, XXV of 1949, for contravention of

section 13(b), the prosecution has to establish not merely

that liquor had been taken in some form but that further

what was taken was not a medicinal preparation. The

(1) I.L.R. 1941 All. 843.

(2) 48 Bom. L. R. 746; A.I.R. 1947 Bom. 38.

634

learned Judges of the Bombay High Court held following an

earlier decision of that Court in Rangrao Bala Mane v. State

(supra) that once the prosecution had established that the

accused had taken alcohol in some form it was for him to

establish that he had taken a medicinal preparation, both on

the ground that it was in the nature of an exception which

it was for the party pleading it to establish under section

105 of the Evidence Act and that it was a matter specially

within his knowledge and that therefore the burden of

proving it lay on him under section 106 of the Evidence'

Act. The appellant challenges the correctness of this deci-

sion and contends that it is opposed to the decision of this

Court in The State of Bombay and Another v. F. N. Balsara

(supra).

It will be convenient first to refer to the statutory

provisions bearing on the question and ascertain what the

position is thereunder, and then consider how it is affected

by the decision of this Court in The State Of Bombay and

Another v. F. N. Balsara (supra). The relevant provisions

of the Bombay Prohibition Act are sections 2(24), 13(b) and

66(b). Section 2(24) defines "liquor" as including all

liquids consisting of or containing alcohol. Section 13(b)

enacts that no person shall use or consume liquor and a

contravention of this provision is made punishable under

section 66(b). As medicinal preparations containing alcohol

are liquor as defined in section 2(24) the consumption

thereof will be an offence punishable under the Act and it

will be no answer to a prosecution for contravention of

section 13(b) that what was consumed was a medicinal

preparation and a question of the kind now presented to us

therefore could not possibly arise under the Act prior to

the Constitution.

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I may next consider the effect of the decision of this

Court in The State of Bombay and Another v. F. N. Balsara

(supra) on the legal position under the Act. It was there

held inter alia that section 13(b) in so far as it

prohibited the consumption of medicinal preparations was an

unreasonable restriction on the rights of an owner to hold

and enjoy property and was therefore void as being repugnant

to article 19 (1) (f) of the

635

Constitution. The appellant contends that the effect of

this declaration was to remove medicinal preparations from

out of the purview of section 13(b); that' that section

should therefore be read as if it had been amended to the

effect that no person shall use or consume liquor other than

medicinal preparations or toilets; that in that view no

question of the accused having to rely on an exception arose

and no question of the burden being thrown on him under

section 105; and that as the offence itself consisted in

consuming a liquor which was not a medicinal preparation,

the burden would lie on the prosecution to establish that

what was consumed was a prohibited liquor. On the other

hand, the respondent contends that the definition of liquor

in section 2(24) includes not only beverages but also

medicinal preparations, that the extended definition would

apply to section 13(b) as well, that the immunity of

medicinal preparations containing alcohol from the operation

of the section by reason of the decision in The, State of

Bombay and Another v. F. N. Balsara (supra) must in

consequence be treated as an exception to it and that the

'section should be read as containing a saving in favour of

those preparations, in the nature of an exception or

proviso, the burden of establishing which under section 105

of the Evidence Act would be on the accused. I agree with

the appellant that section 105 has no application. We are

not here concerned with any exception, general or special,

under the Penal Code or any other law defining the offence.

The exception or proviso, if it may be so called, arises as

a result of the decision of this Court and not under any

statute and section 105 cannot therefore in terms apply. At

the same time it is difficult to see how the decision in The

State of Bombay and Another v. F. N. Balsara (Supra) can be

considered to effect an amendment of section 13(b) so as to

exclude medicinal preparations from out of its ambit. The

rival contentions which have been presented to us on the

effect of the decision in The State of Bombay and Another v.

F. N. Balsara (supra) proceed both of them on the basis

that' section 13(b) has in some manner been amended by it;

according to the appellant, the

636

section must be taken to have been amended by excluding

medicinal preparations from the word " liquor" according

to the respondent, by inserting an exception or proviso to

the section in favour of such preparations. That, however,

is not the correct position. Decisions of Court do not

amend or add to a statute. That is a purely legislative

function. They merely interpret the law and declare whether

it is valid or not and the result of a declaration that it

is not valid is that no effect could be given to it in a

Court of law. If therefore section 13(b) cannot be

construed as itself amended or modified by reason of the

decision in The State of Bombay and Another v. F. N. Balsara

(supra), there is no reason to hold that medicinal

preparations containing alcohol, which fell within its scope

before, have gone out of it after that decision. This

argument therefore does not furnish any ground for throwing

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the burden on the prosecution under section 13( b) to

establish not merely that what was consumed was liquor but

that it was not a medicinal preparation.

The question of burden of proof must therefore be

decided not on the basis of a suppositions amendment of the

section or addition of an exception or proviso to it but on

the language of the section as it stands and with reference

to Well established principles of law. Under that section

it is an offence to use or consume liquor and that under the

definition in section 2(24) includes medicinal preparations

containing alcohol. One of the points raised in The State

of Bombay and Another v. F. N. Balsara (supra) was that the

State Legislature which was competent to legislate on into-

xicating liquor could not under that head of legislation

enact a law in respect of medicinal preparations containing

alcohol because the words "intoxicating liquor" meant

beverages and not medicines but this contention was

negatived by this Court on the ground that the words

"intoxicating liquor" had acquired an extended sense as

including medicinal preparations containing alcohol and that

the Legislature was competent while enacting a law with

reference to intoxicating liquors to legislate on medicinal

preparations

637

containing alcohol. The definition of "liquor" in section

2(24) in its extended sense having thus been held to be

valid, it follows that unless there is something in the

particular provision to the contrary, the word "liquor" must

wherever it occurs in the statute include medicinal

preparations and that is the meaning which it must bear in

section 13(b). In The State of Bombay and Another v. F. N.

Balsara (supra), it is on the footing that medicinal

preparations are included in section 13 that the entire

discussion on its validity with reference to article 19(1)

(f) proceeds. We therefore start with this that under

section 13(b), the Legislature has made it an offence to

take alcohol in any form, whether as beverages or as

medicinal preparations. That being the position and it

having been decided that the section in so far as it relates

to medicinal preparations is void as repugnant to article

19(1) (f), the question as to who should prove whether what

was consumed was alcohol or medicinal preparation containing

alcohol appears to me to admit of a simple answer. There is

a strong presumption in favour of the constitutionality of a

statute and it is for those who assail it as

unconstitutional to establish it. The contention of the

appellant is, when analyzed, that section 13(b) is bad in so

far as it hits medicinal preparations containing alcohol as

it contravenes article 19(1) (f) of the Constitution, and

the decision of this Court in The State of Bombay and

Another v.. F. N. Balsara (supra) is relied on as supporting

it. But before the appellant can bring himself within that

decision, he must establish that what he consumed was a

medicinal preparation. The plea of unconstitutionality is

not established unless all the elements necessary to sustain

such a plea are established ; and as observed by this Court

in Rao Shiv Bahadur Singh v. The State of Vindhya

Pradesh(1), "the burden of making out facts requisite for

the constitutional invalidity of the convictions" is on the

appellant. He has therefore to make out as a fact that what

he consumed was a medicinal preparation and as a matter of

law, that section 13(b) is bad in so far as it prohibits it.

The decision of this Court concludes the

(1) [1953] S.C.R. 1188,1202.

82

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638

question in his favour so 'far as the second point is

concerned. But the burden of establishing the first point,

that in fact what he consumed was a medicinal preparation,

still remains on him.

It was argued for the appellant that this Court had

declared that section 13(b) was void under article 13(1) of

the Constitution in so far as it related to medicinal

preparations; that that meant that it was to that extent a

nullity and that it should in consequence be read as if it

did not include medicinal preparations. The question is,

what is the legal effect of a statute being declared

unconstitutional. The answer to it depends on two

considerations,-firstly, does the constitutional prohibition

which has been infringed affect the competence of the

Legislature to enact the law or does it merely operate as a

check on the exercise of a power which is within its

competence; and secondly, if it is merely a check, whether

it is enacted for the benefit of individuals or whether it

is imposed for the benefit of the general public on grounds

of public policy. If the statute is beyond the competence

of the Legislature, as for example, when a State enacts a

law which is within the exclusive competence of the Union,

it would be a nullity. That would also be the position when

a limitation is imposed on the legislative power in the

interests of the public, as, for instance, the provisions in

Chapter XIII of the Constitution relating to inter-State

trade and commerce. But when the law is within the com-

petence of the Legislature and the unconstitutionality

arises by reason of its repugnancy to provisions enacted for

the benefit of individuals, it is not a nullity but is

merely unenforceable. Such an unconstitutionality can be

waived and in that case the law becomes enforceable. In

America this principle is well setted. (Vide Cooley on

Constitutional Limitations, Volume 1, pages 368 to 371;

Willis on Constitutional Law, at pages 524, 531, 542 and

558; Rottschaefer on Constitutional Law, at pages 28 and 29-

30). In Shepard v. Barron(1), it was observed that

"provisions of a constitutional nature, intended for the

protection of the property owner, may be waived by him." In

Pierce v. Somerset Railway(2),

(1) 194 U.S. 553 ; 48 L. Ed. III5. (2) I71 U.S. 64I ; 43

L. Ed. 316.

639

the position was thus stated: "A person may by his acts or

omission to act waive a right which he might otherwise have

under the Constitution of the United States, as well as

under a statute." In Pierce Oil Corporation v. Phoenix

Refining Co.(1), where a statute was impugned on the ground

that it imposed unreasonable restrictions on the rights of a

corporation to carry on business and thereby violated the

rights guaranteed under the Fourteenth Amendment, the Court

observed "There is nothing in the nature of such a

constitutional right as is here asserted to prevent its

being waived or the right to claim it barred, as other

rights may be, by deliberate election or by conduct

inconsistent with the assertion of such a right." The

position must be the same under our Constitution when a law

contravenes a prescription intended for the benefit of

individuals. The rights guaranteed under article 19(1) (f)

are enacted for the benefit of owners of properties and when

a law is found to infringe that provision, it is open to.

any person whose rights have been infringed to waive it and

when there is waiver there is no legal impediment to the

enforcement of the law. It would be otherwise if the

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statute was a nullity; in which case it can neither be

waived nor enforced. If then the law is merely

unenforceable and can take effect when waived it cannot be

treated as non est and as effaced out of the statute book.

It is scarcely necessary to add that the question of waiver

is relevant to the present controversy not as bearing on any

issue of fact arising for determination in this case but as

showing the nature of the right declared under article 19(1)

(f) and the effect in law of a statute contravening it.

Another point of distinction noticed by American jurists

between unconstitutionality arising by reason of lack of

legislative competence and that arising by reason of a check

imposed on a competent Legislature may also be mentioned.

While a statute passed by a Legislature which had no

competence cannot acquire validity when the Legislature

subsequently acquires competence, a statute which was within

the competence of the Legislature at the time of its

enactment but

(1) 259 U-S- 125; 66 L. Ed. 855.

640

which infringes a constitutional prohibition could be

enforced proprio vigore when once the prohibition is

removed. The law is thus stated in Willoughby on the

Constitution of the United States, Volume 1, at

page 11:-

"The validity of a statute is to be tested by the

constitutional power of a legislature at the time of its

enactment by that legislature,, and, if thus tested it is

beyond the legislative power, it is not rendered valid,

without re-enactment, if later, by constitutional amendment,

the necessary legislative power is granted.

However, it has been held that where an act is within

the general legislative power of the enacting body, but is

rendered unconstitutional by reason of some adventitious

circumstance, as for example, when a State legislature is

prevented from regulating a matter by reason of the fact

that the Federal Congress has already legislated upon that

matter, or, by reason of its silence, is to be construed as

indicating that there should be no regulation, the act does

not need to be re-enacted in order to be enforced, if this

cause of its unconstitutionality is removed."

The authority cited in support of this observation is

the decision in Wilkerson v. Rahrer(1). There the State of

Kansas enacted a law in 1889 forbidding the sale of

intoxicating liquors in the state. Though it was valid with

reference to intra-state sales, it was unconstitutional in

so far as it related to inter-State sales. In 1890 the

Congress passed a legislation conferring authority on the

States to enact prohibition laws with reference to inter-

State trade. A prosecution having been instituted under the

1889 Act in respect of sales effected after the Congress

legislation of 1890, one of the contentions urged was that

as the State law was unconstitutional when it was enacted it

was void and it could not be enforced even though the bar

had been removed by the Congress legislation of 1890. In

repelling this contention the Court observed:-

" This is not the case of a law enacted in the

unauthorized exercise of a power exclusively confided to

Congress, but of a law which it was competent for

(1) 140 U.S. 545 ; 35 L. Ed.572.

641

the State to pass, but which could not operate upon articles

occupying a certain situation until the passage of the Act

of Congress. That Act in terms removed the obstacle, and we

perceive no adequate ground for adjudging that a re-

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enactment of the State law was required before it could have

the effect upon imported which it had always had upon

domestic property. "

The position is thus stated by Cooley in his work on

Constitutional Law, at page 201 :-

" A court's decision merely decides the case that is

then under adjudication, and a finding of unconstitu-

tionality does not destroy the statute but. merely involves

a refusal to enforce it."

Rottschaefer, after referring to the conflict of

authorities on the point in the States refers to the

decision in Wilkerson V. Rahrer(1), as embodying the better

view. This question again, it may be noted, does not arise

as such for determination in this case and is material only

as showing that an infringement of a constitutional'

prohibition which does not affect the competence of a

Legislature but is merely a check on its exercise does not

render the law a nullity.

In view of the principles discussed above, the use of the

word "void" in article 13(1) is not decisive on the question

as to the precise effect of a law being repugnant to article

19(1) (f). Reference may be made in this connection to the

statement of the law in Corpus Juris, Volume 67, page 263 et

seq., to which counsel for the respondent invited our

attention. It is there pointed out that the word "void" in

statutes and decisions might mean either that is "absolutely

void" or "relatively void" ; that "that is 'absolutely void

which the law or the nature of things forbids to be enforced

at all, and that is relatively void' which the law condemns

as a wrong to individuals and refuses to enforce as against

them"; that what is absolutely void is incapable of

confirmation and ratification; and that what is relatively

void could be waived.

The true scope of article 13(1) was considered by this

Court in Kesavan Madhava Menon v. State Of

(I) 140 U.S. 545 ; 35 L. Ed. 572.

642

Bombay(1). There the point for determination was whether

the Constitution was retrospective in its operation. In the

course of his judgment Das J. observed:-

"It should further be seen that article 13(1) does not in

terms make the existing laws which are inconsistent with the

fundamental rights void ab initio or for all purposes. On

the contrary, it provides that all existing laws, in so far

as they are inconsistent with the fundamental rights, shall

be void to the extent of their inconsistency. They are not

void for all purposes but they are void only to the extent

they come into conflict with the fundamental

rights............... Article 13(1) cannot be read as

obliterating the entire operation of the inconsistent laws,

or to wipe them out altogether from the statute

book.................... The effect of article 13(1) is

quite different from the effect of the expiry of a temporary

statute or the repeal of a statute by a subsequent statute.

As already explained, article 13(1) only has the effect of

nullifying or rendering all inconsistent existing laws

ineffectual or nugatory and devoid of any legal force or

binding effect only with respect to the exercise of

fundamental rights on and after the date of commencement of

the Constitution. "

It is true that the question which the Court was

considering there was different from the one which we have

now to decide in this appeal. But those observations embody

a principle which is applicable to the present case as well.

In effect, "void" in article 13(1) was construed as meaning,

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in the language of American jurists, "relatively void.

Therefore both on the ground that a judicial determination

does not operate as an amendment of the statute and, on the

ground that a declaration that the impugned law is void

under article 13(1) as repugnant to article 19(1) (f) merely

renders it unenforceable, I am of the opinion that the

decision in The State of Bombay and Another v. F. N. Balsara

(supra) cannot be held to remove medicinal preparations from

out of the purview of section 13(b). I therefore agree with

the learned Judges

(1) [1951] S.C.R. 228.

643

of the Bombay High Court, though not for the reasons given

by them, that the burden of establishing that. what was

consumed was a medicinal preparation lies on the appellant.

It was next contended that even if the burden lay on the

appellant,to prove that he had taken a medicinal

preparation, he must be held on the evidence to have

discharged it because the doctor who examined him at 11-30

P.m., on the day of the occurrence stated in his evidence

that he was coherent in his speech and could walk along a

straight line, that the smelling of alcohol could be caused

by oxidation and that the condition of the conjunctive in

the eyes could result from street dust. It was argued that

if the prosecution evidence did not exclude the possibility

of the defence being true, then notwithstanding section 105

of the Evidence Act the burden which lay on the posecution

of establishing the offence had not been discharged and

reliance was placed on the decision in Woolmington v.

Director of Public Prosecutions(1), and on Indian

authorities wherein it was followed: Emperor v.

U.Damapala(2); Parbhoo v. Emperor(1). In opposition to

these authorities counsel for the respondent relied on the

decision in Government of Bombay v. Sakur(4). The question

is whether if the burden lay upon the appellant the

conclusion of the learned Judges that it had not been

discharged is on the evidence a reasonable one. If it is,

this Court cannot interfere with it in an appeal under

article 136. It must be noted that the appellant himself

led no evidence in support of the plea. If at least the

evidence which the prosecution adduced disclosed facts which

would lend support to the defence, it might then have been

open to the appellant to rely on them without himself having

to adduce independent evidence but none such were elicited.

The learned Judges in the Court below have approached the

case from the correct standpoint and have discussed the

entire evidence with a view to find whether on that the

(1) [1935] A.C. 462.

(2) I.L.R. 14 Rang. 666.

(3) I.L.R. 194i All. 843.

(4) A.I.R. 1947 Bom. 38; 48 Bom. L.R. 616.

644

defence was reasonably probable. They held that the giving

of coherent answers or walking in a straight line would only

show that the appellant was not drunk at that time but would

not show that he had not consumed liquor. They also

remarked that the appellant could have informed both -the

sub-inspector and the doctor who examined him that he had

taken medicine in which case the police might have been in a

position to find out whether there was a medicine bottle at

his residence at that time. If the learned Judges were

right in their view that the burden lay on the appellant,

their finding that it had not been discharged is not one

which is open to attack.

It was also contended that the trial magistrate having

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acquitted the appellant, the presumption of innocence which

the law raises in favour of the accused became reinforced

and that there were no compelling reasons for the appellate

Court to have reversed the order of acquittal. But the

judgment of the trial Court was based on the view that the

burden was on the prosecution to establish that the accused

had not taken a medicinal preparation and when the learned

Judges differed from that view, they had to review the

evidence afresh and decide whether the appellant had

discharged the burden and their finding on the question is

not vitiated by any misdirection.

In the result the conviction of the appellant under

section 66(b) of the Bombay Prohibition Act must be

confirmed. As regards the sentence of one month's

imprisonment passed on him, it appears that he has already

served 22 days out of it. The justice of the case does not

require that he should be again sent to jail. I would,

therefore, reduce the sentence of imprisonment to the period

already undergone. Subject to this modification, I am of

the opinion that this appeal should be dismissed.

By THE Court -Having regard to the judgments of the

majority, the appeal will be dismissed subject to the

modification that the sentence imposed upon the appellant

will be reduced to that already undergone. Bail bond will

be cancelled.

Appeal dismissed and sentence reduced.

645

[There was an application for review of the aforesaid

Judgments under article 137 of the Constitution and the

Hon'ble Judges of the original Bench (Bhagwati,

Jagannadhadas and Venkatarama Ayyar JJ.) passed the

following order dated 28th April, 1954, referring the case

for the opinion of the Constitution Bench.]

The Order of the Court was pronounced by

BHAGWATI J.-We grant the review and reopen the case to

enable us to obtain the opinion of a larger Bench on the

constitutional question raised in the judgments previously

delivered by us. Under proviso to article 145 of the

Constitution, we refer the following question for the

opinion of the Constitution Bench of the Court.

"What is the effect of the declaration in The State of

Bombay and Another v. F. N. Balsara(1) that clause (b)

of section 13 of the Bombay Prohibition Act, 1949, is void,

under article 13(1) of the Constitution, in so far as it

affects the consumption or use of liquid medicinal or toilet

preparations containing alcohol, on the ground that it

infringes article 19(1) (f) of the Constitution?"

On receipt of the opinion the case will be taken up for

further consideration.

[In pursuance of the above reference under the proviso

to article 145(3) of the Constitution their Lordships of the

Constitution Bench (Mehr Chand Mahajan C. J., Mukherjea, S.

R. Das, Vivian Bose and Ghulam Hasan JJ.) gave the following

Opinion dated 23rd September, 1954.]

MEHR CHAND MAHAJAN C.J.-(Mukherjea, Vivian Bose and

Ghulam Hasan JJ. concurring) A Bench of this Court hearing

an appeal under the provisions of Chapter IV of the

Constitution has referred, under article 145(3) of the

Constitution, for the opinion of the Constitution Bench the

following point:-

"What is the effect of the declaration in The State of

Bombay and Another v. F. N. Balsara(1) that clause (b) of

section 13 of the Bombay Prohibition Act, 1949, is void,

under article 13(1) of the Constitution, in so far as it

affects the consumption or use of liquid

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(1) [1952] S.C.R. 682.

83

646

medicinal or toilet preparations containing alcohol, on ,the

ground that it infringes article 19(1) (f) of the

Constitution?"

The facts giving rise to the reference are these: Shri

Pesikaka, the appellant in the case, was at the relevant

period, officiating Regional Transport Officer, Bombay

Region. On the 29th May, 1951, at about 9-30 P.m., while

proceeding in his jeep towards Colaba Bus Stand, he knocked

down three persons. He was arrested by the police and taken

to the police station and then to St. George's Hospital.

The doctor, found his breath smelling of alcohol,

conjunctiva congested, pupils semi-dilated and reacting to

light, and speech coherent. He could behave himself and

walk along a straight line. In the opinion of the doctor

the appellant did not seem to be under the influence of

alcohol, though he had taken alcohol in some form or other.

On these facts. the appellant was prosecuted for having

committed offences under section 338, Indian Penal Code

(rash driving), as well as under section 66(b) of the Bombay

Prohibition Act. In defence it was suggested that he had

taken a medicinal preparation, B.G. Phos, and had not

consumed any liquor, and that on the night in q question he

had taken at about 9 or 9-15 p.m. after dinner a dose of B.

G. Phos which contained 17 per cent. of alcohol according to

its formula.

The learned Presidency Magistrate acquitted the

appellant on the finding that the prosecution had failed to

establish his guilt under either of the sections under which

he was charged. With regard. to the offence under section

66(b) of the Bombay Prohibition Act, it was observed that

there were certain medicinal preparations which were allowed

to be used by law, and there was no satisfactory evidence to

show that the appellant had not consumed those tonics but

only liquor for which he ought to have a -permit. The State

of Bombay appealed against the acquittal order to the High

Court. The High Court confirmed the acquittal in regard to

the charge under section 338, Indian Penal Code, but

reversed the order acquitting him of the charge under

section 66(b) of the Bombay Prohibition Act followed a

decision of its own' Division

647

Bench in Rangrao Bala Mane v. The State (supra) where it had

been held that once it was proved by the prosecution that a

person had drunk or consumed liquor without a permit, it was

for that person to show that the liquor drunk by him was not

prohibited liquor, but was alcohol or liquor which he was

permitted by law to take, e.g., medicated alcohol. On this

view of the law, on the merits of the case it was held that

the appellant had failed to prove the existence of circum-

stances from which the Court could come to the conclusion

that the liquor which was consumed by the appellant was not

prohibited liquor but liquor which was excepted by the

Bombay Prohibition Act from its operation. In the result

the appellant was sentenced to one month's rigorous

imprisonment and a fine. of Rs. 500. Against this order an

appeal was admitted in this Court by special leave and was

heard by a Bench of the Court consisting of Bhagwati,

Jagannadhadas and Venkatarama Ayyar JJ. on the 19th

February, 1954. The learned Judges could not reach an una-

nimous decision and expressed different and divergent

opinions. Bhagwati J. wanted to allow the appeal and quash

the conviction. He was of the opinion that the onus rested

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on the prosecution to prove that the liquor consumed by the

appellant was prohibited liquor under section 13(b) of the

Act and that the prosecution had failed to prove this.

This, in the opinion of the learned Judge, was the

consequence of the declaration of unconstitutionality of a

portion of section 13(b) by this Court in The State of

Bombay and Another v. F. N. Balsara (supra).

Venkatarama Ayyar dissented from this view. He was of

the opinion that the decision in The State of Bombay and

Another v. F. N. Balsara (supra) could not be held to have

the effect of taking out medicinal preparations from the

purview of section 13(b) and that its effect was merely to

render that part of the section unenforceable and that the

onus rested on the accused to establish the plea of

unconstitutionality, and it could not be held established

unless all the elements necessary to sustain such a plea

were proved and the accused had therefore to make out as a

fact that what he had

648

consumed was a medicinal 'preparation. On the merits of the

case it was held that the accused had failed to discharge

the burden that rested on him. In the result the conviction

of the appellant by the High Court was upheld.

Jagannadhadas J. agreed in the result reached by Venkatarama

Ayyar J. but on different grounds. lie was of the opinion

that the only way to give full effect to the judgment in

The, State Bombay and Another v. F. N. Balsara (supra) was

to engraft an appropriate exception or proviso upon section

13(b) in the light of that decision. He considered that The

State of Bombay and Another v. F., N. Balsara (supra) did

not import a new definition or re-write section 13(b). It

kept the section intact but treated the consumption of

liquid or medicinal preparations containing alcohol as

beyond its ambit and thus engrafted an exception or proviso

on to section 13(b). On this view of the effect of

Balsara's decision it was held that the onus rested on the

accused to establish that his case fell within the exception

and he had failed to discharge that onus. In accordance

with the opinion of the majority the conviction of the

appellant, under section 66(b) of the Bombay Prohibition Act

was confirmed and the appeal was dismissed but the sentence

was reduced to that already undergone.

On a petition for review being presented, the learned

Judges -granted the review on the 26th April, 1954, and

reopened the case, to enable them to obtain the opinion of

the Constitution Bench of this Court on the constitutional

question formulated and mentioned above.

For a proper appreciation of the question referred to us,

it is necessary to set out what this Court decided In The

State of Bombay and Another v. F. N. Balsara (supra). In

that case the constitutional validity of the Bombay

Prohibition Act (XXV of 1949) was challenged on different

grounds. This attack substantially failed and the Act was

maintained as it was passed, with the exception of 'a few

provisions that were declared invalid. Inter alia, clause

(b) of section 13 so far as it affected the consumption or

use of such medicinal and toilet preparations containing

alcohol was held invalid.

640

Section 2(24) of the Act defined a "liquor" to include

spirits of wine, methylated spirits, wine, beer, toddy and

all liquids consisting of or containing alcohol. Section

13(b) prohibits the use or consumption of liquor without a

permit. Section 66(b) which is the penal section provides

that "whoever in contravention of the provisions of this Act

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consumes, uses any intoxicant shall, on conviction, be

punished." The appellant was charged under section 66(b) of

the Act for having used or consumed liquor the use of which

was prohibited by section 13(b). In The State of Bombay and

Another v. F. N. Balsara (supra), the part of the section

that brought all liquids containing alcohol within its ambit

was declared invalid and the section therefore, though it

stood intact as enacted in respect of prohibited liquor up

to the date of the coming into force of the Constitution and

qua non-citizens subsequently, a part of it was declared

invalid, and so far as it concerned citizens, qua them that

part of the section ceased to have legal effect.

The problem now raised is; what is the effect of this

partial declaration of the invalidity of section 13(b) on

the case of a citizen prosecuted under section 66(b) for

committing a breach of the provisions of the section after

the coming into force of the Constitution. Our opinion on

this question is that the effect of the declaration in The

State of Bombay and Another v. F. N. Balsara (supra), that

clause (b) of section 13 of the Bombay Prohibition Act is

void under article 13(1) of the Constitution in so far as it

affects the consumption or use of liquid medicinal or toilet

preparations containing alcohol, is to render part of

section 13(b) of the Bombay Prohibition Act, inoperative,

ineffective and ineffectual and thus unenforceable. The

part of the section which has been declared void has no

legal force so far as citizens are concerned and it cannot

be recognized as valid law for determining the rights of

citizens. In other words, the ambit of the section stands

narrowed down so far as its enforceability against citizens

is concerned and no notice can be taken of the part of the

section struck down in a prosecution for contravention of

the provisions of that section, with

650

the consequence that in prosecutions against citizens of

India under section 13(b), the offence of contravention of

the section can only be proved if it is established that

they have used or consumed liquor or an intoxicant which is

prohibited by that part of the section which has been

declared valid and enforceable and without reference to its

unenforceable part. No notice at all should be taken of

that other part as it has no relevance in such an enquiry,

having no legal effect. In a criminal case unless the

prosecution proves a contravention of a provision that is

legally enforceable and valid, it cannot succeed. No onus

is cast on the accused to prove that his case falls under

that part of the section which has been held unenforceable.

The High Court was in error in placing the onus on the

accused to prove that he had consumed alcohol that could be

consumed without a permit merely on proof that he was

smelling of alcohol. In our judgment, that was not the

correct approach to the question. The bare circumstance

that a citizen accused of an offence under section 66(b) is

smelling of alcohol is compatible both with his innocence as

well as his guilt. It is a neutral circumstance. The smell

of alcohol may be due to the fact that the accused had

contravened the enforceable part of section 13(b) of the

Prohibition Act. It may well be due also to the tact that

he had taken alcohol which fell under the unenforceable and

inoperative part of the section. That being so, it is the

duty of the prosecution to prove that the alcohol of which

he was smelling was such that it came within the category of

prohibited alcohols and the onus was not discharged or

shifted by merely proving a smell of alcohol. The onus thus

cast on the prosecution may be light or heavy according to

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the circumstances of each case. The intensity of the smell

itself may be such that it may negative its being of a

permissible variety. Export evidence may prove that

consumption in small doses of medicinal or other

preparations permitted cannot produce the smell or a state

of body or mind amounting to drunkenness. Be that as it

may, the question is one of fact to be decided according to

the circumstance of each case. It is open to the accused to

prove in defence that what he

651

consumed was not prohibited alcohol, but failure of the

defence to prove it cannot lead to his conviction unless it

is established to the satisfaction of the Judge by the

prosecution that the case comes within the enforceable part

of section 13(b), contravention of which alone is made an

offence under the provisions of section 66 of the Bombay

Prohibition Act. Our reasons for this opinion are these.

The meaning to be given to the expression "void" in

article 13(1) is no longer res integra. It stands concluded

by the majority decision in Kesava Madhava Menon v. The

State of Bombay(,). The minority view there was that the

word "void" had the same meaning as " repeal" and therefore

a statute which came into clash with fundamental rights

stood obliterated from the statute book altogether, and that

such a statute was void ab initio. The majority however

held that the word "void" in article 13(1), so far as

existing laws were concerned, could not be held to

obliterate them from the statute book, and could not make

such laws void altogether, because in its opinion, article

13 had not been given any retrospective effect. The

majority however held that after the coming into force of

the Constitution the effect of article 13(1) on such repug-

nant laws was that it nullified them, and made them

ineffectual and nugatory and devoid of any legal force or

binding effect. It was further pointed out in one of the

judgments representing the majority view, that the American

rule that if a statute is repugnant to the Constitution the

statute is void from its birth, has no application to cases

concerning obligations incurred or rights accrued in

accordance with an existing law that was constitutional in

its inception, but that if any law was made after the 26th

January, 1950, which was repugnant to the Constitution, then

the same rule shall have to be followed in India as followed

in America. The result therefore of this pronouncement is

that the part of the section of an existing law which is un-

constitutional is not law, and is null and void. For

determining the rights and obligations of citizens the part

declared void should be notionally taken to be

(I) (1951] S.C.R, 228.

652

obliterated. from the section for all intents and purposes,

though it may remain written on the statute book and be a

good law when a question arises for determination of rights

and obligations incurred prior to 26th January, 1950, and

also for the determination of rights of persons who have not

been given fundamental rights by the Constitution. Thus, in

this situation, there is no scope for introducing terms like

"relatively void" coined by American Judges in construing a

Constitution which is not drawn up in similar language and

the implications of which are not quite familiar in this

country.

We are also not able to endorse the opinion expressed by

our learned brother, Venkatarama Ayyar, that a declaration

of unconstitutionality brought about by lack of legislative

power stands on a different footing from a declaration of

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unconstitutionality brought about by reason of abridgement

of fundamental rights. We think that it is not a correct

proposition that constitutional provisions in Part III of

our Constitution merely operate as a check on the exercise

of legislative power. It is axiomatic that when the

lawmaking power of a State is restricted by a written

fundamental law, then any law enacted and opposed to the

fundamental law is in excess of the legislative authority

and is thus a nullity. Both these declarations of

unconstitutionality go to the root of the power itself and

there is no real distinction between them. They represent

but two aspects of want of legislative power. The

legislative power of Parliament and the State Legislatures

as conferred by articles 245 and 246 of the Constitution

stands curtailed by the fundamental rights chapter of

Constitution. A mere reference to the provisions of article

13(2) and articles 245 and 246 is sufficient to indicate

that there is no competency in Parliament or a State

Legislature to make a law which comes info clash with Part

III of the Constitution after the coming into force of the

Constitution. Article 13(2) is in these terms :

"The State shall not make any law which takes away or

abridges; the rights conferred by this Part and any law made

in contravention of this clause shall, to the extent of the

contravention, be void."

653

This is a clear and unequivocal mandate of the funda-

mental law prohibiting the State from- making any laws which

come into conflict with Part III of the Constitution. The

authority thus conferred by articles 245 and 246 to make

laws subject wise in the different Legislatures is qualified

by the declaration made in article 13(2). That power can

only be exercised subject to the prohibition contained in

article 13(2). On the construction of article 13(2) there

was no divergence of opinion between the majority and the

minority in Kesava Madhava Menon v. The State of Bombay

(supra). It was only on the construction of article 13(1)

that the difference arose because it was felt that that

article could not retrospectively invalidate laws which when

made were constitutional according to the Constitution then

in force.

Again, we are not able to subscribe to the view that in a

criminal prosecution it is open to an accused person to

waive his constitutional right and get convicted. A

reference. to Cooley's Constitutional Limitations, Vol. I,

p. 371, makes the proposition clear. Therein the learned

professor says that a party may consent to waive rights of

property, but the trial and punishment for public offences

are not within the province of individual consent or

agreement. In our opinion, the doctrine of waiver

enunciated by some American Judges in construing the

American Constitution cannot be introduced in our

Constitution without a fuller discussion of the matter. No

inference in deciding the case should have been raised on

the basis of such a theory. The learned Attorney-General

when questioned about the doctrine did not seem to be very

enthusiastic about it. Without finally expressing an

opinion on this question we are not for the moment convinced

that this theory has any relevancy in construing the

fundamental rights conferred by Part III of our

Constitution. We think that the rights described as

fundamental rights are a necessary consequence of the

declaration in the preamble that the people of India have

solemnly resolved to constitute India into a sovereign

democratic republic and to secure to all its citizens

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justice, social, economic and political;

84

654

liberty of thought, expression, belief, faith and worship;

equality of status and of opportunity. These fundamental

rights have not been put in the Constitution merely for

individual benefit, though ultimately they come into

operation in considering individual rights. They have been

put there as a matter of public policy and the doctrine of

waiver can have no application to provisions of law which

have been enacted as a matter of constitutional policy.

Reference to some of the articles, inter alia, articles

15(1), 20, 21 makes the proposition quite plain. A citizen

cannot get discrimination by telling the State "You can

discriminate", or get convicted by waiving the protection

given under articles 20 and 21.

The learned Attorney-General contended that the correct

approach to the question was that there being a strong

Presumption in favour of the constitutionality, of a

statute, it is for those who assail it as unconstitutional

to establish it, and therefore it was for the appellant to

establish that the statute was. unconstitutional, and that

unless he proved facts requisite for the constitutional

invalidity of the conviction he could not succeed. We

cannot agree that that is a correct way of judging criminal

cases. The constitutional invalidity of a part of section

13(b) of the Bombay Prohibition Act having been declared by

this Court, that part of the section ceased to have any

legal effect in judging cases of citizens and had to be

regarded as null and void in determining whether a citizen

was guilty of an offence. Article 141 of the Constitution

declares that the law declared by the Supreme Court shall be

binding on all Courts within the territory of India. In

view of this clear enactment there is no scope in India for

the application of the American doctrine enunciated by

Willoughby ("The Constitution of the United States" Vol. I,

P. 10), wherein the learned author states, "the declaration

by a court of unconstitutionality of a statute which is in

conflict with the Constitution affects the parties only and

there is no judgment against the statute; that the opinion

or reasons of the court may operate as a precedent for the

determination of other similar cases, but it does

655

not strike the statute from the statute book; the parties to

that suit are concluded by the judgment, but no one else is

bound; a new litigant may bring a new suit, based on the

very same statute, and the former decision cannot be pleaded

as an estoppel, but can be relied on only as a precedent."

Once a statute is declared void under article 13(1) or 13(2)

by this Court, that declaration has the force of law, and

the statute so declared void is no longer law qua persons

whose fundamental rights are thus infringed. In America

there is no similar statutory provision and that being so,

the doctrine enunciated by the learned author can have no

application here. In this country once a law has been

struck down as unconstitutional law by a Court, no notice

can be taken of that law by any Court, and in every case an

accused person need not start proving that the law is

unconstitutional. The Court is not empowered to look at

that part of the law which has been declared as void, and

therefore there is no onus resting on the accused person to

prove that the law that has already been declared

unconstitutional is unconstitutional in that particular case

as well. The Court has to take notice only of what the law

of the land is, and convict the accused only if he

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contravenes the law of the land.

Our learned brother, Jagannadhadas J., took the view

that the only appropriate way of giving effect to the

judgment in The State of Bombay and Another v. F. N. Balsara

(supra) was by engrafting an exception or proviso to section

13(b) in the light of that decision and that the onus of

proving the exception was on the accused person. This, in

our judgment, is again not a true approach to the question.

As pointed out by the learned Judge himself, the Court has

no power to re-write the section. It has to be kept intact.

The Court therefore has no power to engraft an exception or

a proviso on section 13(b) of the Bombay Prohibition Act.

Apart from this circumstance it seems plain that unless

there is a power to make a law inconsistent with the

provisions of Part III of the Constitution, there can be no

power to engraft an exception of the nature suggested by our

brother. An exception or proviso

656

can only be engrafted for the purpose of excluding from the

substantive part of the section certain matters which but

for the proviso would be within it. But when there is no

power to enact at all what is proposed to be embodied in the

exception, there is no power to enact an exception by

enacting a law which the Legislature is not competent to

make. The State has no power to make a law abridging

fundamental rights and therefore there is no power to

engraft an exception by taking something out of a law which

cannot be enacted. It is therefore difficult to treat what

was declared void in The State of Bombay and Another v. F.

N. Balsara (supra) as an exception to section 13(b) of the

Bombay Prohibition Act and apply the rule enunciated in sec-

tion 105 of the Evidence Act to the case of the appellant.

The only correct approach to the subject is to ignore the

part of the section declared void by this Court in The State

of Bombay and Another v. F. N. Balsara (supra) and see if

the prosecution has succeeded in bringing the offence home

to the accused on the part of the section that remains good

law.

With the observations made above the opinion in this

case is returned to the Bench which originally heard the

appeal.

DAS J.-I respectfully beg to differ from the opinion of

the majority of this Court just delivered by my Lord the

Chief Justice. It is, therefore, incumbent on me to

formulate my answer to the question referred to this

Constitution Bench and state shortly the reasons in support

thereof.

It is necessary at the outset to refer to the relevant

statutory provisions bearing on the question. The appellant

before us was prosecuted on a charge under section 13 read

with section 66(b) of the Bombay Prohibition Act, 1949 (Act

XXV of 1949). The relevant part of section 66(b) of the Act

which is the penal section reads as follows:

"66. Whoever in contravention of the provisions of this Act

(a)...........................

(b)consumes, uses, possesses or transports any intoxicant or

hemp,

657

(c).......................................

(d)........................................

shall, on conviction, be punished.............."

By section 2 (22) "intoxicant" is defined as meaning "any

liquor, intoxicating drug, opium or a any Other substance

which the State Government may, by notification in the

Official Gazette, declare to be an intoxicant." Read in the

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light of this definition consumption, use, etc., of "liquor"

is within the mischief of this section. Further, it will be

noticed that what is made punishable is not consumption,

use, etc. of liquor simpliciter but consumption, use, etc.,

of liquor "in contravention of the provisions of this Act."

The prosecution, as the charge shows, relied on section 13

as being the provision of the Act in contravention of which

the consumption, use, etc., was alleged to have been made by

the appellant who was the accused person. That section is

to be found in Chapter III beaded "Prohibitions". So far as

it is material for our purpose, it runs thus:

"13. No person shall--

(b) consume or use liquor; or

(c)

By section 2 (24) "liquor" is defined as including

"(a) spirits of wine; denatured spirits, wine, beer, toddy

and all liquids consisting of or containing alcohol; and

(b) any other intoxicating substance which the State

Government may, by notification in the Official Gazette,

declare to be liquor for the purposes of this Act."

Therefore the prohibition of section 13(b)extends to

the consumption or use of each and everyone of the above

enumerated items which are included in the definition of

"liquor". It follows that whoever consumes or uses any of

these enumerated substances contravenes the provisions of

section 13(b) and consumption or use of any of these

substances in contravention of this provision is an offence

punishable under section 66(b).

658

The Bombay Prohibition Act containing the above ,provisions

came into force on the 20th May, 1949. It is conceded on

all hands that it was a perfectly valid piece of legislation

enacted well within its legislative competency by the then

Bombay Legislative Assembly. Then came the Constitution of

India on the 26th January, 1950. Article 19(1)(f) gives to

all citizens the fundamental right to acquire, hold and

dispose of property. By sub-article(5) however,it is

provided that nothing in clause(f) shall affect the

operation of any existing law in so far as it imposes, or

prevent the State from making any law imposing, reasonable

restrictions on the exercise of the right conferred by sub-

clause (f) either in the interests of the general public or

for the protection of the interests of any Scheduled Tribe.

The Bombay Prohibition Act, 1949, was an existing law. By

virtue of sub-article (5) the right conferred by sub-clause

(f) cannot affect the operation of the Act in so far as it

imposes reasonable restrictions of the kind mentioned in

that sub-article. If, however, this existing law imposes

restrictions which are unreasonable then it becomes

inconsistent with the right guaranteed to the citizens by

article 19(1)(f) and consequently under article 13(1)

"shall, to the extent of such inconsistency, be void". It

is beyond all dispute that it is for the Court to judge

whether the restrictions imposed by any existing law or any

Part thereof on the fundamental rights of citizens are

reasonable or unreasonable in the interest of the general

public or for the protection of the interests of any

Scheduled Tribe. If the Court holds that the restrictions

are unreasonable then the Act or the part thereof which

imposes such unreasonable restrictions comes into conflict

and becomes inconsistent with the fundamental right con-

ferred on the citizens by article 19(1)(f) and is by article

13(1). rendered void, not in toto or for all purposes or for

all persons but "to the extent of such inconsistency", i.e.,

to the extent it is inconsistent with the exercise of that

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fundamental right by the citizens. This is plainly the

position, as I see it.

Shortly after the commencement of the Constitution the

validity of the Bombay Prohibition Act was

659

challenged in its entirety. One F. N. Balsara, claiming to

be an Indian citizen prayed to the High Court, at Bombay,

infer alia, for a writ of mandamus against the State of

Bombay and the Prohibition Commissioner ordering them (i) to

forbear from enforcing against him the provisions of the

Prohibition Act and (ii) to allow him to exercise his right

to possess, consume and use certain articles, namely,

whisky, brandy, wine, beer, medicated wine, eau-de-cologne,

lavender water and medicinal preparations containing

alcohol. The High Court, agreeing with some of the

petitioner's contentions and disagreeing with others,

declared some of the provisions of the Act to be invalid and

the rest to be valid. Both the State of Bombay and the

petitioner, Balsara, appealed to this Court after obtaining

a certificate from the High Court under article 132(1) of

the Constitution. The judgment of this Court in those

appeals was pronounced on the 25th May, 1951. See The State

of Bombay and Another v. F. N. Balsara (supra). So far as

it is material for our present purpose this Court held-

(1) that under entry 31 of List II of the Seventh

Schedule to the Government of India Act, 1935, the

Provincial Legislatures had the power to make laws with

respect to "intoxicating liquors, that is to say, the

'production, manufacture, possession, transport, purchase

and sale of intoxicating liquors" and there was, therefore,

no legislative incompetency in the Bombay Legislature to

enact the Bombay Prohibition Act, 1949;

(2) that the word "liquor" as understood in India at

the time of the Government of India Act, 1935, covered not

only those alcoholic liquids which are generally used as

beverages and produce intoxication, but also liquids

containing alcohol and, therefore, the definition of

"liquor" contained in section 2(24) of the -Act was not

ultra vires, and

(3) that the restrictions imposed by sections 12 and

13 of the Act on the possession, sale, use and consumption

of liquor were not reasonable restrictions on the

fundamental right guaranteed by article 19(1)(f), so far as

medicinal and toilet preparations containing

660

alcohol were -concerned and that the said sections were

invalid so far as they prohibited the possession, sale, use.

and consumption of these articles, but that those sections

were not wholly void on this ground as the earlier

categories mentioned in the definition of liquor, -namely,

spirits of wine, methylated spirit, wine, beer and toddy

were distinctly separable items which were easily severable

from the last category, namely, all liquors containing

alcohol and further that the last category of "all liquids

consisting of or containing alcohol" were again capable of

being split up in several sub-categories, e.g., liquid

medicinal and toilet preparations containing alcohol and the

restrictions on the possession, sale, use and consumption of

the earlier categories and all liquids containing alcohol

other than medicinal and toilet preparations were not

unreasonable. In the result this Court declared certain

provisions of the Act invalid. Amongst the provisions

declared invalid was section 13(b), but it was so declared

only "so far as it affects the consumption or use of such

medicinal and toilet preparations containing alcohol." This

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declaration, no doubt, was made pursuant to article 13(1) of

the Constitution. The very foundation of this declaration

was that the prohibition imposed by this section against the

consumption or use of liquid medicinal or toilet

preparations was an unreasonable restriction on the exercise

of the fundamental right of citizens to acquire, hold and

dispose of property which in that case was liquid medicinal

or toilet preparations containing alcohol' The law thus

declared by this Court is, by virtue of article 141 of the

Constitution, binding on all Courts within the territory of

India.

The offence with which the appellant was charged was

alleged to have been committed on the 29th May, 1951, that

is to say, four days after this Court pronounced its

judgment in The State of Bombay and Another v. F. N. Balsara

(supra). On the 22nd April, 1952, the learned Presidency

Magistrate acquitted the appellant of that charge with the

following remark:

"The evidence also does not go to show conclusively that

the accused had consumed alcohol without a permit

There are. certain medicinal preparations which are

661

allowed to be used by law and there must be satisfactory

evidence to show that the accused has not consumed those

tonics but only liquor for which he ought to have a permit."

The State appealed to the High Court against this order

of acquittal. The High Court following its own earlier

decision in Rangrao Bala, Mane v. State (supra) reversed the

order of the Presidency Magistrate. Neither in the judgment

of the Presidency Magistrate nor in the judgment of the

Court was any reference made to the decision of this Court

in The State of Bombay and Another v. F. N. Balsara (supra).

The appellant came up to this Court in appeal after having

obtained special leave from this Court.

The appeal came up for hearing before a Division Bench of

this Court consisting of Bhagwati, Jagannadhadas and

Venkatarama Ayyar JJ. Bhagwati J. clearly and, if I may

respectfully say so, correctly accepted the position that

the declaration made by this Court in The State of Bombay

and Another v. F. N. Balsara (supra) "was a judicial

pronouncement and that even though under article 141 of the

Constitution the law declared by this Court was binding on

all Courts in India and is to be the law of the land the

effect of that declaration was not to enact a -statutory

provision or to alter or amend section 13(b) of the Act."

Having accepted this position the learned Judge logically

and, again I say with respect, correctly repelled the argu-

ment that the result of the decision in The State of Bombay

and Another v. F. N. Balsara (supra) was to introduce, not

in terms but in effect, an exception or proviso to section

13(b) and that consequently the onus lay on the appellant to

prove the existence of circumstances bringing his case

within the exception or proviso as laid down in section 105

of the Evidence Act. The learned Judge, however, observed:-

"The only effect of the declaration was that the

prohibition enacted in section 13(b) was to be enforce. able

in regard to the consumption or use of validly prohibited

liquor, i.e., spirits of wine, methylated spirits, wine,

beer, toddy and all non-medicinal and

85

662

non-toilet liquid preparations consisting of or containing

alcohol. The prohibition which was enacted in section 13(b)

against the consumption or use of liquor could in the light

of the declaration made by this Court only refer to the

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consumption or use of validly prohibited liquor, i.e.,

spirits of wine, methylated spirits, wine, beer, toddy and

all non-medicinal and non-toilet liquid preparations

consisting of or containing alcohol, and that was the only

prohibition which could be enforced under the section 13(b)

and the penal section 66(b)."

The learned Judge proceeded to illustrate how the effect

of the declaration could be worked out:

"The effect of the declaration on the provisions of

section 13(b) could be worked out in any of the following

modes:

No person shall consume or use spirits of wine, methylated

spirits, wine, beer, toddy and all liquids consisting of or

containing alcohol as are not or which are not or other than

or save or except or provided they are not or but shall not

include liquid medicinal or toilet preparations containing

alcohol or all non-medicinal and non-toilet liquid

preparations consisting of or containing alcohol.

When these several interpretations were possible in

regard to the effect of the declaration on the provisions of

section,13(b), where would be the justification for

interpreting the effect of the declaration to be that of

grafting an exception or proviso on section 13(b) so as to

attract the operation of the provisions of section 105 of

the Evidence Act9 It is clear that where several

interpretations are possible, the Court should adopt an

interpretation favourable to the accused, rather than one

which casts an extra or special burden upon him, which if at

all should be done by clear and unequivocal provision in

that behalf rather than in this indirect manner. (See also

In re Kanakasabai Pillai)(1)."

With the utmost respect to the learned Judge, the modes

of working out the effect of the declaration indicated by

him clearly involve the acceptance of one or other of the

different forms of amendment of the section, although

according to his views expressed

(1) A.I. R. 1940 Mad. I.

663

earlier in his judgment the effect of the declaration was

not to alter or amend section 13(b) of the Act. Venkatarama

Ayyar J., however, took the view that as the Court had no

legislative function and as judicial decisions did not amend

or add to a statute but merely interpreted the law and

declared whether it was valid or not, the result of a

judicial declaration that a statute or any part thereof was

not valid was only that no effect could be given to it in a

Court of law but that it did not mean that the statute or

the part thereof declared void had gone out of the statute

book after the Court's decision. He also held that section

105 of the Evidence Act would not in terms apply as article

19(1)(f) could not be said to form an exception to section

13(b). He rested his decision on the ground that the

inclusive definition of "liquor" adopted in section 2(24) of

the Act having been held to be within entry 31 in List II of

the Seventh Schedule to the Government of India Act, 1935,

and, therefore, valid, that meaning should be its

connotation in section 13(b) as well and that under the

section so read the offence would be established as soon as

consumption or use of "liquor" so defined was established

and that the plea that what was consumed was medicinal

preparation containing alcohol was really a plea that the

section, in so far as it prohibits consumption or use of

liquid medicinal or toilet preparations containing alcohol,

infringed the citizens' fundamental right under article

19(1)(f) and was, therefore, unconstitutional as declared by

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this Court. His view was that it was for those who pleaded

unconstitutionality to establish all the elements which

would go to establish that plea. Jagannadhadas J. felt

inclined to agree with the view of Venkatarama Ayyar J. but

as that aspect of the matter had not been fully argued he

passed on to the argument canvassed before them, namely,

that the part of the section declared invalid went out of

the Act and the Act stood appropriately amended pro tanto.

This, according to the learned Judge, involved, that the

word "liquor" stood amended as "prohibited liquor" or that

it was to be understood with this limited connotation. This

argument he could not accept. His view was that what the

decision in The, State of Bombay and Another v.

664

F. N. Balsara (supra) had done was not to authorise ,the

importation of a new definition or to rewrite the section

but, leaving the section intact, to treat the consumption or

use of liquid medicinal or toilet preparations containing

alcohol as taken out of the ambit of the section itself as

the prohibition thereof was unconstitutional. This,

according to the learned Judge, could only be done by

grafting an appropriate exception or proviso into section

13(b).

The result of the hearing before that Bench was that

Bhagwati J. held that the appeal should be allowed but

Jagannadhadas and Venkatarama Ayyar JJ. were for dismissing

the appeal. An application for review was, however, made on

the ground that the judgments of the learned Judges involved

a decision on constitutional matters which that Bench had no

jurisdiction to decide but which could only be dealt with by

a Constitution Bench. By an order made on the 26th April,

1954, under the proviso to sub-article (3) of article 145

that Bench accordingly referred the following question for

the opinion of the Constitution Bench, namely:

"What is the effect of the declaration in The State of

Bombay and Another v. F. N. Balsara (supra) that clause (b)

of section 13 of the Bombay Prohibition Act, 1949, is void,

under article 13(1) of the Constitution, in so far as it

affects the consumption or use of liquid medicinal or toilet

preparations containing alcohol, on the ground that it

infringes article 19(1)(f)

of the Constitution?"

The effect of a judicial declaration of a statute as

unconstitutional has been stated by Field J. in -Norton v.

Shelby County(1) to be that the statute is no law and that,

in legal contemplation, it is to be treated as inoperative

as though it had never been passed. Cooley, in his

Constitutional Limitations, Volume 1, page 382, has adopted

this dictum of Field J. and expressed the view that where a

statute is adjudged to be unconstitutional it is as if it

had never been. I am unable to accept the proposition so

widely stated. Even American text book writers have felt

that the statement of

(1) 118 U.S. 425; 30 L, Ed. I78.

665

Field J. needs to be somewhat qualified. (See, Willoughby on

the Constitution of the United States, Volume 1, page 11 and

Willis on Constitutional Law, page 890). The dictum, it

will be observed, related to a statute which was made after

the commencement of the Constitution and which was in

violation of the provisions of the Constitution. It cannot

obviously apply to a case where a statute which was enacted

before the commencement of the Constitution is declared to

have become unconstitutional and void. In such a situation

it cannot be said that the judicial declaration means that

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such a statute is void for all purposes including past

transactions that took place before the commencement of the

Constitution. The Bombay Act was an existing law and the

declaration in The State of Bombay and Another v. F. N.

Balsara (supra) cannot and does not affect anything done

under the Act prior to the commencement of the Constitution.

It will be further noticed that the decision in The State of

Bombay and Another v. F. N. Balsara (supra) does not declare

the entire Act or even the entire section 13(b) to be void.

It only declares void a part of section 13(b), that is to

say only that part of it which prohibits a citizen from

consuming or using only liquid medicinal or toilet

preparations containing alcohol. The section, in its

entirety, is still enforceable against all noncitizens.

Even as against citizens the prohibition of the section with

respect to the consumption or use of the earlier categories

of liquor, namely, "spirits of wine, denatured spirits,

wine, beer, toddy"' is fully operative. Moreover, even the

prohibition against consumption or use of the last category

of liquor, namely, "all liquids consisting of or containing

alcohol" remains operative even as against citizens except

in so far as it prohibits them from consuming or using

liquid medicinal or toilet preparations containing alcohol.

In such a situation the passages from Cooley on

Constitutional Limitations and the dictum of Field J. can

have no application. This is put beyond controversy by the

decision of this Court in Keshava Madhava Menon v. The State

of Bombay (supra). The Bombay Act being an existing law,

the declaration made by

666

this Court in The- State of Bombay and Another v.. F. N.

Balsara (supra) must be taken to have been made under-

article 13(1). The article does not in terms make the

existing laws which are inconsistent with the fundamental

rights void ab initio or for all purposes. The declaration

in The State of Bombay and Another v. F. N. Balsara (supra),

as I understand it, is that the prohibition contained in

section 13(b) against the consumption or use of one

particular variety of liquid Consisting of or containing

alcohol, namely, liquid medicinal or toilet preparations

containing alcohol imposes an unreasonable restriction on

the exercise of a citizen's fundamental right under article

19(1) (f) and is, therefore, unconstitutional and as such

void to that extent. The result of it is that the prohibi-

tion of that part of section 13(b) will be ineffective

against and inapplicable to a citizen who consumes or uses

liquid medicinal or toilet preparations containing alcohol.

No part of the section is obliterated or scratched out from

the statute book or in any way altered or amended, for that

is not the function of the Court. The judicial declaration

that a art of the section is unconstitutional and void only

nullifies that offending Part in the sense that it renders

that part ineffective against and inapplicable to a citizen

who consumes or uses liquid medicinal or toilet preparations

containing alcohol in exercise of his fundamental right. In

other words, when a citizen is charged with an offence under

section 66(b) read with section 13(b) he will be entitled to

say-"I am a citizen of India. I have consumed or used

liquid medicinal or toilet preparations containing alcohol.

I am entitled to do so under article 19(1) (f). The Supreme

Court has in The State, of Bombay and Another v. F. N.

Balsara (supra) declared the law, namely, that in such cir-

cumstances the prohibition of section 13(b) is void as

against me with respect to such consumption or use of liquid

medicinal or toilet -preparations containing alcohol " This

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plea, if substantiated, will be a complete answer to the

charge. In short, the judicial declaration serves to

provide a defence to a citizen who has consumed or used

liquid medicinal or toilet preparations

667

containing alcohol. Test the matter in this way. Suppose

after the declaration a person is charged with an offence

under section 66(b) read with section 13(b) and in such a

case the prosecution proves that the accused has taken

alcohol in some form or other, as is the evidence of the

doctor in the present case. What is to happen if nothing

further is proved by either party ? Surely, in such a

situation a conviction must follow. If the accused person

desires to avail himself of the benefit of the declaration

in The State of Bombay and Another v. F. N. Balsara (supra),

surely he must prove first of all that he is a citizen. The

onus of this clearly lies on the accused. The next question

is whether that is the only onus that lies on the accused.

To my mind he has to allege and prove not only that he is a

citizen but that he has consumed or used liquid medicinal or

toilet preparations containing alcohol and it is only on

such proof that he can claim the benefit of the declaration

of law made in The State of Bombay and Another v. F. N.

Balsara (supra) and establish his defence. The very basis

of that declaration is that a citizen has the fundamental

right to consume or use liquid medicinal or toilet

preparations containing alcohol and section 13(b) in so far

as it prohibits such consumption or use imposes an

unreasonable restriction on his fundamental right under

article 19(1) (f). In other words, the on us is on him to

establish the situation or circumstances in which that part

of the section which has been declared to be void should not

be applicable to him. If he establishes the fact that he is

a citizen and that he has consumed or used such liquid, then

the declaration in The State of Bombay and Another v. F. N.

Balsara (supra) will establish the law, namely, that the

prohibition of section 13(b) and the penalty under section

66(b) are not applicable to him being inconsistent with his

fundamental right. To say that after the judicial

pronouncement the section should be read qua a citizen as if

liquid medicinal or toilet preparations are not there or

that the ambit of the offence has narrowed down to a

prohibition against the consumption or use of only the

earlier categories of liquor set forth in the definition is,

to my mind,

868

tantamount to saying, covertly if not openly , that the

judicial pronouncement has to that extent amended the

section. To say that after the declaration the offence has

become limited to the consumption or use of prohibited

liquor is to alter or amend the definition of liquor

although it has been held to be valid. I repeat that it is

not within the competence of a Court to alter or amend a

statute and that the effect of the declaration made by this

Court in The State of Bombay and Another v. F. N. Balsara

(supra) is not to lift or take away or add anything out of

or to the section at all. What it does is to declare, as a

matter of law, that in a certain situation, namely, when

liquid medicinal or toilet preparations containing alcohol

are consumed or used, a certain part of section 13(b), that

is to say, that part of it which prohibits the consumption

or use of liquid medicinal or toilet preparations containing

alcohol, shall be void qua a particular class of persons,

namely, citizens. In other words, the declaration in The

State Of Bombay and Another v. F. N. Balsara (supra) serves

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to provide a defence only to a citizen who has consumed or

used liquid medicinal or toilet preparations. It is for the

accused person, who seeks to ward off the applicability of

the section to him by having resort to the declaration made

in The State of Bombay and Another v. F. N. Balsara (supra),

to establish the situations or circumstances on which that

declaration is founded. In short a person who challenges

the validity of the section on the ground of its

unconstitutionality has the advantage of the declaration as

a matter of law but the facts on which that declaration is

based have nevertheless to be established in each particular

case where the declaration is sought to be availed of. I

answer the question referred to us accordingly.

It has been strenuously urged before us, as before the

Division Bench, that such a view as to the effect of this

Court's declaration will run counter to the well established

principle of criminal jurisprudence that the onus of

establishing the charge is always on the prosecution, for it

will throw the burden of proof on the accused person. This

argument has considerably impressed Bhagwati J. and has also

weighed with my

669

learned colleagues on the present Bench. It is, however,

not unusual in certain classes of cases or in certain

circumstances to throw the onus of proof of a defence on the

accused person. Section 105 of the Evidence Act is an

instance in point. Section 114, ill. (a) of the same Act is

another provision to which reference may be made. Section

103 of this very Bombay Prohibition Act raises a very strong

presumption of guilt and throws the burden on the accused to

prove his innocence in certain cases. Take section 96 of

the Indian, Penal Code which says-

" Nothing is an offence which is done in the exercise

of the right of private defence. "

Nobody will contend that this section requires the

prosecution to prove that the acts constituting the offence

charged against the accused were not done in the exercise of

the right of private defence. It is obvious that this

section serves to provide the accused person with a defence

and if the accused person can prove that he did the acts

complained of in defence of his person or property and if

the acts were reasonable in the circumstances of the case he

establishes his defence. It is not necessary to multiply

instances. It seems to me that the declaration in The State

of Bombay and Another v. F. N. Balsara (supra) gives a

citizen who has consumed or used liquid medicinal or toilet

preparations containing alcohol a defence to a charge under

section 66(b) read with section 13(b) of the Bombay

Prohibition Act, but it is for the accused person to prove

the facts on which that declaration of law is founded. I

see no hardship whatever in this, for the requisite facts

are within his special knowledge. To adopt the contrary

view will be to ignore the sound principle well established

in law that a judicial declaration of invalidity does not

repeal, alter or amend a statute.

As I hold that the declaration does not operate as an

amendment of the section, I must logically hold, 'with

respect to the view of Jagannadhadas J. that the declaration

cannot be treated as having grafted an exception or proviso

to section 13(b).

86

670

In coming to the conclusion that I have, I have in a large

measure found myself in agreement with the views of

Venkatarama Ayyar J. on that part of the' case. 1, however,

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desire to guard myself against being understood to agree

with the rest of the observations to be found in his

judgment, particularly those relating to waiver of

unconstitutionality, the fundamental rights being a mere

check on legislative power or the effect of the declaration

under article 13(1) being "relatively void." On those topics

prefer to express no opinion on this occasion.

BY THE COURT.-The reference is answered in accordance

with the opinion of the majority.

[After the opinion of the Constitution Bench the

following Order, dated 24th September, 1954, was pronounced

by a Bench composed- of Bhagwati, Jagannadhadas and

Venkatarama Ayyar JJ. who had originally heard the appeal.]

The Order of the Court was pronounced by

BHAGWATI J.-We have received the opinion expressed by the

Constitution Bench. According to that opinion, which is

expressed in the majority judgment, the onus lay on the

prosecution to prove that the alcohol of which the accused

was smelling was such that it came within the -category of

prohibited alcohols.

We have heard the learned Attorney-General on the

question whether that onus has been discharged and he has

frankly conceded that on the material placed before us it

cannot be urged that that onus has been discharged by the

prosecution.

The result, therefore, is that the conviction of the

appellant will be quashed and the fine, if paid, will be

refunded.

Conviction set aside.

671