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PETITIONER:

THE STATE OF BOMBAY AND ANOTHER

Vs.

RESPONDENT:

F.N. BALSARA

DATE OF JUDGMENT:

25/05/1951

BENCH:

FAZAL ALI, SAIYID

BENCH:

FAZAL ALI, SAIYID

SASTRI, M. PATANJALI

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

BOSE, VIVIAN

CITATION:

1951 AIR 318 1951 SCR 682

CITATOR INFO :

F 1952 SC 75 (21,54,70)

RF 1952 SC 123 (45)

F 1953 SC 156 (49)

F 1953 SC 333 (13)

R 1955 SC 58 (6)

E 1955 SC 123 (6,7,9,17,20,21,22,23,24,25,27

R 1955 SC 191 (5)

F 1957 SC 503 (15,16)

F 1957 SC 628 (12,14,19,20,21)

R 1957 SC 877 (16)

D 1957 SC 927 (9)

R 1958 SC 328 (22)

R 1958 SC 468 (44A)

E 1958 SC 538 (11,12,17)

F 1958 SC 560 (20)

RF 1958 SC 578 (211)

R 1959 SC 648 (21)

R 1960 SC 554 (9)

RF 1963 SC 703 (37,43)

D 1963 SC1470 (7)

R 1963 SC1531 (4,5)

RF 1964 SC 648 (48)

R 1966 SC 722 (7)

RF 1967 SC1110 (16)

F 1968 SC 888 (6)

RF 1970 SC 564 (53)

RF 1972 SC 425 (10)

RF 1973 SC1461 (456,616,742,1212,1218)

R 1974 SC 543 (30,32)

RF 1975 SC 360 (19,24)

F 1975 SC1121 (44,53)

R 1977 SC 722 (29)

E 1978 SC 449 (29)

F 1978 SC 771 (13,44)

RF 1980 SC 614 (10,11,12,15,16)

RF 1980 SC1789 (121)

RF 1981 SC 873 (33)

RF 1981 SC1863 (15,17)

R 1983 SC1019 (52)

RF 1986 SC 987 (2)

RF 1986 SC1541 (9)

RF 1988 SC 771 (5)

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E 1990 SC1927 (27,28,29,41,56,67,73,75,76)

RF 1990 SC2072 (48)

RF 1991 SC 672 (33)

RF 1992 SC1277 (85)

ACT:

Bombay Prohibition Act (XXV of 1949)--Constitutional

validity --Applicability of Act to foreign liquors--To

medicinal and toilet preparations containing alcohol--Valid-

ity of ss. 2(24) (a), 12, 13, 23, 24, 39, 40(1) (b), 46, 52,

53, 139 (c)--Law of Province prohibiting possession and sale

of foreign liquor within Province--Whether encroaches on

power of Dominion to make laws as to "import and

export"--Doctrine of original package--Applicability to

India--Construction of Lists--Restriction on fundamental

right "to acquire, hold and dispose of property" and to

"equal protection of the laws" --Government of India Act,

1935, s. 297 (4), Seventh Sched., List I entry 19 --List II

entry 31--Constitution of India, Arts. 14, 19(1), 19 (2).

HEADNOTE:

Under entry 31 of List II of the Seventh Schedule to

the Government of India Act, 1935, the Provincial Legisla-

tures had the power to make laws in respect of "intoxicating

liquors, that is to say, the production, manufacture, pos-

session, transport, purchase and sale of intoxicating liq-

uors" and under entry 19 of List I, the Dominion Legislature

had the power to make laws with respect to "import and

export across customs frontiers". The constitutional validi-

ty of the Bombay Prohibition Act, 1949, in so far as it

restricted the possession and sale of foreign liquors was

impugned on the ground that it was an encroachment on the

field assigned to the Dominion Legislature under entry 19 of

List I:

Held, (i) that the words "possession and sale" occurring

in entry 31 of List II must be read without any qualifica-

tion, and the word "import" in entry 19 of List 1 standing

by itself will not include either sale or possession of the

article imported into the country. There was thus no con-

flict between entry 31 of List i1 and entry 19 of List I and

the Bombay Prohibition Act, in so far as it purported to

restrict the possession and sale of foreign liquors, did not

encroach upon the field of the Dominion Legislature; (ii)

even assuming that the prohibition of purchase, use,

683

possession, transport and sale of liquor will affect its

import, the Bombay Prohibition Act was in pith and substance

an Act falling within entry 31 of List II and the fact that

the law incidentally encroached upon the powers of the

Dominion Legislature under entry 19 of List I would not

affect its validity.

The American doctrine of "original package" which laid

down that importation was not over so long as the goods were

still in the original package, has no application in India

having regard to the scheme of legislation that has been

outlined in the Government of India Act, 1935, and in the

present Constitution in which the various entries in the

Legislative Lists have been expressed in clear and precise

language.

Bhola Prasad v. The King Emperor [1942] F.C.R 17 and

Miss Kishori Shetty v. The King [1949] F.C.R. 650 relied on.

In re the Central Provinces and Berar Act No. XIV of 1938

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[1939] F.C.R. 18, The United Provinces v. Atiqa Begum [1940]

F.C.R. 110, Governor. General in Council v. Province

o/Madras [1945] F.C.R. 179, Prafulla Kumar Mukherjea and

Others v. Bank of Commerce, Khulna [1947] F.C.R. 28, Subrah-

manyan Chettiar v. Muthuswami Goundan [1948] F.C.R. 207

referred to: Brown v. Maryland (25 U.S. 419) and Leisy v.

Hardin (135 U.S. 100)distinguished.

The Bombay Prohibition Act, 1949, does not in any way

contravene the provisions of s. 297(1) (a) of the Government

of India Act. 1935, inasmuch as it is not a law made by

virtue of the entry relating to "trade and commerce within

the Province" (entry 2 of List II) or the entry relating to

"the production, supply and distribution of commodities"

(entry 29 of List If). Bhola Prasad v. King Emperor [1942]

F.C.R. 17 followed.

The word "liquor" as understood India at the time of the

Government of India Act, 1935, covered not only those

alcoholic liquids which are generally used as beverages and

produce intoxication, but also all liquids containing

alcohol; the definition of" liquor" contained in s. 2 (24)

of the Bombay Prohibition Act, 1949, is not therefore ultra

vires.

Section 39 of the Act which empowers the Provincial Govern-

ment to permit the use or consumption of foreign liquor on

cargo boats, warships and troopships and in military and

naval messes and canteens does not contravene Art. 14 of the

Constitution (which provides that the State shall not deny

to any person equality before the law or the equal protec-

tion of the laws) inasmuch as the relaxation of the general

law in respect of the persons contemplated by the section is

not arbitrary or capricious but is based on a reasonable

classification.

Rule 67 of the Bombay Foreign Liquor Rules which autho-

rises the granting of a permit to "any foreigner on a tour

of lndia who enters the State of Bombay and desires to

possess, use and consume foreign liquor" is not void on the

ground of discrimination, firstly because, though it pro-

vides for the case of a foreign

684

visitor, there is no prohibition against any other outsider

being granted a permit, and secondly, because the policy

underlying the rule is quite consistent with the policy

underlying s. 40 of the Act which enables permits to be

granted to foreigners under certain conditions.

Sections 52, 53 and 139 (c) of the Act do not constitute

delegation of legislative power, and delegation of the

character which these sections involve cannot in any view be

held to be invalid

In re Delhi Laws Act, 1912 etc.(1) relied on.

The restrictions imposed by ss. 12 and 13 of the Act on

the possession, sale, use and consumption of liquor are not

reasonable restrictions on the fundamental right guaranteed

by Art. 19 (1) (1) of the Constitution "to acquire, hold and

dispose of property", so far as medicinal and toilet prepa-

rations containing alcohol are concerned and the said sec-

tions are invalid so far as they prohibit the possession,

sale, use and consumption of these articles, but the

sections are not wholly void on this ground as the earlier

categories mentioned in the definition of liquor, namely,

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

distinctly separable items which are easily severable. from

the last category, namely, all liquors containing alcohol,

and the restrictions on the possession, sale, use and con-

sumption of these earlier categories are not unreasonable

restrictions.

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Romesh Thappar v. The State of Madras [1950] S.C.R. 594

and Chintaman Rao v. The State of Madhya Pradesh [1950]

S.C.R. 759 distinguished.

Sections 23 (a) and 24 (1) (a) of the Act in so far as

they refer to "commending "any intoxicant, conflict with the

fundamental right of freedom of speech and expression gua-

ranteed by Art. 19 (1) (a) of the Constitution and none of

the conditions mentioned in cl. (2) of Art. 19 applies to

the case and therefore these provisions are void. Section

23 (b) is also void, because the words "incite" and "encour-

age" are wide enough to include incitement and encouragement

by words and speeches and also by acts and the words used in

the section are so wide and vague that the clause must be

held to be void in its entirety.

There is nothing unreasonable in a law relating to

prohibition discriminating between Indian citizens against

whom it is primarily to be enforced and foreigners who have

no intention of permanently residing in India. A provision

enabling a certain class of persons holding permits to offer

drink to persons holding similar permits is also not unrea-

sonable. Notifications No. 10484/45C and 2843/49 (a) are

not therefore invalid.

The requirement that an applicant for a permit on the

ground of health under s. 40 (1) (b) must get a medical

certificate declaring that he is an "addict" is not warrant-

ed by the provisions of

(1) Reported infra.

685

the Act. The word "addict" in the form of the medical

certificate should therefore be replaced by the words used

in s. 40 (1) (b) of the Act or words corresponding to them.

The provisions of the Act which have been held to be

invalid are not so inextricably bound up with the remaining

provisions of the Act as to render the whole Act void.

[The decision of the High Court that ss. 136 (1), 136

(2) (b), 136 (2) (c), 136 (2) (e) and 136 (21 (f) were void

inasmuch as they offended against Art. 19 of the Constitu-

tion was not assailed before the Supreme Court.]

JUDGMENT:

CIVIL APPELLATE JURISDICTION. Appeal under Article 132

(1) of the Constitution of India from the Judgment and Order

dated the 22nd August, 1950, of the High Court of Judicature

at Bombay in Miscellaneous Application No. 139 of 1950.

M.C. Setalvad and C.K. Daphtary (M. M. Desai and H.M.

Seervai with them) for the appellants in Case No. 182 and

respondents in Case No. 183.

N.P. Engineer (G. N. Joshi, R.J. Kolah and N.A. Palki-

wala, with him) for the respondent in Case No. 182 and

appellant in Case No. 183.

1951. May 25. The Judgment of the Court was delivered by

FAZL ALI J.--These appeals arise from the judgment and

order of the High Court of Judicature at Bombay upon the

application of one F.N. Balsara (hereinafter referred to as

the petitioner), assailing the validity of certain specific

provisions of the Bombay Prohibition Act, 1949 (Bombay Act

No. XXV of 1949), as well as of the Act as whole. The

petitioner, claiming to be an Indian citizen, prayed to the

High Court inter alia for a writ of mandamus against the

State of Bombay and the Prohibition Commissioner ordering

them to forbear from enforcing against him' the provisions

of the Prohibition Act and for the issue of a writ of manda-

mus ordering them (1) to allow him to exercise his right to

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possess, consume and use certain articles, namely, whisky,

brandy, wine, beer, medicated wine, eau-de-cologne, etc.,

and to import and export across the Customs frontier and

to

686

purchase, possess, consume and use any stock of foreign

liquor, eau-de-cologne, lavender water, medicated wines and

medicinal preparations containing alcohol, and (2) to for-

bear from interfering with his right to possess these arti-

cles and to take no steps or proceedings against him, penal

or otherwise, under the Act. The petitioner also prayed for

a similar order under section 45 of the Specific Relief Act

against the respondents. The High Court, agreeing with some

of the petitioner's contentions and disagreeing with others,

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

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

petitioner, being dissatisfied with the judgment of the High

Court, have appealed to this Court after obtaining a certif-

icate from the High Court under article 132(1) of the Con-

stitution.

The Act in question was passed by the Legislature of the

Province of Bombay as it was constituted in 1949, and was

published in the Bombay Government Gazette on the 20th May,

1949, and came into force on the 16th June, 1949. The Act

consists of 148 sections with 2 schedules and is divided

into 11 chapters. It is both an amending and consolidating

Act and incorporates the provisions of the Bombay Abkari Act

which it repeals and also those of the Bombay Opium and

Molasses Acts and contains new provisions for putting into

force the policy of prohibition 'which is one of the objects

mentioned in the preamble of the Act. The most important

provision in Chapter I is the definition of "liquor" which

has been vigorously assailed as being too wide and therefore

beyond the powers of the Provincial Legislature. Chapter

II relates to establishment and is not relevant to the

present appeal. Chapter III, which contains a number of

prohibitions in regard to liquor as defined in the Act, is

said to enact sweeping provisions which are liable to be

assailed. Sections 12 and 13 and the relevant provisions of

sections 23 and 24 in this chapter may be quoted:'-

12. No person shall(a) manufacture liquor;

687

(b) construct or work any distillery or brewery, (c) import,

export, transport or possess liquor; or

(d) sell or buy liquor. 13. No person shall -

(a) bottle any liquor for sale; (b) consume or use liquor;

or

(c) use, keep or have in his possession any materials,

still, utensils, implements or apparatus whatsoever for the

manufacture of any liquor.

23. No person shall-

(a) commend, solicit the use of, offer any intoxicant or

hemp, or

(b) incite or encourage any member of the public or any

class of individuals or the public generally to commit any

act which frustrates or defeats the provisions of this Act,

or any rule, regulation or order made thereunder,

or .............

24(1). No person shall print or publish in any news-

paper, news-sheet, book, leaflet, booklet or any other

single or periodical publication or otherwise display or

distribute any advertisement or other matter-

(a) which commends, solicits the use of, or offers any

intoxicant or hemp,

(b) which is calculated to encourage or incite any

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individuals or the public generally to commit an offence

under this Act, or to commit a breach of or to evade the

provisions of any rule, regulation or order made thereunder

or the conditions of any licence, permit, pass or authorisa-

tion granted thereunder.

Chapter IV relates to "control, regulation and exemp-

tions ", and contains inter alia sections 30 to 38 and

section 44 which provide for cases in which licenses for the

manufacture, export, import, transport, sale or possession

of liquor may be granted; section 39, which authorises the

Government to permit the use or consumption of foreign

liquor on cargo boats, warships, troopships and in military

and naval messes and canteens; section 40, which provides

for the grant of

688

permits for the use or consumption of foreign liquor to

persons whose health would be seriously and permanently

affected if they were not permitted to use or consume such

liquor and to foreigners who do not intend to stay perma-

nently in India; section 41, which enables special permits

to be granted to diplomats and foreign sovereigns; section

45, which authorises use of liquor for sacramental purposes;

section 52, which empowers an authorized officer to grant

licenses, permits, etc., in cases not specifically provided

for; section 53, which deals with the form in which and the

conditions under which licenses, etc., may be granted; and

section 54 which provides for the cancellation or suspension

of licenses and permits. The other material chapters of the

Act are Chapter VII, which provides for offences and penal-

ties, and Chapter IX which deals with "powers and duties of

officers and procedure." Sections 118 and 119 of the Act

declare the offences under the Act to be cognisable and some

of them to be non-bailable. Under section 121, any autho-

rised prohibition officer or any police officer may open any

package and examine any goods and may stop any vessel,

vehicle or other means of conveyance and search for any

intoxicant..Section 136 (1)provides that if any of the

officers mentioned therein is satisfied that any person is

acting or is likely to act in a manner which amounts to

preparation, attempt, abetment or commission of any of the

offences punishable under section 65 or 68 of the Act, he

may arrest such person without a warrant and direct that

such person shall be committed to such' custody as such

officer may deem fit for a period not exceeding 15 days.

By section 136(2), the State Government is given the ex-

traordinary power of imposing restriction on the right of

free movement of any person if it is satisfied that such

person is acting or is likely to act in the manner afore-

said. Chapter XI contains certain miscellaneous provisions

and the only sections of this Chapter which need be referred

to are section 139 (c), which states that the State Govern-

ment may by general or special order exempt any person or

class of persons or institution or class of institutions

from the

689

observance of all or any of the provisions of the Act or any

rule, regulation or order made thereunder, and section 147,

which declares that nothing in the Act shall be deemed to

apply to any intoxicant or other article in respect of its

import or export across the customs frontier as defined by

the Central Government.

The High Court accepted the contention of the petitioner

that the definition of "liquor" in the Act was too wide and

went beyond the power vested in the legislature to legislate

with regard to intoxicating liquors under item 31 of List

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II. It also held the following sections to be invalid :-

Sections 23 (a) and 24 (1) (a) so far as they refer to

"commending"; section 23 (b); 24 (1) (b) so far as it refers

to "evasion"; section 39; section 52; section 53 in part;

section 136 (1); section 136 (2) (b), (c), (e), (f); and

section 139 (c). The High Court also held Rule 67 of the

Bombay Foreign Liquor Rules and Notifications Nos. 10484/45

(c) and 2843/49 (a), dated the 30th March, 1950, invalid.

It further held that the word"addict" in the medical certif-

icate was not warranted by the provisions of the Act.

The two important questions which this Court is called

upon to decide in these appeals are :--

(1) whether there are sufficient grounds for declaring

the whole Act to be invalid; and

(2) to what extent the judgment of the High Court can be

upheld with regard to the specific provisions of the Act

which have been declared by it to be void. It seems to me

that it will be convenient to deal in the first instance

with the argument assailing the validity of the Act as a

whole, which is based on three grounds, these being :--

(1) that the law is an encroachment on the field which

has been assigned exclusively to the Central Legislature

under entry 19 of List I;

(2) that some of the material provisions of the Act

interfere with or are calculated to interfere with inter-

State trade and commerce and as such transgress the

690.

provisions of section 297 of the Government of India Act,

1935 ;and

(3) that the High Court having 'held a number of material

provisions to be void, should have declared the Act as a

whole to be invalid, especially as the provisions found by

the High Court to be void' are not severable from the rest

of the Act and it cannot be said that the legislature would

have passed the Act in the truncated form in which it is

left after the decision of the High Court.

It is obvious that the proper occasion to deal with the

third ground will be after examining the specific provisions

which have been declared by the High Court to be void, but

the first two grounds may be dealt with at once.

The first question is whether the impugned law can be

said to have made any encroachment upon the field of legis-

lation assigned to the Centre. In order to decide this

point, it will be necessary to refer to entry No. 31 in List

II, under which the law purports to have been made, and

entry No. 19 of List I, which is said to have been trans-

gressed. These entries run as follows:--

Entry 31, List II: Intoxicating liquors and narcotic

drugs, that is to say, the production, manufacture, posses-

sion, transport, purchase and sale of intoxicating liquors,

opium and other narcotic drugs, but subject, as respects

opium, to the provisions of List I and, as respects poisons

and dangerous drugs, to the provisions of List I11.

Entry 19, List I: Import and export across customs

frontiers as defined by the Dominion Government.

Prima facie, it would seem that there is no real con-

flict between these two entries, because entry 31 of List II

has no reference to import or export but merely deals with

production, manufacture, possession, transport, purchase and

sale. Dealing with this entry, Gwyer C.J. observed as fol-

lows in the case of Bhola Prasad v. The King Emperor (1):--

(1) [1942] F.C.R. 17 at 25.

691

"A power to legislate 'with respect to intoxicating

liquors' could not well be expressed in wider terms, and

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would, in our opinion, unless the meaning of the words used

is restricted or controlled by the context or by other

provisions in the Act, undoubtedly include the power to

prohibit intoxicating liquors throughout the Province or in

any specified part of the Province."

Thus, under entry 31, the Provincial Legislature can

pass any law regarding production, manufacture, transport,

purchase, possession and sale of intoxicating liquor. But

the point that is pressed for our consideration is that

"import" does not end with mere landing of the goods on the

shore or their arrival in the customs house, but it implies

that the imported goods must reach the hands of the importer

and he should be able to possess them. On this basis, it is

contended that there is no difference in effect between a

power to prohibit the possession and sale of an article and

a power to prohibit its import or introduction into the

country, since the one would be a necessary consequence of

the other. This contention is based upon some American

cases to which I shall refer later, but it may be stated at

once that the point which is raised in this case is precise-

ly the point which was raised and negatived in Miss Kishori

Sherry v. The King (1). In that case, the appellant had been

convicted under section 14-B of the Bombay Abkari Act,

1878, as amended by the Bombay Abkari (Amendment) Act, 1947,

for having in her possession a certain quantity of foreign

liquor in excess of the limit prescribed by a notification

issued under the following provision of the Act :--

"14-B (2) ......... the Provincial Government may

by notification in the Official Gazette prohibit the posses-

sion by any individual or a class or a body of individuals

or the public generally, either throughout the whole Presi-

dency or in any local area, of any intoxicant, either abso-

lutely or subject to such conditions as it may prescribe."

(1) [1949] F.C.R. 6S0.

692

The main argument advanced in that case was reproduced in

the judgment in these words :-

"But counsel for the appellant drew attention to item 19

of List I which covers "Import and export across customs

frontiers as defined by the Dominion Government", and

argued that if "intoxicating liquors" in item 31 of List II

were held to include also liquors imported from abroad, then

the Provincial Legislature, by prohibiting possession of

such liquors by all persons, whether private consumers,

common carriers or warehousemen, could defeat the power of

the Federal Legislature to regulate imports of foreign

liquors across the sea or land frontiers of British India

which are customs frontiers as defined by the Central Gov-

ernment and thus seriously jeopardise an important source of

central customs revenue. As under section 100 of the Con-

stitution Act the Provincial legislative powers under List

11 were subject to the exclusive powers of the Federal

Legislature in List I, the Bombay Act to the extent to which

it trenched upon the subject of item 19 of the latter List

must, it was submitted, be regarded as a nullity."

It will be seen that the rationale of the argument

there is the same as that of the argument advanced in the

present case, but it was rejected for reasons which are

clearly set out in the following passage :--

"These is, in our view, no irreconcilable conflict here

such as would necessitate recourse to the principle of

Federal supremacy laid down in section 100 of the Consti-

tution Act. Section 14-B does not purport to restrict or

prohibit dealings in liquor in respect of its importation or

exportation across the sea or land frontiers of British

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India. It purports to deal with the possession of intoxicat-

ing liquors which, in the absence of limiting words, must

include foreign liquors. It is far-fetched, in our opinion,

to suggest that, in so far as the provision covers foreign

liquors, it is legislation with respect to import of liquors

into British India by sea or land"

693

Since the enactment of the Government of India Act,

1935, there have been several cases in which the principles

which govern the interpretation of the Legislative Lists

have been laid down. One of these principles is that none of

the items in each List is to be read in a narrow or re-

stricted sense(1). The second principle is that where there

is a seeming conflict between an entry in List II and an

entry in List I, an attempt should be made to see whether

the two entries cannot be reconciled so as to avoid a con-

flict of jurisdiction. This principle has been stressed in a

number of cases by the Federal Court as well as by the Privy

Council.. In In re The Central Provinces and Berar Act No.

XIV of 1938(2), the question arose as to whether a tax on

the sale of motor spirits was a tax on the sale of goods

within entry 48 of the Provincial List or a duty of excise

within entry 45 of the Federal List. Dealing with the diffi-

culty which arose in that case, Gwyer C.J. observed as

follows :--

"Only in the Indian Constitution Act can the particular

problem arise which is now under consideration; and an

endeavour must be made to solve it, as the Judicial Commit-

tee have said, by having recourse to the context and scheme

of the Act, and a reconciliation attempted between two

apparently conflicting jurisdictions by reading the two

entries together and by interpreting, and, where necessary,

modifying, the language of the one by that of the other. If

indeed such a reconciliation should prove impossible, then,

and only then, will the non-obstante clause operate and the

federal power prevail; for the clause ought to be regarded

as a last resource, a witness to the imperfections of human

expression and the fallibility of legal draftsmanship."

To the same effect are the following observations made

by the Judicial Committee of the Privy Council in Governor-

General in Council v. Province of Madras(3),

(1) Vide United Provinces v. Atiqa Begum, [1940] F.C.R.

110 at 134.

(2) [1939] F.C.R. 18. (3) [1945] F.C.R. 179 at 191.

694

after referring to section 100 of the Government of India

Act, 1935 :--

"Their Lordships do not doubt that the effect of these

words is that, if the legislative powers of the Federal and

Provincial Legislatures, which are enumerated in List I and

List II of the Seventh Schedule, cannot fairly be recon-

ciled, the latter must give way to the former. But it ap-

pears to them that it is right first to consider whether a

fair reconciliation cannot be effected by giving to the

language of the Federal Legislative List a meaning which, if

less wide than it might in another context bear, is yet one

that can properly be given to it, and equally giving to the

language of the Provincial Legislative, List a meaning which

it can properly bear." In the present case, as already

pointed out. the words "possession and sale" occurring in

entry 31 of List II are to be read without any qualification

whatsoever, and it will not be doing any violence to the

construction of that entry to hold that the Provincial

Legislature has the power to prohibit the possession, use

and sale of intoxicating liquor absolutely. If we forget for

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the time being the principles which have been laid down in

some of the American cases, it would be difficult to hold

that the word 'import' standing by itself will include

either sale or possession of the article imported into the

country by a person residing in the territory in which it is

imported. There is thus no real conflict between entry 31 of

List II and entry 19 of List I, and I find it difficult to

hold that the Bombay Prohibition Act in so far as it pur-

ports to restrict possession, use and sale of foreign liq-

uor. is an encroachment on the field assigned to the Federal

Legislature under entry 19 of List I.

There is also another way of dealing with the contention

raised before us. It is well settled that the validity of

an Act is not affected if it incidentally trenches on mat-

ters outside the authorised field, and therefore it is

necessary to inquire in each case what is the pith and

substance of the Act impugned. If the Act, when so viewed,

substantially falls within the

695

powers expressly conferred upon the Legislature which enact-

ed it, then it cannot be held to be invalid, merely because

it incidentally encroaches on matters which have been as-

signed to another legislature. This was emphasised very

clearly in Gallagher v. Lynn(1) in these words :--

"It is well established that you are to look at the

`true nature and character of the legislation ': Russell v.

The Queen(2) the pith and substance of the legislation'.

If,. on the view of the statute as a whole, you find that

the substance of the legislation is within the express

powers, then it is not invalidated if incidentally it af-

fects matters which are outside the authorised field ".

In Prafulla Kumar Mukherjee and Others v. Bank of Com-

merce, Ltd., Khulna(3) the question arose before the Privy

Council whether the Bengal Money-lenders Act, 1940, which

provided that no borrower shall be liable to pay after the

commencement of the Act more than a limited sum in respect

of principal and interest, was intra vires the Provincial

Legislature as dealing in pith and substance with money-

lending and moneylenders, a subject-matter within the compe-

tence of the Provincial Legislature under entry 27 of List

II, or whether it trenched on "promissory notes" and

"banking", which were subjects reserved for the Federal

Legislature under entries 28 and 38 respectively of List I.

The Privy Council, notwithstanding the fact that loans on

promissory notes would also have been subject to the provi-

sions of the impugned Act, held that the Act was valid, and,

while rejecting the argument that it was beyond the legisla-

tive competence of the Provincial Legislature which had

enacted it, their Lordships observed as follows :--

"As Sir Maurice Gwyer C.J. said in the Subrahmanyam

Chettiar case: "It must invevitably happen from time to time

that legislation, though purporting to deal with a subject

in one list, touches also on a

(1) [1937] A.C. 863 at 870 (3) [1947] F.C.R. 28.

(21 7 A.C. 829.

696

subject in another list, and the different provisions of the

enactment may be so closely inter-twined that blind observ-

ance to a strictly verbal interpretation would result in a

large number of statutes being declared invalid because the

legislature enacting them may appear to have legislated in a

forbidden sphere. Hence the rule which has been evolved by

the Judicial Committee, whereby the impugned statute is

examined to ascertain its `pith and substance', or its true

nature and character, for the purpose of determining whether

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it is legislation with respect to matters in this list or in

that ". Their Lordships agree that this passage correctly

describes the grounds on which the rule is founded, and that

it applies to Indian as well as to Dominion legislation-(1).

The same principle was reiterated by the Federal Court

in Ralla Ram v. The Province of East Punjab(2), and was also

referred to in Miss Kishori Shetty v. The King(3) in the

following passage :--

"It may be that a general adoption of the policy of

prohibition by the Provinces will lead to a fall in the

import of foreign liquors and to a consequential diminution

of the Central customs revenue, but where the Constitution

Act has given to the Provinces legislative power with re-

spect to a certain matter in clear and unambiguous terms,

the Court should not deny it to them or impose limitations

on its exercise, on such extraneous considerations. It is

now well settled that if an enactment according to its true

nature, its pith and substance, clearly falls within one of

the matters assigned to the Provincial Legislature, it is

valid notwithstanding its incidental encroachment on a

Federal subject."

The short question therefore to be asked is whether the

impugned Act is in pith and substance a law relating to

possession and sale etc. of intoxicating liquors or whether

it relates to import and export of intoxicating liquors. If

the true nature and character

(1) [1947] F.C.R. at p. 51. (3) [1949] F.C.R. 650 at 655.

(2) [1948] F.C.R. 207 at 225

697

of the legislation or its pith and substance is not import

and export of intoxicating liquor but its sale and posses-

sion etc., then it is very difficult to declare the Act to

be invalid. It is said that the prohibition of purchase,

use, possession, transport and sale of liquor will affect

its import. Even assuming that such a result may follow, the

encroachment, if any, is only incidental and cannot affect

the competence of the Provincial Legislature to enact the

law in question.

On these considerations, there is really nothing else to

be said on the question before us, but in view of the very

great stress laid upon the American doctrine of "original

package'', it seems necessary to deal with what that doc-

trine means and under what conditions it was evolved. The

wide meaning of 'import' on which reliance was placed on

behalf of the petitioner was adopted for the first time by

Marshall C.J. in Brown v. Maryland(1), in which the facts

were these. The State of Maryland had passed an Act prohib-

iting importers of foreign goods from selling their goods

without taking a license for which a certain amount had to

be paid. The question which was raised in that case was that

the Act was repugnant to the provisions of the Constitution

which provided that "no State shall without the consent of

Congress allow any imposts or duties on imports or exports

except what may be absolutely necessary for executing its

inspection laws." In the course of his judgment, Marshall

C.J. observed inter alia as follows :-

"There is no difference, in effect, between a power to

prohibit the sale of an article and a power to prohibit its

introduction into the country. The one would be a necessary

consequence of the other. No goods would be imported if

none could be sold. No object of any description can be

accomplished by laying a duty on importation, which may not

be accomplished with equal certainty by laying a duty on the

thing imported in the hands of the importer."(2)

The learned Chief Justice further observed :--

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(1) (1827) 25 U.S, 419. (2) (1827) 25 U.S. at p. 439.

698

"Sale is the object of importation, and is an essential

ingredient of that intercourse, of which importation consti-

tutes a part. It is as essential an ingredient, as indis-

pensable to the existence of the entire thing, then, as

importation itself. It must be considered as a component

part of the power to regulate commerce. Congress has a

right, not only to authorise importation, but to authorise

the importer to sell."(1)

Upon principles so stated, what is known as the "origi-

nal package" doctrine was evolved in America, which was

applied not only to commodities imported from foreign coun-

tries but also to commodities which were the subject of

inter-state commerce. This doctrine laid down that importa-

tion was not over so long as the goods were in the original

package and hence a State had no power to tax imports until

the original package was broken or there was one sale while

the goods were still in the original package. The principle

upon which this doctrine was founded is explained by Mar-

shall C.J. in the case referred to in these words:-

" There must be a point of time when the prohibition

ceases, and the power of the State to tax commences;we

cannot admit that this point of time is the instant that the

articles enter the country ...It is sufficient for the

present to say, generally, that when the importer has so

acted upon the thing imported that it has become incorporat-

ed and mixed up with the mass of property in the country, it

has, perhaps, lost its distinctive character as an import,

and has become subject to the taxing power of the State; but

while remaining the property of the importer, in his ware-

house, in the original form of package in which it was

imported, a tax upon it is too plainly a duty on imports to

escape the prohibition in the Constitution."(2)

The doctrine was reiterated in a number of cases, and in

Leisy v. Hardin(8), it was laid down that "the importers had

the right to sell in the original packages unopened and

unbroken, articles brought into the

(1) (1827)25 U.S. at p. 447. (a) 135 U.S. 100.

(2) (1827) 25 U.S. at p. 441.

699

State from another State or territory notwithstanding a

statute of the State prohibiting the sale of such articles

except for purposes mentioned therein and under a license

from the State' '. The American writers have however pointed

out the difficulty which arose from time to time in applying

the "original package" doctrine, since sometimes very intri-

cate questions arose before the courts, such as whether the

doctrine applied to the larger cases only or to the smaller

packages contained therein, or whether it applied to smaller

paper packages of cigarettes taken from loose piles of

packages at the factory and transported in baskets. The

difficulty in applying the doctrine was particularly experi-

enced in working prohibition schemes, and to combat its

mischief and uncertainty, new legislative measures had to be

passed by the Congress like the Wilson Act, Webb-Kenyon Act,

etc. I do not wish to pursue the matter, but wish only to

point out that the doctrine has no place in this country,

having regard to the scheme of legislation that has been

outlined in the Government of India Act, 1935, and in the'-

present Constitution, in which the various entries in the

Legislative Lists have been expressed in clear and precise

language. In The Province of Madras v. Boddu Paidanna and

Sons(1), Gwyer C.J. while expressing his profound respect

for the views expressed by Marshall C.J. in Brown v. Mary-

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land(2), mildly hinted that it was easier to follow the line

of reasoning of Thompson J. in his dissenting judgment in

that case and concluded with the following remarks :--

"Next, it is to be observed that the American Constitu-

tion also provides that Congress alone has power "to regu-

late commerce with foreign nations, among the several

States, and with the Indian tribes", and it was held that

the Maryland tax was no less repugnant to this provision

also. Marshall C.J. asked: "To what purposes should the

power to allow importation be given, unaccompanied with the

power to authorise the sale of the thing imported ? Con-

gress has a right, not only to authorise importation, but to

(1) [1942] F.C.R. 90. (2) (1827) 25 U.S. 419.

700

authorize the importer to sell...What does the importer

purchase, if he does not purchase the privilege to sell?" On

this view of the Commerce Clause, it would indeed be diffi-

cult to recognize the right of the State to impose a tax

upon the first sale of the commodity, at any rate so long as

it remained in the importer's hands. In the Indian Constitu-

tion Act no such question arises; and the right of the

provincial Legislature to levy a tax on sales can be consid-

ered without any reference to so formidable a power vested

in the Central Government. Lastly, the prohibition in the

American Constitution is against the laying of "any imposts

or duties on imports or exports "the prohibition is not

merely against the laying of duties of customs, but is

expressed in what we conceive to be far wider terms; and it

does not appear to us that it would necessarily follow from

the principle of the Maryland decision that in India the

payment of customs duty on goods imported from abroad or the

payment of an excise duty on goods manufactured or produced

in India can be regarded as conferring some kind of license

or title on the importer or manufacturer to sell his goods

to any purchaser without incurring a further liability to

tax. That was the view which commended itself to the Court

in the Maryland Case(1) and it was a view adopted and argued

before us. The analogy with the American case is an attrac-

tive one, but for the reasons which we have given we are

wholly unable to accept it." (2)

I find considerable force in the opinion thus expressed

by Gwyer C.J. and agree that the "original package" doctrine

has no application to this country. In the United States,

the widest meaning could be given to the Commerce Clause,

for there was no question of reconciling that Clause with

another Clause containing the legislative power of the

State. Under the provisions of the Government of India Act,

a limited meaning must be given to the word "import" in

entry 19 of List I in order to give effect to the very

general words used in entry 31 of List II.

(1) (1827) 25 U.S. 419. (2) [1942] F.C.R. 90 at 106-7.

701

The second attack on the Act is founded upon the provi-

sion contained in section 297(1)(a) of the Government of

India Act, 1935, and it is contended that the prohibitions

contained in the impugned Act in regard to the use, consump-

tion, purchase, transport, possession and sale of intoxicat-

ing liquor will necessarily_ amount to prohibiting and

restricting inter-provincial. commerce, and inasmuch as they

tend to stop and restrict entry into or export from the

Province of Bombay of goods of a particular class or de-

scription, the Act contravenes section 297(1)(a). This

section runs as follows :--

"No Provincial Legislature or Government shall--

(a) by virtue of the entry in the Provincial Legislative

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List relating to trade and commerce within the Province, or

the entry in that List relating to the production, supply

and distribution of commodities, have power to pass any law

or take any executive action prohibiting or restricting the

entry into, or export from the Province of goods of any

class or description ...... ' '

It should be noticed that this provision refers to

"trade and commerce within the Province", which is the

subject of entry 27 of List II and to "production, supply

and distribution of commodities", which is the subject of

entry 29 of List II. The provision virtually means that

import into or export from a Province of goods of any class

or description cannot be prohibited or restricted on the

ground that it will affect, trade and commerce within the

Province or the production, supply and distribution of

commodities. If therefore by any law framed by a Provincial

Legislature relating to or based on the subjects of entry 27

or entry 29 of List II, the entry into or export from the

Province of any goods is prohibited or restricted, such a

law will be invalid. But, here, we are concerned not with a

law which purports to be made and was made by virtue of

entry 27 or entry 29 of List I1, but a law which is claimed

to have been made

702

and was made by virtue of entry 31 of that List and certain

other entries therein. Section 297 (1) (a) therefore has no

application to the present case. This was clearly pointed

out in the case of Bhola Prasad v. King Emperor(1). In that

case, the Bihar Excise (Amendment) Act, 1940, which amended

the Bihar and Orissa Excise Act, 1915, was challenged as

contravening section 297 (1) (a), but it was held to be a

valid Act on grounds already stated, as will. appear from

the following observations of Gwyer C.J. :-

"The second point-raised on behalf of the appellant was

that s. 19 (4) of the Act of 1915, as amended by the Act of

1940, is invalid because repugnant to s. 297 (1) (a) of the

Constitution Act. We confess that we have difficulty in

appreciating this argument. Section 297 (1)(a) enacts

that ...... It is plain beyond words that this provision

only refers to legislation with respect to entry No. 27 and

entry No. 29 in the provincial Legislative List; it has no

application to legislation with respect to anything in entry

No. 31. A Provincial Legislature, if it desires to pass a

law prohibiting export from, or. import into, the Province,

must therefore seek for legislative authority to do so in

entries other than entry No. 27 or entry No. 29. If it can

point to legislative powers for the purpose derived from any

other entry in the Provincial Legislative List, then its

legislation cannot be challenged under section 297 (1) (a).

There is no substance at all in the appellant's arguments on

this point"

Having dealt with and negatived the first two conten-

tions upon which the validity of the entire Act was as-

sailed, I now proceed to deal with certain sections of the

Act, the validity of which also was brought into question.

The provision which was most vigorously assailed and in

regard to which the attack was successful in the High Court,

is the definition of the word 'liquor' in section 2 (24) of

the Act. The definition runs thus:--

"Liquor" includes--

(1) [1942] F.C.R, 17 at 27. (2) [1942] F.C,R. 17 at 27, 28.

703

(a) spirits of wine, methylated spirits, wine, beer,

toddy and all liquids consisting of or containing alcohol;

and

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(b) any other intoxicating substance which the Provin-

cial Government may, by notification in the Official Ga-

zette, declare to be liquor for the purposes of this Act.

The High Court has held that the word "liquor" ordinari-

ly means"a strong drink as opposed to soft drink" but it

must in any event be a beverage which is ordinarily drunk.

Proceeding upon this view, the High Court has held that

although the legislature may while legislating under entry

31 prevent the consumption of non-intoxicating beverages and

also prevent the use as drinks of alcoholic liquids which

are not normally consumed as drinks, it cannot prevent the

legitimate use of alcoholic preparations which are not

beverages nor the use of medicinal and toilet preparations

containing alcohol. This view of the High Court was very

strongly supported on the one hand and equally strongly

challenged on the other before us, and I therefore proceed

to deal with the question at some length.

In the Oxford English Dictionary, edited by James Mur-

ray, several meanings are given to the word "liquor", of

which the following may be quoted:-

Liquor... 1. A liquid; matter in a liquid state; in wider

sense a fluid.

2. A liquid or a prepared solution used as a wash or

bath, and in many processes in the industrial arts.

3. Liquid for drinking; beverage, drink. Now almost

exclusively a drink produced by fermentation or distilla-

tion. Malt liquor, liquor brewed from malt; ale, beer,

porter etc.

4. The water in which meat has been boiled; broth,'

sauce; the fat in which bacon, fish or the like has been

fried; the liquid contained in oysters.

5- The liquid produced by infusion (in testing the

quality of a tea). In liquor, in the state of an infusion.

704

Thus, according to the Dictionary, the word 'liquor' may

have a general meaning in the sense of a liquid, or it may

have a special meaning, which is the third meaning assigned

to it in the extract quoted, above, viz. a drink or beverage

produced by fermentation or distillation. The latter is

undoubtedly the popular and most widely accepted meaning,

and the basic idea of beverage seems rather prominently to

run through the main provisions of the various Acts of this

country as well as of America and England relating to intox-

icating liquor, to which our attention was drawn. But, at

the same time, on a reference to these very Acts, it is

difficult to hold that they deal exclusively ...... with

beverages and are not applicable to certain articles which

are strictly speaking not beverages. A few instances will

make the point clear. In the National Prohibition Act, 1919,

of America (also known as the Volstead Act), the words,

liquor and intoxicating liquor, are used as having the same

meaning and the definition states that these words shall be

construed to "include alcohol, brandy, whisky, rum, gin,

beer, ale, porter and wine, and in addition thereto any

spirituous, vinous malt, or fermented liquor, liquids, and

compounds, whether medicated, proprietary, patented or not,

and by whatever name called, containing one-half of 1 per

centum or more of alcohol by volume which are fit for use

for beverage purposes." Having defined 'liquor' and 'intoxi-

cating liquor' rather widely, the Volstead Act excepted

denatured alcohol, medicinal preparations, toilet and

antiseptic preparations, flavoring extracts and sirups,

vinegar and preserved sweet cider (s. 4) which suggest that

they were included in the definition. In some of these

items, we have the qualifying words "unfit for use for

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beverage purposes", but the heading of section 4 of the

Volstead Act, under which these exceptions are enumerated is

exempted liquors." '

The Licensing (Consolidating) Act, 1910, of England was

an Act relating to licenses for the sale of intoxicating

liquor, etc. The definition of "intoxicating liquor" in this

Act was as follows;--

705

"'Intoxicating liquor' means (unless inconsistent with

the context) spirits, wine, beer, porter, cider, perry and

sweets, and any fermented, distilled, or spirituous liquor

which cannot, according to any law for the time being in

force, be legally sold without an excise licence."

The word spirits has been defined in the Spirits Act,

1880, as meaning spirits of any description, and includes

all liquors mixed with spirits, and all mixtures, compounds,

or preparations made with spirits." It was contended before

us that the definition of the word "spirits" in the Spirits

Act should not be imported in the Act of 1910, but in our

view for the purpose of understanding the definition of

'intoxicating liquor', the two Acts should be read together.

I do not suggest that the definition of "liquor" in the

present Act was borrowed from those Acts, but I am only

trying to show that the word 'liquor' is capable of being

used in a wide sense.

Coming now to the various definitions given in the

Indian Acts, I may refer in the first instance to the Bombay

Abkari Act of 1878 as amended by subsequent Acts, where the

definition is substantially the same as in the Act with

which we are concerned. In the Bengal Excise Act, 1909,

"liquor, is said to mean 'liquid consisting of or containing

alcohol' and includes spirits of wine, spirit, wine, tari

pachwai, beer, and any substance which the Provincial Gov-

ernment may ...... declare to be liquor for the purposes of

the Act." In several other Provincial Acts, e.g., the Punjab

Excise Act, 1914, the U.P. Excise Act, 1910, "liquor" is

used as meaning intoxicating liquor and as including all

liquids consisting of or containing alcohol. The definition

of "liquor" in the Madras Abkari Act, 1886., is the same as

in the Bombay Act of 1878. Even if we exclude the American

and English Acts from our consideration, we find that all

the Provincial Acts of this country have consistently in-

cluded liquids containing alcohol in the definition of

`liquor' and 'intoxicating liquor'. The framers of the

Government India Act, 1935, could not have been entirely

706

ignorant of the accepted sense in which the word 'liquor'

has been used in the various excise Acts of this country

and, accordingly I consider the appropriate conclusion to be

that the word "liquor" covers not only those alcoholic

liquids which are generally used for beverage purposes

and produce intoxication, but also all liquids containing

alcohol. It may be that the latter meaning is not the mean-

ing which is attributed to the word "liquor" in common

parlance especially when that word is prefixed by the quali-

fying word "intoxicating", but in my opinion having regard

to the numerous statutory definitions of that word, such a

meaning could not have been intended to be excluded from the

scope of the term "intoxicating liquor" as used in entry 31

of List II.

There is in my opinion another method of approaching the

question which also deserves consideration. Remembering that

the object of the Prohibition Act was not merely to levy

excise duties but also to prohibit use, consumption, posses-

sion and sale of intoxicating liquor, the legislature had

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the power to legislate upon the subjects included in the Act

not only under entry 31 of List II, but also under entry

14, which refers inter alia to public health. Article 47 of

the Constitution, which contains one of the directive prin-

ciples of State policy, provides that "the State shall

regard the raising of the level of nutrition and the. stand-

ard of living of its people and the improvement

of public health as among its primary duties and, in partic-

ular, the State shall endeavour to bring about prohibition

of the consumption, except for medicinal purposes, of intox-

icating drinks and of drugs which are injurious to health".

This article has no direct bearing on the Act which was

passed in 1949, but a reference to it supports to some

extent the conclusion that the idea of prohibition is con-

nected with public health, and to enforce prohibition effec-

tively the wider definition of the word "liquor" would have

to be adopted so as to include all alcoholic liquids which

may be used as substitutes for intoxicating drinks, to

707

the detriment of health. On the whole, I am unable to agree

with the High Court's finding, and hold that the definition

of "liquor" i,2 the Bombay Prohibition Act is not ultra

vires.

The learned Attorney-General also relied upon entry 1 of

List II which relates among other items to "public' order",

and though at first sight it may appear to be far-fetched to

bring the subject of intoxicating liquor under "public

order", yet it should be noted that there has been a tenden-

cy in Europe and America to regard alcoholism as a menace to

public order. In Russel v. The Queen(1), Sir Montague Smith

held that the Canada Temperance Act, 1878, the object and

scope of which was to promote temperance by means of a

uniform law throughout the Dominion, was a law relating to

the "peace, order, and good government" of Canada, and, in

so deciding, said as follows:--

"Laws of this nature designed for the promotion of

public order, safety, or morals and which subject those who

contravene them to criminal procedure and punishment, belong

to the subject of public wrongs rather than to that of civil

rights. They are of a nature which falls within the general

authority of Parliament to make laws for the order and good

government of Canada ...... " (2)

Again, referring to liquor laws and liquor control, a

learned British author(3) says as follows :-

"The dominant motive everywhere, however, has been a

social one, to combat a menace to public order and the

increasing evils of alcoholism in the interests of health

and social welfare. The evils vary greatly from one country

to another according to differences in climate, diet, eco-

nomic conditions and even within the same country according

to differences in habits, social customs and standards of

public morality. A new factor of growing importance since

the middle of the 19th

(1) 7 A.C. 829.

(2) 7 A.C. 829 at p. 839.

(3) The Encyclopaedia Britannica, 14th Edition, Volume 14,

page 191.

708

century has been the rapid urbanisation, industrialization

and mechanization of our modern every day life in the lead-

ing nations of the world, and the consequent wider recogni-

tion of the advantages of sobriety in safeguarding public

order and physical efficiency."

These passages may lend some support to the contention

of the learned Attorney-General that the Act comes also

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within the subject of "public order", but I prefer to leave

out of account this entry, which has a remote bearing, if

any, on the object and scope of the present Act.

I now come to section 39 of the Act which has been

impugned on the ground that it offends against article 14 of

the Constitution which states that "the State shall not deny

to any person equality before the law or the equal protec-

tion of the laws within the territory of India". The meaning

and scope of this article has been fully discussed in the

case of Chiranjit Lal Chowdhury v. The Union of India and

Others(1), and the principles laid down in that case may be

summarized as follows:

(1) The presumption is always in favour of the constitu-

tionality of an enactment, since it must be assumed that the

legislature understands and correctly appreciates the needs

of its own people, that its laws are directed to problems

made manifest by experience and its discriminations are

based on adequate grounds.

(2) The presumption may be rebutted in certain cases by

showing that on the face of the statute, there is no classi-

fication at all and no difference peculiar to any individual

or class and not applicable to any other individual or

class, and yet the law hits only a particular individual or

class.

(3) The principle of equality does not mean that every

law must have universal application for all persons who are

not by nature, attainment or circumstances in the same

position, and the varying needs of different classes of

persons often require separate treatment.

(1) [1950] S.C.R. 869.

709

(4) The principle does not take away from the State

the power of classifying persons for legitimate purposes.

(5) Every classification is in some degree likely to produce

some inequality, and mere production of inequality is not

enough.

(6) If a law deals equally with members of a well de-

fined class, it is not obnoxious and it is not open to the

charge of denial of equal protection on the ground that it

has no application to other persons.

(7) While reasonable classification is permissible, such

classification must be based upon some real and substantial

distinction bearing a reasonable and just relation to the

object sought to be attained, and the classification cannot

be made arbitrarily and without any substantial basis.

Similarly, Professor Willis, dealing with the Fourteenth

Amendment of the Constitution of the United States, which

guarantees equal protection of the laws, sums up the law as

prevailing in that country in these words:

"The guaranty of the equal protection of the laws means

the protection of equal laws. It forbids class legislation,

but does not forbid classification which rests upon reasona-

ble grounds of distinction. It does not prohibit legisla-

tion, which is limited either in the objects to which it is

directed or by the territory within which it is to operate.

`It merely requires that all persons subjected to such

legislation shall be treated alike under like circumstances

and conditions both in the privileges conferred and in the

liabilities imposed'. The inhibition of the

amendment ...... was designed to prevent any person or

class of persons from being singled out as a special subject

for discriminating and hostile legislation.' It does not

take from the states the power to classify either in the

adoption of police laws or tax laws, or eminent domain laws,

but permits to them the exercise of a wide scope of discre-

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tion, and nullifies what they do only when it is without any

reasonable basis. Mathematical nicety and perfect equality

are not required. Similarity, not identity of

710

treatment, is enough. If any state of facts can reasonably

be conceived to sustain a classification, the existence of

that state of facts must be assumed. One who assails a

classification must carry the burden of showing that it does

not rest upon any reasonable basis."(1)

With these principles in view, I have to decide whether

article 14 of the Constitution has been violated by the

provisions contained in section 39 of the Act before us.

That section runs as follows :-

"The Provincial Government may, on such conditions as

may be specified in the notification published in the Offi-

cial Gazette, permit the use or consumption of foreign

liquor on cargo boats, warships and troopships and in mili-

tary and naval messes and canteens."

What is contended is that the concession shown to the

warships, troopships, and military and naval messes and

canteens is a violation of the principle of equality and the

legislature has acted arbitrarily and capriciously in se-

lecting certain bodies or groups of people for favoured

treatment, while subjecting the petitioner and other citi-

zens to the general provisions of the Act. It is said that

the law should have been enforced alike against the civil

population and military personnel, between whom no distinc-

tion can be made at all on any rational ground in the en-

forcement of the policy of prohibition.

The scheme of Chapter IV of the Prohibition Act, in

which the impugned provision finds a place, seems inter alia

to relax the law in favour of certain persons or groups of

persons or institutions by introducing the system of passes,

licences, permits and authorizations. A few examples will

show that the legislature did not proceed without making

any classification. For instance, section 35 deals with

licences to hotels, section 37 with licences to dining ears

and coastal setamers, section 38 with licences to shipping

companies, section 40 with permits to foreigners and persons

who need liquor on grounds of health, section 41 with per-

mits to foreign sovereigns and diplomats, section 44

(1) Constitutional Law, by Prof. Willis, (1st Edition) p.

578.

711

with licences to clubs, section 45 with authorisations for

sacramental purposes, section 46 with visitors' permits, and

so on. These sections were not challenged before us, and it

may be assumed that the classification made by the legisla-

ture has been accepted so far as they are concerned. The

question is whether in relaxing the rule in favour of war-

ships, troopships, and military and naval messes and can-

teens, the legislature has acted arbitrarily and capricious-

ly or it has proceeded here also on the basis of reasonable

classification. The learned Attorney-General referred us to

several statutes, army regulations and certain provisions of

the Constitution, in order to show that the military force

has been regarded in this country as a class by itself, and

there are many special provisions with regard to it. But it

is contended that this is not enough and that no classifica-

tion can be held to be valid unless it is shown to bear a

just and reasonable relation to the objects of the particu-

lar legislation before us. The argument, in other words, is

this: Assuming that the armed forces may be treated as a

class for certain purposes, can it be treated as a class for

the purpose of enforcing prohibition ? This argument found

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favour with the High Court, and section 39 was declared to

be void. In ray opinion, the judgment of the High Court

cannot be supported, because I think that there is an under-

standable basis for the exemptions granted to the military

canteens, etc. by the Act. The armed forces have their own

traditions and mode of life, conditioned and regulated by

rules and regulations which are the product of long experi-

ence and which aim at maintaining at a high level their

morale and those qualities which enable them to face dangers

and perform unusual tasks of endurance and hardship when

called upon to do qualities such as dash and courage, un-

breakable tenacity and energy ready for any sacrifice which

should be unfaltering for long days together. By these

rules and regulations, drinking among the forces is not

prohibited, but it is properly and carefully regulated,

712

It is easy to understand that the legislature chose not to

interfere with the mode of life to which the forces have

been accustomed, lest such interference should affect their

morale and and lead to subterfuges which may prove unwhole-

some for their discipline and good behaviour. Besides, when

drinking is regulated among a class of persons by specific

rules and regulations and drunkenness is made an offence,

the relaxation of the law of prohibition in their case is

not likely to produce the same evil results as it may pro-

duce under other circumstances. I find therefore nothing

wrong prima facie in the legislature according special

treatment to persons who form a class by themselves in many

respects and who have been treated as such in various enact-

ments and statutory provisions. In my opinion, therefore,

section 39, in so far as it affects the military and naval

messes and canteens, warships and troop: ships, cannot be

held to be invalid. So far as the cargoboats are concerned,

it was contended on behalf of the petitioner that no ration-

al differentiation could be made between them and the pas-

senger boats, and there was no conceivable ground for grant-

ing exemption or concession of any kind to the former. Here

again, we cannot assume that the legislature has proceeded

arbitrarily. The cargoboats being slower boats have to be

on the sea for long periods, the number of persons affected

by the exemption is comparatively small, and they are mostly

sojourners who stay at the port for a short time and then go

away. These considerations may well have induced the legis-

lature to show some concession to them, and we cannot say

that these are irrelevant considerations. The provision

relating to exemption of cargoboats should therefore be held

to be valid.

I have already referred to section 46 which deals with

visitors' permits. That section provides that the Provincial

Government may authorize an officer to grant visitors'

permits to consume, use and buy foreign liquor to persons

who visit the Province for a period of not more than a week.

The High Court held this provision to be valid, but it

considered rule 67 of the

713

Bombay Foreign Liquor Rules, framed under section 143 of the

Act, to be invalid. That rule provides that any foreigner on

a tour of India who enters the State of Bombay and desires

to possess, use and consume foreign liquor shall apply to

certain officers for obtaining a permit, which may be grant-

ed for a period not exceeding one month subject to subse-

quent renewal. The High Court declared this rule to be

invalid on the ground that it discriminated between foreign

visitors and Indian visitors who visit Bombay from neigh-

bouring Provinces. It seems to me that this is hardly a

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matter which should have been gone into on the petitioner's

application, since he claims to be neither a foreigner nor

an Indian visitor from another Province. But, in any event,

the rule cannot be assailed on the ground of discrimina-

tion, firstly because though it provides for the case of a

foreign visitor there is no prohibition against any other

outsider being granted a permit, and secondly, because the

policy underlying the rule is quite consistent with the

policy underlying section 40 of the Act which enables per-

mits to be granted to foreigners under certain conditions.

The High Court has also declared sections 52, 53 and 139

(c) of the Act invalid on the ground that they constitute

"delegation of legislative power". The reasons given by the

High Court for arriving at this conclusion are stated in its

judgment as follows: --

"Under section 52 power is given to the Government to

grant licences in cases other than those specifically

provided under any of the provisions of the Act. Under

section 53 Government is inter alia empowered to vary or

substitute any of the Conditions of the licence laid down in

the Act, and under section 139 (c) power is given to Govern-

ment to exempt any person or institution or any class of

persons or institutions from the observance of all or any of

the provisions of the Act or any rule or regulation or order

made thereunder. The policy of legislation has been clearly

laid down by the legislature in the Act itself. As pointed

out by us before, the legislature intended

714

to grant permits ordinarily only on grounds of health and

certain exceptions were made in the case of certain classes.

It is always open to the legislature to leave it to the

Government to work out the policy in details. It would be

impossible for the legislature to provide for all circum-

stances and all eventualities that may arise in the actual

working of the Act. But it is not open to the legislature

to permit Government to alter the policy itself. In our

opinion, in leaving it to Government to issue permits in

cases other than those provided for by the Act, in permit-

ting Government to vary or substitute conditions of the

licence, and in permitting Government to exempt persons or

classes from the provisions of the Act, the legislature was

clearly delegating to Government its own power of legisla-

tion. This it can clearly not do."

This Court had to consider quite recently the question

as to how far "delegated legislation" is permissible, and a

reference to its final conclusion will show that delegation

of the character which these sections involve cannot on any

view be held to be invalid. (See Special Reference No. 1 of

1951: In re The Delhi Laws Act, 1912, etc.(1)). A legisla-

ture while legislating cannot foresee and provide for all

future contingencies, and section 52 does no more than

enable the duly authorized officer to meet contingencies and

deal with various situations as they arise. The same con-

siderations will apply to sections 53 and 139 (c). The

matter however need not be pursued further, as it has al-

ready been dealt with elaborately in the case referred to.

I now proceed to deal with a group of sections in regard

to which I find myself in agreement up to a point with the

views expressed by the High Court. Section 12 of the Act

provides inter alia that no person shall possess or sell or

buy liquor and section 13 provides inter alia that no person

shall consume or use liquor. Substituting for the word

"liquor" occurring in these two sections the definition of

that word as given in clause (a) of section 2 (24) of the

Act, the effect of these two sections is that no person

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shall

(1) Reported infra.

715

possess, or sell or buy or consume or use "spirits of wine,

methylated spirit, wine, beer, toddy and all liquids con-

sisting of or containing alcohol." I have already held that

under entry 51 of List II, the Bombay Legislature was quite

competent to make a law with respect to "liquor "even as

broadly defined. It is however contended that the power of

making laws has to be exercised subject to the other provi-

sions of the Constitution and in particular to those relat-

ing to the fundamental rights guaranteed under Part/II of

the Constitution. The provisions to which I have referred

have been assailed on the ground that they are in conflict

with article 19 (1)(f) of the Constitution which guarantees

that all the citizens shall have the right "to acquire, hold

and dispose of property". This clause is wide enough to

include movable as well as immovable property. The provi-

sions in question undoubtedly prevent a citizen from pos-

sessing, selling,. buying, consuming or using "liquor" as

defined, and therefore they prima facie infringe the funda-

mental right of the Indian citizens to acquire, hold and

dispose of a kind of property, namely, "liquor" as defined

in section 2(24) of the Act, and as such would be void under

article 13. The question to be considered is whether they

can be saved by clause (5) of article 19, which runs as

follows :--

"Nothing in sub-clauses (d), (e) and (f) of the said

clause shall affect the operation of any existing law in so

far as it imposes, or prevent the State from making any law

imposing, reasonable restrictions on the exercise of any of

the rights conferred by the said subclauses either in the

interests of the general public or for the protection of the

interests of any scheduled tribe. ''

The question boils down to ascertaining whether the

restrictions imposed by the provisions to which reference

has been made are reasonable. In judging the reasonableness

of the restrictions imposed by the Act, one has to bear in

mind the directive principles of State policy set forth in

article 47 of the Constitution, "The State is charged with

the duty of bringing about

716

prohibition of the consumption, except for medical purposes,

of intoxicating drinks and of drugs which are injurious to

health." That the restrictions imposed by the sections on

the right of a citizen to possess, or sell or buy or consume

or use spirits of wine, methylated spirits, wine, beer,

toddy are in view of the aforesaid directive principles of

State policy quite reasonable, has not been disputed before

us. The controversy has centred round the words "and all

liquids consisting of or containing alcohol." It is said

that those words include "all liquids, toilet or medicinal

preparations containing alcohol" and the restrictions im-

posed upon the ordinary use of such toilet or medicinal

preparations are unreasonable and therefore void. So far as

these preparations are concerned, the High Court has dealt

with the matter as follows :-

To put it in a simple form, the question to which we

have to address ourselves is whether the legislature can

prohibit the legitimate use of an article which ordinarily

is not drunk, merely because its use may be perverted for

the possible purpose of defeating or frustrating the objects

and purposes of the Prohibition Act. Let us take the con-

crete case of eau-de-cologne or lavender water. Their legit-

imate use is only for the purpose of toilet. They contain

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spirit and it may be that an addict deprived of his drink

may drink it in order to satisfy his thirst. Is it permis-

sible to the legislature under such circumstances to deprive

the general public of the legitimate use of eau-de-cologne

or lavender water as articles of toilet ? The legislature

may prevent the abuse of these articles, but can it prevent

their legitimate use ? It is difficult to understand how

any restriction on the legitimate use of these articles can

be in the interests of the general public so as to make

these restrictions reasonable within the meaning of article

19)(5). If a citizen uses eau-de-cologne or lavender water

for the purpose of toilet, he is not doing anything against

public interest. It is only when he is perverting their use

that it may be said that he is acting against public inter-

est. Therefore, in our opinion, while it was open

717

to the legislature to provide against the abuse of these

articles, it was not open to it to prevent its legitimate

use. But the legislature has totally prohibited the use and

possession of all liquids containing alcohol except under

permits to be granted by Government. It is contended by the

Advocate-General that a citizen may possess eau-de-cologne

or lavender water under a permit. But that is a restriction

upon the right of the citizen to acquire, hold and dispose

of property, and, in our opinion, that restriction is not

reasonable. The same argument applies to medicinal and

toilet preparations containing alcohol. Therefore we hold

that tO the extent to which the Prohibition Act prevents the

possession, use and consumptiOn of non--beverages and

medicinal and toilet preparations containing alcohol for

legitimate purposes the provisions are void as offending

against article 19 (1) (f) of the Constitution even if they

may be within the legislative competence of the Provincial

Legislature."

The next step in the argument is that as the law pur-

ports to authorise the imposition of a restriction on a

fundamental right in language wide enough to cover restric-

tions both within and without the limits of constitutionally

permissible legislative action affecting such right. it is

not possible to uphold it even so far as it may be applied

within the constitutional limits, as it is not severable.

This line of reasoning, no doubt, seeks to find support from

the observations made in the majority decisions of this

Court in Romesh Thappar v. The State of Madras(1) and in

Chintaman Rao v. The State of Madhya Pradesh(2), but in my

opinion those observations do not apply to the case before

us. It will be noticed that the legislature has defined the

term "liquor" as including several distinct categories of

things followed by a general category. There can be no

doubt whatever that the earlier categories of liquor, name-

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

are distinctly separable items which are easily severable

from the last category, namely, all liquids consisting of or

containing alcohol. These

(1) [1950] S.C.R. 594, (2) [1950] S.C.R. 759,

718

items being thus treated separately by the legislature

itself and being severable, and it not being contended, in

view of the directive principles of State policy regarding

prohibition, that the restrictions imposed upon the right to

possess or sell or buy or consume or use those categories of

properties are unreasonable, the impugned sections must be

held valid so far as these categories are concerned. The

next question is whether those sections are void in so far

as they purport to impose restrictions on the citizens right

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to acquire, hold or dispose of all liquids consisting of or

containing alcohol. It is said that this is one general

item and it cannot be split up into different sub-categories

and therefore the sections in so far as they relate to this

general item must be held to be void. This argument at first

appears to have some force but a close scrutiny will reveal

that it is not in the circumstances of this case sound.

Section 139 of the Act authorises the Provincial Government,

by general or special order, to exempt any intoxicants or

class of intoxicants from all or any of the provisions of

the Act. An order made by the Provincial Government in

exercise of the power conferred by this section owes its

legal efficacy to this section and therefore in the eye of

the law the notification has the force of law as if made by

the legislature itself. In exercise of powers vested in it

by section 139(d) the Provincial Government issued an order

No. 10484/45(e) exempting intoxicants specified in column 1

of the Schedule thereto annexed from the provisions of the

Act specified against them in column 2 of that Schedule.

Turning to the Schedule, we find that in item (1) duty-paid

perfumed spirits (except eau-de-cologne), in item (3) duty-

paid spirituous toilet preparations (except lavender water)

and in item (4) duty-paid spirituous medicinal preparations

other than 123 specified liquids, are exempted from the

operation of sections 12(c) and (d) and 13(b) to the extent

specified therein. This notification was superseded on the

1st April, 1950, by another notification which is more

liberal in certain respects, and these notifications, being

made in exercise of the power given by the Act itself,

719

have undoubtedly the force of law and must be read along

with the Act. So read, it is quite clear that "all liquids

consisting of or containing alcohol" are capable of being

split up into and have in fact been split up into several

distinctly separate sub-items including liquid toilet and

medicinal preparations containing alcohol. The legislature

itself contemplated this sub-division, for by section 139

it authorised the Provincial Government to exempt any intox-

icant or class of intoxicants from the operation of the Act.

This circumstance takes the case out of the principles laid

down in the two cases mentioned above and the item being

thus severable I am free to consider whether the restric-

tions imposed on a sub-item, namely, liquid toilet and

medicinal preparations containing alcohol, are reasonable or

not. I am substantially in agreement with the line of rea-

soning adopted by the High Court and I consider that the Act

is not a law imposing reasonable restrictions so far as

medicinal and toilet preparations containing alcohol are

concerned. The National Prohibition Act or the Volstead Act

of America, to which I have referred, was also an Act relat-

ing to prohibition, but toilet and medicinal preparations

containing alcohol were expressly excluded from the scope of

that Act. I refer to that Act simply to show that a complete

scheme of prohibition can be worked without including such

articles among those prohibited. Again, article 47 of the

Constitution also takes note of the fact that medicinal

preparations should be excluded in the enforcement of prohi-

bition. I do not consider that it is reasonable that the

possession, sale, purchase, consumption or use of medicinal

and toilet preparations should be prohibited merely because

there is a mere possibility of their being misused by some

perverted addicts.

It was contended that there was no meaning in declaring

the provisions relating to purchase, sale, possession, use

and consumption of medicinal and toilet preparations con-

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taining alcohol to be invalid, since in the Notification No.

10484/45, issued by the Provincial

720

Government on the 1st April; which is no part of the Act,

the Government have exempted duty-paid perfumed spirits

(including eau-de-cologne), duty-paid spirituous toilet

preparations and certain classes of duty-paid spirituous

medicinal preparations from the

following provisions of the Act :(i) Section 12 (c);

(ii) Section 12 (d), in so far as it relates to buying

of such preparations;

(iii) Section 13 (b), in so far as it relates to use of

such preparations.

But it is to be noted that the sale of these articles is

not covered by the above notification, but is regulated by

two other notifications, namely, Notification No. 2843/49,

dated the 6th April, 1950, and Notification No. 2843/49,

dated the 11th April, 1950. In these two Notifications,

there are provisions imposing limits on sales. For example,

in the first notification issued on the 6th April, rule

10(1) provides as follows:-

''The licensee shall not sell to any person on any one

day any kind of perfumed spirits, spirituous toilet prepara-

tions or essences in excess of such quantity as may be

prescribed by the Commissioner under the

Similarly, in the second notification of the 11th April,

rules 9 and 10 run as follows :--

"9. The licensee shall not sell medicated tonics or

medicated wines containing more than 10 per cent of alcohol

(or containing alcohol in strength more than 17.5 per cent.

of proof spirit) except those which are classified as spir-

ituous medicinal preparations and regulated as such under

the Drugs Act, 1940.

10. Subject to the provisions of rule 9 the licensee

shall not sell the following spirituous medicinal prepara-

tions to any person unless he produces a medical prescrip-

tion in that behalf, namely :--

(a) medicated tonics and medicated wines;

(b) asaves and arishtas specified in the Schedule hereto

annexed;

721

(c) any other spirituous medicinal preparations con-

taining more than 10 per cent of alcohol (or containing

alcohol in strength more than 17.5 per cent of proof spirit)

which are intended for internal use:

Provided that the following spirituous medicinal prepa-

rations may be sold to any person without the production by

such person of any medical prescription, namely ...... ''

In view of the restrictions imposed on the sale of these

preparations, it is pertinent to enquire whether those

restrictions will not also affect their purchase, posses-

sion, use and consumption, and whether the socalled exemp-

tions contained in the notification of the 1st April really

go as far as they purport to go: (vide in this connection

conditions in col. 7 of Notification No. 10484/45 (a) of the

1st April, 1950). Again, in the Notification No. 10484/45 of

the 1st April, only 8 medicinal preparations are totally

exempted as regards their purchase, possession, and use, and

so far as medicinal preparations for internal consumption

are concerned, only those containing not more than 10% of

alcohol or 17.5% of proof spirit are exempted. This notifi-

cation has to be read along with another notification No.

10484/45(a) of the same date, which was to remain in force

till 31st March,. 1951, only. In the latter notification,

for the purpose of possession, purchase, consumption and

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use, the quantity of medicinal preparations containing not

more than 10% of alcohol, etc., is restricted to such quan-

tity as may be prescribed by a registered medical practi-

tioner. Even these notifications may be withdrawn, supersed-

ed or amended at any moment by the Provincial Government, as

was done in the case of the notifications issued on the 16th

June, 1949, which have been referred to. An ordinary citizen

may find it a perplexing task to attempt to extract informa-

tion out of the long series of complicated regulations, as

to the true nature and extent of the right which the law

confers upon him. Indeed it was only with the help of the

learned counsel appearing for the parties that we were able

to know what the position was up to the 31st March, 1950,

and

722

what changes were made on the 1st April, 1950. But in the

bundle of notifications which have been placed before us.

there is no notification stating what step has been taken

after the 31st March, 1951, and none was brought to our

notice in the course of the arguments. Having given my

careful consideration to the matter, I am of the opinion

that the restrictions imposed by the Act even when read with

the above notifications are not reasonable, and I would

affirm the conclusion arrived at by the High Court.

The next group of sections which the High Court has held

to be invalid, are sections 23(a) and 24(1) (a) in so far as

they refer to "commending" any intoxicant, section 23(b) in

its entirety, and section 24(1)(b) in so far as it refers

to. "inciting or encouraging" any individual or class of

individuals or the public generally "to evade the provisions

of any rule, regulation or order made thereunder or the

conditions of any licence, etc." These provisions run as

follows :--

"23. No person shall--

(a) commend, solicit the use of, or offer any intoxi-

cant or hemp, or

(b) incite or encourage any member of the public or any

class of individuals or the public generally to commit any

act which frustrates or defeats the provisions of this Act,

or any rule, regulation or order made thereunder, or ......

24. (1) No person shall print or publish in any news-

paper, news-sheet, book, leaflet, booklet or any other

single or periodical publication or otherwise display or

distribute any advertisement or other matter,--

(a) which commends, solicits the use of or offers any

intoxicant or hemp, or

(b) which is calculated to encourage or incite any

individual or class of individuals or the public generally

to commit an offence under this Act, or to commit a breach

of or to evade the provisions of any rule, regulation or

order made thereunder or the conditions of any licence,

permit, pass or authorization granted thereunder."

723

Sections 23(a) and 24(1)(a) in so far as they refer to

"commending" any intoxicant are said to conflict with the

fundamental right guaranteed by article 19 (1) (a) namely,

the right to freedom of speech and expression and there can

be no doubt that the prohibition against "commending" any

intoxicant is a curtailment of the right guaranteed. and it

can be supported only if it is saved by clause (2) of arti-

cle 19 which, as it stands at present, provides that "noth-

ing in sub-clause (a) of clause (1) shall affect the opera-

tion of any existing law in so far as it relates to, or

prevent the State from making any law relating to, libel,

slander, defamation, contempt of court or any matter which

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offends against decency or morality or which undermines the

security of, or tends to overthrow, the State." It seems to

me that none of the conditions mentioned in clause applies

to the present case, and therefore the provisions in ques-

tion must be held to be void. Section 23 (b) must also be

held to be void. because the words "incite" and "encourage"

are wide enough to include incitement or encouragement by

words and speeches and also by acts. The words "which

frustrates or defeats the provisions of the Act or any rule,

regulation or order made thereunder" are so wide and. vague

that it is difficult to define or limit their scope. I am

therefore in agreement with the view of the High Court that

this provision is invalid in its entirety. So far as article

24(1)(b) is concerned the judgment of the High Court in

regard to it cannot be upheld. The learned counsel for the

petitioner also conceded before us that he was not going to

assail this provision.

The High Court has also declared sections 136(1),

136(2) (b), 136(2)(c), 136(2)(e), 136(2)(1)to be void as

offending against various provisions of article 19 the

Constitution, but no argument was addressed to us on behalf

of the Government of Bombay assailing the judgment of the

High Court with regard to these provisions. The judgment of

the High Court in regard to them will therefore stand.

I will now deal with two Notifications Nos. 10484/45

(c) and 2843/49(a), dated the 30th March, 1950, which

724

the High Court has held to be invalid. As regards the first

notification, the High Court has stated that section 139 (c)

having been held to be ultra vires the legislature, this

notification, which was issued under that section is ultra

vires the Bombay Government. But. since this Court has

taken a different view in regard to the validity of section

139(c), the decision of the High Court as regards the above

notification cannot stand. It appears from certain observa-

tions in the judgment under appeal, firstly that the High

Court upheld section 40(1) (c) (i) and (ii), which deals

with the grant of permits to foreigners who do not intend to

stay permanently in India, merely because the Explanation to

that section provided that "a person shall be deemed to be

residing or intending to reside in India temporarily, if the

period of his residence does not exceed six months"; and

secondly, that the High Court would have found it difficult

to uphold the classification on which section 40(1)(c) is

based if the restriction regarding six months' residence was

not there, as would be the result of reading the section

subject to the above notification. I am however unable to

see how the notification will turn a classification which is

otherwise a good classification into a bad one. There is

nothing unreasonable in a law relating to prohibition dis-

criminating between Indian citizens against whom it is

primarily to be enforced, and foreigners who have no inten-

tion of permanently residing in this country. The condition

of six months' residence which is laid down in the Explana-

tion to section 40 is somewhat arbitrary., and the mere fact

that the Government by notification withdrew this condition

cannot in principle alter the basis of the classification.

The High Court has declared the other notification

issued by the Government on the 30th March, 1950, to be

invalid on grounds which are stated in these words :--

"That notification exempts persons holding permits under

clause (c) of sub-section (1) of section 40, special permits

under section 41, or interim permits under section 47, from

the provisions of section 23(a)

725

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in so far as it relates to the offering of foreign liquor to

persons holding similar permits. This is clearly not justi-

fied. Having created a class, having given to that class the

right of obtaining a permit on grounds other: than those of

health, it will be totally wrong to permit that class not to

abide by the same provisions with regard to permits as

others to whom permits have been given. The restrictions

placed by the legislature itself on a permit-holder regard-

ing the use and consumption of his stock of liquor is to be

found in section 43 under which the permit-holder shall not

allow the use and consumption by any person who is not a

permit-holder. That restriction must apply equally to

permits issued under section 40 to Indian citizens as well

as foreigners, and in our opinion it is improper to allow a

foreigner permit-holder to stand drinks to other permit-

holders and to deny that privilege to Indian permit-holders.

The guarantee of equality before the law extends under our

Constitution not only to legislation but also to rules and

notifications made under statutory authority and even to

executive orders and as the notification offends against the

principle of equality it is, therefore, void."

In order to understand these remarks, it will be neces-

sary to state that persons holding permits under clause (c)

of sub-section (1) of section 40 are foreigners as described

in sub-clauses (i)and (ii)of clause (c), that persons hold-

ing special permits under section 41 are foreign sovereigns,

ambassadors, etc., and that persons holding interim permits

under section 47 are persons applying for permits under

either section 40, or section 41. The last class will in-

clude not only foreigners but also Indian citizens applying

for permits on the ground that their health will be serious-

ly and permanently affected if they are not permitted to use

or consume liquor. Thus, the assumption on which the con-

clusion of the High Court is based, does not appear to be

correct. Besides, I do not find anything in this notifica-

tion which violates the principle of equality. It simply

enables a certain class of persons holding permits to offer

drinks to persons holding similar permits,

726

This is in accord with the principle underlying the provi-

sions of section 43 which has not been assailed before us

and which provides that "no holder of a :permit granted

under section 40 or 41 shall allow the use or consumption of

any part of the stock held by him under the permit to any

person who is not the holder of such a permit". In my

opinion, there is no substantial ground for holding the

notification to be invalid. The points relating to the

notifications are extremely small, and the subtle distinc-

tions upon which they are based, are hardly worth the atten-

tion which the High Court has bestowed on them.

There is another point which arises on the judgment of

the High Court, which may also be noticed. The point is set

out in that judgment in these words :--

"When a person applies for a permit on the ground of

health. he has to forward with it a certificate from the

medical board and when we turn to the form of this certifi-

cate, it requires the medical board to declare the applicant

an addict. Therefore the position is that it is only on the

applicant being found an addict by the medical board that he

would be entitled to a permit if his health would be seri-

ously and permanently affected if he was not permitted to

use or consume liquor. It is not only in the case of ad-

dicts that such a contingency would arise. Even persons who

are not addicts may have been accustomed to drink for a long

period of time and a sudden discontinuance of drink may

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seriously and permanently affect their health. It may also

happen that without being accustomed to drink at all a

person may contract an illness which may require the use by

him of alcoholic drink under medical opinion. To be an

addict, in our opinion, means something more than being

merely accustomed to drink. We must give to it its plain

natural meaning. It is certainly not a term of art, and

giving to it its plain natural meaning, the expression

"addict" does carry with it a sense of moral obloquy. The

intention of the Government seems to be that only persons

who confess that they are deviating from standards of moral-

ity should be given permits..Now,

727

insistence upon a medical certificate in this form is not

at all warranted by the provisions of the Act."

The point is a small one, but it seems to me that

there is some substance in it. In my opinion, the word

"addict" in the medical certificate should be replaced

by the words used in section 40(1)(b) of the Act or

words corresponding to them.

The only other point which remains to be decided is

whether as a result of some of the sections of the Act

having been declared to be invalid, what is left of the Act

should survive or whether the whole Act should be declared

to be invalid. This argument was raised before the High

Court also, but it was rejected and it was held that it was

not possible on a fair review of the whole matter to assume

that the legislature would not have enacted the part which

remained without enacting the part that was held to be bad.

It is to be noted that upon the findings of the High Court,

the question should have assumed a more serious aspect

than it presents now, because the High Court has de-

clared several important sections of the Act including

the definition of "liquor" to be ultra vires the legisla-

ture. I have now examined those sections and have held

many of them to be valid. The provisions which are in my

view invalid cannot affect the validity of the Act as a

whole. The test to be applied when an argument like the

one addressed in this case is raised,has been very correctly

summed up by the Privy Council in Attorney-General for

Alberta v. Attorney- General for Canada(1) in these words:--

" The real question is whether what remains is so

inextricably bound up with the part declared invalid

that what remains cannot independently survive or. as it

has sometimes been put, whether on a fair review of the

whole matter it can be assumed that the legislature would

have enacted what survives without enacting the part

that is ultra vires at all."

It is quite clear that the provisions held by me to be

invalid are not inextricably bound up with the

(1) [1947] A.C. 505 at 518.,

728

remaining provisions of the Act, and it is difficult to hold

that the legislature would not have enacted the Act at all

without including that part which is found to be ultra

vires. The Act still remains substantially the Act as it was

passed, i.e., an Act amending and consolidating the law

relating to the promotion and enforcement of the policy of

prohibition and also the Abkari law in the Province of

Bombay.

In the result, I declare the following provisions of the

Act only to be invalid :--

(1) Clause (c) of section 12, so far as it affects the

possession of liquid medicinal and toilet preparations

containing alcohol.

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(2) Clause (d)of section 12, so far as it affects the

selling or buying of such medicinal and toilet preparations

containing alcohol.

(3) Clause (b) of section 13, so far as it affects the

consumption or use of such medicinal and toilet preparations

containing alcohol.

(4) Clause (a) of section 23, so far as it prohibits

the commendation of any intoxicant or hemp.

(5) Clause (b) of section 23, in entirety.

(6) Clause (a) of sub-section (1) of section 24, so far

as it prohibits commendation of any intoxicant or hemp.

(7) Sub-section (1) of section 136, in entirety.

(8) Clauses (b), (c), (e), and (f) of sub-section (2)

of section 136, in their entirety.

I hold that the rest of the provisions of the Act are

valid, and I also hold that my decision declaring some of

the provisions of the Act to be invalid does not affect the

validity of the Act as it remains. Appeal No. 182, pre-

ferred by the State of Bombay, is therefore substantially

allowed and Appeal No. 183 preferred by the petitioner is

dismissed.

On the question of costs, I am disposed to make the same

order as the High Court has made, not only because some of

the provisions of the Act are still found to be invalid, bUt

also because the present case

729

appears to have been instituted to test the validity of a

controversial measure and to secure a final decision on it

to set at rest the doubts and uncertainties which may have

clouded the minds of a section of the public as to how far

the provisions of the Act conform to law and to the Chapter

on Fundamental Rights in the present Constitution.

PATANJALI SASTRI J.-I agree and have nothing more to

add.

MUKHERJEA J.--I have read the judgment of my learned brother

Mr. Justice Fazl Ali and I am in entire agreement with his

conclusions and reasons. There is nothing further which I

can usefully add.

S.R. DAS J.--I agree and I have nothing further to add.

VlVlAN BOSE J.--I also agree.

Appeal No. 182 allowed.

Appeal No. 183 dismissed.

Agent for the appellants in Case No. 182 and respondents

in Case No. 183: P.A. Mehta.

Agent for the respondent in Case No. 182 and appellant

in Case No. 183. Rajinder Narain for R.A. Gagrat.

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