Citation: 1951 AIR 318
Case Type: Civil Appeal
Case No: 182 of 1951
Petitioner: State of Bombay
Respondents: F.N.Balsara
Decided On: 25-05-1951
Statues Referred:
- Government of India Act, 1935
- Constitution of India
Case Referred:
- Bhola Prasad v. The King Emperor
- Miss Kishori Shetty v. The King
Bench: Fazal Ali Saiyid, Sastri M. Patanjali, Mukherjea B.K., Das Sudhi Ranjan, Bose Vivian JJ
Facts:
F.N .Balsara prayed High Court for a writ of mandamus against the State of Bombay and the Prohibition Commissioner to forbid them from enforcing against him the provisions of the Prohibition Act.
The Petitioner prayed to allow him to exercise his rights to possess, consume and use certain articles i.e whisky, brandy, wine, beer, medicated wine, eau-de-colonge etc, and to import and export across the Customs frontier and to purchase, possess, consume and use any stock of foreign liquor, eau-de-cologne, lavender water, medicated wines and medicinal preparations containing alcohol,
He also prayed to forbear from interfering with his right to possess these articles and to take no steps or proceedings against him, penal or otherwise, under the Act. The petitioner applied for relief under section 45 of the Specific Relief Act against the respondents.
The definition of “liquor” under the Bombay Prohibition Act,1949 is assailed to be too wide and therefore beyond the powers of provincial legislature.
The Bombay High Court agreed with some aspects of the Petitioner while disagreed with other, and declared that some provision of the Act were valid while others were invalid.
Both the parties were dissatisfied with the Judgement of the High Court of Bombay and the State Government filed appeal to the Supreme Court.
Issue:
Whether the Bombay Prohibition Act, 1949 was valid.
Whether the Judgement of the Bombay High Court be upheld in relation to provision declared void.
Obiter dicta:
“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 restricted sense. 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 conflict of jurisdiction. This principle has been stressed in a number of cases by the Federal Court as well as by the Privy Council….”
Ratio decedendi:
The Court held that the word ‘import’ does not include either sale or possession of the article imported in to the country by the person residing in the territory of the country of import.
Hence there is no conflict between entry 31 of List II and entry 19 of List I, and found it difficult to hold that the Bombay Prohibition Act till it restricts possession, use and sale of foreign liquor is an encroachment on the area assigned to the Federal Legislature under entry 19 of List I.
It is necessary to inquire the pith and substance of the Act impugned. If the Act substantially falls within the powers expressly ascribed to the province of the legislature which enacted it, then it cannot be held invalid, merely because it incidentally encroaches upon the matters assigned to another legislature.
The ‘doctrine of original package’ evolved in America, which was applied not only to commodities imported from foreign countries but also to commodities which were the subject of inter-state commerce.
This doctrine laid down that importation 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. But this doctrine as ruled by the Court finds no application in India.
Section 297(1) of the Government of India Act only provides that if any law framed by the Provincial Legislature in pursuance of Entry 27 and 29 of List II affects the import into or export from the Province, shall be void. But this section has no application to the present case as the impugned Act has been made in pursuance of Entry 31 of List II.
Section 39 of the Act is attacked on the ground that it violates the provision of Article 14 of the Constitution of India declaring equality before law and equal protection of law. The guarantee of equal protection of law can be overtaken by the reasonable classification of distinction.
Therefore equals must be treated equally and unequals should be treated similarly. 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 produce under other circumstances.
Therefore prima facie nothing wrong was found 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 enactments and statutory provisions.
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.
The contention that the word ‘alcohol’ include “all liquids, toilet or medicinal preparations containing alcohol” and the restrictions imposed upon the ordinary use of such toilet or medicinal preparations are unreasonable and therefore void.
It is only when the citizen uses the alcohol for doing anything against public interest which shall be prohibited but rest other essentials activity should be out of the purview of prohibition.
Judgment:
The Apex Court’s bench comprising of Fazal Ali Saiyid, Sastri M. Patanjali, Mukherjea B.K., Das Sudhi Ranjan, Bose Vivian JJ, held the following:
The power accorded to the State Legislature under Entry 31 of List II to prohibit the keeping, selling and using intoxicating alcohol is indisputable.
Section 297(1)(a) of the impugned Act does not apply as the said Act was passed under Entry 31 of the List II and not under Entry 27 or 29. And hence the Act was not illegal.
Section 12(c) affecting selling or buying of such medical and toilet preparation containing alcohol was held invalid.
The exemption allowed to the armed forces was not illegal under Section 37.
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, preferred by the State of Bombay, was therefore substantially allowed.
Conclusion:
The present case was valid until it expired by the ruling of Sythentics and Chemicals Ltd. and Others v. State of U.P. Hence it can be expounded that the use of alcohol can be prohibited in medical preparation also. The primary principle laid dawn is that the State Government can enact an Act upon subject over which it is constitutionally empowered, the Act is legal.
Kaushal Agarwal.