THE STATE OF BOMBAY AND ANOTHER v. F. N. BALSARA
Citation: [1951] 1 S.C.R. 682; 1951 INSC 39
Court: Supreme Court of India
Bench: M. PATANJALI SASTRI , BIJAN KUMAR MUKHERJEA, SUDHI RANJAN DAS, SIR SYED FAZL ALI, VIVIAN BOSE
Judgment date:
Case summary
1951 INSC 39. Supreme Court of India judgment dated 1951-05-25. THE STATE OF BOMBAY AND ANOTHER v. F. N. BALSARA. Read the judgment and case details on...
Judgment text
951 THE STATE OF BOMBAY AND ANOTHER May 25. v. F. N. BALSARA F. N. BALSARA v. THE STATE OF BOMBAY AND ANOTHER [SA1Ym FAZL ALI, PATANJALI SAsTRI, MUKHERJEA, S. R. DAs and V1v1AN BosE lf. ] Bombay Prohibition Act (XXV of 1949)-Constitutional validity -Applicability of Act to foreign liquors-To medicinal and toilet preparations containing alcohal-Validity 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-W he th er encroaches on power of Dominion to make laws as to "ituport and export" -Doctrine of original pack. age -Applicability to India - Construction of Lists-Restriction on fundamental right uto 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 11 entry 31-Constitution of India, Arts. 14, 19(1), 19 (2).
Under entry 31 of List 11 of the Seventh Schedule to the Government of India Act, 1935, the Provincial . Legislatures had the power to make laws in respect of "intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxiqting liquors" 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 validity of the Bombay Prohibition Act, 1949, in so far as it rcstrict. ed 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 : H eltl~ ( i) that the words "possession and sale" occurring in entry 31 of List II must be read without aJiy qualification, ahd the word "import" In ~ntry 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 conflict between entry 31 of List II 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, u~e, possession, transport and sale of liquor will affect its import, the Bombay Prohibition Act was in pith and substance an Act fall- S. C. R. SUPREME COURT Rm>ORTS 683 ing within entry 31 of List . II and. the fact th~t. the law. incid· cntally encroached upon the powers i:lf the Domm1on Legislature under entry 19 of List I would not effect its validity.
The American doctrine of "original package" which laid down the importation was not over so long as the goods were still in that original package, has no application in India having regard to the scheme of legislation that has been outlined in the Govern· roent 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. BhQla Prasad v. The King Emperor [1942] F. C. R. 17 and Miss IGshor, Sethi v. The King [ 1949] F. C. R. 650 relied on. In re the Central Provinces and Berar Act No. XIV of 1838 [1939) F. C. R. , 18, The United Provinces v. Atiqa Begum [1940] F. C. R. 110, Governor General in Council v. Province of Madras [1945] F. C. R. 179, Prafulla Kumar Mul(k_erjea and others v. Bank of Commerce, Khulna [1947] F. C. R. 28, Subramanyan 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 ptovisions 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 II). Bhola Prasad v. King Emperor [1942] F. C. R. 17 followed. The word "liquor" as understood in India lit the time of the Government of India kt, 1935, covered not only those alcoholic liquids which arc generally used as beverages and produce intoxication, but also all liquids containing alcohol; the definition of "liquor" eontained in s. 2 (24) of the Bombay Prohibition Act, 1949, is not therefore ultra 111'rei.
Section 39 of the Act which empowers the Provincial Government to permit the use or tonsumption of foreign liquor on cargo boats, warships and troopships and in military and naval messes and canteens does not contravene Att. 14 of the Constitution (which provides that the State shall not deny to any person equality before the law or the equal protection of the laws) inasmuch as the relaxation · of the general law In respect of the persons contemplated by the section is not arbitrary or capti· dous but is based on a reasonable classification. Ru\e 67 of. the Bombay Foreign Liquor Rules which authorises the granting of a permit to "any foreigner on a tour of India who enters the! S~te of . Bombay and de! sircs to possess, use and c~nsume foreign liquor" is not void on the ground of discrimina· t1on, firstly because,· thought it provides for the case of a foreign visitor, tl:Q:rc 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 c(Kl. ditions. Section 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. 1 In re Delhi Laws Act, 1912 etc. ( ) relied on. The restrictions impose by ss. 12 and 13 of the Act on the possession, sale, use and consumption of liquor are not reasonable restrictions on the fondamcntal right guaranteed by Art.
19 (1) (f) of the Constitution "to acquire, hold and dispose of property", so far as medicinal and toilet preparations containing alcohol are concerned and the said sections arc invalid so far as they prohibit the possession, sale, use and consumption of these articles, but the sections arc not wholly void on this around as the earlier categories mentioned in the d~finition of. liquor, namely, spirits of wine, methylated spirit, \Vine, beer and toddy are distinctly separable items which are easily severable from the last category, namCly, all liquors containing alcoho~ and the restrictions on the possession, sale, use arid consumption of these earlier categories are not unreasonable restrictions. Romesh Thappar v. Tie Stue. of Madras (1950] S. CR. 594 anti Chintaman Rab v. ]he Su~ 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 guaranteed 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 arc void. Section 23 {b) is also void, because 0 0 the words incite" and -enc:ouragc''· Uc wide enough tO include incitement and encouragement by words and speeches and also by acts artd ·the wotds used in the section are so wide and vague that the clause . must be held to. be void . in its entirety. There is nothing unreuonab! c in a law relating to prohibition discriminating between . Indian citizens against whom it is primarily to be tnforccd and. foreigners who ha•! c ·n<> intention of permanently residing in India. A provisinn enabling a certain class of pessons holding permits to offer drink to persons holding similar permits is also not unreasonable.
Notilications No. 10484/45C and 2843/49(a) arc not therefore invalid. The requirement that an applicant . for a permit on . the ground of health undct '· 40(1) (b) must get a medical certificate declaring that he is 1111 "addict'' is n<>t warranted by the provisions of ( ) Repc>rkd infra. 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 whck Act void. [The decision of the High Court that ss. 136 (1), 136 (2) (b), 136 (2) (c) 136 (2) (e) and 136 (2) (f) were void inasmuch as they offended against Art. 19 of the Constitution was not assailed before the Supreme Court.
} 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. ]. Kolah and . N. A. Palkhiwala, with him) for the respondent in Case No. 182 and appellant in Case No. 183. 195. May 25. The judgment of the court was deli-vered by FAzL Au 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 o~ 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 ProhibitiQn Commissioner ordering . them to forbear from enforcing against him the provisions of the Prohibition Act and for the issue of a writ of mandamus ordering them (1) to allow him to exercise his right to possess, consume and use certain articles, namely, whisky, brandy, wine, beer, medicated wine, eau-de-cologne, etc. , and to import and export across the Customs frontier . and to purchase, possess consume and use any stock of foreign 3-4 S. C. India/68 liquor, eau-de.. :ologne, lavender water, medicated wines and medicinal preparations containing alcohol, and (2) 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 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 certificate frpm the High Court under article 132 ( 1) of the Constitution. 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 consis~ 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 his 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 ntimber 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 a:nd 13 and the relevant provisions of sections 23 :ind 24 in this Chapter may be quoted :- 12.
No person shall- (a) manufacture liquor; (b) construct or work any distilfery 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 mate-rials, still, utensils; implements or apparatus whatso-ever 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 of the pufilic 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. pr mc1te any individuals or the public generally to coll). mit 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 authorisation granted thereunder.
Chapter IV relates to "control, regulation and exemptions", 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 permits fot 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 permanently in India; section 41, whicJ:i 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 authorised 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 penalties, 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 authorised 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 prepara-tion, 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 lit for a period not exceeding 15 days. By section 136(2), the State Government is given the extraordinary power of imposing restrictions 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 aforesaid.
Chapter XI contains certain miscellaneous prmtlsions and the only sections of this Chapter which need be referred to are section 139 ( c), which statj:s that the State Government may by general or special order exempt any person or class of persons or institution or class of institutions from the observance of all or any of the provisions of the Act or any rule, regulation or order made thereunder, and section 147, which declares that nothing in the Act shall be deemed to apply to any intoxicant or other article in respect of its import or export across the customs frontier as defined by the Central Government. The High Court accepted the contention of the petitioner that the definition of "liquor" in the Act was too wide and went beyond the power vested in the legislature to legislate with regard to intoxicating liquors under item 31 of List II.
It also held the following section 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 Coun 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 certificate 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 :- ( l) whether there are sufficient grounds for declaring the whole Act to be invalid; and (2) to ~hat extent the judgmerit of the High ·court can be upheld with regard to · the specific provisions of the Aot 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 provmons of section 2'J7 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 legislation . 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 transgressed. These entires run as follows:~ Entry 31, List 11 :. Intoxicating liquors and narcotic drugs, that is to i! ay, the production, manufacture possession, 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 III.
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 conflict 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 t1iis entry, Gwyer C. J. observed as follows in the case of Bhola Prasad v. The King Emperor(') :- (')[1942] F. C. R. 17 at 25. . "A power to legislate 'with respect to intoxicating liquors' ·could not well be expressed in wider terms, and would, in our opinion, unless the meaning of the words used is restricted or controlled by . the context or by other provisions in the Act, undoubtedly include the _power to prohibit intoxicating liquors throughout the. Province or in any specified part of the Province.
" Thus, under entry 31, the Provincial Legislature can pass any law regarding production, manufacture, transport, purchase, possession and sale of intoxicating liquor. But the point that is pressed for our consideration is that "import" does not end with mere landing of the goods on the shore or their arrival in the customs house, but it implies that . the imported goods must reach the hands of the importer and he should be able to possess ·theμi. On ! ltls 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 ~ts import or introductiqn 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 l~ter, but it may be stated at once that the point which is raised in this case is precisely the point which was raised and negatived in Miss Kishori Shetty v. The King(1).
In that case, the appellant had been con-victed under section 14-B of the Bombay Abkari Act, 1878, as amended by the Bombay Abkari (Amendment) Act, 1947, for having in 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 possession by any individual or a class or a body of individuals or the public generally, either throughout the whole Presidency 9r in any . local area, of any intoxicant, either absolutely or subject to such conditions as it may prescribe. " (1) [1949] F. C. R. 650. The main argument advanced in that case was re-produced 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 JI 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 Government and thus seriously jeopardise an important source of central customs revenue.
As under section 100 of the Constitution Act the Provincial legislative powers under List JI 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_:- "There 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 Constitution Act. Section 14-B does not purport to restrict or prohibit dealings in liquor in respect of its importation or exportation across the sea or land frontiers of British India.
It purports to deal with the possession of intoxicating 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". 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 restricted 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 conflict of jurisdiction. This principle has been stressed in a number of cases by the Federal Court as well as by the Privy Council.
In re The Central PrOtlinces and Berar Act No. XIV -0/ 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 difficulty 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 Committee have said, by having recourse to the context and scheme of the Act, and a reconciliation attempted between two apparently conflicting jurisdic-tions by reading the two entries together and by interpreting, and, where neceessary, '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 imperfec-tions of human expression and the fallibility of legal craftsmanship. " 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), ( ) Vide United Provinces v. Atiqa Begum, [1940) F. C. R. 110 at 134. 2 3 ( } [1939) F. C. R. 18. ( ) fl935] F. C. R. 179 at H! l. 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 reconciled, the latter must givJ: way to the former.
But it appears 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 whatsover, and it will not be doing any violence to the construction of that entry to hold that the Provincial Legislature has the power to prohibit the possession, use and sale of intoxicating liquor absolutely. If we forget for the time being the.
principles which have been laid down in some of the American cases, it would be difficult to hold that the word 'import' standing by itself will include either sale or possession of the article imported into the country by a person residing in the territory in which it is "imported. There is thus no real conflict between entry 31 of List II and entry 19 of List I, and I find it difficult to hold that the Bombay Prohibition Act in so far as it purports to restrict possession, use and sale of foreign liquor, 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 matters 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 powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another l~gislature. 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 affects matters which are outside the authorised field". In Prafulla Kumar Mukherjee and Others v. Bank of Commerce, Ltd.
, Khulna(8) 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, WM intra vires the Provincial Legislature as dealing in pith and substance with money-lending and money-lenders, a subject-matter within the competence 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 provisions of the impugned Act, held that the Act was valid, and while rejecting the argument . that it was beyond the legislative competence of the Provincial Legislature which had enacted it, their Lordships observed as follows :- "As Sir Maurice Gwyer C. J.
said in the Subrah-manyam Chettiar case: "It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a ( ) [1937] A. e. 863 at 870. (a) [1947] F. C. R. 28. , ( ) 7A. C. 829. subject in another list, and the different provisions of the enactment may be so closely inter-twined that blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its 'pith and substance', or its 'true nature and character', for the purpose of determining whether it is legislation with respect to matters in this list or in that".
Their Lordships agree that this passage correctly describes the grounds on which the rule is founded, and that it applies to Indian as well as to Dominion legislation"('). 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 3 King( ) 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 respect 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 consideration. 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 inipugned Act is in pith and substance a law relating to possession and sale etc. of intoxicating liquors or whether it relates to impon and export of intoxicating liquors. If the true nature and character (') [1947] F. C. R. at p. 51. ( ) [1949] F. C. R. 650 at 655. (•) [1948] F. R. C. 207 at 225. of the legislation or its pith and substance is not import and export of intoxicating liquor but its s:ile and possession etc. , then it is very difficult to dechre 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 befoo:: 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 doctrine means and under what conditions it was evolved. The wide meaning of 'import' on which re-liance was placed on behalf of the petitioner was adopted for the first time by Marshall C. J. in BrQwn v. Maryland(1), in which the facts were these. The State of Maryland had passed an Act prohibiting 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 :- 2) (1) (1827) 25 U. S. 419. ( (1827) 25 U. S. at p. 439· "Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable 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. "(') Upon principles so stated, what is known as the "original package" doctrine was evolved in America, which was applied not only to commodities imp0rted 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. The principle upon which this doctrine was founded is explained by Marshall 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 com-mences; 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 th:ing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become . imbject 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 2 to escape the prohibition in the Constitution. "( ) The doctrine was reiterated in a number of cases, 8 =d in Leisy v. Hardin( ), it was laid down that "the importers had the right to sell in the original packages unopened and unbroken, articles brought into the (') (1827) 25 U. S. at p. 447. ( ) 135 U. S. 100. {') (1827) 25 U. S. at p. 441.
State from another State or territory notwithstanding a starute 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 apply_ing the "original package" -doctrine, since sometimes very intricate questions arose before the courts, such as whether the d9Ctrine applied to the larger cases only or to _the smaller packages contained therein, or whether it applied to SJ:! laller 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 experienced in working prohibition schemes, :md 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 plac~ 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 Constirution, in which the various entries in the Legislative Lists have been expressed in cleat and precise language. In The Province of Madras v. Boddu Paid-anna and Sons(1), Gwyer C. J. , while expressing hjs profound respect for the views expressed by Mar- 2 shall C. J. in Brown v. Maryland( ), mildly hinted that it was easier to follow the line of reasoning of Thomp-son J. in his dissenting judgment in that case and concluded with the following remarks :- "Next, it is to be observed that the American Constitution also provides that Congress alone has power "to regulate 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. Marshal 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 importtd? Congress has a right, pot only to authorise importation, but to ( ) [1942] F. C. R. 90. ( 1) (1827) 25 U. S. 419. authorize the importer to sell. . . . )\'hat does the importer purchase, if he does not purchase the privilege to sell? " On this view of the Commerce Clause, it would indeed be difficult 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 tl)e importer's hands. In the Indian Constitu~ion Act no such question arises; and the right of the Provincial Legislature to· levy a tax on sales can be considered 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 du. ties 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 pur-chaser without incurring a further liability to tax. That was the view which commended itself to the Court in the Maryland Case(') and it was a view adopted and argued before us. The analogy with the American case is an attractive 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 not question of reconciling that Clause with another Clause containing the legislative povu:r 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. (') (1827) 25 u. s. 419. (') [1942] F. C. R. 90 at 106-7. The second attack on the Act is founded upon the provision contained in section 297 (1) (a) of the Govern- The State qf Bombll! ment of India Act, 1935, and it is contended that the and Anotlur prohibitions contained in the impugned Act in regard v. F. N.
Balsara, to the use, consumption, purchase, transport, possession and sale of intoxicating liquor will necessarily Fad Ali J. 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 description, the Act contravenes section 297 (1) (a). This section runs as follows :- "No Provincial Legislature or Government shall- (a) by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in that List relating to the production, supply and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from the Province of goods of any class or . description ....
" It should be noticed that tliis provlSton 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 entty 29 of List II, but a law which is claimed to have been made 4-4 S. C.
lndia/68 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('). 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 appel-h,nt 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 thjs 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 NQ. 29 in the Provincial Legislative I..
ist ; it has no application · to legislation with respect to anything in entry No. 31. A Provincial Legislaure, 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 pmvers 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 con-tentiOJll upon which the validity of the entire Act was assailed, I now proceed to.. , deal with certain sections of the Act, the validity of which also was brooght into question. The provision which was most vigorously assailed and in regard to which the attack was success-ful in the High C -hol.
It may be that the latter meaning is not the meaning which is attributed to the word "liquor" in common parlance especially when that word is prefixed by the qualifying word "intoxicating", but in my opinion having regard to the numerous staturory 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 approach-ing the question which also deserves consideration. Re-membering that the object of the Prohibition Act was not merely to levy excise duties but also to prohibit use, consumption, possession and sale of intoxicating liquor, the legislature had the power to legislate upon the subjects included in the Act not . only under entry 31 of Lilt II, but also under entry 14, which refers inter alia to public health.
Article 47 of the Constitution, which contains one of the directive principles of State policy, provides that "the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating 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 connected with public health, and to enforce prohibition effectively 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 the detriment of health.
On the whole, I am unable to agree with the High 0urt's finding, and hold that the definition of "liquor" in 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 tendency 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 punish-ment, 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, economic conditions and even within the same countr}" according to differences in habits, social customs and standards of public morality. A new factor of growing importance since the middle of the 19th ( ) 7 A. C. 829. (2) 7 A. C. 829 at p. 839. ( ) The Encyclopaedia Britannica, 14th Edition, Volume 14, page 191. century has been the rapid urbanisation, industrializa-tion and mechanization of our modern every day life in the leading nations of the world, and the consequent wider recognition 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 tile Act comes also within the subject of "public order'', but I prefer to leave out of account th~ entry, which has a remote bearing, if any, on the object and scope of the present Act.
1 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 protection of the laws within the territory of India". The meaning and scope of this article has been fully discussed in the case of Chiraniit Lal Chowdhury v. The Uhion of India and others('), and the principles laid down in that case may be summarized as follows : (1) The presumption is always in favour of the constitutionality 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 grollnds.
(2) The presumption i;nay be rebutted in certain cases by showing that on the face of the statute, there is no classification ~t all and no difference peculiar to any individual or class and not applicable to any other individual or class, af\d 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 i>er-sons 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. (') [t950J s. a. R. 869. 7! 'E ( 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 de~ls equally with ~embers of a well-defined 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 Four-teenth 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 reasonable grounds of distinction.
It does not prohibit legislation, 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 iu 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 doc:; 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 discretion, and nullifies what they do only when it is without any reasonable ba,sis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state.
of facts can reason-ably 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. "('} 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 A~t before us. That sectiofl runs as follows :- "The Provincial Government may, on such conditions as may be specified in the notification published in the Official Gazette, permit the use or consumption of foreign liquor on cargo boats, warships and troopships and in military and naval messes and canteens.
" What is contended is that the concession shown ta the warships, troopship, and military and naval messes and canteens is a violation of the principle• of equality and the legislature has acted arbitrarily and capriciously in selecting certain bodies or 'groups of people for favoured treatment, while subjecting the petitioner m~d other citizens 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 distinction can be made at all on any rational ground in the enforcement 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 cars and coastal steamers, section 38 with liceaces to shipping companies, section 40 with permits to foreigners and · persons who· need liquor on grounds of health, section 41 with permits to foreign sovereigns and diplomats, section 44 ( ') Constitutional Law; by Prof. Willis, (1st Edition) p. 578. 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 legislature has been accepted so far as they are concerned. The question is whether in relaxing the rule in favour of warships, troopships, and military and naval messes and canteens, the legislature has acted arbitrarily and capriciously 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 prov151ons 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 classification can be held to be valid unless it is shown to bear a just and reasonable relation to the objects of the particular legislation before us. The argument, in other words, is this : Assuming that the armed forces may be treated as a class for certain purposes, can it be treated as a class for the purpose of enforcing prohibition? This argument found favour with the High Court, and section 39 was declared to be void. In my opinion, the judgment of the High Court cannot be supported because I think that ,there is an understandable 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 experience 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 l! pon to do so-qualitie~ such as dash and courage, unbreakable 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. 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 lead to subterfuges which may prove unwholesome 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 produce 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 enactments and statutory provisions. In my opinion, therefore, section 39, in so far as it affects the military and naval messes and canteens, warships and troopships, cannot be held to be invalid. So far as the cargoboats are concerned, it was contended on behalf of the petitioner that no rational differentiation could be made between them and the passenger boats, and there was no conceivable ground for granting 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 com-paratively small, and they are mostly sojourners who stay at the port for a short time and then go away. These cos:iderations may well have induced the legislature 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 pr<>-vision to be valid, but it considered rule 67 of the 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 liquoF shall apply to certain officers for obtaining a permit, which may be granted for a period not exceeding one month subject to subsequent renew-al. The High Court declared this rule to be invalid on th rtance of-Statements made in Committal Court- W hen admissible. Where the report made by a police officer to · the Magistrate complies with the requirements of s. 173 ( 1) of the Criminal Procedure Code the Magistrate can take cognisance. of the case
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