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PETITIONER: BEHRAM KHURSHED PESIKAKA

       Vs.

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

DATE OF JUDGMENT: 19/02/1954

BENCH:

ACT:      Constitution   of  India,  Arts.  13  and   141-Statute declared unconstitutional-Effect of-Declaration in Balsara’s case--Effect of-If the decision throws onus on the  accused- Bombay Prohibition Act, 1949 (Bombay Act XXV of 1949), ss. 2 (24),13 (b), 66(b).

HEADNOTE:       Held (Per MEHR CHAND MAHAJAN C. J., MUKHERJEA,  VIVIAN BOSE  and GHULAM HASAN JJ., S.  R. DAS J.  dissenting)  that the  effect of the declaration in the case of The  State  of Bombay and Another v. F. N. Balsara(1) that clause (b) of s. 13 of the Bombay Prohibition Act (XXV of 1949) is void under Art.  13(1) of the Constitution in so far as it affects  the consumption   or   use  of  liquid   medicinal   or   toilet preparations  containing  alcohol, is to render part  of  s. 13(b) of the Bombay Prohibition Act inoperative, ineffective and ineffectual and thus unenforceable.              In  view of the constitutional invalidity of  a part  of s. 13(b) of the Bombay Prohibition Act having  been declared void by the Supreme Court, that part of the section ceased to have legal effect in judging cases of citizens and must  be regarded as null and void in determining whether  a citizen was guilty of an offence.    The  clear  enactment  of Art. 141  of  the  Constitution leaves no scope in India for the application of the American doctrine    that   "the   declaration   by   a   court    of unconstitutionality  of a statute which is in conflict  with the  Constitution affects the parties only and there  is  no judgment  against  the statute and it does  not  strike  the statute from the statute book."    In India, on the other hand, once a law has been  -struck down as unconstitutional by the Supreme Court, no notice can be taken of it by any Court because after it is declared  as unconstitutional it is no longer law and is null and void. The  bare circumstance that a citizen accused of an  offence under s. 66(b) of the Bombay Prohibition Act is smelling  of alcohol is compatible both with his innocence as well as his guilt.  The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of s. 13(b)  of the Bombay Prohibition Act or it may well be due to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section.  Therefore the onus was laid on the prosecution to prove that the (I)  [1951] S.C.R. 682. 79 614 alcohol of which he was smelling came under the category  of prohibited  alcohol  within the meaning of  the  enforceable

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part of    s. 13(b).     Per  S. R. DAS J. :-The declaration in the case  of  The State of Bombay and Another v. F. N. Balsara gives a citizen who  has  consumed  or  used  liquid  medicinal  or   toilet preparations a defence to a charge under s. 66(b) read  with s.  13(b)  of the Bombay Prohibition Act and it is  for  the accused person to prove the facts on which that  declaration of law is based.      The  State  of  Bombay and Another  v.  F.  N.  Balsara ([1951] S.C.R. 682) explained.      Kesava  Madhava  Menon v. The State of  Bombay  ([1951] S.C.R. 228) followed.     rangarao Bala Maize v. The State ([19511 54 Bom.  L.  R. 325),  In  re Kanakasabai Pillai (A.I.R. 1940  Mad.  1)  and Norton v. Shelby County (118 U. S. 425) referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 42  of 1953.     Appeal  by  Special Leave from the  Judgment  and  Order dated  the  5th  February,  1953,  of  the  High  Court   of Judicature  at  Bombay in Criminal Appeal No. 1149  of  1952 arising out of the Judgment and Order dated the 22nd  April, 1952, of the Court of the Presidency Magistrate 19th  Court, Bombay, in Case No. 933/P of 1951.     B.    M.  Mistry, J. B. Dadachanji, Rajinder Narain  and R. D. Chadda for the appellant.    M.     C.   Setalvad,  Attorney-General  for  India   (R. Ganapathy  Iyer  and  P.  G.  Gokhale,  with  him)  for  the respondent.    1954.  February 19, April 28, September 23, and September 24. [The  present Criminal Appeal (No. 42 of 1953) came  up  for hearing  in  the first instance before a  Bench  of  Hon’ble Judges  composed of Bhagwati, Jagannadhadas and  Venkatarama Ayyar  JJ. who delivered the following Judgments dated  19th February, 1954].    BHAGWATI  J.-This  is an appeal by special leave  from  a judgment of the High Court of Judicature at Bombay reversing the order of acquittal passed in favour of the appellant  by the Court of the Presidency 615      Magistrate,  19th Court, Bombay, and convicting him  of an  offence  under section 66(b) of the  Bombay  Prohibition Act,  1949,  and  sentencing him to  one  month’s’  rigorous imprisonment and a fine of Rs. 500.     The   appellant,  who  was  the   Officiating   Regional Transport  Officer, Bombay Region, was on the 29th May,  195 1,  at about 9.30 P.m., proceeding in his jeep  car  towards the  Colaba  Bus Stand when he knocked down  three  persons, Mrs.  Savitribai  Motwani, her husband and  Miss  Parvatibai Abhichandani.   The police arrested the appellant  and  took him  to the police station.  From the police station he  was taken  to St. George’s Hospital in order to be  examined  by the  doctor for alleged consumption of liquor.   The  doctor found his breath smelling of alcohol.  He however found  the conjunctiva were congested, the pupils were semi-dilated and reacting  to  light.  The speech was coherent and  he  could behave  himself and walk along a straight line.  The  doctor was  therefore of opinion that he did not seem to  be  under the influence of alcohol though he had taken alcohol in some form or the other.      The   appellant  was  put  up  before  the   Presidency

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Magistrate  for  his  trial under two  offences,  one  under section  338  of the Indian Penal Code on three  counts  for causing grievous hurt to the three injured persons by  doing a  rash and negligent act, i.e., driving his motor car in  a rash  and negligent manner, and the other under  section  66 (b)  of  the Bombay Prohibition Act.  The  appellant  cross- examined  the  doctor  and suggested that  he  had  taken  a medicinal preparation, B. G. Phos, and also stated in answer to  the Magistrate on the 20th December, 1951, that  he  had not consumed any liquor but had taken medicinal  preparation containing  a small percentage of alcohol.  He also filed  a written  statement on the 13th March, 1952, setting  out  in detail the whole history of his case.  He stated there  that owing  to  his ill health he had been  recommended  to  take tonics,  specially  those containing vitamin B  Complex  and Phosphates and had regularly taken tonics, such as Wampole’s Phospho Lecitin, B. G. Phos, and Huxley’s Nerve Vigour.   He further stated that on the night in question he had at about 9 or 9.15 P.m. after dinner 616 taken  a dose of B. G. Phos and was proceeding in  his  jeep car for a drive via Cuffee Parade and Marine Drive when  the accident  took place.  He produced his driving  licence  and registration  certificate  and a copy of the agenda  of  the Regional  Transport Authority’s meeting to be held next  day and  a carton of B. G. Phos on which it was stated  that  it contained 17 per cent alcohol according to its formula.     The   learned   Presidency  Magistrate   acquitted   the appellant of both these offences.  In regard to the  offence under  section  66(b)  of  the  Bombay  Prohibition  Act  he observed  that the evidence did not go to show  conclusively that  the appellant had consumed alcohol without  a  permit, that  there were certain medicinal preparations  which  were allowed  to  be used by law and there  was  no  satisfactory evidence  to show that the appellant had not consumed  those tonics but only liquor for which he ought to have a permit.      The  respondent, the State of Bombay, took two  appeals before the -High Court against each of these two cases.  The High  Court confirmed the acquittal in regard to the  charge under section 338 of the Indian Penal Code but reversed  the order  acquitting him of the charge under section  66(b)  of the  Bombay  Prohibition  Act.  The High  Court  followed  a decision of its own Division Bench in Rangarao Bala Mane  v. State(1)  where it had been held that-"Once it is proved  by the  prosecution that a person has drunk or consumed  liquor without  a  permit, it is for that person to show  that  the liquor  drunk  by  him was not prohibited  liquor,  but  was alcohol  or  liquor which he is permitted by  law  to  take, e.g.,   medicated  alcohol.   The  prosecution  is  not   to discharge  the burden of the accused, and if in answer to  a charge  of  drinking  liquor without a  permit  the  accused suggests  that  the liquor which was drunk by  him  was  not liquor  in a prohibited form or was alcohol in  a  medicated form,  he  must show it." The High Court observed  that  the Magistrate had misdirected himself on a point of law and  it was therefore open to it to examine the evidence and come to its  own conclusion whether the appellant had shown that  he had (1)  (1951) 54 Bom.  L. R. 325.                             617 taken  B.  G.  Phos that night after  dinner  and  that  the alcoholic  smell which was still found in his mouth as  late as  11.30 P.m. when he was examined by the doctor"’ was  the smell of the alcoholic con-tents of B. G. Phos.  It came  to the  conclusion that the appellant had failed to  prove  the

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existence  of circumstances from which the Court could  come to the conclusion that the liquor which was consumed by  the appellant  was  not prohibited liquor but liquor  which  was excepted  by the Bombay Prohibition Act from  its  operation and  set aside the order of acquittal passed by the  learned Presidency  Magistrate in his favour convicting him  of  the offence and sentencing him as above.    It  was  contended on behalf of the appellant  before  us that the Bombay Prohibition Act, 1949, was impugned    after the  advent  of  the  Constitution and  this  Court  by  its decision in The State of Bombay and Another v.F.N.Balsara(1) inter alia declared the provisions of clause (b) of  section 13 to be invalid so far as it affects the consumption or use of  liquid  medicinal  and  toilet  preparations  containing alcohol, that the effect of that declaration was to lift the consumption   or   use  of  liquid  medicinal   and   toilet preparations containing alcohol from the prohibition enacted in section 13(b) and that section 66(b) was inoperative  and unenforceable   so   far  as  such  medicinal   and   toilet preparations  containing  alcohol were  Concerned.   It  was therefore  incumbent on the prosecution, if a  charge  under section  66(b) was framed against an accused, to prove  that the   accused  had  consumed  or  used  an   intoxicant   in contravention of the provisions of the Act, which  provision so  far  as section 13(b) was concerned was to  be  read  as prohibiting the consumption or use of liquor, i.e.,  spirits of wine, methylated spirits, wine, beer, toddy and all  non- medicinal  and non-toilet liquid preparations consisting  of or  containing  alcohol, which were the only  categories  of validly  prohibited liquor.  On this interpretation  of  the effect of the judgment in The State of Bombay and Another v. P. N. Balsara (supra) there was no question whatever of  the applicability of section 105 or of section 106 of the (1)  [1951] S.C.R. 682. 618     Evidence Act as was sought to be done by the High Court. It was further’ -urged that even if an onus was cast on  the accused to prove that he had consumed a liquid medicinal  or toilet preparation containing alcohol that onus was  lighter in  burden than the onus on the prosecution and  the  moment the accused indicated his defence the onus again shifted  on the prosecution to negative such defence.    It  was  urged  on  the  other  hand  on  behalf  of  the respondent that the effect of the declaration in The  -State of Bombay and Another v. F. N. Balsara (supra) was to  graft an exception or a proviso to section 13(b) and that the onus and  the  burden of proving the existence  of  circumstances bringing his case within the exception or proviso lay on the accused  and  the Court was to presume the absence  of  such circumstances.  (Vide section 105 of the Evidence Act).   It was  further urged that the prosecution could  not  possibly prove   that  no  form  of  liquid     medicinal   or toilet preparation  containing  alcohol was taken by  the  accused, that the fact of the consumption of such medicinal or toilet preparation  containing  alcohol was especially  within  the knowledge  of the accused and that therefore the  burden  of proving   such  fact  was  upon  him,  and  that  once   the prosecution  had  discharged the onus which lay upon  it  to prove  that the accused had consumed liquor it would be  for the  accused to show that the liquor which was taken by  him was  a  liquid medicinal or  toilet  preparation  containing alcohol. (Vide section 106 of the Evidence Act).    The  relevant provisions of the Bombay  Prohibition  Act, 1949, may be here set out.  The Act was passed inter alia to amend and consolidate the law relating to the promotion  and

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enforcement  of  and  carrying into  effect  the  policy  of prohibition  in  the  Province  of  Bombay.   Section  2(22) defined      ’an      "intoxicant"     to      mean      any liquor.....................  Section 2(24) defined  "liquor" to  include (a) spirits of wine, methylated  spirits,  wine, beer,  toddy  and all liquids consisting  of  or  containing alcohol.   Chapter III enacted the prohibitions and  section 13(b)  provided:-No  person  shall.....................  (b) consume or use 619 liquor Section 66(b) is the penal section and provided:-     "Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made, or of any licence, permit,  pass  or  authorisation  issued,  thereunder    (b) consumes,  uses, possesses or transports any  intoxicant  or hemp shall, on conviction, be punished."    It  may  be  noted that the Act as it  stood  before  the amendment  by  Bombay  Act  XXVI of  1952  which  came  into operation on the 22nd October, 1952, enacted in section  103 the  only  presumption as to the commission of  offences  in certain  -cases  which  cases had nothing  to  do  with  the question before us.    This  Court in The State of Bombay and Another v.  F.  N. Balsara (supra) held that the definition of liquor contained in  section 2(24) was not ultra vires inasmuch as  the  word liquor as understood in India at the time of the  Government of India Act, 1935, covered not only those alcoholic liquids which   are   generally  used  as  beverages   and   produce intoxication  but also all liquids containing  alcohol.   It however  considered the restrictions imposed by sections  12 and  13  of,  the  Act on  the  possession,  sale,  use  and consumption  of  liquor not reasonable restrictions  on  the fundamental  right  guaranteed by article 19(1) (b)  of  the Constitution  to "acquire, hold and dispose of property"  so far as medicinal and toilet preparations containing  alcohol were concerned and declared the said sections invalid so far as they prohibited the possession, sale, use and consumption of  these  articles.  The sections were however  not  wholly declared  void  on  this ground as  the  earlier  categories mentioned  in  the definition of liquor,  viz.,  spirits  of wine,  methylated  spirits,  wine,  beer  and  toddy,   were distinctly separable items which were easily severable  from the last category, viz., all liquids containing alcohol, and the   restrictions   on  the  possession,  sale,   use   and consumption   of   these   earlier   categories   were   not unreasonable  restrictions.  It therefore  declared  section 13(b)  invalid to the extent of the inconsistency, i.e.,  so far as it affected the 620 consumption   or   use  of  liquid  medicinal   and   toilet preparations containing alcohol. The question that falls  to be determined is what was the effect of this declaration   The  effect  of  the  declaration  of  a  statute  as  un- constitutional   has  been  thus  set  out  by   Cooley   on Constitutional Limitations, Vol.  I, page 382.-    "Where  a Statute is adjudged to be unconstitutional,  it is as if it had never been.  Rights cannot be built up under it;  contracts which depend upon it for their  consideration are  void;  it constitutes a protection to no  one  who  has acted under it and no one can be punished for having refused obedience  to it before the decision was made.  And what  is true  of an Act void in toto is true also as to any part  of an  Act  which  is found to be  unconstitutional  and  which consequently has to be regarded as having never at any  time been Possessed of any legal force........

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   See  also  the dictum of Field J. in  Norton  v.  Shelby County(1):    "An  unconstitutional  Act  is not  law,  it  confers  no rights,  it imposes no duties, it affords no protection,  it creates  no  office;  it  is,  in  legal  contemplation,  as inoperative as though it had never been passed."     To the same effect are the passages from Rottschaefer on Constitutional Law, at page 34:    "The legal status of a legislative provision in so far as its   application  involves  violation   of   constitutional provisions,  must however be determined in the light of  the theory  on which Courts ignore it as law in the decision  of cases  in  which its application  produces  unconstitutional results.  That theory implies that the legislative provision never  had  legal  force as applied  to  cases  within  that class."    Willoughby  on Constitution of the United States,  Second Edition, Vol. 1, page 10:-    "The  Court  does not annul or repeal the statute  if  it finds  it  in  conflict with the  Constitution.   It  simply refuses to recognise it, and determines the rights of the (1)  118 U. S. 425: 30 L.Ed. 178, 621 parties  just  as if such statute had no  application.   The Court may give its reasons for ignoring or disregarding  the statute,  but  the decision affects the  parties  only,  and there  is no judgment against the statute.  The  opinion  or reasons  of  the Court may operate as a  precedent  for  the determination of other similar cases, but it does not strike the  statute from the statute book; it does not  repeal  the statute.   The  parties to that suit are  concluded  by  the judgment,  but  no one else is bound.  A  new  litigant  may bring  a new suit, based on the very same statute,  and  the former decision can be relied on only as a precedent  "       "It simply refuses to recognise it and determines  the rights  of  the  parties  just as if  such  statute  had  no application "     And Willis on Constitutional Law, at page 89   "  A judicial declaration of the unconstitutionality of  a statute  neither annuls nor repeals the statute but has  the effect  of  ignoring  or  disregarding  it  so  far  as  the determination of the rights of private parties is concerned. The   courts   generally   say  that  the   effect   of   an unconstitutional statute is nothing.  It is as though it had never been passed    The  declaration was a judicial pronouncement  and.  even though  under  article  141 of  the  Constitution  the  -law declared  by this Court is binding on all the Courts  within the territory of India and is to be the law of the land  the effect  of  that declaration was not to  enact  a  statutory provision or to alter or amend section 13(b) of the Act.  No exception  or proviso was also grafted in terms  on  section 13(b).   The  only effect of the declaration  was  that  the prohibition  enacted in section 13(b) was to be  enforceable in  regard to the consumption or use of  validly  prohibited liquor,  i.e.,  spirits of wine, methylated  spirits,  wine, beer,  toddy  and all non-medicinal  and  non-toilet  liquid preparations  consisting  of  or  containing  alcohol.   The prohibition  which was enacted in section 13(b) against  the consumption  or  use  of liquor could in the  light  of  the declaration made by this Court only refer to the consumption or use of validly prohibited liquor, i.e., spirits of  wine, methylated spirits, wine, beer, today and all  non-medicinal and  80

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622 non-toilet  liquid preparations consisting of or  containing alcohol,  and that was the only prohibition which  could  be enforced  under section 13(b) and the penal  section  66(b). The  consumption  or  use  of  liquid  medicinal  or  toilet preparations.  containing  alcohol  could  not  be   validly prohibited and any person consuming or using such  medicinal or  toilet  preparations  containing alcohol  could  not  be hauled up for having contravened the provisions of the  Act. No  offence could be committed by the consumption of  liquid medicinal or toilet preparations containing alcohol and  the provision enacted in section 13(b) read in the light of  the definitions of intoxicant and liquor contained in sections 2 (22)  and  2(24) of the Act in so far as it  prohibited  the consumption  or use of liquor including liquid medicinal  or toilet   preparations   containing  alcohol   was   rendered inoperative  and  unenforceable by the  declaration  to  the extent  of the inconsistency and liquid medicinal or  toilet preparations  containing  alcohol  were lifted  out  of  the category of validly prohibited liquor.  Whatever may be  the implications or the consequences of the  unconstitutionality of section 13(b) to the extent of the inconsistency in other respects, here was the State enforcing the penal  provisions of  section 66(b) and encroaching upon the liberties of  the subject.   Penal statutes should be strictly  construed  and the,  State  could  only penals the consumption  or  use  of validly  prohibited  liquor which only could  constitute  an offence under section 66(b).  The consumption or use of  any intoxicant  meaning  any  liquor  in  contravention  of  the provisions  of  this Act was to be punished and  unless  and until  the prosecution proved that the accused had  consumed or  used liquor in contravention of the  enforceable  provi- sions  of the Act the accused could not be held  guilty  and punished  under  section 66(b).  The accused could  be  held guilty only if he had contravened the enforceable provisions of  the Act and for the purpose of the present  enquiry  the only  provision  of the Act which he could be  charged  with having  contravened  was  section  13(b),  the   prohibition contained in which was by reason of the declaration made  by this Court enforceable only in regard to the consumption  or use  of Validly prohibited liquor, i.e., spirits  of  wine., methylated spirits, 623 wine,  beer,  toddy  and all  non-medicinal  and  non-toilet liquid preparations consisting of or containing alcohol.    It  was  strenuously  urged before us on  behalf  of  the respondent  that  the declaration in effect, though  not  in terms, enacted an exception or proviso to section 13(b)  and that therefore the onus lay upon the appellant to prove  the existence  of  circumstances bringing his  case  within  the exception  or  proviso. (Vide section 105  of  the  Evidence Act.) It cannot be disputed that no exception or proviso was in terms enacted by this declaration.  It had the effect  of rendering  the prohibition of consumption or use  of  liquid medicinal  and  toilet preparations  containing  alcohol  as having  never at any time been possessed of any legal  force and so not to be enforceable wherever any accused person was charged  with having contravened the provisions  of  section 13(b)  of  the Act.  The effect of the  declaration  on  the provisions  of section 13(b) could be worked out in  any  of the following modes:    No   person  shall  consume  or  use  spirits  of   wine, methylated  spirits,  wine,  beer,  toddy  and  all  liquids consisting of or containing alcohol as are not or which  are not or other than or save or except or provided they are not

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or  but  shall  not  include  liquid  medicinal  or   toilet preparations  containing  alcohol or all  non-medicinal  and non-toilet  liquid preparations consisting of or  containing alcohol.      When  these  several interpretations were  possible  in regard to the effect of the declaration on the provisions of section   13(b),  where  would  be  the  justification   for interpreting  the  effect of the declaration to be  that  of grafting an exception o r proviso on section 13(b) so as  to attract  the operation of the provisions of section  105  of the   Evidence  Act?   It  is  clear  that   where   several interpretations  are  possible, the Court  should  adopt  an interpretation  favourable to the accused, rather  than  one which casts an extra or special burden upon him, which if at all  should  be done by clear and unequivocal  provision  in that  behalf rather than in this indirect manner. (See  also In  re  Kanakasabai  Pillai(1)  ).  It  would  be  more   in consonance with the principles of (1)  A.I.R. 1940 Mad. 1. 624 criminal  jurisprudence  to  interpret the  effect  of  this declaration  to be that the prohibition enacted  in  section 13(b)  where  it  came to be enforced  against  any  accused person  after  the  declaration  should  be  enforceable  as regards the consumption or use of validly prohibited liquor, ?I.e.,  spirits  of wine, methylated  spirits,  wine,  beer, toddy   and   all  non-medicinal   and   non-toilet   liquid preparations  consisting of or containing alcohol, as  above stated.     If  this is the effect of the declaration made  by  this Court there is no room for holding that the only duty of the prosecution  was to prove that the accused had taken  liquor in  some  form or the other and that the burden lay  on  the accused  to  prove that be had taken a liquid  medicinal  or toilet  preparation  containing alcohol.   When  an  accused person is charged with having committed an offence it is for the prosecution to prove all the ingredients of the  offence with  which he has been charged and the ingredients  of  the offence under section 13(b) as stated above were that he had consumed or used liquor validly prohibited, i.e. spirits  of wine,  methylated  spirits, wine, beer, toddy and  all  non- medicinal  and non-toilet liquid preparations consisting  of or containing alcohol.  There was no presumption enacted  in the Act as it stood which would throw the burden of proof on the  accused  to show that he had consumed  or  used  liquid medicinal  or toilet preparation containing alcohol.   There was  no exception or proviso enacted either in terms  or  in effect  in  section 13(b) which attracted the  operation  of section  105 of the Evidence Act and cast upon  the  accused the  burden  of  proving  the  existence  of   circumstances bringing  his case within such exception- or  proviso.   The mere circumstance that the fact in regard to his consumption or use of liquid medicinal or toilet preparation  containing alcohol  was specially within the knowledge of  the  accused also  could not shift the burden of proving the  ingredients of the offence from the prosecution to the accused,  because it  is  a cardinal principle of  criminal  jurisprudence  as administered in this country that it is for the  prosecution and  prosecution alone to prove all the ingredients  of  the offence with which the 625 accused has been charged.  The accused is not bound to  open his  lips or to enter upon his defence unless and until  the prosecution has discharged the burden which lies upon it and satisfactorily proved the guilt of the accused.  Section 106

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of  the  Evidence Act cannot be construed to mean  that  the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed  the offence. (See Attygalle v. The King(1),  also In re Kanakasabai Pillai(2)).  It is for the prosecution  to prove  that he has committed the offence and that burden  is not in any manner whatsoever displaced by section 106 of the Evidence Act.     The  High Court in arriving at its decision in  Rangarao Bala  Mane v. State (supra) above referred to was  impressed with  the  circumstance  that  the  prosecution  could   not possibly  prove that no form of medicated alcohol was  taken by the accused, that there were evidently numerous forms  of medicated  alcohol  and  that  it  was  impossible  for  the prosecution on the very face of things to exclude all  those forms.  The difficulty was illustrated by the High Court  in the manner following:-    "For  instance, if the prosecution were to lead  evidence to show that the accused had not taken medicated alcohol  in the  form of B. G. Phos, the accused would contend  that  he had taken it in some other form.  If the prosecution were to lead evidence that the accused had not taken it in the  form of  Winedex, the accused would say that he had taken  it  in the form of Waterbury’s Compound or Hall’s Wine.  These  are only  two  instances to show how, it is impossible  for  the prosecution to exclude all forms of medicated alcohol."    It  therefore  came  to  the  conclusion  that  once  the prosecution  had  discharged the onus which was upon  it  to prove that the accused person had consumed liquor, it  would be  for the accused to show that the liquor which was  taken by him was liquor in the form of medicated alcohol, in other words, not prohibited liquor.  The difficulty thus envisaged by  the High Court was, in my opinion, imaginary.  Where  an accused (1) A.I.R. 1936 P.C. 169.       (2) A.I.R. 1940 Madras 1. 626 person  is  suspected of having  committed  the  prohibition offence,  it  would  be for the police  to  investigate  the offence and while investigating the offence, it would be for the  police  to find out whether the  accused  has  consumed liquor  which  falls  within  ’the  enforceable  prohibition enacted  in  section  13(b).   As  there  are  a  number  of preparations  which  come  within  the  category  of  liquid medicinal   and   toilet  preparations  consisting   of   or containing alcohol, there are a number of preparations which come  within  the category of  non-medicinal  or  non-toilet liquid preparations consisting of or containing alcohol  and it would be really for the police investigating the  alleged offence  to  find out which out of the  latter  category  of preparations the accused had consumed and bring him to  book for the same.  The circumstance that the accused person  was smelling of alcohol and that he had consumed liquor in  some form  or the other would not be an unequivocal  circumstance pointing to the guilt of the accused.  The smell of  alcohol could as well be the result of his having consumed medicinal or  toilet preparations consisting of or containing  alcohol as  his  having consumed validly  prohibited  liquor,  i.e., spirits  of wine, methylated spirits, wine, beer, toddy  and all   non-medicinal  and  non-toilet   liquid   preparations consisting  of or containing alcohol.  To hold  the  accused guilty  under  these circumstances would be to  convict  him merely because he was smelling of alcohol and depriving  him of  the benefit of doubt which an accused person  is  always entitled  to  in the event of the  facts  and  circumstances being consistent either with his guilt or his innocence.  To

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adopt  the reasoning which appealed to the High Court  would further  be tantamount to laying down that once  an  accused person was shown to have consumed liquor in some form or the other  the  presumption  was that he  had  consumed  validly prohibited  liquor and the onus would be-upon him  to  rebut that presumption by showing that lie had consumed  medicinal or toilet preparation containing alcohol.     The difficulty in the way of the prosecution proving its case  need not deflect the Court from arriving at a  correct conclusion.  If these difficulties are genuinely 627 felt  it would be for the Legislature to step in  and  amend the law.  It would not be the function of the Court to  read something  in the provisions of the law’ which is not  there or  to  find  out a way of  obviating  the  difficulties  in enforcing  the law- howsoever meritorious the intentions  of the  Legislature might be.  If these difficulties were  felt in the matter of enforcing the policy of prohibition by  the State of Bombay the only remedy was to effect the  necessary amendments  when the Bombay Act XXVI of 1952 was enacted  on the  22nd October, 1952, after this Court made the  declara- tion  in  The State of Bombay and Another v. F.  N.  Balsara (supra).     In  my opinion it was not enough for the prosecution  in the  present  case merely to prove that  the  appellant  had taken  alcohol in some form or the other.   The  prosecution ought to have proved that the appellant had in contravention of  the provisions of the Act med an intoxicant meaning  any liquor which consumer regard to the declaration made by this Court having could only be validly prohibited liquor,  i.e., spirits  of wine, methylated spirits, wine, beer, toddy  and all  non-medicinal and non-toilet liquid  preparations  con- sisting  of  or  containing alcohol.  The  evidence  of  the doctor  only  went to show that the appellant  had  consumed alcohol in some form or the other.  That was not enough  and I have therefore come to the conclusion that the prosecution failed to prove that the appellant had committed the offence with which he was charged.     In  view  of  the conclusion reached  above  it  is  un- necessary  to  go into the interesting  question  which  was canvassed before us at some length as to the burden of proof on  the  prosecution as well as the defence  in  a  criminal trial having regard to the provisions of section 105 of  the Evidence  Act  as  also the applicability in  India  of  the principles  enunciated  in Woolmington v.  The  Director  of Public Prosecutions(1).     I  would  therefore  allow the  appeal,  and  quash  the conviction  and  sentence passed upon the appellant  by  the High Court. (1)  [1935] A.C. 462, 628      JAGANNADHADAS   J.-I  have  had  the  benefit  of   the judgments  of both my learned brothers. perusing  But,  with great regret, I feel unable to agree with the view taken  by my learned brother Justice Bhagwati.     Two  questions  of law have been raised  in  this  case, viz.,  (1) on whom does the burden of proof lie to make  out that  the "liquor" consumed by the appellant was or was  not medicinal or toilet preparations though contain ing alcohol, and (2) what is the nature and quantum of proof required  if the  burden is upon the appellant.  The answer  to  question No. 1 depends upon the effect of the decision of this  Court in The State, of Bombay and Another v. F. N. Balsara (supra) which,  while holding that the definition of liquor in  sub- section  (24)  of section 2 of the Bombay  Prohibition  Act,

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1949  (Act XXV of 1949) is valid, has declared  that  clause (b) of section 13 in so far as it affects the consumption or use of medicinal or toilet preparations containing  alcohol, is  invalid.   My learned brother  Justice  Bhagwati,  while holding that the effect of the declaration was not to  alter and  amend section 13(b) of the Act, is of the opinion  that in the light-thereof the prohibition under section 13(b)  is to  be understood to relate (so far as is relevant  for  the present purpose) to consumption or use of "non-medicinal  or non-toilet liquid preparation containing alcohol" and  that, therefore,  the burden lies on the prosecution to  make  out all  the ingredients of the prohibition so  understood  with the  negative thereof On the other hand, my learned  brother Justice Venkatarama Ayyar is of the opinion that the  effect of the decision in The State of Bombay and Another v. F.  N. Balsara  (Supra) is not to amend or alter section 13(b)  but only to render it partly unenforceable, and hence to provide a    defence   to   the   accused,   on   the   ground    of unconstitutionality  in so far as that section is sought  to be  applied to medicinal or toilet  preparations  containing alcohol  and that, therefore, the burden of making  out  the facts required for this plea is on the accused.     I  agree that no legislative function can be  attributed to a judicial decision and that the decision in The State of Bombay and Another v. F. N. Balsara (supra) does not,                             629 proprio  vigore  amend the Act.  The effect  of  a  judicial declaration of the unconstitutionality of a statute has been stated  at  page  10  of  Vol.   I  of  Willoughby  on   the Constitution  of  the  United  States,  Second  Edition,  as follows:      "The  Court does not annul or repeal the statute if  it finds  it  in  conflict with the  Constitution.   It  simply refuses  to recognize it, and determines the rights  of  the parties  just  as if such statute had no  application.   The Court may give its reasons for ignoring or disregarding  the statute,  but  the decision affects the  parties  only,  and there  is no judgment against the statute.  The  opinion  or reasons  for  the court may operate as a precedent  for  the determination of other similar cases, but it does not strike the   statute   from   the  statute  book;   it   does   not repeal............... the statute.  The parties to that suit are concluded by the judgment, but no one else is bound.   A new  litigant may bring a new suit, based on the  very  same statute,  and the former decision............ can be  relied on only as a precedent."     This  and  other similar passages from  other  treatises relate,  however, to cases where the entire  legislation  is unconstitutional  from the very commencement of the  Act,  a situation  which falls within the scope of article 13(2)  of our  Constitution.  They do not directly cover  a  situation which  falls  within article 13(1).  In  the  present  case, though the decision in The State of Bombay and Another v. F. N.  Balsara (Supra) does not by itself bring about a  change in  the  Act, the declarations made therein are  founded  on article  13(1)  and  it is with the effect  thereof  we  are concerned.   The question is what is the effect  of  article 13(1) on a pre-existing valid statute, which in respect of a severable part there. of violates fundamental rights.  Under article  13(1)  such  part is "void" from the  date  of  the commencement  of  the  Constitution, while  the  other  part continues  to  be valid.  Two views of  the  result  brought about  by  this voidness are possible, viz.,  (1)  the  said severable part becomes unenforceable, while it remains  part of the Act, or (2) the said part goes out of the Act and the

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Act  stands -appropriately amended pro tanto.  The first  is the view which appears to have been adopted 81 630 by  my  learned brother, Justice Venkatarama Ayyar,  an  the basis  of  certain American decisions.  I feel  inclined  to agree  with  it.   This  aspect,  however,  was  not   fully presented  by  either side and was only suggested  from  the Bench  in  the  course of arguments.  We have  not  had  the benefit of all the relevant material being placed before  us by  the learned advocates on either side.  The  second  view was the basis of the arguments before us.  It is, therefore, necessary  and  desirable  to deal with this  case  on  that assumption.     The  question,  then, for consideration is what  is  the notional  amendment  which  must be imported  into  the  Act consistently  with the decision in The State of  Bombay  and Another  v.  F. N. Balsara (supra).  The  relevant  portions thereof  are as follows: (1) The definition of  "liquor"  in the  Act  to  its full extent continues  to  be  valid,  (2) section  13(b) of the Act in so far as it relates to  liquid toilet  or  medicinal  preparations  containing  alcohol  is invalid,  and  (3) this portion of the  content  of  section 13(b) is severable.  The argument of the appellant’s learned counsel  is that the essence of the valid prohibition  under section 13(b) now is the consumption or use of liquor  other than  liquid  medicinal or  toilet  preparations  containing alcohol.  - Ha urges, therefore, that section 13(b) must  be taken  to  stand amended accordingly.  The  argument,  if  I understood  it  a right, was that the word  "liquor"  stands amended as "prohibited liquor" or that it must be understood with this limited connotation.  I am unable to see how  this can  be done.  The definition of the word "liquor" with  its inclusive  content remaining intact and valid, that  content has  to be imported wholesale into the meaning of  the  word "liquor"  in section 13(b) and it appears to me that  it  is not  permissible to read it or understand it in a  different sense.  So to read it or understand it would be to import  a new  definition of "prohibited liquor" into the Act  and  to make  the  consumption or use of  "prohibited  liquor",  the offence.   What, however, the Balsara decision has  done  is not to authorise the importation of a new definition and the rewriting of section 13(b).  It keeps section 13(b) intact 631 but  treats  the  consumption or use  of  liquid  toilet  or medicinal  preparations containing alcohol as severable  and takes  such  consumption  or use out of  the  ambit  of  the section   itself   as  the  prohibition   thereof   is   un- constitutional.   This  can  be done and only  done,  in  my opinion,  by  grafting an appropriate exception  or  proviso into section 13(b).     My  learned  brother,  Justice  Bhagwati,  has  in  his, judgment  suggested  that, if it is a question  of  treating section 13(b) as amended,. the amendment can be made in  one of many modes and that there is no reason to choose  between them and that it is not fair to an accused person to read it in  a  manner  throwing  the burden  on  him,  when  a  more favourable mode is open.  The various modes of amendment are indicated  in  the following suggested  reading  of  section 13(b).     "No  person  shall  consume  or  use  spirits  of  wine, methylated  spirits,  wine,  beer,  toddy  and  all  liquids consisting of or containing ’A’  alcohol  as are not or which are not or other  than  or save or except or provided they are not or but shall include

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liquid medicinal or toilet preparations containing alcohol,                              or all  non-medicinal  and non-toilet liquid  ’B’  preparations consisting of or containing alcohol." (The  underlinings  and  markings are  mine).  Now,  if the  relevant portion of the section is recast  in the manner above indicated, in any of the alternative  modes in the portion marked ’A’ above, I have no doubt that  every one  of these modes is only an exception or a proviso  which falls  within  the  specific terms of  section  105  of  the Evidence  Act,  i.e., an exception or proviso  "in  the  law defining the offence." If, on the other hand, the section is treated  as amended by incorporating the portion marked  ’B’ omitting  the  portion marked ’A’, it appears  to  me,  with great  respect, that it is to alter the very content of  the word’ "liquor" in the section, for which I can find no legal justification.  What the decision in The State of Bombay 632 and  Another  v. F. N. Balsara (supra) authorises is,  as  I have  already  explained above, to keep  the  word  "liquor" intact  with its full content and sever from  the  provision taken  as  alcohol  (not  merely  from  the  word  "liquor") medicinal  or  toilet  preparations.   I  feel   accordingly confirmed in the view that I have taken, viz., that this can only be done by engrafting an exception or a proviso.     As  regards  the  other view  suggested  by  my  learned brother   Justice  Bhagwati,  that  without  importing   any alteration  or amendment in the section itself, the same  is to  be understood as having reference to what  maybe  called "prohibited liquor", understanding that word with  reference to the decision in The State of Bombay and Another v. F.  N. Balsara  (supra),  here again, with great  respect,  I  feel difficulty in imputing into a specific statutory provision a meaning different from what its plain words, in the light of the  definition,  indicate.  The decision in  The  State  Of Bombay and Another v. F. N. Balsara (supra), if it does  not bring  about  an amendment in the provision  does  not  also provide any mere aid to interpretation.     The  question  is  not done of  insisting  on  a  merely technical  view of the matter.  I feel unable to  impute  to the  decision  in The State of Bombay and Another v.  F.  N. Balsara  (supra),  taken with article 13(1), the  effect  of rendering section 13(b) unworkable, which certainly was  not intended.   In this view, therefore, (and on the  basis  put forward  by  learned counsel on both sides), the  effect  of article  13(1) on section 13(b) of the Act in the  light  of the  decision  in The State of Bombay and Another v.  F.  N. Balsara (supra) is that it stands amended pro tanto by means of  an  appropriate exception or proviso.  It  follows  that section 105 of the Evidence Act would in terms apply to such a situation.  Thus in either view of the effect’ of  article 13(1) of the Constitution on section 13(b) of the Bombay Act in  the  light of the judgment in The State  of  Bombay  and Another  v. F. N. Balsara (supra) the opinion  expressed  by the learned Judges of the Bombay High Court that the  burden of proof in a case like this lies on the accused is correct. 633      As  regards  the second question that has  been  raised namely as to the nature and quantum of the evidence required to  discharge this burden of proof,  considerable  arguments have been advanced before us.  Our attention has been  drawn to the existence of conflicting decisions in the High Courts on this topic.  On the one side there is the decision of the Full  Bench  of  the  Allahabad High  Court  in  Prabhoo  v. Emperor(1) and on the other, there is a later Special  Bench

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decision of the Bombay High Court in Government of Bombay v. Sakur(2).  In my opinion it is unnecessary for us to resolve that  conflict  in  this case, since, on  either  view,  the finding of the appellate Court that the burden has not  been discharged  on  the  available material seems to  me  to  be correct.   In  particular  it  is to  be  noticed  that  the appellant  put forward a specific defence in Paragraph 8  of the  written statement filed by him into Court in answer  to the  charge.   In support of this defence he  has  given  no proof  of  any  circumstances,  which  must  be  within  his knowledge, to render the defence reasonably probable even if be may not have been able to prove the same strictly to  the hilt.    I  am, therefore, of the opinion that the  conviction  of the appellant under section 66(b) of the Bombay  Prohibition Act, 1949, is correct.  But in the circumstances, it is  not necessary  to  send him back to jail.  I  would,  therefore, reduce  the sentence of imprisonment to the  period  already undergone.   In the result, the appeal has to  be  dismissed subject to this modification.     VENKATARAMA AYYAR J.-I regret that I am unable to  agree with  the view taken by my learned brother, Bhagwati J.  The facts  giving  rise to this appeal have been stated  in  his Judgment which I have had the advantage of reading and it is unnecessary to restate them.  The point for decision shortly is  whether  in  a prosecution under section  66(b)  of  the Bombay  Prohibition Act, XXV of 1949, for  contravention  of section  13(b), the prosecution has to establish not  merely that  liquor  had been taken in some form but  that  further what was taken was not a medicinal preparation.  The (1)  I.L.R. 1941 All. 843. (2)  48 Bom.  L. R. 746; A.I.R. 1947 Bom. 38. 634 learned  Judges of the Bombay High Court held  following  an earlier decision of that Court in Rangrao Bala Mane v. State (supra)  that once the prosecution had established that  the accused  had  taken alcohol in some form it was for  him  to establish that he had taken a medicinal preparation, both on the  ground that it was in the nature of an exception  which it was for the party pleading it to establish under  section 105  of the Evidence Act and that it was a matter  specially within  his  knowledge  and that  therefore  the  burden  of proving  it  lay on him under section 106 of  the  Evidence’ Act.  The appellant challenges the correctness of this deci- sion and contends that it is opposed to the decision of this Court  in The State of Bombay and Another v. F.  N.  Balsara (supra).     It  will be convenient first to refer to  the  statutory provisions  bearing on the question and ascertain  what  the position is thereunder, and then consider how it is affected by  the  decision of this Court in The State Of  Bombay  and Another  v. F. N. Balsara (supra).  The relevant  provisions of the Bombay Prohibition Act are sections 2(24), 13(b)  and 66(b).   Section  2(24) defines "liquor"  as  including  all liquids consisting of or containing alcohol.  Section  13(b) enacts  that  no person shall use or consume  liquor  and  a contravention  of  this provision is made  punishable  under section 66(b).  As medicinal preparations containing alcohol are  liquor  as  defined in section  2(24)  the  consumption thereof  will be an offence punishable under the Act and  it will  be  no answer to a prosecution  for  contravention  of section  13(b)  that  what  was  consumed  was  a  medicinal preparation  and a question of the kind now presented to  us therefore  could not possibly arise under the Act  prior  to the Constitution.

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   I  may next consider the effect of the decision of  this Court  in The State of Bombay and Another v. F.  N.  Balsara (supra)  on the legal position under the Act.  It was  there held  inter  alia  that  section  13(b)  in  so  far  as  it prohibited the consumption of medicinal preparations was  an unreasonable  restriction on the rights of an owner to  hold and enjoy property and was therefore void as being repugnant to article 19 (1) (f) of the 635 Constitution.   The  appellant contends that the  effect  of this  declaration was to remove medicinal preparations  from out  of  the purview of section 13(b);  that’  that  section should  therefore be read as if it had been amended  to  the effect that no person shall use or consume liquor other than medicinal  preparations  or toilets; that in  that  view  no question of the accused having to rely on an exception arose and  no  question of the burden being thrown  on  him  under section  105;  and that as the offence itself  consisted  in consuming  a liquor which was not a  medicinal  preparation, the  burden would lie on the prosecution to  establish  that what  was  consumed was a prohibited liquor.  On  the  other hand, the respondent contends that the definition of  liquor in  section  2(24)  includes not  only  beverages  but  also medicinal  preparations, that the extended definition  would apply  to  section  13(b)  as well,  that  the  immunity  of medicinal preparations containing alcohol from the operation of  the section by reason of the decision in The,  State  of Bombay  and  Another  v.  F.  N.  Balsara  (supra)  must  in consequence  be treated as an exception to it and  that  the ’section should be read as containing a saving in favour  of those  preparations,  in  the  nature  of  an  exception  or proviso, the burden of establishing which under section  105 of  the Evidence Act would be on the accused.  I agree  with the  appellant that section 105 has no application.  We  are not  here concerned with any exception, general or  special, under the Penal Code or any other law defining the  offence. The exception or proviso, if it may be so called, arises  as a  result  of the decision of this Court and not  under  any statute and section 105 cannot therefore in terms apply.  At the same time it is difficult to see how the decision in The State of Bombay and Another v. F. N. Balsara (Supra) can  be considered to effect an amendment of section 13(b) so as  to exclude  medicinal preparations from out of its ambit.   The rival  contentions  which have been presented to us  on  the effect of the decision in The State of Bombay and Another v. F.  N.  Balsara (supra) proceed both of them  on  the  basis that’  section 13(b) has in some manner been amended by  it; according to the appellant, the 636 section  must  be taken to have been  amended  by  excluding medicinal preparations from the word "  liquor"    according to  the respondent, by inserting an exception or proviso  to the section in favour of such preparations.  That,  however, is  not  the correct position.  Decisions of  Court  do  not amend  or  add to a statute.  That is a  purely  legislative function.  They merely interpret the law and declare whether it  is valid or not and the result of a declaration that  it is  not  valid is that no effect could be given to it  in  a Court  of  law.   If  therefore  section  13(b)  cannot   be construed  as  itself amended or modified by reason  of  the decision in The State of Bombay and Another v. F. N. Balsara (supra),   there  is  no  reason  to  hold  that   medicinal preparations containing alcohol, which fell within its scope before,  have  gone  out of it after  that  decision.   This argument therefore does not furnish any ground for  throwing

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the  burden  on  the prosecution under  section  13(  b)  to establish  not merely that what was consumed was liquor  but that it was not a medicinal preparation.      The  question  of  burden of proof  must  therefore  be decided not on the basis of a suppositions amendment of  the section or addition of an exception or proviso to it but  on the language of the section as it stands and with  reference to  Well established principles of law.  Under that  section it is an offence to use or consume liquor and that under the definition in section 2(24) includes medicinal  preparations containing  alcohol.  One of the points raised in The  State of Bombay and Another v. F. N. Balsara (supra) was that  the State Legislature which was competent to legislate on  into- xicating  liquor  could not under that head  of  legislation enact a law in respect of medicinal preparations  containing alcohol  because  the  words  "intoxicating  liquor"   meant beverages   and  not  medicines  but  this  contention   was negatived  by  this  Court  on the  ground  that  the  words "intoxicating  liquor"  had acquired an  extended  sense  as including medicinal preparations containing alcohol and that the  Legislature  was competent while enacting  a  law  with reference to intoxicating liquors to legislate on  medicinal preparations                             637 containing  alcohol.  The definition of "liquor" in  section 2(24)  in  its extended sense having thus been  held  to  be valid,  it  follows that unless there is  something  in  the particular provision to the contrary, the word "liquor" must wherever   it  occurs  in  the  statute  include   medicinal preparations  and that is the meaning which it must bear  in section 13(b).  In The State of Bombay and Another v. F.  N. Balsara  (supra),  it  is  on  the  footing  that  medicinal preparations  are  included in section 13  that  the  entire discussion  on its validity with reference to article  19(1) (f)  proceeds.   We  therefore start with  this  that  under section  13(b),  the Legislature has made it an  offence  to take  alcohol  in  any  form, whether  as  beverages  or  as medicinal  preparations.   That being the  position  and  it having been decided that the section in so far as it relates to  medicinal preparations is void as repugnant  to  article 19(1) (f), the question as to who should prove whether  what was consumed was alcohol or medicinal preparation containing alcohol appears to me to admit of a simple answer.  There is a strong presumption in favour of the constitutionality of a statute   and   it   is  for  those   who   assail   it   as unconstitutional  to  establish it.  The contention  of  the appellant is, when analyzed, that section 13(b) is bad in so far as it hits medicinal preparations containing alcohol  as it  contravenes article 19(1) (f) of the  Constitution,  and the  decision  of  this Court in The  State  of  Bombay  and Another v.. F. N. Balsara (supra) is relied on as supporting it.  But before the appellant can bring himself within  that decision,  he  must establish that what he  consumed  was  a medicinal  preparation.  The plea of unconstitutionality  is not established unless all the elements necessary to sustain such a plea are established ; and as observed by this  Court in   Rao  Shiv  Bahadur  Singh  v.  The  State  of   Vindhya Pradesh(1),  "the burden of making out facts  requisite  for the constitutional invalidity of the convictions" is on  the appellant.  He has therefore to make out as a fact that what he  consumed was a medicinal preparation and as a matter  of law, that section 13(b) is bad in so far as it prohibits it. The decision of this Court concludes the (1)  [1953] S.C.R. 1188,1202. 82

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638 question  in  his  favour so ’far as  the  second  point  is concerned.  But the burden of establishing the first  point, that  in fact what he consumed was a medicinal  preparation, still remains on him.     It  was  argued for the appellant that  this  Court  had declared that section 13(b) was void under article 13(1)  of the  Constitution  in  so far as  it  related  to  medicinal preparations;  that that meant that it was to that extent  a nullity  and that it should in consequence be read as if  it did  not include medicinal preparations.  The  question  is, what  is  the  legal  effect of  a  statute  being  declared unconstitutional.    The  answer  to  it  depends   on   two considerations,-firstly, does the constitutional prohibition which  has  been  infringed affect  the  competence  of  the Legislature to enact the law or does it merely operate as  a check  on  the  exercise  of a power  which  is  within  its competence;  and secondly, if it is merely a check,  whether it  is enacted for the benefit of individuals or whether  it is imposed for the benefit of the general public on  grounds of  public policy.  If the statute is beyond the  competence of  the Legislature, as for example, when a State  enacts  a law  which is within the exclusive competence of the  Union, it would be a nullity.  That would also be the position when a  limitation  is imposed on the legislative  power  in  the interests of the public, as, for instance, the provisions in Chapter  XIII  of the Constitution relating  to  inter-State trade  and  commerce.  But when the law is within  the  com- petence  of  the  Legislature  and  the  unconstitutionality arises by reason of its repugnancy to provisions enacted for the  benefit  of  individuals, it is not a  nullity  but  is merely  unenforceable.  Such an unconstitutionality  can  be waived  and  in that case the law becomes  enforceable.   In America  this  principle  is well setted.  (Vide  Cooley  on Constitutional  Limitations,  Volume 1, pages  368  to  371; Willis  on  Constitutional Law, at pages 524, 531,  542  and 558; Rottschaefer on Constitutional Law, at pages 28 and 29- 30).   In  Shepard  v.  Barron(1),  it  was  observed   that "provisions  of  a constitutional nature, intended  for  the protection of the property owner, may be waived by him."  In Pierce v. Somerset Railway(2), (1)  194  U.S. 553 ; 48 L. Ed.  III5. (2) I71 U.S. 64I ;  43 L. Ed. 316. 639 the  position was thus stated: "A person may by his acts  or omission to act waive a right which he might otherwise  have under  the  Constitution of the United States,  as  well  as under  a  statute."  In Pierce Oil  Corporation  v.  Phoenix Refining Co.(1), where a statute was impugned on the  ground that it imposed unreasonable restrictions on the rights of a corporation  to carry on business and thereby  violated  the rights guaranteed under the Fourteenth Amendment, the  Court observed  "There  is  nothing  in  the  nature  of  such   a constitutional  right  as is here asserted  to  prevent  its being  waived  or  the right to claim it  barred,  as  other rights  may  be,  by  deliberate  election  or  by   conduct inconsistent  with  the  assertion of  such  a  right."  The position must be the same under our Constitution when a  law contravenes  a  prescription  intended for  the  benefit  of individuals.  The rights guaranteed under article 19(1)  (f) are enacted for the benefit of owners of properties and when a  law is found to infringe that provision, it is  open  to. any person whose rights have been infringed to waive it  and when  there  is waiver there is no legal impediment  to  the enforcement  of  the  law.  It would  be  otherwise  if  the

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statute  was  a  nullity; in which case it  can  neither  be waived   nor   enforced.   If  then  the   law   is   merely unenforceable  and can take effect when waived it cannot  be treated  as non est and as effaced out of the statute  book. It is scarcely necessary to add that the question of  waiver is relevant to the present controversy not as bearing on any issue of fact arising for determination in this case but  as showing the nature of the right declared under article 19(1) (f) and the effect in law of a statute contravening it.     Another point of distinction noticed by American jurists between  unconstitutionality  arising by reason of  lack  of legislative competence and that arising by reason of a check imposed  on a competent Legislature may also  be  mentioned. While  a  statute  passed  by a  Legislature  which  had  no competence  cannot  acquire validity  when  the  Legislature subsequently acquires competence, a statute which was within the  competence  of  the  Legislature at  the  time  of  its enactment but (1)  259 U-S- 125; 66 L. Ed. 855. 640     which  infringes a constitutional prohibition  could  be enforced  proprio  vigore  when  once  the  prohibition   is removed.   The  law  is thus stated  in  Willoughby  on  the Constitution of the United States, Volume 1, at page 11:-      "The  validity  of  a statute is to be  tested  by  the constitutional  power  of a legislature at the time  of  its enactment  by that legislature,, and, if thus tested  it  is beyond  the  legislative power, it is  not  rendered  valid, without re-enactment, if later, by constitutional amendment, the necessary legislative power is granted.      However,  it has been held that where an act is  within the  general legislative power of the enacting body, but  is rendered  unconstitutional  by reason of  some  adventitious circumstance,  as for example, when a State  legislature  is prevented  from  regulating a matter by reason of  the  fact that  the Federal Congress has already legislated upon  that matter, or, by reason of its silence, is to be construed  as indicating that there should be no regulation, the act  does not  need to be re-enacted in order to be enforced, if  this cause of its unconstitutionality is removed."     The  authority cited in support of this  observation  is the decision in Wilkerson v. Rahrer(1).  There the State  of Kansas  enacted  a  law  in  1889  forbidding  the  sale  of intoxicating liquors in the state.  Though it was valid with reference  to intra-state sales, it was unconstitutional  in so  far  as it related to inter-State sales.   In  1890  the Congress  passed a legislation conferring authority  on  the States  to enact prohibition laws with reference  to  inter- State trade.  A prosecution having been instituted under the 1889  Act  in respect of sales effected after  the  Congress legislation  of 1890, one of the contentions urged was  that as the State law was unconstitutional when it was enacted it was  void and it could not be enforced even though  the  bar had  been removed by the Congress legislation of  1890.   In repelling this contention the Court observed:-    "  This  is  not  the  case  of  a  law  enacted  in  the unauthorized  exercise  of a power exclusively  confided  to Congress, but of a law which it was competent for (1)  140 U.S. 545 ; 35 L. Ed.572. 641 the State to pass, but which could not operate upon articles occupying  a certain situation until the passage of the  Act of Congress.  That Act in terms removed the obstacle, and we perceive  no  adequate  ground  for  adjudging  that  a  re-

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enactment of the State law was required before it could have the  effect  upon  imported which it  had  always  had  upon domestic property.  "      The  position is thus stated by Cooley in his  work  on Constitutional Law, at page 201 :-     "  A  court’s decision merely decides the case  that  is then  under  adjudication,  and  a  finding  of  unconstitu- tionality does not destroy the statute but. merely  involves a refusal to enforce it."     Rottschaefer,   after  referring  to  the  conflict   of authorities  on  the  point  in the  States  refers  to  the decision in Wilkerson V. Rahrer(1), as embodying the  better view.  This question again, it may be noted, does not  arise as such for determination in this case and is material  only as  showing  that  an  infringement  of  a   constitutional’ prohibition  which  does  not affect  the  competence  of  a Legislature  but is merely a check on its exercise does  not render the law a nullity.    In view of the principles discussed above, the use of the word "void" in article 13(1) is not decisive on the question as to the precise effect of a law being repugnant to article 19(1) (f).  Reference may be made in this connection to  the statement of the law in Corpus Juris, Volume 67, page 263 et seq.,  to  which  counsel for  the  respondent  invited  our attention.  It is there pointed out that the word "void"  in statutes and decisions might mean either that is "absolutely void" or "relatively void" ; that "that is ’absolutely  void which the law or the nature of things forbids to be enforced at all, and that is relatively void’ which the law  condemns as a wrong to individuals and refuses to enforce as  against them";  that  what  is  absolutely  void  is  incapable   of confirmation  and ratification; and that what is  relatively void could be waived.      The true scope of article 13(1) was considered by  this Court in Kesavan Madhava Menon v. State Of (I)  140 U.S. 545 ; 35 L. Ed. 572. 642 Bombay(1).   There the point for determination  was  whether the Constitution was retrospective in its operation.  In the course of his judgment Das J. observed:-    "It should further be seen that article 13(1) does not in terms make the existing laws which are inconsistent with the fundamental  rights void ab initio or for all purposes.   On the contrary, it provides that all existing laws, in so  far as they are inconsistent with the fundamental rights,  shall be void to the extent of their inconsistency.  They are  not void  for all purposes but they are void only to the  extent they    come    into   conflict   with    the    fundamental rights...............  Article  13(1)  cannot  be  read   as obliterating the entire operation of the inconsistent  laws, or   to   wipe  them  out  altogether   from   the   statute book....................  The  effect of  article  13(1)  is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a subsequent  statute. As  already explained, article 13(1) only has the effect  of nullifying  or  rendering  all  inconsistent  existing  laws ineffectual  or  nugatory and devoid of any legal  force  or binding  effect  only  with  respect  to  the  exercise   of fundamental rights on and after the date of commencement  of the Constitution.  "     It  is  true  that  the question  which  the  Court  was considering  there was different from the one which we  have now to decide in this appeal.  But those observations embody a principle which is applicable to the present case as well. In effect, "void" in article 13(1) was construed as meaning,

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in  the  language  of American  jurists,  "relatively  void. Therefore  both on the ground that a judicial  determination does not operate as an amendment of the statute and, on  the ground  that  a declaration that the impugned  law  is  void under article 13(1) as repugnant to article 19(1) (f) merely renders  it  unenforceable,  I am of the  opinion  that  the decision in The State of Bombay and Another v. F. N. Balsara (supra) cannot be held to remove medicinal preparations from out of the purview of section 13(b).  I therefore agree with the learned Judges (1)  [1951] S.C.R. 228. 643 of  the Bombay High Court, though not for the reasons  given by  them,  that the burden of establishing  that.  what  was consumed was a medicinal preparation lies on the appellant.     It was next contended that even if the burden lay on the appellant,to   prove   that  he  had   taken   a   medicinal preparation,  he  must  be  held on  the  evidence  to  have discharged  it because the doctor who examined him at  11-30 P.m.,  on the day of the occurrence stated in  his  evidence that  he was coherent in his speech and could walk  along  a straight line, that the smelling of alcohol could be  caused by  oxidation and that the condition of the  conjunctive  in the eyes could result from street dust.  It was argued  that if the prosecution evidence did not exclude the  possibility of the defence being true, then notwithstanding section  105 of  the Evidence Act the burden which lay on the  posecution of  establishing  the offence had not  been  discharged  and reliance  was  placed  on the  decision  in  Woolmington  v. Director   of   Public  Prosecutions(1),   and   on   Indian authorities   wherein   it   was   followed:   Emperor    v. U.Damapala(2);  Parbhoo  v. Emperor(1).   In  opposition  to these authorities counsel for the respondent relied on the decision  in Government of Bombay v. Sakur(4). The  question is  whether  if  the  burden  lay  upon  the  appellant  the conclusion  of  the  learned Judges that  it  had  not  been discharged  is on the evidence a reasonable one.  If it  is, this  Court  cannot  interfere with it in  an  appeal  under article  136.  It must be noted that the  appellant  himself led  no  evidence in support of the plea.  If at  least  the evidence which the prosecution adduced disclosed facts which would  lend support to the defence, it might then have  been open to the appellant to rely on them without himself having to adduce independent evidence but none such were  elicited. The  learned Judges in the Court below have  approached  the case  from  the correct standpoint and  have  discussed  the entire evidence with a view to find whether on that the (1)  [1935] A.C. 462. (2)  I.L.R. 14 Rang. 666. (3)  I.L.R. 194i All. 843. (4)  A.I.R. 1947 Bom. 38; 48 Bom.  L.R. 616. 644 defence was reasonably probable.  They held that the  giving of coherent answers or walking in a straight line would only show that the appellant was not drunk at that time but would not  show  that  he  had not  consumed  liquor.   They  also remarked  that the appellant could have informed  both  -the sub-inspector  and the doctor who examined him that  he  had taken medicine in which case the police might have been in a position to find out whether there was a medicine bottle  at his  residence  at that time.  If the  learned  Judges  were right  in their view that the burden lay on  the  appellant, their  finding  that it had not been discharged is  not  one which is open to attack.      It was also contended that the trial magistrate  having

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acquitted the appellant, the presumption of innocence  which the  law raises in favour of the accused  became  reinforced and that there were no compelling reasons for the  appellate Court  to  have reversed the order of  acquittal.   But  the judgment  of the trial Court was based on the view that  the burden was on the prosecution to establish that the  accused had  not taken a medicinal preparation and when the  learned Judges  differed  from  that view, they had  to  review  the evidence  afresh  and  decide  whether  the  appellant   had discharged  the burden and their finding on the question  is not vitiated by any misdirection.     In  the  result the conviction of  the  appellant  under section  66(b)  of  the  Bombay  Prohibition  Act  must   be confirmed.    As  regards  the  sentence  of   one   month’s imprisonment  passed on him, it appears that he has  already served 22 days out of it.  The justice of the case does  not require  that  he should be again sent to  jail.   I  would, therefore, reduce the sentence of imprisonment to the period already  undergone.  Subject to this modification, I  am  of the opinion that this appeal should be dismissed.      By  THE Court -Having regard to the  judgments  of  the majority,  the  appeal  will be  dismissed  subject  to  the modification  that the sentence imposed upon  the  appellant will  be reduced to that already undergone.  Bail bond  will be cancelled.                    Appeal dismissed and sentence reduced.                             645 [There  was  an  application for  review  of  the  aforesaid Judgments  under  article 137 of the  Constitution  and  the Hon’ble   Judges   of   the   original   Bench    (Bhagwati, Jagannadhadas   and  Venkatarama  Ayyar  JJ.)   passed   the following  order dated 28th April, 1954, referring the  case for the opinion of the Constitution Bench.] The Order of the Court was pronounced by      BHAGWATI J.-We grant the review and reopen the case  to enable  us  to obtain the opinion of a larger Bench  on  the constitutional  question raised in the judgments  previously delivered  by  us.   Under proviso to  article  145  of  the Constitution,  we  refer  the  following  question  for  the opinion of the Constitution Bench of the Court.    "What  is the effect of the declaration in The  State  of Bombay and Another v. F. N. Balsara(1) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is  void, under  article  13(1) of the Constitution, in so far  as  it affects the consumption or use of liquid medicinal or toilet preparations  containing  alcohol,  on the  ground  that  it infringes article 19(1) (f) of the Constitution?" On  receipt  of the opinion the case will be  taken  up  for further consideration.      [In pursuance of the above reference under the  proviso to article 145(3) of the Constitution their Lordships of the Constitution Bench (Mehr Chand Mahajan C. J., Mukherjea,  S. R. Das, Vivian Bose and Ghulam Hasan JJ.) gave the following Opinion dated 23rd September, 1954.]     MEHR  CHAND  MAHAJAN C.J.-(Mukherjea,  Vivian  Bose  and Ghulam  Hasan JJ. concurring) A Bench of this Court  hearing an  appeal  under  the  provisions  of  Chapter  IV  of  the Constitution  has  referred,  under article  145(3)  of  the Constitution, for the opinion of the Constitution Bench  the following point:-      "What is the effect of the declaration in The State  of Bombay  and Another v. F. N. Balsara(1) that clause  (b)  of section  13  of the Bombay Prohibition Act, 1949,  is  void, under  article  13(1) of the Constitution, in so far  as  it affects the consumption or use of liquid

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(1)  [1952] S.C.R. 682. 83 646 medicinal or toilet preparations containing alcohol, on ,the ground   that  it  infringes  article  19(1)  (f)   of   the Constitution?"      The facts giving rise to the reference are these:  Shri Pesikaka,  the  appellant in the case, was at  the  relevant period,  officiating  Regional  Transport  Officer,   Bombay Region.   On the 29th May, 1951, at about 9-30  P.m.,  while proceeding in his jeep towards Colaba Bus Stand, he  knocked down three persons.  He was arrested by the police and taken to  the  police station and then to St.  George’s  Hospital. The   doctor,   found  his  breath  smelling   of   alcohol, conjunctiva  congested, pupils semi-dilated and reacting  to light,  and  speech coherent.  He could behave  himself  and walk  along a straight line.  In the opinion of  the  doctor the  appellant  did not seem to be under  the  influence  of alcohol, though he had taken alcohol in some form or  other. On  these  facts. the appellant was  prosecuted  for  having committed  offences  under section 338,  Indian  Penal  Code (rash driving), as well as under section 66(b) of the Bombay Prohibition  Act.  In defence it was suggested that  he  had taken  a  medicinal  preparation, B.G.  Phos,  and  had  not consumed any liquor, and that on the night in q question  he had taken at about 9 or 9-15 p.m. after dinner a dose of  B. G. Phos which contained 17 per cent. of alcohol according to its formula.     The   learned   Presidency  Magistrate   acquitted   the appellant on the finding that the prosecution had failed  to establish his guilt under either of the sections under which he  was charged.  With regard. to the offence under  section 66(b)  of the Bombay Prohibition Act, it was  observed  that there were certain medicinal preparations which were allowed to be used by law, and there was no satisfactory evidence to show  that the appellant had not consumed those  tonics  but only liquor for which he ought to have a -permit.  The State of  Bombay appealed against the acquittal order to the  High Court.  The High Court confirmed the acquittal in regard  to the  charge  under  section  338,  Indian  Penal  Code,  but reversed  the  order  acquitting him  of  the  charge  under section  66(b)  of  the Bombay Prohibition  Act  followed  a decision of its own’ Division                             647 Bench in Rangrao Bala Mane v. The State (supra) where it had been held that once it was proved by the prosecution that  a person had drunk or consumed liquor without a permit, it was for that person to show that the liquor drunk by him was not prohibited  liquor, but was alcohol or liquor which  he  was permitted by law to take, e.g., medicated alcohol.  On  this view of the law, on the merits of the case it was held  that the  appellant had failed to prove the existence of  circum- stances  from which the Court could come to  the  conclusion that the liquor which was consumed by the appellant was  not prohibited  liquor  but  liquor which was  excepted  by  the Bombay  Prohibition Act from its operation.  In  the  result the   appellant  was  sentenced  to  one  month’s   rigorous imprisonment and a fine. of Rs. 500.  Against this order  an appeal  was admitted in this Court by special leave and  was heard  by  a  Bench of the  Court  consisting  of  Bhagwati, Jagannadhadas   and  Venkatarama  Ayyar  JJ.  on  the   19th February, 1954.  The learned Judges could not reach an  una- nimous  decision  and  expressed  different  and   divergent opinions.  Bhagwati J. wanted to allow the appeal and  quash the conviction.  He was of the opinion that the onus  rested

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on the prosecution to prove that the liquor consumed by  the appellant  was prohibited liquor under section 13(b) of  the Act  and  that  the prosecution had failed  to  prove  this. This,  in  the  opinion  of  the  learned  Judge,  was   the consequence  of the declaration of unconstitutionality of  a portion  of  section  13(b) by this Court in  The  State  of Bombay and Another v. F. N. Balsara (supra).     Venkatarama  Ayyar dissented from this view.  He was  of the  opinion  that the decision in The State of  Bombay  and Another  v. F. N. Balsara (supra) could not be held to  have the  effect  of taking out medicinal preparations  from  the purview  of section 13(b) and that its effect was merely  to render  that part of the section unenforceable and that  the onus  rested  on  the  accused  to  establish  the  plea  of unconstitutionality,  and it could not be  held  established unless  all  the elements necessary to sustain such  a  plea were  proved and the accused had therefore to make out as  a fact that what he had 648 consumed was a medicinal ’preparation.  On the merits of the case  it was held that the accused had failed  to  discharge the burden that rested on him.  In the result the conviction of the appellant by the High Court was upheld. Jagannadhadas J. agreed in the result reached by Venkatarama Ayyar  J. but on different grounds. lie was of  the  opinion that  the  only way to give full effect to the  judgment  in The,  State Bombay and Another v. F. N. Balsara (supra)  was to engraft an appropriate exception or proviso upon  section 13(b) in the light of that decision.  He considered that The State  of Bombay and Another v. F., N. Balsara  (supra)  did not  import a new definition or re-write section 13(b).   It kept  the  section  intact but treated  the  consumption  of liquid  or  medicinal  preparations  containing  alcohol  as beyond its ambit and thus engrafted an exception or  proviso on  to  section  13(b).   On this  view  of  the  effect  of Balsara’s  decision it was held that the onus rested on  the accused to establish that his case fell within the exception and  he  had failed to discharge that onus.   In  accordance with  the  opinion  of the majority the  conviction  of  the appellant, under section 66(b) of the Bombay Prohibition Act was confirmed and the appeal was dismissed but the  sentence was reduced to that already undergone.     On  a petition for review being presented,  the  learned Judges  -granted  the review on the 26th  April,  1954,  and reopened  the case, to enable them to obtain the opinion  of the  Constitution Bench of this Court on the  constitutional question  formulated  and  mentioned  above.  For  a proper appreciation of the question referred to  us, it  is necessary to set out what this Court decided  In  The State  of Bombay and Another v. F. N. Balsara  (supra).   In that   case  the  constitutional  validity  of  the   Bombay Prohibition  Act (XXV of 1949) was challenged  on  different grounds.   This attack substantially failed and the Act  was maintained  as it was passed, with the exception of  ’a  few provisions  that were declared invalid.  Inter alia,  clause (b)  of section 13 so far as it affected the consumption  or use  of  such medicinal and toilet  preparations  containing alcohol was held invalid. 640 Section  2(24)  of  the Act defined a  "liquor"  to  include spirits  of wine, methylated spirits, wine, beer, toddy  and all  liquids consisting of or containing  alcohol.   Section 13(b)  prohibits the use or consumption of liquor without  a permit.   Section 66(b) which is the penal section  provides that "whoever in contravention of the provisions of this Act

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consumes,  uses  any  intoxicant shall,  on  conviction,  be punished." The appellant was charged under section 66(b)  of the Act for having used or consumed liquor the use of  which was prohibited by section 13(b).  In The State of Bombay and Another  v. F. N. Balsara (supra), the part of  the  section that brought all liquids containing alcohol within its ambit was  declared invalid and the section therefore,  though  it stood  intact as enacted in respect of prohibited liquor  up to the date of the coming into force of the Constitution and qua  non-citizens  subsequently, a part of it  was  declared invalid, and so far as it concerned citizens, qua them  that part of the section ceased to have legal effect.     The  problem now raised is; what is the effect  of  this partial  declaration of the invalidity of section  13(b)  on the  case  of a citizen prosecuted under section  66(b)  for committing  a breach of the provisions of the section  after the  coming into force of the Constitution.  Our opinion  on this  question is that the effect of the declaration in  The State  of Bombay and Another v. F. N. Balsara (supra),  that clause  (b) of section 13 of the Bombay Prohibition  Act  is void under article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations  containing  alcohol,  is  to  render  part  of section  13(b) of the Bombay Prohibition  Act,  inoperative, ineffective  and  ineffectual and thus  unenforceable.   The part  of  the section which has been declared  void  has  no legal  force so far as citizens are concerned and it  cannot be  recognized  as valid law for determining the  rights  of citizens.   In other words, the ambit of the section  stands narrowed down so far as its enforceability against  citizens is  concerned and no notice can be taken of the part of  the section  struck down in a prosecution for  contravention  of the provisions of that section, with 650 the  consequence  that in prosecutions against  citizens  of India  under section 13(b), the offence of contravention  of the  section  can only be proved if it is  established  that they have used or consumed liquor or an intoxicant which  is prohibited  by  that  part of the  section  which  has  been declared valid and enforceable and without reference to  its unenforceable  part.   No notice at all should be  taken  of that  other part as it has no relevance in such an  enquiry, having  no  legal  effect.  In a criminal  case  unless  the prosecution  proves a contravention of a provision  that  is legally  enforceable and valid, it cannot succeed.  No  onus is  cast on the accused to prove that his case  falls  under that part of the section which has been held  unenforceable. The  High  Court  was in error in placing the  onus  on  the accused to prove that he had consumed alcohol that could  be consumed  without  a  permit merely on  proof  that  he  was smelling  of  alcohol.  In our judgment, that  was  not  the correct  approach  to the question.  The  bare  circumstance that a citizen accused of an offence under section 66(b)  is smelling of alcohol is compatible both with his innocence as well as his guilt.  It is a neutral circumstance.  The smell of  alcohol  may  be due to the fact that  the  accused  had contravened  the  enforceable part of section 13(b)  of  the Prohibition  Act.  It may well be due also to the tact  that he had taken alcohol which fell under the unenforceable  and inoperative  part of the section.  That being so, it is  the duty  of the prosecution to prove that the alcohol of  which he was smelling was such that it came within the category of prohibited  alcohols  and  the onus was  not  discharged  or shifted by merely proving a smell of alcohol.  The onus thus cast  on the prosecution may be light or heavy according  to

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the circumstances of each case.  The intensity of the  smell itself  may  be  such that it may negative its  being  of  a permissible   variety.   Export  evidence  may  prove   that consumption   in   small  doses  of   medicinal   or   other preparations  permitted cannot produce the smell or a  state of  body  or mind amounting to drunkenness.  Be that  as  it may, the question is one of fact to be decided according  to the circumstance of each case.  It is open to the accused to prove in defence that what he 651 consumed  was  not prohibited alcohol, but  failure  of  the defence to prove it cannot lead to his conviction unless  it is  established  to  the satisfaction of the  Judge  by  the prosecution that the case comes within the enforceable  part of  section 13(b), contravention of which alone is  made  an offence  under  the provisions of section 66 of  the  Bombay Prohibition Act.  Our reasons for this opinion are these.      The  meaning  to be given to the expression  "void"  in article 13(1) is no longer res integra.  It stands concluded by  the  majority decision in Kesava Madhava  Menon  v.  The State  of Bombay(,).  The minority view there was  that  the word "void" had the same meaning as " repeal" and  therefore a  statute  which came into clash  with  fundamental  rights stood obliterated from the statute book altogether, and that such  a  statute was void ab initio.  The  majority  however held  that  the  word "void" in article  13(1),  so  far  as existing   laws  were  concerned,  could  not  be  held   to obliterate  them from the statute book, and could  not  make such  laws void altogether, because in its opinion,  article 13  had  not  been  given  any  retrospective  effect.   The majority  however held that after the coming into  force  of the Constitution the effect of article 13(1) on such  repug- nant  laws  was  that  it  nullified  them,  and  made  them ineffectual  and nugatory and devoid of any legal  force  or binding  effect.  It was further pointed out in one  of  the judgments representing the majority view, that the  American rule that if a statute is repugnant to the Constitution  the statute is void from its birth, has no application to  cases concerning   obligations  incurred  or  rights  accrued   in accordance  with an existing law that was constitutional  in its  inception, but that if any law was made after the  26th January, 1950, which was repugnant to the Constitution, then the same rule shall have to be followed in India as followed in  America.  The result therefore of this pronouncement  is that the part of the section of an existing law which is un- constitutional  is  not  law, and is  null  and  void.   For determining the rights and obligations of citizens the  part declared void should be notionally taken to be (I)  (1951] S.C.R, 228. 652 obliterated. from the section for all intents and  purposes, though  it may remain written on the statute book and  be  a good law when a question arises for determination of  rights and  obligations incurred prior to 26th January,  1950,  and also for the determination of rights of persons who have not been given fundamental rights by the Constitution.  Thus, in this situation, there is no scope for introducing terms like "relatively void" coined by American Judges in construing  a Constitution  which is not drawn up in similar language  and the  implications  of which are not quite familiar  in  this country.     We are also not able to endorse the opinion expressed by our  learned brother, Venkatarama Ayyar, that a  declaration of unconstitutionality brought about by lack of  legislative power  stands on a different footing from a  declaration  of

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unconstitutionality  brought about by reason of  abridgement of  fundamental rights.  We think that it is not  a  correct proposition  that constitutional provisions in Part  III  of our  Constitution merely operate as a check on the  exercise of  legislative  power.   It  is  axiomatic  that  when  the lawmaking  power  of  a State is  restricted  by  a  written fundamental  law,  then any law enacted and opposed  to  the fundamental  law is in excess of the  legislative  authority and   is  thus  a  nullity.   Both  these  declarations   of unconstitutionality  go to the root of the power itself  and there  is no real distinction between them.  They  represent but   two  aspects  of  want  of  legislative  power.    The legislative  power of Parliament and the State  Legislatures as  conferred  by articles 245 and 246 of  the  Constitution stands  curtailed  by  the  fundamental  rights  chapter  of Constitution.  A mere reference to the provisions of article 13(2)  and  articles 245 and 246 is sufficient  to  indicate that  there  is  no  competency in  Parliament  or  a  State Legislature  to make a law which comes info clash with  Part III  of the Constitution after the coming into force of  the Constitution.  Article 13(2) is in these terms :     "The  State shall not make any law which takes  away  or abridges; the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of  the contravention, be void."                             653     This  is a clear and unequivocal mandate of  the  funda- mental law prohibiting the State from- making any laws which come  into conflict with Part III of the Constitution.   The authority  thus  conferred by articles 245 and 246  to  make laws subject wise in the different Legislatures is qualified by  the declaration made in article 13(2).  That  power  can only  be exercised subject to the prohibition  contained  in article  13(2).  On the construction of article 13(2)  there was  no divergence of opinion between the majority  and  the minority  in  Kesava Madhava Menon v. The  State  of  Bombay (supra).   It was only on the construction of article  13(1) that  the  difference arose because it was  felt  that  that article could not retrospectively invalidate laws which when made were constitutional according to the Constitution  then in force.    Again, we are not able to subscribe to the view that in a criminal  prosecution  it is open to an  accused  person  to waive  his  constitutional  right  and  get  convicted.    A reference. to Cooley’s Constitutional Limitations, Vol.   I, p.  371, makes the proposition clear.  Therein  the  learned professor  says that a party may consent to waive rights  of property,  but the trial and punishment for public  offences are  not  within  the  province  of  individual  consent  or agreement.    In  our  opinion,  the  doctrine   of   waiver enunciated  by  some  American  Judges  in  construing   the American   Constitution   cannot  be   introduced   in   our Constitution without a fuller discussion of the matter.   No inference  in deciding the case should have been  raised  on the  basis of such a theory.  The  learned  Attorney-General when  questioned about the doctrine did not seem to be  very enthusiastic  about  it.   Without  finally  expressing   an opinion on this question we are not for the moment convinced that  this  theory  has  any  relevancy  in  construing  the fundamental   rights   conferred   by  Part   III   of   our Constitution.   We  think  that  the  rights  described   as fundamental  rights  are  a  necessary  consequence  of  the declaration  in the preamble that the people of  India  have solemnly  resolved  to  constitute India  into  a  sovereign democratic  republic  and  to secure  to  all  its  citizens

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justice, social, economic and political; 84 654 liberty  of thought, expression, belief, faith and  worship; equality  of status and of opportunity.   These  fundamental rights  have  not been put in the  Constitution  merely  for individual   benefit,  though  ultimately  they  come   into operation in considering individual rights.  They have  been put  there as a matter of public policy and the doctrine  of waiver  can have no application to provisions of  law  which have  been  enacted as a matter  of  constitutional  policy. Reference  to  some of the articles,  inter  alia,  articles 15(1), 20, 21 makes the proposition quite plain.  A  citizen cannot  get  discrimination by telling the  State  "You  can discriminate",  or get convicted by waiving  the  protection given under articles 20 and 21.     The learned Attorney-General contended that the  correct approach  to  the  question was that there  being  a  strong Presumption  in  favour  of  the  constitutionality,  of   a statute,  it is for those who assail it as  unconstitutional to  establish it, and therefore it was for the appellant  to establish  that the statute was. unconstitutional, and  that unless  he  proved facts requisite  for  the  constitutional invalidity  of  the  conviction he could  not  succeed.   We cannot agree that that is a correct way of judging  criminal cases.   The constitutional invalidity of a part of  section 13(b) of the Bombay Prohibition Act having been declared  by this  Court,  that part of the section ceased  to  have  any legal  effect  in judging cases of citizens and  had  to  be regarded  as null and void in determining whether a  citizen was  guilty of an offence.  Article 141 of the  Constitution declares that the law declared by the Supreme Court shall be binding  on  all Courts within the territory of  India.   In view of this clear enactment there is no scope in India  for the  application  of  the American  doctrine  enunciated  by Willoughby ("The Constitution of the United States" Vol.  I, P. 10), wherein the learned author states, "the  declaration by  a court of unconstitutionality of a statute which is  in conflict with the Constitution affects the parties only  and there  is no judgment against the statute; that the  opinion or  reasons of the court may operate as a precedent for  the determination of other similar cases, but it does 655 not strike the statute from the statute book; the parties to that suit are concluded by the judgment, but no one else  is bound;  a  new litigant may bring a new suit, based  on  the very same statute, and the former decision cannot be pleaded as  an estoppel, but can be relied on only as a  precedent." Once a statute is declared void under article 13(1) or 13(2) by  this Court, that declaration has the force of  law,  and the  statute so declared void is no longer law  qua  persons whose  fundamental  rights are thus infringed.   In  America there  is no similar statutory provision and that being  so, the  doctrine enunciated by the learned author can  have  no application  here.   In  this country once a  law  has  been struck  down as unconstitutional law by a Court,  no  notice can be taken of that law by any Court, and in every case  an accused  person  need  not start proving  that  the  law  is unconstitutional.   The  Court is not empowered to  look  at that  part of the law which has been declared as  void,  and therefore there is no onus resting on the accused person  to prove   that  the  law  that  has  already   been   declared unconstitutional is unconstitutional in that particular case as well.  The Court has to take notice only of what the  law of  the  land  is,  and  convict  the  accused  only  if  he

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contravenes the law of the land.      Our  learned brother, Jagannadhadas J., took  the  view that  the  only  appropriate way of  giving  effect  to  the judgment in The State of Bombay and Another v. F. N. Balsara (supra) was by engrafting an exception or proviso to section 13(b)  in  the light of that decision and that the  onus  of proving  the exception was on the accused person.  This,  in our judgment, is again not a true approach to the  question. As  pointed out by the learned Judge himself, the Court  has no power to re-write the section.  It has to be kept intact. The Court therefore has no power to engraft an exception  or a  proviso on section 13(b) of the Bombay  Prohibition  Act. Apart  from  this circumstance it seems  plain  that  unless there  is  a  power  to make a  law  inconsistent  with  the provisions of Part III of the Constitution, there can be  no power to engraft an exception of the nature suggested by our brother.  An exception or proviso 656 can only be engrafted for the purpose of excluding from  the substantive  part of the section certain matters  which  but for  the proviso would be within it.  But when there  is  no power to enact at all what is proposed to be embodied in the exception,  there  is  no power to  enact  an  exception  by enacting  a  law which the Legislature is not  competent  to make.   The  State  has no power to  make  a  law  abridging fundamental  rights  and  therefore there  is  no  power  to engraft an exception by taking something out of a law  which cannot  be enacted. It is therefore difficult to treat  what was  declared void in The State of Bombay and Another v.  F. N.  Balsara (supra) as an exception to section 13(b) of  the Bombay Prohibition Act and apply the rule enunciated in sec- tion  105 of the Evidence Act to the case of the  appellant. The  only correct approach to the subject is to  ignore  the part of the section declared void by this Court in The State of  Bombay and Another v. F. N. Balsara (supra) and  see  if the  prosecution has succeeded in bringing the offence  home to the accused on the part of the section that remains  good law.      With  the observations made above the opinion  in  this case  is  returned to the Bench which originally  heard  the appeal.     DAS J.-I respectfully beg to differ from the opinion  of the  majority  of this Court just delivered by my  Lord  the Chief  Justice.   It  is,  therefore,  incumbent  on  me  to formulate  my  answer  to  the  question  referred  to  this Constitution Bench and state shortly the reasons in  support thereof.    It  is necessary at the outset to refer to  the  relevant statutory provisions bearing on the question.  The appellant before  us was prosecuted on a charge under section 13  read with section 66(b) of the Bombay Prohibition Act, 1949  (Act XXV of 1949).  The relevant part of section 66(b) of the Act which is the penal section reads as follows: "66.  Whoever in contravention of the provisions of this Act (a)........................... (b)consumes, uses, possesses or transports any intoxicant or hemp, 657 (c)....................................... (d)........................................ shall, on conviction, be punished.............."    By section 2 (22) "intoxicant" is defined as meaning "any liquor,  intoxicating drug, opium or a any  Other  substance which  the  State  Government may, by  notification  in  the Official Gazette, declare to be an intoxicant." Read in  the

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light of this definition consumption, use, etc., of "liquor" is within the mischief of this section.  Further, it will be noticed  that  what is made punishable is  not  consumption, use, etc. of liquor simpliciter but consumption, use,  etc., of liquor "in contravention of the provisions of this  Act." The  prosecution, as the charge shows, relied on section  13 as being the provision of the Act in contravention of  which the consumption, use, etc., was alleged to have been made by the  appellant who was the accused person.  That section  is to be found in Chapter III beaded "Prohibitions".  So far as it is material for our purpose, it runs thus:    "13.  No person shall-- (b)  consume or use liquor; or (c)     By  section 2 (24) "liquor" is defined as  including "(a)  spirits of wine; denatured spirits, wine, beer,  toddy and all liquids consisting of or containing alcohol; and   (b)     any  other intoxicating substance which the  State Government  may,  by notification in the  Official  Gazette, declare to be liquor for the purposes of this Act."      Therefore  the prohibition of section  13(b)extends  to the  consumption  or use of each and everyone of  the  above enumerated  items  which are included in the  definition  of "liquor".   It follows that whoever consumes or uses any  of these  enumerated substances contravenes the  provisions  of section  13(b)  and  consumption  or use  of  any  of  these substances in contravention of this provision is an  offence punishable under section 66(b). 658 The Bombay Prohibition Act containing the above  ,provisions came  into force on the 20th May, 1949.  It is  conceded  on all hands that it was a perfectly valid piece of legislation enacted  well within its legislative competency by the  then Bombay Legislative Assembly.  Then came the Constitution  of India on the 26th January, 1950.  Article 19(1)(f) gives  to all  citizens  the fundamental right to  acquire,  hold  and dispose  of  property.   By  sub-article(5)  however,it   is provided   that  nothing  in  clause(f)  shall  affect   the operation  of any existing law in so far as it  imposes,  or prevent  the State from making any law imposing,  reasonable restrictions on the exercise of the right conferred by  sub- clause (f) either in the interests of the general public  or for the protection of the interests of any Scheduled  Tribe. The  Bombay Prohibition Act, 1949, was an existing law.   By virtue of sub-article (5) the right conferred by  sub-clause (f)  cannot affect the operation of the Act in so far as  it imposes  reasonable  restrictions of the kind  mentioned  in that  sub-article.  If, however, this existing  law  imposes restrictions   which  are  unreasonable  then   it   becomes inconsistent  with the right guaranteed to the  citizens  by article  19(1)(f)  and  consequently  under  article   13(1) "shall,  to the extent of such inconsistency, be void".   It is  beyond  all dispute that it is for the  Court  to  judge whether the restrictions imposed by any existing law or  any Part  thereof  on  the fundamental rights  of  citizens  are reasonable  or unreasonable in the interest of  the  general public  or  for  the  protection of  the  interests  of  any Scheduled  Tribe.  If the Court holds that the  restrictions are  unreasonable  then the Act or the  part  thereof  which imposes  such unreasonable restrictions comes into  conflict and  becomes  inconsistent with the fundamental  right  con- ferred on the citizens by article 19(1)(f) and is by article 13(1). rendered void, not in toto or for all purposes or for all persons but "to the extent of such inconsistency", i.e., to  the extent it is inconsistent with the exercise of  that

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fundamental  right  by the citizens.  This  is  plainly  the position, as I see it.    Shortly  after the commencement of the  Constitution  the validity of the Bombay Prohibition Act  was 659 challenged in its entirety.  One F. N. Balsara, claiming  to be  an Indian citizen prayed to the High Court,  at  Bombay, infer  alia,  for a writ of mandamus against  the  State  of Bombay and the Prohibition Commissioner ordering them (i) to forbear  from  enforcing against him the provisions  of  the Prohibition Act and (ii) to allow him to exercise his  right to  possess,  consume  and  use  certain  articles,  namely, whisky, brandy, wine, beer, medicated wine,  eau-de-cologne, lavender   water  and  medicinal   preparations   containing alcohol.   The  High  Court,  agreeing  with  some  of   the petitioner’s   contentions  and  disagreeing  with   others, declared some of the provisions of the Act to be invalid and the  rest  to be valid.  Both the State of  Bombay  and  the petitioner, Balsara, appealed to this Court after  obtaining a  certificate from the High Court under article  132(1)  of the  Constitution.   The  judgment of this  Court  in  those appeals was pronounced on the 25th May, 1951.  See The State of  Bombay and Another v. F. N. Balsara (supra).  So far  as it is material for our present purpose this Court held-     (1)   that  under  entry 31 of List II  of  the  Seventh Schedule   to  the  Government  of  India  Act,  1935,   the Provincial  Legislatures  had the power to  make  laws  with respect  to  "intoxicating  liquors, that  is  to  say,  the ’production,  manufacture, possession,  transport,  purchase and sale of intoxicating liquors" and there was,  therefore, no  legislative  incompetency in the Bombay  Legislature  to enact the Bombay Prohibition Act, 1949;    (2)    that  the word "liquor" as understood in India  at the  time of the Government of India Act, 1935, covered  not only  those  alcoholic liquids which are generally  used  as beverages   and  produce  intoxication,  but  also   liquids containing   alcohol  and,  therefore,  the  definition   of "liquor"  contained  in section 2(24) of the  -Act  was  not ultra vires, and    (3)    that  the restrictions imposed by sections 12  and 13  of the Act on the possession, sale, use and  consumption of   liquor   were  not  reasonable  restrictions   on   the fundamental right guaranteed by article 19(1)(f), so far  as medicinal and toilet preparations containing 660 alcohol  were  -concerned and that the  said  sections  were invalid so far as they prohibited the possession, sale, use. and  consumption of these articles, but that those  sections were  not  wholly  void  on  this  ground  as  the   earlier categories  mentioned in the definition of liquor,  -namely, spirits  of  wine, methylated spirit, wine, beer  and  toddy were distinctly separable items which were easily  severable from  the  last  category, namely,  all  liquors  containing alcohol  and further that the last category of "all  liquids consisting  of or containing alcohol" were again capable  of being  split  up  in several  sub-categories,  e.g.,  liquid medicinal and toilet preparations containing alcohol and the restrictions on the possession, sale, use and consumption of the  earlier categories and all liquids  containing  alcohol other  than  medicinal  and  toilet  preparations  were  not unreasonable.  In  the result this  Court  declared  certain provisions  of  the  Act invalid.   Amongst  the  provisions declared  invalid was section 13(b), but it was so  declared only  "so far as it affects the consumption or use  of  such medicinal and toilet preparations containing alcohol."  This

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declaration, no doubt, was made pursuant to article 13(1) of the  Constitution.  The very foundation of this  declaration was that the prohibition imposed by this section against the consumption   or   use  of  liquid   medicinal   or   toilet preparations was an unreasonable restriction on the exercise of  the fundamental right of citizens to acquire,  hold  and dispose of property which in that case was liquid  medicinal or  toilet  preparations containing alcohol’  The  law  thus declared  by this Court is, by virtue of article 141 of  the Constitution, binding on all Courts within the territory  of India.     The  offence  with which the appellant was  charged  was alleged  to have been committed on the 29th May, 1951,  that is  to  say,  four  days after  this  Court  pronounced  its judgment in The State of Bombay and Another v. F. N. Balsara (supra).   On the 22nd April, 1952, the  learned  Presidency Magistrate  acquitted the appellant of that charge with  the following remark:    "The evidence also does not go to show conclusively  that the accused had consumed alcohol without a permit There are. certain medicinal preparations which are                             661 allowed  to  be used by law and there must  be  satisfactory evidence  to  show that the accused has not  consumed  those tonics but only liquor for which he ought to have a permit."    The  State appealed to the High Court against this  order of  acquittal.   The High Court following  its  own  earlier decision in Rangrao Bala, Mane v. State (supra) reversed the order of the Presidency Magistrate.  Neither in the judgment of  the  Presidency Magistrate nor in the  judgment  of  the Court  was any reference made to the decision of this  Court in The State of Bombay and Another v. F. N. Balsara (supra). The  appellant came up to this Court in appeal after  having obtained special leave from this Court.    The appeal came up for hearing before a Division Bench of this   Court  consisting  of  Bhagwati,  Jagannadhadas   and Venkatarama  Ayyar  JJ.  Bhagwati J. clearly and, if  I  may respectfully  say so, correctly accepted the  position  that the  declaration made by this Court in The State  of  Bombay and  Another  v.  F.  N. Balsara  (supra)  "was  a  judicial pronouncement and that even though under article 141 of  the Constitution  the law declared by this Court was binding  on all  Courts  in India and is to be the law of the  land  the effect  of  that declaration was not to enact  a  -statutory provision  or to alter or amend section 13(b) of  the  Act." Having  accepted this position the learned  Judge  logically and, again I say with respect, correctly repelled the  argu- ment that the result of the decision in The State of  Bombay and  Another v. F. N. Balsara (supra) was to introduce,  not in  terms but in effect, an exception or proviso to  section 13(b) and that consequently the onus lay on the appellant to prove  the  existence  of circumstances  bringing  his  case within the exception or proviso as laid down in section  105 of the Evidence Act.  The learned Judge, however, observed:-     "The  only  effect  of  the  declaration  was  that  the prohibition enacted in section 13(b) was to be enforce. able in  regard to the consumption or use of  validly  prohibited liquor,  i.e.,  spirits of wine, methylated  spirits,  wine, beer, toddy and all non-medicinal and  85 662 non-toilet  liquid preparations consisting of or  containing alcohol.  The prohibition which was enacted in section 13(b) against the consumption or use of liquor could in the  light of  the  declaration made by this Court only  refer  to  the

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consumption  or  use  of validly  prohibited  liquor,  i.e., spirits  of wine, methylated spirits, wine, beer, toddy  and all   non-medicinal  and  non-toilet   liquid   preparations consisting  of or containing alcohol, and that was the  only prohibition which could be enforced under the section  13(b) and the penal section 66(b)."     The learned Judge proceeded to illustrate how the effect of the declaration could be worked out:    "The  effect  of  the declaration on  the  provisions  of section  13(b) could be worked out in any of  the  following modes:   No person shall consume or use spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of  or containing alcohol as are not or which are not or other than or save or except or provided they are not or but shall  not include  liquid medicinal or toilet preparations  containing alcohol   or   all  non-medicinal  and   non-toilet   liquid preparations consisting of or containing alcohol.     When  these  several interpretations  were  possible  in regard to the effect of the declaration on the provisions of section,13(b),   where  would  be  the   justification   for interpreting  the  effect of the declaration to be  that  of grafting  an exception or proviso on section 13(b) so as  to attract  the operation of the provisions of section  105  of the   Evidence   Act9  It  is  clear  that   where   several interpretations  are  possible, the Court  should  adopt  an interpretation  favourable to the accused, rather  than  one which casts an extra or special burden upon him, which if at all  should  be done by clear and unequivocal  provision  in that  behalf rather than in this indirect manner. (See  also In re Kanakasabai Pillai)(1)."    With  the utmost respect to the learned Judge, the  modes of  working out the effect of the declaration  indicated  by him  clearly involve the acceptance of one or other  of  the different  forms  of  amendment  of  the  section,  although according to his views expressed (1)  A.I. R. 1940 Mad.  I.                             663 earlier  in his judgment the effect of the  declaration  was not to alter or amend section 13(b) of the Act.  Venkatarama Ayyar  J., however, took the view that as the Court  had  no legislative function and as judicial decisions did not amend or  add  to  a statute but merely interpreted  the  law  and declared  whether  it  was valid or not,  the  result  of  a judicial declaration that a statute or any part thereof  was not valid was only that no effect could be given to it in  a Court  of law but that it did not mean that the  statute  or the  part thereof declared void had gone out of the  statute book after the Court’s decision.  He also held that  section 105 of the Evidence Act would not in terms apply as  article 19(1)(f)  could not be said to form an exception to  section 13(b).   He  rested  his decision on  the  ground  that  the inclusive definition of "liquor" adopted in section 2(24) of the Act having been held to be within entry 31 in List II of the  Seventh Schedule to the Government of India Act,  1935, and,   therefore,   valid,  that  meaning  should   be   its connotation  in  section 13(b) as well and  that  under  the section so read the offence would be established as soon  as consumption  or use of "liquor" so defined  was  established and  that  the  plea that what was  consumed  was  medicinal preparation  containing alcohol was really a plea  that  the section,  in  so far as it prohibits consumption or  use  of liquid medicinal or toilet preparations containing  alcohol, infringed  the  citizens’ fundamental  right  under  article 19(1)(f) and was, therefore, unconstitutional as declared by

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this Court.  His view was that it was for those who  pleaded unconstitutionality  to  establish all  the  elements  which would  go  to establish that plea.   Jagannadhadas  J.  felt inclined to agree with the view of Venkatarama Ayyar J.  but as  that aspect of the matter had not been fully  argued  he passed  on  to the argument canvassed before  them,  namely, that  the part of the section declared invalid went  out  of the  Act and the Act stood appropriately amended pro  tanto. This,  according  to the learned Judge, involved,  that  the word  "liquor" stood amended as "prohibited liquor" or  that it was to be understood with this limited connotation.  This argument  he could not accept.  His view was that  what  the decision in The, State of Bombay and Another v. 664 F.   N.  Balsara (supra) had done was not to authorise  ,the importation  of a new definition or to rewrite  the  section but, leaving the section intact, to treat the consumption or use  of liquid medicinal or toilet  preparations  containing alcohol  as taken out of the ambit of the section itself  as the   prohibition  thereof  was   unconstitutional.    This, according  to  the  learned Judge, could  only  be  done  by grafting  an appropriate exception or proviso  into  section 13(b).    The  result  of the hearing before that  Bench  was  that Bhagwati  J.  held  that the appeal should  be  allowed  but Jagannadhadas and Venkatarama Ayyar JJ. were for  dismissing the appeal.  An application for review was, however, made on the ground that the judgments of the learned Judges involved a decision on constitutional matters which that Bench had no jurisdiction to decide but which could only be dealt with by a  Constitution Bench.  By an order made on the 26th  April, 1954,  under the proviso to sub-article (3) of  article  145 that  Bench accordingly referred the following question  for the opinion of the Constitution Bench, namely:    "What  is the effect of the declaration in The  State  of Bombay and Another v. F. N. Balsara (supra) that clause  (b) of section 13 of the Bombay Prohibition Act, 1949, is  void, under  article  13(1) of the Constitution, in so far  as  it affects the consumption or use of liquid medicinal or toilet preparations  containing  alcohol,  on the  ground  that  it infringes article 19(1)(f) of the Constitution?"    The  effect  of a judicial declaration of  a  statute  as unconstitutional  has been stated by Field J. in -Norton  v. Shelby County(1) to be that the statute is no law and  that, in  legal contemplation, it is to be treated as  inoperative as  though  it  had  never  been  passed.   Cooley,  in  his Constitutional Limitations, Volume 1, page 382, has  adopted this dictum of Field J. and expressed the view that where  a statute  is adjudged to be unconstitutional it is as  if  it had  never been.  I am unable to accept the  proposition  so widely  stated.  Even American text book writers  have  felt that the statement of (1)  118 U.S. 425; 30 L, Ed.  I78. 665 Field J. needs to be somewhat qualified. (See, Willoughby on the Constitution of the United States, Volume 1, page 11 and Willis  on  Constitutional Law, page 890).  The  dictum,  it will be observed, related to a statute which was made  after the  commencement  of  the Constitution  and  which  was  in violation of the provisions of the Constitution.  It  cannot obviously apply to a case where a statute which was  enacted before  the commencement of the Constitution is declared  to have become unconstitutional and void.  In such a  situation it  cannot be said that the judicial declaration means  that

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such  a  statute  is void for all  purposes  including  past transactions that took place before the commencement of  the Constitution.   The Bombay Act was an existing law  and  the declaration  in  The State of Bombay and Another  v.  F.  N. Balsara  (supra)  cannot and does not affect  anything  done under the Act prior to the commencement of the Constitution. It will be further noticed that the decision in The State of Bombay and Another v. F. N. Balsara (supra) does not declare the entire Act or even the entire section 13(b) to be  void. It  only declares void a part of section 13(b), that  is  to say  only  that part of it which prohibits  a  citizen  from consuming   or  using  only  liquid  medicinal   or   toilet preparations  containing  alcohol.   The  section,  in   its entirety,  is  still enforceable  against  all  noncitizens. Even as against citizens the prohibition of the section with respect to the consumption or use of the earlier  categories of  liquor,  namely, "spirits of  wine,  denatured  spirits, wine, beer, toddy"’ is fully operative.  Moreover, even  the prohibition against consumption or use of the last  category of liquor, namely, "all liquids consisting of or  containing alcohol"  remains operative even as against citizens  except in  so  far  as it prohibits them from  consuming  or  using liquid medicinal or toilet preparations containing  alcohol. In   such   a  situation  the  passages   from   Cooley   on Constitutional  Limitations and the dictum of Field  J.  can have no application.  This is put beyond controversy by  the decision of this Court in Keshava Madhava Menon v. The State of  Bombay (supra).  The Bombay Act being an  existing  law, the declaration made by 666 this  Court  in The- State of Bombay and Another v..  F.  N. Balsara  (supra)  must  be taken to have  been  made  under- article  13(1).   The  article does not in  terms  make  the existing  laws which are inconsistent with  the  fundamental rights void ab initio or for all purposes.  The  declaration in The State of Bombay and Another v. F. N. Balsara (supra), as  I  understand it, is that the prohibition  contained  in section  13(b)  against  the  consumption  or  use  of   one particular  variety  of liquid Consisting of  or  containing alcohol,  namely,  liquid medicinal or  toilet  preparations containing  alcohol imposes an unreasonable  restriction  on the exercise of a citizen’s fundamental right under  article 19(1)  (f) and is, therefore, unconstitutional and  as  such void to that extent.  The result of it is that the  prohibi- tion  of  that  part of section 13(b)  will  be  ineffective against  and inapplicable to a citizen who consumes or  uses liquid medicinal or toilet preparations containing  alcohol. No part of the section is obliterated or scratched out  from the statute book or in any way altered or amended, for  that is not the function of the Court.  The judicial  declaration that a art of the section is unconstitutional and void  only nullifies  that offending Part in the sense that it  renders that part ineffective against and inapplicable to a  citizen who consumes or uses liquid medicinal or toilet preparations containing alcohol in exercise of his fundamental right.  In other words, when a citizen is charged with an offence under section 66(b) read with section 13(b) he will be entitled to say-"I  am  a  citizen of India.  I have  consumed  or  used liquid medicinal or toilet preparations containing  alcohol. I am entitled to do so under article 19(1) (f).  The Supreme Court  has  in  The State, of Bombay and Another  v.  F.  N. Balsara (supra) declared the law, namely, that in such  cir- cumstances  the  prohibition  of section 13(b)  is  void  as against me with respect to such consumption or use of liquid medicinal or toilet -preparations containing alcohol "  This

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plea,  if  substantiated, will be a complete answer  to  the charge.   In  short,  the  judicial  declaration  serves  to provide  a  defence to a citizen who has  consumed  or  used liquid medicinal or toilet preparations 667 containing  alcohol.  Test the matter in this way.   Suppose after  the declaration a person is charged with  an  offence under  section 66(b) read with section 13(b) and in  such  a case  the  prosecution  proves that the  accused  has  taken alcohol  in  some form or other, as is the evidence  of  the doctor  in the present case.  What is to happen  if  nothing further  is  proved  by either party ?  Surely,  in  such  a situation  a conviction must follow.  If the accused  person desires  to avail himself of the benefit of the  declaration in The State of Bombay and Another v. F. N. Balsara (supra), surely he must prove first of all that he is a citizen.  The onus of this clearly lies on the accused.  The next question is  whether that is the only onus that lies on the  accused. To my mind he has to allege and prove not only that he is  a citizen but that he has consumed or used liquid medicinal or toilet  preparations  containing alcohol and it is  only  on such proof that he can claim the benefit of the  declaration of  law  made in The State of Bombay and Another  v.  F.  N. Balsara  (supra) and establish his defence.  The very  basis of  that declaration is that a citizen has  the  fundamental right   to  consume  or  use  liquid  medicinal  or   toilet preparations containing alcohol and section 13(b) in so  far as   it  prohibits  such  consumption  or  use  imposes   an unreasonable  restriction  on his  fundamental  right  under article  19(1) (f).  In other words, the on us is on him  to establish the situation or circumstances in which that  part of the section which has been declared to be void should not be applicable to him.  If he establishes the fact that he is a citizen and that he has consumed or used such liquid, then the declaration in The State of Bombay and Another v. F.  N. Balsara  (supra)  will establish the law, namely,  that  the prohibition  of section 13(b) and the penalty under  section 66(b) are not applicable to him being inconsistent with  his fundamental   right.   To  say  that  after   the   judicial pronouncement the section should be read qua a citizen as if liquid  medicinal  or toilet preparations are not  there  or that  the  ambit  of  the offence has  narrowed  down  to  a prohibition  against  the  consumption or use  of  only  the earlier categories of liquor set forth in the definition is, to my mind, 868 tantamount  to  saying, covertly if not openly  ,  that  the judicial  pronouncement  has  to  that  extent  amended  the section.  To say that after the declaration the offence  has become  limited  to  the consumption or  use  of  prohibited liquor  is  to  alter  or amend  the  definition  of  liquor although it has been held to be valid.  I repeat that it  is not  within  the competence of a Court to alter or  amend  a statute and that the effect of the declaration made by  this Court  in The State of Bombay and Another v. F.  N.  Balsara (supra)  is not to lift or take away or add anything out  of or to the section at all.  What it does is to declare, as  a matter  of  law, that in a certain situation,  namely,  when liquid  medicinal or toilet preparations containing  alcohol are consumed or used, a certain part of section 13(b),  that is  to say, that part of it which prohibits the  consumption or use of liquid medicinal or toilet preparations containing alcohol,  shall be void qua a particular class  of  persons, namely,  citizens.  In other words, the declaration  in  The State Of Bombay and Another v. F. N. Balsara (supra)  serves

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to  provide a defence only to a citizen who has consumed  or used liquid medicinal or toilet preparations.  It is for the accused  person, who seeks to ward off the applicability  of the section to him by having resort to the declaration  made in The State of Bombay and Another v. F. N. Balsara (supra), to  establish the situations or circumstances on which  that declaration  is founded.  In short a person  who  challenges the   validity  of  the  section  on  the  ground   of   its unconstitutionality has the advantage of the declaration  as a  matter of law but the facts on which that declaration  is based have nevertheless to be established in each particular case  where the declaration is sought to be availed  of.   I answer the question referred to us accordingly.     It  has been strenuously urged before us, as before  the Division  Bench, that such a view as to the effect  of  this Court’s declaration will run counter to the well established principle  of  criminal  jurisprudence  that  the  onus   of establishing the charge is always on the prosecution, for it will throw the burden of proof on the accused person.   This argument has considerably impressed Bhagwati J. and has also weighed with my                             669 learned  colleagues on the present Bench.  It  is,  however, not  unusual  in  certain classes of  cases  or  in  certain circumstances to throw the onus of proof of a defence on the accused  person.   Section  105 of the Evidence  Act  is  an instance in point.  Section 114, ill. (a) of the same Act is another  provision to which reference may be made.   Section 103 of this very Bombay Prohibition Act raises a very strong presumption of guilt and throws the burden on the accused to prove  his innocence in certain cases.  Take section  96  of the Indian, Penal Code which says-      "  Nothing is an offence which is done in the  exercise of the right of private defence.  "      Nobody  will  contend that this  section  requires  the prosecution to prove that the acts constituting the  offence charged against the accused were not done in the exercise of the  right  of  private defence.  It is  obvious  that  this section serves to provide the accused person with a  defence and  if  the accused person can prove that he did  the  acts complained  of in defence of his person or property  and  if the acts were reasonable in the circumstances of the case he establishes  his defence.  It is not necessary  to  multiply instances.  It seems to me that the declaration in The State of  Bombay  and  Another v. F. N. Balsara  (supra)  gives  a citizen who has consumed or used liquid medicinal or  toilet preparations containing alcohol a defence to a charge  under section  66(b)  read  with  section  13(b)  of  the   Bombay Prohibition  Act, but it is for the accused person to  prove the  facts on which that declaration of law is  founded.   I see  no hardship whatever in this, for the  requisite  facts are  within  his special knowledge.  To adopt  the  contrary view will be to ignore the sound principle well  established in  law that a judicial declaration of invalidity  does  not repeal, alter or amend a statute.    As  I  hold that the declaration does not operate  as  an amendment  of  the  section, I must  logically  hold,  ’with respect to the view of Jagannadhadas J. that the declaration cannot be treated as having grafted an exception or  proviso to section 13(b). 86 670 In  coming to the conclusion that I have, I have in a  large measure  found  myself  in  agreement  with  the  views   of Venkatarama Ayyar J. on that part of the’ case. 1,  however,

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desire  to  guard myself against being understood  to  agree with  the  rest  of  the observations to  be  found  in  his judgment,   particularly   those  relating  to   waiver   of unconstitutionality,  the  fundamental rights being  a  mere check on legislative  power or the effect of the declaration under article 13(1) being "relatively void." On those topics prefer to express no opinion on this occasion.     BY  THE COURT.-The reference is answered  in  accordance with the opinion of the majority.    [After   the  opinion  of  the  Constitution  Bench   the following Order, dated 24th September, 1954, was  pronounced by   a  Bench  composed-  of  Bhagwati,  Jagannadhadas   and Venkatarama Ayyar JJ. who had originally heard the appeal.]    The Order of the Court was pronounced by  BHAGWATI  J.-We have received the opinion expressed by  the Constitution  Bench.   According to that opinion,  which  is expressed  in  the majority judgment, the onus  lay  on  the prosecution  to prove that the alcohol of which the  accused was  smelling was such that it came within the -category  of prohibited alcohols.     We  have  heard  the  learned  Attorney-General  on  the question  whether that onus has been discharged and  he  has frankly  conceded that on the material placed before  us  it cannot  be urged that that onus has been discharged  by  the prosecution.     The  result,  therefore, is that the conviction  of  the appellant  will  be quashed and the fine, if paid,  will  be refunded.                            Conviction set aside. 671