25 May 1951
Supreme Court


Case number: Appeal (civil) 182 of 1951






DATE OF JUDGMENT: 25/05/1951


CITATION:  1951 AIR  318            1951 SCR  682  CITATOR INFO :  F          1952 SC  75  (21,54,70)  RF         1952 SC 123  (45)  F          1953 SC 156  (49)  F          1953 SC 333  (13)  R          1955 SC  58  (6)  E          1955 SC 123  (6,7,9,17,20,21,22,23,24,25,27  R          1955 SC 191  (5)  F          1957 SC 503  (15,16)  F          1957 SC 628  (12,14,19,20,21)  R          1957 SC 877  (16)  D          1957 SC 927  (9)  R          1958 SC 328  (22)  R          1958 SC 468  (44A)  E          1958 SC 538  (11,12,17)  F          1958 SC 560  (20)  RF         1958 SC 578  (211)  R          1959 SC 648  (21)  R          1960 SC 554  (9)  RF         1963 SC 703  (37,43)  D          1963 SC1470  (7)  R          1963 SC1531  (4,5)  RF         1964 SC 648  (48)  R          1966 SC 722  (7)  RF         1967 SC1110  (16)  F          1968 SC 888  (6)  RF         1970 SC 564  (53)  RF         1972 SC 425  (10)  RF         1973 SC1461  (456,616,742,1212,1218)  R          1974 SC 543  (30,32)  RF         1975 SC 360  (19,24)  F          1975 SC1121  (44,53)  R          1977 SC 722  (29)  E          1978 SC 449  (29)  F          1978 SC 771  (13,44)  RF         1980 SC 614  (10,11,12,15,16)  RF         1980 SC1789  (121)  RF         1981 SC 873  (33)  RF         1981 SC1863  (15,17)  R          1983 SC1019  (52)  RF         1986 SC 987  (2)  RF         1986 SC1541  (9)  RF         1988 SC 771  (5)



E          1990 SC1927  (27,28,29,41,56,67,73,75,76)  RF         1990 SC2072  (48)  RF         1991 SC 672  (33)  RF         1992 SC1277  (85)

ACT:     Bombay  Prohibition  Act (XXV  of  1949)--Constitutional validity  --Applicability  of  Act  to  foreign  liquors--To medicinal and toilet preparations containing alcohol--Valid- ity of ss. 2(24) (a), 12, 13, 23, 24, 39, 40(1) (b), 46, 52, 53, 139 (c)--Law of Province prohibiting possession and sale of  foreign  liquor within Province--Whether  encroaches  on power   of  Dominion  to  make  laws  as  to   "import   and export"--Doctrine  of  original  package--Applicability   to India--Construction  of  Lists--Restriction  on  fundamental right  "to  acquire, hold and dispose of  property"  and  to "equal  protection of the laws" --Government of  India  Act, 1935, s. 297 (4), Seventh Sched., List I entry 19 --List  II entry 31--Constitution of India, Arts. 14, 19(1), 19 (2).

HEADNOTE:      Under  entry 31 of List II of the Seventh  Schedule  to the  Government of India Act, 1935, the Provincial  Legisla- tures had the power to make laws in respect of "intoxicating liquors,  that is to say, the production, manufacture,  pos- session,  transport, purchase and sale of intoxicating  liq- uors" and under entry 19 of List I, the Dominion Legislature had  the  power  to make laws with respect  to  "import  and export across customs frontiers". The constitutional validi- ty  of  the Bombay Prohibition Act, 1949, in so  far  as  it restricted  the possession and sale of foreign  liquors  was impugned  on the ground that it was an encroachment  on  the field assigned to the Dominion Legislature under entry 19 of List I:     Held, (i) that the words "possession and sale" occurring in  entry 31 of List II must be read without any  qualifica- tion,  and the word "import" in entry 19 of List 1  standing by itself will not include either sale or possession of  the article  imported into the country.  There was thus no  con- flict between entry 31 of List i1 and entry 19 of List I and the  Bombay  Prohibition Act, in so far as it  purported  to restrict the possession and sale of foreign liquors, did not encroach  upon the field of the Dominion  Legislature;  (ii) even assuming that the prohibition of purchase, use, 683 possession,  transport  and sale of liquor will  affect  its import, the Bombay Prohibition Act was in pith and substance an Act falling within entry 31 of List II and the fact  that the  law  incidentally  encroached upon the  powers  of  the Dominion  Legislature  under entry 19 of List  I  would  not affect its validity.     The  American doctrine of "original package" which  laid down that importation was not over so long as the goods were still  in the original package, has no application in  India having  regard  to the scheme of legislation that  has  been outlined  in the Government of India Act, 1935, and  in  the present  Constitution  in which the various entries  in  the Legislative  Lists have been expressed in clear and  precise language.     Bhola  Prasad  v. The King Emperor [1942] F.C.R  17  and Miss Kishori Shetty v. The King [1949] F.C.R. 650 relied on. In  re the Central Provinces and Berar Act No. XIV  of  1938



[1939] F.C.R. 18, The United Provinces v. Atiqa Begum [1940] F.C.R.  110,  Governor.  General  in  Council  v.   Province o/Madras  [1945] F.C.R. 179,  Prafulla Kumar  Mukherjea  and Others v. Bank of Commerce, Khulna [1947] F.C.R. 28, Subrah- manyan  Chettiar  v. Muthuswami Goundan  [1948]  F.C.R.  207 referred  to: Brown v. Maryland (25 U.S. 419) and  Leisy  v. Hardin (135 U.S. 100)distinguished.     The  Bombay Prohibition Act, 1949, does not in  any  way contravene the provisions of s. 297(1) (a) of the Government of  India  Act. 1935, inasmuch as it is not a  law  made  by virtue  of the entry relating to "trade and commerce  within the Province" (entry 2 of List II) or the entry relating  to "the  production,  supply and distribution  of  commodities" (entry  29 of List If). Bhola Prasad v. King Emperor  [1942] F.C.R. 17 followed.     The word "liquor" as understood India at the time of the Government   of  India  Act,  1935,  covered not only  those alcoholic liquids which are generally used as beverages  and produce  intoxication,  but  also  all  liquids   containing alcohol;  the definition of" liquor" contained in s. 2  (24) of the  Bombay Prohibition Act, 1949, is not therefore ultra vires. Section 39 of the Act which empowers the Provincial  Govern- ment  to permit the use or consumption of foreign liquor  on cargo  boats,  warships and troopships and in  military  and naval messes and canteens does not contravene Art. 14 of the Constitution  (which provides that the State shall not  deny to  any person equality before the law or the equal  protec- tion of the laws) inasmuch as the relaxation of the  general law in respect of the persons contemplated by the section is not  arbitrary  or capricious but is based on  a  reasonable classification.     Rule 67 of the Bombay Foreign Liquor Rules which  autho- rises  the granting of a permit to "any foreigner on a  tour of  lndia  who  enters the State of Bombay  and  desires  to possess, use and consume foreign liquor" is not void on  the ground  of  discrimination, firstly because, though it  pro- vides for the case of a foreign 684 visitor, there is no prohibition against any other  outsider being  granted  a permit, and secondly, because  the  policy underlying  the  rule is quite consistent  with  the  policy underlying  s.  40 of the Act which enables  permits  to  be granted to foreigners under certain conditions.     Sections 52, 53 and 139 (c) of the Act do not constitute delegation  of  legislative  power, and  delegation  of  the character which these sections involve cannot in any view be held to be invalid  In re Delhi Laws Act, 1912 etc.(1) relied on.     The restrictions imposed by ss. 12 and 13 of the Act  on the possession, sale, use and consumption of liquor are  not reasonable restrictions on the fundamental right  guaranteed by Art. 19 (1) (1) of the Constitution "to acquire, hold and dispose of property", so far as medicinal and toilet  prepa- rations  containing alcohol are concerned and the said  sec- tions  are invalid so far as they prohibit  the  possession, sale,  use  and  consumption of these  articles,   but   the sections  are not wholly void on this ground as the  earlier categories  mentioned in the definition of  liquor,  namely, spirits of wine, methylated spirit, wine, beer and toddy are distinctly separable items which are easily severable.  from the  last category, namely, all liquors containing  alcohol, and  the restrictions on the possession, sale, use and  con- sumption  of these earlier categories are  not  unreasonable restrictions.



   Romesh Thappar v. The State of Madras [1950] S.C.R.  594 and  Chintaman  Rao v. The State of  Madhya  Pradesh  [1950] S.C.R. 759 distinguished.     Sections  23 (a) and 24 (1) (a) of the Act in so far  as they refer to "commending "any intoxicant, conflict with the fundamental  right of freedom of speech and expression  gua- ranteed  by Art. 19 (1) (a) of the Constitution and none  of the  conditions mentioned in cl. (2) of Art. 19  applies  to the  case and therefore these provisions are void.   Section 23 (b) is also void, because the words "incite" and "encour- age" are wide enough to include incitement and encouragement by words and speeches and also by acts and the words used in the  section are so wide and vague that the clause  must  be held to be void in its entirety.     There  is  nothing  unreasonable in a  law  relating  to prohibition  discriminating between Indian citizens  against whom it is primarily to be enforced and foreigners who  have no  intention of permanently residing in India. A  provision enabling a certain class of persons holding permits to offer drink to persons holding similar permits is also not  unrea- sonable.   Notifications No. 10484/45C and 2843/49  (a)  are not therefore invalid. The  requirement  that an applicant for a permit  on  the ground  of  health under s. 40 (1) (b) must  get  a  medical certificate declaring that he is an "addict" is not warrant- ed by the provisions of (1) Reported infra. 685 the  Act.   The  word "addict" in the form  of  the  medical certificate  should therefore be replaced by the words  used in s. 40 (1) (b) of the Act or words corresponding to them.     The  provisions  of the Act which have been held  to  be invalid are not so inextricably bound up with the  remaining provisions of the Act as to render the whole Act void.     [The  decision of the High Court that ss. 136  (1),  136 (2) (b), 136 (2) (c), 136 (2) (e) and 136 (21 (f) were  void inasmuch  as they offended against Art. 19 of the  Constitu- tion was not assailed before the Supreme Court.]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION. Appeal under Article  132 (1) of the Constitution of India from the Judgment and Order dated the 22nd August, 1950, of the High Court of Judicature at Bombay in Miscellaneous Application No. 139 of 1950.    M.C.  Setalvad and C.K. Daphtary (M. M. Desai  and  H.M. Seervai  with them) for the appellants in Case No.  182  and respondents in Case No. 183.     N.P.  Engineer (G. N. Joshi, R.J. Kolah and N.A.  Palki- wala,  with  him) for  the respondent in Case  No.  182  and appellant in Case No. 183.     1951. May 25. The Judgment of the Court was delivered by     FAZL  ALI J.--These appeals arise from the judgment  and order  of  the High Court of Judicature at Bombay  upon  the application of one F.N. Balsara (hereinafter referred to  as the petitioner), assailing the validity of certain  specific provisions  of the Bombay Prohibition Act, 1949 (Bombay  Act No.  XXV  of  1949), as well as of the Act  as  whole.   The petitioner, claiming to be an Indian citizen, prayed to  the High  Court  inter alia for a writ of mandamus  against  the State  of Bombay and the Prohibition  Commissioner  ordering them  to forbear from enforcing against him’ the  provisions of the Prohibition Act and for the issue of a writ of manda- mus ordering them (1) to allow him to exercise his right  to



possess,  consume and use certain articles, namely,  whisky, brandy,  wine, beer, medicated wine,  eau-de-cologne,  etc., and  to import and export across  the Customs frontier   and to 686 purchase,  possess,  consume and use any  stock  of  foreign liquor, eau-de-cologne, lavender  water, medicated wines and medicinal  preparations containing alcohol, and (2) to  for- bear from interfering with his right to possess these  arti- cles and to take no steps or proceedings against him,  penal or otherwise, under the Act.  The petitioner also prayed for a similar order under section 45 of the Specific Relief  Act against the respondents. The High Court, agreeing with  some of the petitioner’s contentions and disagreeing with others, declared some of the provisions of the Act to be invalid and the  rest  to be valid.  Both the State of  Bombay  and  the petitioner, being dissatisfied with the judgment of the High Court, have appealed to this Court after obtaining a certif- icate  from the High Court under article 132(1) of the  Con- stitution.     The Act in question was passed by the Legislature of the Province  of Bombay as it was constituted in 1949,  and  was published in the Bombay Government Gazette on the 20th  May, 1949,  and came into force on the 16th June, 1949.  The  Act consists  of  148 sections with 2 schedules and  is  divided into  11 chapters. It is both an amending and  consolidating Act and incorporates the provisions of the Bombay Abkari Act which  it  repeals and also those of the  Bombay  Opium  and Molasses  Acts and contains new provisions for putting  into force the policy of prohibition ’which is one of the objects mentioned  in the preamble of the Act.  The  most  important provision  in Chapter I is the definition of "liquor"  which has been vigorously assailed as being too wide and therefore beyond  the powers of the Provincial  Legislature.   Chapter II  relates  to  establishment and is not  relevant  to  the present  appeal.  Chapter III, which contains  a  number  of prohibitions  in regard to liquor as defined in the Act,  is said  to  enact sweeping provisions which are liable  to  be assailed. Sections 12 and 13 and the relevant provisions  of sections 23 and 24 in this chapter may be quoted:’-  12. No person shall(a) manufacture liquor;   687 (b) construct or work any distillery or brewery, (c) import, export, transport or possess liquor; or       (d) sell or buy liquor. 13. No person shall - (a)  bottle any liquor for sale; (b) consume or use  liquor; or     (c)  use, keep or have in his possession any  materials, still, utensils, implements or apparatus whatsoever for  the manufacture of any liquor. 23. No person shall- (a)  commend,  solicit the use of, offer any  intoxicant  or hemp, or     (b) incite or encourage any member of the public or  any class  of individuals or the public generally to commit  any act which frustrates or defeats the provisions of this  Act, or   any   rule,  regulation  or  order   made   thereunder, or  .............     24(1).  No  person shall print or publish in  any  news- paper,  news-sheet,  book,  leaflet, booklet  or  any  other single  or  periodical publication or otherwise  display  or distribute any advertisement or other matter-     (a)  which commends, solicits the use of, or offers  any intoxicant or hemp,     (b)  which  is  calculated to encourage  or  incite  any



individuals  or  the public generally to commit  an  offence under  this  Act, or to commit a breach of or to  evade  the provisions of any rule, regulation or order made  thereunder or the conditions of any licence, permit, pass or authorisa- tion granted thereunder.     Chapter  IV  relates to "control, regulation and  exemp- tions  ",  and  contains inter alia sections 30  to  38  and section 44 which provide for cases in which licenses for the manufacture,  export, import, transport, sale or  possession of  liquor may be granted; section 39, which authorises  the Government  to  permit  the use or  consumption  of  foreign liquor on cargo boats, warships, troopships and in  military and  naval messes and canteens; section 40,  which  provides for the grant of 688 permits  for  the use or consumption of  foreign  liquor  to persons  whose  health would be  seriously  and  permanently affected  if they were not permitted to use or consume  such liquor  and to foreigners who do not intend to  stay  perma- nently  in India; section 41, which enables special  permits to  be granted to diplomats and foreign sovereigns;  section 45, which authorises use of liquor for sacramental purposes; section  52, which empowers an authorized officer  to  grant licenses, permits, etc., in cases not specifically  provided for; section 53, which deals with the form in which and  the conditions  under which licenses, etc., may be granted;  and section 54 which provides for the cancellation or suspension of licenses and permits. The other material chapters of  the Act are Chapter VII, which provides for offences and  penal- ties, and Chapter IX which deals with "powers and duties  of officers  and  procedure." Sections 118 and 119 of  the  Act declare the offences under the Act to be cognisable and some of  them to be non-bailable. Under section 121,  any  autho- rised prohibition officer or any police officer may open any package  and  examine  any goods and may  stop  any  vessel, vehicle  or  other means of conveyance and  search  for  any intoxicant..Section  136  (1)provides  that if  any  of  the officers  mentioned therein is satisfied that any person  is acting  or  is likely to act in a manner  which  amounts  to preparation,  attempt, abetment or commission of any of  the offences  punishable under section 65 or 68 of the  Act,  he may  arrest such person  without a warrant and  direct  that such  person  shall  be committed to such’ custody  as  such officer may    deem fit for a period not exceeding 15  days. By  section  136(2), the State Government is given  the  ex- traordinary  power of imposing restriction on the  right  of free  movement  of any person if it is satisfied  that  such person  is acting or is likely to act in the  manner  afore- said.  Chapter XI contains certain miscellaneous  provisions and the only sections of this Chapter which need be referred to are section 139 (c), which states that the State  Govern- ment  may by general or special order exempt any  person  or class  of  persons or institution or class  of  institutions from the   689 observance of all or any of the provisions of the Act or any rule, regulation or order made thereunder, and  section 147, which  declares that nothing in the Act shall be  deemed  to apply  to any intoxicant or other article in respect of  its import  or export across the customs frontier as defined  by the Central Government. The  High  Court accepted the contention of  the  petitioner that the definition of "liquor" in the Act was too wide  and went beyond the power vested in the legislature to legislate with  regard to intoxicating liquors under item 31  of  List



II. It also held the following sections to be invalid :- Sections  23  (a)  and 24 (1) (a) so far as  they  refer  to "commending"; section 23 (b); 24 (1) (b) so far as it refers to  "evasion"; section 39; section 52; section 53  in  part; section  136  (1); section 136 (2) (b), (c), (e),  (f);  and section  139  (c). The High Court also held Rule 67  of  the Bombay Foreign Liquor Rules and Notifications Nos.  10484/45 (c)  and 2843/49 (a), dated the 30th March,  1950,  invalid. It further held that the word"addict" in the medical certif- icate was not warranted by the provisions of the Act. The  two important questions which this Court  is     called upon to decide in these appeals are :--    (1)  whether there are sufficient grounds  for  declaring the whole Act to be invalid; and    (2) to what extent the judgment of the High Court can  be upheld  with  regard to the specific provisions of  the  Act which  have been declared by it to be void. It seems  to  me that  it  will be convenient to deal in the  first  instance with  the  argument assailing the validity of the Act  as  a whole, which is based on three grounds, these being :--    (1)  that the law is an encroachment on the  field  which has  been  assigned exclusively to the  Central  Legislature under entry 19 of List I;    (2)  that  some  of the material provisions  of  the  Act interfere  with or are calculated to interfere  with  inter- State trade and commerce and as such transgress the 690. provisions  of section 297 of the Government of  India  Act, 1935 ;and (3)  that the High Court having ’held a number  of  material provisions  to  be void, should have declared the Act  as  a whole  to be invalid, especially as the provisions found  by the  High Court to be void’ are not severable from the  rest of the Act and it cannot be said that the legislature  would have  passed  the Act in the truncated form in which  it  is left after the decision of the High Court.    It is obvious that the proper occasion to deal with  the third ground will be after examining the specific provisions which  have been declared by the High Court to be void,  but the first two grounds may be dealt with at once.     The  first question is whether the impugned law  can  be said to have made any encroachment upon the field of  legis- lation  assigned  to the Centre.  In order  to  decide  this point, it will be necessary to refer to entry No. 31 in List II,  under  which the law purports to have  been  made,  and entry  No. 19 of List I, which is said to have  been  trans- gressed.  These entries run as follows:--     Entry  31,  List II: Intoxicating liquors  and  narcotic drugs, that is to say, the production, manufacture,  posses- sion, transport, purchase and sale of intoxicating  liquors, opium  and  other narcotic drugs, but subject,  as  respects opium, to the provisions of List I and, as respects  poisons and dangerous drugs, to the provisions of List I11.     Entry  19,  List  I: Import and  export  across  customs frontiers as defined by the Dominion Government.     Prima  facie, it would seem that there is no  real  con- flict between these two entries, because entry 31 of List II has  no reference to import or export but merely deals  with production, manufacture, possession, transport, purchase and sale.  Dealing with this entry, Gwyer C.J. observed as  fol- lows in the case of Bhola Prasad v. The King Emperor (1):-- (1) [1942] F.C.R. 17 at 25.   691        "A  power to legislate ’with respect to  intoxicating liquors’  could  not well be expressed in wider  terms,  and



would, in our opinion, unless the meaning of the words  used is  restricted  or  controlled by the context  or  by  other provisions  in  the Act, undoubtedly include  the  power  to prohibit intoxicating liquors throughout the Province or  in any specified part of the Province."        Thus, under entry 31, the Provincial Legislature  can pass any law regarding production,  manufacture,  transport, purchase,  possession and sale of intoxicating liquor.   But the  point  that is pressed for our  consideration  is  that "import" does not end with mere landing of the goods on  the shore or their arrival in the customs house, but it  implies that the imported goods must reach the hands of the importer and he should be able to possess them. On this basis, it  is contended  that there is no difference in effect  between  a power to prohibit the possession and sale of an article  and a  power  to prohibit its import or  introduction  into  the country,  since the one would be a necessary consequence  of the  other.   This contention is based  upon  some  American cases to which I shall refer later, but it may be stated  at once that the point which is raised in this case is precise- ly the point which was raised and negatived in Miss  Kishori Sherry v. The King (1). In that case, the appellant had been convicted   under  section 14-B of the  Bombay  Abkari  Act, 1878, as amended by the Bombay Abkari (Amendment) Act, 1947, for  having in her possession a certain quantity of  foreign liquor  in excess of the limit prescribed by a  notification issued under the following provision of the Act :--        "14-B  (2)  .........  the Provincial Government  may by notification in the Official Gazette prohibit the posses- sion  by any individual or a class or a body of  individuals or the public generally, either throughout the whole  Presi- dency or in any local area, of any intoxicant, either  abso- lutely or subject to such conditions as it may prescribe." (1) [1949]  F.C.R. 6S0. 692 The  main argument advanced in that case was  reproduced  in the judgment in these words :-     "But counsel for the appellant drew attention to item 19 of  List I which covers "Import and export   across  customs frontiers  as  defined  by the  Dominion  Government",   and argued that if "intoxicating liquors" in item 31 of List  II were held to include also liquors imported from abroad, then the  Provincial  Legislature, by prohibiting  possession  of such  liquors  by all persons,  whether  private  consumers, common  carriers or warehousemen, could defeat the power  of the  Federal  Legislature  to regulate  imports  of  foreign liquors  across the sea or land frontiers of  British  India which  are customs frontiers as defined by the Central  Gov- ernment and thus seriously jeopardise an important source of central  customs revenue.  As under section 100 of the  Con- stitution  Act the Provincial legislative powers under  List 11  were  subject  to the exclusive powers  of  the  Federal Legislature in List I, the Bombay Act to the extent to which it  trenched upon the subject of item 19 of the latter  List must, it was submitted, be regarded as a nullity."      It  will  be seen that the rationale  of  the  argument there  is the same as that of the argument advanced  in  the present  case,  but it was rejected for  reasons  which  are clearly set out in the following passage :--     "These is, in our view, no irreconcilable conflict  here such  as would  necessitate  recourse to  the  principle  of Federal  supremacy  laid down in section 100 of the  Consti- tution  Act.  Section 14-B does not purport to  restrict  or prohibit dealings in liquor in respect of its importation or exportation  across  the sea or land  frontiers  of  British



India. It purports to deal with the possession of intoxicat- ing  liquors which, in the absence of limiting  words,  must include foreign liquors. It is far-fetched, in our  opinion, to  suggest that, in so far as the provision covers  foreign liquors, it is legislation with respect to import of liquors into British India by sea or land" 693     Since  the  enactment of the Government  of  India  Act, 1935, there have been several cases in which the  principles which  govern  the interpretation of the  Legislative  Lists have been laid down. One of these principles is that none of the  items  in each List is to be read in a  narrow  or  re- stricted sense(1). The second principle is that where  there is  a  seeming conflict between an entry in List II  and  an entry  in List I, an attempt should be made to  see  whether the  two entries cannot be reconciled so as to avoid a  con- flict of jurisdiction. This principle has been stressed in a number of cases by the Federal Court as well as by the Privy Council..  In In re The Central Provinces and Berar Act  No. XIV  of 1938(2), the question arose as to whether a  tax  on the  sale  of motor spirits was a tax on the sale  of  goods within  entry 48 of the Provincial List or a duty of  excise within entry 45 of the Federal List. Dealing with the diffi- culty  which  arose  in that case, Gwyer  C.J.  observed  as follows :--     "Only in the Indian Constitution Act can the  particular problem  arise  which  is now under  consideration;  and  an endeavour must be made to solve it, as the Judicial  Commit- tee have said, by having recourse to the context and  scheme of  the  Act,  and a reconciliation  attempted  between  two apparently  conflicting  jurisdictions by  reading  the  two entries together and by interpreting, and, where  necessary, modifying, the language of the one by that of the other.  If indeed such a reconciliation should prove impossible,  then, and only then, will the non-obstante clause operate and  the federal  power prevail; for the clause ought to be  regarded as a last resource, a witness to the imperfections of  human expression and the fallibility of legal draftsmanship."     To  the same effect are the following observations  made by the Judicial Committee of the Privy Council in  Governor- General in Council v. Province of Madras(3),     (1) Vide United Provinces v. Atiqa Begum, [1940]  F.C.R. 110 at 134. (2) [1939] F.C.R. 18.    (3) [1945] F.C.R. 179 at 191. 694 after  referring to section 100 of the Government  of  India Act, 1935 :--     "Their  Lordships do not doubt that the effect of  these words is that, if the legislative powers of the Federal  and Provincial Legislatures, which are enumerated in List I  and List  II  of the Seventh Schedule, cannot fairly  be  recon- ciled,  the latter must give way to the former. But  it  ap- pears  to them that it is right first to consider whether  a fair  reconciliation  cannot be effected by  giving  to  the language of the Federal Legislative List a meaning which, if less wide than it might in another context bear, is yet  one that can properly be given to it, and equally giving to  the language of the Provincial Legislative, List a meaning which it  can  properly  bear." In the present  case,  as  already pointed  out. the words "possession and sale"  occurring  in entry 31 of List II are to be read without any qualification whatsoever,  and  it will not be doing any violence  to  the construction  of  that  entry to hold  that  the  Provincial Legislature  has the power to prohibit the  possession,  use and sale of intoxicating liquor absolutely. If we forget for



the  time being the principles which have been laid down  in some  of the American cases, it would be difficult  to  hold that  the  word  ’import’ standing by  itself  will  include either  sale or possession of the article imported into  the country by a person residing in the territory in which it is imported. There is thus no real conflict between entry 31 of List  II and entry 19 of List I, and I find it difficult  to hold  that the Bombay Prohibition Act in so far as  it  pur- ports  to restrict possession, use and sale of foreign  liq- uor. is an encroachment on the field assigned to the Federal Legislature under entry 19 of List I.     There is also another way of dealing with the contention raised  before us.  It is well settled that the validity  of an  Act is not affected if it incidentally trenches on  mat- ters  outside  the  authorised field, and  therefore  it  is necessary  to  inquire  in each case what is  the  pith  and substance  of the Act impugned. If the Act, when so  viewed, substantially falls within the    695 powers expressly conferred upon the Legislature which enact- ed it, then it cannot be held to be invalid, merely  because it  incidentally encroaches on matters which have  been  as- signed  to  another legislature. This  was  emphasised  very clearly in Gallagher v. Lynn(1) in these words :--     "It  is  well established that you are to  look  at  the ‘true nature and character of the legislation ’: Russell  v. The  Queen(2)  the pith and substance of  the  legislation’. If,.  on the view of the statute as a whole, you  find  that the  substance  of  the legislation is  within  the  express powers,  then it is not invalidated if incidentally  it  af- fects matters which are outside the authorised field ".     In  Prafulla Kumar Mukherjee and Others v. Bank of  Com- merce,  Ltd., Khulna(3) the question arose before the  Privy Council  whether the Bengal Money-lenders Act,  1940,  which provided  that no borrower shall be liable to pay after  the commencement  of the Act more than a limited sum in  respect of  principal and interest, was intra vires  the  Provincial Legislature  as  dealing in pith and substance  with  money- lending and moneylenders, a subject-matter within the compe- tence  of the Provincial Legislature under entry 27 of  List II,  or  whether  it trenched  on   "promissory  notes"  and "banking",  which  were subjects reserved  for  the  Federal Legislature under entries 28 and 38 respectively of List  I. The  Privy Council,  notwithstanding the fact that loans  on promissory notes would also have been subject to the  provi- sions of the impugned Act, held that the Act was valid, and, while rejecting the argument that it was beyond the legisla- tive  competence  of the Provincial  Legislature  which  had enacted it, their Lordships observed as follows :--     "As  Sir  Maurice Gwyer C.J. said  in  the  Subrahmanyam Chettiar case: "It must invevitably happen from time to time that  legislation, though purporting to deal with a  subject in one list, touches also on a  (1) [1937] A.C. 863 at 870       (3) [1947] F.C.R. 28.  (21 7 A.C. 829. 696 subject in another list, and the different provisions of the enactment may be so closely inter-twined that blind  observ- ance  to a strictly verbal interpretation would result in  a large number of statutes being declared invalid because  the legislature enacting them may appear to have legislated in a forbidden  sphere. Hence the rule which has been evolved  by the  Judicial  Committee, whereby the  impugned  statute  is examined to ascertain its ‘pith and substance’, or its  true nature and character, for the purpose of determining whether



it is legislation with respect to matters in this list or in that  ". Their Lordships agree that this  passage  correctly describes the grounds on which the rule is founded, and that it applies to Indian as well as to Dominion legislation-(1).     The  same principle was reiterated by the Federal  Court in Ralla Ram v. The Province of East Punjab(2), and was also referred  to  in Miss Kishori Shetty v. The King(3)  in  the following passage :--     "It  may  be that a general adoption of  the  policy  of prohibition  by  the Provinces will lead to a  fall  in  the import of foreign liquors and to a consequential  diminution of  the Central customs revenue, but where the  Constitution Act  has given to the Provinces legislative power  with  re- spect  to a certain matter in clear and  unambiguous  terms, the  Court should not deny it to them or impose  limitations on  its exercise, on such extraneous considerations.  It  is now well settled that if an enactment according to its  true nature, its pith and substance, clearly falls within one  of the  matters assigned to the Provincial Legislature,  it  is valid  notwithstanding  its  incidental  encroachment  on  a Federal subject."     The short question therefore to be asked is whether  the impugned  Act  is in pith and substance a  law  relating  to possession and sale etc. of intoxicating liquors or  whether it relates to import and export of intoxicating liquors.  If the true nature and character (1) [1947] F.C.R. at p. 51.   (3) [1949] F.C.R. 650 at  655. (2) [1948] F.C.R. 207 at 225   697 of  the legislation or its pith and substance is not  import and  export of intoxicating liquor but its sale and  posses- sion  etc., then it is very difficult to declare the Act  to be  invalid.  It is said that the prohibition  of  purchase, use,  possession, transport and sale of liquor  will  affect its import. Even assuming that such a result may follow, the encroachment,  if any, is only incidental and cannot  affect the  competence of the Provincial Legislature to  enact  the law in question.     On these considerations, there is really nothing else to be  said on the question before us, but in view of the  very great  stress laid upon the American doctrine  of  "original package’’,  it seems necessary to deal with what  that  doc- trine  means and under what conditions it was  evolved.  The wide  meaning  of ’import’ on which reliance was  placed  on behalf  of the petitioner was adopted for the first time  by Marshall  C.J. in Brown v. Maryland(1), in which  the  facts were these.  The State of Maryland had passed an Act prohib- iting  importers of foreign goods from selling  their  goods without  taking a license for which a certain amount had  to be paid. The question which was raised in that case was that the Act was repugnant to the provisions of the  Constitution which  provided that "no State shall without the consent  of Congress  allow any imposts or duties on imports or  exports except  what may be absolutely necessary for  executing  its inspection  laws." In the course of his  judgment,  Marshall C.J. observed inter alia as follows :-     "There  is no difference, in effect, between a power  to prohibit the sale of an article and a power to prohibit  its introduction into the country. The one would be a  necessary consequence  of  the other.  No goods would be  imported  if none  could  be sold.  No object of any description  can  be accomplished by laying a duty on importation, which may  not be accomplished with equal certainty by laying a duty on the thing imported in the hands of the importer."(2) The learned Chief Justice further observed :--



(1) (1827) 25 U.S, 419.     (2) (1827) 25 U.S. at p. 439. 698     "Sale is the object of importation, and is an  essential ingredient of that intercourse, of which importation consti- tutes  a part.  It is as essential an ingredient, as  indis- pensable  to  the existence of the entire  thing,  then,  as importation  itself.  It must be considered as  a  component part  of  the  power to regulate commerce.  Congress  has  a right,  not only to authorise importation, but to  authorise the importer to sell."(1)     Upon principles so stated, what is known as the  "origi- nal  package"  doctrine was evolved in  America,  which  was applied not only to commodities imported from foreign  coun- tries  but  also to commodities which were  the  subject  of inter-state commerce. This doctrine laid down that  importa- tion was not over so long as the goods were in the  original package and hence a State had no power to tax imports  until the original package was broken or there was one sale  while the goods were still in the original package. The  principle upon  which this doctrine was founded is explained  by  Mar- shall C.J. in the case referred to in these words:-     "  There  must be a point of time when  the  prohibition ceases,  and  the  power of the State  to  tax  commences;we cannot admit that this point of time is the instant that the articles  enter  the  country ...It is  sufficient  for  the present  to  say, generally, that when the importer  has  so acted upon the thing imported that it has become incorporat- ed and mixed up with the mass of property in the country, it has,  perhaps, lost its distinctive character as an  import, and has become subject to the taxing power of the State; but while  remaining the property of the importer, in his  ware- house,  in  the  original form of package in  which  it  was imported, a tax upon it is too plainly a duty on imports  to escape the prohibition in the Constitution."(2)     The doctrine was reiterated in a number of cases, and in Leisy v. Hardin(8), it was laid down that "the importers had the  right  to sell in the original  packages  unopened  and unbroken, articles brought into the  (1) (1827)25 U.S. at p. 447.      (a) 135 U.S. 100.  (2) (1827) 25 U.S. at p. 441.     699 State  from  another State or  territory  notwithstanding  a statute  of the State prohibiting the sale of such  articles except  for purposes mentioned therein and under  a  license from the State’ ’. The American writers have however pointed out the difficulty which arose from time to time in applying the "original package" doctrine, since sometimes very intri- cate questions arose before the courts, such as whether  the doctrine applied to the larger cases only or to the  smaller packages contained therein, or whether it applied to smaller paper  packages  of  cigarettes taken from  loose  piles  of packages  at  the factory and transported in  baskets.   The difficulty in applying the doctrine was particularly experi- enced  in  working prohibition schemes, and  to  combat  its mischief and uncertainty, new legislative measures had to be passed by the Congress like the Wilson Act, Webb-Kenyon Act, etc.   I do not wish to pursue the matter, but wish only  to point  out that the doctrine has no place in  this  country, having  regard  to the scheme of legislation that  has  been outlined in the Government of India Act, 1935, and in  the’- present  Constitution, in which the various entries  in  the Legislative  Lists have been expressed in clear and  precise language.  In The Province of Madras v. Boddu  Paidanna  and Sons(1),  Gwyer C.J. while expressing his  profound  respect for  the views expressed by Marshall C.J. in Brown v.  Mary-



land(2), mildly hinted that it was easier to follow the line of  reasoning of Thompson J. in his dissenting  judgment  in that case and concluded with the following remarks :--     "Next, it is to be observed that the American  Constitu- tion  also provides that Congress alone has power "to  regu- late  commerce  with  foreign  nations,  among  the  several States,  and with the Indian tribes", and it was  held  that the  Maryland  tax was no less repugnant to  this  provision also.  Marshall  C.J. asked: "To what  purposes  should  the power to allow importation be given, unaccompanied with  the power  to authorise the sale of the thing imported  ?   Con- gress has a right, not only to authorise importation, but to (1) [1942] F.C.R. 90.      (2) (1827) 25 U.S. 419. 700 authorize  the  importer to sell...What  does  the  importer purchase, if he does not purchase the privilege to sell?" On this view of the Commerce Clause, it would indeed be  diffi- cult  to  recognize the right of the State to impose  a  tax upon the first sale of the commodity, at any rate so long as it remained in the importer’s hands. In the Indian Constitu- tion  Act  no  such question arises; and the  right  of  the provincial Legislature to levy a tax on sales can be consid- ered  without any reference to so formidable a power  vested in  the Central Government. Lastly, the prohibition  in  the American Constitution is against the laying of "any  imposts or  duties  on imports or exports "the  prohibition  is  not merely  against  the  laying of duties of  customs,  but  is expressed in what we conceive to be far wider terms; and  it does not appear to us that it would necessarily follow  from the  principle  of the Maryland decision that in  India  the payment of customs duty on goods imported from abroad or the payment of an excise duty on goods manufactured or  produced in India can be regarded as conferring some kind of  license or  title on the importer or manufacturer to sell his  goods to  any purchaser without incurring a further  liability  to tax.  That was the view which commended itself to the  Court in the Maryland Case(1) and it was a view adopted and argued before us. The analogy with the American case is an  attrac- tive  one,  but for the reasons which we have given  we  are wholly unable to accept it." (2)     I find considerable force in the opinion thus  expressed by Gwyer C.J. and agree that the "original package" doctrine has  no application to this country. In the  United  States, the  widest meaning could be given to the  Commerce  Clause, for  there was no question of reconciling that  Clause  with another  Clause  containing  the legislative  power  of  the State. Under the provisions of the Government of India  Act, a  limited  meaning must be given to the  word  "import"  in entry  19  of  List I in order to give effect  to  the  very general words used in entry 31 of List II. (1) (1827) 25 U.S. 419.   (2) [1942] F.C.R. 90 at 106-7.     701     The second attack on the Act is founded upon the  provi- sion  contained  in section 297(1)(a) of the  Government  of India  Act, 1935, and it is contended that the  prohibitions contained in the impugned Act in regard to the use, consump- tion, purchase, transport, possession and sale of intoxicat- ing  liquor  will  necessarily_ amount  to  prohibiting  and restricting inter-provincial. commerce, and inasmuch as they tend  to  stop and restrict entry into or  export  from  the Province  of  Bombay of goods of a particular class  or  de- scription,  the  Act contravenes  section  297(1)(a).   This section runs as follows :--     "No Provincial  Legislature or  Government shall--     (a) by virtue of the entry in the Provincial Legislative



List relating to trade and commerce within the Province,  or the  entry in that List relating to the  production,  supply and distribution of commodities, have power to pass any  law or take any executive action prohibiting or restricting  the entry  into,  or export from the Province of  goods  of  any class or description  ......  ’ ’     It  should  be  noticed that this  provision  refers  to "trade  and  commerce  within the Province",  which  is  the subject  of entry 27 of List II and to  "production,  supply and  distribution of commodities", which is the  subject  of entry  29  of List II.  The provision virtually  means  that import into or export from a Province of goods of any  class or  description  cannot be prohibited or restricted  on  the ground  that it will affect, trade and commerce  within  the Province  or  the  production, supply  and  distribution  of commodities. If therefore by any law framed by a  Provincial Legislature relating to or based on the subjects of entry 27 or  entry 29 of List II, the entry into or export  from  the Province  of any goods is prohibited or restricted,  such  a law will be invalid.  But, here, we are concerned not with a law  which  purports to be made and was made  by  virtue  of entry 27 or entry 29 of List I1, but a law which is  claimed to have been made 702 and was made by virtue of entry 31 of that List and  certain other entries therein. Section 297 (1) (a) therefore has  no application to the present case.  This was  clearly  pointed out in the case of Bhola Prasad v. King Emperor(1).  In that case, the Bihar Excise (Amendment) Act, 1940, which  amended the  Bihar  and Orissa Excise Act, 1915, was  challenged  as contravening  section 297 (1) (a), but it was held to  be  a valid  Act on grounds already stated, as will.  appear  from the following observations of Gwyer C.J. :-      "The second point-raised on behalf of the appellant was that s. 19 (4) of the Act of 1915, as amended by the Act  of 1940, is invalid because repugnant to s. 297 (1) (a) of  the Constitution  Act.   We confess that we have  difficulty  in appreciating  this  argument.  Section  297  (1)(a)   enacts that   ......  It is plain beyond words that this  provision only refers to legislation with respect to entry No. 27  and entry  No. 29 in the provincial Legislative List; it has  no application to legislation with respect to anything in entry No.  31. A Provincial Legislature, if it desires to  pass  a law prohibiting export from, or. import into, the  Province, must  therefore seek for legislative authority to do  so  in entries  other than entry No. 27 or entry No. 29. If it  can point to legislative powers for the purpose derived from any other  entry  in the Provincial Legislative List,  then  its legislation cannot be challenged under section 297 (1)  (a). There is no substance at all in the appellant’s arguments on this point"      Having  dealt with and negatived the first two  conten- tions  upon  which the validity of the entire  Act  was  as- sailed,  I now proceed to deal with certain sections of  the Act,  the validity of which also was brought into  question. The  provision  which was most vigorously  assailed  and  in regard to which the attack was successful in the High Court, is the definition of the word ’liquor’ in section 2 (24)  of the Act. The definition runs thus:--       "Liquor" includes-- (1) [1942] F.C.R, 17 at 27.  (2) [1942] F.C,R. 17 at 27, 28.      703     (a)  spirits  of wine, methylated spirits,  wine,  beer, toddy  and all liquids consisting of or containing  alcohol; and



   (b)  any other intoxicating substance which the  Provin- cial  Government  may, by notification in the  Official  Ga- zette, declare to be liquor for the purposes of this Act.     The High Court has held that the word "liquor" ordinari- ly  means"a  strong drink as opposed to soft drink"  but  it must  in any event be a beverage which is ordinarily  drunk. Proceeding  upon  this view, the High Court  has  held  that although  the legislature may while legislating under  entry 31 prevent the consumption of non-intoxicating beverages and also  prevent the use as drinks of alcoholic  liquids  which are  not normally consumed as drinks, it cannot prevent  the legitimate  use  of  alcoholic preparations  which  are  not beverages  nor the use of medicinal and toilet  preparations containing  alcohol.  This view of the High Court  was  very strongly  supported  on  the one hand and  equally  strongly challenged  on the other before us, and I therefore  proceed to deal with the question at some length.     In  the Oxford English Dictionary, edited by James  Mur- ray,  several  meanings are given to the word  "liquor",  of which the following may be quoted:- Liquor...  1. A liquid; matter in a liquid state;  in  wider sense a fluid.     2.  A  liquid or a prepared solution used as a  wash  or bath, and in many processes in the industrial arts.     3.  Liquid  for drinking; beverage, drink.   Now  almost exclusively  a drink produced by fermentation  or  distilla- tion.  Malt  liquor,  liquor brewed from  malt;  ale,  beer, porter etc. 4.  The  water in which meat has  been  boiled;  broth,’ sauce;  the  fat in which bacon, fish or the like  has  been fried; the liquid contained in oysters.     5-  The  liquid  produced by infusion  (in  testing  the quality of a tea). In liquor, in the state of an infusion. 704 Thus,  according  to the Dictionary, the word  ’liquor’  may have  a general meaning in the sense of a liquid, or it  may have a special meaning, which is the third meaning  assigned to it in the extract quoted, above, viz. a drink or beverage produced  by  fermentation or distillation.  The  latter  is undoubtedly  the popular and most widely  accepted  meaning, and  the basic idea of beverage seems rather prominently  to run through the main provisions of the various Acts of  this country as well as of America and England relating to intox- icating  liquor, to which our attention was drawn.  But,  at the  same  time, on a reference to these very  Acts,  it  is difficult  to hold that they deal exclusively  ......   with beverages  and are not applicable to certain articles  which are  strictly speaking not beverages.  A few instances  will make the point clear. In the National Prohibition Act, 1919, of  America  (also known as the Volstead  Act),  the  words, liquor and intoxicating liquor, are used as having the  same meaning and the definition states that these words shall  be construed  to  "include alcohol, brandy, whisky,  rum,  gin, beer,  ale,  porter and wine, and in  addition  thereto  any spirituous,  vinous malt, or fermented liquor, liquids,  and compounds, whether medicated, proprietary, patented or  not, and  by whatever name called, containing one-half of  1  per centum  or more of alcohol by volume which are fit  for  use for beverage purposes." Having defined ’liquor’ and ’intoxi- cating  liquor’  rather widely, the  Volstead  Act  excepted denatured  alcohol,  medicinal  preparations,   toilet   and antiseptic   preparations,  flavoring extracts  and  sirups, vinegar and preserved sweet cider (s. 4)  which suggest that they  were  included  in the definition. In  some  of  these items,  we  have  the qualifying words "unfit  for  use  for



beverage  purposes",  but the heading of section  4  of  the Volstead Act, under which these exceptions are enumerated is exempted liquors."                            ’      The Licensing (Consolidating) Act, 1910, of England was an  Act  relating to licenses for the sale  of  intoxicating liquor, etc. The definition of "intoxicating liquor" in this Act was as follows;--    705     "’Intoxicating  liquor’ means (unless inconsistent  with the  context) spirits, wine, beer, porter, cider, perry  and sweets,  and any fermented, distilled, or spirituous  liquor which  cannot,  according to any law for the time  being  in force, be legally sold without an excise licence."     The  word spirits  has been defined in the Spirits  Act, 1880,  as meaning spirits of any description,  and  includes all liquors mixed with spirits, and all mixtures, compounds, or preparations made with spirits." It was contended  before us that the definition of the word "spirits" in the  Spirits Act  should not be imported in the Act of 1910, but  in  our view  for  the purpose of understanding  the  definition  of ’intoxicating liquor’, the two Acts should be read together. I  do  not suggest that the definition of  "liquor"  in  the present  Act  was borrowed from those Acts, but  I  am  only trying  to show that the word ’liquor’ is capable  of  being used in a wide sense.     Coming  now  to  the various definitions  given  in  the Indian Acts, I may refer in the first instance to the Bombay Abkari Act of 1878 as amended by subsequent Acts, where  the definition  is  substantially the same as in  the  Act  with which  we  are concerned. In the Bengal  Excise  Act,  1909, "liquor, is said to mean ’liquid consisting of or containing alcohol’  and includes spirits of wine, spirit,  wine,  tari pachwai,  beer, and any substance which the Provincial  Gov- ernment may ......  declare to be liquor for the purposes of the Act." In several other Provincial Acts, e.g., the Punjab Excise  Act,  1914, the U.P. Excise Act, 1910,  "liquor"  is used  as  meaning intoxicating liquor and as  including  all liquids consisting of or containing alcohol.  The definition of "liquor" in the Madras Abkari Act, 1886., is the same  as in  the Bombay Act of 1878. Even if we exclude the  American and  English Acts from our consideration, we find  that  all the  Provincial Acts of this country have  consistently  in- cluded  liquids  containing  alcohol in  the  definition  of ‘liquor’   and  ’intoxicating liquor’. The  framers  of  the Government India Act, 1935, could not have been entirely 706 ignorant  of the accepted sense in which the  word  ’liquor’ has  been  used in the various excise Acts of  this  country and, accordingly I consider the appropriate conclusion to be that  the  word "liquor" covers not  only  those   alcoholic liquids    which  are generally used for  beverage  purposes and  produce intoxication, but also all  liquids  containing alcohol. It may be that the latter meaning is not the  mean- ing  which  is  attributed to the word  "liquor"  in  common parlance especially when that word is prefixed by the quali- fying  word "intoxicating", but in my opinion having  regard to  the numerous statutory definitions of that word, such  a meaning could not have been intended to be excluded from the scope of the term "intoxicating liquor" as used in entry  31 of List II.     There is in my opinion another method of approaching the question which also deserves consideration. Remembering that the  object  of the Prohibition Act was not merely  to  levy excise duties but also to prohibit use, consumption, posses- sion  and sale of intoxicating liquor, the  legislature  had



the power to legislate upon the subjects included in the Act not   only under entry 31 of List II, but also  under  entry 14, which refers inter alia to public health. Article 47  of the Constitution, which contains one of the directive  prin- ciples  of  State  policy, provides that  "the  State  shall regard the raising of the level of nutrition and the. stand- ard of living of its people and the improvement of public health as among its primary duties and, in partic- ular,  the State shall endeavour to bring about  prohibition of the consumption, except for medicinal purposes, of intox- icating drinks and of drugs which are injurious to  health". This  article  has no direct bearing on the  Act  which  was passed  in  1949,  but a reference to it  supports  to  some extent  the conclusion that the idea of prohibition is  con- nected with public health, and to enforce prohibition effec- tively the wider definition of the word "liquor" would  have to  be adopted so as to include all alcoholic liquids  which may be used as substitutes for intoxicating drinks, to 707 the detriment of health. On the whole, I am unable to  agree with the High Court’s finding, and hold that the  definition of  "liquor"  i,2 the Bombay Prohibition Act  is  not  ultra vires.     The learned Attorney-General also relied upon entry 1 of List II which relates among other items to "public’  order", and though at first sight it may appear to be far-fetched to bring  the  subject  of intoxicating  liquor  under  "public order", yet it should be noted that there has been a tenden- cy in Europe and America to regard alcoholism as a menace to public order. In Russel v. The Queen(1), Sir Montague  Smith held  that the Canada Temperance Act, 1878, the  object  and scope  of  which  was to promote temperance by  means  of  a uniform  law throughout the Dominion, was a law relating  to the  "peace, order, and good government" of Canada, and,  in so deciding, said as follows:--     "Laws  of  this  nature designed for  the  promotion  of public order, safety, or morals and which subject those  who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which falls within the  general authority of Parliament to make laws for the order and  good government of Canada  ......  " (2)     Again,  referring to liquor laws and liquor  control,  a learned British author(3) says as follows :-     "The  dominant  motive everywhere, however, has  been  a social  one,  to  combat a menace to public  order  and  the increasing  evils of alcoholism in the interests  of  health and social welfare.  The evils vary greatly from one country to  another according to differences in climate, diet,  eco- nomic conditions and even within the same country  according to  differences in habits, social customs and  standards  of public  morality. A new factor of growing  importance  since the middle of the 19th  (1) 7 A.C. 829.  (2) 7 A.C. 829 at p. 839. (3) The Encyclopaedia Britannica, 14th Edition, Volume 14, page 191. 708 century  has been the rapid urbanisation,  industrialization and mechanization of our modern every day life in the  lead- ing nations of the world, and the consequent wider  recogni- tion  of the advantages of sobriety in  safeguarding  public order and physical efficiency."     These  passages may lend some support to the  contention of  the  learned Attorney-General that the  Act  comes  also



within the subject of "public order", but I prefer to  leave out  of account this entry, which has a remote  bearing,  if any, on the object and scope of the present Act.     I  now  come  to section 39 of the Act  which  has  been impugned on the ground that it offends against article 14 of the Constitution which states that "the State shall not deny to  any person equality before the law or the equal  protec- tion of the laws within the territory of India". The meaning and  scope of this article has been fully discussed  in  the case  of Chiranjit Lal Chowdhury v. The Union of  India  and Others(1), and the principles laid down in that case may  be summarized as follows:     (1) The presumption is always in favour of the constitu- tionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the  needs of  its own people, that its laws are directed  to  problems made  manifest  by experience and  its  discriminations  are based on adequate grounds.     (2) The presumption may be rebutted in certain cases  by showing that on the face of the statute, there is no classi- fication at all and no difference peculiar to any individual or  class  and  not applicable to any  other  individual  or class, and yet the law hits only a particular individual  or class.     (3)  The principle of equality does not mean that  every law must have universal application for all persons who  are not  by  nature,  attainment or circumstances  in  the  same position,  and  the varying needs of  different  classes  of persons often require separate treatment. (1) [1950] S.C.R. 869.   709 (4) The principle does not take away from the State the  power of classifying persons for  legitimate  purposes. (5) Every classification is in some degree likely to produce some  inequality,  and mere production of inequality is  not enough.     (6)  If a law deals equally with members of a  well  de- fined  class, it is not obnoxious and it is not open to  the charge  of denial of equal protection on the ground that  it has no application to other persons.     (7) While reasonable classification is permissible, such classification must be based upon some real and  substantial distinction  bearing a reasonable and just relation  to  the object sought to be attained, and the classification  cannot be made arbitrarily and without any substantial basis.     Similarly, Professor Willis, dealing with the Fourteenth Amendment  of the Constitution of the United  States,  which guarantees equal protection of the laws, sums up the law  as prevailing in that country in these words:     "The guaranty of the equal protection of the laws  means the protection of equal laws. It forbids class  legislation, but does not forbid classification which rests upon reasona- ble  grounds of distinction.  It does not prohibit  legisla- tion, which is limited either in the objects to which it  is directed or by the territory within which it is to  operate. ‘It  merely  requires  that all persons  subjected  to  such legislation shall be treated alike under like  circumstances and  conditions both in the privileges conferred and in  the liabilities     imposed’.    The    inhibition    of     the amendment   ......   was designed to prevent any  person  or class of persons from being singled out as a special subject for  discriminating and hostile legislation.’  It  does  not take  from  the states the power to classify either  in  the adoption of police laws or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of  discre-



tion, and nullifies what they do only when it is without any reasonable  basis. Mathematical nicety and perfect  equality are not required.  Similarity, not identity of 710 treatment,  is enough. If any state of facts can  reasonably be  conceived to sustain a classification, the existence  of that  state  of  facts must be assumed. One  who  assails  a classification must carry the burden of showing that it does not rest upon any reasonable basis."(1)     With these principles in view, I have to decide  whether article  14  of the Constitution has been  violated  by  the provisions  contained  in section 39 of the Act  before  us. That section runs as follows :-     "The  Provincial Government may, on such  conditions  as may be specified in the notification published in the  Offi- cial  Gazette,  permit  the use or  consumption  of  foreign liquor on cargo boats, warships and troopships and in  mili- tary and naval messes and canteens."     What  is contended is that the concession shown  to  the warships,  troopships,  and military and  naval  messes  and canteens is a violation of the principle of equality and the legislature  has acted arbitrarily and capriciously  in  se- lecting  certain  bodies or groups of  people  for  favoured treatment,  while subjecting the petitioner and other  citi- zens  to the general provisions of the Act. It is said  that the  law should have been enforced alike against  the  civil population and military personnel, between whom no  distinc- tion  can be made at all on any rational ground in  the  en- forcement of the policy of prohibition.     The  scheme  of Chapter IV of the  Prohibition  Act,  in which the impugned provision finds a place, seems inter alia to  relax the law in favour of certain persons or groups  of persons or institutions by introducing the system of passes, licences,  permits and authorizations. A few  examples  will show  that the legislature did not proceed  without   making any  classification.   For instance, section 35  deals  with licences to hotels, section 37 with licences to dining  ears and  coastal setamers, section 38 with licences to  shipping companies, section 40 with permits to foreigners and persons who  need liquor on grounds of health, section 41 with  per- mits to foreign sovereigns and diplomats, section 44 (1)  Constitutional Law, by Prof. Willis, (1st  Edition)  p. 578. 711 with  licences to clubs, section 45 with authorisations  for sacramental purposes, section 46 with visitors’ permits, and so on.  These sections were not challenged before us, and it may be assumed that the classification made by the  legisla- ture  has been accepted so far as they are  concerned.   The question  is whether in relaxing the rule in favour of  war- ships,  troopships, and military and naval messes  and  can- teens, the legislature has acted arbitrarily and capricious- ly or it has proceeded here also on the basis of  reasonable classification. The learned Attorney-General referred us  to several statutes, army regulations and certain provisions of the  Constitution, in order to show that the military  force has been regarded in this country as a class by itself,  and there are many special provisions with regard to it.  But it is contended that this is not enough and that no classifica- tion  can be held to be valid unless it is shown to  bear  a just and reasonable relation to the objects of the  particu- lar legislation before us.  The argument, in other words, is this:  Assuming  that the armed forces may be treated  as  a class for certain purposes, can it be treated as a class for the purpose of enforcing prohibition ?  This argument  found



favour  with the High Court, and section 39 was declared  to be  void.   In ray opinion, the judgment of the  High  Court cannot be supported, because I think that there is an under- standable  basis for the exemptions granted to the  military canteens, etc. by the Act.  The armed forces have their  own traditions  and mode of life, conditioned and  regulated  by rules and regulations which are the product of long  experi- ence  and  which aim at maintaining at a  high  level  their morale and those qualities which enable them to face dangers and  perform  unusual tasks of endurance and  hardship  when called  upon to do qualities such as dash and  courage,  un- breakable tenacity and energy ready for any sacrifice  which should  be  unfaltering for long days  together.   By  these rules  and  regulations, drinking among the  forces  is  not prohibited, but it is properly and carefully regulated, 712 It  is easy to understand that the legislature chose not  to interfere  with  the mode of life to which the  forces  have been accustomed, lest such interference should affect  their morale and and lead to subterfuges which may prove  unwhole- some for their discipline and good behaviour. Besides,  when drinking  is regulated among a class of persons by  specific rules  and regulations and drunkenness is made  an  offence, the  relaxation of the law of prohibition in their  case  is not  likely to produce the same evil results as it may  pro- duce  under other circumstances.  I find  therefore  nothing wrong  prima  facie  in the  legislature  according  special treatment to persons who form a class by themselves in  many respects and who have been treated as such in various enact- ments  and statutory provisions.  In my opinion,  therefore, section  39, in so far as it affects the military and  naval messes  and canteens, warships and troop: ships,  cannot  be held to be invalid. So far as the cargoboats are  concerned, it was contended on behalf of the petitioner that no ration- al  differentiation could be made between them and the  pas- senger boats, and there was no conceivable ground for grant- ing exemption or concession of any kind to the former.  Here again,  we cannot assume that the legislature has  proceeded arbitrarily.   The cargoboats being slower boats have to  be on the sea for long periods, the number of persons  affected by the exemption is comparatively small, and they are mostly sojourners who stay at the port for a short time and then go away. These considerations may well have induced the  legis- lature  to show some concession to them, and we  cannot  say that  these  are irrelevant  considerations.  The  provision relating to exemption of cargoboats should therefore be held to be valid. I  have  already  referred to section 46  which  deals  with visitors’ permits. That section provides that the Provincial Government  may  authorize  an officer  to  grant  visitors’ permits  to consume, use and buy foreign liquor  to  persons who visit the Province for a period of not more than a week. The  High  Court  held this provision to be  valid,  but  it considered rule 67 of the  713 Bombay Foreign Liquor Rules, framed under section 143 of the Act, to be invalid. That rule provides that any foreigner on a  tour of India who enters the State of Bombay and  desires to  possess, use and consume foreign liquor shall  apply  to certain officers for obtaining a permit, which may be grant- ed  for a period not exceeding one month subject  to  subse- quent  renewal.   The High Court declared this  rule  to  be invalid on the ground that it discriminated between  foreign visitors  and Indian visitors who visit Bombay  from  neigh- bouring  Provinces.  It seems to me that this  is  hardly  a



matter which should have been gone into on the  petitioner’s application,  since he claims to be neither a foreigner  nor an Indian visitor from another Province. But, in any  event, the rule  cannot  be assailed on the ground  of  discrimina- tion,  firstly because though it provides for the case of  a foreign  visitor there is no prohibition against  any  other outsider  being granted a permit, and secondly, because  the policy  underlying  the rule is quite  consistent  with  the policy  underlying section 40 of the Act which enables  per- mits to be granted to foreigners under certain conditions.     The High Court has also declared sections 52, 53 and 139 (c)  of the Act invalid on the ground that  they  constitute "delegation of legislative power".  The reasons given by the High Court for arriving at this conclusion are stated in its judgment as follows: --     "Under  section 52 power is given to the  Government  to grant  licences  in  cases other  than   those  specifically provided  under  any of the provisions of  the  Act.   Under section  53  Government is inter alia empowered to  vary  or substitute any of the Conditions of the licence laid down in the Act, and under section 139 (c) power is given to Govern- ment  to  exempt any person or institution or any  class  of persons or institutions from the observance of all or any of the provisions of the Act or any rule or regulation or order made thereunder.  The policy of legislation has been clearly laid  down by the legislature in the Act itself. As  pointed out by us before, the legislature intended 714 to  grant permits ordinarily only on grounds of  health  and certain exceptions were made in the case of certain classes. It  is  always open to the legislature to leave  it  to  the Government  to work out the policy in details. It  would  be impossible  for the legislature to provide for  all  circum- stances  and all eventualities that may arise in the  actual working  of the Act.  But it is not open to the  legislature to  permit  Government to alter the policy itself.   In  our opinion,  in leaving it to  Government to issue  permits  in cases  other than those provided for by the Act, in  permit- ting  Government  to vary or substitute  conditions  of  the licence,  and in permitting Government to exempt persons  or classes from the provisions of the Act, the legislature  was clearly  delegating to Government its own power of  legisla- tion. This it can clearly not do."     This Court had to  consider quite recently the  question as to how far  "delegated legislation" is permissible, and a reference to its final conclusion will show that  delegation of the character which these sections involve cannot on  any view be held to be invalid.  (See Special Reference No. 1 of 1951:  In re The Delhi Laws Act, 1912, etc.(1)). A  legisla- ture  while legislating cannot foresee and provide  for  all future  contingencies,  and  section 52 does  no  more  than enable the duly authorized officer to meet contingencies and deal  with various situations as they arise.  The same  con- siderations  will  apply to sections 53 and  139  (c).   The matter  however need not be pursued further, as it  has  al- ready been dealt with elaborately in the case referred to. I    now proceed to deal with a group of sections in  regard to  which I find myself in agreement up to a point with  the views  expressed  by the High Court. Section 12 of  the  Act provides inter alia that no person shall possess or sell  or buy liquor and section 13 provides inter alia that no person shall  consume  or  use liquor. Substituting  for  the  word "liquor"  occurring in these two sections the definition  of that  word as given in clause (a) of section 2 (24)  of  the Act,  the  effect of these two sections is  that  no  person



shall (1) Reported infra. 715 possess, or sell or buy or consume or use "spirits of  wine, methylated  spirit, wine, beer, toddy and all  liquids  con- sisting of or containing alcohol."  I have already held that under entry 51 of List II, the Bombay Legislature was  quite competent  to  make a law with respect to "liquor  "even  as broadly defined.  It is however contended that the power  of making laws has to be exercised subject to the other  provi- sions of the Constitution and in particular to those  relat- ing  to the fundamental rights guaranteed under  Part/II  of the  Constitution. The provisions to which I  have  referred have  been assailed on the ground that they are in  conflict with article 19 (1)(f) of the Constitution which  guarantees that all the citizens shall have the right "to acquire, hold and  dispose  of property". This clause is  wide  enough  to include  movable as well as immovable property.  The  provi- sions  in question undoubtedly prevent a citizen  from  pos- sessing,  selling,. buying, consuming or using  "liquor"  as defined, and therefore they prima facie infringe the  funda- mental  right  of the Indian citizens to acquire,  hold  and dispose  of a kind of property, namely, "liquor" as  defined in section 2(24) of the Act, and as such would be void under article  13.  The question to be considered is whether  they can  be  saved by clause (5) of article 19,  which  runs  as follows :--     "Nothing  in  sub-clauses (d), (e) and (f) of  the  said clause shall affect the operation of any existing law in  so far as it imposes, or prevent the State from making any  law imposing, reasonable restrictions on the exercise of any  of the  rights conferred by the said subclauses either  in  the interests of the general public or for the protection of the interests of any scheduled tribe. ’’     The  question  boils down to  ascertaining  whether  the restrictions  imposed by the provisions to  which  reference has been made are reasonable.  In judging the reasonableness of  the restrictions imposed by the Act, one has to bear  in mind  the directive principles of State policy set forth  in article  47 of the Constitution, "The State is charged  with the duty of bringing about 716 prohibition of the consumption, except for medical purposes, of  intoxicating drinks and of drugs which are injurious  to health."  That the restrictions imposed by the  sections  on the right of a citizen to possess, or sell or buy or consume or  use  spirits of wine, methylated  spirits,  wine,  beer, toddy  are in view of the aforesaid directive principles  of State policy quite reasonable, has not been disputed  before us.   The controversy has centred round the words  "and  all liquids  consisting of or containing alcohol."  It  is  said that  those words include "all liquids, toilet or  medicinal preparations  containing alcohol" and the  restrictions  im- posed  upon  the ordinary use of such  toilet  or  medicinal preparations are unreasonable and therefore void.  So far as these  preparations are concerned, the High Court has  dealt with the matter as follows :-     To  put it in a simple form, the question to   which  we have  to  address ourselves is whether the  legislature  can prohibit  the legitimate use of an article which  ordinarily is  not drunk, merely because its use may be  perverted  for the possible purpose of defeating or frustrating the objects and  purposes of the Prohibition Act. Let us take  the  con- crete case of eau-de-cologne or lavender water. Their legit- imate  use is only for the purpose of toilet.  They  contain



spirit  and it may be that an addict deprived of  his  drink may drink it in order to satisfy his thirst.  Is it  permis- sible to the legislature under such circumstances to deprive the  general public of the legitimate use of  eau-de-cologne or  lavender water as articles of toilet ?  The  legislature may prevent the abuse of these articles, but can it  prevent their  legitimate use ?  It is difficult to  understand  how any restriction on the legitimate use of these articles  can be  in  the interests of the general public so  as  to  make these restrictions reasonable within the meaning of  article 19)(5).  If a citizen uses eau-de-cologne or lavender  water for the purpose of toilet, he is not doing anything  against public interest. It is only when he is perverting their  use that it may be said that he is acting against public  inter- est. Therefore, in our opinion, while it was open 717 to  the  legislature to provide against the abuse  of  these articles,  it was not open to it to prevent  its  legitimate use. But the legislature has totally prohibited the use  and possession  of all liquids containing alcohol  except  under permits to be granted by Government. It is contended by  the Advocate-General that a citizen  may possess  eau-de-cologne or lavender water under a permit. But that is a  restriction upon  the right of the citizen to acquire, hold and  dispose of  property, and, in our opinion, that restriction  is  not reasonable.  The  same  argument applies  to  medicinal  and toilet  preparations containing alcohol.  Therefore we  hold that tO the extent to which the Prohibition Act prevents the possession,  use  and  consumptiOn  of  non--beverages   and medicinal  and  toilet preparations containing  alcohol  for legitimate  purposes  the provisions are void  as  offending against article 19 (1) (f) of the Constitution even if  they may  be within the legislative competence of the  Provincial Legislature."     The  next step in the argument is that as the  law  pur- ports  to  authorise the imposition of a  restriction  on  a fundamental right in language wide enough to cover  restric- tions both within and without the limits of constitutionally permissible  legislative action affecting such right. it  is not  possible to uphold it even so far as it may be  applied within  the constitutional limits, as it is  not  severable. This line of reasoning, no doubt, seeks to find support from the  observations  made in the majority  decisions  of  this Court  in  Romesh Thappar v. The State of Madras(1)  and  in Chintaman  Rao v. The State of Madhya Pradesh(2), but in  my opinion  those observations do not apply to the case  before us. It will be noticed that the legislature has defined  the term  "liquor" as including several distinct  categories  of things  followed  by a general category.  There  can  be  no doubt whatever that the earlier categories of liquor,  name- ly,  spirits of wine, methylated spirit, wine, beer,  toddy, are  distinctly separable items which are  easily  severable from the last category, namely, all liquids consisting of or containing alcohol.  These (1) [1950] S.C.R. 594,       (2) [1950] S.C.R. 759, 718 items  being  thus  treated separately  by  the  legislature itself  and being severable, and it not being contended,  in view  of the directive principles of State policy  regarding prohibition, that the restrictions imposed upon the right to possess or sell or buy or consume or use those categories of properties  are unreasonable, the impugned sections must  be held  valid  so far as these categories are  concerned.  The next  question is whether those sections are void in so  far as they purport to impose restrictions on the citizens right



to acquire, hold or dispose of all liquids consisting of  or containing  alcohol.   It is said that this is  one  general item and it cannot be split up into different sub-categories and therefore the sections in so far as they relate to  this general item must be held to be void. This argument at first appears to have some force but a close scrutiny will  reveal that  it  is not in the circumstances of  this  case  sound. Section 139 of the Act authorises the Provincial Government, by  general or special order, to exempt any  intoxicants  or class  of intoxicants from all or any of the  provisions  of the  Act.  An  order made by the  Provincial  Government  in exercise  of  the power conferred by this section  owes  its legal  efficacy to this section and therefore in the eye  of the law the notification has the force of law as if made  by the legislature itself.  In exercise of powers vested in  it by section 139(d) the Provincial Government issued an  order No. 10484/45(e) exempting intoxicants specified in column  1 of  the Schedule thereto annexed from the provisions of  the Act  specified  against them in column 2 of  that  Schedule. Turning to the Schedule, we find that in item (1)  duty-paid perfumed spirits (except eau-de-cologne), in item (3)  duty- paid spirituous toilet preparations (except lavender  water) and in item (4) duty-paid spirituous medicinal  preparations other  than  123 specified liquids, are  exempted  from  the operation of sections 12(c) and (d) and 13(b) to the  extent specified  therein. This notification was superseded on  the 1st  April,  1950,  by another notification  which  is  more liberal in certain respects, and these notifications,  being made in exercise of the power given by the Act itself,    719 have  undoubtedly  the force of law and must be  read  along with  the Act. So read, it is quite clear that "all  liquids consisting  of or containing alcohol" are capable  of  being split  up into and have in fact been split up  into  several distinctly  separate sub-items including liquid  toilet  and medicinal preparations containing alcohol.  The  legislature itself  contemplated  this sub-division, for by section  139 it authorised the Provincial Government to exempt any intox- icant or class of intoxicants from the operation of the Act. This circumstance takes the case out of the principles  laid down  in  the two cases mentioned above and the  item  being thus  severable I am free to consider whether  the  restric- tions  imposed  on  a sub-item, namely,  liquid  toilet  and medicinal preparations containing alcohol, are reasonable or not.  I am substantially in agreement with the line of  rea- soning adopted by the High Court and I consider that the Act is  not  a law imposing reasonable restrictions  so  far  as medicinal  and  toilet preparations containing  alcohol  are concerned. The National Prohibition Act or the Volstead  Act of America, to which I have referred, was also an Act relat- ing  to prohibition, but toilet and  medicinal  preparations containing alcohol were expressly excluded from the scope of that Act. I refer to that Act simply to show that a complete scheme  of prohibition can be worked without including  such articles  among those prohibited.  Again, article 47 of  the Constitution  also  takes note of the  fact  that  medicinal preparations should be excluded in the enforcement of prohi- bition.  I  do not consider that it is reasonable  that  the possession, sale, purchase, consumption or use of  medicinal and toilet preparations should be prohibited merely  because there  is a mere possibility of their being misused by  some perverted addicts.     It was contended that there was no meaning in  declaring the  provisions relating to purchase, sale, possession,  use and  consumption of medicinal and toilet  preparations  con-



taining alcohol to be invalid, since in the Notification No. 10484/45, issued by the Provincial 720 Government  on the 1st April; which is no part of  the  Act, the  Government  have exempted  duty-paid  perfumed  spirits (including  eau-de-cologne),  duty-paid  spirituous   toilet preparations  and  certain classes of  duty-paid  spirituous medicinal preparations from the following provisions of the Act :(i) Section 12 (c);     (ii)  Section 12 (d), in so far as it relates to  buying of such preparations;     (iii) Section 13 (b), in so far as it relates to use  of such preparations.     But it is to be noted that the sale of these articles is not  covered by the above notification, but is regulated  by two other notifications,  namely,  Notification No. 2843/49, dated  the  6th April, 1950, and Notification  No.  2843/49, dated  the  11th April, 1950. In  these  two  Notifications, there are provisions imposing limits on sales. For  example, in  the  first notification issued on the  6th  April,  rule 10(1) provides as follows:-     ’’The  licensee shall not sell to any person on any  one day any kind of perfumed spirits, spirituous toilet prepara- tions  or  essences  in excess of such quantity  as  may  be prescribed by the Commissioner under the     Similarly, in the second notification of the 11th April, rules 9 and 10 run as follows :--     "9.  The  licensee shall not sell  medicated  tonics  or medicated wines containing more than 10 per cent of  alcohol (or containing alcohol in strength more than 17.5 per  cent. of proof spirit) except those which are classified as  spir- ituous  medicinal preparations and regulated as  such  under the Drugs Act, 1940.     10.  Subject  to the provisions of rule 9  the  licensee shall  not sell the following spirituous medicinal  prepara- tions  to any person unless he produces a medical  prescrip- tion in that behalf, namely :-- (a)  medicated  tonics and medicated wines; (b)  asaves  and arishtas specified in the  Schedule  hereto annexed;   721      (c)  any other spirituous medicinal  preparations  con- taining  more  than 10 per cent of  alcohol  (or  containing alcohol in strength more than 17.5 per cent of proof spirit) which are intended for internal use:      Provided that the following spirituous medicinal prepa- rations may be sold to any person without the production  by such person of any medical prescription, namely  ......  ’’     In view of the restrictions imposed on the sale of these preparations,  it  is  pertinent to  enquire  whether  those restrictions  will not also affect their  purchase,  posses- sion,  use and consumption, and whether the socalled  exemp- tions contained in the notification of the 1st April  really go  as far as they purport to go: (vide in  this  connection conditions in col. 7 of Notification No. 10484/45 (a) of the 1st April, 1950). Again, in the Notification No. 10484/45 of the  1st  April, only 8 medicinal preparations  are  totally exempted as regards their purchase, possession, and use, and so  far as medicinal preparations for  internal  consumption are  concerned, only those containing not more than  10%  of alcohol or 17.5% of proof spirit are exempted.  This notifi- cation  has to be read along with another  notification  No. 10484/45(a)  of the same date, which was to remain in  force till  31st March,. 1951, only. In the  latter  notification, for  the  purpose of possession, purchase,  consumption  and



use,  the quantity of medicinal preparations containing  not more than 10% of alcohol, etc., is restricted to such  quan- tity  as may be prescribed by a registered  medical  practi- tioner. Even these notifications may be withdrawn, supersed- ed or amended at any moment by the Provincial Government, as was done in the case of the notifications issued on the 16th June, 1949, which have been referred to. An ordinary citizen may find it a perplexing task to attempt to extract informa- tion  out of the long series of complicated regulations,  as to  the  true nature and extent of the right which  the  law confers  upon him.  Indeed it was only with the help of  the learned counsel appearing for the parties that we were  able to  know what the position was up to the 31st March,   1950, and 722 what  changes were made on the 1st April, 1950. But  in  the bundle  of notifications which have been placed  before  us. there  is no notification stating what step has  been  taken after  the  31st March, 1951, and none was  brought  to  our notice  in  the  course of the arguments.  Having  given  my careful  consideration  to the matter, I am of  the  opinion that the restrictions imposed by the Act even when read with the  above  notifications are not reasonable,  and  I  would affirm the conclusion arrived at by the High Court.     The next group of sections which the High Court has held to be invalid, are sections 23(a) and 24(1) (a) in so far as they refer to "commending" any intoxicant, section 23(b)  in its  entirety, and section 24(1)(b) in so far as  it  refers to.  "inciting  or encouraging" any individual or  class  of individuals or the public generally "to evade the provisions of  any  rule, regulation or order made  thereunder  or  the conditions  of  any licence, etc." These provisions  run  as follows :-- "23. No person shall--      (a)  commend, solicit the use of, or offer any  intoxi- cant or hemp, or      (b) incite or encourage any member of the public or any class  of individuals or the public generally to commit  any act which frustrates or defeats the provisions of this  Act, or any rule, regulation or order made thereunder, or  ......      24.  (1) No person shall print or publish in any  news- paper,  news-sheet,  book,  leaflet, booklet  or  any  other single  or  periodical publication or otherwise  display  or distribute any advertisement or other matter,--      (a)  which commends, solicits the use of or offers  any intoxicant or hemp, or      (b)  which  is calculated to encourage  or  incite  any individual  or class of individuals or the public  generally to  commit an offence under this Act, or to commit a  breach of  or  to evade the provisions of any rule,  regulation  or order  made  thereunder or the conditions  of  any  licence, permit, pass or authorization granted thereunder." 723     Sections  23(a) and 24(1)(a) in so far as they refer  to "commending"  any intoxicant are said to conflict  with  the fundamental  right guaranteed by article 19 (1) (a)  namely, the right to freedom of speech and expression and there  can be  no doubt that the prohibition against  "commending"  any intoxicant is a curtailment of the right guaranteed. and  it can be supported only if it is saved by clause (2) of  arti- cle 19 which, as it stands at present, provides that  "noth- ing in sub-clause (a) of clause (1) shall affect the  opera- tion  of  any existing law in so far as it  relates  to,  or prevent  the State from making any law relating  to,  libel, slander,  defamation, contempt of court or any matter  which



offends against decency or morality or which undermines  the security of, or tends to overthrow, the State."  It seems to me  that none of the conditions mentioned in clause  applies to  the present case, and therefore the provisions in  ques- tion  must be held to be void. Section 23 (b) must  also  be held to be void. because the words "incite" and  "encourage" are  wide enough to include incitement or  encouragement  by words  and  speeches  and also by acts.   The  words  "which frustrates or defeats the provisions of the Act or any rule, regulation or order made thereunder" are so wide and.  vague that  it is difficult to define or limit their scope.  I  am therefore in agreement with the view of the High Court  that this provision is invalid in its entirety. So far as article 24(1)(b)  is  concerned the judgment of the  High  Court  in regard  to it cannot be upheld. The learned counsel for  the petitioner also conceded before us that he was not going  to assail this provision.      The  High  Court  has also  declared  sections  136(1), 136(2)  (b),  136(2)(c), 136(2)(e), 136(2)(1)to be  void  as offending  against  various  provisions of  article  19  the Constitution, but no argument was addressed to us on  behalf of  the Government of Bombay assailing the judgment  of  the High Court with regard to these provisions. The judgment  of the High Court in regard to them will therefore stand.      I  will now deal with two Notifications  Nos.  10484/45 (c) and 2843/49(a), dated the 30th March, 1950, which 724 the High Court has held to be invalid. As regards the  first notification, the High Court has stated that section 139 (c) having  been  held to be ultra vires the  legislature,  this notification,  which was issued under that section is  ultra vires  the  Bombay Government.  But. since  this  Court  has taken a different view in regard to the validity of  section 139(c), the decision of the High Court as regards the  above notification cannot stand. It appears from certain  observa- tions  in the judgment under appeal, firstly that  the  High Court  upheld  section 40(1) (c) (i) and (ii),  which  deals with the grant of permits to foreigners who do not intend to stay permanently in India, merely because the Explanation to that  section provided that "a person shall be deemed to  be residing or intending to reside in India temporarily, if the period  of  his residence does not exceed six  months";  and secondly, that the High Court would have found it  difficult to  uphold the classification on which section  40(1)(c)  is based if the restriction regarding six months’ residence was not  there,  as would be the result of reading  the  section subject  to the above notification.  I am however unable  to see how the notification will turn a classification which is otherwise  a good classification into a bad one.   There  is nothing  unreasonable in a law relating to prohibition  dis- criminating  between  Indian  citizens against  whom  it  is primarily to be enforced, and foreigners who have no  inten- tion of permanently residing in this country. The  condition of six months’ residence which is laid down in the  Explana- tion to section 40 is somewhat arbitrary., and the mere fact that the Government by notification withdrew this  condition cannot in principle alter the basis of the classification.     The  High  Court  has declared  the  other  notification issued  by  the Government on the 30th March,  1950,  to  be invalid on grounds  which are stated in these words :--     "That notification exempts persons holding permits under clause (c) of sub-section (1) of section 40, special permits under section 41, or interim permits under section 47,  from the provisions of section 23(a)    725



in so far as it relates to the offering of foreign liquor to persons holding similar permits. This is clearly not  justi- fied. Having created a class, having given to that class the right of obtaining a permit on grounds other: than those  of health, it will be totally wrong to permit that class not to abide  by  the  same provisions with regard  to  permits  as others  to  whom permits have been given.  The  restrictions placed by the legislature itself on a permit-holder  regard- ing the use and consumption of his stock of liquor is to  be found in section 43 under which the permit-holder shall  not allow  the  use and consumption by any person who is  not  a permit-holder.   That  restriction  must  apply  equally  to permits  issued under section 40 to Indian citizens as  well as foreigners, and in our opinion it is improper to allow  a foreigner  permit-holder  to stand drinks to  other  permit- holders and to deny that privilege to Indian permit-holders. The  guarantee of equality before the law extends under  our Constitution  not only to legislation but also to rules  and notifications  made  under statutory authority and  even  to executive orders and as the notification offends against the principle of equality it is, therefore, void."     In order to understand these remarks, it will be  neces- sary to state that persons holding permits under clause  (c) of sub-section (1) of section 40 are foreigners as described in sub-clauses (i)and (ii)of clause (c), that persons  hold- ing special permits under section 41 are foreign sovereigns, ambassadors, etc., and that persons holding interim  permits under  section  47 are persons applying  for  permits  under either  section 40, or section 41. The last class  will  in- clude not only foreigners but also Indian citizens  applying for permits on the ground that their health will be serious- ly and permanently affected if they are not permitted to use or  consume liquor.  Thus, the assumption on which the  con- clusion  of the High Court is based, does not appear  to  be correct.  Besides, I do not find anything in this  notifica- tion  which  violates the principle of equality.  It  simply enables a certain class of persons holding permits to  offer drinks to persons holding similar permits, 726 This  is in accord with the principle underlying the  provi- sions  of section 43 which has not been assailed  before  us and  which  provides that "no holder of  a  :permit  granted under section 40 or 41 shall allow the use or consumption of any  part of the stock held by him under the permit  to  any person  who  is  not the holder of such a  permit".   In  my opinion,  there  is no substantial ground  for  holding  the notification  to  be  invalid. The points  relating  to  the notifications are extremely small, and the  subtle  distinc- tions upon which they are based, are hardly worth the atten- tion which the High Court has bestowed on them.     There  is another point which arises on the judgment  of the High Court, which may also be noticed. The point is  set out in that judgment in these words :--     "When  a  person applies for a permit on the  ground  of health.  he  has to forward with it a certificate  from  the medical board and when we turn to the form of this  certifi- cate, it requires the medical board to declare the applicant an addict. Therefore the position is that it is only on  the applicant being found an addict by the medical board that he would  be entitled to a permit if his health would be  seri- ously  and permanently affected if he was not  permitted  to use  or consume liquor.  It is not only in the case  of  ad- dicts that such a contingency would arise. Even persons  who are not addicts may have been accustomed to drink for a long period  of  time and a sudden discontinuance  of  drink  may



seriously  and permanently affect their health. It may  also happen  that  without  being accustomed to drink  at  all  a person may contract an illness which may require the use  by him  of  alcoholic  drink under medical opinion.  To  be  an addict,  in  our opinion, means something  more  than  being merely  accustomed  to drink. We must give to it  its  plain natural  meaning.  It is certainly not a term  of  art,  and giving  to  it  its plain natural  meaning,  the  expression "addict"  does carry with it a sense of moral  obloquy.  The intention  of the Government seems to be that  only  persons who confess that they are deviating from standards of moral- ity should be given permits..Now,    727 insistence  upon a medical certificate in this form  is  not at all warranted by the provisions of the Act."    The  point  is  a  small one, but it  seems  to  me  that there  is  some  substance in it. In my  opinion,  the  word "addict"  in  the  medical certificate  should  be  replaced by  the  words  used  in section  40(1)(b)  of  the  Act  or words corresponding to them.    The  only other point which remains to be decided      is whether  as  a  result of some of the sections  of  the  Act having been declared to be invalid, what is left of the  Act should survive or whether the whole Act should  be  declared to  be  invalid. This argument was raised  before  the  High Court also, but it was rejected and it  was held that it was not possible on a fair review of the whole matter to  assume that  the legislature would not have enacted the part  which remained without enacting the part that was held to be  bad. It is to be  noted that upon the findings of the High Court, the  question  should  have assumed a  more  serious  aspect than  it  presents now, because the High Court  has      de- clared  several  important  sections of  the  Act  including the  definition of "liquor" to be ultra vires  the  legisla- ture.  I have now examined those sections and have      held many of them to be valid. The provisions which     are in my view  invalid  cannot affect the validity of the  Act  as  a whole.   The test to be applied when an  argument  like  the one addressed in this case is raised,has been very correctly summed  up by the Privy     Council in Attorney-General  for Alberta v. Attorney- General for Canada(1) in these words:--     "  The  real  question is whether  what  remains  is  so inextricably  bound  up  with  the  part  declared   invalid that what remains cannot independently survive or.     as it has sometimes been put, whether on a fair review     of  the whole  matter it can be assumed that the  legislature  would have  enacted  what survives without     enacting  the  part that is ultra vires at all." It  is  quite  clear that the provisions held by  me  to  be invalid are not inextricably bound up with the (1) [1947] A.C. 505 at 518., 728 remaining provisions of the Act, and it is difficult to hold that the legislature would not have enacted the  Act at  all without  including  that  part which is found  to  be  ultra vires. The Act still remains substantially the Act as it was passed,  i.e.,  an Act amending and  consolidating  the  law relating  to the promotion and enforcement of the policy  of prohibition  and  also  the Abkari law in  the  Province  of Bombay. In the result, I declare the following provisions of the Act only to be invalid :--     (1)  Clause (c) of section 12, so far as it affects  the possession  of  liquid  medicinal  and  toilet  preparations containing alcohol.



   (2)  Clause (d)of section 12, so far as it  affects  the selling or buying of such medicinal and toilet  preparations containing alcohol.     (3)  Clause (b) of section 13, so far as it affects  the consumption or use of such medicinal and toilet preparations containing alcohol.     (4) Clause (a) of section 23, so far as it prohibits the  commendation of any intoxicant or hemp.     (5) Clause (b) of section 23, in entirety.     (6) Clause (a) of sub-section (1) of section 24, so  far as it prohibits commendation of any intoxicant or hemp.    (7) Sub-section (1) of section 136, in entirety.      (8)  Clauses (b), (c), (e), and (f) of sub-section  (2) of section 136, in their entirety.      I  hold that the rest of the provisions of the Act  are valid,  and I also hold that my decision declaring  some  of the provisions of the Act to be invalid does not affect  the validity  of  the Act as it remains.  Appeal No.  182,  pre- ferred  by the State of Bombay, is  therefore  substantially allowed  and Appeal No. 183 preferred by the  petitioner  is dismissed.  On  the question of costs, I am disposed to make  the  same order  as the High Court has made, not only because some  of the provisions of the Act are still found to be invalid, bUt also because the present case 729 appears  to have been instituted to test the validity  of  a controversial  measure and to secure a final decision on  it to  set at rest the doubts and uncertainties which may  have clouded  the minds of a section of the public as to how  far the provisions of the Act conform to law and to the  Chapter on Fundamental Rights in the present Constitution.      PATANJALI  SASTRI J.-I agree and have nothing  more  to add. MUKHERJEA J.--I have read the judgment of my learned brother Mr.  Justice Fazl Ali and I am in entire agreement with  his conclusions  and reasons. There is nothing further  which  I can usefully add.    S.R. DAS J.--I agree and I have nothing further to add. VlVlAN BOSE J.--I also agree.                     Appeal  No. 182 allowed.                     Appeal No. 183 dismissed.     Agent for the appellants in Case No. 182 and respondents in Case No. 183: P.A. Mehta.     Agent for the respondent  in Case No. 182 and  appellant in Case  No. 183. Rajinder  Narain for R.A. Gagrat.                     -----------