TMI Blog1950 (8) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... om enforcing against him the provisions of the Bombay Prohibition Act. He also sought for a writ of mandamus or an order under Section 45, Specific Belief Act, ordering the respondents to allow the petitioner to exercise his right to possess, consume or use the articles which have been mentioned before. It was realised by the petitioner in the course of the argument of this petition that even if he were to succeed, reliefs of the nature asked for by him may not be available to him. He therefore sought for an amendment of the petition. The amendment was opposed by the Advocate-General on behalf of the respondents. We gave him leave to amend as we took the view that by this amendment the petitioner was in no way altering his cause of action. He relied on the same averments as were contained in the original petition and all that he asked for was reliefs different from those which he had originally asked. We will consider the nature of the reliefs, and whether he is entitled to any of them, later. 2. The impugned Act is Act XXV [25] of 1949 passed by the Bombay Provincial Legislature as it then was. It is both an amending and consolidating Act and it contains provisions for the prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublishing in any newspaper, news-sheet, etc. any advertisement which commends, solicits the use of or offers any intoxicant and which is also calculated to encourage or incite the committing of a breach or evasion o the provisions of the Act. Chapter IV deals with control, regulation and exemptions. Section 25 gives the power to the Provincial Government to exempt from the provisions of the Act any preparation containing alcohol not exceeding a specific percentage by volume. Under Section 31, any person or institution may be granted a permit for the manufacture, export, import, transport, sale or possession of liquor for a bona fide medicinal, scientific, industrial or such like purpose. Section 33 deals with trade and import licences. Section 87 authorizes the Provincial Government to sell foreign liquor to the managers of dining cars on railways and captains of coasting steamers. Section 39 empowers the Government to permit the use or consumption of foreign liquor on cargo boats, warships and troopships and military and naval messes and canteens, on such conditions as may be specified in the notification published in the Official Gazette. Section 40 deals with general permits wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horization, is likely to abide by all the conditions of the licence, permit, pass or authorization and the provisions of the Act and not to do any. thing which would have the effect of directly or indirectly defeating or frustrating the object and purposes of the Act. Section 54 deals with cancellation or suspension of licences and permits. Chapter V deals with mhowra, flowers, and chap. VI deals with the control and regulation of molasses, with which we are not concerned. Chapter VII deals with offences and penalties. Under this chapter, the contravention of the various provisions of the Act to which we have referred is made penal. Chapter VIII deals with excise duties. Chapter IX is procedural. Under Section 136, power is given to a Prohibition Officer not below the rank of the Commissioner and Collector and any police-officer not below the rank of the Superintendent; of Police in Greater Bombay or the Deputy Superintendent of Police elsewhere, if be is satisfied that any person is acting or is likely to act in a mariner which amounts to a preparation, an attempt, an abetment, or a commission of any of the offences punishable under Section 65 or 68, to arrest or cause to be arres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, but which are not intoxicating liquors, was beyond the competence of the Provincial Legislature to enact. The Act was passed under the Government of India Act of 1935 and we have to turn to the provisions of that Act in order to determine what was the legislative competence of the Provincial Councils set up under that Act, The legislative competence is to be decided with reference to List II and List in in Schedule VII of the Act. Now, in construing the various entire a in this List, certain basic have to be borne in mind. The Government of India Act gave to India a Federal Constitution with well defined legislative powers for the Centre and the Provinces and also a field of legislation with concurrent powers for both. The Provincial Legislature within the ambit of its own powers was sovereign and the powers conferred were to be construed as plenary powers. As far as possible an attempt was to be made to reconcile the various entries in the List, and in interpreting any particular entry the widest import was to be given to the language used by Parliament. The attempt of Parliament was to exhaust; all spheres of legislative activity by enumerating all conceivable topics of legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e competence in that regard must be found either in item 31 or in some other items in List II or List III. 5. Now turning to item 31, it is in the following terms : 31. Intoxicating liquors and narcotic drugs, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs, but subject, as respects opium, to the provisions of List I and, as respects poisons and dangerous drugs, to the provisions of List III. It is necessary to consider the scope of this item under which in any event the Act admittedly falls. In the first instance the words, that is to say have been construed by the Federal Court as being merely illustrative and not words of limitation. Sea United Provinces v. Atiqa Begum, 1940 F.C.R. 110 at p. 134 : (A.I.R. (28) 1941 F. C. 16), Bhola Prasad v. Emperor, 1942 F. C. R, 17 at pp. 25-26 : (A. I. R. (29) 1942 F. C. 17 : 43 Cr. L. j. 481 and Manikasundara, Bhattar v. B. S. Nayudu, 1946 F.C.R. 67 at p. 84 : (A. I. H. (34) 1947 F. C. 1). That being so with reference to item 31 Sir Maurice Gwyec C. J. in Bhola Prasad's case, (1942 F. C. R. 17 : AIR (29) 1942 F C 17 : 43 Cr. L. J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation to legislation for the enforcement of prohibition of intoxicating beverages. 8. Before dealing with these decisions we would like to point out that in applying these decisions to India two factors must be constantly kept in mind. Prohibition of intoxicating liquors became a part of the American Constitution by the 18th Amendment and Section 2 of that Amendment specifically empowers both the Congress and the several States to pass appropriate legislations to enforce prohibition. Therefore, in the legislations enacted for the purpose neither the Congress nor the State Legislatures were enacting a law merely on a topic assigned to them and their power of legislation was not limited to any particular topic. Moreover, as in the United States of America, specific legislative powers are assigned to the Congress and the residuary powers vest in the State Legislatures, the States have a general police power 'to protect any social interests which are sufficient to warrant delimiting personal liberty therefor. (See Wallia on Constitutional Law, p. 721). The Provinces In India under the Government of India Act, 1935, have police powers only in so far as they relate to the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 226 U. S. R. 192, The statute of Mississippi prohibited the sale of malt liquors. The plaintiffs were manufacturers of a beverage poinsetta and had given the sole selling rights to the defendant for five years in Hinds country, Mississippi. The defendant repudiated the contract on the ground that it was unlawful to sell poinsetta. The suit was filed to enforce the contract. The plaintiffs challenged the validity of the statute inter alia on the ground that it deprived the plaintiffs of their liberty and property without due process of law and thus violated the 14th Amendment. The characteristics of poinsetta were agreed between the parties to be as follows (pp. 197-199) : ... it is composed of pure distilled water to the extent of 90.45 per cent. the remaining 9.55 per cent. being solids derived from cereals, which are in an uufermented state, and are wholesome and nutritious'; that 'it contains 5.73 per cent. of malt and is sold as a beverage'; that it does not contain either alcohol or saccharine matter being manufactured in such a manner under a secret formula obtained from German scientists as to bring neither into its composition ; that it is not intox ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nominal power while preventing its effective exercise. The statute establishes its own category. The question in this Court is whether the legislature had power to establish it. The existence of this power, as the authorities we have cited abundantly demonstrate, is not to be denied simply because some innocent articles or transactions may be found within the prescribed class. The inquiry must be whether, considering the end in view, the statute pisses the bounds of reason and assumes the character of a merely arbitrary fiat. That the opinion is extensively hold that a general prohibition of the sale of malt liquors, whether intoxicating or not, is a necessary moans to the suppression of trade in intoxicants, sufficiently appears from the legislation of other states and the decision of the Courts in its construction .... We cannot say that there is no basis for this widespread conviction. The state, within the limits we have stated, must decide upon the measures that are needful for the protection of its people, and, having regard to the artifices which are used to promote the sale of intoxicants under the guise of innocent beverages, it would constitute an unwarrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that it is necessary to have such provisions in the Act in order to make the scheme water-tight. Such a contention cannot be sustained. In Atlantic Smoke Shops, Ltd. v. Conlon, (1944) 7 F. l. J. 1: (1943 A. c. 550) the facts were that by the New Brunswiak Tobacco Tax Act, Section 4, a duty was enforced on all tobacco purchased fox consumption at a retail sale. Section 6 provided that if any tobacco was imported into the Province for private consumption duty would have to be paid on it. This section was challenged on the ground that it was ultra vires of the Legislature. It was obviously a section intended to guard against methods of evasion of tax imposed by Section 4. Visaount Simon in delivering the judgment observed as follows (p. 8): ... the validity of Section 5 must be judged according to its terms and, if its enactment by the provincial Legislature be beyond the powers of that legislature, It cannot be justified on the ground that it is needed to make the whole scheme water-tight. Therefore, we are of the opinion that although the Legislature may while legislating under item 31 prevent the consumption of non-intoxicating beverages and also prevent the use as drinks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport, import, transport, sale or possession of liquor and the proviso to that section provides that any person who obtains liquor for bona fide medicinal purposes from such a license-holder does not need a permit to pnesess it; but neither such person nor the permit-holder appears to have been empowered to use or consume such liquor. The Bombay Foreign Liquor Rules 1960, do contain a provision under Section 68 for a permit to keep two drama of brandy or rum for use in an emergency, but Sub-section (7) contains a somewhat extraordinary provision that the permit holder shall not allow the use of such brandy or rum to anyone but a member of his household even in an emergency. If a citizen is impelled by considerations of humanity to help a fellow citizen in an emergency, he must be prepared to undergo the penalty precribed by the Act for a breach of the law. Surely if brandy or rum has a legitimate medicinal use in an emergency, we find it difficult to believe that an enlightened Government should wish to forbid a permit holder to allow a needy person the use of rum or brandy in an emergency if such person does not happen to possess it. There can in such a case be no fear of the abus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be, if it does not in fact contravene any of the articles of the Constitution which lay down fundamental rights, then it would be the duty of the Court to uphold such legislation. The line to be drawn between the powers of the Legislature and the powers of the Court may sometimes be indistinct and uncertain, but that a line exists must never be forgotten. The powers conferred upon the Courts of law by our Constitution are; immense, but the very immensity of those powers must require of us a wise and unfailing restraint. 19. The first challenge to the impugned legislation is that it contravenes Article 14 of the Constitution. That article is headed Eight to Equality and provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The following Article 15 deals with discrimination, and it refers only to citizens, and the discrimination guarded against is on grounds only of religion, race, oaate, sex, place of birth or any of them. On the other hand, Article 14 gives the protection of equality to all persons who are subject to the laws of India, In effect Article 14 means that all laws must ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication whatever for such discrimination. Section 46 applies alike to Indian visitors as to foreign visitors and it is on that basis that we consider the classification reasonable. Then we have two classes who have been treated in the Act on a different basis. The first class under B. 39 is of cargo boats, warships, troopships and military and naval mesaea and canteens, and the second class under Section 40(o) is of persons either born or brought up or domiciled in any country outside India where liquor is generally used or consumed, and foreigners. But in both these cases their residence in India must be temporary and they must have a fixed and settled purpose of making their sole and permanent home in any country outside India and they must have been ordinarily using or consuming liquor. We should first like to deal with Section 39. The first thing to notice is that the section does not contemplate a licence for sale of liquor as in the case of a hotel under Section 35, or a railway dining car, or a coasting steamer under Section 37, or a passenger ship under Section 38, or a club under Section 44. In the case of all such licenses presumably the person wishing to drink would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfy us is that there is something about this special class which could conceivably justify the Legislature in giving it special rights with regard to the use and consumption of liquor. If the Prohibition Act is a measure for social reform and public welfare, then there does not seem to be any reason whatsoever for exempting from its operation a section of the citizens of India. Why should the army not conform to standards of social reform laid down by the Legislature as much as the civilian population ? Why must the army be permitted to do something which is opposed to public welfare ? With regard to the argument that the army is governed by its own discipline, we fail to see how such an argument could be advanced in support of this classification. The Police force is also subject to rigorous discipline, but the use and consumption of foreign liquor has not been allowed to them. The more disciplined the army is, the easier would it be to enforce the prohibition law against it. It is also suggested that by reason of the discipline in the armed forces of the State those who resort to military or naval canteens and messes may be trusted to drink moderately. This consideration appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be specified by the Provincial Government, and it was suggested that there would be nothing to prevent the Government from imposing a condition as to health similar to the one contained in Section 40(b). That argument is obviously fallacious because in the first instance the section does not contemplate the issue of permits to individuals, and, secondly, if the intention of the Legislature was that the classes mentioned in Section 39 should only get permits on ground of health, then there was no reason whatever to have a separate section and a separate classification introduced therein. 20. Turning now to the case of foreigners, on the one hand we are impressed by the consideration that foreigners in our country should not be placed on a different footing from the citizens. Before Independence, we deeply resented any special treatment that was meted out to non-Indians and we should have thought that after Independence our Legislature would make no distinction in the provisions of municipal laws between foreigners and non-foreigners. We are also impressed by the fact that the 18th Amendment of American Constitution introducing prohibition in the United States made no concessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o persons holding similar permits. This is clearly not justified. 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 restriction placed by the Legislature itself on a permit-holder regarding 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. With regard to persons who are either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burden should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences. It is instructive to consider the next two cases which deal with foreign corporation challenging the eqality of the law. The first is Power Manufacturing Co. v. Saunders, (1926) 274 U. S. R. 490. There it was held that a foreign corporation could not be deprived of the equal protection of the laws by statutes permitting it to be sued in any county in the state, while suits against domestic corporations and individuals could be brought only in counties where they were found or did business or had a represents. live. Van Devantr J. stated (p. 493): ... It (that is the 14th Amendment) does not prevent a state from adjusting its legislation to differences in situation or forbid classification in that connection; bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is deemed to be clearest. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.' There is no 'doctrinaire requirement.' that the legislation should be couched in all embracing terms. If therefore our prohibition law had confined its operation to those classes where the need for reform was greatest, no objection could have been taken. 22. It is next contended that certain provisions of the Act offend against Article 19(1)(a) of the Constitution which guarantees the right of freedom of speech and expression. The sections challenged are B. 23 (a) and (b) and B, 24 (1). Section 23(a) prohibits not merely soliciting the use of or the offering of any intoxicant, but also commending any intoxicant and the contravention of this provision has been made penal under B. 75 (a) of the Act. Now the expression commend is clearly very wide in its connotation. Any praise of liquor either by word of mouth or by writing would come within the mischief of this sub-section. Even an article by a medical man praising the qualities of alcohol and recommending its use in certain cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the public generally from committing any act which frustrates or defeats the provisions of the Act or any Rule, Regulation or Order made thereunder. It is clear that the incitement or encouragement may be by speech or expression. An incitement or encouragement is not confined to committing a breach or contravention of any provision of the Act, but extends to frustrating or defeating the provision of the Act. In our opinion, this incitement or encouragement may extend to acts which are perfectly lawful and which have not been prohibited by the Prohibition Act. It would be clearly a violation of the right of freedom of speech and expression to prevent a person from advocating something which is lawful even though it may have the effect of frustrating or defeating the provisions of the statute. The Advocate-General says that the Legislature is fully justified in prohibiting not only the direct contravention of the Act, but even the evasion of it. But this argument is of no avail because evasion itself has not been made an offence under that statute. What has been made an offence is the incitement or the encouragement. The same considerations apply to Section 24(1)(a) to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, but certainly these extraordinary powers cannot be justified, No one has suggested that intemperance in the State of Bombay has assumed such proportions that the State Legislature is compelled in the interest of the general public to violate the fundamental rights secured to each citizen. Clause (2) of Section 136(2) is also void as offending against Article 19(1)(g). Here again, the restrictions are not in the interest of the general public. Clause (f) is void as being too wide and enabling the Government to prohibit or restrict the possession or use of any article. This clearly offends against Article 19(1)(f). How wide were the powers which the Legislature intended to confer upon the executive may be gathered from the fact that under Section 136(11) no order made under that section could be called in question in any Court. 24. The provisions of the Act which prevent the legitimate use of non-beverages and of medicinal and toilet preparations containing alcohol are also challenged on the ground that they offend against the right of a citizen under Article 19(1)(f) of the Constitution to acquire, hold and dispose of property. Of course this question would not arise in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 25. The next ground on which certain provisions of the Act are challenged is that they constitute delegation of legislation. Under Section 62 power is given to 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 Government 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 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 detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son 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 certificate, 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 obtain a permit on the ground of health. Under Section 40 a person is entitled to a permit if his health would be seriously and permanently affected if he wag not permitted to use or consume liquor. It is not only in the case of addicts 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s where a part of legislation is ultra vires, it does not apply where a part of legislation is held to be void under Article 13, and this contention is based on the language of Article 13. It is emphasised that both under Article 13(1) and 13(2) what is made void is only laws to the extent that they are inconsistent with fundamental rights and which might be made in future in contravention of fundamental rights. It is clear that the Constitution was not considering the doctrine of severability in enacting Article 13. It was only considering the extent to which certain laws may be void. It has not dealt with consequences that may follow upon a certain law being declared void to a particular extent. As a matter of fact, the Supreme Court recently in A. K. Gopalan v. The State of Madras, did consider the question of severability under Article 13(a) and we see no reason in principle why if the question of severability may be considered under Article 13(2) it cannot be considered under Article 13(1). 28. Before we consider the frame of the petition and the reliefs to which the petitioner is entitled, we should like to state that ordinarily we would have applied our mind first to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ything which would have the effect of directly or indirectly defeating or frustrating the objects and purposes of the Act. The Advocate- General has argued that the petitioner is not entitled to any relief because he never made a specific demand of these rights against the Government and he never gave an opportunity to Government to comply with any of his demands and, therefore, strictly there was no denial of his, rights by Government at the date the petition was filed. To maintain an application under Section 45, Specific Belief Act, a demand of justice and its denial is essential before an order can be made under that section. It is true that the orders that the petitioner is now seeking are not confined to Section 45 but fall under Article 226 of the Constitution. But even so, we have to consider whether it is open to a petitioner under Article 226, without making a specific demand of his right and without giving an opportunity to the Government to comply with that right, to file a petition. It was pointed out in Jeshingbhai Ishwarlal v. Emperor , that the Court should of its own motion put limitations upon the wide powers conferred upon it under Article 226. Therefore, while i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Act, we do not think that we should deny to the petitioner the rights which he has claimed and to which he is entitled under the Constitution. Therefore, there would be an order against Government under prayer (a) of the petition ordering them to forbear from enforcing against the petitioner the provisions of the Act which we have held to be void in so far as they affect him, and there would also be an order in terms of prayer (c) (i) of the petition. 30. We have heard counsel on the question of costs. The Advocate-General has contended that the petitioner's challenge to the Act was very extensive and he has not succeeded in making good that challenge. While that may be true, we must not overlook the fact that the petitioner has succeeded in getting us to hold that certain important provisions of the Act are void. On the other hand, it is only by reason of the indulgence shown by us to the petitioner that he has succeeded on the petition with which he came to the Court in getting the reliefs which he asked for. Taking all the circumstances into consideration, we think that the fairest order to make would be that there should be no order as to costs. 31. Certificate un ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
