May 25 v. F. N. BALSARA

It seems to me that it will be convenient to deal in the Act as a whole, which is based ·on the argument assailing validity of three grounds, these being :- instance with ( 1) that the law is an encroachment on the field the Central which has been assigned exclusively 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 1951 Th< State qf Bombay and Anothtr v. F. N. Balsara. Fazl Ali]. 690 SUPREME COURT REPORTS (1951} provmons of section 2'J7 of the Government of India Act, 1935; and (3) that the High Court having held a number of material provisions to be void, should have declared the Act as a whole to be invalid, especially as the pro visions found by the High Court to be void are not severable from the rest of the Act and it cannot be 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 of legislation . assigned to the centre. In order to de cide 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 said to have been transgressed. These entires run as follows:~ i!ay, is to Entry 31, List 11 :. Intoxicating liquors and narcotic the production, manufacture drugs, that possession, transport,· purchase and sale of· intoxicating liquors, opium and other narcotic drugs, but subject as respects opium, to the provisions of List I and, as respects poisons and dangerous drugs, to the provisions of List III. Entry 19, List I : Import and export across customs frontiers as defined by the Dominion Government. Prima facie, it would seem that there is no real 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, t1iis entry, port, purchase and sale. Dealing with Gwyer C. J. observed as follows in the case of Bhola Prasad v. The King Emperor(') :- (')[1942] F.C.R. 17 at 25. $.C.R • SUPREME COURT REPORTS 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 throughout to prohibit intoxicating liquors the. Province or in any specified part of the Province." 1951 The State qf Bombay anti AnotMt v. F. /(. Balsara. Fa.i;l Ali J. Thus, under entry 31, the Provincial Legislature can regarding production, manufacture, transport, purchase, possession and sale of intoxicat ing liquor. But the point that is pressed for our con sideration is that "import" does not end with mere landing of the goods on the shore or their arrival in the customs house, but it implies that . the imported goods must reach the hands of the importer and he should be able to possess · theµi. On !ltls basis, it is contended that there is no difference in effect between a power to prohibit the possession and sale of an arti introductiqn cle and a power to prohibit ~ts import or into the country, since the one would be a necessary consequence of is based upon some American cases to which I shall refer l~ter, but it may be stated at once that the point which is raised in this case is precisely the point which was raised and negatived in Miss Kishori Shetty v. The In that case, the appellant had been con King(1). victed under section 14-B of the Bombay Abkari Act, 1878, as amended by the Bombay Abkari (Amend ment) Act, 1947, for having in possession a· certain quantity of foreign liquor in excess of the limit pres cribed by a notification the following provision of the Act :- the other. This contention issued under "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 Presidency 9r in any . local area, of any intoxicant, either absolutely or subject to such condi tions as it may prescribe." (1) [1949] F.C.R. 650. !951 TheStatt ef Bombay and Another v. F. N. Balsara. 692 SUPREME COURT REPORTS [1951] The main argument advanced in that case was re produced in the judgment in these words :- argued imported consumers, from abroad, "But counsel for the appellant. drew attention item 19 of List I which covers "Import and export the Dominion across customs frontiers as defined by "intoxicating Government", liquors" in item 31 of List JI were held to include also the Provincial liquors liquors Legislature, by prohibiting possession of such by all persons, whether private common carriers or warehousemen, could defeat the power of the Federal Legislature to regulate imports of foreign liquors across the sea or land frontiers of British India which are customs frontiers as defined by the Central Government and thus seriously jeopardise an important source of central customs tion 100 of the Constitution Act the Provincial legis lative powers under List JI were subject to the exclusive powers of the Federal Legislature in List I, the Bombay Act to the extent to which it trenched upon the subject of item 19 of the latter List must, it was submitted, be regarded as a nullity." revenue. As under 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_:- necessitate supremacy irreconcilable "There is, principle in our view, no as would recourse Federal down in section 100 of the Constitution Act. Sec restrict or prohibit tion 14-B does not purport importation or in respect of liquor dealings exportation across the sea or land frontiers of British the possession of to deal with India. intoxicating liquors which, in the absence of limiting liquors. It is far-fetched, words, must include foreign in our opinion, to suggest that, in so far as the provi legislation with sion covers respect to import of liquors into British India by sea or land". It purports liquors, foreign 1951 The State qf Bombay and Another v. F. N. Balsara. Ea.ti Alj J. S.C.R. SUPREME COURT REPORTS 693 in which there have been several cases Since the enactment of the Government of India Act, 1935, principles which govern the interpretation of the Legis lative Lists have been laid down. One of these princi ples is that none of the items in each List is to be read in a narrow or restricted sense(1). The second principle is that where there is a seeming conflict between an entry in List II and an entry in List I, an attempt should be made to see whether the two entries cannot be reconciled so as to avoid a conflict of jurisdiction. This principle has been stressed in a number of cases by the Federal Court as well as by the Privy Council. In re The Central PrOtlinces and Berar Act No. XIV -0/ 1938(2), the question arose as to whether a tax on the sale of motor spirits was a tax on the sale of goods the Provincial List or a duty of within entry 48 of list. Dealing excise within entry 45 of with the difficulty which arose in that case, Gwyer C. J. observed as follows :- the Federal reading "Only in the Indian Constitution Act can the parti cular problem arise which is now under consideration; and an endeavour must be made to solve it, as the Judicial Committee have said, by having recourse the context and scheme of the Act, and a reconciliation attempted between two apparently conflicting jurisdic together and by tions by interpreting, and, where neceessary, 'modifying, language of the one by that of the other. If indeed such a reconciliation should prove then, and only then, will the non-obstante clause operate and the federal power prevail; for the clause ought to be regarded as a last · resource, a witness to the imperfec tions of human expression and the fallibility of legal craftsmanship." two entries impossible, 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) fl935] F.C.R. 179 at H!l. 1951 Thi Stale qf Bombay and Another v. F. N. Balsara. Fazl Ali]. 694 SUPREME COURT REPORTS [1951] after referring to section 100 of the Government of India Act, 1935 :- language of "Their Lordships do not doubt that the effect of these words is that, if the legislative powers of. Federal and Provincial Legislatures, which are enumer ated in List I and List II of the Seventh Schedule, latter must givJ: way cannot fairly be reconciled, the them that it is to the former. But it appears to first to consider whether a fair reconciliation cannot be effected by giving the Federal Legislative List a meaning which, if less wide than it might in another context bear; is yet one that can pro perly be given to it, and equally giving to the language of the provincial Legislative List a meaning which the present case, as already In can properly bear." sale" occur "possession and pointed out, the words ring in entry 31 of List II are to be read without any qualification whatsover, and it will not be doing any violence to the construction of that entry to hold that the power to prohibit the Provincial Legislature has the possession, use and sale of liquor If we forget for the time being the. princi absolutely. ples which have been American cases, it would be difficult to hold that the either sale or possession of 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 it difficult to hold that the Bombay Prohibition Act so far as it purports to restrict possession, use and sale of foreign liquor, is an encroachment on assigned to the Federal Legislature under entry 19 of List I. 'import' standing by in some of intoxicating laid down the article itself will include I There is also another way of dealing with the con tention raised before us. incidentally validity of an Act trenches· on matters outside the authorised field, and therefore, it is necessary to inquire in each case what is If the the pith and substance of the Act impugned. Act, when so viewed, substantially It is well settled that is not affected falls within S.C.R. SUPREME COURT REPORTS 695 powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because incidentally encroaches on matters which have been assigned to another l~gislature. This was emphasised very clearly in Gallagher v. Lynn(1) in these words:- 1951 The State qf' Bombay and &iolhn v. F. N. BalstZl'a •. Fa(l AU J. "It is well established that you are to look at "true nature and character of the legislation : Russell v. the Queen(2) 'the. pith and substance of the legisla If, on the view of the statute as a whole, you tion'. find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field". In Prafulla Kumar Mukherjee and Others v. Bank of Commerce, Ltd., Khulna(8) the question arose before the Privy Council whether the Bengal Money-lenders Act, 1940, which provided that no borrower shall be liable to pay after the commencement of the Act more than a limited sum in respect of 'principal and interest, WM intra vires the Provincial Legislature as dealing in pith and substance with money-lending and money lenders, a subject-matter within the competence of the Provincial Legislature under entry 27 of List II, or whether "banking'', which were Federal Legislature under entries 28 and 38 respectively of List fact that loans. on promissory notes would also have been subject to the provisions of the impugned Act, that the Act was valid, and while rejecting the argument . that tence of the Provincial Legislature which had enacted it, their Lordships observed as follows :- I. The Privy Council, notwithstanding "promissory notes" it was beyond trenched on legislative reserved subjects "As Sir Maurice Gwyer C. J. said in the Subrah inevitably happen manyam Chettiar case: "It must from time to time that legislation, though purporting to deal with a subject in one list, touches also on a ( 1) [1937] A.e. 863 at 870. ( 2) 7A.C. 829. (a) [1947] F.C.R. 28. , 195! Th•Statt of Bombay and Another v. F. N. Balsara. Fa:! Ali J. 696 SUPREME COURT REPORTS [1951] in a strictly verbal legislature enacting subject in another list, and the different provisions of the enactment may be so closely inter-twined that blind observance to a interpretation would large number of statutes being declared result invalid because them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by Judicial Committee, whereby the impugned statute is examined to ascertain its 'true nature and character', for the purpose of determining whether it is legislation with respect to matters in this list or that". Their Lordships agree passage correctly describes the grounds on which the rule is founded, and that it applies to Indian as well as to Dominion legislation"('). substance', or its 'pith and 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 legis lative power with respect to a certain matter in clear and unambiguous terms, the Court should not deny to them or impose limitations on its exercise, on such extraneous consideration. 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 not withstanding its incidental encroachment on a Federal subject." It is now well settled The short question therefore to be asked is whether the inipugned Act relating intoxicating liquors or whether it relates to impon and export of If the true nature and character intoxicating liquors. to possession and sale etc. of in pith and substance a (') [1947] F.C.R. at p. 51. (•) [1948] F.R.C. 207 at 225. (3 ) [1949] F.C.R. 650 at 655. S.C.R. SUPREME COURT REPORTS 697 legislation or its pith and substance is not import and export of intoxicating liquor but its s:ile and possession etc., then it is very difficult to dechre the Act to be invalid. It is said that the prohibition transport and sale of of purchase, use, possession, 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 Provincial Legislature to enact the law in question. 1951 The State qf Bombay antf Another v. F. N. Balsara. F ;:lll Ali J. in which the facts were On these considerations, there is really nothing else to be said on the question befoo:: us, but in view of the very great stress laid upon the American doctrine of "original package", it seems necessary to deal with what that doctrine means and under what conditions it was evolved. The wide meaning of 'import' on which re liance was placed on behalf of the petitioner was for the first time by Marshall C. J. in BrQwn adopted v. Maryland(1), these. The State of Maryland had passed an Act prohibiting importers of foreign goods from selling their goods without . taking a license for which a certain amount had to be paid. The question which was raised in that case was that the Act was repugnant to the provisions "no State of the Constitution which provided 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 pro hibit 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 ·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· 1951 'The Stat• qf Bombay and Anotlt1r v • . .F. N. Balsara. .Fazl Ali J. 698 SUPREME COURT REPORTS [1951] "Sale the object of importation, and is an essential ingredient of that intercourse, of which is as essential an portation constitutes a part. ingredient, as entire thing, then as 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."(') It the existence of importation itself. indispensable Upon principles so stated, what is known as the "original package" doctrine was evolved in America, which was applied not only to commodities imp0rted from foreign countries but also to commodities , which were the subject of inter-state commerce. This doctrine laid down that importation was not over so long as the goods were in the original package and hence a State. had no power to tax imports until the original package was broken or there was one sale while the goods were still in the original package. The principle upon which this doctrine was founded is explained by Marshall C. J. in the case referred to in these words :- "There must be a point of time when the prohi bition ceases, and the power of the State to tax com mences; we cannot admit that this point of time the instant that the articles enter the country .... It is sufficient for the present to say, generally, that when the importer has so acted upon the th:ing imported that it has become incorporated and mixed up with mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become .imbject to the taxing power of the State ; but while remaining the property of the importer, in his ware. it was house, in the original form of package in which 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, =d 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 (') (1827) 25 U.S. at p. 447. {') (1827) 25 U.S. at p. 441. ( 8) 135 U.S. 100. 1951 T/al Stt111 ef Bomba, and Ar11111ttr v. F. N. BabaTo. Fa~l Ali]. S.C.R. SUPREME COURT REPORTS 6'» in applying in working prohibition schemes, State from another State or territory notwithstanding a starute of the State prohibiting the sale of such articles except for purposes mentioned therein and under a license from the State". The American writers have however pointed out the difficulty which from time to· time in apply_ing the "original package" - doctrine, since sometimes very intricate questions arose before the courts, such as whether the d9Ctrine applied to the larger cases only or to _the smaller packages con tained therein, or whether it applied to SJ:!laller paper packages of cigarettes taken from loose piles of pack ages at the factory and transported in baskets. The the doctrine was particularly difficulty :md experienced legislative combat like the measures had to be passed by I do not wish to Wilson Act, Webb-Kenyon Act, etc. pursue the matter, but wish only to point out that doctrine has no plac~ in this country, having regard to the scheme of legislation that has been outlined in the · Government of India Act, 1935, and in the present Constirution, in which the various entries in the Legis lative Lists have been expressed in cleat and precise In The Province of Madras v. Boddu Paid language. anna and Sons(1), Gwyer C.J., while expressing hjs the views expressed by Mar profound shall C.J. in Brown v. Maryland( 2 ), mildly hinted that it was easier to follow the line of reasoning of Thomp son J. in his dissenting judgment that case and concluded with the following remarks :- its mischief and uncertainty, new the Congress respect "Next, it to be observed the American Constitution also provides that Congress alone has power "to regulate commerce with foreign nations, among the several States and with the Indian tribes", and it was held that the Maryland tax was no less repugnant to this provision also. Marshal C. J. asked: "To what purposes should the power to allow import ation be given, unaccompanied with the sale of the thing importtd? Congress authorise has a right, pot only to authorise importation, but to the power ( 1) [1942] F.C.R. 90. ( 1) (1827) 25 U.S. 419. !95( The State ef Bombay and Another v. F. N. Balsara. Fat/AU]. 700 SUPREME COURT REPORTS [ 1951 J In authorize the importer to sell. . . . )\'hat does the importer purchase, if he does not purchase the privilege to sell?" On this view of the Commerce Clause, it would indeed be difficult to recognize the right of the State to impose a tax upon the first sale of the commodity, at any rate so long as it remained. in tl)e importer's hands. Indian Constitu~ion Act no such question arises; the right of the Provincial Legislature to· levy a tax on sales can be considered without any reference to so formidable a power vested in the Central Government. Lastly, the prohibition in the American Constitution is against the laying of "any imposts or duties on imports _or exports" is not merely against the laying of du.ties of customs, but is expressed in what we conceive to be far wider terms; and it does not appear to us that it would necessarily follow from the principle of the Maryland decision in India the payment of customs duty on goods imported from the payment of an excise duty on goods abroad or manufactured or produced in India can be regarded as conferring some kind of license or title on importer or manufacturer to sell his goods to any pur chaser without tax. liability incurring a further That was the view which commended itself to the Court in the Maryland Case(') and it was a view adopted and argued before us. The analogy with the American case is an attractive one, but for the reasons which we have given we are wholly unable to accept it."(2) the prohibition this country. I find considerable force in the opinion thus expressed by Gwyer C.J. and agree that the "original package" doctrine has no application United States, the widest meaning could be given to there Was not question of the Commerce Clause, for reconciling that Clause with another Clause containing the legislative povu:r of the State. Under the provisions of the Government of India Act, a limited meaning must be given to the word "import" in entry 19 of List I in order to . give effect to the very general words; used in entry 31 of List II. In (') (1827) 25 u. s. 419. (') [1942] F.C.R. 90 at 106-7. 1951 The State qf Bombll! and Anotlur v. F. N. Balsara, Fad Ali J. S.C.R. SUPREME COURT REPORTS 701 the use, consumption, purchase, The second attack on the Act is founded upon the provision contained in section 297 (1) (a) of the Govern ment of India Act, 1935, and it is contended that the prohibitions contained in the impugned Act in regard transport, posses intoxicating liquor will necessarily sion and inter-provincial amount to prohibiting and commerce, and inasmuch as to stop and the Province of restrict entry Bombay of goods of a particular class or description, the Act contravenes section 297 (1) (a). This section runs as follows :- into or export from restricting sale of "No Provincial Legislature or Government shall- (a) by virtue of the entry in the Provincial Legis lative List relating to trade and commerce within the Province, or the entry in that List relating to the pro duction, supply and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting into, or export from the Province of goods of any class or . descrip tion .... " the entry restricted on It should be noticed that tliis provlSton refers to "trade and commerce within the Province", which is the subject of entry 27 of List II and to "production, supply and distribution of commodities", which the subject of entry 29 of List II. The provision virtually means into or export from a import Province of goods of any class or description cannot be prohibited or the ground that it will the Province or affect, trade and commerce within the production, supply and distribution of If therefore by any law framed by a Provincial dities. Legislature relating 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 res tricted, such a law will be invalid. But, here, we are concerned not with a law which purports to be made and was made by virtue of entry 27 or entty 29 of List II, but a law which is claimed to have been made to or based on 4-4 S.C. lndia/68 1951 TMS1ate of Bomba, a1ld Anoth" v. F. N. Bal•ara. Fad Ali]. 702 SUPREME COURT REPORTS [1951] and was made by virtue of entry 31 of that List and certain other entries therein. Section 297(1) (a) there fore has no application to the present case. This was clearly pointed out in the case of Bhola Prasad v. King (Amend Emperor('). ment) Act, 1940, which amended the Bihar and Orissa Excise Act, contravening (a), but it was held to be a valid Act section 297 (1) on grounds already stated, as will appear from · the following observations of Gwyer C. J. :- In that case, the Bihar Excise 1915, was challenged appreciating "The second point raised on behalf of the appel h,nt was that s. 19 ( 4) of the Act. of 1915, as amended by the Act .of 1940, is invalid because repugnant s. 297 (1) (a) of the Constitution Act. We confess that argument. we have difficulty Section 297 (1) (a) enacts that .... It is plain beyond legislation this provision only refers with respect to entry No. 27 and entry NQ. 29 in the Provincial Legislative I..ist ; it has no application · to legislation with respect to anything in entry No. 31. A Provincial Legislaure, if it desires prohibiting export from, or import into, the Province, to do so must therefore seek for legislative authority in entries other than entry No. 27 or entry No. 29. If it can point purpose derived from any other entry in the Provincial Legis lative 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"("). to legislative pmvers for· the to pass a Having dealt with and negatived the first two con tentiOJll upon which the validity of the entire Act was assailed, I now proceed to . ., deal with certain sections of the Act, the validity of which also was brooght into question. The provision which was most vigorously assailed and in regard to which the attack was success ful in the High C<iurt, is the definition of the: word 'liquor' _in section 2 (24) of the Act. The definition runs thus:- "Liquor" includet (1) [1942] F.C.R. 17 at 21. { 1) [1942] F.C.R.. 17 at 27. 28. 195! The State qf Bombay and Anothlr v. F. N. Bals~ra. Faz/ Ali J. S.C.R. SUPREME COURT REPORTS 703 (a) spirits of wine, liquids and all alcohol; and methylated spmts, wine, beer, consisting of or containing (b) any other Provincial Government may, by notification Official Gazette, declare to be liquor for the purposes of this Act. intoxicating substance which The High Court has held that the word "liquor" ordi narily means 'a strong drink as opposed to soft drink" but .it must in any event be a beverage which is ordi narily drunk. Proceeding upon this view, the High Cou'rt has held that although the legislature may while legislating under entry 31 prevent the consumption of non-intoxicating beverages and 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 con taining alcohol. This view of the High Court was very the one hand and equally strongly supported on strongly challenged on the other before us, and I ther~­ fore proceed to deal with the question at some length. also prevent In the Oxford English Dictionary, edited by James the word Murry, several meanings are given "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 niany processes in the industrial arts.

3. Liquid for drinking; beverage, drink. Now almost exclusively a drink produced by fermentation or distillation. 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 In liquor, in the state of an infusion. quality of a tea). 195! The Stale ef Bombay. anti Another v. F. N. Balsa.a. Fazl Ali J. 704 SUPREME COURT REPORTS (1951J In to certain Thus, according to th: Dictionary, the word 'liquor' may have a general meaning in the sense of a liquid, or it may have a special meaning, which 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 main provisions of the various Acts of this country as well as of America and England relating to intoxi cating liquor, to which our attention was drawn- But at the same time, on a reference to these very Acts, it is difliculty to hold that they deal exclusively .... with beverages and are not applicable articles which are strictly speaking not beverages. A few in stances will make the point clear. the National Prohibition Act, 1919, of America (also known as the intoxicating Volstead Act), liquor, are used as having the same meaning and definition states that these words shall be construed "include alcohol, brandy, whisky, rum, gin, beer, ale, porter and wine, and in addition thereto any spirituous, liquids, and com vinous malt, or fermented pounds, 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 Volstead Act excepted denatured alcohol, medicinal preparations, preparations, flavoring extracts and sirups, vinegar and preserved sweet cider (s. 4) which suggest that they were in cluded 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." 'intoxicating liquor' rather widely, liquor and the words, antiseptic liquor, toilet The Licensing (Consolidating) Act, 1910, of England was an Act relating to licenses for the sale of intoxi cating · The definition of "intoxicating liquor" ·in this Act was as follows :- liquor, etc. S.C.R. SUPREME COURT REPORTS 705 the context) " 'Intoxicating liquor' mean& inconsistent (unless spirits, wine, bear, 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." 1951 The State qf Bombay and Another v. F. N. Balsara. Faz:./ Ali J. 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 mix tures, 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 ported in the Act of 1910, but in our view for the pur 'intoxicating pose of understanding the definition of liquor', the two Acts should be read I do not suggest that the definition of "liquor" in the pre sent 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. together. the first Coming now to the various definitions given in the Indian Acts, I may ref er in instance to the Bombay Abkari A!_:t of 1878 as amended by quent Acts, where the definition is substantially In the same as in the Act with which we are concerned. Bengal Excise Act, 1909, "liquor" is said to mean 'liquid consisting of or con~aining alcohol' and includes spirits of wine, spirit, wine, tari pachwai, beer, and any substance which the Provincial Government 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 taining alcohol · in 'intoxicating liquor'. The framers of the Government India Act, 1935, could not have been entirely included the definition of liquids 'liquor' t 1951 The Stalt of Bom&q, an4 Anotht1 v. P. N. Bals.,a. Pa:l Ali J. 706 SUPREME COURT REPORTS [1951} the word liquids which alcoholic ignorant of the accepted sense in which the word 'liquor' has been used in the various excise Acts of this consider the appropri~.te country an.d, accordingly I covers "liquor" to be conclusion for beverage purposes and produce generally used intoxication, but also alce> hol. the latter meaning is not the It may be meaning which is attributed to the word "liquor" in common parlance especially when that word is prefixed by the qualifying word "intoxicating", but in my opinion having regard to the numerous staturory defi nitions of that word, such a meaning could not have the scope of in entry 31 of term "intoxicating List II. intended to be excluded from liquor" as used containing liquids .only included inter alia the Act not There is in my opinion another method of approach ing the question which also deserves consideration. Re membering that the object of the Prohibition Act was to prohibit not merely to levy excise duties but also use, consumption, possession and sale of intoxicating liquor, the legislature had the power to legislate upon the subjects entry 31 of Lilt II, but also under entry 14, which to public health. Article 47 of the refers Constitution, which contains one of the directive prin ciples of State policy, provides that "the State regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health". This article has no direct bearing on the Act which was passed in 1949, but a reference to it supports to some extent the conclusion that the idea of prohibition is connected with public to enforce prohibition effectively the wider health, and definition of to be adopted so as liquids which may be used as substitutes for the word "liquor" would have to include all alcoholic intoxicating drinks, to bring 1951 The State qf Bombay and Another v. F. N. Balsara. Faz/ Ali j. S.C.R. SUPREME COURT REPORTS 707 the detriment of health. On the whole, I am unable to agree with the High 0urt's finding, and hold that the definition of "liquor" in the Bombay Prohibition Act is not ultra vires. to bring the subject of 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 intoxicating liquor far-fetched under "public order", yet it should be noted that there has been a tendency in Europe and America to regard In Russel v. alcoholism as a menace to public order. 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 "peace, order, and good government" of Canada, and in so deciding said as follows :- "Laws of this nature designed for the promotion of public order, safety, or morals and which subject those who contravene them to criminal procedure and punish ment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which falls within the general authority · of Parliament the order and good government of laws for Canada .... "(2) Again, referring to liquor laws and liquor control, a. learned British author(3) says as follows :- "The dominant motive everywhere, however, been a social one, to combat a menace to public order and the increasing evils of alcoholism in the interests of health and social welfare. The evils vary greatly from one country to another according to differences· in climate, diet, economic conditions and even within the same countr}" according to differences in habits, social customs and standards of public morality. A new factor the 19th of growing importance since the middle of ( 1) 7 A. C. 829. (2) 7 A. C. 829 at p. 839. 3 page 191. ) The Encyclopaedia Britannica, 14th Edition, Volume 14, ( !951 The State ef Bombay and Another v. F.iJI. Balsata. Fa.ti Ali J. 708 SUPREME COURT REPORTS [1951] rapid urbanisation, century has been the industrializa tion and mechanization of our modern every day life in the leading nations of the world, and the consequent wider recognition of safeguarding public order and physical efficiency." the advantages of sobriety These passages may lend some support to the con tention of the learned Attorney-General that tile Act comes also within the subject of "public order'', but I prefer to leave out of account th~ entry, which has a remote bearing, if any, on the object and scope of the present Act. 1 now come to section 39 of the Act which has been impugned on the ground that it offends against article 14 of the Constitution which states that "the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India". The meaning and scope of this article has been fully discussed in the case of Chiraniit Lal Chowdhury v. The Uhion of India and others('), and the principles laid down in that case may be summarized as follows : (1) The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems ' made manifest by experience and its discriminations are based on adequate grollnds. (2) The presumption i;nay be rebutted in certain cases by showing that on the is no classification ~t all and no difference peculiar to any individual or class and not applicable to any other individual or class, af\d yet the law hits only a parti cular individual or class. face of the statute, (3) The principle of equality does not mean that i>er every law must have universal application for all sons who are not by nature, attainment or circum stances in the same position, and the varying needs of different classes of persons often separate treatment. require (') [t950J s.a.R. 869. S.C.R. SUPREME COURT REPORTS 7!'E ( 4) The principle does not take away from the State the power of classifying persons for legitimate purposes. (5) Every classification is in some degree likely to inequality, and mere production of produce inequality is not enough. 1951 The State of Bombay and Another y. F. N. Balsara. Faz/ Ali J. (6) If a law de~ls equally with ~embers of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. (7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and to the object sought to be attained, and the relation classification cannot be made arbitrarily and without any substantial basis. Similarly, Professor Willis, dealing with the Four teenth Amendment of the Constitution of the United laws, States, which guarantees equal protection of the sums up. the law ·as prevailing in that country in these words : to such legislation shall be "The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class classification which legislation, but does not forbid rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in objects to which it is directed or by the territory with 'It. merely requires that all in which it is to operate. treated persons subjected alike under like circumstances and conditions both the privileges conferred and in the liabilities imposed'. 'The inhibition of the amendment .... was designed prevent any person or class of persons from being singled out as a special subject for discriminating and It doc:; not take from the states hostile legislation.' the power to classify either in the adoption of police laws or tax laws, or eminent domain laws, but per mits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable ba,sis. Mathematical nicety perfect equality are not required. Similarity, not identity of 1951 The State ef Bomf>ay and Another v. F. N. Balsara. Fa<I All J. 710 SUPREME COURT REPORTS [1951} If any state. of facts can reason treatment, is enough. ably be conceived to sustain a classification, tence of that state of facts must be assumed. One who· assails a classification must carry the burden of show ing that it does not rest upon any reasonable basis."('} With these principles in view, I have to decide whether article 14 of the Constitution has been violated in section 39 of the A~t by the provisions contained before us. That sectiofl runs as follows :- "The Provincial Government may, on such condi tions as may be specified in the notification published in the Official Gazette, permit the use or consumption of foreign liquor on cargo boats, warships and troop ships and in military and naval messes and canteens." What is contended is that the concession shown ta the warships, troopship, and military and naval messes and canteens is a violation of the principle• of equality the legislature has acted arbitrarily and capri ciously in selecting certain bodies or 'groups of people for favoured treatment, while subjecting the petitioner m~d other citizens to the general provisions of the Act. It is said that the law should have been enforced alike against the civil population and military personnel, between whom no distinction can be made at all on any rational ground in the enforcement of the policy of prohibition. The scheme of Chapter IV of the Prohibition Act, in 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 For instance, section 35 deals with licences to hotels, sec tion 37 with licences to dining cars and coastal steamers, section 38 with liceaces to shipping companies, sec tion 40 with permits to foreigners and · persons who· liquor on grounds of health, section 41 with permits to foreign sovereigns and diplomats, section 44 classification. ( ') Constitutional Law; by Prof. Willis, (1st Edition) p. 578. 1951 The state ef Bomb~ Gnd Anof/ur v; F.N. Balstll'll. Fail Ali J. S.C.R. SUPREME COURT REPORTS 711 certain referred relaxing it. But it with licences to clubs, section 45 with authorisations for sacramental purposes, section 46 with visitors' permits, and so on,. These sections were not challenged before us, and it may be assumed that the classification made by the legislature has been accepted so far as they are concerned. The question is whether in in favour of warships, troopships, and military and naval messes and canteens, legislature has acted arbitrarily and capriciously or it has proceeded here also on the basis of reasonable classification. The learned Attorney-General several prov151ons of statutes, army regulations and the Constitution, in order to show that the military force has been regarded in this country as a class by there are many special provisions with itself, and is not is contended that this regard enough and that no classification can be held to be valid unless it is shown to bear a just and reasonable relation the objects of legislation is this : before us. The argument, the armed forces may be treated as a Assuming class for certain purposes, can it be treated as a class for the purpose of enforcing prohibition? This argu ment found favour with the High Court, and sec tion 39 was declared to be void. In my opinion, the the High Court cannot be supported judgment of is an understandable basis because I think that ,there the military canteens, the exemptions granted etc. by the Act. The armed forces have their own traditions and mode of life, conditioned and regulated by rules and regulations which are the product of long experience and which aim at maintaining at a high level their morale and those qualities which enable tasks of them to face dangers and perform unusual endurance and hardship when called l!pon to do so unbreakable qualitie~ tenacity and energy 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. the particular in other words, such as dash courage, 195] .Tht State ef Bombay anJ .Another v. 11. N. Balsaro. Fazl .Ali]. 712 SUPREME COURT REPORTS [1951] I find that the in the legislature according special It is easy to understand legislature chose not to interfere with the mode of life to which the forces interference should have been accustomed, lest such their morale and affect to subterfuges which may prove unwholesome for their discipline and good behaviour. Besides, when drinking is regulated among a class of persons by specific rules and regulations and drunkenness is made an offence, the relaxation of the law of prohibition in their case is not likely to produce the same evil results as it may produce under other therefore nothing wrong prima circumstances. treatment to persons who form a class by themselves in many res pects and who have been treated as such in various enactments and statutory provisions. In my opinion, therefore, section 39, in so far as it affects the military and naval messes and canteens, warships and ships, cannot be held to be cargoboats are concerned, it was contended on behalf of the petitioner that no rational differentiation could be made between them and the passenger boats, there was no conceivable ground for granting exemp tion or concession of any kind to the former. Here again, we cannot assume that the legislature has pro slower ceeded boats have long periods, number of persons affected by the exemption is com paratively small, and they are mostly sojourners who stay at the port for a short time and then go away. These cos:iderations may well have induced the legis them, and we lature cannot say considerations. The provision to exemption of cargoboats should therefore be held to be valid. arbitrarily. The to be on to show some concession invalid. So far as irrelevant the sea for cargoboats these are relating I have already referred to section 46 which deals with visitors' permits. That section provides that the Provincial Government may authorize an officer grant visitors' permits to consume, use and buy foreign liquor to persons who visit the Province for a period of not more than a week. The High Court held this pr<> vision to be valid, but it considered rule 67 of !95I The State qf Bombay and Another v. F. N. Balsara. Fazl Ali J. S.C.R. SUPREME COURT REPORTS 713 framed under Bombay Foreign Liquor Rules, tion 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 con sume foreign liquoF shall apply to certain officers for obtaining a permit, which may be granted for a period not exceeding one month subject to subsequent renew al. The High Court declared this rule to be invalid on th<1 ground that it discriminated between foreign visitors and Indian visit<m who visit Bombay neighbouring Provinces. 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 rule cannot be assailed on firstly because though it provides for the case of a foreign visitor there is no prohibition against any other out sider 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 permits foreigners under certain conditions. the ground of discrimination, to be granted in any event, It seems The High Court has also declared sections 52, 53 and 139(c) of the Act invalid on the ground that they power". The constitute reasons given by the High Court for arriving at this. conclusion are stated in its judgment as follows :- "delegation of legislative licences to grant in cases other "Under section 52 power is given to the Govern specifically provided under any of the provisions of the Act. Under section 53 Government is inter a/,ia empowered to vary or substitute any of the conditions the licence laid down in the Act, and under sec tion 139 ( c) power is given to Government to exempt any person or institution of 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 bv us before. the legislature intended J95J ·The Slate ef Bombay and A.noth1r v. F. N. Balsara. Fa:! Ali J. 714 SUPREME COURT REPORTS (1951] in the actual working of 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 that may for all circumstances and all eventualities the Act. But it is not open to the legislature to permit Government to alter the policy itself. Government to issue permits in cases other than those provided for by the Act, . in permitting Government to vary or substitute conditions of permitting Government to exempt persons or classes legislature was the Act, the provisions of -clearly delegating to Government its own power of legislation. This it can clearly not do." In our opinion, in the licence, and leaving it to be recently to consider quite "delega~ed 1ts these sections invalid. permissible, and a reference This Court had legislation" 9uestion JS the character that delegation of clusion will involve cannot on any view be (See Special Reference No. 1 of 1951 : In re The Delfti Laws Act, 1912, etc. (') ). A legis lature while legislating cannot foresee and provide for all future contingencies, and section 52 does no more than enable the duly authorized officer to meet, con tingencies and deal with various situations as arise. The apply to sec tions 53 and 139 ( c). The matter however need not be pursued further, as it has already been dealt with elaborately in the case referred to. considerations will I now proceed to deal with a group of sections in l'egard to which I find myself in agreement up to a the High Court. point with the views expressed by Section 12 of the Act provides inter alia that no person shall possess or sell or buy liquor and section 13 pro inter alia that no person shall consume or use liquor. Substituting for the word "liquor" occurring that word as that no person shall effect of these (a) of section 2 (24) of the Act, the definition . of two sections is two sections in clause (') Reported infra. 1951 Th1Stat1 qf Bomb If! and.41111thn v. F. N. Baltar1J, Fat.I Ali J. :S.C.R. SUPREME COURT REPORTS 715 possess, or sell or buy or consume or use "s,pirits of toddy and all wine, methylated spirit, wine, beer, liquids consisting of or containing alcohol." I have already held that under · entry 51 of List II, the Bom to make a law bay Legislature was quite competent with respect to "liquor" even as broadly defined. It is however contende<l that the power of making laws has to be exercised subject to the other provisions of the Constitution and in particular to those relating to the fundamental rights guaranteed under Part III of the Constitution.. The provisions 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 provisions in question un .doubtedly prevent a citizen from possessing, selling, buying, consuming or using "liquor" as defined, and therefore the fundamental right of the Indian citizens to acquire, hold and dis pose 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_ whether they can be saved by clause (5) of article 19, which runs as follows :- they prima f acie to be considered to which I infringe "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 exer cise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of interests of any scheduled tribe." the provisions The question boils down to ascertaining whether the restrictions imposed by to which refer ence has been made are reasonable. In judging the the restrictions · imposed by the Act, reasonableness of one has the directive principles of State policy set forth in article 47 of the Constitution, "The State is charged with the duty of bringing about to bear in mind 1951 TheState qf Bombay and Another v. F. N. Balsara. Fatl Ali]. 716 SUPREME COURT REPORTS [1951] prohibition of the consumption, except for medical pur poses, 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 liquids consisting centred round the words "and all It is said that those words of or containing alcohol." include "all toilet or medicinal preparations containing alcohol" and the restrictions imposed upon the ordinary use of such toilet or medicinal prepara tions are unreasonable and therefore void. So far as these preparations are concerned, the High Court has dealt with the matter as follows :- liquids, the question to address ourselves "To put it in a simple form, which we have is whether the legislature can prohibit the legitimate use of an arti cle which ordinarily is not drunk, merely because its use may be perverted for the possible purpose of de feating or frustrating the objects and purposes of Prohibition Act. Let us the concrete case of eau-de-<:ologne or lavender water. Their legitimate 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 per missible 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 abuse of prevent It is articles, but can it prevent their legitimate use? difficult to understand how any legitimate use of these articles can be in the interests these restrictions of the general public so as to make the meaning of article 19(5). If a reasonable within citizen uses eau-de-cologne or lavender water for the purpose of is not doing anything against public interest. It is only when he is preverting their use· that it may be said that he is acting against public interest. Therefore, in our opinion, while it was open legislature may restriction on toilet, he J 951 The State of Bombay and Another v. F. N. Balsara. Fa{/ Ali J. S.C.R. SUPREME COURT REPORTS 717 legislature has to the legislature to provide against the abuse of these articles, it was not open to it to prevent its legitimate use. But totally prohibited use of possession of all liquids containing alcohol to be granted by Government. except under permits 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 prepar ations 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 .alcohol containing 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." legitimate purposes action legislative The next step in the argument is that as the law · purports to authorise the imposition of a restriction on a fundamental right in language wide enough to cover restrictions both within and without the limits of ~on­ affecting stitutionally permissible such right, it is not possible to uphold it even so far as it may be applied W!ithin the constitutional limits, as it is not severable. This line of reasoning, no doubt, the observations made in seeks to find suppon from the majority decisions of this Court in Rome sh T happar in Chintaman Rao v. v. The State of Madras(1) and 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, namely, spirits of wine, methylated spirit, wine, beer, toddy are _distinctly separable items which are easily severable from last category, namely, all consisting . of or containing alcohol. These liquids (1) [1950] S.C.R. 594. 5-4 S. C. India/68 ( 2) [1950J s.c.R. 759. 1951 The State of Bombay and Anotter v. F. N. Balsara. Fad Ali]. • 718 SUPREME COURT REPORTS [ 1951 J restrictions It is said that this in so far as items being thus treated separately by legislature itself and being severable, and it not being contended, the directive principles of State policy in view of imposed regarding prohibition, upon the right to possess or sell or buy or consume or use those categories of properties are unreasonable, impugned sections must be held valid so far as these categories are concerned. The next question is whether those sections are void they purport to 'citizens' right to acquire, impose restrictions on hold or dispose of all liquids consisting of or contain ing alcohol. is one general item be split up into different sub-categories and it cannot they relate to the sections in so far as and therefore this general item must be held to be void. This argu ment 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 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 notifi cation has the force of law as if made by the legisla ture itself. In exercise of powers vested in it by sec tion 139( d) the Provincial Government issued an order No. 10484/45(e) exempting intoxicants specified column 1 of the Schedule thereto annexed from provisions of the Act specified against them in column 2 the Schedule, we find of that Schedule. Turning ( 1) duty-paid prefumed spirits (except eau-de-cologne), in item (3) duty-paid spirituous toilet preparations (except lavender water) and in item ( 4) spirituous medicinal preparaticns other than duty-paid 123 specified liquids, are exempted from the operation of sections 12(c) and (d) and 13(b) to the extent speci 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 intoxicants 1951 The State qf Bombay ant! Another v. F. N. Balsaro. Fazl Ali J. S.C.R. SUPREME COURT REPORTS 719 legislature contemplated the principles the case out of sub-itJem, namely, 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 into several distinctly separate sub-items including toilet and medicinal preparations containing liquid alcohol. The itself sub-division, for by section 139 it authorised the Pro vincial Government to exempt any intoxicant or class of intoxicants from the operation of the Act. This cir cumstance down in the two cases mentioned above and the item being thus severable I am free to consider whether the restrictions imposed on a !liquid · toilet and medicinal preparations containing alcohol, in agree are reasonable or not. I am substantially ment with the line of reasoning adopted by the High Court and I consider that the Act is ·not a law impo ing 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 to prohibition; but toilet and medicinal pre relating parations 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 prohibited. Again, article 47 of the Constitution also takes note of that medicinal preparations should be excluded in the enforcement of prohibitio~. I do not consider that it is reasonable that the posses sion, sale, purchase, consumption or use of medicinal toilet preparations should be prohibited merely their being because misused by some perverted addicts. is a mere possibility of the provisions It was contended that there was no meaning in declaring sale, relatbg possession, use and consumption of medicinal and toilet preparations containing alcohol to be invalid, since in the Notification No. 10484/45, issued by the Provincial to purchase, 1951 ThtStatt of Bombay and Another v. F. N. Balsara. 720 SUPREME COURT REPORTS [1951] spirits (including Government on the lst April, which is no part of the Act, the Government have exempted duty-paid per eau-de-cologne), duty-paid classes of spirituous toilet preparations and duty-paid spirituous medicinal preparations from following . provisions of the Act :-· (i) Section 12 (c); (ii) Section 12 (d), in so for as it relates to buy certain ing 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 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 notificaµon issued on the 6th April, rule 10( l) provides as follows :- "The licensee shall not sell to any person on any one day any. kind of · perfumed spirits, . spirituous toilet preparations or .essences in excess of such quantity· as may be prescribed by Act." the COmmissioner under . Similarly, in the second notification of the 11th April, rules 9 and 10 run as follows :- "9. The licensee shall not sell medicated tonics 0r 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 regulated as such under the Drugs Act, 1940. spirituous medicinal preparations l 0. Subject to the provisions of rule 9 the licensee shall not sell the following spirituous medicinal pre parations to any person unless he produces a medical prescription in that behalf, namely :- (a) medicated tonics and medicated wines; ( b) asaves and arishtas specified in the schedule hereto annexed; S.C.R. SUPREME COURT REPORTS 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 preparations may be sold to any person without the production by such person of any medical prescription; namely .... " 1951 The State of Bombay and Another v. F. Jv. Balsara. Fazl Ali J. internal consumption are 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 possession, use and consumption, and whether the so called exemptions 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 medi cinal preparations arc totally exempted as regards purchase, possession, and use, and so far as medicinal preparations for concerned, only those containing not more than 10% of alcohol or 17.5% of proof spirit are exempted. This notification 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 notifica tion, for the purpose of possession, purchase, consump tion and use, the quantity of medicinal preparations containing not more than 100/o of alcohol, etc., is res tricted to such quantity as may be prescribed by a these notifica registered medical practitioner. Even tions may be withdrawn, superseded or amended at any moment b J 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 to attempt to extract information out of the long series of compli cated regulations, as to the true nature and extent of Indeed it the right which the law i::onf ers upon him. was only with the help of the learned counsel appear ing for the parties that we were able to know what the position was up the 31st March, 1950, and it a pe~plexing task 195! Tiii State qf Bombay and Another v. F. N. Balsara. Fad Ali J. 722 SUPREME COURT REPORTS [1951] is no notification what changes were made on the 1st April, 1950. But in the bundle of notifications which have been placed before us, 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(l)(a) in so far as they refer to "commending" any intoxi cant, 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 general ly "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) mc1te 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 provi sions 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, regu lation or order made thereunder or the conditions of granted thereunder." licence, permit, pass or authorization 1951 The State ef Bombay and Another v. I<'. N. Balsam Fazl Ali J. S.C.R. SUPREME COURT REPORTS 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(l)(a), namely, the right to freedom of speech and expression, and there can be no doubt that the prohibition against . "commending" a.ny intpxicant is a curtailment of the right guaranteed and it can be supported only if it is saved by clause (2) of article 19 which, as it stands at present, provides that "nothing in sub-clause (a) of clause (1) shall affect the operation 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 securit~ It seems to me of, or tends to overthrow, the State." in clause (2) that none of the conditions mentioned applies the provi sions in question 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 frustrates or defeats the provisions of the Act or any rule, regu lation . or order made thereunder" are so wide and vague that it is difficult to define or limit th~ir scope. I am therefore in agreement with the view of the High Court 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 chat he was not going to assail this provision. acts. The words "which the present case, and that this provision therefore invalid The High Court has also declared sections 136(1), 136(2)(b), 136(2)(c), 136(2)(e), 136(2)(£) to be void as offending against various provisions of article 19 of 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 !951 Tht State ef Bombay and Another v. F. N. Balsara. Fa,I Ali J. 724 SUPREME COURT REPORTS [ 1951] the High Court has held to be invalid. As regards the first notification, the High Coun has stated that section 139 ( c) having been held to be ultra vires the latute, 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. judgment It appears from certain observations in the under appeal, firstly that the High Court upheld sec tion 40(1) (c) (i) and (ii), which deals with the grant of permits to foreigners who do not intend to stay per manently 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 tempor arily, if the period of his residence does not exceed six the High Court would months"; and secondly, have found it difficult to uphold the classification on if the restriction which section 40(1) (c) regarding six months' residence was not there, as would I am however unable to see how above notification. the notification will tum a classification which otherwise a good classification into a bad one. There is nothing unreasonable in a law relating to prohibi tion discriminating between Indian citizens against whom it is primarily to be enforced, and foreigners who have no intention of permanently residing in this country. The condition of six months' residence which is laid down in the Explanation to ~ection 40 is some what arbitrary, and the mere fact that the Government by notification withdrew principle alter the basis of the classification. this condition cannot the section subject to the result of reading is based 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 words:- "That notification exempts persons holding per mits under clause (c) of wb-section (1) of section 40, special permits under section 41, or interim permits under section 47, from the provisions of section 23 (a) 1951 The State ef Bombay and Another v. F. N. Balsara. Fa;.l Ali J. S.C.R. SUPREME COURT REPORTS 725 in so far as it relates to the offering of foreign liquor to persons holding similar permits. This is clearly not justified. Having created a class, having given to 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 whom permits have to permits as others been given. The restrictions placed by the 'legislature itself on a permit-holder regar'ding the use and con sumption of hi~ 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 per mit-holder. That 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 other permit-holders and equality Indian permit-holders. The before the law extends under our Constitution not only to legislation but also to rules and notifications made under statutory authority and even to ex~cutive orders and as the notification offends against the principle of equality it is, therefore, void." to stand drinks that privilege restriction must apply equally guarantee to deny to state In order to under.stand these remarks, it will be necessary 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 holding special permits under section 41 foreign sovereigns, ambassadors, etc., and that persons holding interim permits under section 47 are persons applying for permits under either section 40, or sec tion 41. The last class will include not only foreigners but also Indian citizens applying for permits on ground that their health will be seriously and perman if they are not permitted ently affected consume liquor. Thus, the assumption on which the conclusion of the High Court is based, does not appear to be correct. Besides, I do not find anything in this notification which violates the principle of equality. It simply enables a certain dass of pers&'is holding per-' mits to offer drinks to persons holding similar permits. to use 1951 The State ef Bombay am/ Anoth<r v. F. N. Balsara. Faz! Ali j. 726 SUPREME COURT REPORTS [1951] This is in accord with the principle underlying provisions 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 the notifications . are invalid. The points relating extremely subtle distinctions upon small, which they are based, are hardly worth the attention 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 :- that it is only on this certificate, "When a person applies for a perm.it on ground of health, he has to forward with it a certificate from the medical board and when we turn to the form the medical board to requires declare the applicant an addict. Therefore the position the applicant being found an addict bv the medical board that he would be entitled to a permit if his health would be seriously and per manently affected if he was 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 drink for a long period of time and a sudden discon tinuance 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 than being merely opinion, means something more 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. to be that only The intention of the Government seems persons who ~mess that standards of morality should be given permits. Now they are deviating 1951 TM State ef Bombay and Another v. F. N. Balsara. Fa;:.l Ali J. S.C.R. SUPREME COURT REPORTS 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 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. to me 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 remained without not have enacted the part which 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 the High Court has than it presents now, because declared several important sections of the Act including to be ultra vires the legis the definition of "liquor" lature. 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 is raised, argument like the one addressed in this case 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 invalid inextricably bound up with the part declared 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 legis lature 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 invalid are not ~nextricably bound up with the ( 1) [1947] A.C. 505 ·.t 518. 195! ·r he State qf Bombay and Anotlat'. v. F. N. Balsata. Faz/ Ali]. 728 SUPREME COURT REPORTS [1951] remaining pn;ivisions 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 toilet preparations liquid medicinal and possession of ccontaining alcohol. (2) Clause (d) of section 12, so far as it affects the selling or buying of such medicinal and toilet pre parations containing alcohol. (3) Clause (b) of section 13, so far as it affects the toilet consumption or use of such medicinal and 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 36, 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 the validity of the Act as it remains. Appeal affect No. 182, preferred by the State of Bombay, is there· fore substantially allowed and Appeal No. 183 pre. £erred 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 S.C.R. SUPREME COURT REPORTS 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 pre sent Constitution. PATANJALI SAsTR1 J.-1 agree and have nothing more to add. MuKHERJEA J.-1 have read learned brother Mr. Justice Fazl Ali and entire agreement with his conclusions and There is nothing further which I can usefully add. judgment of my reasons. I am 1951 The State qf Bol1'bay and Another v. F. N. Balsara. Patanjali Sastri :J. Muklurjea :J. S. R. DAs J.-1 agree and I have nothing further S. It. Das]. to add. V1VIAN BosE J.-I also agree. Vivian Bose J. Appeal No. 182 allowed. Appeal No. 183 dismissed. Agent for the appellants in Case No. 182 and res pondents in Case No. 183 : P. A. Mehta~ . Agent for the respondent in Case No. 182 appellant R. A. Gagrat. in Case No. 183 : Rajinder Narain TARA SINGH v. THE STATE. 1951 June 1 [SAIYID FAZL ALI, PATANJALI SASTRI, S. R. DAs and VIVIAN BosE JJ.] Criminal Procedure Code (V of 1898), ss. 173 (1), 190 (1) (b), 340 (1), 342, 288-Evidence Act (1 of 1872), s. 145-Filing of second challan-Whether vitiates report-Examination of accused-Imp<>rtance of-Statements made in Committal Court W hen admissible. Where the report made by a police officer to · the Magistrate the Criminal the case the Magistrate can take cognisance. of the requirements of s. 173 ( 1) of complies with Procedure Code