BEHRAM KHURSHED PESIKAK.A v. Till Stall ef

The High Court in arriving at its decision in Rangarao • Bala Mane v. State (supra) above referred to was im the prosecution pressed with the circumstance <iould not possibly prove that no form of medicated there were alcohol was taken by evidently numerous forms of medicated alcohol and that it was impossible for the prosecution on the very face of things to exclude all those forms. The difficulty was illustrated by the manner following :- the High Court in the accused, "For instance, if the prosecution were to lead evidence the accused had not taken medicated to show the accused would form of B. G. Phos, alcohol in If contend that he had taken it in some other form. the prosecution were to lead evidence that the accused had not the accused taken it in the form of Winedex. would say that he had taken it in the form of Water- , bury's Compound or Hall's Wine. These are only two instances to show how, it is impossible for the prosecu tion to exclude all forms of medicated alcohol.

" therefore came to the conclusion prosecution had discharged the onus which was upon it to prove the accused person had consumed liquor, it would be for the accused to show that liquor which was taken bv him was liquor in the form in other words, not prohibited of medicated alcohol liquor. The difficulty the High imaginary. Where an accused Court was, in my opinion, (1) A. I. R. 1936 P. C. 16g. thus envisaged by {2) A. I. R. 1940 Madras 1. that once It 1954 Behratn Khursi1'd Pesikaka v. TM State qf . Bombqv. .BhagwatiJ. - 626 SUPREME COURT REPORTS [1955J alleged offence find out whether latter category of preparations to book for the . prohibi person is suspected of having . committed tion offence, it would be the police to inves the offence, tigate the offence and while investigating it would be for the police accused has consumed liquor which falls within 'the enforceable prohibition enacted in section 13(b).

As there are a number of preparations which come within the category of liquid medicinal and toilet preparations consisting of or containing alcohol, there are a number of preparations which come within the category of non medicinal or non-toilet liquid preparations consisting of or containing alcohol and it would be really for the to find out police investigating which out of accused had consumed and bring him same. The circumstance that the accused person was smelling of alcohol and that he had consumed liquor in some form or the other would not be an unequivocal circumstance pointing to the guilt of the accused. The smell of alcohol could as well be the result of his having consumed medicinal or consisting of or containing alcohol as his having consumed validly prohibited of wine, methylated spirits toddy and all non-medicinal and spirits, wine, beer, non-toilet liquid preparations consisting of or contain ing alcohol.

To hold the accused guilty under circumstances would be to convict him merely because he was smelling of alcohol and depriving him of benefit of doubt which an accused person is always entitled to in the event of the facts and circumstances being consistent either with his guilt or his innocence. To adopt the reasoning which appealed to the High tantamount to laying down Court would further be that once an accused person was shown to have con sumed liquor in some form or the other the presumption was that he had consumed validly prohibited liquor and the onus would be upon him to rebut that presump that he had consumed medicinal or tion by showing toilet preparation containing alcohol. toilet preparations liquor, i.e., The difficulty in the way of the prosecution proving from arriving at If these difficulties are genuinely its case need not deflect the Court a correct conclusion. • • • - - - S.C.R. SUPREME COURT REPORTS 627 to step the Legislature it would be for in and It would not be the function of the amend the law.

Court to read something in the provisions of which is not there or to find out a way of obviating the law howsoever meritorious difficulties in enforcing the If these the intentions of difficulties were policy of prohibition by the State of Bombay the only remedy was to effect the necessary amendments when the Bombay Act XXVI of 1952 was enacted on 22nd October, 1952, after this Court made the declara tion in The State of Bombay and Another v. F. N. Balsara (supra). the Legislature might be. the matter of enforcing felt in 1954 Be/iram Khurs!.lil Pesikaka v. The State of Bombay Bhagwati liquor, In my opinion it was not enough for the prose to prove that the cution in the present case merely appellant had taken alcohol in some form or the other. The prosecution ought to have proved that, the appel lant had in contravention of the provisions of the Act liquor which consumed an intoxicant meaning any this Court having regard to the declaration made by could only be validly prohibited i.e., spirits of wine, methylated spirits, wine, beer, and all and non-toilet liquid preparations con non-medicinal sisting of or containing alcohol.

The evidence of doctor only went to show that the appellant had con sumed alcohol the other. That was not enough and I have therefore come to the conclusion that the prosecution failed to prove that the appellant had committed the offence with which he was charged. is un necessary to go into the interesting question which was canvassed before us at some length as to the burden of proof on the prosecution as well as the defence in a the provisions of sec criminal trial having regard to tion 105 of the Evidence Act as also the applicability in India of the principles enunciated in W oolmington v. The Director of Public Prosecutions (1). In view of the conclusion reached above in some form or J would therefore allow the appeal, and quash the conyiction and sentence passed upon the appellant by the High Court. (1) [1935] A. C:. 462. 1954 Bemam K!wshed Ptsikaka v, Tb Staie of Bombay Jagannadhadas J. 628 SUPREME COURT REPORTS [1955} JAGANNADHADAS perusing the But, with great regret, J.-1 have had benefit of judgments of both my learned brothers.

I feel unable to agree with the invalid. My taken by my learned brother Justice Bhagwati. Two questions of law have been raised in this case, viz., (1) on whom does the burden of proof lie to make out that the "liquor" consumed by the appellant was or was not medicinal or toilet preparations though contain (2) what is the nature and quantum ing alcohol, and of proof required if the burden is upon the appellant. The answer to question No. 1 depends upon the effect of the decision of this Court in The State of Bombay and Another v. F. N. Balsara (supra) which, while holding that the definition ot liquor in sub-section (24) of section 2 of the Bombay Prohibition Act, 1949 (Act XXV of 1949) is valid, has declared that clause (b) of section 13 in so far as it affects the consumption or use containing alcohol, of medicinal or toilet preparations Justice Bhagwati, learned brother while holding that the effect of the declaration was not to alter and amend section 13 (b) of the Act, is of the opinion that in the light thereof the prohibition under section 13 (b) is to be understood to relate (so far as is relevant for the present purpose) to consumption or use of "non-medicinal or non-toilet liquid preparation containing alcohol" and the burden lies on the prosecution to make out all the ingredients the negative thereof.

On the other hand, my learned brother Justice Venkatarama Ayyar is of the opinion that the effect of the decision in The State of Bombay and Another v. is not to amend or alter section F. N. Balsara (supra) 13(b) but only to render it partly unenforceable, and hence to provide a defence ground of unconstitutionality that section is sought to be applied to medicinal or toilet prepara tions containing alcohol and that, therefore. the burden of making out the facts required for this plea is on the accused. so understood with to the accused, on the prohibition that, therefore, in so far as I agree that no legislative function can be attributed to a judicial decision and that the decision in The State of Bombay and Another v. F. N. Balsara (supra) does not, - - 1954 B1hram Kiuirsherl Puikaka The State of ·Bobmll!J Jagnnadhadas J. - - SUPREME COURT REPORTS 629 proprio vigore amend the Act. The effect of a judicial declaration of the unconstitutionality of a statute has been stated at page 10 of Vol.

I of Willoughby on the Constitution of the United States, Second Edition, as follows: there is no "The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it, and determines the rights of the parties just as if such statute had no application. The Court may give its reasons for ignoring cir disregarding the parties only, the statute, but the decision affects the statute. The judgment against reasons for the court may operate as a op1mon or precedent for the determination of other similar cases, but it does not strike the statute from the statute book; it does not repeal .............. the statute. The parties suit are concluded by the judgment, but no to that is bound. A new litigant may bring a new one else suit, based on the very same statute, and the former decision ........ can be relied on only as a precedent. " This and other similar passages from other treatises relate, however, to cases where the entire legislation is unconstitutional from the very commenceme11t of Act, a situation which falls within the scope of article 13(2) of our Constitution.

They do not directly cover a situation which falls within article 13(1). In the present case, though the decision in The State of Bombay and Another v. F. N. Balsara (supra) does not by itself bring about a change in the Act, the declarations made therein are founded on article 13(1) and it is with the effect thereof we are concerned. The question is what is the effect of article 13(1) on a pre-existing valid statute, which in respect of a severable part there fundamental rights. Under article 13 (I) of violates such part is "void" from the date of the commence ment of tl1e Constitution, while the other part continues to be yalid. Two views of the result brought about by this voidness are possible, viz., (1) said severable part becomes unenforceable, while it remains part of the Act, or (2) the said part goes out of the Act and the Act stands appropriately amended pro tanto. The first is the view which appears to have been adopted 195+ Behram K/a11shtil PesiJUJka v.

The Stal< ef Bombtg• ]aganwadiwdtJ>]. 630 SUPREME COURT REPORTS [1955] by my learned brother, Justice Venkatarama Ayyar, on the basis of certain American decisions. I feel inclined to agree with it. This aspect, however, was not fully presented by either side and was only suggested the Bench in the course of argume_nts. We have not had the benefit of all the relevant material being placed before us by the learned advocates on either side. The second view was the basis of the arguments before us. It is, therefore, necessary and desirable to deal with this case on that assumption. - .. ... 4- follows : (1) The • ~ liquid thereof are The question, then, for consideration is what is the notional amendment which must be imported Act consistently with the decision in The State of Bombay and Another v. F. N. Balsara (supra). The relevant portions definition of "liquor" in the Act to its full extent conti- nues to be valid, (2) section 13(b) of the Act in so fa( as it relates to toilet or medicinal preparations containing alcohol is invalid, and (3) this portion of the content of section 13 (b) is severable.

The argument of the appellant's learned counsel is that the essence of the valid prohibition under section 13(b) now is consumption or use of liquor other than liquid medicinal or toilet preparations alcohol. He urges, containing section B(b) must be taken to stal)d tl1erefore, I understood amended accordingly. The argument, if that the word "liquor" it aright, was stands amended as "prohibited liquor" or that it must be understood with this limited connotation. I am unable to see how this can be done. The definition of the word "liquor" with its inclusive content remaining intact and valid, that content has to be in section 13 (b) and it meaning of appears to me that it is not permissible it or understand it in a different sense. So it or understand it would be to import a new definition of "prohibited to make consumption or use of "prohibited liquor'', the offence. What, however, tl1e Balsara decision has done is not to authorise the importation of a new definitiqn and rewriting of section B(b).

It ke, eps section B(b) intact imported wholesale the word "liquor" to read the Act and liquor" into the - A. - - 1954 Behram Khurshed Pesikaka v. The Stat. Bomh'!1 Jagannadhadas J. S.C.R. SUPREME COURT REPORTS 631 liquid treats the consumtion or use of toilet or medicinal preparations containing alcohol as severable and takes such consumption or use out of the ambit of the section is un constitutional. This can be done and only done, in my opinion, by grafting an appropriate exception or proviso into section 13(b ). the prohibition itself as thereof My learned brother, Justice Bhagwati, has in his judgment suggested that, if it is a question of treating section 13(b) as amended, the amendment can be made in one of many modes and that is no reason to choose between that it is not fair to an .accused person to read it burden on him, when a more favourable mode is open. The various modes of amendment are indicated in following suggested reading of section 13 (b). in a manner them and throwing 'A' "No person shall consume or use spirits of r wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing I alcohol as are not or which are not or other ~1 they are I not or but shall include liquid medicinal or l toilet preparations containing alcohol. than or save or except or provided r all 'B' ~ preparations L alcohol.

" non-medicinal and non-toilet consisting of or liquid containing (The underlinings and markings are mine). Now, if the relevant portion of the section is recast ·in the manner above indicated, in any of the alternative modes in the portion marked 'A' above, I have no -doubt that every one of these modes is only an excep tion or a proviso which falls within the specific terms ·of section 105 of the Evidence Act, i.e., an exception or proviso "in the law defining the offence. " treated as amended by . other hand, incorporating . portion marked it appears to me, with great respect, that it is to alter the very content of the word ''liquor" in the section, for which ~justification. What the decision in The State of Bombay the portion marked 'B' omitting I can find no If, on section 'A', 632 SUPREME COURT REPORTS [19551 1954 Behram Khu.rshed Ptsikaka Y. Tiu State of Bombay. JagannadhadaJ ]. to keep and Another v.

F. N. Balsara (supra) authorises is, as I have already explained above, the word "liquor" intact with its full content and sever from the provision taken as a whole (not merely from the word toilet preparations. I feel "liquor") medicinal accordingly confirmed taken, can only be done by engrafting an viz., that this exception or a proviso. in the view that I have As regards the other view suggested by my learned that without importing any brother, Justice Bhagwati, alteration or amendment in the section itself, the same· is to be understood a~ having referenc_e to what may be called "prohibited that word liquor", understanding reference to the decision in The State of Bombay and Another v. F. N. Balsara (supra), here again, with I feel difficulty in imputing into a specific great respect, statutory provision a meaning different from what its. plain words, in the light of indicate .. The decision in The State of Bombay and Another v.

(supra), if it does not bring about an F. N. Balsara amendment in the provision, does not also provide any mere aid to interpretation. the definition, intended. The question In this view, I feel unable to is not one of insisting on a merely technical view of the matter. impute - to the decision in The State of Bombay and Another v. (supra), taken with article 13(1), F. N. Balsara rendering section 13 (b) unworkable, which effect of certainly was not therefore,. (and on the basis put forward by learned counsel on both sides), the effect of article 13(1) on section 13(b) of the Act in ·the light of the decision in The State of Bombay and Another v. F. N. Balsara (supra) is that it stands amended pro tanto hy means of an appropriate that section 105 of exception or proviso. It follows the Evidence Act would in terms to such a in either view of the effect of article· situation. Thus 13(1) of Bombay Act in the light of the judgment in The State· of Bombay and Another v.

F. N. Balsara (supra) the· opinion expressed by the learned Judges of the Bombay High Court that the burden of proof in a case like this. lies on the accused is correct. the Constitution on section 13(b) of ... - ,_ 1 954 Behram Khurshetl Pesikaka. v. The State of Bombay. Jagannadhadas ]. S.C.R. SUPREME COURT REPORTS 633 the Full Bench of As regards the second question that has been raised namely as to the - nature and quantum of the evidence required to discharge this burden of proof, considerable arguments have been advanced before us. Our atten the existence of conflicting tion has been drawn to decisions in the High Courts on this topic. On the one side there is the decision of Allahabad High Court in .Prabhoo v. Emperor(1 ) and on is a later Special Bench decision of the the other, there Bombay High Court in Government of Bombay v. Sakur( 2). In my opinion it is unnecessary resolve that conflict in this case, since, on either view, the finding of the appellate Court that the burden has not been discharged on the available material seems to In particular it is to be noticed that me to be correct. in para statement filed by him inta graph 8 of the written In support of this Court defence he has given no proof of any circumstances:,, which must be within his knowledge, defence reasonably probable even if he may not have been able to prove the same strictly to the hilt. • the appellant put forward a specific defence in answer to the charge. for us render jail. result, In the is correct.

But the sentence of imprisonment I am, therefore, of the opinion that the conviction of the appellant under section 66 (b) of the Bombay Prohibi in the circumstances, tion Act, 1949, it is not necessary to send him back to I would, to the therefore, reduce period already undergone. the appeal has to be dismissed subject to this modification. VENKATARAMA AYYAR J.-I regret that to agree with the view Bhagwati J. The facts giving rise to I am unable taken by my learned brother. this appeal have 'been stated in his Judgment which I have had the advantage of reading and it is unnecessary to restate them. The point for decision shortly is whether in a prosecution under section 66 (b) of the Bombay Prohibi tion Act, XXV of 1949, for contravention of section not merely that 13(b ) .. the prosecution has to establish liquor had been taken in some form but that further what was taken was not a medicinal preparation.

The (1) I. L. R. 1941 All. 843. (2) •8 Born. L.R. 746; A. I. R. 1947 Born. 38. - .'f - _. 1954 JJehram Khu.rs/zed Pesikako v. T 11' Staie of Bomh'!-"· ·V l!lkataroma Ayyar :J. 634 SUPREME COURT REPORTS [1955] learned Judges of the Bombay High Court held follow ing an earlier decision of that Court in Rangrao Bala Mane v. State (supra) the prosecution had that once established that the accused had taken alcohol in some form it was for him to establish that he had taken a medicinal preparation, both on the ground that it was in the nature of an exception which it was for the party pleading Evidence Act and that it was a matter specially within his know ledge and that therefore the burden of proving it lay on him under section 106 of the Evidence Act. The appellant this deci sion and contends that it is opposed to the decision of this Court in T lie State of Bombav and Another v. F. N. Balsara (supra). to establish under section 105 of challenges the correctness of - It will be convenient first to refer the statutorv ' the question and ascertain what provisions bearing on the position is thereunder, and then consider how it is affected bv the decision of this Court 111 The State of Bombay dnd Another v.

F. N. Ralsara (supra). The relevant prov1S1ons of the Bombay Prohibition Act are sections 2(24), 13(b) and 66(b). Section 2(24) defines "liquor" as including all liquids consisting of or contain- ing alcohol. Section 13(b) enacts that no person shall use or consume liquor and a contravention of provision is made punishable under section 66(b ). As medicinal preparations containing alcohol are .liquor as defined in section 2(24) the consumption thereof will be an offence punishable under the Act and it will be no answer to a prosecution for contravention of section 13(b) consumed was a medicinal preparation and a question of the kind now presented . therefore could not possibly arise under the Act to us prior to the Constitution. that what was I may next consider the effect of the decision of this Court in T lie State of Bombay and Another v. F. N. Bal sara (supra) on the legal position under the Act.

It was there held inter alia that section 13(b) in so far as it the consumption of medicinal preparations prohibited was an unreasonable restriction on rights of an owner to hold and enjoy property and was therefore void as being repugnant to article 19 (1) (f) of the .. - .< 1954 Behram Khurshtd: Pesikaka ' v. The State of Bomb~. V enkatarama, AyyarJ. - - S,C.R. SUPREME COURT REPORTS 635 the section by the effect Constitution. The appellant contends of this declaration was to remove medicinal prepara tions from out of the purview of section 13 (b) ; that that section should therefore be read as if it had been that no person shall use or amended to the effect than medicinal preparations or consume liquor other toilets ; that in that view no question of the accused having to rely on an exception arose and no question of the burden being thrown on him under section 105 ; and that as the offence itself consisted in consuming a liquor which was not a medicinal preparation, burden would lie on the prosecution to establish that what was consumed was a prohibited liquor.

On the other hand, the respondent contends that the definition ' of liquor in section 2(24) includes not only beverages but also medicinal preparations, the extended definition would apply to section 13(b) as well, that the immunity of medicinal preparations containing alcohol from the operation of reason of the decision in The State of Bombay and Another v. F. N. Balsara (supra) must in consequence be treated as an exception to it and section should be in favour of those prepara read as containing a saving tions, in the nature of an exception or proviso, burden of establishing which under section 105 of the Evidence Act would be on the accused. I agree with the appellant that section 105 has no application. We are not here concerned with any exception, general or special, under the Penal Code or any other law defining the offence. The exception or proviso, if it may be so called, arises as a result of the decision of this Court and not under any statute and section 105 cannot therefore in terms apply.

At the same time it is difficult to see how the decision' in The State of Bombay and Another v. F. N. Balsara (supra) can be considered to effect an amendment of section 13 (b) so as to exclude medicinal preparations its ambit. The rival contentions which have been presented to us on the effect of the decision in The State of Bombay and (supra) proceed both of them Another v. F. N. Balsara in some manner on the basis that section 13 (b) has been amended by the appellant, it ; according to from out of that the 1954 IJehram Khursktd .Pesikaka v. 'The StaU of IJomh1J7. .Venkatarama AY.)'ar J. 636 SUPREME COURT REPORTS [1955] is not legislative preparations to have been amended by section must be excluding medicinal the word "liquor" and according to the respondent, by inserting in favour of an exception or proviso to the section such preparations. That, however, the correct position. Decisions of Court do not amend or add to a statute.

That is a purely function. They merely interpret the law and declare whether it is valid or not and the result of a declaration that it is not valid is that no effect could be given to it in a Court of law. If therefore section 13(b) cannot be construed as itself amended or modified by reason of the decision in State of Bombay and Another v. F. N. Balsara The that medicinal (supra), there reason preparations containing alcohol, which fell within that decision. scope before, have gone out of it after This argument therefore does not furnish any ground the prosection under for throwing that what was •ection 13(b) to establish not merely consumed was liquor but that it was not a medicinal preparation. the burden on to hold is no principles containing to well established The question of burden of proof must therefore be decided not on the basis of a suppositions amendment of the section or addition of an exception or proviso to it stands and it but on the language of the section as with reference of law.

Under that section it is an offence to use or consume liquor and that under the definition in section 2(?.4) includes medicinal alcohol. preparations One of the points raised in The State of Bombay and the State Another v. F. N. Balsara (supra) was Legislature which was competent to legislate on xicating liquor could not under that head of legislation preparations law in enact a "intoxicating ·containing alcohol because liouor" meant beverages and not medicines but contention was negatived by this Court on the ground that the words "intoxicating liquor" had acquired extended including medicinal preparations contammg the Legislature was competent while enacting a law with reference to intoxi legislate on medicinal preparations ·cating respect of medicinal the words alcohol and liquors ' - - 1954 Bekram Khurshetl Pesikaka v. The State of Bombf!1. V enkatarama AY.)'ar ]. - - S.C.R. SUPREME COURT REPORTS 637 "liquor" it relates to be valid, to the contrary, in its extended sense having contammg alcohol.

The definition of section 2(24) thus been it follows that unless there is some thing in the particular provision the statute word "liquor" must wherever it occurs in that is the meaning include medicinal preparations and which it must bear in section 13 (b). In The State of Bombay and Another v. F. N. Balsara (supra), it is on the footing that medicinal preparations are included in section 13 that the entire discussion on its validity with reference to article 19(1) (f) proceeds. We therefore start with this that under section 13 (b), the Legislature has made it an offence to take alcohol in any form, as medicinal preparations. whether as beverages or -1 That being the position and it having been decided to medicinal that the section in so far as preparatfons is void as repugnant to article 19(1) (f), the question as to who should prove whether what was consumed was alcohol or medicinal preparation contain ing alcohol appears to me to admit of a simple answer.

There is a strong presumption in favour of the constitu tionalitv of a statute and it is for those who assail it it. The contention of as unconstitutional to establish that section 13 (b) is the appellant bad in so far as it hits medicinal preparations contain ing alcohol as it contravenes article 19(1) (f) of the O:mstitution, and the decision of this Court in The State of Bombay and Another v. F. N. Balsara (supra) is the appellant relied on as supporting it. But before can bring himself within that decision, he must establish that what he consumed was a medicinal preparation. The plea of unconstitutionality is not established unless all the elements necessary established ; and as observed by this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh(1), "the the constitu burden of making out facts requisite for is on the convictions" tional appellant. He has therefore to make out as a fact that what he consumed was a medicinal preparation and as a matter of law, that section 13(b) is bad in so far as it prohibits it.

The decision of this Court concludes the to sustain such a plea is, when analyzed, invalidity (1) [1953] S. C. R. 1188, 1202. 1954 Behram Khurshed Pesikaka v. The Stat''!/ Bomb'f!. 638 SUPREME COURT REPORTS 119551 the second point is question in his favour so far as concerned. But the burden of establishing the point, that in fact what ·he consumed was a medicinal preparation, still remains on him. that meant It was argued for the appellant that this Court had declared that section 13 (b) was void under article 13 ( 1) of the Constitution in so far as it related to medicinal to that it was preparations ; that it should in consequence be extent a nullity and that include medicinal preparations. read as if it did not The question is, what is legal effect of a statute being declared unconstitutional. The answer to it de pends on two considerations,-firstly, does the constitu tional prohibition which has been infringed affect competence of the Legislature to enact the law or does > it merely operate as a check on the exercise of a power is within its competence ; and secondly, if it is merely a check, whether it is enacted for t11e benefit of individuals or whether it is imposed for the benefit of If the the general public on grounds of public policy. statute is beyond the competence of the Legislature, as for example, when a State enacts a law which is within the exclusive competence of the Union, it would be a nullity.

That would also be the position when a limita tion is imposed on the legislative power in the interests in Chapter of the public, as, for instance, the provisions XIII of the Constitution relating to and commerce. But when the law the com petence of the Legislature and the unconstitutionality arises by reason of repugnancy to provisions enacted for the benefit of individuals, it is not a nullity but is merely unenforceable. Such an unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well settled. ( Vide Cooley on Constitutional Limitations, Volume I, pages 368 to 371; Willis on Constitutional Law, at pages 524, 531, 542 and 558 ; Rottschaefer on Constitutional Law, at In Shepard v. Barron('), it was pages 28 and 29-30). observed that "provisions of a constitutional nature, intended for the protection of the property owner, may be waived by him.

" ), In Pierce v. Somerset Railway( 2 (2) 171 U.S. 641, 43 L. Ed. 316. (1) 194 U.S .. 153• 48 L. Ed. m5. inter-State is within - - 1954 Behram Khurshed Pesikaka ' v. The State of Bombay. Venkatarama: Ay)' a S.C.R. SUPREME COURT REPORTS 639 the position was thus stated : "A person may by his acts or omission to act waive a right which he might the United otherwise have under the Constitution of In Pierce Oil States, as well as under a statute. " Corporation v. Phoenix Refining Co. (1), where a statute was impugned on the ground that it imposed unreason able restrictions on the rights ·of a corporation to <;arry on business and thereby violated the rights guaranteed under the Fourteenth Amendment, the Court observed "There is nothing in the nature of such a constitutional right as is here asserted to prevent its being waived or the right to claim it barred, as other rights may be, by deliberate election or by conduct inconsistent with assertion of such a right.

" The position must be same under our Constitution when a law contravenes a ' prescription the benefit of individuals. rights guaranteed under article 19(1) (f) are The enacted for the benefit of owners of properties and when a law is found to infringe that provision, it is open to any person whose rights have been infringed to waive it and when there is waiver there is no legal impediment to the enforcement of It would be otherwise the law. if the statute was a nullity ; in which case it can neither be waived not enforced. . If then the law is merely take effect when waived it can unenforceable and can not be treated as non est and as effaced out of the statute book. that the question of waiver is relevant to the present contro versy not determination in this case but as showing the nature of the right declared under article 19(1) (f) and the effect in law of a statute contravening it. as bearing on any issue of fact arising It is scarcely necessary intended to add · unconstitutionality arising by Another point of distinction noticed by American jurists between reason of lack of legislative competence and that arising by reason of a check imposed on a competent Legislature may also be mentioned.

While a statute passed by a Legislature which had no competence cannot acquire validity when subsequently acquires competence, a statute which was within the competence its enactment but of the Legislature at the Legislature the time of (1) 259 U. S. 125, 66 L. Ed. 855. 3-88 S.C. India/59 ;i. • 1954 Brhram Khurshrd Pesikaka v. The Stair of Bombqy. Venkatarama Ayyar J. 640 SUPREME COURT REPORTS [1955) infringes a constitutional prohibition could be enforced proprio vigore when once the prohibition is removed. The law is thus stated in Willoughby on the Constitution of the United States, Volume I, at page 11 :- _... to be tested by "The validity of a statute constitutional power of a legislature at the time of its enactment by is beyond the legislative power, it is not rendered valid, without re-enactment, if later, by constitutional amend ment, the necessary legislative power is granted. legislature, and, if thus tested that where an act However, it has been held is rendered unconstitutional legislature is prevented from legislative power of the enacting reason of circumstance, as for example, when within the general body, but some adventitious a State matter by reason of the fact that the Federal Congress has already legislated upon that matter, or, by reason of its silence, is to be construed as indicating that there should be no regulation, the act does not need to be re-enacted in order to be enforced, if this cause of its unconstitutionalitv is removed.

" regulating a ' - I> reference to inter-State sales. legislation far as it related a The authority cited in support of this observation is the decision in Wilkerson v. Rahrer('). There the State of Kansas enacted a law in i889 forbidding the sale of intoxicating liquors in the State. Though it was valid it was unconstitu intra-State sales, tional In conferring 1890 the Congress passed to enact prohibition laws with 'authority on the States reference trade. A prosecution having inter-State . ·effected after the Congress legislation of 1890, one of that as the State law was the contentions urged was unconstitutional when it was enacted it was void and it could not be enforced even though the bar had been In removed by the Congress repelling this contention the Court observed :- case of a law enacted nnauthorized exercise of a power exclusively confided to Congress, but of a law which it was competent for legislation of 1890.

"This is not the instituted under the 1889 Act in respect of sales _ <I. (1) 140 U.S. 545; 35 L. Ed . .572· - • • - - S.C.R. SUPREME COURT REPORTS 641 the State to pass, but which could not operate upon articles occupying a certain situation until the passage of the Act of Congress. That Act in terms removed the obstacle, and we perceive no adequate ground for adjudging that a re-enactment of law was required before it could have the effect upon imported which it had always had upon domestic property. " the State The position is thus stated by Cooley in his work on Constitutional Law, at page 201 :- 1954 Behram Khurshetl Pesikaka v. The State of Bombtg. Venkatarama Ayyar J. "A court's decision merely decides is then under adjudication, and a finding of unconstitu the statute but merely tionality does not destroy involves a refusal to enforce it. " the case refers the States Rottschaefer, conflict of referring authorities on the point decision in Wilkerson v.

Rahrer(1 ), as embodying the question again, it may ·be noted, better view. This does not arise as such for determination this case and is material only as showing that an infringement of a constitutional prohibition which does not affect the competence of a Legislature but is merely a check on its exercise does not render the law a nullity. In view of the principles discussed above, the use of the word "void" in article 13(1) is not decisive on the question as to the precise effect of a law being repugnant to article 19(1) (£). Reference may be made in this connection to the statement of the law in Corpus Juris, Volume 67, page 263 et seq., to which counsel for is there pointed respondent invited our attention. and decisions out that the word "void" in is "absolutely void" or might mean 'absolutely void' which "relatively void" ; that "that is the law or the nature of things forbids to be enforced at all. condemns as a wrong to individuals enforce as against them"; that what is absolutely void is incapable of confirmation and ratification ; and what is relatively void could be waived. 'relatively void' which It statutes refuses and that is either The true scope of article t3(1) was considered by this Court in Kesavan Madhava Menon v.

State of (1) 140 U. S. 545; 35 L. Ed. 572. 1954 Bthram Khurshed Pesikaka v. TheStat<0f Bomb(fl. V enkatarama ·A'Jar J. 642 SUPREME COURT REPORTS [1955) Bombay('). There the point whether operation. observed:- the Constitution was In the course for determination was judgment Das J. retrospective of his existing it provides terms make the fundamental "It should further be seen that article 13 ( 1) does laws which are rights void ab initio inconsistent with or for all purposes. On the contrary, all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes but they are void only to the extent they come into the fundamental rights ............ Article conflict with the entire opera 13(1) cannot be read as obliterating tion of to wipe them out statute book .............. The altogether effect of article 13(1) is quite different from the effect repeal of a of the expiry of a temporary statute or the statute by a subsequent statute.

As already explained, article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory legal force or binding effect only and devoid of any rights with respect on and after Constitution. " commencement of the exercise of the inconsistent the date of fundamental laws, or applicable "relatively In effect, "void" It is true that the question which the Court was considering there was different from the one which we have now to decide in this appeal. But those observa to the tions embody a principle which is present case as well. in article 13 (1) was construed as meaning, in the language of American on the jurists, ground that a judicial determination does not operate as an amendment of the statute and on the ground that is void under a declaration that the impugned to article 19(1) (f) merely article 13(1) as renders it unenforceable, I am of the opinion that decision in The State of Bombay and Another v.

F. N. Balsara (supra) cannot be held remove the purview of medicinal preparations from I therefore agree with the learned Judges section 13(b ). void. " Therefore repugnant out of (1) [1951] s. c. R. 228. - - 195+ Behram Khurshti P1sikaka •• The Stat1 of Bombay. Vmkatarama ..(1yar J. - .. S.C.R. SUPREME COURT REPORTS 643 of the Bombay High Court, though not for the reasons given by them, that the burden of establishing what was consumed was a medicinal preparation lies on the appellant. the evidence the eyes could section 105 of the occurrence stated It was next contended that even if the burden lay on the appellant to prove that he had taken a medicinal preparation, he must be held on to have discharged it because the doctor who examined him at 11-30 p.m., on the day of that he was coherent in his speech and his evidence could walk along a straight line, the smelling of could be caused by oxidation and that the alcohol congestiori of the conjunctiva in result from street dust.

It was argued that if the prosecution evidence did not exclude the possibility of the defence being true, then notwithstanding Evidence Act the burden which lay on the posecution of establishing the offence had not been discharged and reliance was placed on the decision in W oolmington v. Director of Public Prosecutions (1 Indian authorities wherein it was followed : Emperor v. U. Damapala(2) ; Parbhoo v. Emperor(3). In opposition to these authorities counsel relied on the decision in Government of Bombay v. Sakur( 4 ). is whether if the burden lay upon the The question appellant the conclusion of learned. Judges that it had not been discharged is on the evidence a reasonable If it is, this Court cannot interfere with it one. in an It must be noted that the appeal under article 136. appellant himself led no evidence in support of the plea. If at least the evidence which the prosecution adduced disclosed facts which would lend support to the defence, it might then have been open to the appellant to rely on them without himself having to adduce independen,t evidence but none such were elicited.

The learned Judges in the Court below have approached the case the correct standpoint and have discussed entire evidence with a view to find whether on that the ), and on respondent for the (1) [1935) A. C. 462. (2) I. L. R. 14 Rang. 666. (3) I. L. R. 1941 All. 843. (4) A. I. R. 1947 Born. 38, 48 Born. L. R. 6!6. - - J 1954 Beltram Khurshed Pesikaka v:" The State of Bom6ay. V 1nkatarama A.1.1•• lf· 644 SUPREME COURT REPORTS [1955} reasonably probable. They held that defence was giving of coherent answers or walking in a straight line would only show that the appellant was not drunk at that time but would not show that he had not consumed liquor. They also the appellant could remarked that have informed both the sub-inspector and the doctor who examined him that he had taken medicine in which case the police might have been in a position to find out whether there was a medicine bottle at his residence If the learned· Judges were right in their at that time. view that the burden lay on the appellant, their finding that it had not been discharged is not one which is open to attack.

It was also contended the appellant, trial magistrate having acquitted the presumption of innocence which the law raises in favour of the accused became reinforced and that there were no compelling reasons for the appellate Court to have the . order of acquittal. But the judgment of the trial Court that the burden was on the was based on that the accused had not taken prosecution to establish a medicinal preparation and when the learned Judges differed from that view, they had to review the evidence afresh· and decide whether the appellant had discharged the burden and their finding on the question is not vitiated by any misdirection. the view reversed In the result the conviction of the appellant under section 66 (b) of the Bombay Prohibition Act must be the sentence of one month's · confirmed. As regards imprisonment passed on him, it appears that he has already served 22 days out of it.

The justice of case does not require that he should be agam sent jail. I would, therefore, reduce the sentence of imprison ment to the period already undergone. Subject to modification, I am of this appeal should be dismissed. the opinion BY THE CouRT.-Having regard to of the majority, the appeal will be dismissed subject the modification that the sentence appellant will be reduced Bail bond will be cancelled. judgments imposed upon the to that already undergone. Appeal dismissed sentence reduced. 1 - - ' • 1954 Behram Khurshe!I Pesikaka v. The State of Bombay. BhagwatiJ. - - S.C.R. SUPREME COURT REPORTS 645 [There was an application for review of the aforesaid the Constitution and Judgments under article 137 of the Hon'ble Judges of the original Bench (Bhagwati, Jagannadhadas and Venkatarama Ayyar JJ.) passed the following order dated 28th April, 1954, referring the case for the opinion of the Constitution Bench.] The Order of the Court was pronounced by BHAGWATI J.--We grant the review reopen the case to enable us to obtain the opinion of a larger Bench on the constitutional question judgments previously delivered by us.

Under proviso to article 145 of the Constitution, we refer the following question for the opinion of the Constitution Bench of the Court. raised "What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara(1) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void, under article 13(1) of the Constitution, in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, on the ground that it infringes articles 19(1) (£) of the Constitution ?" On receipt of the opinion the case will be taken up for further consideration. f In pursuance of the above reference under to article 145(3) of the Constitution proviso (Mehr Chand Lordships of the Constitution Bench Mahajan C. J., Mukherjea, S. R. Das, Vivian Bose and Ghulam Hasan JJ.) gave the following Opinion dated 23rd September, 1954. l MEHR CHAND MAHAJAN C. J.-(Mukherjea, Vivian · Bose and Ghulam Hasan JJ. concurring) A Bench of this Court hearing an appeal under the provisions of Chapter IV of has referred, under article 145(3) of the Constitution, for the opinion of the Constitution Bench the following point :- the Constitution "What is the effect of the declaration in The State of Bombay and Another v.

F. N. Balsara(1) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, s<> is void, under article 13(1) of the Constitution, m liquid far as it affects the consumption or use of • (1) [1951] S. C.R. 682. 1954 B1hram Khurshed Pesikaka v. The State of Bombay. MthrChand MahaJan C. J. 646 SUPREME COURT REPOR:TS [19551 medicinal or toilet preparations containing alcohol, on it infringes article 19 ( 1) ( f) of the the ground that Constitution?" the reference are these : The facts giving rise to Shri Pesikaka, the appellant the case, was at the relevant period, officiating Regional Transport Officer, Bombay Region. On the 29th May, 1951, at about 9-30 P.M., while proceeding in his jeep towards Colaba Bus Stand, he knocked down three persons. He was the police and taken to the police station arrested by and then to St. George's Hospital. The doctor his breath smelling of alcohol, conjunctiva congested, pupils semi-dilated and reacting to light, and speech coherent.

He could behave himself and walk along a straight line. did not seem though he had taken alcohol in some form or ·other. In the opinion of the doctor the appellant ' influence of alcohol, to be under the On these the appellant was prosecuted for having committed offences under section 338, Indian Penal Code (rash driving), as well as under section 66(b) In defence it was sug of the Bombay Prohibition Act. gested that he had taken a medicinal preparation, B.G. Phos, and had not consumed any liquor, and that on the night in question he had. taken at about 9 or 9-15 P.M. after dinner a dose of B. G. Phos which contained 17 per cent. of alcohol according to its formula. The there were learned Presidency Magistrate acquitted appellant on the finding that the prosecution had failed to establish his guilt under either of the sections under which he was charged. With regard to the offence under section 66(b) of the Bombay Prohibition Act, it was observed to be used by law, preparations which were allowed and there was the appellant had not consumed those tonics but only liquor for which he ought to have a permit.

The State of Bombay appealed against the acquittal order to the High Court. The High Court confirmed the acquittal Indian Penal Code, but reversed the order acquitting him of the charge under section 66(b) of the Bombay Prohibi It followed a decision of its own Division tion Act. charge under section 338, evidence to show no satisfactory regard certain medicinal · - '· • 1954 B1hram Ehursh1d P1sikaka. v. The State of BombtfJ. M1hrChand JLQhajan C. J. •· - , - > l S.C.R. SUPREME COURT REPORTS 647 · without a permit, it was for result In the the Court Bench in Rangrao Bala Mane v. The State (supra) where it had been held that once "it was proved by prosecution that a person had drunk or consumed liquor that person to show that the liquor drunk by him was not prohibited liquor, but was alcohol or liquor which he was permitted by law to take, e.g., medicated alcohol. On this view of that the it was held law, on the merits of the case to prove the existence of circum appellant had failed could come to the stances from which conclusion that the liquor which was consumed by liquor which appellant was not prohibited liquor but was excepted by the Bombay Prohibition Act from its operation. the appellant was sentenced to one month's rigorous imprisonment and a fine of Rs.

500. Against this order an appeal was admitted in this Court by special leave and was heard by a Bench of. the Court consisting of Bhagwati, Jagannadhadas and Venkatarama Ayyar JJ. on the 19th February, an una 1954. The learned Judges could not reach nimous decision and expressed different and divergent the appeal opinions. Bhagwati and quash the conviction. He was of the opinion the onus rested on to prove that the liquor consumed by the appellant was prohibited liquor under section 13(b) of the Act and that the prosecution had failed to prove this. This, in the opinion of the learned Judge, was the consequence of the declaration of unconstitutionality of a portion of section 13 (b) by this Court in The State of Bombay and Another v. F. N. Balsara (supra). J. wanted to allow the prosecution the effect of Venkatarama Ayyar J. dissented this view. He was of the opinion that the decision in The State of Bombay and Another v.

F. N. Balsara (supra) could not be held to have taking out medicinal preparations from the purview of section 13(b) and that its effect was merely to render that part of the section unenforceable and the onus rested on the accused to establish the plea of unconstitutionality, and it could not be held established unless all the elements necessary the accused had to sustain such a plea were proved and therefore to make out as that what he had . a fact 1954 Behram lihurshtd Pesikaka v. The State of Bomb<J1. Mehr Chand Mah,,jan C. J. 648 SUPREME COURT REPORTS [1955] J. a medicinal preparation. On consumed was merits of the case it •was held that the accused had failed to discharge the burden that rested on him. In the result the conviction of the appellant by the High Court was upheld. J agannadhadas agreed in the result reached by Venkatarama Ayyar J. but on different grounds. He was of the opinion that the only way to give full effect to the judgment in The State Bombay and Another v.

F. N. Balsara (supra) was to en graft an appropriate exception or proviso upon secrjon 13 (b) in the light of that decision. He considered that The State of Bombay and Another v. F. N. Balsara (supra) did not import a new difinition or re-write section 13(b ). It kept the treated the consumption of liquid or section intact but medicinal preparations containing alcohol as beyond its ambit and thus engrafted an exception or proviso on to section 13(b ). On this view of the effect of Balsara's decision it was held that the onus rested on the accused to establish that his case fell within the exception In accord and he had failed ance with the opinion of the majority the conviction of the appellant under the Bombay' Prohibition Act was confirmed and the appeal was dis sentence was reduced to that already missed but undergone. to discharge that · onus. 66(b) of section - , On a petition for review being presented, the learned the 26th April, 1954 and Judges granted the review on to obtain the opinion reopened the case, to enable of the Constitution Bench of this (',ourt on the constitu tional question formulated and mentioned above.

For a proper appreciation of the question referred to us, it is necessary to set out what this Court decided in The State of Bombay and Another v. F. N. Balsara In that case the constitutional validity of the (supra). Bombay Prohibition Act (XXV of 1949) was challenged substantially failed on different grounds. This attack and the Act was maintained as it was passed, with the exception of a few provisions that were declared Inter alia, clause (b) of section 13 so far as it invalid. affected the consumption or use of such medicinal and toilet preparations containing alcohol was held invalid. ·j 1954 Behram Khurshea Pesikaka v. The State of Bombay. Mehr Chand Mahajan C. ]. S.C.R. SUPREME COURT REPORTS 649 Section 2(24) of the Act defined a "liquor" to include spirits of wine, met~y!ated spirits, wine, beer, and all liquids cons1stmg of or containing alcohol. Section 13 (b) prohibits the use or consumption of liquot the penal without a permit.

Section 66(b) which section provides that "whoever in contravention of provmons of this Act. ....... consumes, uses,. ..... . any intoxicant ........ shall, on conviction, be punished. " The appellant was charged under section 66(b) of the Act for having used or consumed liquor the use of which was prohibited by section 13 (b). In The State (supra), the of Bombay and Another v. F. N. Balsara part of the section that brought all liquids containing invalid and the alcohol within its ambit was declared , section therefore, though it stood intact as enacted in respect of prohibited liquor up to the date of the coming and qua non-citizens into force of subsequently, a part of it was declared invalid, and so far as it concerned citizens, qua them that part of the section ceased to have legal effect. the Constitution clause (b) of section 13 of The problem now raised is ; what is the effect of this partial declaration of the invalidity of section 13(b) on the case of a citizen prosecuted under section 66 (b) for committing a breach of the provisions of the section after the coming into force of the Constitution.

Our opinion on this question is that the effect of the declara tion in The State of Bombay and Another v. F. N. Bal sara (supra), that Bombay Prohibition Act is void under article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations contain- . ing alcohol, is to render part of section 13(b) of the ineffective and Bombay Prohibition Act, ineffectual and thus unenforceable. The part of section which has been declared void has no legal force far as citizens are concerned and it cannot be the rights of recognized the section citizens. its enforceability stands narrowed down against citizens is concerned and no notice can be taken of the part of the section struck down in a prosecution for contravention of the provisions of that section, with. as valid law for determining In other words, the inoperative, ambit of far as - - • '954 .Behram Khurjhld Pesikaka v.

The Stat1 ef Bombay. Mehr Chand Mahajan C. J. 650 SUPREME COURT REPORTS [19551 legally enforceable and valid, the accused the consequence that in prosecutions against c1t1zens of India under section 13(b ), the offence of contraven tion of the section can only be proved if it is established that they have used or conwmed liquor or an intoxicant which is prohibited by that part of the section which has been declared valid and enforceable and without reference to its unenforceable part. No notice at all should be taken of that other part as it has no relevance in such an enquiry, having no legal effect. In a criminal the prosecution proves a contravention of case unless a provision cannot succeed. No onus is cast on prove that his case falls under that part of the section which has been ·held unenforceable. The High Court was in error in placing the onus on the accused to prove , that he had consumed alcohol that could be consumed without a permit merely on proof that he was smelling that was not the correct of alcohol. the question.

The bare circumstance that approach to a citizen accused of an offence under section 66(b) is smelling of alcohol is compatible both with his innocence as well as his guilt. It is a neutral circumstance. The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of section 13(b) of the Prohibition Act. fact that he had unenforceable and inoperative part 'of the section. That being so, it is the duty of the prosecution to prove that the alcohol of which he was smelling was such that it the category of prohibited alcohols and came within . the onus was not discharged or shifted by merely. It may well be due also to taken alcohol which fell under judgment, In· our The onus thus cast on the . proving a smell of alcohol. prosecution may be light or heavy according to the circumstances of each case. The intensity of the smell that it may !:legative its being of a itself may be such permissible variety.

Expert evidence may prove small doses of medicinal or other consumption in preparations permitted cannot produce the smell or a state of body or mind amounting to drunkenness. Be that as it may, the question is one of fact to be decided It is according to open to the' accused to prove in defence that what he circumstance of each case. ... - - i S.C.R. SUPREME COURT REPORTS 651 consumed was not prohibited alcohol, but failure of the defence to prove it cannot to his conviction unless it is established to the satisfaction of the Judge by the the case comes within the enforceable prosecution that part of section 13(b ), contravention of which alone is the provisions of section 66 of made an offence under the Bombay Prohibition Act. Our opinion are these. reasons 1954 B•hram Khurshett· Pesikaka v·. The State of Bombay. Mehr Chand Mahajan C. J. · with fundamental rights stood obliterated the word "void" had book altogether, and that after the coming into force of The meaning to be given to the expression "void" in article 13(1) is no longer res integra.

It stands concluded by the majority decision in Kesava Madhava Menon v. The State of Bombay(1). The minority view there was the same meaning as "repeal" and therefore a statute which came into clash that such a statute was statute void ab initio. The. majority however held word "void" in article 13 ( 1), so far as existing were concerned, could not be held to obliterate them from the statute book, and could not make such void altogether, because in its opinion, article 13 had retrospective effect. The majority not been given any however held Constitution the effect of article 13(1) on such repug nant laws was that it nullified them, and made them ineffectual and nugatory and devoid of any legal force or bindiug 'effect. It was further pointed out in one of the judgments representing the majority view, that if a statute American rule that to the Constitution the statute is void from its birth, has no · application to cases concerning obligations incurred or rights accrued in accordance with an existing law if any was constitutional in its inception, but that was made after the 26th January, 1950, which was repugnant to the Constitution, then the same rule shall have to be followed in followed in America.

India as The result therefore of this pronouncement is part of the section of an existing is un constitutional is not law, and is null and void. For determining the rights and obligations of citizens the to be part declared void should be notionally law which repugnant (1) {1951] S. C.R. 228. - 1954 JJehram Khur!hed Pesikaka v. The State of Bombay. Mehr Chafuf Mahajan C. J. 652 SUPREME COURT REPORTS [19551 obliterated from the section for all intents and purposes, though it may remain written on the statute book and be a good law' when a question arises for determination of rights and obligations incurred prior to 26th January, 1950, and also for the determination of rights of persons who have not been given is no scope Constitution. Thus, in this situation. there for introducing terms like "relatively void" coined by American Judges in construing a Constitntion which is not drawn up in similar language and implications of which are not quite familiar in this country. fundamental rights by power stands on a different footing , We are also not able to endorse the opinion expressed that a brought about by by our learned brother, Venkatarama Ayyar, declaration of unconstitutionality lack of legislative from a declaration of unconstitntionality brought about fundamental rights.

We by reason of abridgement of think that it is not a correct proposition that constitn tional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. the law-making power of a It is axiomatic that when fundamental law, State is restricted by a written any law enacted and opposed the fundamental law is in excess of the legislative authority and is thus a these declarations of unconstitutionality nullity. Both go to the root of the power itself and there is no real them. They distinction between legislative legislative power. The aspects of want of the State Legislatures as power of the Constitution conferred by articles 245 and 246 of stands curtailed by the fundamental rights chapter of the provisions of Constitution. A mere reference article 13 (2) indicate that there is no competency in Parliament or a State Legislature clash with Part III of the Constitution after the coming into force of the Constitution.

Article 13(2) is in these terms: and articles 245 and 246 is sufficient to make a law which comes Parliament and represeni but "The State shall not make any law which takes away or abridges the rights conferred by this Part and this clause shall, to anv law made in contravention of the extent of the contravention, be void. " - ., .. y • S.C.R. SUPREME COURT REPORTS 653 III of This is a clear and unequivocal mandate of the funda mental law prohibiting the State from making any laws which come into conflict with Part Constitution. The authority thus conferred by articles in the different 245 and 246 to make laws subjectwise Legislatures is qualified by article 13(2). That power can only be exercised subject to the prohibition contained in article 13(2). On the construction of article 13(2) there was no divergence of opinion between the majority and the minority Kesava Madhava Menon v. The State of Bombay It was only on the construction of article 13(1) (supra). that the difference arose because that article could not which when made were constitutional according to the declaration made invalidate retrospectively it was ' Constitution then in force.

1954 Behram KhursheJ Pesikaka v. The State ef Bom6qy. Mehr Chand Mahajan C. J. learned reference professor individual introduced consent or agreement. Again, we are not able to subscribe to the view that in a criminal prosecution it is open to an accused per son to waive his constitutional right and get convicted. A to Cooley's Constitutional Limitations, Vol. I, p. 371, make the proposition clear. Therein that a party may consent to waive rights of property, but the trial and punishment for public offences are not within the pro In our vince of opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitu in our Constitution without tion cannot be a fuller discussion of deciding the case should have been raised on the basis theory. The learned Attorney-General when of such a to be very questioned about the doctrine did not seem enthusiastic about it. Without opinion on this question we are not for the moment theory has any relevancy in con convinced rights conferred by Part III struing the fundamental the rights des l>f our Constitution.

We think cribed as sequence of the declaration in to constitute people of India have solemnly India into a sovereign democratic republic and. to secure to all its citizens justice, social, economic and political ; rights are a necessary the matter. No the preamble fundamental expressing inference resolved finally - - • 1954 Behram Khurshed P1sikaka v. The State of Bombay. Mehr Chand Mahajan C. J. 654 SUPREME COURT REPORTS [1955] into operation in considering liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These the Constitution mental rights have not been put in merely for individual benefit, though ultimately individual rights, They have been put there as a matter of public policy and the doctrine of waiver can have no application provisions of law which have been enacted as a matter of constitutional policy. Reference to articles, inter alia, articles cannot get dis proposition quite plain.

A the State "You can discrimi-· crimination by the protection given nate", or get convicted by waiving under articles 20 and 21. 15 ( 1), 20, 21 makes citizen telling establish the conviction those who assail judging criminal The learned Attorney-General contended that the correct approach to the question was . that there being a strong presumption in favour of the constitutionality of a statute, it is for it as unconstitu tional to establish it, and therefore it was for the appel statute was unconstitu tional, and that unless he proved facts requisite for the constitutional invalidity of he could that that is a correct not succeed. We cannot agree cases. The constitutional way of the Bombay invalidity of a part of section 13(b) of Prohibition Act having been declared by this Court, that part of the section ceased to have any legal effect in judging cases of citizens and had to be regarded as null and void in determining whether a citizen was guilty of an offence.

Article 141 of the Constitution declares that the law declared by the Supreme Court shall be India. binding on all Courts within In view of is no scope in the American doctrine India for enunciated by Willoughby ("The Constitution of the United States" Vol. I, p. 10), wherein the learned author states, "the declaration by a court of un in conflict with constitutionality of a statute which the Constitution affects the parties only and there is no judgment against the statute ; that the. opinion or reasons o~ the court may operate . as a precedent the determination of other similar cases, but it does this clear enactment application of the territory of r - ... ' 1954 Behram Khurshltl Pesikaka v. Th4,Sta11 of Bombay. Mehr CluwJ Mahajan C. J. S.C.R. SUPREME COURT REPORTS 655 longer not strike the statute from the statute book; the parties to that suit are concluded by judgment, but no one else is bound; a new litigant may bring a new suit, based on the very same statute, and the former deci sion cannot be pleaded as an estoppel, but can be relied on only as a precedent.

" Once a statute declared void under article 13(1) or 13(2) by this Court, statute that declaration has the force of law, and law .qua persons whose so declared void is no In America fundamental rights are infringed. there is no similar statutory provision and that being so, the doctrine enunciated by the learned author can In this country once a law have no application here. law by a has been struck down as unconstitutional , Court, no notice can be taken of that law by any Court, and in every case an accused person need l}Ot start is unconstitutional. The Court proving that the is not empowered to look at that part of the law which is no has been declared as void, and onus resting on the accused person unconstitutional is law that has already been declared unconstitutional that particular case as well. The Court has to take notice only of what the law of the land is, and convict the accused only if he contravenes the law of the land. therefore to prove the light of Jagannadhadas J., Our learned brother, view that the only appropriate way of giving effect to the judgment in The State of Bombay and Another v.

F. N. Balsara (supra) was by engrafting an exception or proviso to section 13(b) in that decision and that the onus of proving the exception was on the accused person. This, in our judgment, is again not a true approach to the question. As pointed out by the learned re-write the section. to be kept intact. The Court therefore has no power to engraft an exception or a proviso on section B(b) of the Bombay Prohibition it seems plain that Act. Apart from this circumstance unless there is a power to make a law inconsistent with the provisions of Part III of the Constitution, there can be no power to engraft an. exception of the nature suggested by our brother. An exception or proviso the Court has no power Judge himself, It has 4-88 S.C. India[59 .. J954 &htam Khursheti Ptsikaka v. Tiu: Stott of Bomo<!)'. MthrChand Mahajan C. J. 656 SUPREME COURT REPORTS [ 1955] can only be engrafted for the purpose of excluding from the substantive part of the section certain matters which but for the proviso would be within it.

But when there is no power to enact at all what is proposed be embodied m there is no power to the exception, enact an exception by enacting a law which the Legis lature is not competent to make. The State has no power to make a law abridging fundamental rights and therefore there is no power to engraft an exception by taking something out of a law which cannot he enact ed. It is therefore difficult to treat what was declared void in The State of Bombay and Another v. F. N. Balsara (supra) as an exception to section B(b) of the Bombay Prohibition Act and apply the rule enunciated in sec tion 105 of the Evidence Act to the case of the appel lant. The only correct approach to is to ignore the part of Court in The State of Bombay and A11other v. F. N. Balsara (supra) and see if the prosecution has succeeded in bringing the offence home to the accused on the part of the section that remains good law.

With the observations made above the subject the section declared void by the opm10n m to the Bench which originally this case is heard the appeal. returned DAs J.-I respectfully beg to differ from the opinion of the majority of this Court just delivered by my Lord the Chief Justice. incumbent on me to formulate my reasons this Constitution Bench and state shortly in support thereof. the question referred It is, answer to therefore, It is necessary at the outset to refer the relevant statutory provmons bearing on the question. The appellant before us was prosecuted on a charge under section 13 read with section 66(b) of the Bombay Prohibition Act, 1949 (Act XXV of 1949). The rele-..ant part of section 66(b) of the Act which is the penal sec tion reads as follows: "66. Whoever m contravention of the provisions of this Act (a) ............. . (b) consumes, uses, possesses or transports any intoxicant or hemp, • • • - - 1954 Behram Klwrshd Pesikaka v.

The State of Bombqy. Dtu J. S.C.R. SUPREME COURT REPORTS 657 (c) ............. . (d) ............. . in the Official Gazette, declare shall, on conviction, be punisheed .......... " By section 2(22) "intoxicant" is defined as meaning intoxicating drug, opium or any other "any liquor, substance which State Government may, by to be an notification intoxicant. " Read in the light of this definition con sumption, use, etc., of "liquor"' is. within the mischief of this section. Further, it will be noticed that what is made punishable is not consumption, use, etc. Qf liquor simpliciter but consumption, use, etc., of liquor "in contravention of the provisions of this Act. " The prosecution, as the charge shows, relied on section 13 , as being the provision of the Act in contravention of which the consumption, use, etc., was alleged to have the appellant who was the accused per been made by to be found in Chapter III headed son.

That section is "Prohibitions". So far as it for our pur pose, it runs thus : is material - "13. No person shall- (a) ............. . (b) consume or use liquor ; or (c) ............. . By section 2(24) "liquor" is defined as including- " (a) spirits of wine; denatured spirits, wine, beer, consisting of or containing and all liquids alcohol; and intoxicating (b) any other State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act. " substance which T11erefore the prohibition of section 13 (b) extends to the consumption or use of each and everyone of the above enumerated items which are included in that whoever con of "liquor". definition sumes or uses any of these enumerated substances provisions of section 13 (b) and con contravenes the sumption or use of any of these substances in contraven tion of this provision is an offence punishable under section 66 (b).

It follows '954 Bthram Khurshed Pesikaka v. The Stall of Bombay. pasJ, 6>58 SUPREME COURT REPORTS I 1955] (5) imposes, or prevent came tl1e Constitution of law. By virtue of sub-article The Bombay Prohibition .Act containing the above prov1S1ons came into force on the 20th May, 1949. It is conceded .on. all hands that it was a perfectly valid piece of legislation enacted well within its legi, Jative competency by the tl1en Bombay Legislative Assembly. Then India on the 26th January, 1950. Article 19(1) (f) gives to all citizens the fundamental right to acquire, hold and dispose of prc> perty. By sub-article (5), however, it is provided that nothing in clause (f) shall affect the operation of any existing law in so far as it State from making any law reasonable · res imposing, the right conferred by sub trictions on the exercise of clause ( f) either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

The Bombay Prohibition Act, 1949, was an existing the right conferred by sub-clause (f) cannot affect the operation of the Act in so far as it imposes reasonable restrictions of the kind mentioned in that sub-article. If, however, this existing restrictions which are un reasonable then it becomes inconsistent with the right guaranteed to the citizens by article 19(1)(£) and con sequently under article 13 ( l) "shall, to the extent of is beyond all dispute such inconsistency, be void". that it is for the Court to judge whether the restrictions imposed by any existing law or any part thereof on the reasonable or un fundamental rights of citizens are the general public or for reasonable in the interest of the protection of the interests of any Scheduled Tribe. If the Court holds that the restrictions are unreason able then the Act or the part thereof which imposes restrictions comes into conflict and such unreasonable the fundamental right con becomes inconsistent with ferred on article 19(l)(f) and is by the citizens by rendered void, not in toto or for all pur article 13(1) poses or for all persons but "to the extent of such inconsistency", i.e., to the extent it 1s inconsistent with the exercise of that fundamental right by the citizens.

This is plainly the position, as I see it. imposes It Shortly after the commencement of the Constitution the validity of the Bombay Prohibition Act was " - S.C.R . SUPREME COURT REPORTS 659 . ·~ - - • 1954 Behram Khurshed Penkaka v. The State ef Bombay. DasJ. challenged in its entirety. One F. N. Balsara, claim ing to be an Indian citizen, prayed to the High Court at Bombay, inter alia, for a writ of mandamus against the State of Bombay and the Prohibition Commissioner ordering them (i) to forbear from enforcing against him the provisions of the Prohibition Act and (ii) to allow him to exercise his right to possess, consume and use certain articles, namely, whisky, brandy, wine, beer, lavender water and medicated wine, eau-de-cologne, medicinal preparations containing alcohol. The High Court, agreeing with some of the petitioner's conten tions and disagreeing with others, declared some of the the rest provisions of the Act to be invalid and to be valid.

Both the petitioner the State of Bombay and Balsara, appealed to this Court after obtaining a certifi cate from the High Court under article 132(1) of the Constitution. The Judgment of this Court in appeals was pronounced on the 25th May, 1951. See The State of Bombay and Another v. F. N. Balsara (supra). So far as it is material for our present pur pose this Court held- to the Government of ( 1) that under entry 31 of List II of the Seventh India Act, 1935, the Schedule Provincial Legislatu.res had the power to make laws say, with respect to "intoxicating liquors, transport, production, manufacture, purchase and sale of intoxicating was, Bombay Legislature to enact the Bombay Prohibition Act, 1949; therefore, no liquors" and incompetency possession, legislative that is (2) that the word "liquor" as understood in India India Act, 1935, at the time of the Government of liquids which are those alcoholic covered not only generally used as beverages and produce intoxication, but also definition of "liquor" contained in section 2(24) of the Act was not ultra vires, and liquids containing alcohol and, therefore, (3) that restrictions imposed by sections 12 and 13 of the Act on the possession, sale, use and con sumption of liquor were not reasonable restrictions on the fundamental right guaranteed by article 19(1)(f), so containing far as medicinal and toilet preparations 1954 Behram Khurshtd Pesikoka v.

The State of Bombay. DGJJ. 660 SUPREME COURT REPORTS [1955J alcohol and the possession, they prohibited als_ohol and alcohol were conceroed and that the said sections were inv; ilid so far as sale, use and consumption of these articles, but that those sections were not wholly voitl on this ground as the earlier categories mentioned in the definition of liquor, -namely, spirits of wine, methylated spirit, wine, beer and toddy were distinctly separable items which were easily severable from category, namely, all the last further liquors containing category of "all liquids consisting of or containing alcohol" were again capable of being split up in several sub-categories, e.g., liquid medicinal and toilet prepara the restrictions on tions containing consumption of the earlier possession, sale, use and categories and all liquids containing alcohol other medicinal and toilet preparations were not unreasonable.

In the result this Court declared certain provisions 0£ the Act invalid. Amongst the provisions declared innlid was section 13(b ), but it was so declared only "so far as consumption or use of such toilet preparations containing alcohol. " medicinal and This declaration, no doubt, was made pursuant to arti cle 13(1) of the Coqstitntion. The very foundation of this declaration was that the prohibition imposed by the consumption or use 0£ liquid this section against medicinal or toilet preparations was an unreasonable restriction on the exercise of the fumlamental right of citizens to acquire, hold and dispose of property which in that case was liquid medicinal or toilet preparations containing alcohol. The law Court is, bv virtue of article 141 of the Constitution, binding on· all Courts within the territory of India. thus declared by it affects The offence with which the appellant was charged was alleged to have been committed on the 29th May, 1951, that is to say, four days after this Court pronounc ed its judgment in The State of Bombay and Another v.

(supra). On the 22nd April, 1952, the F. N. Balsam learned the appellant Presidency Magistrate acquitted of that charge with the following remark : "The evidence also does not go to show conclusively tl1at the accused had consumed alcohol without a permit. There are certain medicinal preparations which - - 1954 Bi/tram KhurJhei/ Posikaka "· Tit• Stal• of Bombay. Das J. - - S.C.R. SUPREME COURT REPORTS 661 allowed to be used by law and there must be satisfac tory evidence to show that the accused has not consum ed those tonics but only liquor for which he ought to have a permit. " the order of The State appealed to the High Court against this order of acquittal. The High Court following its own earlier decision in Rangrao Bala Mane v. State (supra) the Presidency Magistrate. reversed Neither in the judgment of the Presidency Magistrate iudgment of the Court was any reference nor in the this Court in The State of Bombay and Another v.

F. N. Balsam (supra). The appellant came up to this Court in appeal after having obtained special leave from this Court. to the decision of so, I way respectfully The appeal came up for hearing before a Division Bench of "ti1is Court consisting of Bhagwati, Jagan nadhadas and Venkatarama Ayyar JJ. Bhagwati J. clearly and, correctly accepted the position that the declaration made by Court in T lze State of Bombay and Another v. F. N. Balsam ( Stt/Jra) "was a judicial pronouncement and that even though under article 141 of the Constitution the law declared by this Court was binding on all Courts in India and is to be the law of the land the effect of that declaration was not to enact a statutory provision or to alter or amend section 13(b) of the Act. " Having accepted this position the learned Judge logically and, I say with respect, correctly repelled the argu ment that th<: result of the decision in The State of Bombay and Another v.

F. N. Balsara (supra) was to an exception or introduce. not terms but in effect, proviso to to prove the existence of onus !av on circumstances bringing his case within the exception or proviso as laid down in section 105 of the Evidence Act. The learned Judge, however, observed :- section 13(b) and consequently appellant "The only effect of the declaration was to be enforce prohibition enacted in section 13 (b) was consumption or use of validly to the able in regard i.e., prohibited spirits of wine, methylated toddy and all non-medicinal and spirits, wine, beer, liquor, 1954 &J,,am K!mtsi1'd Pesikaka . "· TM State of Bombqy. Das]. 662 SUPREME COURT REPORTS [1955] liquid preparations consisting of or contain non-toilet ing alcohol. The prohibition which was enacted section B(b) against the consumption or use of liquor could in the light of the declaration made by this Court only refer to the consumption or use of validly prohibit ed liquor, i.e., spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet liquid consisting of or containing alcohol, and preparations that was the only prohibition which could be enforced under the section B(b) and the penal section 66(b)." The learned Judge proceeded to illustrate how the effect of the declaration could be worked out : "The effect of the provisions of section B(b) could be worked out in any of the follow ing modes: the declaration on No person shall consume or use spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol as are not or which are not or other than or save or except or provided they are not or but shall not include liquid medicinal or all non toilet preparations containing medicinal liquid preparations consisting of or containing alcohol. and non-toilet alcohol or justification When these several interpretations were possible in regard to the effect of the declaration on the provisions of section B(b ), where would be the interpreting the effect of the declaration to be that of grafting an exception or proviso on section 13 (b) so as to attract the operation of the provisions of section 105 of the Evidence Act?

It is clear several interpretations are possible, the Court should adopt an interpretation favourable one which casts an extra or special burden upon him, which if at all should be done by clear and unequivocal than in this indirect provision manner. (See also In re Kanakasabai Pillai) (') ." in that behalf rather the accused, rather that where With the utmost respect to the learned Judge, the modes of working out the effect of the declaration indicated by him clearly involve the acceptance of one or other of the different forms of amendment of the to his views expressed section, although according (1) A. I. R. 1940 Mad. I. - - -, 1954 Beltram Khurshed Pesikaka v . The Stale of Bombay. Dal]. - - S.C.R. SUPREME COURT REPORTS 663 II of the view earlier in his the declaration judgment the effect of was not to alter or amend section 13 (b) of the Act. Venkatarama Ayyar J., however, took .as"the Court had no legislative function and as judicial decisions did not amend or add to a statute but merely it was ·valid interpreted the law and declared whether ·or not, the result of a judicial declaration that a statute thereof was not valid was only that no effect ·or any part could be given to it in a Court of law but that it did not mean that the statute or the part thereof declared void had gone out of the statute book after the Court's ·decision.

He also held that section 105 of the Evidence Act would not in terms apply as article 19(1) (f) could not be said to form an exception to section 13(b ). He rested his decision on the ground that the inclusive definition ·of "liquor" adopted in section 2(24) of the Act having been held to be within entry 31 in List Seventh Schedule to the Government of India Act, 1935, and, therefore, valid, that meaning should be its ·connotation in section 13(b) as well and that under the section so read the offence would be established as soon .as consumption or use of "liquor" so defined was ·established and that the plea that what was consumed was medicinal preparation containing alcohol was really .a plea that the section, in so far as it prohibits consum ption or use of liquid medicinal or toilet preparations ·containing alcohol, ~nfringed the citizens' fundamental therefore, 19 ( 1) ( f) right under article this Court.

His view unconstitutional as declared by was that it was those who pleaded unconstitu tionality to establish all the elements which would go to establish J. felt inclined ·to agree with the view of V enkatarama Ayyar J. but as that aspect of the matter had not been fully argued them; he passed on to the argument canvassed before namely, that the part of the invalid went out of the Act and the Act stood appropriately learned tanto. This, according :amended pro Judge, involved, that the word "liquor" stood amend -ed to be liquor" or ·understood with this limited connotation. This argu ment he could not accept. His view was that what '.the decision in The State of Bombay and Another v. section declared as "prohibited Jagannadhadas and was, it was plea. 1954 Bd1ram KhurJhed Pesikaka v. T!ir Statt of Bnmbay. Das]. 664 SUPREME COURT REPORTS 119551 section leaving to authorise F. N. Balsam (supra) had done was not rewrite the importation of a new definition or section but, consumption or use of liquid medicinal or toilet pre parations containing alcohol as taken out of the ambit itself as the prohibition thereof was. section unconstitutional.

This, learned J uJge, could only be done by grafting an appropriate· exception or proviso into section 13(b ). according intact, j. held The result of the hearing before that Bench was the appeal should be that Bhagwati Jagannadhadas and Venkatarama Ayyar· allowed but JJ. were for dismissing the appeal. An application the· review was, however, made on the ground that judgments of the learned Judges involved a decision on no. constitutional matters which jurisdiction to decide but which could only be dealt with by a Constitution Bench. By an order made on the 26th Aoril. 1954. under the oroviso to sub-article (3) the· that Bench ac~ordingly of article following question for the opinion of the Constitution Bench, namely : that Bench had referred l45 "What is the effect of the declaration in The State· of Bombav and Another v. F. N. Balsara (supra) (b) of section 13 of the Bombay Prohibi that clause tion Act.

1949, _is void, under article 13(1) of the it affects Constitution, in so far as the consumption or· use of liquid medicinal or toilet preparations containin.g alcohol. on the ground that it infringes article 19(1) ('f) of the Constitution?" The effect of a jndicial declaration of a statute as unconstitutional has been stated by Field J. in Norton· v. Shelby County(') to be that the statute is no and that. in legal contemplation, it is to be treated as inoperative as though it had never been passed. Cooley,. in his Constitutional Limitations. Volume I, page 382, the· has adopted this dictum of Field J. and expressed view that where a statute is adjudged to be unconsti tutional it is as if it had never been. to. accept the proposition so widely stated. Even American the stat~ment of text book writers I am unable (1) 118 U.S. ,r25, 30 L .Ed. 178. • - • 1934 Behram Khurshet! Pesikaka "· T/,, St(lft of Bombay.

Das]. S.C.R. SUPREME COURT REPORTS 665 T. qualified. including commencement of it cannot be said the Constitution to have become unconstitutional and void. Field to be somewhat (See Willoughby on the Constitution of the United States, Volume I, page 11 and Willis on Constitutional Law, page 890). The dictum. it will be observed, related to a statute which was made after the commencement of in violation the Constitution and which was of the prov1S1ons of It cannot obviously the Constitution. appiy to a case where a statute which was enacted before declared In judicial such a situation declaration means that such a statute is void for all purposes took place transactions before the commencement of the Constitution. The Bombay Act was an existing law and the declaration in The State of Bombay and Another v. F. N. Balsara (supra) cannot and does not affect anything done under the Act prior to the commencement of the Constitution.

It will be further noticed that the decision in The State of Bombay and Another v. F. N. Balsara (supra) does not declare the entire Act or even the entire section 13(b) to be void. It onlv declares void a part of section 13(b), that is to say only that part of it which prohibit~ a citizen from consuming or using only liquid medicinal or toilet preparations containing alcohol. The section, in its entirety, all non c1t1zens. Even as against citizens the prohibition of the section with respect to the consumDtion or use of nam~ly, "spirits of the earlier wine, denatured spirits, wine, beer, operative. Moreover, even against consumption or use of the bst category of liquor, namely, "all liquids consisting of or containi; ig alcohol" remains operative even as against citizens except in so far as it prohibits them from consuming or using liquid medicinal or toilet preparations containing alcohol. In such a situation the passages from Cooley on Consti J. can tutional Limitations and the dictum of Field have no application.

This is put beyond controversy by the'. decision of this Court in Keshava Madhava Menon v. The State of Bombay (supra). The Bombav the declaration made by Act being an existing law, toddy" the prohibition still enforceable against categories of liquor, - .. 1954 Behram Khurshtd Ptsikaka .... The State ef , B®ibay. Das J. 666 SUPREME COURT REPORTS [1955] toilet alcohol, preparations restriction on section 13(b) will be this Court in The State of Bombay and Another v. to have been F. N. Balsara (supra) must be taken made under article 13(1). The article does not inconsistent terms make the existing laws which are the fundamental ri.ghts void ab initio or for all purposes. The declaration in The State of Bombay and Another v. F. N. Balsara !supra), as I understand it, that the prohibition contained in section 13(b) against the consumption or use of one particular variety of namely, of or containing liquid consisting contammg liquid medicinal unreasonable alcohol imposes exercise of a citizen's fundamental right under arti.:le 19(1) (f) and is. therefore, unconstitutional and as such void to that extent.

The result of it is that the prohibi ineffective tion of that part of against and inapplicable to a citizen who consumes or toilet preparations contammg uses liquid medicinal or section is obliterated or alcohol. No part of the in any way scratched out from the statute book or the function of altered or amended, for that Court. The that a part of section is unconstitutional and void only nullifies offending part that part the sense it renders inapplicable to a citizen who against and ineffective consumes or uses liquid medicinal or toilet preparations fund amen ta! right. containing alcohol in exercise of his .In other words. when a citizen is charged with an offence under section 66(h) read with section 13(b) he India. will be entitled to say-"I am I have consumed or used liquid medicinal or toilet I am entitled to do preparations contammg so under article 19(1) (f). The Supreme Court has in The State of Bombay and Another v.

F. N. Balsara in such cir (supra) declared cumstances the prohibition of section 13(h) is void as against me with respect to such consumption or use of liquid medicinal or containing alcohol. " This plea, if substantiated, will be a complete judicial declara answer to the charge. tion serves to provide a defence to a citizen who has consumed or used liquid medicinal or toilet preparations is not judicial declaration the law, namely, In short, the a citizen of preparations alcohol. toilet - • 1954 Behram Khurshe4 Pesikaka v. The State of Bombay. Das]. ..... ' S.C.R. SUPREME COURT REPORTS 667 Test lies on the the matter in If the accused person desires accused. The next question containing alcohol. this way. Suppose after the declaration a person is charged with an offence under section 66(b) read with section 13(b) in such a case the prosecution proves accused has taken alcohol in some form or other, as 1s the evidence of the doctor in the present case.

What to happen if nothing further is proved by either party ? Surely, in such a situation a conviction must follow. to avail himself of the benefit of the declaration in The State of Bombay and Another v. F. N. Balsara (supra), surely he must prove first of all that he is a citizen. The onus of this clearlv 1s whether that is the only onus that lies on the accused. To my mind he has to allege and prove not only he is a citizen but that he has consumed or used liquid medicinal or toilet preparations containing alcohol and it is only on such proof that he can claim the benefit of the declaration of !_aw made in The State of Bombay and Another v. F. N. Balsara (supra) and establish bis defence. The is that to consume or use a citizen has the fundamental right liquid containing medicinal or alcohol and section 13 (b) in so far as it prohibits such consumption or use imposes an unreasonable restriction on his fundam~ntal right under article 19(1) (f).

In other words, the onus is on him to establish situation or circumstances in which that part of to be void should not section which has been declared be applicable to him. If he establishes the fact that he is a citizen and that he has consumed or used such liquid, then the declaration in The State of Bombay and Another v. F. N. Balsara (supra) will establish the law, namely, that the prohibition of section 13(b) and penalty under section 66(b) are not applicable to him being inconsistent with his fundamental right. To say the section should that after the judicial pronouncement be read qua a citizen as if liquid medicinal or toilet preparations are not there or against offence has narrowed the consumption or 1 use of only the earlier categories to my mind, that the down to a prohibition liquor set forth in the difinition toilet preparations that declaration very basis of ambit of is, -·- $thram Khurshed Pesikaka v.

Tht Statt of Bombay. Das]. 668 SUPREME COURT REPORTS [1955] I repeat tantamount to saying, covertly if not openly, that to that extent amended the judicial pronouncement has section. To say that after the declaration the offence has become limited to the consumption or use of prohi bited liquor is to alter .or amend the definition of liquor although it has been held to be valid. that it is not within the competence of a Court to alter or amend a statute and that the effect of the declaration made by this Court in The State of Bombay and Another is not to lift or take away or v. F. N. Balsara (supra) add a11ything out of or to the section at all. What it Joes is to declare, as a matter of law, that in a certain situation, namely, when liquid medicinal or toilet preparations containing alcohol are consumed or used, " certain part of section 13(b ), that is to say, that part of it which prohibits the consumption or use of liquid alcohol, medicinal ·shall be void qua a particular class of persons, name! y, In other words, the declaration in The State citizens. ·of Bombay and Another v.

F. N. Balsara (supra) serves to provide a defence only to a citizen who has consumed It toilet preparations. or used liquid medicinal or is for the accused person, who seeks to ward off applicability of the section to him by having resort the declaration macle in The State of Bombay and Another (supra), to establish the situations or v. F. N. Balsara In -circumstances on which tl1at declaration is founded. short a person who challenges the validity of the section 'On advantage of the declaration as a matter of law hut the facts on which that declaration is based have never theless to be established in each particular case where I answer the declaration is sought to be availed of. the question referred to us accordingly. toilet preparations containing its unconstitutionality ground that such a view as It has been strenuously urged before us, as before the the effect of Division Bench, the well this Court's declaration will established principle of criminal jurisprudence that the onus of establishing the charge is always on the prosecu throw the burden of proof on the tion, accused person. considerably This 'impressed Bhagwati J. and has also weighed with my run counter argument it will - ( f S.C.R. SUPREME COURT REPORTS 669 in certain classes of cases or It is, however, learned colleagues on the present Bench. not unusual in certain the onus of proof of a defence circumstances to throw on the accused person.

Section 105 of the Evidence Act is an instance in point. Section 114, ill. (a) of the same Act is another provision to which reference may be made. Section 103 of this very Bombay Prohibition strong presumption of guilt and Act raises a very to prove his accused throws section 96 of the innocence in certain Indian Penal Code which says- cases. Take the burden on "Nothing is an offence which is done exercise of the right of private defence. " 1954 Behram KhJJrshed Pesikafca v. The Stale of Bombay, Das]. .. - to prove to provide this section of the case he is not necessary the acts constituting Nobody will contend requires prosecution offence charged against the accused were not done in It is the. exercise of the right of private defence. obvious that this section serves the accused person with a defence and if the accused person can prove that he did the acts complained of in defence of the ~cts were reasonable his person or property and if in the circumstances establishes his defence. to multiply instances.

It It seems to me that the declaration in The State of Bombay and Another v. F. N. Balsara (supra) gives a citizen who has consumed or used liquid medicinal or toilet prepara tions containing alcohol a defence to a charge under section 66(b) read with section 13(b) of the Bombay the accused person Prohibition Act, but it is prove the facts on which that declaration of law founded. requisite facts are within his special knowledge. To adopt the contrary view will be to ignore in law that a judicial declara principle well established tion of invalidity does not repeal, alter or amend a statute. I see no hardship whatever in this, for As I hold that the declaration does not operate as an I must logically hold, with amendment of the section, respect Jagannadhadas J. that the view of declaration cannot be treated as having grafted an exception or proviso to section 13(b ). 1954 Bthram Khurshed Pesikaka v.

The State of Bombay. DQJ]. 670 SUPREME COURT REPORTS [1955] I, however, desire found myself in agreement with In coming to the conclusion that I have, I have in a large measure views of Venkatarama Ayyar J. on that part of the to guard myself against being case. understood to agree with the rest of the observations to be found in his judgment, particularly those relating fundamental to waiver of unconstitutionality, rights being a mere check on legislative power or effect of the declaration under article 13(1) I prefer to express "relatively void. " On those no opinion on this occasion. BY THE CouRT . ..:_ The is answered reference topics 111 accordance with the opinion of the majority. [After the opinion of the Constitution Bench following Order, dated 24th September, 1954, was pronounced of Bhagwati, Jagannadhadas and Venkatarama Ayyar JJ. who had originally heard the appeal. I by a Bench composed J.-We The Order of the Court was pronounced by the op1mon received BHAGWATI expressed by the Constitution Bench.

According to that opinion, which the majority Judgment, the onus to prove that the alcohol of which the accused was smelling was such that it came within the category of prohibited alcohols. 'in prosecution lay on the expressed We have heard the learned Attorney-General on the question whether that onus has been discharged a.nd conceded that on the material placed he has frankly before us it cannot be urged that that onus has been discharged by the prosecution. The result, therefore, that the conviction of the appellant will be quashed and the fine, if paid, will be refunded. Conviction set aside. ,._ -