State of Bombay and Another vs F.N. Balsara

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 25 May 1951

Coram: Saiyid Fazal Ali, B.K. Mukherjea, Vivian Bose

The case titled State of Bombay and another versus F.N. Balsara was decided by the Supreme Court of India on the twenty-fifth of May, 1951. The judgment was authored by Justice Saiyid Fazal Ali and was delivered by a bench consisting of Justice Saiyid Fazal Ali, Justice B. K. Mukherjea and Justice Vivian Bose. The petitioners were the State of Bombay and another party, and the respondent was F.N. Balsara.

The judgment was reported in the year 1951 at AIR 318 and at SCR 682. In addition, the decision has been referenced in a number of subsequent reports, including F 1952 SC 75 (pages 21, 54, 70), RF 1952 SC 123 (page 45), F 1953 SC 156 (page 49), F 1953 SC 333 (page 13), R 1955 SC 58 (page 6), E 1955 SC 123 (pages 6, 7, 9, 17, 20, 21, 22, 23, 24, 25, 27), R 1955 SC 191 (page 5), F 1957 SC 503 (pages 15, 16), F 1957 SC 628 (pages 12, 14, 19, 20, 21), R 1957 SC 877 (page 16), D 1957 SC 927 (page 9), R 1958 SC 328 (page 22), R 1958 SC 468 (page 44A), E 1958 SC 538 (pages 11, 12, 17), F 1958 SC 560 (page 20), RF 1958 SC 578 (page 211), R 1959 SC 648 (page 21), R 1960 SC 554 (page 9), RF 1963 SC 703 (pages 37, 43), D 1963 SC 1470 (page 7), R 1963 SC 1531 (pages 4, 5), RF 1964 SC 648 (page 48), R 1966 SC 722 (page 7), RF 1967 SC 1110 (page 16), F 1968 SC 888 (page 6), RF 1970 SC 564 (page 53), RF 1972 SC 425 (page 10), RF 1973 SC 1461 (pages 456, 616, 742, 1212, 1218), R 1974 SC 543 (pages 30, 32), RF 1975 SC 360 (pages 19, 24), F 1975 SC 1121 (pages 44, 53), R 1977 SC 722 (page 29), E 1978 SC 449 (page 29), F 1978 SC 771 (pages 13, 44), RF 1980 SC 614 (pages 10, 11, 12, 15, 16), RF 1980 SC 1789 (page 121), RF 1981 SC 873 (page 33), RF 1981 SC 1863 (pages 15, 17), R 1983 SC 1019 (page 52), RF 1986 SC 987 (page 2), RF 1986 SC 1541 (page 9), RF 1988 SC 771 (page 5), E 1990 SC 1927 (pages 27, 28, 29, 41, 56, 67, 73, 75, 76), RF 1990 SC 2072 (page 48), RF 1991 SC 672 (page 33), RF 1992 SC 1277 (page 85).

The issues before the Court concerned the constitutional validity of the Bombay Prohibition Act (XXV of 1949). Specific questions involved the applicability of the Act to foreign liquors, to medicinal and toilet preparations containing alcohol, and the validity of several sections of the Act, namely sections 2(24)(a), 12, 13, 23, 24, 39, 40(1)(b), 46, 52, 53 and 139(c). The Court examined whether a provincial law that prohibited the possession and sale of foreign liquor within the Province infringed upon the Dominion’s authority to legislate on import and export, as represented in the seventh schedule of the Government of India Act, 1935. The Court also considered the doctrine of the original package, the construction of the legislative lists, the restriction on the fundamental right to acquire, hold and dispose of property, and the principle of equal protection of the laws under Articles 14, 19(1) and 19(2) of the Constitution of India, as well as the relevant provisions of the Government of India Act, 1935, section 297(4), and List I entry 19 and List II entry 31.

The headnote explained that under entry 31 of List II of the seventh schedule to the Government of India Act, 1935, provincial legislatures possessed the power to make laws concerning intoxicating liquors, including their production, manufacture, possession, transport, purchase and sale. Conversely, entry 19 of List I granted the Dominion Legislature the authority to legislate on import and export across customs frontiers. The constitutional validity of the Bombay Prohibition Act, insofar as it restricted the possession and sale of foreign liquors, was therefore examined in light of the respective powers assigned to the Province and the Dominion.

In this case the Court held that the Bombay Prohibition Act of 1949, to the extent that it prohibited possession and sale of foreign liquors, did not infringe the field allotted to the Dominion Legislature under entry 19 of List I. The Court explained that the term “possession and sale” appearing in entry 31 of List II must be interpreted without any qualification, and that the solitary word “import” in entry 19 of List I does not encompass either the sale or the possession of articles once they have entered the country; consequently there was no conflict between the two entries and the provincial legislation did not encroach upon Dominion authority.

The Court further observed that even if a prohibition on purchase, use, possession, transport and sale of liquor were to affect its import, the Bombay Prohibition Act remained, in substance, an Act falling within entry 31 of List II. The Court therefore concluded that any incidental overlap with the Dominion power under entry 19 of List I did not invalidate the provincial law. The Court rejected the applicability of the American “original package” doctrine, noting that under the scheme of the Government of India Act 1935 and the present Constitution the legislative entries are expressed in clear and precise language, rendering the doctrine irrelevant in the Indian context. The Court relied upon earlier decisions such as Bhola Prasad v. The King Emperor [1942] F.C.R. 17, Miss Kishori Shetty v. The King [1949] F.C.R. 650, In re the Central Provinces and Berar Act No. XIV of 1938 [1939] F.C.R. 18, The United Provinces v. Atiqa Begum [1940] F.C.R. 110, Governor-General in Council v. Province of Madras [1945] F.C.R. 179, Prafulla Kumar Mukherjea and Others v. Bank of Commerce, Khulna [1947] F.C.R. 28, and Subramanyan Chettiar v. Muthuswami Goundan [1948] F.C.R. 207, while distinguishing the American cases Brown v. Maryland (25 U.S. 419) and Leisy v. Hardin (135 U.S. 100). The Court also held that the Bombay Prohibition Act did not contravene section 297(1)(a) of the Government of India Act 1935 because it was not enacted under the entry concerning “trade and commerce within the Province” (entry 2 of List II) nor under the entry concerning “the production, supply and distribution of commodities” (entry 29 of List I). Finally, the Court affirmed that the term “liquor” as understood at the time of the 1935 Act covered not only beverages that produce intoxication but also all liquids containing alcohol, making the definition provided in section 2(24) of the Bombay Prohibition Act consistent with that broader understanding.

The Court held that Section 39 of the Bombay Prohibition Act, which authorises the Provincial Government to allow the use or consumption of foreign liquor on cargo boats, warships, troop-ships and in military and naval messes and canteens, does not offend Article 14 of the Constitution. The reasoning was that the relaxation of the general prohibition for the persons specified in that section is not arbitrary or capricious but is based on a reasonable classification. Likewise, Rule 67 of the Bombay Foreign Liquor Rules, which permits the issuance of a licence to “any foreigner on a tour of India who enters the State of Bombay and desires to possess, use and consume foreign liquor”, was found not to be void on the ground of discrimination. The Court explained that, although the rule expressly refers to a foreign visitor, there is no prohibition against any other outsider obtaining a permit, and the policy behind the rule is consistent with the policy of Section 40 of the Act, which also allows permits to be granted to foreigners under certain conditions.

The Court further examined Sections 52, 53 and 139(c) of the Act and concluded that they do not amount to an unlawful delegation of legislative power; the type of delegation involved cannot be said to be invalid, rejecting the view expressed in In re Delhi Laws Act, 1912 etc. Regarding Sections 12 and 13, which impose restrictions on the possession, sale, use and consumption of liquor, the Court found that these provisions are not reasonable restrictions on the fundamental right guaranteed by Article 19(1)(1) of the Constitution to acquire, hold and dispose of property, insofar as they prohibit medicinal and toilet preparations containing alcohol. Consequently, those sections were held invalid to the extent that they ban the possession, sale, use and consumption of such preparations. However, the Court clarified that the provisions are not wholly void because the earlier categories listed in the definition of “liquor”—namely spirits of wine, methylated spirit, wine, beer and toddy—are distinct and severable items. The restrictions on these earlier categories are considered reasonable and therefore remain valid.

Finally, the Court declared that Sections 23(a) and 24(1)(a) of the Act, insofar as they refer to “commending” any intoxicant, infringe the fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. The Court noted that none of the conditions specified in clause (2) of Article 19 apply, rendering those provisions void. Section 23(b) was also held void because the terms “incite” and “encourage” are sufficiently broad to encompass incitement and encouragement by words and speeches, making the clause unconstitutionally wide and vague.

The Court observed that the terms used in the contested provision were excessively broad and vague, and therefore the clause had to be declared void in its entirety. It further held that there was nothing unreasonable in a prohibition law that distinguished between Indian citizens, to whom the law was principally directed, and foreigners who did not intend to reside permanently in India. A rule that permitted a particular class of permit-holders to serve drinks to other permit-holders of the same class was also considered reasonable. Consequently, the notifications numbered 10484/45C and 2843/49(a) were not held to be invalid. The Court examined the requirement that an applicant seeking a permit on health grounds under section 40(1)(b) must obtain a medical certificate stating that he is an “addict.” It found that this requirement was not supported by the provisions of the Act. Accordingly, the word “addict” on the medical certificate should be replaced with the terminology used in section 40(1)(b) of the Act or with equivalent wording. The Court also concluded that the provisions of the Act that had been declared invalid were not so inseparably intertwined with the remaining provisions as to render the entire Act void. The Court noted that the High Court’s decision that sections 136(1), 136(2)(b), 136(2)(c), 136(2)(e) and 136(2)(f) were void for contravening article 19 of the Constitution had not been challenged before the Supreme Court. The matter before this Court was a civil appellate jurisdiction appeal filed under article 132(1) of the Constitution of India against the judgment and order dated 22 August 1950 of the High Court of Judicature at Bombay in Miscellaneous Application No. 139 of 1950. Counsel for the appellants appeared for the parties in Case No. 182 and for the respondents in Case No. 183, while counsel for the respondent appeared for the party in Case No. 182 and the appellant in Case No. 183. The judgment was delivered on 25 May 1951 by Justice Fazl Ali. These appeals arose from the High Court’s decision on the application of F.N. Balsara, hereafter referred to as the petitioner, who challenged the validity of certain specific provisions of the Bombay Prohibition Act, 1949 (Bombay Act No. XXV of 1949), as well as the validity of the Act in its entirety. Claiming Indian citizenship, the petitioner had prayed to the High Court for, inter alia, a writ of mandamus directing the State of Bombay and the Prohibition Commissioner to refrain from enforcing the provisions of the Prohibition Act against him, and for another writ of mandamus ordering them to allow him to exercise his right to possess, consume and use certain articles, namely whisky, brandy, wine, beer, medicated wine, eau-de-colonne and similar items, and to import and export such articles across the customs frontier, as well as to purchase, possess, consume and use any such stock of foreign liquor, eau-de-colonne, lavender water, medicated wines and medicinal preparations containing alcohol.

The petitioner's request consisted of two parts: first, he asked that the State of Bombay and the Prohibition Commissioner be ordered not to enforce against him the provisions of the Bombay Prohibition Act insofar as they related to the possession, import, export, purchase, consumption, or use of stock of foreign liquor, eau-de-colonne, lavender water, medicated wines and medicinal preparations containing alcohol; and second, he sought an injunction that they refrain from interfering with his right to possess those articles and that they take no penal or other proceedings against him under the Act. In addition, the petitioner prayed for a similar order under section 45 of the Specific Relief Act against the respondents.

The High Court examined the petitioner's submissions and, while agreeing with some of his contentions, disagreed with others. Consequently, the High Court declared certain provisions of the Bombay Prohibition Act to be invalid, while holding the remaining provisions to be valid. Both the State of Bombay and the petitioner were dissatisfied with that decision. Each party obtained a certificate under article 132(1) of the Constitution and appealed the judgment to this Court.

The Court noted that the Act under discussion had been enacted by the Legislature of the Province of Bombay as it existed in 1949. It had been published in the Bombay Government Gazette on 20 May 1949 and had come into force on 16 June 1949. The legislation comprised 148 sections, two schedules and was organized into eleven chapters. It was described as both an amending and consolidating Act: it repealed the Bombay Abkari Act, incorporated the Bombay Opium and Molasses Acts, and introduced new provisions to implement the policy of prohibition, which was one of the objects stated in the preamble.

The Court observed that the definition of “liquor” in Chapter I was the most significant provision and had been vigorously challenged as being overly broad and therefore beyond the legislative competence of the Provincial Legislature. Chapter II dealt with establishment matters and was not relevant to the present appeal. Chapter III contained a series of prohibitions relating to liquor as defined in the Act and was described as containing sweeping provisions susceptible to attack.

The Court reproduced the relevant sections of Chapter III for the record. Section 12 provided that no person shall (a) manufacture liquor; (b) construct or work any distillery or brewery; (c) import, export, transport or possess liquor; or (d) sell or buy liquor. Section 13 stipulated that no person shall (a) bottle any liquor for sale; (b) consume or use liquor; or (c) use, keep or have in his possession any materials, still, utensils, implements or apparatus whatsoever for the manufacture of any liquor. Section 23 declared that no person shall (a) commend, solicit the use of, or offer any intoxicant or hemp; or (b) incite or encourage any member of the public or any class of individuals to commit any act which frustrates or defeats the provisions of the Act or any rule, regulation or order made thereunder. Section 24(1) prohibited any person from printing or publishing in any newspaper, news-sheet, book, leaflet, booklet or any other single or periodical publication, or from otherwise displaying or distributing any advertisement or other matter which (a) commends, solicits the use of, or offers any intoxicant or hemp, or (b) is calculated to encourage or incite individuals or the public generally to commit an offence under the Act, to breach or evade any rule, regulation or order made thereunder, or to contravene the conditions of any licence, permit, pass or authorisation granted under the Act.

Section 24(1)(b) of the Act prohibited any person from printing or publishing in any newspaper, news-sheet, book, leaflet, booklet or any other single or periodical publication, or otherwise displaying or distributing any advertisement or other matter that mentioned an intoxicant or hemp and was calculated to encourage or incite any individuals or the public generally to commit an offence under the Act, or to breach or evade the provisions of any rule, regulation or order made thereunder or the conditions of any licence, permit, pass or authorisation granted thereunder. Chapter IV, titled “control, regulation and exemptions”, contained sections 30 to 38 and section 44, which dealt with situations in which licences for the manufacture, export, import, transport, sale or possession of liquor could be granted. Section 39 authorised the Government to permit the use or consumption of foreign liquor on cargo boats, warships, troopships and in military and naval messes and canteens. Section 40 provided for the grant of permits for the use or consumption of foreign liquor to persons whose health would be seriously and permanently affected if they were not permitted to use or consume such liquor and also to foreigners who did not intend to remain permanently in India. Section 41 enabled the issue of special permits to diplomats and foreign sovereigns. Section 45 authorised the use of liquor for sacramental purposes. Section 52 empowered an authorised officer to grant licences, permits and similar authorisations in cases not specifically provided for by the Act. Section 53 prescribed the form and conditions under which such licences and permits could be granted, while section 54 dealt with the cancellation or suspension of licences and permits. The other substantive chapters of the Act were Chapter VII, which set out offences and penalties, and Chapter IX, which dealt with the powers and duties of officers and the procedure to be followed. Sections 118 and 119 declared the offences under the Act to be cognisable and, in some cases, non-bailable. Under section 121 any authorised prohibition officer or any police officer was empowered to open any package, examine any goods, stop any vessel, vehicle or other means of conveyance and search for any intoxicant. Section 136(1) provided that if any such officer was satisfied that a person was acting or was likely to act in a manner constituting preparation, attempt, abetment or commission of any offence punishable under sections 65 or 68, the officer could arrest the person without a warrant and commit him to custody for a period not exceeding fifteen days, as the officer deemed fit. By section 136(2) the State Government was given the extraordinary power to impose a restriction on the right of free movement of any person if it was satisfied that the person was acting or was likely to act in the manner described. Chapter XI contained miscellaneous provisions, of which section 139(c) was the only one relevant in this context, stating that …

According to the statute, the State Government possessed the authority, by means of either a general order or a special order, to exempt any individual, any class of individuals, any institution, or any class of institutions from complying with all or any part of the provisions of the Act, as well as from any rule, regulation or order made under the Act. In addition, section 147 of the same legislation provided that nothing contained in the Act would be deemed applicable to any intoxicant or any other article in relation to its importation or exportation across the customs frontier as defined by the Central Government.

The High Court, after hearing the petition, accepted the petitioner’s contention that the definition of “liquor” contained in the Act was excessively broad and exceeded the legislative competence conferred by item 31 of List II for legislation concerning intoxicating liquors. The Court consequently declared a number of provisions of the Act to be invalid. Specifically, the Court held that sections 23(a) and 24(1)(a), insofar as they dealt with “commending,” were void; that section 23(b) and section 24(1)(b), to the extent they dealt with “evasion,” were void; and that sections 39, 52, and part of section 53 were also void. Moreover, the Court struck down section 136(1) and the sub-clauses (b), (c), (e) and (f) of section 136(2). The Court further declared section 139(c) to be invalid. In addition to the statutory provisions, the High Court ruled that Rule 67 of the Bombay Foreign Liquor Rules and the notifications numbered 10484/45(c) and 2843/49(a), dated 30 March 1950, were invalid. The Court also observed that the use of the word “addict” in the medical certificate was not justified by any provision of the Act.

The appeals before this Court raised two principal questions. First, whether there existed sufficient grounds to declare the entire Act invalid. Second, to what extent the judgment of the High Court could be sustained with respect to the particular provisions that the High Court had declared void. In order to address the first question, the Court identified three grounds on which the validity of the Act as a whole could be attacked. The first ground alleged that the Act encroached upon a field that, under entry 19 of List I, was exclusively within the competence of the Central Legislature. The second ground contended that certain material provisions of the Act interfered with, or were calculated to interfere with, inter-State trade and commerce, thereby violating the provisions of section 297 of the Government of India Act, 1935. The third ground argued that, because the High Court had held a number of material provisions to be void, the legislature should have been compelled to declare the whole Act invalid, particularly since the provisions struck down were not severable from the remaining parts of the Act and there was no indication that the legislature would have enacted a truncated version of the law after the High Court’s decision. The Court noted that a detailed examination of the specific provisions held void by the High Court would be necessary before addressing the third ground.

In this case, the Court observed that the High Court had already held certain provisions of the impugned legislation to be void, and that the first two of the three grounds of challenge could be examined together. The Court first addressed whether the statute in question had intruded upon a field of legislation that the Constitution reserved exclusively for the Central Legislature. To determine this, the Court examined entry No 31 of List II, under which the provincial law was purported to have been enacted, and entry No 19 of List I, which the petitioners alleged had been infringed. The two entries read as follows: entry 31 of List II concerned intoxicating liquors and narcotic drugs, specifically their production, manufacture, possession, transport, purchase and sale, with the proviso that opium was subject to the provisions of List I and that poisons and dangerous drugs were also governed by List I. Entry 19 of List I dealt with import and export across customs frontiers as defined by the Dominion Government. At first glance, the Court noted that there appeared to be no direct conflict, because entry 31 made no reference to import or export, limiting itself to matters of production, manufacture, possession, transport, purchase and sale. The Court then referred to the observation of Gwyer C.J. in Bhola Prasad v. The King-Emperor, wherein he explained that a power to legislate “with respect to intoxicating liquors” could not be expressed in broader terms without limitation, and that, unless the language was narrowed by context or other statutory provisions, such power would inevitably include the authority to prohibit intoxicating liquors throughout the province or in any designated part thereof. Accordingly, under entry 31 the Provincial Legislature possessed the authority to enact any law relating to the production, manufacture, transport, purchase, possession and sale of intoxicating liquor. The question before the Court, however, was whether the term “import” extended only to the landing of goods on the shore or their arrival in a customs house, or whether it also required that the imported items reach the hands of the importer and become subject to his possession. On this basis, the petitioners contended that there was no practical difference between a power to prohibit the possession and sale of an article and a power to prohibit its import or introduction into the country, because the former would inevitably lead to the latter as a necessary consequence. This line of argument drew on certain American decisions, which the Court said it would consider later. The Court further indicated that the precise issue raised by the petitioners had already been presented and rejected in the earlier decision of Miss Kishori Sherry v. The King. In that precedent, the appellant had been convicted under section 14-B of the Bombay Abkari Act, 1878, as amended by the Bombay Abkari (Amendment) Act, 1947, for possessing a quantity of foreign liquor. The Court therefore signalled that the matter of whether a provincial prohibition on possession could be equated with a prohibition on import had been previously examined and dismissed.

In the earlier case the appellant had been convicted under section 14-B of the Bombay Abkari Act, 1878, as amended by the Bombay Abkari (Amendment) Act, 1947, for possessing a quantity of foreign liquor that exceeded the limit fixed by a notification issued under the provision that read: “14-B (2) … the Provincial Government may by notification in the Official Gazette prohibit the possession by any individual or a class or a body of individuals or the public generally, either throughout the whole Presidency or in any local area, of any intoxicant, either absolutely or subject to such conditions as it may prescribe.” (1) [1949] F.C.R. 6S0. The primary argument presented in that case was set out in the judgment as follows: “But counsel for the appellant drew attention to item 19 of List I which covers ‘Import and export across customs frontiers as defined by the Dominion Government’, and argued that if ‘intoxicating liquors’ in item 31 of List II were held to include also liquors imported from abroad, then the Provincial Legislature, by prohibiting possession of such liquors by all persons, whether private consumers, common carriers or warehousemen, could defeat the power of the Federal Legislature to regulate imports of foreign liquors across the sea or land frontiers of British India which are customs frontiers as defined by the Central Government and thus seriously jeopardise an important source of central customs revenue. As under section 100 of the Constitution Act the Provincial legislative powers under List II were subject to the exclusive powers of the Federal Legislature in List I, the Bombay Act to the extent to which it trenched upon the subject of item 19 of the latter List must, it was submitted, be regarded as a nullity.” The Court rejected this line of reasoning, observing that there was no irreconcilable conflict that would require the application of the principle of Federal supremacy articulated in section 100 of the Constitution Act. It held that section 14-B did not intend to regulate the import or export of liquor across the sea or land frontiers of British India, but rather to address the possession of intoxicating liquors, a description that, in the absence of limiting words, necessarily encompasses foreign liquors. The Court considered it far-fetched to suggest that the provision, insofar as it covered foreign liquors, constituted legislation concerning the import of liquors into British India by sea or land. Since the Government of India Act, 1935, several cases have explained the rules for interpreting the Legislative Lists. One rule states that no entry in either List should be read in a narrow or restricted sense. A second rule requires that, where an apparent conflict exists between an entry in List II and an entry in List I, an effort must be made to reconcile the two entries so as to avoid a jurisdictional clash.

In interpreting the legislative lists, the Court emphasized that an effort must be made to determine whether two entries can be reconciled so that a conflict of jurisdiction is avoided. This principle has been reiterated in numerous decisions of the Federal Court and the Privy Council. In the case of In re The Central Provinces and Berar Act No. XIV of 1938 (2), the issue was whether a tax on the sale of motor spirits constituted a tax on the sale of goods under entry 48 of the Provincial List or a duty of excise under entry 45 of the Federal List. Addressing the difficulty, Chief Justice Gwyer observed that only the Indian Constitution Act presents such a problem and that the courts must resort to the context and scheme of the Act. He stated that reconciliation should be attempted by reading the two entries together and, where necessary, by interpreting or modifying the language of one entry with reference to the other. He further warned that the non-obstante clause should be invoked only as a last resort when reconciliation proves impossible, because that clause merely acknowledges the imperfections of human expression and legal drafting. Similar observations were made by the Judicial Committee of the Privy Council in Governor-General in Council v. Province of Madras (3) after referring to section 100 of the Government of India Act, 1935. The Lords explained that if the legislative powers enumerated in List I and List II cannot be fairly reconciled, the provincial powers must yield to the federal powers. However, they stressed that the first step should be to seek a fair reconciliation by giving each list a meaning it can properly bear, even if that meaning is narrower than might be possible in another context.

Applying this approach to the present matter, the Court noted that the words “possession and sale” appearing in entry 31 of List II should be read without any qualification. Interpreting the entry in this plain manner does not disturb its construction, and it is therefore permissible to conclude that the Provincial Legislature possesses the authority to prohibit the possession, use, and sale of intoxicating liquor absolutely. The Court further remarked that, for the moment, the principles derived from certain American cases may be set aside in order to focus on the direct analysis of the statutory language and its application to the question before the Court.

In this case, the Court observed that the term “import” by itself does not automatically cover the sale or possession of the imported article by a person who resides in the territory where it is brought in. Consequently, there is no genuine conflict between entry 31 of List II, which deals with “possession and sale,” and entry 19 of List I. The Court therefore found it difficult to conclude that the Bombay Prohibition Act, insofar as it seeks to restrict the possession, use, and sale of foreign liquor, encroaches upon the field reserved to the Federal Legislature under entry 19 of List I. The Court also noted an alternative approach to the question raised. It is well settled that an Act is not invalid merely because it incidentally touches matters outside the legislature’s authorised field; the proper inquiry is to determine the pith and substance of the impugned legislation. If, when examined as a whole, the substance of the law falls within the powers expressly conferred on the enacting legislature, the Act remains valid even though it may incidentally affect subjects assigned to another legislature. This principle was clearly expressed in Gallagher v. Lynn(1), which stated that one must look at the “true nature and character of the legislation.” Similarly, Russell v. The Queen(2) emphasized the importance of the “pith and substance” of the legislation, noting that if the statute as a whole is within the express powers, it is not invalidated by incidental impact on matters outside the authorised field. The Court further referred to Prafulla Kumar Mukherjee and Others v. Bank of Commerce, Ltd., Khulna(3), where the Privy Council considered whether the Bengal Money-lenders Act, 1940, which limited the amount a borrower could be required to pay after the Act’s commencement, was intra vires the Provincial Legislature under entry 27 of List II, or whether it intruded on “promissory notes” and “banking,” subjects reserved to the Federal Legislature under entries 28 and 38 of List I. Although the Act also affected loans on promissory notes, the Privy Council held the Act to be valid. In rejecting the argument that the Act exceeded the Provincial Legislature’s competence, the Privy Council quoted Sir Maurice Gwyer C.J. in the Subrahmanyam Chettiar case, observing that legislation may inevitably touch on subjects listed in another list and that the provisions may be so inter-twined that a strict verbal approach would render many statutes invalid. The Court therefore affirmed the rule that the pith and substance of a statute must be examined to determine its true character and whether it lies within the appropriate legislative competence.

The Court observed that when a legislative provision dealt with a subject that also appeared in another constitutional list, the various sections of the enactment could be so closely intertwined that a strict literal reading would lead to a large number of statutes being struck down merely because the legislature seemed, on its face, to have acted outside its jurisdiction. Consequently, the Judicial Committee had formulated a rule requiring the court to examine the impugned statute in order to discern its “pith and substance”, that is, its true nature and character, for the purpose of determining whether the law pertained to matters within the list assigned to the Provincial Legislature or to those in the Federal list. The Court noted that the passage quoted from the Judicial Committee correctly set out the basis of this rule and affirmed that the rule applied equally to Indian legislation and to legislation of the Dominion (1). The same principle had been reiterated by the Federal Court in Ralla Ram v. The Province of East Punjab (2) and was also referenced in Miss Kishori Shetty v. The King (3), where it was explained that even if a provincial policy of prohibition might reduce the import of foreign liquors and thereby lower central customs revenue, the Constitution’s clear and unambiguous grant of legislative power to the provinces over a particular matter could not be denied or limited on the basis of such extraneous considerations. The Court further stated that it was now well settled that an enactment, when examined according to its true nature or pith and substance, was valid if it fell within a matter assigned to the Provincial Legislature, even though it might incidentally touch upon a subject within Federal jurisdiction.

The Court then framed the precise issue to be decided as whether the Act under challenge, in its pith and substance, was a law dealing with the possession, sale and related activities of intoxicating liquors, or whether it was essentially a law concerning the import and export of such liquors. If the legislation’s true character was found to be regulation of sale, possession, transport, use and purchase rather than regulation of importation and exportation, the Court concluded that it would be very difficult to hold the Act invalid. Though it was argued that prohibiting purchase, use, possession, transport and sale of liquor would inevitably affect its import, the Court held that any such effect was merely incidental and did not impair the Provincial Legislature’s competence to enact the law. On the basis of these considerations, the Court found no further point to discuss regarding the question before it. However, noting the strong emphasis placed on the American “original package” doctrine, the Court indicated that it would be necessary to examine the meaning of that doctrine and the circumstances under which it had been developed. The Court also observed that the broad interpretation of “import” relied upon by the petitioner had been adopted for the first time by Marshall C.J. in Brown v. Maryland, a point that would be addressed in the succeeding discussion.

In this case, the Court described the origin of the “original package” doctrine, which was first articulated by Chief Justice Marshall in the decision Brown v. Maryland. In that case, the State of Maryland had enacted a law that required any importer of foreign merchandise to obtain a license before selling the goods, and the license could be obtained only upon payment of a prescribed fee. The constitutional issue presented was whether that statute conflicted with the provision of the United States Constitution that barred a State, without the consent of Congress, from imposing any imposts or duties on imports or exports unless such imposition was absolutely necessary for the execution of inspection laws. While delivering his opinion, Chief Justice Marshall observed, among other points, that there was effectively no distinction between a power to forbid the sale of an article and a power to forbid its entry into the country, because one necessarily followed the other. He explained that if an article could not be sold, it would never be imported, and that any objective that might be pursued by imposing a duty on importation could be achieved with the same certainty by imposing a duty on the imported goods while they were in the hands of the importer. The Chief Justice further stated that the purpose of importation is the sale of the imported article, and that sale is an essential component of the commercial transaction of which importation is a part. He emphasized that sale is as indispensable to the existence of the whole transaction as the act of importation itself, and that it must be regarded as a component of the power to regulate commerce. Accordingly, Congress possesses the authority not only to permit importation but also to permit the importer to sell the imported goods. From these principles, the American courts developed what became known as the “original package” doctrine. The doctrine was applied not only to goods brought from foreign nations but also to articles that moved in interstate commerce. Under the doctrine, importation was deemed to continue so long as the goods remained in their original packaging; consequently, a State could not impose a tax on the goods until the original package was broken or a sale occurred while the goods were still in their original packaging. The foundation of the doctrine was expressed by Chief Justice Marshall in the following terms: there must be a moment when the constitutional prohibition ends and the State’s power to tax begins; the moment cannot be the very instant the articles cross the border. He explained that, in general, once the importer has acted upon the imported article in such a way that it becomes incorporated into the general mass of property within the country, the article may lose its distinctive character as an import and become subject to the State’s taxing power, but while it remains the property of the importer and stays in the original warehouse in its original form, a tax on it would be equivalent to a duty on imports and would therefore be prohibited.

The Court observed that while the goods remained the property of the importer, stored in his warehouse and still packaged in the original form in which they were brought into the country, any tax imposed on them would plainly be a duty on imports and therefore would violate the constitutional prohibition. The doctrine that such a tax is impermissible had been reaffirmed in several decisions, and in Leisy v. Hardin it was held that importers possessed the right to sell articles that were still in their original, unopened and unbroken packages, even when a state statute prohibited the sale of such articles except under the specific purposes enumerated in the statute and with a state licence. American commentators, however, have noted that applying the “original package” rule often led to difficulties, because courts sometimes faced intricate questions such as whether the doctrine applied only to large cases or also to the smaller packages contained within them, or whether it extended to small paper wrappers of cigarettes taken from loose piles at the factory and transported in baskets. These complexities were especially troublesome in the context of prohibition schemes, and to address the resulting uncertainty and mischief, Congress enacted new legislation such as the Wilson Act and the Webb-Kenyon Act. The Court declined to pursue these historical developments further, stating only that the doctrine has no place in the Indian legal system in view of the legislative scheme set out in the Government of India Act, 1935, and the present Constitution, where the entries in the Legislative Lists are expressed in clear and precise language. In the case of The Province of Madras v. Boddu Paidanna and Sons, Chief Justice Gwyer, while expressing deep respect for Chief Justice Marshall’s observations in Brown v. Maryland, suggested that it was more straightforward to follow the reasoning of Justice Thompson in his dissent and concluded with remarks that the American Constitution also grants Congress exclusive power to regulate commerce with foreign nations, among the several States, and with Indian tribes, and that the Maryland tax was equally inconsistent with that provision. Marshall asked what purposes should justify allowing importation without also granting the power to authorise the sale of the imported goods, noting that Congress has the right not only to permit importation but also to authorise the importer to sell. He questioned what the importer actually purchases if he does not obtain the privilege to sell. On that interpretation of the Commerce Clause, it would indeed be difficult to recognise a State’s authority to impose a tax on the first sale of the commodity so long as it remained in the importer’s possession.

The Court observed that the provincial legislature’s authority to impose a tax on the sale of a commodity is not contingent upon any question of the formidable power that is vested in the Central Government, because the Indian Constitution Act contains no such issue. Consequently, the right of a provincial legislature to levy a tax on sales can be considered independently of any central authority over imports. The Court then turned to the prohibition found in the American Constitution, which forbids the laying of “any imposts or duties on imports or exports.” It stressed that this prohibition is not limited merely to customs duties; rather, it is expressed in terms that the Court regarded as substantially broader. Accordingly, the Court found no reason to conclude that the principle articulated in the Maryland decision would require that, in India, the payment of customs duty on goods imported from abroad or the payment of excise duty on goods manufactured or produced within India should be treated as conferring a license or title upon the importer or manufacturer to sell those goods to any purchaser without incurring an additional tax liability. The view expressed in the Maryland case (1) (1827) 25 U.S. 419 had indeed been relied upon by counsel, but the Court found the analogy with the American case attractive yet ultimately unpersuasive for the reasons it had set out, and it rejected that line of reasoning (2) [1942] F.C.R. 90 at 106-7. The Court further endorsed the opinion of Gwyer C.J., noting that the “original package” doctrine has no application in this country. It observed that in the United States the Commerce Clause can be given its fullest meaning because there is no need to reconcile it with another clause conferring legislative power on the States. By contrast, under the Government of India Act, a narrower interpretation must be given to the term “import” in entry 19 of List I so that the broader language of entry 31 of List II can be given effect. The Court then addressed the second challenge to the Act, which was based on section 297(1)(a) of the Government of India Act, 1935. It was contended that the prohibitions in the impugned legislation concerning the use, consumption, purchase, transport, possession and sale of intoxicating liquor necessarily amount to a prohibition and restriction of inter-provincial commerce, and that, insofar as they tend to prevent entry into or export from the Province of Bombay of goods of a particular class or description, the Act contravenes section 297(1)(a). The Court quoted that provision, which states: “No Provincial Legislature or Government shall—(a) by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the Province, or the entry in that List relating to the production, supply and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from the Province, goods.”

The Court observed that the constitutional provision concerned only “trade and commerce within the Province,” which corresponds to entry 27 of List II, and “production, supply and distribution of commodities,” which corresponds to entry 29 of List II. In effect, the provision meant that the import into or export from a Province of goods of any class or description could not be prohibited or restricted merely because such a prohibition might affect trade and commerce within the Province or the production, supply and distribution of commodities. Consequently, any law enacted by a Provincial Legislature that relied on the subjects of entry 27 or entry 29 and that prohibited or restricted the entry into or export from the Province of any goods would be invalid. The matter before the Court, however, did not involve a law claimed to have been made under entry 27 or entry 29. Instead, the legislation in question was asserted to have been enacted under entry 31 of List II and certain other entries therein. Accordingly, the Court held that section 297(1)(a) of the Constitution had no application to the case at hand.

This conclusion was reinforced by the earlier decision in Bhola Prasad v. King Emperor. In that case the Bihar Excise (Amendment) Act 1940, which amended the Bihar and Orissa Excise Act 1915, was challenged on the ground that it contravened section 297(1)(a). The Court, quoting the observations of Gwyer C.J., explained that the argument was difficult to comprehend because section 297(1)(a) “only refers to legislation with respect to entry 27 and entry 29 in the Provincial Legislative List; it has no application to legislation with respect to anything in entry 31.” The judgment went on to state that a Provincial Legislature wishing to prohibit export from or import into the Province must obtain its legislative authority from entries other than 27 or 29. If such authority could be identified in another entry of the Provincial List, the legislation could not be attacked under section 297(1)(a). The Court therefore found that the appellant’s contentions on this point were without substance.

Having dismissed the first two contentions that were raised against the validity of the entire Act, the Court indicated that it would now address other sections of the Act whose validity had also been questioned, beginning with the provision that had been most aggressively challenged.

The Court examined the provision that had been most vigorously contested and whose attack had succeeded before the High Court, namely the definition of the term “liquor” contained in section 2(24) of the Act. The definition read as follows: “Liquor” includes— (1) [1942] F.C.R., 17 at 27. (2) [1942] F.C.R., 17 at 27, 28. (a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol; and (b) any other intoxicating substance which the Provincial Government may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act. The High Court had held that, in ordinary usage, the word “liquor” meant “a strong drink as opposed to a soft drink” and that, in any event, it must be a beverage that is ordinarily drunk. Acting on that view, the High Court concluded that, although the legislature could, under entry 31, prohibit the consumption of non-intoxicating beverages and could also prohibit the use as drinks of alcoholic liquids that are not normally consumed as drinks, it could not forbid the lawful use of alcoholic preparations that are not beverages, nor could it prohibit medicinal and toilet preparations that contain alcohol. This position of the High Court was strongly endorsed by one side and strongly opposed by the other before this Court, prompting the Court to consider the question in depth.

To assist in its analysis, the Court consulted the Oxford English Dictionary, edited by James Murray, which supplies several meanings of the word “liquor.” The cited entries include: (1) a liquid; matter in a liquid state; in a broader sense, a fluid; (2) a liquid or a prepared solution used as a wash or bath, and in many industrial processes; (3) liquid for drinking; beverage, drink; now almost exclusively a drink produced by fermentation or distillation, examples being malt liquor, ale, beer, porter, etc.; (4) the water in which meat has been boiled; broth, sauce; the fat in which bacon, fish, or similar items have been fried; the liquid contained in oysters; and (5) the liquid produced by infusion, as when testing the quality of a tea, described as “in liquor, in the state of an infusion.” Accordingly, the Dictionary indicates that “liquor” may have a very general sense meaning simply a liquid, or it may carry a more specific sense, namely the third meaning quoted above, i.e., a drink or beverage produced by fermentation or distillation. The Court noted that the latter meaning is undoubtedly the popular and most widely accepted one, and that the idea of a beverage seems to run prominently through the main provisions of the various statutes of this country as well as of the United States and England that deal with intoxicating liquor. Nevertheless, the Court observed that, upon reference to those statutes, it would be difficult to say that they apply exclusively to beverages and ignore certain articles that, strictly speaking, are not beverages.

In discussing the meaning of the term “liquor,” the Court first referred to the National Prohibition Act of 1919, also known as the Volstead Act, which treats the words “liquor” and “intoxicating liquor” as synonymous. The Act defines these words to include “alcohol, brandy, whisky, rum, gin, beer, ale, porter and wine, and in addition thereto any spirituous, vinous malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes.” After giving this broad definition, the Volstead Act excludes certain items under section 4, namely denatured alcohol, medicinal preparations, toilet and antiseptic preparations, flavoring extracts and syrups, vinegar and preserved sweet cider. Some of these excluded items bear the qualifier “unfit for use for beverage purposes,” yet the heading of section 4 labels them “exempted liquors.” The Court then turned to the Licensing (Consolidating) Act of 1910 of England, which legislated on licences for the sale of intoxicating liquor. That Act defines “intoxicating liquor” as, unless the context requires otherwise, “spirits, wine, beer, porter, cider, perry and sweets, and any fermented, distilled, or spirituous liquor which cannot, according to any law for the time being in force, be legally sold without an excise licence.” The term “spirits” had earlier been defined by the Spirits Act of 1880 as meaning “spirits of any description,” and the definition further includes all liquors mixed with spirits and all mixtures, compounds, or preparations made with spirits. While counsel argued that the definition of “spirits” from the Spirits Act should not be imported into the 1910 English Act, the Court held that, for the purpose of construing “intoxicating liquor,” the two statutes must be read together. The Court clarified that it was not suggesting that the definition of “liquor” in the present Indian legislation was borrowed from those foreign statutes; rather, it intended only to demonstrate that the word “liquor” can be employed in a wide sense. Afterwards, the Court examined the definitions contained in Indian legislation. It noted that the Bombay Abkari Act of 1878, as amended by subsequent statutes, provides a definition of “liquor” that is substantially the same as that found in the present Act. The Bengal Excise Act of 1909 defines “liquor” as “liquid consisting of or containing alcohol” and expressly includes spirits of wine, spirit, wine, tari pachwai, beer, and any substance that the Provincial Government may declare to be liquor for the purposes of the Act. Similarly, other provincial statutes, such as the Punjab Excise Act of 1914 and the Uttar Pradesh Excise Act of 1910, use the term “liquor” to mean intoxicating liquor and to encompass all liquids consisting of or containing alcohol. The Court therefore concluded that the definition of “liquor” in Indian law consistently embraces a broad category of alcoholic liquids.

In the Madras Abkari Act of 1886 the definition of “liquor” is identical to that found in the Bombay Act of 1878. If the American and English statutes are set aside, every Provincial Act in this country consistently includes liquids that contain alcohol within the definitions of “liquor” and “intoxicating liquor.” The drafters of the Government of India Act of 1935 could not have been unaware of the accepted meaning of the word “liquor” as it appears in the various excise statutes, and consequently the appropriate conclusion is that “liquor” embraces not only those alcoholic liquids that are ordinarily consumed as beverages and cause intoxication, but also every liquid that contains alcohol. Although this broader meaning may not correspond to the everyday use of the term, especially when it is qualified by the word “intoxicating,” the numerous statutory definitions indicate that such a meaning was not intended to be excluded from the scope of “intoxicating liquor” as used in entry 31 of List II. An alternative way of approaching the issue is also worthy of consideration. The object of the Prohibition Act was not merely to levy excise duties but also to prohibit the use, consumption, possession and sale of intoxicating liquor; therefore the legislature could act under entry 31 of List II as well as under entry 14, which deals inter alia with public health. Article 47 of the Constitution, a directive principle of State policy, directs the State to raise nutrition, improve the standard of living and promote public health, and specifically to endeavour to bring about the prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs harmful to health. Although Article 47 does not directly affect the 1949 Act, it supports the view that prohibition is linked to public health, and that effective enforcement requires a wide definition of “liquor” that includes all alcoholic liquids that might be used as substitutes for intoxicating drinks and thus threaten health. On the whole, the Court is unable to agree with the High Court’s finding and holds that the definition of “liquor” in the Bombay Prohibition Act is not ultra vires. The learned Attorney-General also relied upon entry 1 of List II, which concerns public order, and while at first sight it may appear far-fetched to bring intoxicating liquor under public order, the argument nevertheless merits consideration.

It was observed that European and American jurisdictions have increasingly treated habitual drunkenness as a danger to public order. In the decision of Russell v. The Queen(1), Sir Montague Smith affirmed that the Canada Temperance Act of 1878, aiming to promote temperance through uniform legislation, constituted a law concerning the peace, order, and good government of Canada. He explained, as recorded in the judgment(2), that statutes designed to advance public order, safety, or morality, and which impose criminal liability on violators, belong to the category of public wrongs rather than civil rights. He further observed that such statutes fall within the broad legislative competence of Parliament to enact laws for the orderly and effective governance of the nation. A learned British author(3) writing on liquor legislation similarly noted that the prevailing motive has been social, intended to combat a menace to public order and growing evils of alcoholism for health and social welfare. He added that the nature and severity of these evils differ between countries because of variations in climate, diet, economic conditions, and within a single country due to differing habits, customs, and standards of morality. The author pointed out that since the middle of the nineteenth century, rapid urbanisation, industrialisation, and mechanisation have heightened awareness of the benefits of sobriety in preserving public order and physical efficiency. These passages, the Court noted, can be cited in support of the Attorney-General’s argument that the Bombay Prohibition Act also falls within the subject of public order. Nevertheless, the Court elected to disregard that particular entry, considering its relevance to the purpose and scope of the present legislation to be at most remote. The discussion then turned to section thirty-nine of the Act, which the petitioners challenged on the ground that it contravenes article fourteen of the Constitution. Article fourteen declares that the State shall not deny any person equality before the law or equal protection of the laws within the territory of India. The scope and interpretation of this constitutional guarantee have been extensively examined in the case of Chiranjit Lal Chowdhury v. Union of India and Others(1). The Court summarized the principles laid down in that decision, beginning with the presumption that any statutory enactment is constitutionally valid unless proven otherwise. This presumption rests on the assumption that the legislature is aware of the needs of its people, that the law addresses problems evident from experience, and that any classification it makes rests on adequate justification. The Court added that this presumption may be rebutted when a statute, on its face, shows no reasonable classification yet discriminates against a particular individual or class. The supporting references are (1) 7 A.C. 829, (2) 7 A.C. 829 at p. 839, and (3) The Encyclopaedia Britannica, 14th Edition, Volume 14, page 191.

The Court observed that a statutory provision may be challenged when, on its face, it contains no classification whatsoever and no distinction that applies to a particular individual or group while excluding all others, yet the operative effect of the law is to target only that specific individual or class. The Court further explained that the principle of equality does not require every law to apply universally to all persons irrespective of their nature, achievements or circumstances; indeed, the differing needs of various categories of persons often justify separate treatment. The Court cited the authority recorded in [1950] S.C.R. 869 to illustrate this point. It added that the principle of equality does not deprive the State of its authority to classify persons for legitimate purposes. While any classification is bound to create some degree of inequality, the mere existence of inequality is insufficient to render a law unconstitutional. The Court held that if a law treats all members of a well-defined class in the same manner, the law is not objectionable and cannot be attacked on the ground that it does not apply to other persons. However, when a classification is deemed reasonable, it must be founded on a real and substantial distinction that bears a reasonable and just relation to the purpose sought to be achieved; such a classification may not be arbitrary nor lack a substantial basis. The Court then referred to the analysis of Professor Willis on the United States Fourteenth Amendment, which guarantees equal protection of the laws, and quoted his summary: “The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.” The Court noted that the amendment was intended to prevent any individual or class from being singled out for discriminatory or hostile legislation. Nonetheless, the amendment does not strip the States of the power to classify in areas such as police laws, tax laws or eminent-domain laws, and permits a wide scope of discretion, intervening only when classification lacks any reasonable foundation. The Court emphasized that perfect mathematical equality is not required; similarity rather than identical treatment suffices. If any factual situation can reasonably be imagined to support a classification, that situation must be presumed to exist, and the burden lies on the party challenging the classification to demonstrate that it has no reasonable basis. With these principles in mind, the Court proceeded to determine whether the provisions of section 39 of the Act violate article 14 of the Constitution.

The provision under review is contained in section thirty-nine of the Act that is before the Court. Section thirty-nine states that the Provincial Government may, on such conditions as may be specified in a notification published in the Official Gazette, permit the use or consumption of foreign liquor on cargo boats, warships and troopships and in military and naval messes and canteens. The petitioners contend that the concession granted to warships, troopships and to the military and naval messes and canteens amounts to a breach of the principle of equality. They argue that the legislature has acted arbitrarily and capriciously by selecting certain bodies or groups of persons for favoured treatment while subjecting the petitioner and other citizens to the general provisions of the Act. According to the petitioners, the law should have been applied uniformly to the civil population and to military personnel, because no rational ground exists for distinguishing between them in the enforcement of the prohibition policy. The scheme of Chapter Four of the Prohibition Act, within which the impugned provision is situated, appears, inter alia, to relax the law in favour of particular persons, groups or institutions by introducing a system of passes, licences, permits and authorisations. The petitioners point out that the legislature has indeed made several classifications. For example, section thirty-five deals with licences to hotels, section thirty-seven with licences to dining-rooms and coastal steamers, section thirty-eight with licences to shipping companies, section forty with permits to foreigners and persons who need liquor on grounds of health, section forty-one with permits to foreign sovereigns and diplomats, section forty-four (1) Constitutional Law, by Prof. Willis, (1st Edition) p. 578 with licences to clubs, section forty-five with authorisations for sacramental purposes, and section forty-six with visitors’ permits, among others. These other sections have not been challenged before this Court, and it may be presumed that the classifications made by the legislature in those provisions have been accepted.

The central question, therefore, is whether, in relaxing the rule in favour of warships, troopships and military and naval messes and canteens, the legislature acted arbitrarily and capriciously or whether it also proceeded on a basis of reasonable classification. The learned Attorney-General referred the Court to several statutes, army regulations and certain provisions of the Constitution to demonstrate that the military force has been regarded in this country as a class in its own right, and that many special provisions exist with regard to it. Nevertheless, the petitioners maintain that such classification is insufficient unless it can be shown to bear a just and reasonable relation to the objects of the specific legislation under consideration. In other words, the argument advanced is that even if the armed forces may be treated as a distinct class for certain purposes, the question remains whether they may be treated as a class for the purpose of enforcing prohibition. This line of argument found favour with the High Court, which declared section thirty-nine void. The present Court, however, is asked to consider whether there is an understandable basis for the exemptions granted to the military canteens and related establishments by the Act.

The Court observed that the High Court had declared section 39 to be void, but it found no reason to accept that judgment. It held that a reasonable basis existed for the exemptions granted to military canteens, warships, troop-ships and naval messes by the Act. The Court explained that the armed forces possess their own traditions and way of life, which are shaped by long-standing rules and regulations intended to preserve high morale and the qualities needed to face danger, endure hardship, and make sacrifices. By these rules, the consumption of alcohol among the forces is not prohibited; rather, it is carefully regulated. The Court reasoned that the Legislature deliberately avoided interfering with this established mode of life because any interference might undermine morale and could lead to subterfuges harmful to discipline and good behaviour. Moreover, when drinking is already governed by specific rules that make drunkenness an offence, relaxing the general prohibition for this class is unlikely to produce the same negative effects that might arise in other contexts. Consequently, the Court found nothing prima facie wrong with the Legislature giving special treatment to a class that has been recognised as distinct in many statutes and provisions. In its view, therefore, section 39, insofar as it concerns military and naval messes, canteens, war-ships and troop-ships, cannot be held invalid.

Regarding the exemption for cargo-boats, the petitioner argued that no rational distinction could be drawn between them and passenger-boats and that no grounds existed for granting any concession to the former. The Court rejected the view that the Legislature acted arbitrarily. It noted that cargo-boats are slower vessels that remain at sea for extended periods, affecting only a comparatively small number of persons, most of whom are temporary sojourners who stay at the port briefly before departing. These factors may have prompted the Legislature to extend a concession, and such considerations are not irrelevant. Accordingly, the provision exempting cargo-boats was held to be valid. The Court then referred to section 46, which deals with visitors’ permits, stating that this section empowers the Provincial Government to authorize an officer to grant permits allowing visitors to consume, use and purchase foreign liquor for a stay not exceeding one week. This statutory scheme further supports the validity of the differentiated treatment contained in the Act.

The High Court upheld the validity of the provision related to visitors’ permits, but it found rule 67 of the Bombay Foreign Liquor Rules—made under section 143 of the Act—to be invalid. Rule 67 required any foreign tourist who entered the State of Bombay and wished to possess, use or consume foreign liquor to apply to certain officers for a permit that could be granted for up to one month, subject to renewal. The High Court struck down this rule on the basis that it discriminated between foreign visitors and Indian visitors who came to Bombay from neighbouring provinces. The Court observed that the petitioner on whose behalf the issue was raised claimed to be neither a foreigner nor an Indian visitor from another province, and therefore the discrimination point was not directly relevant to his application. Nevertheless, the Court held that the rule could not be attacked on grounds of discrimination because, although it makes a provision for foreign visitors, it does not forbid any other outsider from obtaining a permit, and the rule’s policy aligns with the policy of section 40 of the Act, which permits the issuance of permits to foreigners under certain conditions.

The High Court also declared sections 52, 53 and 139(c) of the Act to be invalid on the ground that they amounted to an unlawful delegation of legislative power. In its judgment the Court set out its reasoning: under section 52 the Government is empowered to grant licences in situations that are not specifically covered by any other provision of the Act; under section 53 the Government is empowered, among other things, to vary or substitute any of the conditions of a licence laid down in the Act; and under section 139(c) the Government is empowered to exempt any person, institution or class of persons or institutions from compliance with all or any of the provisions of the Act, or any rule, regulation or order made thereunder. The Court noted that the legislature had clearly expressed the policy of the legislation within the Act itself, intending that permits be granted chiefly on health grounds and that only limited exceptions be made for particular classes. While it is permissible for the legislature to leave the detailed implementation of policy to the Government, the Court held that the legislature cannot permit the Government to alter the policy itself. Accordingly, by allowing the Government to issue permits in cases not foreseen by the Act, to vary or replace licence conditions, and to exempt persons or classes from the Act’s provisions, the legislature was, in the Court’s view, delegating its own legislative authority to the Government, which is beyond the permissible scope of delegated legislation.

In allowing the Government to exempt individuals or classes from the provisions of the Act, the legislature was plainly delegating to the Government a power that is essentially legislative in nature. The Court observed that such a delegation cannot be permitted, stating that “This it can clearly not do.” The Court was recently called upon to examine the extent to which delegated legislation is permissible. It referred to its definitive conclusion in Special Reference No. 1 of 1951: In re The Delhi Laws Act, 1912, etc., noting that the type of delegation embodied in the present sections could not be regarded as invalid. The reasoning was that a legislature, when enacting a law, cannot anticipate every possible future circumstance, and therefore section 52 merely empowers the duly authorized officer to address unforeseen contingencies as they arise. The same rationale was said to apply to sections 53 and 139(c). The Court indicated that further discussion on this point was unnecessary because the matter had already been comprehensively addressed in the cited case. Having concluded that issue, the Court turned to a set of provisions with which it largely agreed with the High Court’s analysis, though it qualified its agreement at certain points.

Section 12 of the Act, inter alia, declares that no person shall possess, sell, or purchase liquor, while section 13, inter alia, declares that no person shall consume or use liquor. By substituting the term “liquor” in these sections with the definition provided in clause (a) of section 2(24), the effect is to forbid any person from possessing, selling, buying, consuming, or using “spirits of wine, methylated spirit, wine, beer, toddy and all liquids consisting of or containing alcohol.” The Court reaffirmed that, under entry 51 of List II, the Bombay Legislature possessed full competence to enact legislation concerning “liquor” even with such a broad definition. Nonetheless, it was contended that the legislative power must be exercised in conformity with the Constitution, particularly the fundamental rights enumerated in Part II. The provisions were challenged on the ground that they conflicted with article 19(1)(f), which guarantees every citizen the right “to acquire, hold and dispose of property.” The Court recognized that this clause extends to both movable and immovable property, and observed that the contested provisions effectively prevent a citizen from possessing, selling, buying, consuming, or using liquor as defined, thereby prima facie infringing the fundamental right to acquire, hold, and dispose of that form of property. Consequently, the provisions would appear void under article 13 unless they could be rescued by clause (5) of article 19, a question that the Court noted required further examination.

The Constitution provides that sub-clauses (d), (e) and (f) of the relevant article shall not interfere with the operation of any existing law insofar as such law imposes, or prevents the State from making, a law that imposes reasonable restrictions on the exercise of any of the rights conferred by those sub-clauses, where the restrictions are made either in the interest of the general public or for the protection of the interests of any scheduled tribe. The Court therefore needed to determine whether the restrictions contained in the provisions under consideration were reasonable. In assessing the reasonableness of the restrictions imposed by the Act, the Court had to keep in mind the directive principles of State policy articulated in article 47 of the Constitution, which states that the State has a duty to bring about the prohibition of the consumption, except for medical purposes, of intoxicating drinks and of drugs which are injurious to health. The Court observed that it was not contested that, in light of those directive principles, the restrictions placed by the sections on a citizen’s right to possess, sell, buy, consume or use spirits of wine, methylated spirits, wine, beer and toddy were quite reasonable. The controversy, however, focused on the phrase “and all liquids consisting of or containing alcohol.” It was argued that the phrase covered all liquids, including toilet or medicinal preparations containing alcohol, and that the restrictions on the ordinary use of such toilet or medicinal preparations were unreasonable and therefore void. Regarding those preparations, the High Court had examined the issue as follows. In simple terms, the question before the Court was whether the legislature could prohibit the legitimate use of an article that is ordinarily not drunk, simply because its use might be perverted to defeat or frustrate the objectives of the Prohibition Act. The Court considered the concrete example of eau-de-cologne or lavender water, whose legitimate use is solely for toilet purposes. Although these products contain spirit and an addict deprived of his drink might consume them to satisfy his thirst, the Court asked whether it was permissible for the legislature, in such circumstances, to deprive the public of the legitimate use of eau-de-cologne or lavender water as toilet articles. While the legislature could prevent the abuse of these articles, the Court found it difficult to understand how any restriction on their legitimate use could be in the interest of the general public so as to render such restrictions reasonable within the meaning of article 19(5). The Court noted that a citizen using eau-de-cologne or lavender water for toilet purposes is not acting against public interest; only when the use is perverted could it be said that the citizen is acting against public interest.

In this case the Court observed that the legislature possessed the authority to enact provisions aimed at preventing the abuse of articles such as eau-de-colonne and lavender water, but it did not possess the authority to bar their legitimate use. Nevertheless the statute under review totally prohibited the use and possession of every liquid containing alcohol unless a permit was issued by the Government. The counsel for the State contended that a citizen could lawfully possess eau-de-colonne or lavender water if he obtained such a permit. The Court held that permitting possession only under a licence constitutes a restriction on the fundamental right of a citizen to acquire, hold and dispose of property, and that this restriction was not reasonable. The same line of reasoning was applied to medicinal and toilet preparations that contain alcohol.

Consequently the Court held that to the extent the Prohibition Act barred the possession, use and consumption of non-beverage, medicinal and toilet preparations containing alcohol for legitimate purposes, those provisions were void for contravening article 19(1)(f) of the Constitution, even though the enactment might fall within the legislative competence of the Provincial Legislature. The next stage of the argument asserted that the statute, by using language wide enough to authorise a restriction on a fundamental right, covered restrictions both within and beyond the bounds of constitutionally permissible legislative action. The Court found that because the provisions were not severable, they could not be sustained even when applied within constitutional limits.

The reasoning sought support from the majority decisions of this Court in Romesh Thappar v. The State of Madras and in Chintaman Rao v. The State of Madhya Pradesh, but the Court expressed the view that the observations in those cases did not apply to the matter before it. It was noted that the legislature had defined the term “liquor” to include several distinct categories followed by a general category. The earlier categories—namely spirits of wine, methylated spirit, wine, beer and toddy—were clearly separable items that could be severed from the last category, which was described as all liquids consisting of or containing alcohol. The citations to the earlier cases were [1950] S.C.R. 594 and [1950] S.C.R. 759. Because the legislature itself treated these items separately and because no argument was raised, in view of the directive principles of State policy on prohibition, that the restrictions on the right to possess, sell, buy, consume or use those specific categories were unreasonable, the impugned sections were held valid insofar as they dealt with those categories.

The Court then turned to the question of whether the sections were void insofar as they attempted to impose restrictions on the citizen’s right to acquire, hold or dispose of all liquids consisting of or containing alcohol. It was argued that this constituted a single general item that could not be divided into sub-categories, and therefore the provisions relating to this general item must be declared void.

The submission that the provisions of the Act should be declared void because they attempt to regulate the single, indivisible category of “all liquids consisting of or containing alcohol” initially appears persuasive, but a careful examination shows that the argument is unsound in the present context. Section 139 of the Act empowers the Provincial Government, by means of a general or special order, to exempt any intoxicant or class of intoxicants from all or any part of the Act. An order issued under this section derives its legal force directly from the statutory provision, and consequently the notification issued by the Province is treated, for legal purposes, as having the same authority as if it were enacted by the legislature itself. Exercising the authority conferred by subsection (d) of Section 139, the Provincial Government promulgated order No. 10484/45(e), which exempted the intoxicants listed in column 1 of the attached Schedule from the specific provisions listed in column 2 of the same Schedule. Examination of the Schedule reveals that item (1) – duty-paid perfumed spirits (excluding eau-de-cologne) – item (3) – duty-paid spirituous toilet preparations (excluding lavender water) – and item (4) – duty-paid spirituous medicinal preparations other than the 123 specified liquids – were all released from the operation of Sections 12(c) and 12(d) and Section 13(b) to the extent described therein. This notification was subsequently superseded on 1 April 1950 by a later notification that was more liberal in certain respects. Because both notifications were issued pursuant to the power granted by the Act, they unquestionably possess the force of law and must be read in conjunction with the Act itself.

When the Act and the accompanying notifications are read together, it becomes evident that the phrase “all liquids consisting of or containing alcohol” is not an indivisible whole but can be, and indeed has been, partitioned into several distinct sub-categories, including liquid toilet and medicinal preparations that contain alcohol. The legislature itself anticipated this subdivision by conferring on the Provincial Government, under Section 139, the authority to exempt any intoxicant or class of intoxicants from the provisions of the Act. This legislative scheme removes the matter from the principles articulated in the two earlier cases cited, because the item in question is severable. Accordingly, the Court is free to assess whether the restrictions placed on the specific sub-category of liquid toilet and medicinal preparations containing alcohol are reasonable. The Court largely concurs with the reasoning adopted by the High Court and holds that the Act does not impose reasonable restrictions with respect to medicinal and toilet preparations that contain alcohol. For comparative purposes, reference was made to the National Prohibition Act, also known as the Volstead Act of the United States, which, although a prohibition statute, expressly excluded toilet and medicinal preparations containing alcohol from its scope. This reference demonstrates that a comprehensive prohibition scheme can be implemented without prohibiting such articles. Moreover, Article 47 of the Constitution likewise recognizes that medicinal preparations should be excluded from prohibition enforcement. Consequently, the Court finds it unreasonable to prohibit the possession, sale, purchase, consumption, or use of medicinal and toilet preparations merely because of a hypothetical risk of misuse by a few individuals.

In this case the Court observed that it was not reasonable to prohibit the possession, sale, purchase, consumption or use of medicinal and toilet preparations simply because there existed a possibility that some perverted addicts might misuse them. It was argued by the opposite side that declaring the provisions relating to purchase, sale, possession, use and consumption of medicinal and toilet preparations containing alcohol invalid would be meaningless, because Notification No 10484/45, issued by the Provincial Government on 1 April, which was not a part of the Act, had already exempted certain duty-paid articles. Those exempted articles included duty-paid perfumed spirits, such as eau-de-cologne, duty-paid spirituous toilet preparations and certain classes of duty-paid spirituous medicinal preparations. The notification expressly removed these articles from three provisions of the Act: Section 12(c); Section 12(d) insofar as it related to the buying of such preparations; and Section 13(b) insofar as it related to the use of such preparations. However, the Court noted that the sale of these articles was not covered by the aforesaid notification. Instead, the sale was governed by two other notifications, namely Notification No 2843/49 dated 6 April 1950 and Notification No 2843/49 dated 11 April 1950. Both of these notifications imposed quantitative limits on sales. For instance, the first notification of 6 April contained rule 10(1), which stipulated that a licence holder must not sell to any person on any one day any kind of perfumed spirit, spirituous toilet preparation or essence in excess of the quantity that could be prescribed by the Commissioner. The second notification of 11 April contained rules 9 and 10. Rule 9 prohibited a licence holder from selling medicated tonics or medicated wines that contained more than ten per cent alcohol, or alcohol in a strength exceeding seventeen-point-five per cent of proof spirit, except where such articles were classified as spirituous medicinal preparations regulated under the Drugs Act 1940. Rule 10, subject to rule 9, required a licence holder to obtain a medical prescription before selling certain spirituous medicinal preparations, namely (a) medicated tonics and medicated wines, (b) asaves and arishtas listed in the annexed schedule, and (c) any other spirituous medicinal preparations containing more than ten per cent alcohol or more than seventeen-point-five per cent proof spirit intended for internal use. The rule also allowed that some spirituous medicinal preparations could be sold without a prescription. In view of these sales restrictions, the Court considered it necessary to examine whether the same restrictions would also affect purchase, possession, use and consumption of the preparations, and whether the exemptions claimed in the notification of 1 April genuinely extended as far as they purported to.

In the matter, the Court referred to the conditions set out in column 7 of Notification No 10484/45(a) dated 1 April 1950. The Court observed that the same notification of 1 April 1950 listed only eight medicinal preparations that were fully exempted from any restriction concerning purchase, possession, and use; for all other medicinal preparations intended for internal consumption, the exemption applied solely to those containing no more than ten per cent alcohol or, alternatively, not more than seventeenth-and-a-half per cent proof spirit. The Court explained that this notification must be read together with another notice, also numbered 10484/45(a) and issued on the same date, which was intended to remain effective only until 31 March 1951. Under the latter notice, the Court noted that the quantity of medicinal preparations containing not more than ten per cent alcohol could be possessed, purchased, consumed, or used only in such amounts as a registered medical practitioner might prescribe. The Court further pointed out that the Provincial Government retained the power to withdraw, supersede, or amend either notice at any time, as had occurred with the notifications dated 16 June 1949, which had been previously referenced.

The Court expressed that an ordinary citizen would find it extremely difficult to extract from this complex series of regulations the exact nature and extent of the legal rights conferred upon him. The Court acknowledged that it was only through the assistance of counsel for the parties that the Court could ascertain the legal position as it stood on 31 March 1950 and the modifications introduced on 1 April 1950. The Court observed, however, that the collection of notifications placed before it contained no document indicating any step taken after 31 March 1951, and none of the parties had raised such a notice during the arguments. After careful consideration, the Court concluded that the restrictions imposed by the Act, even when read together with the aforementioned notifications, were unreasonable, and therefore the Court affirmed the High Court’s earlier conclusion.

Finally, the Court turned to the next group of statutory provisions that the High Court had declared invalid. These included sections 23(a) and 24(1)(a) to the extent that they dealt with “commending” any intoxicant, the entirety of section 23(b), and section 24(1)(b) insofar as it referred to “inciting or encouraging” any individual, class of individuals, or the public generally “to evade the provisions of any rule, regulation or order made thereunder or the conditions of any licence, etc.” The Court reproduced the wording of the provisions, stating that section 23 prohibited any person from (a) commending, soliciting the use of, or offering any intoxicant or hemp, or (b) inciting or encouraging any member of the public or any class of individuals to commit any act that would frustrate or defeat the provisions of the Act or any rule, regulation, or order made thereunder; and that section 24(1) barred any person from printing or publishing in any newspaper, news-sheet, book, leaflet, booklet, or any other medium material that either commended, solicited the use of, or offered any intoxicant or hemp, or was calculated to encourage or incite anyone to commit an offence under the Act.

The provision disallows any single or periodical publication, or any other means of display or distribution, of advertisements or other material that either (a) commends, solicits the use of, or offers any intoxicant or hemp, or (b) is calculated to encourage or incite any individual, any class of individuals, or the public generally to commit an offence under the Act, or to breach or evade the provisions of any rule, regulation, order made thereunder, or the conditions of any licence, permit, pass, or authorization granted thereunder. Sections 23(a) and 24(1)(a) are challenged on the ground that their reference to “commending” any intoxicant infringes the fundamental right to freedom of speech and expression guaranteed by article 19(1)(a) of the Constitution. The Court recognised that any prohibition on “commending” an intoxicant necessarily curtails that constitutional freedom and therefore must be justified by the second sub-clause of article 19. Clause (2) of article 19 presently declares that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law concerning libel, slander, defamation, contempt of court, or any matter that offends decency or morality, or that undermines the security of the State or tends to overthrow it. The Court observed that none of these specified conditions applied to the present provisions, and consequently concluded that the provisions in question must be declared void for being unconstitutional.

The Court further held that section 23(b) must also be declared void because the terms “incite” and “encourage” are sufficiently broad to encompass encouragement by words, speeches, as well as by conduct. Moreover, the phrase “which frustrates or defeats the provisions of the Act or any rule, regulation or order made thereunder” was found to be overly wide and vague, rendering it difficult to define or limit its scope. Accordingly, the Court agreed with the High Court’s view that this provision is invalid in its entirety. Regarding article 24(1)(b), the Court declined to uphold the High Court’s judgment because the petitioner’s counsel had conceded that he would not challenge that provision. The High Court had also declared sections 136(1), 136(2)(b), 136(2)(c), 136(2)(e), and 136(2)(l) to be void for contravening various provisions of article 19 of the Constitution. No argument was presented on behalf of the Government of Bombay contesting the High Court’s decision on those sections, and therefore the Court allowed the High Court’s findings to remain in force. The judgment then proceeded to address two notifications, numbered 10484/45(c) and 2843/49(a), dated 30 March 1950, which the High Court had held to be invalid. Concerning the first notification, the High Court had stated that section 139(c) had been held ultra vires the legislature, a point that the Court would consider in the subsequent analysis.

This notification, which had been issued under section 139(c), was held to be beyond the powers of the Bombay Government. However, because this Court has taken a different view regarding the validity of section 139(c), the decision of the High Court concerning that notification could not be maintained. The Court noted that, from the observations recorded in the judgment under appeal, the High Court had first upheld section 40(1)(c)(i) and (ii). Those provisions deal with the grant of permits to foreigners who do not intend to reside permanently in India, and the High Court had upheld them merely because the Explanation to that section stated that “a person shall be deemed to be residing or intending to reside in India temporarily, if the period of his residence does not exceed six months.” The Court also observed that the High Court would have found it difficult to preserve the classification on which section 40(1)(c) is based if the six-month residence restriction were removed, which would be the effect of reading the section subject to the present notification. The Court stated that it could not see how the notification would transform a classification that is otherwise a proper classification into an improper one. The Court further observed that there is nothing unreasonable in a law that distinguishes between Indian citizens, to whom the prohibition is primarily directed, and foreigners who have no intention of permanently residing in the country. Although the six-month residence condition in the Explanation to section 40 may be somewhat arbitrary, the mere fact that the Government, by notification, withdrew this condition cannot in principle change the foundation of the classification.

The High Court had declared another notification issued by the Government on 30 March 1950 to be invalid, and it expressed its reasoning in these words: “That notification exempts persons holding permits under clause (c) of sub-section (1) of section 40, special permits under section 41, or interim permits under section 47, from the provisions of section 23(a) in so far as it relates to the offering of foreign liquor to persons holding similar permits. This is clearly not justified. Having created a class and given that class the right of obtaining a permit on grounds other than those of health, it would be totally wrong to permit that class not to abide by the same provisions with regard to permits as others to whom permits have been given.” The Court further explained that the legislature itself imposes restrictions on a permit-holder concerning the use and consumption of his stock of liquor, which are found in section 43. Section 43 requires that the permit-holder shall not allow use or consumption of the liquor by any person who is not a permit-holder. The Court held that this restriction must apply equally to permits issued under section 40 to Indian citizens as well as to foreigners. In the Court’s opinion, it would be improper to allow a foreign permit-holder to serve drinks to other permit-holders while denying that privilege to Indian permit-holders. The Court emphasized that the guarantee of equality before the law extends to this situation.

The Court observed that the guarantee of equality under the Constitution applied not only to statutes but also to rules, notifications issued under statutory authority, and even to executive orders, and therefore any notification that offended the principle of equality would be void. To clarify this observation, the Court explained the categories of permit-holders involved. Those who held permits under clause (c) of sub-section (1) of section 40 were foreigners as defined in sub-clauses (i) and (ii) of that clause. Permit-holders under section 41 were foreign sovereigns, ambassadors and similar officials. Persons who possessed interim permits under section 47 were applicants for permits either under section 40 or under section 41. This latter group included not only foreigners but also Indian citizens who applied for permits on the ground that their health would be seriously and permanently harmed if they were denied the ability to use or consume liquor. Consequently, the Court found that the premise on which the High Court had based its conclusion was incorrect. Moreover, the Court did not discern any element in the notification that breached the principle of equality. The notification merely permitted a particular class of permit-holders to serve drinks to other persons holding similar permits. This approach was consistent with the rationale behind section 43, which had not been challenged before the Court and which stipulated that “no holder of a permit granted under section 40 or 41 shall allow the use or consumption of any part of the stock held by him under the permit to any person who is not the holder of such a permit.” In the Court’s view, there was no substantial reason to declare the notification invalid. The issues raised concerning the notification were minor, and the fine distinctions on which the High Court had focused were of little significance. The Court also noted an additional point raised in the High Court’s judgment. The High Court had stated that when a person applied for a permit on health grounds, the applicant was required to submit a medical board certificate, and the form of that certificate demanded the medical board to declare the applicant an “addict.” Accordingly, the High Court had held that only an applicant identified as an addict by the medical board could obtain a permit if his health would be seriously and permanently affected by the denial of liquor use or consumption. The Court, however, pointed out that the situation was not limited to addicts; even individuals who were not addicts but who had long-standing drinking habits might suffer serious and permanent health consequences if they were suddenly forced to stop drinking. The Court further observed that a person who was not accustomed to drink at all could still develop an illness requiring the therapeutic use of alcohol under medical advice.

The Court observed that a person may become ill and require the use of alcoholic drink on medical advice. In its view, the term “addict” signifies more than a simple habit of drinking; it must be given its ordinary meaning rather than being treated as a technical term. The ordinary meaning of “addict” carries a connotation of moral disapproval. The Court inferred that the Government intended to grant permits only to those who admitted to deviating from moral standards. Accordingly, the Court held that insisting on a medical certificate that uses the word “addict” is not justified by the provisions of the Act. The Court thought that the word “addict” in the medical certificate should be replaced by the wording found in section 40(1)(b) of the Act or by words that correspond to that provision.

The Court then turned to the remaining question of whether, after certain sections of the Act had been declared invalid, the surviving part of the Act should continue to operate or whether the whole Act must fall. The High Court had previously considered this argument and rejected it, holding that a fair review of the whole matter could not presume that the legislature would have omitted the surviving part while enacting the portion that was held to be invalid. The Court noted that the High Court’s findings gave the issue a more serious dimension because the High Court had declared several important sections, including the definition of “liquor,” to be beyond the legislature’s power. After examining those sections, the Court found many of them to be valid and concluded that the provisions it deemed invalid could not undermine the validity of the Act as a whole. In applying the appropriate test, the Court quoted the Privy Council in Attorney-General for Alberta v. Attorney-General for Canada (1) that the true question is whether the remaining provisions are so inseparably linked to the invalid part that they cannot survive independently, or whether, on a fair review, it can be assumed that the legislature would have enacted the surviving provisions without the ultra vires part. The Court determined that the provisions it held to be invalid are not inextricably bound up with the rest of the Act, and it was difficult to conclude that the legislature would have omitted the entire Act if the invalid portion had not been included.

The Court determined that some provisions of the Act were ultra vires, yet it held that the Act remained substantially the same as originally enacted. The Act, as passed, was an enactment that amended and consolidated the law relating to the promotion and enforcement of the policy of prohibition together with the Abkari law in the Province of Bombay. The Court declared clause (c) of section twelve invalid to the extent that it affected possession of liquid medicinal and toilet preparations containing alcohol. The Court also declared clause (d) of section twelve invalid to the extent that it affected the selling or buying of such medicinal and toilet preparations containing alcohol. Clause (b) of section thirteen was held invalid insofar as it affected the consumption or use of those medicinal and toilet preparations containing alcohol. Clause (a) of section twenty-three was declared invalid to the extent that it prohibited the commendation of any intoxicant or hemp. In addition, clause (b) of section twenty-three was held invalid in its entirety, as was clause (a) of sub-section (1) of section twenty-four to the extent that it prohibited the commendation of any intoxicant or hemp. Sub-section (1) of section one-hundred-thirty-six and clauses (b), (c), (e) and (f) of sub-section (2) of the same section were each declared invalid in their entirety. The Court held that all remaining provisions of the Act were valid and that the declaration of invalidity of certain clauses did not affect the overall validity of the Act. Accordingly, Appeal No. 182, preferred by the State of Bombay, was substantially allowed, while Appeal No. 183, preferred by the petitioner, was dismissed. On the question of costs, the Court decided to adopt the same order as the High Court. The Court explained that this approach was justified because some provisions of the Act were still found invalid in the present case. The Court further noted that the proceeding had been instituted to test a controversial measure and to provide a definitive ruling. The Court also stated that the decision would remove any public doubts about the Act’s conformity with law and with the Constitution’s chapter on Fundamental Rights.

Justice Patanjali Sastri agreed with the judgment and indicated that he had nothing further to add and therefore did not feel the need to elaborate on any point. Justice Mukherjea read the opinion of Justice Fazl Ali and expressed complete agreement with its conclusions and reasons, adding that he had nothing further to contribute. Justice S.R. Das also agreed with the judgment and stated that he had no additional comments and therefore saw no further issues to discuss. Justice Vilan Bose likewise expressed his agreement with the conclusions of the judgment and indicated that he had no further observations to make. The Court ordered that Appeal No. 182 was allowed and Appeal No. 183 was dismissed, and expressed that these were the final determinations on the respective appeals. The agent representing the appellants in Case No. 182 and the respondents in Case No. 183 was P.A. Mehta. The agent representing the respondent in Case No. 182 and the appellant in Case No. 183 was Rajinder Narain, appearing for R.A. Gagrat. All the judges of the bench indicated their unanimous concurrence with the reasons and conclusion set out in the leading judgment and therefore no dissenting opinion was recorded. The decision was intended to settle any lingering uncertainty regarding the compatibility of the contested provisions with constitutional safeguards. Thus the judgment clarified the legal position of the Act as it currently stands under the Constitution.