Behram Khurshed Pesikaka vs The State Of Bombay

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 42 of 1953

Decision Date: 19 February 1954

Coram: Bhagwati J., Jagannadhadas J., Venkatarama Ayyar J.

In the matter of Behram Khurshed Pesikaka versus The State of Bombay, the Supreme Court delivered its judgment on 19 February 1954. The reference for the case was made under article 145(3) of the Constitution of India. The petition was filed by the respondent‑appellant, and the State of Bombay appeared as the respondent‑defendant. The Court examined the constitutionality of certain provisions of the Bombay Prohibition Act 1949, specifically sections 2(24), 13(b) and 66(b), in the light of articles 13 and 141 of the Constitution. The issue before the Court was the effect of a prior declaration of unconstitutionality rendered in the case of The State of Bombay and Another v. F. N. Balsara, and whether that declaration shifted the burden of proof onto the accused under the remaining operative parts of the Act.

The Court, speaking through Chief Justice Mehr Chand Mahajan together with Justices Mukherjea, Vivian Bose and Ghulam Hasan, held that the earlier decision in Balsara rendered clause (b) of section 13 of the Bombay Prohibition Act void to the extent that it regulated the consumption or use of liquid medicinal or toilet preparations containing alcohol, because such regulation contravened article 13(1) of the Constitution. Consequently, that portion of section 13(b) became inoperative, ineffective and unenforceable. In view of the constitutional invalidity declared by the Supreme Court, the voided part of the section ceased to have any legal effect in the adjudication of cases and must be treated as null and void when determining a citizen’s guilt. The Court emphasized that article 141 leaves no room in Indian law for the American doctrine which limits the effect of a declaration of unconstitutionality to the parties only, preserving the statute in the books. Instead, once the Supreme Court strikes down a law as unconstitutional, it is no longer law and cannot be relied upon by any court. The Court observed that the mere fact that an accused under section 66(b) of the Bombay Prohibition Act was found to be smelling of alcohol does not, by itself, establish guilt, because the odour could arise either from a breach of the enforceable portion of section 13(b) or from the consumption of alcohol covered by the now inoperative provision. Therefore, the prosecution was required to prove that the alcohol detected fell within the category of prohibited alcohol as defined by the enforceable part of section 13(b). Justice S. R. Das presented a dissenting opinion, expressing a different view on the declaration in the Balsara case.

The Court referred to the decision in N. Balsara, which holds that a person who has consumed or used liquid medicinal or toilet preparations may invoke a defence against a charge under section 66(b) read with section 13(b) of the Bombay Prohibition Act. The law requires that the accused prove the facts on which that defence is based. The principle was explained in the case of The State of Bombay and Another v. F. N. Balsara, reported in [1951] S.C.R. 682, and was subsequently followed in Kesava Madhava Menon v. The State of Bombay, reported in [1951] S.C.R. 228. The Court also referred to Rangarao Bala Maize v. The State, reported in 1951 54 Bom. L.R. 325, as well as to In re Kanakasabai Pillai (A.I.R. 1940 Mad. 1) and to the United States case Norton v. Shelby County (118 U.S. 425). These authorities were cited to illustrate the application of the defence and the evidential burden that rests on the person charged under the prohibition statutes.

The present appeal, Criminal Appeal No. 42 of 1953, was filed by special leave against a judgment and order dated 5 February 1953 of the High Court of Judicature at Bombay. The High Court had reversed an earlier order of acquittal granted by the Court of the Presidency Magistrate, 19th Court, Bombay, and had convicted the appellant under section 66(b) of the Bombay Prohibition Act, 1949, imposing a sentence of one month’s rigorous imprisonment and a fine of Rs. 500. The appellant, who held the position of Officiating Regional Transport Officer for the Bombay Region, was represented by counsel consisting of B. M. Mistry, J. B. Dadachanji, Rajinder Narain and R. D. Chadda. The respondent was represented by M. C. Setalvad, Attorney‑General for India, assisted by R. Ganapathy Iyer and P. G. Gokhale. The appeal was heard on 19 February, 28 April, 23 September and 24 September 1954 before a bench of three judges, namely Bhagwati, Jagannadhadas and Venkatarama Ayyar. Bhagwati J. recorded that on 29 May 1951, at about 9.30 p.m., the appellant was driving his jeep toward the Colaba Bus Stand when he struck and knocked down three individuals identified as Mrs. Savitribai Motwani, her husband, and Miss Parvatibai Abhichandani. The police arrested him and escorted him to the police station, and subsequently to St. George’s Hospital for a medical examination to determine whether he had consumed liquor. The examining doctor noted that the appellant’s breath had the odor of alcohol, his conjunctiva were congested, and his pupils were semi‑dilated but responsive to light. Despite these observations, the doctor found the appellant’s speech to be coherent, his behavior normal, and his ability to walk in a straight line unimpaired, and thus expressed the opinion that the appellant did not appear to be under the influence of alcohol, although he might have ingested alcohol in some form. Following the medical report, the appellant was committed before the Presidency Magistrate to stand trial on two counts: one under section 338 of the Indian Penal Code for causing grievous hurt by a rash and negligent act, and the other under section 66(b) of the Bombay Prohibition Act.

The appellant was charged on three counts for causing grievous hurt to the three injured persons by a rash and negligent act, specifically by driving his motor car in a rash and negligent manner, and was also charged under section 66(b) of the Bombay Prohibition Act. During the trial the appellant cross‑examined the doctor and asserted that he had taken a medicinal preparation called B. G. Phos. He further stated in answer to the magistrate on 20 December 1951 that he had not consumed any liquor but had taken a medicinal preparation that contained a small percentage of alcohol. On 13 March 1952 he filed a written statement in which he set out the entire history of his case in detail. In that statement he explained that, because of his poor health, he had been advised to take tonics, especially those containing vitamin B complex and phosphates, and that he regularly used tonics such as Wampole’s Phospho Lecitin, B. G. Phos and Huxley’s Nerve Vigour. He further affirmed that on the night of the accident, at about 9 or 9 15 p.m. after dinner, he had taken a dose of B. G. Phos and was proceeding in his jeep for a drive along Cuffee Parade and Marine Drive when the accident occurred. To support his claim he produced his driving licence, his vehicle registration certificate, a copy of the agenda of the Regional Transport Authority’s meeting scheduled for the following day, and a carton of B. G. Phos on which the label indicated that the preparation contained 17 percent alcohol according to its formula. The learned Presidency Magistrate acquitted the appellant of both offences. Regarding the charge under section 66(b) of the Bombay Prohibition Act, the magistrate observed that the evidence did not conclusively show that the appellant had consumed alcohol without a permit, that certain medicinal preparations were permitted by law, and that there was no satisfactory evidence to prove that the appellant had not consumed those tonics but only liquor for which a permit was required. The State of Bombay appealed both decisions before the High Court. The High Court confirmed the acquittal on the charge under section 338 of the Indian Penal Code but reversed the acquittal on the charge under section 66(b) of the Bombay Prohibition Act. In doing so, the High Court relied on its own earlier Division Bench decision in Rangarao Bala Mane v. State, which held that once the prosecution proves that a person has drunk or consumed liquor without a permit, the burden shifts to the accused to show that the liquor consumed was not prohibited liquor but liquor lawfully permitted, such as medicated alcohol. The court further explained that the prosecution is not required to discharge the burden of the accused, and that if, in answer to a charge of drinking liquor without a permit, the accused suggests that the liquor he consumed was not liquor prohibited by law, the onus then lies on him to prove that claim.

In the Court’s analysis, it reiterated that when an accused claims the liquor he consumed was not in a prohibited form or was a medicated alcohol, the burden is upon him to demonstrate that circumstance. The High Court observed that the Magistrate had erred in law, and consequently the Court was entitled to re‑examine the material evidence and determine independently whether the appellant had shown that he had, for example, taken B. G. Phos after dinner on that night. The Court noted that the alcoholic odour still present in the appellant’s mouth as late as 11.30 p.m., when examined by a medical officer, was identified as the odour of the alcoholic contents of B. G. Phos. The High Court concluded that the appellant failed to establish any facts from which it could be inferred that the liquor he consumed was exempted under the Bombay Prohibition Act; therefore, it set aside the Presidency Magistrate’s order of acquittal, upheld the conviction for the offence, and affirmed the sentence previously imposed. The appellant, however, contended before this Court that the Bombay Prohibition Act, 1949, had been challenged after the commencement of the Constitution and that, in the judgment of the Supreme Court in The State of Bombay and Another v. F. N. Balsara, the provisions of clause (b) of section 13 were declared invalid insofar as they affected the consumption or use of liquid medicinal and toilet preparations containing alcohol. According to that decision, the effect was to remove from the operation of section 13(b) the prohibition on such medicinal or toilet liquids, rendering section 66(b) inoperative and unenforceable with respect to those preparations. Accordingly, the prosecution, when framing a charge under section 66(b), must prove that the accused consumed or used an intoxicant in violation of the Act, and the provision of section 13(b) must be understood as prohibiting the consumption or use of liquor—namely spirits of wine, methylated spirits, wine, beer, toddy, and all non‑medicinal and non‑toilet liquid preparations consisting of or containing alcohol—being the only categories of validly prohibited liquor. On this construction, the Court held that there was no basis for applying sections 105 or 106 of the Evidence Act, as the High Court had attempted. It was further argued by the appellant that even if an onus were placed on the accused to prove he had taken a liquid medicinal or toilet preparation containing alcohol, that onus was lighter than that on the prosecution, and once the accused raised such a defence, the burden would again shift to the prosecution to disprove the defence.

The respondent argued that the declaration in The State of Bombay and Another v. F. N. Balsara was intended to create an exception or proviso to section 13(b) of the Bombay Prohibition Act, and that the burden and onus of establishing that the accused fell within that exception lay upon the accused. Accordingly, the Court should presume that such exceptional circumstances did not exist, in accordance with section 105 of the Evidence Act. The respondent further contended that the prosecution could not realistically demonstrate that the accused had not consumed any liquid medicinal or toilet preparation containing alcohol, because the very fact of consuming such a preparation would be known exclusively to the accused. Consequently, the respondent maintained that the burden of proving the consumption of a medicinal or toilet preparation rested on the accused, and that once the prosecution succeeded in proving that the accused had consumed liquor, the accused would then have to show that the liquor taken was, in fact, a liquid medicinal or toilet preparation containing alcohol, as required by section 106 of the Evidence Act. For completeness, the relevant provisions of the Bombay Prohibition Act, 1949 were set out. The Act was enacted, inter alia, to amend and consolidate the law relating to the promotion and enforcement of the policy of prohibition in the Province of Bombay. Section 2(22) defined “intoxicant” to mean any liquor, and section 2(24) defined “liquor” to include (a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol. Chapter III of the Act introduced the prohibitions, and section 13(b) expressly prohibited any person from consuming or using liquor. Section 66(b) constituted the penal provision, prescribing punishment for anyone who, in contravention of the Act, any rule, regulation, order, licence, permit, pass or authorisation, consumes, uses, possesses or transports any intoxicant or hemp. It was noted that, prior to the amendment effected by Bombay Act XXVI of 1952, which became operative on 22 October 1952, section 103 contained a presumption concerning the commission of offences in certain cases that bore no relevance to the question presently before the Court. The Supreme Court, in The State of Bombay and Another v. F. N. Balsara, held that the definition of liquor contained in section 2(24) was not ultra vires, observing that the term “liquor,” as understood in India at the time of the Government of India Act, 1935, encompassed not only alcoholic liquids ordinarily used as beverages and capable of producing intoxication, but also all liquids containing alcohol. However, the Court considered that the restrictions imposed by sections 12 and 13 of the Act on the possession, sale, use and consumption of liquor were unreasonable restrictions on the fundamental right guaranteed by the Constitution.

In this case the Court observed that article 19(1)(b) of the Constitution guarantees the right to “acquire, hold and dispose of property,” and that this guarantee extends to medicinal and toilet preparations that contain alcohol. Accordingly, the Court declared the statutory provisions that prohibited the possession, sale, use and consumption of such preparations to be invalid. However, the Court did not strike down the entire provision because the earlier categories enumerated in the definition of liquor—namely spirits of wine, methylated spirits, wine, beer and toddy—were distinct and could be severed from the broader category of “all liquids containing alcohol.” The Court held that the restrictions imposed on the possession, sale, use and consumption of those earlier categories were not unreasonable and therefore remained valid. Consequently, section 13(b) was held invalid only to the extent that it conflicted with the Constitution, that is, insofar as it affected the consumption or use of liquid medicinal and toilet preparations containing alcohol. The Court then turned to the question of the legal effect of such a declaration of invalidity. Relying on the authority of Cooley’s “Constitutional Limitations,” the Court explained that when a statute is adjudged unconstitutional it is treated as if it never existed: no rights arise under it, contracts dependent on it are void, it offers no protection to anyone who acted under it, and no one can be punished for refusing to obey it prior to the decision. The Court also cited the dictum of Field J. in Norton v. Shelby County, which states that an unconstitutional act is not law, confers no rights, imposes no duties, offers no protection, creates no office, and is legally inoperative as if it had never been passed. Similar principles were drawn from Rottschaefer’s commentary, which holds that a legislative provision that violates constitutional provisions must be disregarded as having never possessed legal force in the relevant cases. Willoughby’s treatise was also referenced, noting that the Court does not annul or repeal a statute that conflicts with the Constitution; rather, it refuses to recognise it and determines the parties’ rights as if the statute were inapplicable, explaining its reasoning but affecting only the parties before it. The Court emphasized that such a judicial declaration does not remove the statute from the books, nor does it bind persons who are not parties to the particular suit, although the reasoning may serve as precedent in future litigation.

In the present discussion the Court explained that when a statutory provision is held to be unconstitutional the judgment does not delete the provision from the statute books and it does not repeal the law. The reasoning set out by the Court may become persuasive authority for deciding later cases that involve similar questions, but the judgment binds only the parties to the particular suit that produced the decision. Consequently, a different plaintiff may commence a fresh action relying on the same statutory provision, and the earlier judgment can be cited only as precedent. The Court quoted the principle that a judicial declaration of unconstitutionality “simply refuses to recognise it and determines the rights of the parties just as if such statute had no application.” The observation of Willis in his treatise on Constitutional Law was also cited, noting that a judicial finding that a statute is unconstitutional “neither annuls nor repeals the statute but has the effect of ignoring or disregarding it as far as the determination of the rights of private parties is concerned.” The courts, therefore, treat an unconstitutional enactment as having no operative effect, as if it had never been passed.

Applying that principle, the Court held that although under article 141 of the Constitution the law declared by this Court is binding on every court in India and constitutes the law of the land, the declaration of unconstitutionality did not create a new statutory provision nor did it modify section 13(b) of the Act. No new exception or proviso was inserted into section 13(b). The sole consequence of the declaration was that the prohibition contained in section 13(b) remained enforceable only with respect to “validly prohibited liquor,” namely spirits of wine, methylated spirits, wine, beer, toddy and all non‑medicinal and non‑toilet liquid preparations that consist of or contain alcohol. In light of the Court’s declaration, the prohibition could not be extended to liquid medicinal or toilet preparations that contain alcohol. Accordingly, a person who consumes or uses such medicinal or toilet preparations containing alcohol cannot be charged with violating the Act, and no offence accrues from such consumption. When read together with the definitions of “intoxicant” and “liquor” in sections 2(22) and 2(24), the provision of section 13(b) that prohibited the consumption or use of liquor, including liquid medicinal or toilet preparations containing alcohol, was rendered inoperative and unenforceable to the extent of the inconsistency, and only the prohibition of the specified validly prohibited liquors could be enforced under section 13(b) and the penal provision of section 66(b).

In this case the Court observed that toilet preparations containing alcohol had been removed from the category of liquor that could be validly prohibited. The Court noted that, regardless of any wider implications or the consequences that might follow from the declaration that section 13(b) was unconstitutional to the extent of its inconsistency with other provisions, the State was nevertheless attempting to enforce the penal provisions of section 66(b). By doing so the State was encroaching on the personal liberties of the individual. The Court emphasized that penal statutes must be interpreted narrowly and that the State could punish only the consumption or use of liquor that fell within the definition of “validly prohibited liquor,” because only such consumption could give rise to an offence under section 66(b). The Court further explained that the consumption or use of any intoxicant, meaning any liquor, in violation of the Act was punishable, but that the accused could not be held guilty under section 66(b) unless the prosecution proved that the accused had actually consumed or used liquor in breach of the enforceable provisions of the Act. Consequently, liability could arise only when the accused had contravened an enforceable provision. For the present inquiry the only provision that could be invoked against the accused was section 13(b). The Court clarified that the prohibition in section 13(b) was, by reason of the Court’s own declaration, enforceable only with respect to the consumption or use of “validly prohibited liquor,” which the Court defined as spirits of wine, methylated spirits, wine, beer, toddy and all non‑medicinal and non‑toilet liquid preparations that consist of or contain alcohol. The respondent had vigorously urged that, although the declaration did not use those words, it effectively created an exception or proviso to section 13(b), and that, under section 105 of the Evidence Act, the burden should therefore rest on the appellant to prove that the circumstances of his case fell within that alleged exception. The Court rejected this submission, holding that no exception or proviso was expressed in the declaration. Instead, the declaration had the effect of rendering the prohibition on the consumption or use of liquid medicinal and toilet preparations containing alcohol as never having possessed any legal force, and consequently such a prohibition could not be enforced against any accused charged with violating section 13(b). The Court explained that the impact of the declaration on section 13(b) could be expressed in several ways, for example by stating that no person shall consume or use spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, except that the prohibition shall not extend to liquid medicinal or toilet preparations containing alcohol, or to any non‑medicinal and non‑toilet liquid preparations consisting of or containing alcohol. Finally, the Court questioned why any interpretation should graft an exception or proviso onto section 13(b) when multiple plausible readings of the declaration were available.

In this case, the Court explained that when a statutory provision could be understood in more than one way, the interpretation that favored the accused ought to be adopted. The Court emphasized that an interpretation that imposed an additional or special burden on the accused should arise only from a clear and unequivocal statutory provision, not from an indirect construction. The Court referred to the earlier decision in In re Kanakasabai Pillai (1) to support this principle. It then stated that, consistent with criminal jurisprudence, the effect of the declaration should be that the prohibition contained in section 13(b) would be enforceable only with respect to the consumption or use of liquor that was validly prohibited – namely spirits of wine, methylated spirits, wine, beer, toddy and all non‑medicinal and non‑toilet liquid preparations containing alcohol, as listed in the provision.

The Court observed that, if this interpretation of the declaration was correct, the prosecution could not rely solely on proving that the accused had taken some form of liquid, but instead had to establish that the accused had consumed or used the specifically prohibited types of liquor. The burden of proof therefore remained entirely on the prosecution to demonstrate each element of the offence charged under section 13(b). The Court noted that the statute, as it stood, did not contain any presumption that shifted the burden to the accused to show that he had taken a medicinal or toilet preparation containing alcohol. Nor did section 13(b) contain any exception or proviso that would invoke section 105 of the Evidence Act and require the accused to prove the existence of circumstances falling within such an exception.

The Court further held that the mere fact that the accused might have special knowledge of his own consumption of a medicinal or toilet preparation could not transfer the evidential burden to him. It reiterated the fundamental principle of criminal law in this jurisdiction that the prosecution alone must prove every ingredient of the offence alleged against the accused. Consequently, the accused was not compelled to speak or to present a defence until the prosecution had discharged its burden and satisfactorily established the accused’s guilt. The Court concluded that section 106 of the Evidence Act could not be interpreted to require the accused, on the basis of his personal knowledge, to prove that he had not committed the offence. This principle was reinforced by citing Attygalle v. The King (1) and reiterating the earlier reference to In re Kanakasabai Pillai (2).

Section 106 of the Evidence Act cannot be interpreted to allow the accused, merely because the facts are especially within his own knowledge, to prove that he did not commit the offence. The Court referred to the authorities in Attygalle v. The King(1) and In re Kanakasabai Pillai(2) to support this proposition. The burden of establishing the commission of the offence remained entirely on the prosecution, and Section 106 did not in any manner transfer that burden to the accused.

The High Court, while deciding Rangarao Bala Mane v. State, was struck by the observation that the prosecution could not possibly demonstrate that the accused had not taken any form of medicated alcohol. The Court noted that there were numerous varieties of medicated alcohol and that it was practically impossible for the prosecution to exclude every form. To illustrate the point, the High Court said: “If the prosecution were to lead evidence that the accused had not taken medicated alcohol in the form of B. G. Phos, the accused would contend that he had taken it in some other form. If the prosecution were to lead evidence that the accused had not taken it in the form of Winedex, the accused would say that he had taken it in the form of Waterbury’s Compound or Hall’s Wine. These are only two instances to show how it is impossible for the prosecution to exclude all forms of medicated alcohol.”

Consequently, the High Court concluded that once the prosecution had satisfied its onus to prove that the accused had consumed liquor, the remaining task for the accused was to demonstrate that the liquor he consumed was medicated alcohol, meaning it was not prohibited liquor. The present Court regarded the difficulty envisaged by the High Court as imaginary. When an accused is suspected of violating the prohibition, it is the police who must investigate the offence and determine whether the liquor consumed falls within the enforceable prohibition enacted in section 13(b). Because there are many preparations that belong to the category of liquid medicinal or toilet preparations containing alcohol, and many that belong to the category of non‑medicinal, non‑toilet liquid preparations containing alcohol, the investigation must identify which category the accused actually consumed and charge him accordingly. The mere fact that the accused smelled of alcohol or had consumed liquor in some form does not, by itself, constitute an unequivocal indication of guilt.

The judgment observed that the odor of alcohol on the accused could have arisen either from the consumption of medicinal or toilet preparations containing alcohol or from the consumption of liquor that was expressly prohibited by law, namely spirits of wine, methylated spirits, wine, beer, toddy and any non‑medicinal and non‑toilet liquid preparations containing alcohol. Accordingly, finding the accused guilty merely because he smelled of alcohol would amount to a conviction based solely on that odor and would deny him the benefit of doubt that an accused is always entitled to when the facts and circumstances may be consistent with either guilt or innocence. The reasoning adopted by the High Court, which implied that any proof of alcohol consumption created a presumption that the accused had taken prohibited liquor and that the burden then shifted to the accused to show that the alcohol consumed was only medicinal or toilet preparation, was deemed untenable. The judgment noted that difficulties faced by the prosecution in proving its case should not prevent a correct legal conclusion; if such difficulties arise, it is the Legislature, not the Court, that must amend the statute. The necessary amendment was effected when the Bombay Act XXVI of 1952 was enacted on 22 October 1952, following the earlier declaration in The State of Bombay v. F. N. Balsara. In the present case, it was held that it was insufficient for the prosecution merely to establish that the appellant had taken alcohol in some form. The prosecution was required to prove that the appellant had consumed, in contravention of the Act, an intoxicant that could only be validly prohibited liquor as defined above. The medical evidence presented only demonstrated that the appellant had consumed alcohol in some manner, which did not meet the required standard of proof. Consequently, the judgment concluded that the prosecution had failed to establish that the appellant committed the charged offence. Because of this conclusion, it was unnecessary to consider the elaborate question of the allocation of the burden of proof between the prosecution and the defence under section 105 of the Evidence Act or the principles enunciated in Woolmington v. Director of Public Prosecutions.

The Court examined the defence in a criminal trial by referring to the provisions of section 105 of the Evidence Act and by considering the relevance in India of the principles laid down in Woolmington v. The Director of Public Prosecutions (1). Having done so, the Court allowed the appeal and set aside both the conviction and the sentence that had been imposed on the appellant by the High Court. The citation for the Woolmington case is (1) [1935] A.C. 462. Justice Jagannadhadas recorded that he had studied the judgments of both of his learned brothers. With sincere regret, he expressed that he could not agree with the view adopted by his brother Justice Bhagwati. Two substantive questions of law were identified for resolution. The first question concerned the allocation of the burden of proof required to demonstrate whether the “liquor” consumed by the appellant was, or was not, a medicinal or toilet preparation that nevertheless contained alcohol. The second question concerned the nature and the quantum of proof that must be produced if the burden of proof is placed upon the appellant. The answer to the first question, the Court noted, depended upon the effect of the earlier decision of this Court in The State of Bombay and Another v. F. N. Balsara. That decision affirmed that the definition of “liquor” contained in sub‑section (24) of section 2 of the Bombay Prohibition Act, 1949 (Act XXV of 1949) was valid, while it declared that clause (b) of section 13, insofar as it affected the consumption or use of medicinal or toilet preparations containing alcohol, was invalid. Justice Bhagwati held that the declaration did not amend section 13(b); consequently, he reasoned that the prohibition under section 13(b) must be understood, for the purpose of the present case, as applicable only to the consumption or use of “non‑medicinal or non‑toilet liquid preparation containing alcohol.” Under that construction, the Court explained, the burden of proving every element of the prohibition rested on the prosecution. In contrast, Justice Venkatarama Ayyar expressed the view that the effect of the Balsara decision was not to amend section 13(b) but merely to render it partially unenforceable, thereby furnishing the accused with a defence based on the unconstitutionality of applying the section to medicinal or toilet preparations containing alcohol. Accordingly, the burden of establishing the facts necessary for that defence, Justice Ayyar said, lay with the accused. The majority agreed that a judicial decision does not perform a legislative function and that the Balsara decision does not, proprio vigore, amend the Act. The Court then cited the commentary in Willoughby on the Constitution of the United States (Second Edition, vol. I, p. 10), which observes that a court does not annul or repeal a statute when it finds it inconsistent with the Constitution; instead, the court simply refuses to recognise the statute and determines the parties’ rights as if the statute had no effect.

The Court explained that when a statute conflicts with the Constitution, the judiciary does not annul or repeal the law. Instead, it simply refuses to recognise the provision and decides the rights of the parties as though the offending provision had no application. The Court may set out reasons for ignoring or disregarding the statute, but those reasons affect only the parties to the particular suit; there is no judgment striking down the statute itself. The opinion or reasons may serve as precedent for later cases involving similar issues, yet the statute remains on the books and is not repealed. Consequently, the decision binds only the parties to the judgment, and no other litigant is bound by it. A new plaintiff may commence a fresh action invoking the same statute, and may rely on the earlier decision solely as persuasive authority. The treatises cited describe this approach in the context of statutes that are wholly unconstitutional from the moment the Constitution commenced, a situation that falls within article 13(2) of our Constitution. Those passages, however, do not directly address a scenario covered by article 13(1), where only a severable part of a valid pre‑existing law infringes fundamental rights.

In the present matter, the Court noted that the decision in The State of Bombay and Another v. F. N. Balsara does not itself amend the Act, but the declarations in that case rest upon article 13(1). The issue before the Court was therefore the effect of article 13(1) on a statute that, apart from a severable portion, remains valid. Article 13(1) renders the offending part “void” from the Constitution’s commencement date, while the remainder of the law stays in force. Two possible consequences of such voidness were identified: first, the offending portion becomes unenforceable yet remains part of the Act; second, the offending portion is excised, resulting in an appropriately amended statute. The first view, drawn from certain American decisions, appeared to be favoured by Justice Venkatarama Ayyar, and the Court expressed some concurrence with that approach, although it was not fully developed by the parties and was only hinted at during arguments. Because the material presented by counsel was incomplete, the Court turned to the second view, which had been advanced by the parties, and deemed it necessary to resolve the case on that basis. The Court then framed the remaining question: what notional amendment must be introduced into the Act to bring it into consistency with the decision in Balsara? The Court identified the relevant portions of the Act as follows: (1) the definition of “liquor” in its entirety continues to be valid; (2) section 13(b) of the Act, insofar as it relates to liquid toilet or medicinal preparations containing alcohol, is invalid, and (3) this portion of section 13(b) is severable.

The Court examined the contention that the portion of section 13(b) which dealt with liquid toilet or medicinal preparations containing alcohol was invalid and that this portion should be treated as severable. The counsel for the appellant argued that the surviving valid prohibition under section 13(b) now concerned only the consumption or use of liquor that was not a liquid medicinal or toilet preparation containing alcohol. Consequently, the appellant urged that section 13(b) should be read as if it had been amended to reflect this limitation. The argument, as the Court understood it, was that the term “liquor” should be interpreted as “prohibited liquor” or that it should be given a restricted meaning confined to the exclusion of medicinal and toilet liquids. The Court found it impossible to give effect to that approach. It held that the definition of “liquor” in the Act, with its broad and inclusive content, remained valid and therefore had to be applied in its entirety to the term “liquor” in section 13(b). To read the section otherwise would amount to introducing a new definition of “prohibited liquor” into the statute and to making the consumption or use of such “prohibited liquor” the offence. The Court observed that the decision in Balsara did not permit the insertion of a new definition or the rewriting of section 13(b). Instead, the decision preserved section 13(b) in full while treating the consumption or use of liquid toilet or medicinal preparations containing alcohol as a severable portion, thereby removing such consumption or use from the scope of the prohibition because it was unconstitutional. The Court concluded that this could be achieved only by grafting an appropriate exception or proviso onto section 13(b). It noted that Justice Bhagwati, in his judgment, suggested that if section 13(b) were to be treated as amended, the amendment could be fashioned in several alternative ways and that there was no necessity to prefer one mode over another. Moreover, it would be unfair to an accused to impose a burden by interpreting the provision in a way that was less favorable when a more favorable construction was available. The Court then presented several possible modes of amendment, illustrating one suggested reading of section 13(b) as follows: “No person shall consume or use spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing ‘A’ alcohol as are not or which are not or other than or save or except or provided they are not or but shall include liquid medicinal or toilet preparations containing alcohol, or all non‑medicinal and non‑toilet liquid ‘B’ preparations consisting of or containing alcohol.” (The underlinings and markings are the Court’s.) The Court asserted that if the relevant portion of the section were recast in any of the alternative forms indicated by the ‘A’ portion, each such form would constitute merely an exception or proviso falling within the specific terms of section 105 of the Evidence Act, that is, an exception or proviso in the definition of the offence.

In his discussion of the possible amendment of section 13(b), the Judge observed that if the provision were revised by adding the portion marked “B” while removing the portion marked “A”, the result would be a change in the very meaning of the word “liquor” within the section. He stated that he could find no legal authority that would justify such an alteration of the term. The Judge then referred to the decision in The State of Bombay and Another v. F. N. Balsara, which, as he explained earlier, permits the word “liquor” to be retained in its full sense while severing from the provision any reference to alcohol that is contained in medicinal or toilet preparations. Consequently, he affirmed his earlier view that the only proper way to achieve the intended effect is to create an exception or a proviso that is grafted onto the existing provision. He further considered an alternative approach suggested by Justice Bhagwati, which would interpret the section without any amendment by construing the expression “prohibited liquor” in accordance with the Balsara decision. With respect, the Judge expressed difficulty in attributing to a specific statutory clause a meaning that diverges from the plain words of the definition, even when read in light of that decision. He noted that the Balsara judgment, if it does not itself amend the provision, also does not merely aid its interpretation. The Judge rejected a purely technical view of the matter and maintained that it was not appropriate to read into the provision an effect that would render section 13(b) inoperative, an outcome that the legislature had not intended. Accordingly, he concluded that, based on the arguments presented by counsel on both sides, article 13(1) of the Constitution modifies section 13(b) of the Bombay Act only to the extent of inserting a suitable exception or proviso, and that section 105 of the Evidence Act would consequently apply to the situation. He further held that, under either possible construction of the effect of article 13(1) on section 13(b) in light of the Balsara judgment, the view expressed by the Bombay High Court judges—that the burden of proof in a case of this nature rests upon the accused—remains correct. Turning to the second issue raised, namely the nature and amount of evidence required to discharge this burden, the Court observed that extensive arguments had been presented. The Court’s attention was drawn to the existence of conflicting decisions among the High Courts on this point.

In addressing the legal questions presented, the Court first noted that two competing authorities existed on the matter of burden of proof. One authority was the decision of the Full Bench of the Allahabad High Court in Prabhoo v. Emperor (1). The other authority was a later Special Bench decision of the Bombay High Court in Government of Bombay v. Sakur (2). The Court considered that it was unnecessary to resolve this conflict for the present case because, whichever view was adopted, the appellate Court’s finding that the burden of proof had not been discharged on the material before it remained correct. The Court observed that the appellant had raised a specific defence in paragraph 8 of the written statement filed in answer to the charge. In support of that defence the appellant offered no proof of any circumstances that were within his knowledge and that would render the defence reasonably probable, even though he might not have been able to prove the matter “to the hilt.” Accordingly the Court held that the conviction of the appellant under section 66(b) of the Bombay Prohibition Act, 1949, was proper. However, the Court found that it was not necessary to send the appellant back to prison. Consequently, it reduced the term of imprisonment to the period already served and dismissed the appeal subject to that modification.

Justice Venkatramana Ayyar expressed disagreement with the view expressed by his learned brother, Justice Bhagwati. He stated that the facts giving rise to the appeal had been set out in the earlier judgment and needed no restatement. The point for decision, he explained, was whether, in a prosecution under section 66(b) of the Bombay Prohibition Act, XXV of 1949, for a contravention of section 13(b), the prosecution must establish not only that liquor had been taken in some form but also that what was taken was not a medicinal preparation. He referred to the earlier Bombay High Court decision in Rangrao Bala Mane v. State, in which the Court held that once the prosecution proved that the accused had taken alcohol in some form, the burden shifted to the accused to prove that the substance taken was a medicinal preparation. That burden arose because it was an exception that the party pleading it had to establish under section 105 of the Evidence Act, and because it was a matter specially within the accused’s knowledge, thereby imposing the evidential burden under section 106 of the Evidence Act. The appellant challenged the correctness of that decision, contending that it conflicted with the Supreme Court’s decision in The State of Bombay and Another v. F. N. Balsara (supra). Justice Ayyar indicated that the Court would first refer to the statutory provisions relevant to the question before considering the effect of the Balsara decision.

In order to determine the legal position, the Court first examined the statutory framework of the Bombay Prohibition Act, specifically sections 2(24), 13(b) and 66(b). Section 2(24) provides a definition of “liquor” that expressly includes every liquid that consists of or contains alcohol. Section 13(b) then declares that no person shall use or consume liquor, and any breach of this provision is punishable under section 66(b). Because the definition in section 2(24) classifies medicinal preparations that contain alcohol as liquor, the consumption of such preparations falls within the scope of the offense created by section 13(b). Consequently, a defense based on the argument that the consumed substance was a medicinal preparation cannot defeat a prosecution under section 13(b), and the type of question now before the Court could not have arisen under the Act before the coming into force of the Constitution. The Court then turned to the effect of its own earlier decision in The State of Bombay and Another v F N Balsara on the interpretation of the Act. In that case, the Court held, inter alia, that the portion of section 13(b) which prohibited the consumption of medicinal preparations imposed an unreasonable restriction on the right of an owner to hold and enjoy property and therefore was void for being inconsistent with article 19(1)(f) of the Constitution. On the side of the appellant, it was argued that this declaration effectively removed medicinal preparations from the reach of section 13(b); the appellant suggested that the section should be read as if it had been amended to the effect that no person shall use or consume liquor other than medicinal preparations or toilet articles, thereby eliminating any need for the accused to rely on an exception and removing any burden under section 105 of the Evidence Act. The appellant further contended that, because the offense consisted in consuming a liquor that was not a medicinal preparation, the onus should rest upon the prosecution to prove that the substance consumed was a prohibited liquor. Conversely, the respondent maintained that the definition of liquor in section 2(24) already embraces medicinal preparations, and that this broad definition must therefore be applied to section 13(b) as well. The respondent argued that the immunity granted to medicinal preparations containing alcohol by virtue of the decision in The State of Bombay and Another v F N Balsara should be treated as an exception, and that section 13(b) should be interpreted as containing a saving in favour of such preparations, akin to an exception or proviso, which would place the burden of proving the exception on the accused under section 105 of the Evidence Act. After considering both positions, the Court agreed with the appellant that section 105 of the Evidence Act does not apply in this context. The Court clarified that the matter does not involve any statutory exception, whether general or special, under the Penal Code or any other law that defines the offense; the alleged exception arises solely from the Court’s earlier decision and not from any statutory provision, and therefore the evidential burden prescribed by section 105 cannot be invoked.

In the present matter, the Court observed that the alleged proviso, if it could be described in such terms, originated from the Court’s own decision and not from any statutory provision; consequently, section 105 of the Evidence Act could not be invoked on that basis. At the same time, the Court found it difficult to regard the decision in The State of Bombay and Another v. F. N. Balsara as having amended section 13(b) so as to remove medicinal preparations from the scope of that provision. Both parties had advanced rival arguments concerning the effect of the Balsara decision. The appellant contended that the decision effectively altered section 13(b) by excluding medicinal preparations from the definition of “liquor,” while the respondent argued that the decision inserted an exception or proviso in favour of such preparations. The Court held that this characterization was mistaken. Judicial decisions do not possess the power to amend or add to legislation; that power resides exclusively with the legislature. Courts are limited to interpreting statutes and to declaring whether a particular provision is constitutionally valid. When a provision is declared invalid, it simply ceases to have legal effect, but the statutory language itself remains unchanged. Accordingly, because the Balsara judgment did not modify the wording of section 13(b), there was no basis to assume that medicinal preparations containing alcohol, which were within the provision’s reach before the judgment, had been excluded thereafter. This reasoning removed any justification for shifting the evidential burden onto the prosecution under section 13(b) to prove not only that the substance consumed was “liquor” but also that it was not a medicinal preparation. The Court therefore stated that the allocation of the burden of proof must be determined by the actual language of section 13(b) and by established legal principles, rather than by a hypothesised amendment or an added exception. Under the plain terms of section 13(b), the offence consists of using or consuming “liquor,” and the definition of “liquor” in section 2(24) expressly includes medicinal preparations containing alcohol. The Balsara case had raised the issue of whether the State Legislature, which had competence to legislate on intoxicating liquor, could legislate concerning medicinal preparations containing alcohol, on the premise that “intoxicating liquor” traditionally referred to beverages and not medicines. The Court rejected that contention, holding that the term “intoxicating liquor” had acquired an enlarged meaning that embraced medicinal preparations containing alcohol, and therefore the legislature was competent to enact laws concerning such preparations within the ambit of intoxicating liquor legislation. The definition of “liquor” therefore must be understood in its extended sense, encompassing both beverages and medicinal preparations containing alcohol.

In the judgment the Court observed that the definition of “liquor” in section 2(24) had been given an extended meaning, and that extended meaning had been held to be valid. Consequently, the Court held that, unless a particular provision expressly stated otherwise, the word “liquor” must be read to include medicinal preparations wherever it appeared in the statute. Accordingly, the term must be understood in that way in section 13(b) as well. The Court then referred to the earlier decision in The State of Bombay and Another v F N Balsara, noting that the earlier case was decided on the basis that medicinal preparations fell within the scope of section 13. Because of that inclusion, the earlier case permitted the whole discussion on the constitutionality of section 13(b) with respect to article 19(1)(f). The Court therefore began its analysis by stating that, under section 13(b), the Legislature had made it an offence to take alcohol in any form, whether as a beverage or as a medicinal preparation. Having accepted that position and having already ruled that the portion of the section dealing with medicinal preparations was void for being repugnant to article 19(1)(f), the Court turned to the question of who must prove whether the substance actually consumed was alcohol or a medicinal preparation containing alcohol. It pronounced that there was a strong presumption in favour of the constitutionality of any statute, and that the burden of proving unconstitutionality rested on the party challenging the law. The appellant’s contention, when broken down, was that section 13(b) was invalid insofar as it covered medicinal preparations containing alcohol because it violated article 19(1)(f) of the Constitution, and the appellant relied on the decision in The State of Bombay and Another v F N Balsara to support that view. However, the Court held that before the appellant could invoke that precedent, he first had to establish that what he had consumed was indeed a medicinal preparation. The Court explained that a plea of unconstitutionality could not succeed unless every element required to sustain such a plea was proved, citing Rao Shiv Bahadur Singh v The State of Vindhya Pradesh, where it was observed that “the burden of making out facts requisite for the constitutional invalidity of the convictions” lay with the appellant. Accordingly, the appellant was required to prove as a fact that the substance he had taken was a medicinal preparation and, as a matter of law, that section 13(b) was invalid in so far as it prohibited such a preparation. The Court noted that it had already decided the second point in the appellant’s favour, but that the burden of establishing the first point—namely, that the substance actually consumed was a medicinal preparation—remained on the appellant. The appellant argued that the Court had declared section 13(b) void under article 13(1) of the Constitution with respect to medicinal preparations, and that this declaration meant the provision was a nullity to that extent and should be read as if it did not cover medicinal preparations. The Court then posed the question of what legal effect follows when a statute is declared unconstitutional, indicating that the answer would depend on two considerations, the first of which related to whether the constitutional prohibition affected the Legislature’s competence to enact the law.

The Court examined whether the constitutional prohibition that had been infringed affected the competence of the Legislature to enact the law or merely operated as a check on the exercise of a power that was within its competence; and it also considered, if the prohibition was merely a check, whether the provision was enacted for the benefit of individuals or whether it was imposed for the benefit of the general public on grounds of public policy. The Court explained that if a statute lay beyond the competence of the Legislature, for example when a State enacted a law that fell within the exclusive competence of the Union, that statute would be a nullity. The same result would follow when a limitation was placed on legislative power in the interests of the public, such as the provisions in Chapter XIII of the Constitution relating to inter‑State trade and commerce. However, when the law was within the competence of the Legislature and the unconstitutionality arose because the law was repugnant to provisions enacted for the benefit of individuals, the statute was not a nullity but was merely unenforceable. The Court noted that such an unenforceability could be removed by a waiver, after which the law would become enforceable. The principle that a constitutional right could be waived was described as well settled in American jurisprudence. (Vide Cooley on Constitutional Limitations, Volume 1, pages 368 to 371; Willis on Constitutional Law, at pages 524, 531, 542 and 558; Rottschaefer on Constitutional Law, at pages 28 and 29‑30). In Shepard v. Barron(1) it was observed that “provisions of a constitutional nature, intended for the protection of the property owner, may be waived by him.” In Pierce v. Somerset Railway(2) (1) 194 U.S. 553; 48 L. Ed. III5. (2) 171 U.S. 641; 43 L. Ed. 316 the position was thus stated: “A person may by his acts or omission to act waive a right which he might otherwise have under the Constitution of the United States, as well as under a statute.” In Pierce Oil Corporation v. Phoenix Refining Co.(1), where a statute was challenged on the ground that it imposed unreasonable restrictions on the rights of a corporation to carry on business and thereby violated the rights guaranteed under the Fourteenth Amendment, the Court observed “There is nothing in the nature of such a constitutional right as is here asserted to prevent its being waived or the right to claim it barred, as other rights may be, by deliberate election or by conduct inconsistent with the assertion of such a right.” The Court held that the same position must apply under our Constitution when a law contravenes a prescription intended for the benefit of individuals. The rights guaranteed under article 19(1)(f) were enacted for the benefit of owners of property and, when a law was found to infringe that provision, any person whose rights had been infringed was free to waive it; when a waiver existed there was no legal impediment to the enforcement of the law. This would be different if the statute were a nullity; in that situation it could neither

The Court observed that a statute could not be both waived and enforced. Accordingly, if a law is merely unenforceable until it is waived, it cannot be treated as a nullity that has been removed from the statute book. The Court added that the issue of waiver was relevant to the present controversy not because it raised any factual dispute for determination, but because it illuminated the character of the right proclaimed under article 19(1)(f) and the legal effect of a statute that conflicts with that right. The Court then referred to a distinction drawn by American jurists between unconstitutionality that stems from a lack of legislative competence and unconstitutionality that arises from a limitation imposed on a legislature that otherwise possessed competence. The Court explained that a statute enacted by a legislature that lacked authority could never acquire validity even if the legislature later obtained the requisite power. In contrast, a statute that was within the legislature’s competence at the time of enactment but infringed a constitutional prohibition could become enforceable once the prohibition was removed. The Court quoted the authoritative text in Willoughby on the Constitution of the United States, Volume 1, page 11, which states: “The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment, and if, on that test, it is beyond the legislative power, it is not rendered valid without re‑enactment even if the necessary legislative power is later granted by constitutional amendment. However, where an act is within the general legislative power of the enacting body but is rendered unconstitutional because of an adventitious circumstance—such as a State legislature being pre‑empted by prior federal legislation, or by a silence that is to be interpreted as prohibiting regulation—the act does not need to be re‑enacted in order to be enforced if that cause of unconstitutionality is removed.”

The Court cited the decision in Wilkerson v. Rahrer as supporting this principle. In that case the State of Kansas had enacted, in 1889, a law forbidding the sale of intoxicating liquors within the state. While the law was valid with respect to intrastate sales, it was held unconstitutional as to inter‑state sales. The following year, 1890, Congress enacted legislation authorising the States to enact prohibition laws covering inter‑state trade. After the federal statute was enacted, a prosecution was instituted under the 1889 Kansas act for sales that occurred after the 1890 congressional law. One argument advanced was that the Kansas law was void at the time of its enactment and therefore could not be enforced even though the congressional enactment had removed the earlier constitutional obstacle. The Court rejected that argument, stating that the situation did not involve a law passed in an unauthorized exercise of a power reserved exclusively to Congress, but rather a law that the State was competent to pass but that could not operate on certain transactions until the federal statute removed the impediment. The Court concluded that there was no justification for requiring a re‑enactment of the State law before it could have the effect on imported goods that it always had on domestic property.

In the discussion of a statute that had been enacted while the power to legislate on the subject was exclusively vested in the national Legislature, the Court observed that the State was nevertheless competent to pass a law of the same character, even though that law could not affect articles situated in a particular circumstance until the national Act was enacted. The national Act subsequently removed the impediment, and the Court found no sufficient reason to require that the State law be reenacted before it could exert the same effect on imported goods that it had always possessed with respect to domestic property. The Court then quoted the authority of Cooley, who explained on page two hundred and one of his work on Constitutional Law that a judicial decision merely resolves the case before it and that a declaration of unconstitutionality does not destroy the statute but merely results in a refusal to enforce it. Rottschaefer, after noting the clash of authorities on the same point, referred to the decision in Wilkerson v. Rahrer as presenting the more persuasive view. The Court noted that, although this precise question did not arise for determination in the present appeal, the principle remains relevant to demonstrate that an infringement of a constitutional prohibition, which merely limits the exercise of legislative power without affecting the legislature’s competence, does not render the law a nullity.

The Court further explained that the term “void” used in article thirteen paragraph one is not conclusive for ascertaining the exact effect of a law that conflicts with article nineteen paragraph one sub‑paragraph f. The Court referred to a statement in Corpus Juris, volume sixty‑seven, page two hundred and sixty‑three and following pages, which counsel for the respondent had highlighted. That passage clarified that the word “void” may convey either an “absolutely void” meaning, where the law or the nature of things forbids any enforcement whatsoever, or a “relatively void” meaning, where the law condemns the act as a wrong to individuals and refuses to enforce it against them, yet the provision may be confirmed, ratified, or waived. The true scope of article thirteen paragraph one had been examined earlier by this Court in the case of Kesavan Madhava Menon v. State of Bombay, where the issue was whether the Constitution operated retrospectively. In that judgment, Justice Das observed that article thirteen paragraph one does not automatically render all existing laws that are inconsistent with fundamental rights void from the outset or for every purpose. Instead, the provision declares that existing laws are void only to the extent of their inconsistency with fundamental rights, and they remain effective for all other purposes.

In this case the Court explained that Article 13(1) did not nullify an entire law simply because some of its provisions conflicted with fundamental rights. Instead, the provision rendered only those parts of an existing law that were inconsistent with the guaranteed rights ineffective to the extent of the inconsistency. The Court emphasized that Article 13(1) should not be read as erasing the whole operation of the inconsistent statutes or removing them completely from the statute book. Its effect was distinguished from the consequence of a temporary statute expiring or a later statute expressly repealing an earlier one. Rather, Article 13(1) operated only to make the inconsistent portions of an existing law nugatory and without legal force in relation to the exercise of fundamental rights after the Constitution commenced. Although the question before the earlier decision differed from the present appeal, the Court held that the principle articulated earlier remained applicable. The term “void” in Article 13(1) was therefore understood, in the language of American jurists, as “relatively void.” Consequently, a judicial declaration that a statute was void under Article 13(1) did not amount to an amendment of the statute; it merely made the law unenforceable. On that basis, the Court concluded that the earlier decision of the State of Bombay and Another v. F.N. Balsara could not be construed to place medicinal preparations outside the scope of Section 13(b). The Court agreed with the Bombay High Court judges, albeit for different reasons, that the burden of proving that the substance consumed was a medicinal preparation rested upon the appellant. The appellant’s counsel further argued that, even if that burden lay on the appellant, the evidence showed it had been discharged because the examining doctor, who attended the appellant at 11:30 p.m. on the day of the incident, testified that the appellant’s speech was coherent, he could walk in a straight line, the odor of alcohol could be explained by oxidation, and the conjunctival condition of his eyes could be attributed to street dust. It was submitted that, where the prosecution’s evidence failed to eliminate the possibility of the defence, the prosecution had not satisfied its burden under Section 105 of the Evidence Act, and reliance was placed on the principle in Woolmington v. Director of Public Prosecutions and on Indian precedents such as Emperor v. U. Damapala and Parbhoo v. Emperor. Respondent counsel countered by citing Government of Bombay v. Sakur. The Court was asked to determine whether, assuming the burden lay on the appellant, the conclusion of the lower judges that the burden had not been discharged was supported by the evidence.

In this case the Court observed that the conclusion of the lower Judges that the burden of proof had not been discharged was a reasonable finding and, therefore, could not be disturbed by an appeal under article 136. It was pointed out that the appellant himself had not presented any evidence to support his plea. The Court noted that if the material produced by the prosecution contained facts that could have supported the defence, the appellant could have relied on those facts without having to adduce independent evidence, but no such facts were drawn out. The learned Judges of the lower Court were praised for approaching the matter from the correct standpoint and for examining the whole evidence to determine whether the defence was reasonably probable. They held that the appellant’s ability to give coherent answers and to walk in a straight line only indicated that he was not intoxicated at that moment; it did not prove that he had not consumed liquor. The Judges further observed that the appellant might have informed both the sub‑inspector and the examining doctor that he had taken medicine, which would have enabled the police to check whether a medicine bottle was present at his residence at that time. The Court accepted the view that the burden lay on the appellant and affirmed that the finding of non‑discharge of that burden was not open to attack. It was also argued that the trial magistrate’s acquittal created a presumption of innocence favouring the accused and that there were no compelling reasons for the appellate Court to reverse that acquittal. However, the trial Court’s decision was based on the premise that the prosecution bore the burden of proving that the accused had not taken a medicinal preparation, and when the learned Judges differed from that premise they were required to reassess the evidence afresh and decide whether the appellant had met the burden; their determination was not affected by any misdirection. Consequently, the conviction of the appellant under section 66(b) of the Bombay Prohibition Act was upheld. Regarding the sentence of one month’s imprisonment, it was noted that the appellant had already served twenty‑two days, and the interests of justice did not demand further incarceration. The Court therefore reduced the sentence to the period already served. Subject to this modification, the appeal was dismissed, the bail bond was cancelled, and the sentence was reduced accordingly.

The Court noted that the judgments previously rendered under article 137 of the Constitution by the original Bench consisting of Justices Bhagwati, Jagannadhadas and Venkatarama Ayyar were ordered on 28 April 1954 to be referred to a larger Constitution Bench for further opinion. By an order pronounced by Justice Bhagwati, the Court granted a review of those judgments and reopened the matter so that the constitutional question raised therein could be examined by a larger Bench. Pursuant to the proviso to article 145 of the Constitution, the Court formulated a specific question to be answered by the Constitution Bench. The question was: “What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void under article 13(1) of the Constitution, insofar as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution?” The order further provided that after receiving the opinion of the Constitution Bench, the case would be taken up again for further consideration.

The Constitution Bench, headed by Chief Justice Mehr Chand Mahajan and comprising Justices Mukherjea, S. R. Das, Vivian Bose and Ghulam Hasan, delivered its opinion on 23 September 1954. The Bench reiterated the reference made under article 145(3) of the Constitution, stating the same question concerning the effect of the earlier declaration in The State of Bombay and Another v. F. N. Balsara. The Bench then set out the factual backdrop that led to the reference. Shri Pesikaka, who was the appellant, was serving at that time as the Regional Transport Officer for the Bombay Region. On 29 May 1951, at approximately 9‑30 p.m., while travelling in his jeep toward the Colaba Bus Stand, he struck and knocked down three persons. He was subsequently arrested by the police, taken first to the police station and then to St. George’s Hospital for medical examination. The examining doctor observed that the appellant’s breath had an odour of alcohol, his conjunctiva were congested, his pupils were semi‑dilated and reactive to light, and his speech was coherent. Despite these signs, the doctor noted that the appellant was able to maintain his balance and walk in a straight line. In the doctor’s opinion, although the appellant had apparently consumed alcohol in some form, he did not appear to be under its active influence at the time of examination. On the basis of these facts, the appellant was prosecuted for offences under section 338 of the Indian Penal Code, which deals with rash driving, as well as for an offence under section 66(b) of the Bombay Prohibition Act.

In his defence, the appellant asserted that he had taken a medicinal preparation known as B.G. Phos and that he had not consumed any liquor. He stated that on the night in question, at about nine or nine‑fifteen in the evening after dinner, he drank a dose of B.G. Phos, which, according to its formula, contained seventeen per cent alcohol. The learned Presidency Magistrate acquitted the appellant on the ground that the prosecution had failed to establish his guilt under either of the sections under which he was charged. Regarding the offence under section 66(b) of the Bombay Prohibition Act, the Magistrate observed that certain medicinal preparations were permitted by law and that there was no satisfactory evidence to show that the appellant had not consumed those tonics, but had instead taken only liquor for which a permit was required.

The State of Bombay appealed against the order of acquittal. The High Court affirmed the acquittal in respect of the charge under section 338 of the Indian Penal Code, but it reversed the order of acquittal on the charge under section 66(b) of the Bombay Prohibition Act. In doing so the High Court followed a decision of its own Division Bench in Rangrao Bala Mane v. The State, where it had been held that once the prosecution proved that a person had drunk or consumed liquor without a permit, the burden shifted to that person to demonstrate that the liquor consumed was not prohibited liquor but rather a form of alcohol or liquor that the law allowed, such as medicated alcohol. Applying that principle to the present case, the High Court concluded that the appellant had failed to establish any circumstances from which the Court could infer that the liquor he had consumed was exempt from the operation of the Bombay Prohibition Act. Consequently, the appellant was sentenced to one month’s rigorous imprisonment and was ordered to pay a fine of five hundred rupees.

An appeal against this order was admitted by this Court by special leave and was heard by a Bench consisting of Bhagwati, Jagannadhadas and Venkatarama Ayyar Judges on 19 February 1954. The learned Judges were unable to reach a unanimous decision and expressed differing opinions. Bhagwati J. was inclined to allow the appeal and to set aside the conviction. He opined that the onus rested on the prosecution to prove that the liquor consumed by the appellant was prohibited liquor within the meaning of section 13(b) of the Act, and that the prosecution had failed to meet that burden. In his view, this outcome followed from the declaration of unconstitutionality of a portion of section 13(b) by this Court in The State of Bombay and Another v. F.N. Balsara. Venkatarama Ayyar dissented from Bhagwati J.’s position. He maintained that the decision in The State of Bombay and Another v. F.N. Balsara could not be construed as removing medicinal preparations from the scope of section 13(b); rather, its effect was merely to render that part of the section unenforceable. Accordingly, he argued that the burden rested on the accused to establish the plea of unconstitutionality, and that this could not be deemed proved unless all the elements necessary to sustain such a plea were demonstrated. Therefore, the accused had to prove as a fact that what he had consumed was a medicinal preparation. On the merits, Venkatarama Ayyar held that the accused had failed to discharge the burden that rested on him, and consequently the conviction of the appellant by the High Court should be upheld. He concluded his reasoning by stating that the decision…

The Court held that the judgment in The State of Bombay and Another v. F. N. Balsara could not be said to remove medicinal preparations from the operation of section 13(b). It observed that the effect of that decision was merely to make that portion of the section unenforceable, and therefore the burden remained on the accused to prove the plea of unconstitutionality. The Court further explained that such a plea could not succeed unless the accused established every element required to sustain it, including the factual finding that what he had consumed was a medicinal preparation. On the merits, the Court found that the accused had failed to meet this burden, and consequently the conviction affirmed by the High Court was upheld.

Justice Jagannadhadas concurred with the result reached by Justice Venkatarama Ayyar, but for different reasons. He was of the opinion that the only way to give full effect to the decision in The State of Bombay and Another v. F. N. Balsara was to insert an appropriate exception or proviso into section 13(b) in light of that decision. He noted that the Balsara case did not introduce a new definition or rewrite section 13(b); rather, it left the section intact while treating the consumption of liquid or medicinal preparations containing alcohol as beyond its ambit, thereby effectively engrafting an exception onto section 13(b). On this view, the Court held that the onus remained on the accused to demonstrate that his case fell within the newly created exception, and he had again failed to discharge that burden.

Accordingly, following the majority view, the Court confirmed the appellant’s conviction under section 66(b) of the Bombay Prohibition Act, dismissed the appeal, and reduced the sentence to the portion already served. After a petition for review was presented, the Judges granted the review on 26 April 1954 and reopened the matter so that they could obtain the opinion of the Constitution Bench on the constitutional question previously formulated. For a proper appreciation of that question, the Court set out what it had decided in The State of Bombay and Another v. F. N. Balsara. In that earlier case, the constitutional validity of the Bombay Prohibition Act (XXV of 1949) had been challenged on several grounds. The challenge largely failed, and the Act was upheld except for a few provisions declared invalid. Among those, clause (b) of section 13, insofar as it affected the consumption or use of medicinal and toilet preparations containing alcohol, was held invalid. Section 2(24) of the Act defined “liquor” to include spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol. Section 13(b) prohibited the use

The Court explained that section 66(b) of the Bombay Prohibition Act was the penal provision which prescribed punishment for anyone who, in violation of the Act, consumed or used any intoxicant. The appellant had been indicted under this provision for having used or consumed liquor whose use was prohibited by section 13(b). The Court then referred to the earlier decision in The State of Bombay and Another v. F. N. Balsara, where the part of section 13 that brought every liquid containing alcohol within its scope was held to be invalid. Consequently, although the remainder of the section remained in force for prohibited liquor that existed before the Constitution came into operation and for non‑citizens, the portion of the section that applied to citizens had been declared void and therefore ceased to have any legal effect. The question that arose for the Court was what consequence this partial invalidity of section 13(b) had for a citizen who was prosecuted under section 66(b) for a breach that occurred after the Constitution became operative. The Court held that, because clause (b) of section 13 was declared void under article 13(1) of the Constitution insofar as it covered the consumption or use of liquid medicinal or toilet preparations containing alcohol, that portion of section 13(b) became inoperative, ineffective and unenforceable. The voided part possessed no legal force with respect to citizens and could not be regarded as valid law for determining their rights. In effect, the reach of section 13(b) was narrowed to the part that remained valid and enforceable against citizens, and any reference to the struck‑down portion could not be taken into account in a prosecution for violation of the section. Accordingly, in a prosecution against an Indian citizen under section 13(b), the offence could be established only if it was shown that the person had used or consumed liquor or an intoxicant that fell within the portion of the section that was still declared valid and enforceable, and not the part that had been declared unenforceable. The Court emphasized that the invalid portion had no relevance to the enquiry because it had no legal effect. Thus, unless the prosecution proved a breach of a provision that was legally enforceable and valid, the case could not succeed. No burden was placed on the accused to demonstrate that his conduct fell within the unenforceable part of the section. The Court further observed that the High Court had erred by shifting the onus onto the accused to prove that the liquor he had consumed was covered by the voided portion of the provision.

In this case, the Court observed that the trial court had relied solely on the accused’s odor of alcohol to infer that he had consumed liquor that could be taken without a permit. The Court held that this approach was incorrect. It explained that the mere fact that a person charged under section 66(b) of the Bombay Prohibition Act smelled of alcohol did not, by itself, establish guilt; the circumstance was neutral because it could be consistent with either innocence or guilt. The Court noted that the odor might have arisen because the accused had violated the enforceable portion of section 13(b) of the Prohibition Act, or it might have resulted from the consumption of alcohol that fell within the portion of the section that had been declared unenforceable and inoperative. Consequently, the burden of proof rested on the prosecution to demonstrate that the alcohol to which the accused’s odor was attributed belonged to the category of prohibited alcohols. This burden could not be satisfied simply by showing that the accused smelled of alcohol. The Court further explained that the extent of the prosecution’s burden might be light or heavy depending on the facts of each case; the intensity of the odor could itself indicate whether the alcohol was of a permissible variety. The Court also mentioned that expert testimony could show that the consumption of small quantities of medicinal or other permitted preparations might not produce a detectable smell or a condition amounting to drunkenness. Ultimately, the Court said that the question of whether the accused had consumed prohibited alcohol was a factual issue to be decided on the evidence in each case. While the accused was permitted to prove in his defence that the substance he had taken was not prohibited alcohol, the Court emphasized that a failure to establish this defence could not lead to conviction unless the prosecution had proved beyond doubt that the accused had violated the enforceable part of section 13(b), which alone constituted an offence under section 66 of the Bombay Prohibition Act. The Court then turned to the interpretation of the word “void” in article 13(1) of the Constitution. It stated that the meaning of “void” was no longer to be understood as “repeal” in the sense of removing a statute entirely from the books, as had been argued by the minority in Kesava Madhava Menon v. The State of Bombay. The majority in that case had held that “void” applicable to existing laws did not eradicate them from the statute book or render them void ab initio, because article 13 was not given retrospective effect. Instead, after the Constitution came into force, article 13(1) rendered repugnant laws null, ineffective and devoid of any legal force. This reasoning formed the basis of the Court’s present opinion.

In the judgment which represented the majority view, the Court observed that the American rule, which declares a statute void from its inception when it conflicts with the Constitution, does not apply to situations involving obligations that were incurred or rights that accrued under an existing law that was constitutional when it was enacted. However, the Court held that any law enacted after 26 January 1950 that is repugnant to the Constitution must be treated in India in the same way as in the United States, meaning that such a law is void from its birth. Consequently, the portion of an existing statutory provision that is found to be unconstitutional ceases to be law and is regarded as null and void. For the purpose of determining the rights and obligations of citizens, the void portion must be considered as having been obliterated for all practical purposes, even though the wording may remain on the statute book. The Court noted that the surviving text may still be relevant when questions arise concerning rights and obligations that were created before 26 January 1950, or when assessing the rights of persons who were not entitled to fundamental rights under the Constitution. In this context, the Court rejected the introduction of the term “relatively void,” a phrase coined by American judges, because the Indian Constitution is framed in different language and its implications are not readily applicable here. The Court also declined to endorse the opinion expressed by a learned colleague that a declaration of unconstitutionality arising from a lack of legislative power is distinct from a declaration based on the infringement of fundamental rights. The Court considered it incorrect to suggest that the provisions of Part III of the Constitution merely serve as a check on legislative exercise. It affirmed the axiom that when a State’s law‑making authority is limited by a written set of fundamental rights, any statute that contravenes those rights exceeds legislative competence and is therefore a nullity. Both categories of unconstitutionality, whether based on the absence of legislative power or on the abridgement of fundamental rights, attack the same source of authority and thus there is no substantive distinction between them; they are merely two aspects of the same deficiency of legislative power. The legislative authority of Parliament and the State Legislatures, conferred by Articles 245 and 246 of the Constitution, is consequently curtailed by the fundamental‑rights chapter. A reference to Articles 13(2), 245 and 246 is sufficient to demonstrate that neither Parliament nor a State Legislature possesses the competence to enact a law that conflicts with Part III after the Constitution came into force. Article 13(2) reads: “The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law made in contravention …”

The Court explained that article 13(2) of the Constitution states: “The State shall not make any law which takes away or abridges; the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” This provision was described as a clear and unequivocal command that the State may not enact legislation that conflicts with Part III of the Constitution. The power granted to the Parliament and the State Legislatures by articles 245 and 246 to make laws on various subjects was held to be qualified by the prohibition contained in article 13(2). Consequently, any legislative authority could be exercised only within the limits imposed by article 13(2). The Court noted that in the earlier decision of Kesava Madhava Menon v. State of Bombay there was unanimity between the majority and the minority judges on the interpretation of article 13(2). The only disagreement in that case concerned the construction of article 13(1), where some judges expressed the view that article 13(1) could not retrospectively invalidate laws that had been valid when they were enacted under the Constitution then in force.

The Court further held that it could not accept the proposition that, in a criminal prosecution, an accused person could waive his constitutional rights and thereby permit a conviction. Referring to Cooley’s Constitutional Limitations, volume I, page 371, the Court reiterated the principle that while a party may consent to waive rights relating to property, the trial and punishment for public offences are not matters that can be surrendered by individual consent or agreement. The Court observed that the doctrine of waiver, as articulated by some American judges in the context of the United States Constitution, could not be imported into the Indian constitutional framework without a more extensive discussion. The Attorney‑General, when questioned about this doctrine, did not express enthusiasm for its adoption. Although the Court did not finally pronounce on the issue, it remained unconvinced that the waiver theory had any relevance for interpreting the fundamental rights guaranteed by Part III of the Constitution. The Court emphasized that fundamental rights flow from the Preamble’s declaration that the people of India have resolved to constitute India as a sovereign democratic republic and to secure justice, liberty of thought, expression, belief, faith and worship, and equality of status and opportunity for all citizens. These rights were not inserted merely for individual benefit but as a matter of public policy; therefore, the waiver doctrine could not apply to statutory provisions enacted as part of constitutional policy. The Court cited articles 15(1), 20 and 21 to illustrate that a citizen cannot obtain discrimination by inviting the State to discriminate, nor can he obtain conviction by relinquishing the protection afforded by articles 20 and 21. The Attorney‑General argued that the correct approach was that, given a strong presumption in favour of the constitutionality of a statute, the burden lay on those challenging the statute to establish its invalidity.

In this case the Court observed that the law‑making power ordinarily carries a strong presumption that a statute is constitutional, and therefore the burden of proving that a statute is unconstitutional rests on the party who challenges it. Accordingly, the appellant was required to demonstrate that the statute in question was unconstitutional; without establishing the factual basis for the constitutional invalidity of the conviction, the appellant could not obtain relief. The Court rejected this approach as an improper method of deciding criminal matters. It noted that a part of section 13(b) of the Bombay Prohibition Act had been declared unconstitutional by this Court, and that once such a declaration is made the offending portion of the section loses all legal effect in the adjudication of cases involving citizens. The invalidated provision must be treated as null and void for the purpose of determining guilt. The Court further pointed to Article 141 of the Constitution, which provides that any decision of the Supreme Court is binding on every court within the territory of India. In light of this clear constitutional rule, the Court held that the American doctrine described by Willoughby, which contends that a declaration of unconstitutionality affects only the parties before the court and does not extinguish the statute itself, has no application in India. The Court explained that once a statute is declared void under Article 13(1) or 13(2) by this Court, that declaration acquires the force of law, and the statute so struck down ceases to exist as law for persons whose fundamental rights would otherwise be infringed. Because the United States lacks an equivalent statutory provision, the American doctrine cannot be applied here. In the Indian legal system, when a law is struck down as unconstitutional, no court may give any effect to that law, and an accused person is not required to prove the law’s unconstitutionality anew in each case. The judiciary is not empowered to examine a provision that has already been declared void; consequently, the burden does not fall on the accused to establish again that the law is unconstitutional. The Court must consider only the current law of the land and convict an accused only when he has breached that law. The judgment also referenced the view of Jagannadhadas J., who argued that the proper way to give effect to the earlier decision of the State of Bombay was…

In this case the Court observed that the earlier decision in The State of Bombay and Another v. F. N. Balsara, which had attempted to introduce an exception or proviso to section 13(b) of the Bombay Prohibition Act, was based on an incorrect approach. The Court reiterated that a judicial body does not possess the authority to rewrite a statutory provision; the language of the section must remain intact. Consequently, the Court held that it could not graft an exception or proviso onto section 13(b). Moreover, the Court explained that unless there is power to enact a law that conflicts with the guarantee of fundamental rights contained in Part III of the Constitution, there can be no power to introduce such an exception. An exception can only be inserted to exclude from the substantive part of a section matters that would otherwise be covered by that section. However, when the legislature lacks competence to enact the proposed exception, it likewise lacks competence to enact the exception itself. The State therefore has no authority to create a law that abridges fundamental rights, and it cannot carve out an exception from a provision that is itself beyond its power to make. For these reasons, the Court found it untenable to treat the part of section 13(b) declared void in the earlier cases as a valid exception and to apply the rule of section 105 of the Evidence Act to the appellant. The proper method, the Court concluded, was to disregard the portion of the section that had been held void and to examine whether the prosecution had successfully proved the offence on the remaining valid portion of the statute. Accordingly, the opinion in this matter was sent back to the bench that originally heard the appeal.

Justice Das expressed a dissenting view, stating that he differed from the majority opinion delivered by the Chief Justice. He undertook to address the question referred to the Constitution Bench and to outline briefly the reasons for his position. He began by referring to the relevant statutory provisions. The appellant had been charged under section 13 read with section 66(b) of the Bombay Prohibition Act, 1949 (Act XXV of 1949). The penal portion of section 66(b) provides that any person who, in contravention of the Act, consumes, uses, possesses or transports any intoxicant or hemp shall be punished on conviction. The definition of “intoxicant” in section 2(22) includes any liquor, intoxicating drug, opium, or any other substance that the State Government may declare to be an intoxicant by notification in the Official Gazette. Thus, the consumption or use of “liquor” falls within the mischief of this provision. The prosecution relied on section 13, located in Chapter III titled “Prohibitions,” to establish that the appellant’s conduct was in contravention of the Act. Section 13 itself reads, in part, that no person shall consume or use liquor. By citing these provisions, the dissent highlighted the statutory framework that underpinned the charges against the appellant.

In the statutory provision, the penalty clause states that on conviction a person shall be punished … By reference to section 2(22) of the Act, the term “intoxicant” is defined as any liquor, intoxicating drug, opium or any other substance which the State Government, by notification in the Official Gazette, may declare to be an intoxicant. When this definition is applied, the consumption, use, possession or transport of “liquor” falls within the scope of the mischief that the provision seeks to prevent. It is also important to observe that the provision does not punish the mere consumption or use of liquor in the abstract; rather, it punishes such conduct when it occurs “in contravention of the provisions of this Act.” The charge against the appellant therefore relied on section 13, which was identified as the specific provision of the Act that had been violated by the appellant’s alleged consumption or use of liquor. Section 13 is located in Chapter III, titled “Prohibitions,” and reads in part: ‘13. No person shall— (b) consume or use liquor; …’. By reference to section 2(24), the term “liquor” is defined to include (a) spirits of wine, denatured spirits, wine, beer, toddy and all liquids consisting of or containing alcohol; and (b) any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act. Consequently, the prohibition contained in section 13(b) applies to the consumption or use of every substance that falls within the definition of “liquor.” Thus, any person who consumes or uses any of the enumerated substances is deemed to be contravening section 13(b), and such contravention makes the conduct an offence punishable under section 66(b). The Bombay Prohibition Act, which contains these provisions, came into force on 20 May 1949. All parties conceded that the Act was a valid piece of legislation, enacted within the legislative competence of the Bombay Legislative Assembly at that time. The Constitution of India became operative on 26 January 1950. Article 19(1)(f) of the Constitution guarantees every citizen the fundamental right to acquire, hold and dispose of property. However, sub‑clause (5) of the same article provides that nothing in clause (f) shall affect the operation of any existing law to the extent that the law imposes, or permits the State to impose, reasonable restrictions on the exercise of that right in the interest of the general public or for the protection of any Scheduled Tribe. The Bombay Prohibition Act, 1949, therefore qualified as an existing law under this provision. Accordingly, the right conferred by clause (f) cannot override the operation of the Act insofar as the Act imposes reasonable restrictions as contemplated by sub‑clause (5). If, on the other hand, the Act were to impose restrictions that are unreasonable, those restrictions would be inconsistent with the right guaranteed by article 19(1)(f) and, pursuant to article 13(1), would be void to the extent of such inconsistency.

It was held that the determination of whether the limitations imposed by an existing statute, or any part of that statute, on the fundamental rights of citizens were reasonable or unreasonable lay within the jurisdiction of the Court. The Court explained that when it found a restriction to be unreasonable, the offending portion of the statute became inconsistent with the right guaranteed under article 19(1)(f) and consequently, under article 13(1), that portion was rendered void. The voidness applied only to the extent of the inconsistency, meaning that the provision was not wholly invalid for all purposes or for all persons, but only to the degree that it conflicted with the exercise of the fundamental right. This principle formed the basis of the Court’s analysis in the matter before it.

The case involved a challenge to the Bombay Prohibition Act, 1949, brought by a petitioner who claimed Indian citizenship and sought a writ of mandamus against the State of Bombay and the Prohibition Commissioner. The petitioner requested that the respondents refrain from enforcing the provisions of the Act against him and that he be permitted to possess, consume, and use certain articles, specifically whisky, brandy, wine, beer, medicated wine, eau‑de‑colonne, lavender water, and medicinal preparations containing alcohol. The High Court in Bombay examined the petition, upheld some of the petitioner’s contentions, rejected others, and consequently declared certain provisions of the Act invalid while upholding the remainder. Both the State of Bombay and the petitioner obtained a certificate under article 132(1) of the Constitution and appealed to the Supreme Court. The Supreme Court delivered its judgment on 25 May 1951. In that judgment the Court held that, under entry 31 of List II of the Seventh Schedule to the Government of India Act, 1935, the Provinces possessed the authority to legislate on intoxicating liquors, covering their production, manufacture, possession, transport, purchase, and sale, and therefore the Bombay Legislature was competent to enact the Bombay Prohibition Act. The Court further observed that the term “liquor” as understood at the time of the 1935 Act encompassed not only alcoholic beverages that produce intoxication but also any liquids containing alcohol, rendering the definition in section 2(24) of the Act constitutionally valid. Finally, the Court concluded that the restrictions imposed by sections 12 and 13 of the Act on the possession, sale, use, and consumption of liquor did not constitute unreasonable restrictions on the fundamental right guaranteed by article 19(1)(f).

In this case the Court examined the provisions that prohibited the possession, sale, use and consumption of medicinal and toilet preparations containing alcohol. The Court held that those provisions were invalid only to the extent that they barred those particular articles, but it did not deem the provisions wholly void. The Court observed that the definition of “liquor” contained earlier categories—namely spirits of wine, methylated spirit, wine, beer and toddy—which were distinct and could be easily separated from the broader category described as “all liquors containing alcohol.” Moreover, the Court noted that the broad category of “all liquids consisting of or containing alcohol” could be further divided into sub‑categories, such as liquid medicinal and toilet preparations containing alcohol. Accordingly, the restrictions on possession, sale, use and consumption of the earlier listed categories, and of all liquids containing alcohol except for medicinal and toilet preparations, were found to be reasonable. As a result, the Court declared certain provisions of the Act invalid. Specifically, section 13(b) was declared invalid only “so far as it affects the consumption or use of such medicinal and toilet preparations containing alcohol.” The Court explained that this declaration was made pursuant to article 13(1) of the Constitution because the prohibition on consuming or using liquid medicinal or toilet preparations constituted an unreasonable restriction on the fundamental right of citizens to acquire, hold and dispose of property, where that property was the alcoholic medicinal or toilet preparation. By virtue of article 141 of the Constitution, the law declared by the Court became binding on every Court throughout India.

The offence for which the appellant was charged was alleged to have occurred on 29 May 1951, only four days after the Court had delivered its judgment in The State of Bombay and Another v F N Balsara. On 22 April 1952, the learned Presidency Magistrate acquitted the appellant, stating that the evidence did not conclusively show that the accused had consumed alcohol without a permit and that certain medicinal preparations were lawfully allowed. The Magistrate emphasized that satisfactory evidence was required to prove that the accused had not merely taken those tonics but had actually consumed liquor for which a permit was necessary. The State appealed this acquittal to the High Court. Relying on its earlier decision in Rangrao Bala, Mane v State, the High Court reversed the Magistrate’s order. Neither the Magistrate’s judgment nor the High Court’s judgment referred to the Court’s earlier decision in The State of Bombay and Another v F N Balsara. After obtaining special leave, the appellant appealed to this Court, and the appeal was scheduled for hearing before a Division Bench of this Court.

The case was heard by a Division Bench comprising Justices Bhagwati, Jagannadhadas and Venkatarama Ayyar. Justice Bhagwati first accepted, and did so in a manner that can be described as both clear and, with due respect, correct, the principle that the declaration made by this Court in The State of Bombay and Another v. F. N. Balsara was a judicial pronouncement. He explained that, although Article 141 of the Constitution obliges all courts in India to follow the law declared by this Court and makes such law the law of the land, the effect of that declaration was not to create a new statutory provision nor to modify or amend section 13(b) of the relevant Act. Having adopted that position, Justice Bhagwati logically and, again with respect, correctly rejected the contention that the outcome of the Balsara decision effectively introduced, not in wording but in practical effect, an exception or proviso to section 13(b). Accordingly, he held that the burden of proving that the facts of the appellant’s case fell within any such exception could not be placed on the appellant under section 105 of the Evidence Act. The learned judge then set out his observation that the sole consequence of the declaration was that the prohibition contained in section 13(b) was enforceable only with respect to the consumption or use of liquor that was validly prohibited. He listed those prohibited liquors as spirits of wine, methylated spirits, wine, beer, toddy and all non‑medicinal and non‑toilet liquid preparations that consist of or contain alcohol. In other words, the prohibition in section 13(b) could, in light of the Court’s declaration, refer only to the consumption or use of such validly prohibited liquor, and that was the only prohibition that could be enforced under both section 13(b) and the penal provision of section 66(b). Justice Bhagwati illustrated how the effect of the declaration could be worked out by offering several possible constructions of the provision, each essentially stating that no person shall consume or use spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, except that the prohibition does not extend to liquid medicinal or toilet preparations containing alcohol, nor to any non‑medicinal and non‑toilet liquid preparations containing alcohol. He questioned where the justification lay for interpreting the declaration as grafting an exception onto section 13(b) so as to trigger the operation of section 105 of the Evidence Act. Finally, he emphasized that when multiple interpretations are possible, the Court should prefer the interpretation that is favourable to the accused, rather than one that imposes an additional or special burden on him, and that any such burden should arise only from a clear and unequivocal statutory provision rather than from an indirect judicial construction.

The Court observed that any interpretation of the declaration should impose a burden on the accused only if it is expressly provided by clear and unequivocal language, and not by an indirect approach that creates an additional or special burden. The Court referred to the precedent in In re Kanakasabai Pillai for this principle. With due respect to the learned Judge, the Court noted that the methods suggested for determining the effect of the declaration essentially required accepting some form of amendment to section 13(b), even though the Judge had earlier indicated that the declaration did not alter or amend that section.

Justice Venkatarama Ayyar expressed the view that the judiciary does not possess a legislative function and that judicial decisions do not amend or add to a statute but merely interpret it and declare its validity. Accordingly, a judicial declaration that a statute or part of it is invalid means that the declared provision cannot have any legal effect in a court, but it does not remove the provision from the statute book. He further held that section 105 of the Evidence Act could not be applied because article 19(1)(f) could not be treated as an exception to section 13(b). His reasoning rested on the inclusive definition of “liquor” in section 2(24) of the Act, which had been held to fall within entry 31 of List II of the Seventh Schedule to the Government of India Act, 1935, and therefore valid. By that definition, “liquor” should have the same meaning in section 13(b). Under that reading, the offence was complete as soon as consumption or use of “liquor” so defined was proved. The defence that the consumed substance was a medicinal preparation containing alcohol, the Court said, was in effect a claim that the prohibition on liquid medicinal or toilet preparations containing alcohol violated the fundamental right under article 19(1)(f), and was therefore unconstitutional as declared by this Court. Justice Venkatarama Ayyar further emphasized that the burden of establishing unconstitutionality lay with those asserting it.

Justice Jagannadhadas expressed agreement with Justice Venkatarama Ayyar’s view, but noted that this aspect of the matter had not been fully argued. He therefore turned to the argument presented before the Court, which contended that the portion of section 13(b) declared invalid should be treated as removed from the Act, leaving the Act appropriately amended to the extent necessary. According to the learned Judge, this approach would imply that the word “liquor” was amended to mean “prohibited liquor” or that its meaning was limited accordingly. Justice Jagannadhadas could not accept this argument. He held that the decision in State of Bombay and Another v F. N. Balsara did not authorize the introduction of a new definition or a rewriting of the section; rather, it left the section intact and treated the consumption or use of liquid medicinal or toilet preparations containing alcohol as taken out of the ambit of the section because the prohibition was unconstitutional. Consequently, the Court rejected the notion that an implicit amendment to the wording of “liquor” could be inferred from the earlier decision.

In the earlier judgment of N. Balsara the Court did not introduce a fresh definition nor did it rewrite the provision, but it kept section 13(b) of the Bombay Prohibition Act, 1949, unchanged and treated the consumption or use of liquid medicinal or toilet preparations containing alcohol as being taken out of the reach of that provision because the prohibition contained in it was held to be unconstitutional. According to the learned judge, such an effect could be achieved only by inserting an appropriate exception or proviso into section 13(b). When the matter was heard before the Bench, Justice Bhagwati held that the appeal should be allowed, while Justices Jagannadhadas and Venkatarama Ayyar were in favour of dismissing the appeal. An application for review was subsequently filed on the ground that the judgments of those learned judges raised constitutional questions that lay beyond the jurisdiction of that Bench and could be decided only by a Constitution Bench. By an order dated 26 April 1954, made under the proviso to sub‑article (3) of article 145, the Bench referred the following question to the Constitution Bench for its opinion: “What is the effect of the declaration in The State of Bombay and Another v. F.N. Balsara (supra) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void under article 13(1) of the Constitution, insofar as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution?” The Court then considered the legal consequences of a judicial declaration that a statute is unconstitutional. Field J, in Norton v. Shelby County (118 U.S. 425; 30 L. Ed. 178), had stated that such a declaration renders the statute “no law” and that, for legal purposes, it must be treated as inoperative as if it had never been enacted. Cooley, in his work Constitutional Limitations (Vol. 1, p. 382), adopted the same dictum, asserting that a statute adjudged unconstitutional ceases to exist. The present Court was unable to accept this sweeping proposition. Even American textbook authors have suggested that Field J’s statement requires qualification (see Willoughby on the Constitution of the United States, Vol. 1, p. 11; Willis on Constitutional Law, p. 890). The observation was made that the dictum applied to statutes enacted after the commencement of the Constitution and found to be in violation of its provisions. It could not, however, be applied to a statute that was enacted before the Constitution came into force and was later declared unconstitutional. In such a circumstance it would be inappropriate to treat the statute as void for all purposes, including transactions that occurred before the Constitution’s commencement. The Bombay Prohibition Act was an existing law, and the declaration in The State of Bombay and Another v. F.N. Balsara therefore did not affect actions taken under the Act prior to the Constitution’s coming into operation.

In this case the Court observed that the earlier decision in F. N. Balsara (supra) did not affect any act that had been performed under the Bombay Act before the Constitution commenced, and that the decision did not declare the whole Act or even the whole of section 13(b) void. The Court explained that only the portion of section 13(b) which prohibited a citizen from consuming or using liquid medicinal or toilet preparations containing alcohol was held to be void. The remainder of the section continued to be enforceable against non‑citizens. Furthermore, the prohibition within the section that applied to the earlier categories of liquor—namely “spirits of wine, denatured spirits, wine, beer, toddy”—remained fully operative even against citizens. In addition, the ban on the consumption or use of “all liquids consisting of or containing alcohol” also remained in force against citizens, except to the extent that it barred them from using liquid medicinal or toilet preparations containing alcohol. The Court therefore held that the passages quoted from Cooley on Constitutional Limitations and the dictum of Field J. could not be applied to this situation, a view that the Court said was confirmed by its earlier judgment in Keshava Madhava Menon v. The State of Bombay (supra). The Court noted that the Bombay Act was an existing law and that the declaration made in F. N. Balsara was to be understood as being made under article 13(1) of the Constitution, which does not automatically render inconsistent existing laws void from the beginning or for all purposes. Accordingly, the Court interpreted the declaration to mean that the specific prohibition in section 13(b) against the consumption or use of liquid medicinal or toilet preparations containing alcohol imposed an unreasonable restriction on a citizen’s fundamental right under article 19(1)(f), and was therefore unconstitutional and void only to that extent. Consequently, that part of section 13(b) became ineffective and inapplicable to any citizen who consumed or used such preparations. The Court stressed that no part of the statute was erased, amended, or struck out, because it is not the function of the judiciary to alter legislative text. The judicial finding that a portion of the section was unconstitutional merely nullified that offending portion, rendering it ineffective against a citizen exercising his right to consume or use liquid medicinal or toilet preparations containing alcohol. In practical terms, the Court concluded that a citizen charged under section 66(b) read with section 13(b) could raise the defence that the specific prohibition was void with respect to his consumption or use of the liquid medicinal or toilet preparation containing alcohol.

In this case, the petitioner declared that he was a citizen of India who had consumed or used liquid medicinal or toilet preparations containing alcohol, and that he was entitled to do so under article 19(1)(f) of the Constitution. He relied on the Supreme Court’s decision in The State of Bombay and Another v. F. N. Balsara (supra), which held that, in such circumstances, the prohibition contained in section 13(b) was void as against a citizen who consumes or uses liquid medicinal or toilet preparations containing alcohol. The petitioner argued that if his plea were proved, it would provide a complete defence to the charge under section 66(b) read with section 13(b). He illustrated the situation by asking what should happen if a person is charged under those provisions, the prosecution proves that the accused has taken alcohol in some form as evidenced by a doctor, and no further facts are established by either side. He contended that, in that scenario, a conviction should necessarily follow unless the accused can rely on the declaration of law made in The State of Bombay and Another v. F. N. Balsara (supra). He further asserted that, to invoke the benefit of that declaration, the accused must first prove that he is a citizen, and that the burden of establishing citizenship lies on the accused.

The petitioner maintained that the burden does not stop at proving citizenship. He argued that the accused must also allege and prove that he has consumed or used liquid medicinal or toilet preparations containing alcohol, because only on the basis of such proof can the benefit of the declaration be claimed as a defence. He explained that the declaration rests on the principle that a citizen has a fundamental right to consume or use those preparations, and that section 13(b) imposes an unreasonable restriction on that right under article 19(1)(f). Consequently, the onus is on the accused to establish the specific circumstances in which the portion of section 13(b) that has been declared void does not apply to him. If the accused successfully demonstrates both his citizenship and his consumption or use of the liquid preparations, then, according to the petitioner, the declaration in The State of Bombay and Another v. F. N. Balsara (supra) establishes that the prohibition of section 13(b) and the penalty under section 66(b) are inapplicable to him because they conflict with his fundamental right. He warned against interpreting the judicial pronouncement as merely reading the statute “qua citizen” or narrowing the offence to exclude liquid medicinal or toilet preparations, emphasizing that such an approach would incorrectly suggest that the court had amended the statute.

The Court observed that to limit the prohibition solely to the earlier categories of liquor described in the definition would, in its view, amount to an implicit or explicit assertion that the judicial pronouncement had, to that extent, altered the statutory provision. To maintain that, after the declaration, the offence was confined only to the consumption or use of prohibited liquor would be to modify the definition of liquor itself, even though that definition had previously been upheld as valid. The Court reiterated that a judicial body does not possess the authority to change or amend a statute. Accordingly, the effect of the declaration issued by this Court in The State of Bombay and Another v. F. N. Balsara is not to remove, add to, or otherwise revise any part of the section. Rather, the declaration functions as a legal determination that, in a particular circumstance—namely, when a person consumes or uses liquid medicinal or toilet preparations that contain alcohol—a specific portion of section 13(b), which proscribes such consumption or use, becomes void with respect to a defined class of individuals, that class being citizens.

In practical terms, the declaration in The State of Bombay and Another v. F. N. Balsara furnishes a defence exclusively to a citizen who has actually consumed or used liquid medicinal or toilet preparations containing alcohol. Consequently, it is the responsibility of the accused, who seeks to exempt himself from the operation of the section by invoking the declaration, to demonstrate the factual situation or circumstances upon which that declaration is predicated. In other words, a person who challenges the constitutional validity of the section gains the benefit of the declaration as a matter of law, but must still establish, in each individual case, the facts that give rise to that defence. The Court answered the reference accordingly. It was strongly contended, both before the present Bench and the earlier Division Bench, that interpreting the declaration in this manner would contradict the well‑settled principle of criminal jurisprudence that the prosecution bears the burden of proving a charge, as it would shift the burden of proof onto the accused. This line of argument impressed Bhagwati J. and influenced the other members of the present Bench. Nonetheless, the Court noted that it is not uncommon in certain categories of cases or under particular circumstances for the onus of proving a defence to rest upon the accused. Section 105 of the Evidence Act provides such an example, and Section 114(a) of the same Act likewise places a burden on the accused. Likewise, Section 103 of this very Bombay Prohibition Act raises a very

Section 103 of the Bombay Prohibition Act, as noted, creates a very strong presumption of guilt and places upon the accused the burden of proving his innocence in the circumstances described. By contrast, Section 96 of the Indian Penal Code declares that “Nothing is an offence which is done in the exercise of the right of private defence.” No authority would argue that this provision obliges the prosecution to demonstrate that the acts forming the charge were not carried out in private defence. The clear purpose of Section 96 is to furnish the accused with a defensive right; if the accused can establish that he performed the acts in defence of his person or property and that those acts were reasonable given the facts, he thereby satisfies the defence requirement. The Court did not find it necessary to list further examples. It appeared to the Court that the judgment in State of Bombay and Another v. F. N. Balsara provides a citizen who has consumed or used liquid medicinal or toilet preparations containing alcohol with a defence against a charge under Section 66(b) read with Section 13(b) of the Bombay Prohibition Act. Nevertheless, the Court emphasized that it remains the accused’s responsibility to prove the factual basis upon which that legal declaration rests. The Court saw no difficulty in imposing this requirement because the relevant facts are within the personal knowledge of the accused. To adopt a contrary approach would disregard the established principle that a judicial declaration of invalidity does not repeal, alter, or amend the statutory provision. Consequently, the Court concluded that the declaration does not function as an amendment of the section and therefore, following the view expressed by Jagannadhadas J., the declaration could not be treated as having inserted an exception or proviso into Section 13(b). In reaching this conclusion, the Court found substantial agreement with the observations of Venkatarama Ayyar J. on that specific aspect of the case, while expressly reserving judgment on the remainder of his observations, especially those concerning a waiver of unconstitutionality, the notion that fundamental rights merely check legislative power, or the effect of the declaration under Article 13(1) being “relatively void.” The Court therefore refrained from commenting on those issues at this stage. The reference was answered in line with the majority opinion of the Constitution Bench. After the Constitution Bench’s opinion, an Order dated 24 September 1954 was issued by a Bench comprising Bhagwati, Jagannadhadas and Venkatarama Ayyar Judges, who had originally heard the appeal. Bhagwati J. explained that the Constitution Bench’s majority held that the prosecution bore the burden of proving that the alcohol alleged to have been smelled by the accused fell within the category of prohibited alcohols. The Court thereafter proceeded to hear the matter further.

The Court examined the response of the learned Attorney‑General when questioned as to whether the prosecution had satisfied the burden of proving that the alcohol in question fell within the statutory definition of prohibited alcohol. In his answer, the Attorney‑General frankly acknowledged that, upon review of the record and the material placed before the Court, it could not be asserted that the prosecution had met that evidential burden. His concession indicated that the evidence on file was insufficient to establish the requisite element of the offence, namely the classification of the alcohol as prohibited. Accordingly, the Court concluded that the legal requirement for the prosecution to discharge the onus had not been fulfilled. As a direct result of this finding, the Court ordered that the conviction of the appellant be set aside. The judgment further directed that any monetary penalty previously imposed on the appellant be returned, should the fine have already been paid. In sum, the conviction was quashed, the fine was to be refunded, and the appellant’s criminal record concerning this matter was cleared.