STATE OF BOMBAY Vs. F N BALSARA

JUDGEMENT

(1.) These appeals arise from the judgment and order of the High Court of Judicature at Bombay upon the application of one F. N. Balsara (hereinafter referred to as the petitioner), assailing the validity of certain specific provisions of the Bombay Prohibition Act, 1949 (Bombay Act No. XXV of 1949), as well as of the Act as whole. The petitioner, Claiming to be an Indian citizen, prayed to the High Court 'inter alia' for a writ of mandamus against the State of Bombay and the Prohibition Commissioner ordering them to forbear from enforcing against him the provisions of the Prohibition Act and for the issue of a writ of mandamus ordering them (1) to allow him to exercise his right to possess, consume and use certain articles, namely, whisky, brandy, wine, beer, medicated wine, eau-de-cologne, etc., and to import and export across the Customs frontier and to purchase, possess, consume and use any stock of foreign liquor, eau-de-cologne, lavender water, medicated wines and medicinal preparations containing alcohol, and (2) to forbear from interfering with his right to possess these articles and to take no steps or proceedings against him, penal or otherwise, under the Act. The petitioner also prayed for a similar order under S. 45, Specific Relief Act, against the respondents. The High Court agreeing with some of the petitioner's contentions and disagreeing with others, declared some of the provisions of the Act to be invalid and the rest to be valid. Both the State of Bombay and the petitioner being dissatisfied with the judgment of the High Court have appealed to this Court after obtaining a certificate from the High Court under Art. 132(1) of the Constitution.

(2.) The Act in question was passed by the Legislature of the Province of Bombay as it was constituted in 1949, and was published in the Bombay Govt. Gazette on 20-5-1949, and came into force on 16-6-1949. The Act consists of 148 sections with 2 schedules and is divided into 11 chapters. It is both an amending and consolidating Act and incorporates the provisions of the Bombay Abkari Act which it repeals and also those of the Bombay Opium and Molasses Acts and contains new provisions for putting into force the policy of prohibition which is one of the objects mentioned in the preamble of the Act. The most important provisions in Chapter I is the definition of 'liquor' which has been vigorously assailed as being too wide and therefore beyond the powers of the Provincial Legislature. Chapter II relates to establishment and is not relevant to the present appeal. Chap. III, which contains a number of prohibitions in regard to liquor as defined in the Act, is said to enact sweeping provisions which are liable to be assailed Ss. 12 and 13 and the relevant provisions of Ss. 23 and 24 in this Chapter may be quoted:

(3.) The High Court accepted the contention of the petitioner that the definition of 'liquor' in the Act was too wide and went beyond the power vested in the legislature to legislate with regard to intoxicating liquors under item 31 of List II. It also held the following sections to be invalid : Ss. 23 (a) and 24 (1) (a) so far as they refer to "commending"; S. 23 (b); 24 (1) (b) so far as it efers to "evasion"; S. 39; S. 52; S.53 in part; S. 136 (1) ; S.136 (2) (b), (c), (e), (f); and S.139 (c). The High Court also held R. 67 at the Bombay Foreign Liquor Rules and notifications Nos. 10484/45 (c) and 2843/49 (a), dated 30-3-1950, invalid. It further held that the word "addict," in the medical certificate was not warranted by the provisions of the Act.