FRAM NUSSERVANJI BALSARA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is a petition by one Pram Nusserwanji Balsara who is a citizen of India, He has in his possession one bottle of whisky, one bottle of brandy (both partly used), one bottle of wine, two bottles of beer, one bottle of medicated wine, one bottle of eau-de-cologne, one bottle of lavender water, and some bottles of medicinal preparations. He alleges that be has been accustomed to drink and consume foreign liquor in a moderate manner for several years past and is also accustomed to the use of eau-de-cologne and lavender water. He challenges the Bombay Prohibition Act, 1949, as being ultra vires of the State Legislature and being also void as contravening several of the fundamental rights guaranteed to the citizen by the Indian Constitution. Originally he sought by his petition a writ of mandamus against the State of Bombay, which is respondent 1, and the Prohibition Commissioner, who is respondent 2, ordering these respondents to forbear from enforcing against him the provisions of the Bombay Prohibition Act. He also sought for a writ of mandamus or an order under Section 45, Specific Belief Act, ordering the respondents to allow the petitioner to exercise his right to possess, consume or use the articles which have been mentioned before. It was realised by the petitioner in the course of the argument of this petition that even if he were to succeed, reliefs of the nature asked for by him may not be available to him. He therefore sought for an amendment of the petition. The amendment was opposed by the Advocate-General on behalf of the respondents. We gave him leave to amend as we took the view that by this amendment the petitioner was in no way altering his cause of action. He relied on the same averments as were contained in the original petition and all that he asked for was reliefs different from those which he had originally asked. We will consider the nature of the reliefs, and whether he is entitled to any of them, later.

(2.) THE impugned Act is Act XXV [25] of 1949 passed by the Bombay Provincial Legislature as it then was. It is both an amending and consolidating Act and it contains provisions for the promotion and enforcement of and carrying into effect the policy of prohibition and also the Abkari law. The Abkari Act which was on the statute book was repealed by this Act and its provisions were incorporated into this measure. It also contains naw provisions putting into force the policy of prohibition. Chapter I contains definitions of various expressions used in the statute and the material ones are those set out in Section 2 (225 and Section 2 (24 ). "intoxicant" is defined as

(3.) IT is contended by Mr. Engineer that the Act, to the extent that it makes provisions with regard to use, consumption and possession of liquids which may consist of or contain alcohol, but which are not intoxicating liquors, was beyond the competence of the Provincial Legislature to enact. The Act was passed under the Government of India Act of 1935 and we have to turn to the provisions of that Act in order to determine what was the legislative competence of the Provincial Councils set up under that Act, The legislative competence is to be decided with reference to List II and List in in Schedule VII of the Act. Now, in construing the various entire a in this List, certain basic have to be borne in mind. The Government of India Act gave to India a Federal Constitution with well defined legislative powers for the Centre and the Provinces and also a field of legislation with concurrent powers for both. The Provincial Legislature within the ambit of its own powers was sovereign and the powers conferred were to be construed as plenary powers. As far as possible an attempt was to be made to reconcile the various entries in the List, and in interpreting any particular entry the widest import was to be given to the language used by Parliament. The attempt of Parliament was to exhaust; all spheres of legislative activity by enumerating all conceivable topics of legislation in the three Lists. It was the duty of the Court to make every effort, when a piece of legislation came up before it for consideration, to find that power to legislate bad been conferred upon the appropriate Legislature under one or the other entry in one of the three Lists. Section 104 which dealt with residual powers of legislation was rarely to be resorted to. The Court had to lean towards a construction which supported the legislative competence of the Legislature rather than one which assumed that Parliament had overlooked a particular topic of legislation and had left it to be dealt with by the Governor-General under B. 104. Further, it was not necessary that the impugned legislation should be referable to one specific entry in the List. It was sufficient if legislative competence could be deduced from the relevant List or Lists taken as a whole.