STATE OF MAHARASHTRA Vs. SHESHAPPA DUDHAPPA TAMBADE

JUDGEMENT

(1.) A rather interesting question relating to the validity of Section 129a of the Bombay Prohibition Act, 1949 (Bombay Act XXV of 1949), arises in this reference made to this Court by the joint Civil Judge and Judicial Magistrate First Class, Islampur, under Section 432 of the Criminal Procedure Code. One Sheshappa Dudhappa Tambad of Chikorde in the Sangli District is charged with having committed offences under Section 85 (1), (2) and (3) of the Bom-bay Prohibition Act and Section 186 of the Indian Penal Code. The allegation against the accused was that he was found drunk in a public place, incapable of taking care of himself and behaved in a disorderly manner under the influence of drink and had, as such committed offences under Section 85 (1) (2) and (3) of the Act. The other charge against the accused was that he voluntarily obstructed a public servant in the discharge of his public functions, inasmuch as, he offered resistance to the medical officer before whom he was produced and refused to allow the medical officer to collect his blood. Section 129-A empowers any Prohibition Officer duly empowered in this behalf by the State Government or any police officer to produce a person before a registered medical practitioner (authorised by general or special order by the State Government in this behalf), for the purpose of medical examination or collection of blood, if in the investigation of any offence under the Act, he has reasonable ground for believing that the person has consumed an intoxicant or for the procuring of evidence thereof it is necessary that his body be medically examined, or that his blood be collected for being tested for determining the percentage of alcohol therein. The section enables the Prohibition Officer or the police officer to request the medical practitioner to furnish a certificate on his finding whether such person has consumed any intoxicant and to forward the blood collected by him for test to the Chemical Examiner or Assistant Chemical Examiner to Government, or to such other officer as the State Government may appoint in this behalf. On such request being made by the Prohibition Officer or the police officer, the medical practitioner, before whom a person has been produced, is required to examine the person and collect and forward the blood of such person to the Chemical Examiner or Assistant Chemical Examiner to Government and to furnish to the officer, by whom such person has been produced, a certificate containing the result of his examination. The Chemical Examiner or Assistant Chemical Examiner to Government is required to certify the result of the test of the blood forwarded to him, stating therein, in the prescribed form, the percentage of alcohol, and such other particulars as may be necessary or relevant. If any person offers resistance to his production before a registered medical practitioner or on his production before such practitioner, offers resistance to the examination of his body or to the collection of his blood, the section also empowers the use of all means reasonably necessary to secure the production of such person or the examination of his body or the collection, of blood necessary for the test. Resistance to production before a registered medical practitioner or to the examination of the body or to the collection of blood is deemed to be an offence under Section 186 of the Indian Penal Code. The accused in this case was produced before the medical officer and it appears that he allowed himself to be examined by the medical officer. The allegation, however, is that he resisted when the medical officer proceeded to collect his blood. That is how he was charged with having committed an offence under Section 186, I. P. C. Before the learned Magistrate, Section 129-A was challenged on two grounds. One ground was that the section was ultra vires Article 31 (2) of the Constitution inasmuch as Section 129-A or any other provision of the Act, did not provide payment of compensation for the blood collected for the test. In this connection, it seems to have been contended before him that blood was property and the collection of blood for the test under Section 129-A was acquisition of property without payment of compensation. The second ground was that the section was also ultra vires Article 21 of the Constitution inasmuch as it made a serious encroachment on the right to personal liberty. The learned Magistrate was of the opinion that the section was invalid or inoperative on the ground of its invalidity under the Constitution and since it involved a question as to the validity of a section in the Act, the determination of which was necessary for the disposal of the case, he has referred that question for the decision of this Court.

(2.) THE Bombay Prohibition Act, 1949, came on the Statute Book on the 2oth of May 1949. Since its enactment, it has undergone a number of amendments which were necessitated either with a view to making the policy underlying it effective or with a view to bringing it in line with the decisions of Courts on the question of the validity of some of its sections in the light of the provisions of the Constitution. Section 129-A, was introduced in the Act, by Bom. Act 12 of 1959 and was a sequel to the decision of this Court in Deoman Shamji v. State, 61 Bom LR 30: (AIR 1959 Bom 284 ). In that case the accused had resisted by force the attempt of certain police officers to take him forcibly to a doctor for medical examination and he was charged for having committed an offence under Section 353, I. P. C. At that time there was no legal provision justifying the use of force by police officers to take the accused against his will to a doctor for medical examination. It also seems to have been argued in that case that the act of the police officer in forcibly taking the accused to the doctor for medical examination amounted to the exercise of testimonial compulsion in violation of Clause (3) of Article 20 of the Constitution. Section 353, I. P. C. provides punishment for the offence of assaulting or using criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant. Tarkunde, J. who delivered the judgment of the Division Bench observed that there was no statutory provision which rendered lawful the coercion exercised or threatened by the public servant in order that the accused may be medically examined and inasmuch as the public servant in order that the accused may be medically examined and inasmuch as the public servant was not doing his duty in taking the accused against his will to the doctor, the accused could not be convicted under Section 353, I. P. C. In order, presumably, to introduce such a statutory provision empowering a public servant to take a person for medical examination or collection of blood that Section 129-A was introduced in the Statute. On the other ground which was urged before the Division Bench that the act of the public servant amounted to the exercise of testimonial compulsion in violation of Clause (3) of Article 20 of the Constitution, it was observed that it was not necessary to decide upon the soundness of that contention and that the question may fall for determination if the Legislature made a provision for compulsory medical examination. The latter question, however, did arise in State v. Balwant Ganpati, 63 Bom LR 87, and it was held that Section 120-A of the Act, did not violate the protection against compulsory self-incrimination guaranteed by Article 20 (3) of the Constitution and was, therefore, valid. Arguments with regard to the propriety or otherwise of 'the very considerable limitations on personal liberty, which have been imposed by the section, appear to have been advanced, but those considerations were "rigidly excluded from consideration" by the Court. Thus, the contention that the section is ultra vires Article 31 (2) or Article 21 of the Constitution was riot dealt with and decided in these previous cases and have now arisen for our consideration.

(3.) IT would be convenient to deal first with the contention relating to the vires of Section 129-A on the ground of its violation of Article 31 (2) of the Constitution. Article 31 of the Constitution, after omitting such parts as are not relevant, is as follows: "31. (i) No person shall be deprived of his property save by authority of law. (2) No property shall Be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate. (2a) Where a law does not provide for the transfer of the ownership of right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property. xxx xx x (5) Nothing in clause (2) shall affect- (a) the provisions of any existing law other than a law to which the provisions of clause (6) apply, or (b) the provisions of any law which the State may hereafter make- (i) for the purpose of imposing or levying any tax or penalty, or (ii) for the promotion of public health or the prevention of danger to life or property, or (iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with respect to property declared by law to be evacuee property. " clause (1) of Article 31 imposes a ban on the deprivation of property save by authority of law. Clause (2) of Article 31 provides a guarantee that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law, which provides for compensation for the property so acquired or requisitioned and either fixes the amount of compensation or specifies the principles in which, and the manner in which, the compensation is to be determined and given. Clause (2), how-over, is subject to Clause (5 ). A question, therefore, arises as to whether Section 129-A is part of law providing for compulsory acquisition or requisitioning. If it does, then the next question which arises is whether the law is saved by any one or more of the Sub-clauses of Clause (5) of Article 31. The learned Advocate General contended that the Bombay Prohibition Act is not law relating to compulsory acquisition or requisitioning of property and, therefore, Article 31 Clause (2), is not attracted at all. In the alternative, however, he contended that if the Act was law relating to compulsory acquisition or requisitioning of property, it was saved by Sub-clause (b) (ii) of Clause (5) of Article 31. It was his contention; that in any case it was a law for the promotion of public health or the prevention of danger to life or property and that he would urge that it was valid on that ground, if necessary. It was urged that Entry 8 in List II (State List) of the Seventh Schedule of the Constitution gives legislative competence to make laws for such State or part thereof with respect to "intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors" and it was by virtue of this legislative power that the State Legislature has enacted the Bombay Prohibition Act. On the other hand, Entry 42 in List III (Concurrent List) gives legislative competence to enact laws in respect of "acquisition and requisitioning of property" concurrently to the Parliament as well as the State Legislature, and that is how the entry is in List III. There could be no doubt that if the Bombay Prohibition Act was law relating to acquisition or requisitioning of property, it would have to be in conformity with Article 31, even though it may not be outside the legislative powers of the State Legislature, whereas, on the other hand, if in substance the Bombay Prohibition Act, is not law relating to acquisition or requisitioning of property but is law, which can legitimately fall under the legislative competence of the State Legislature to make laws with respect to "intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors", the question of any violation of Article 31 of the Constitution will not arise. It is therefore necessary to examine the nature of the enactment in which Section 129-A, finds a place. The true character of the legislation has to be ascertained when a provision of law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it or that it is violative of the rights guaranteed by the Constitution having regard to the nature of the enactment as a whole, to its objects and to the scope and effect of its provisions.