KISHORI SHETTY Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from an order passed by the learned Presidency Magistrate 5th Court, Bombay, convicting the accused under Section 43 (1), Abkari Act and sentencing her to rigorous imprisonment for three months and a fine of Rs. 500, in default, rigorous imprisonment for six weeks. The accused was charged with being in possession of 12 bottles of whisky, one bottle of madeira, one bottle of Cream de Menthe and one bottle of sherry, the possession being in excess of what was permissible under the law.

(2.) This appeal has been argued mainly on the question as to whether the Provincial Legislature has the competence to control or restrict the possession by a citizen in respect of foreign liquor. In order to understand this argument we must first look at the scheme of the Bombay Abkari Act (Bom. V [6] of 1878), with which we are concerned, and the preamble of that Act states:

(3.) The argument advanced by Mr. Gauba before us is that it is not competent to the Provincial Legislature to control or restrict, much less prohibit, possession of foreign liquor, because it would interfere with the rights of the Central Government to control imports of foreign liquor. Prior to the enactment of Bombay Act VI [6] of 1910 there was a proviso to Section 14B (1) to the following effect :