EMPEROR Vs. SAVER MANUEL DANTES

JUDGEMENT

(1.) THIS is a reference made by the Presidency Magistrate, 4th Court, under Section 432 of the Criminal Procedure Code, which entitles him to refer any question of law arising in the hearing of a case before him. The facts giving rise to the reference are as follows.

(2.) ON July 17, 1939, the Government of Bombay issued a Notification under Sub-section (2) of Section 14B of the Bombay Abkari Act, 1878, prohibiting the possession by any person in the area specified, which was in substance the Town and Island of Bombay, without a permit or a license issued by an Abkari Officer, of any intoxicant specified in the schedule thereto in excess of the amount therein mentioned. ON April 11, 1940, a full bench of this Court held that the said Notification was " ultra vires and of no effect," the basis of the decision being that under Section 14B of the Bombay Abkari Act Government could not prohibit the possession of intoxicants by the public generally. ON the same day, but after the Court's decision had been pronounced, the Governor of Bombay, being the then legislative authority in Bombay, passed Bombay Act VI of 1940 amending the Bombay Abkari Act. The material Section s of that Act, which we will refer to as " the Amending Act," are Section s 6 and7. Section 6 amends Section 14B of the Bombay Abkari Act, and in order to appreciate the amendment it is necessary to state the terms of Section 14B, which were as follows: (1) No person not being a licensed manufacturer or vendor of any intoxicant of hemp and no licensed vendor except as authorised by his license shall have in his possession any quantity of any intoxicant or hemp in excess of such limit as the Provincial Government under Section 17 may declare to be the limit of retail sale, except under a permit from the Collector: Provided that nothing in Sub-section (i) shall extend to any foreign liquor, other than denatured spirit, in the possession of any common carrier or warehouseman as such, or purchased by any person for his bona fide private consumption and not for sale. (2) Notwithstanding anything contained in Sub-section (1) the Provincial Government may by notification in the Official Gazette prohibit the possession by any person or class of persons, either throughout the whole Presidency or in any local area, of any intoxicant, either absolutely or subject to such conditions as it may prescribe.

(3.) ON April 19, 1940, the accused in the case before the learned Magistrate giving rise to this reference arrived at Dadar Station on the B. B. & C. I. Railway and was found to be in possession of a bottle of country liquor containing admittedly less than the limit fixed by the Provincial Government under Section 14B(I) of the Bombay Abkari Act. He was charged under Section 43(1) (a) of the Bombay Abkari Act with being in possession of an intoxicant in contravention of a rule or order made under the Act. The only order which he is alleged to have broken is that contained in the said Notification of July 17, 1939, and the learned Magistrate has submitted to this Court the two following questions: First Question: (a) Has the Provincial Legislature power, under item 31 of List II of the 7th Schedule to the Government of India Act, 1935, or otherwise, to pass a law of which the object is to introduce a Policy of total Prohibition in the Province of Bombay or in certain areas thereof; and (6) whether Section 3 and Section 6(b) of Bombay Act VI of 1940 are intra vires, in particular with regard to total prohibition of possession of liquor and of intoxicating drugs. Second Question: In the event of the first question being answered in the affirmative, whether there is in existence any effective Notification under Section 14B(2) of the Bombay Abkari Act, 1878, absolutely prohibiting the possession of intoxicants by persons generally in the City of Bombay; in other words;, whether Notification No.374/39/(c), 'dated July 17, 1939, which was declared by the High Court to be ultra vires and of no effect, is to be considered as in force by virtue of Section 7 of the Bombay Act VI of 1940.6. In our view the first question does not really arise in connection with the prosecution. It is admitted that the accused has not infringed any provision of the Abkari Act; he is alleged to have infringed the provisions of the said Notification of July 17, 1939, and the only question, therefore, which arises, is whether that Notification is valid and in force. No doubt the notification might be invalid by reason either of a defect in the Notification itself or of some invalidity in the Act under which it was passed, but it is only in that indirect sense that the validity of the Act can be called in question. We propose, therefore, to confine ourselves to the second question.