Chagla, C.J. - (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:
"Whereas it is expedient to consolidate and amend the law relating to the import, export, transport, manufacture, sale and possession of liquor and of intoxicating drugs in the Province of Bombay and whereas in order to promote, enforce and carry into effect the policy of prohibition it is necessary to prohibit the import, export, transport, manufacture, sale and possession of liquor and of intoxicating drugs in the Province of Bombay or in specified areas thereof."
Therefore, it is in order to pursue the policy of prohibition that the Legislature has put this Act upon the statute book, and in order to carry out their policy it has enacted provisions, among others, with regard to the possession of liquor and intoxicating drugs. Section 14B provides: Page 3 of 10 Kishori Shetty vs. Emperor (11.08.1949 - BOMHC)
"No person not being a licensed manufacturer or vendor of any intoxicant or 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."
Therefore, the limit of foreign liquor which a person can possess under this section is with reference to the limit which he could sell by retail, and for that purpose we have got to look at Section 17, and Section 17 provides:
"The Provincial Government may by notification in the Official Gazette determine a limit of quantity within which and beyond which the sale of any intoxicant or hemp shall be deemed to be sale by retail and wholesale respectively; such limit may be fixed with respect to the whole Province of Bombay or to any local area, and with respect to purchasers generally or to any specified class of purchasers, and with respect to any specified occasion or generally."
Under this section the Government issued a notification on 3lst March 1948, being Notification No. 7147/39, by which it prescribed the quantities which should be deemed to be sold by retail within the meaning of Section 17, and various quantities are prescribed with regard to brandy, whisky, rum, gin, wines and fermented foreign liquor, and the possession by the accused, if this Notification is a good and valid one, is indisputably in excess of the possession permitted under it.
(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 :
"Provided that nothing in Sub-section (1) 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."
Therefore, reading Section 14B (1) and the proviso, as it stood then, although the Provincial Government could restrict and control and prohibit possession of country liquor, it could not do so in the case of foreign liquor, if foreign liquor was possessed either by a carrier or a warehouseman or it was purchased by a person for his bona fide private consumption and not for sale. In this connection we must also draw attention to Sub-clause (2) of Section 14B which at that date was in the following terms :
"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 Page 4 of 10 Kishori Shetty vs. Emperor (11.08.1949 - BOMHC) whole Presidency or in any local area, of any intoxicant, either absolutely or subject to such conditions as it may prescribe."
Therefore, it would not be true to say that prior to Act VI [6] of 1940 the Provincial Government had no power under the Abkari Act to prohibit or control or restrict the possession of foreign liquor. Mr. Gauba has asked us to read the proviso to Sub-section (1) as if it was a proviso to the whole section. That argument is obviously untenable because the proviso specifically mentions that it is a proviso to Sub-section (1), and Sub-section (2) starts with the opening words "Not-withstanding anything contained in Sub-section (1)," which would include both the sub-section and the proviso. Therefore, under Section 14B, as it stood before the amendment it was open to the Provincial Legislature under the Abkari Act by a notification to prohibit the possession of foreign liquor qua any person or class of persons. It is unnecessary to consider whether any person or class of persons may or may not include carriers or ware-housemen or persons who had purchased foreign liquor bona fide for their private consumption.