- (1.) These appeals arise from the judgment and order of the High Court of Judicature at Bombay upon the application of one F. N. Balsara (hereinafter referred to as the petitioner), assailing the validity of certain specific provisions of the Bombay Prohibition Act, 1949 (Bombay Act No. XXV of 1949), as well as of the Act as whole. The petitioner, Claiming to be an Indian citizen, prayed to the High Court 'inter alia' for a writ of mandamus against the State of Bombay and the Prohibition Commissioner ordering them to forbear from enforcing against him the provisions of the Prohibition Act and for the issue of a writ of mandamus ordering them (1) to allow him to exercise his right to possess, consume and use certain articles, namely, whisky, brandy, wine, beer, medicated wine, eau-de-cologne, etc., and to import and export across the Customs frontier and to purchase, possess, consume and use any stock of foreign liquor, eau-de-cologne, lavender water, medicated wines and medicinal preparations containing alcohol, and (2) to forbear from interfering with his right to possess these articles and to take no steps or proceedings against him, penal or otherwise, under the Act. The petitioner also prayed for a similar order under S. 45, Specific Relief Act, against the respondents. The High Court agreeing with some of the petitioner's contentions and disagreeing with others, declared some of the provisions of the Act to be invalid and the rest to be valid. Both the State of Bombay and the petitioner being dissatisfied with the judgment of the High Court have appealed to this Court after obtaining a certificate from the High Court under Art. 132(1) of the Constitution.
(2.) The Act in question was passed by the Legislature of the Province of Bombay as it was constituted in 1949, and was published in the Bombay Govt. Gazette on 20-5-1949, and came into force on 16-6-1949. The Act consists of 148 sections with 2 schedules and is divided into 11 chapters. It is both an amending and consolidating Act and incorporates the provisions of the Bombay Abkari Act which it repeals and also those of the Bombay Opium and Molasses Acts and contains new provisions for putting into force the policy of prohibition which is one of the objects mentioned in the preamble of the Act. The most important provisions in Chapter I is the definition of 'liquor' which has been vigorously assailed as being too wide and therefore beyond the powers of the Provincial Legislature. Chapter II relates to establishment and is not relevant to the present appeal. Chap. III, which contains a number of prohibitions in regard to liquor as defined in the Act, is said to enact sweeping provisions which are liable to be assailed Ss. 12 and 13 and the relevant provisions of Ss. 23 and 24 in this Chapter may be quoted: "S. 12. No person shall (a) manufacture liquor; (b) construct or work any distillery or brewery; (c) import, export, transport or possess liquor; or (d) sell or buy liquor." " S. 13. No person shall (a) bottle any liquor for sale; (b) consume or use liquor; or (c) use, keep or have in his possession any materials, still, utensils, implements or apparatus whatsoever for the manufacture of any liquor." "S. 23. No person shall (a) commend, solicit the use of, offer any intoxicant or hemp, or (b) incite or encourage any member of the public or any Class of individuals of the public generally to commit any act which frustrates or defeats the provisions of this Act, or any rule, regulation or order made thereunder, or ........" "S. 24(1). No person shall print or publish in any newspaper, news-sheet, book-leaflet, booklet or any other single or periodical publication or otherwise display or distribute any advertisement or other matter : (a) which commends, solicits the use of or offers any intoxicant or hemp, (b) which is calculated to encourage or incite any individual or Class of individuals or the public generally to commit an offence under this Act, or to commit a breach of or to evade the provisions of any rule, regulation or order made thereunder or the conditions of any licence, permit, pass or authorisation granted thereunder. * * * * Chapt. IV relates to "control, regulation and exemptions", and contains 'inter alia' Ss. 30 to 38 and S. 44 which provide for cases in which licenses for the manufacture, export, import, transport, sale or possession of liquor may be granted; S. 39, which authorises the Govt. to permit the use or consumption 'of foreign liquor on cargo boats, warships, troopships and in military and naval messes and" canteens; S. 40, which provides for the grant of permits for the use or consumption of foreign liquor to persons whose health would be serious1y and permanently affected if they were not permitted to use or consume such liquor and to foreigners who do not intend to stay permanently in India; S. 41, which enables special permits to be granted to diplomats and foreign sovereigns; S. 45, which authorises use of liquor for sacramental purposes; S. 52, which empowers an authorized officer to grant licenses, permits, etc,. in cases not specifically provided for; S. 53, which deals with the form in which and the conditions under which licenses, etc. may be granted; and S. 54 which provides for the cancellation or suspension of licenses and permits. The other material Chapters of the Act are, Chap. VII, which provides for offences and penalties, and Chapter IX which deals with "powers and duties of officers and procedure." Ss. 118 and 119 or the Act declare the offences under the Act to be cognisable and some of them to be non-bailable. Under S. 121, any authorised prohibition officer or any police officer may open any package and examine any goods and may stop any vessel, vehicle other means of conveyance and search for any intoxicant. S. 136 (1) provides that if any of the officers mentioned therein is satisfied that any person is acting or is likely to act in a manner which amounts to preparation, attempt, abetment or commission of any of the offences punishable under S. 65 or 68 of the Act, he may arrest such person without a warrant and direct that such person shall be committed to such custody as such officer may deem fit for a period not exceeding 15 days. By S. 136(2), the State Govt. is given the extraordinary power of imposing restriction on the right of free movement of any person if it is satisfied that such person is acting or is likely to act in the manner aforesaid, Chap. XI contains certain miscellaneous provisions and the only sections of this Chapter which need be referred to, are S. 139(c), which states that the State Govt. may be general or special order exempt any person or Class of persons or institution or Class of institutions from the observance of all or any of the provisions of the Act or any rule, regulation or order made thereunder, and S. 147, which declares that nothing in the Act shall be deemed to apply to any intoxicant or other article in respect of its import or export across the customs frontier as defined by the Central Govt.
(3.) The High Court accepted the contention of the petitioner that the definition of 'liquor' in the Act was too wide and went beyond the power vested in the legislature to legislate with regard to intoxicating liquors under item 31 of List II. It also held the following sections to be invalid : Ss. 23 (a) and 24 (1) (a) so far as they refer to "commending"; S. 23 (b); 24 (1) (b) so far as it efers to "evasion"; S. 39; S. 52; S.53 in part; S. 136 (1) ; S.136 (2) (b), (c), (e), (f); and S.139 (c). The High Court also held R. 67 at the Bombay Foreign Liquor Rules and notifications Nos. 10484/45 (c) and 2843/49 (a), dated 30-3-1950, invalid. It further held that the word "addict," in the medical certificate was not warranted by the provisions of the Act.;