# B1hram lflwrs1114 PtsikoJ:a v. Till Stall ef Bombay

- **Citation:** [1955] 1 S.C.R. 613
- **Court:** Supreme Court of India
- **Decided:** 1953-02-05
- **Case number:** Criminal Appeal No. 42 of 1953
- **Bench:** Mehr Chand Mahajan C. J, MuKHERJEA, MAsAN JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b1hram-lflwrs1114-ptsikoj-a-v-till-stall-ef-bombay-370
- **Pages:** 58

## Headnote

S. R. DAs,
VIVIAN BosE and GHULAM HASAN JJ.]
Constitution of
India, Arts. 13
and 141-Statute declared
unconstitutional-Effect
of-Declaration in
Balsara's
case-Effect
of-If the decision throws onus on the accused-Bombay Prohibition
Act, 1949 (Bombay Act XXV of 1949), ss. 2 (24), 13 (b), 66 (b).
Held (Per MEHR CHAND MAHAJAN C. J.,
MuKHERJEA,
VIVIAN
.;
EosE and GHULAM HASAN JJ. S. R. DAs J. dissenting) that the
effect of the declaration in the case of The State of Bombt>y and
Another v. F. N. Balsara(1 ) that clause (b) of s. 13 of the Bombay
Prohibition
Act (XXV of 1949) is void under Art. 13(1) of the
Constitution in so far as it affects the consumption or use of liquid
medicinal or toilet preparations containing alcohol, is to render
part of s. 13(b) of the Bombay Prohibition Act inoperative, ineffective and ineffectual and thus unenforceable.
In view of the constitutional invalidity of a part of s. 13(b) of
the
Bombay
Prohibition
Act having been declared void by · the
Supreme Court, that part of the section ceased to have legal effect
in judging cases of citizens and must be regarded as null and void
in determining whether a citizen was guilty of an offence.
The clear enactment of Art. 141 of the Constitution leaves no
scope in India for
the application of the
American doctrine that
"the declaration by a court of
unconstitutionality
of
a
statute
which is in conflict wjth the
Constitution affects the parties only
and there is no judgment against the statute and it does not strike
the statute from the statute book."
In India, on the other hand, once a law has been struck down
as unconstitutional by the Supreme Court, no notice can be taken
of it by any Court because aft_!:'r it is declared as unconstitutional
it is no longer law and is null and void.
The bare circumstance that a citizen accused of an offence
under s. 66(b) of the Bombay Prohibition Act is smelling of alcohol
is compatible both with his innocence as well as his guilt. The smell
of alcohol may J?e due to the fact that the accused had contravened
the enforceable part of s. 13(b) of the
Bombay Prohibition Act or
it may well be due to the fact that he had taken alcohol which fell
under the unenforceable
and
inoperative part of
the section.
Therefore the onus was laid on the prosecution to prove that the
(1) [1951] S.C.R. 682.
1954
B1hram lflwrs1114
PtsikoJ:a
v.
Till Stall ef
Bombay.
614
SUPREME COURT REPORTS
[1955]
alcohol of which he was smelling came under the category of
prohibited alcohol within the meaning of the enforceable part of
s. !3(b ).
Per S. R. DAs J. :-The declaration in the case of The State of
Bombay and Another v. F. N. Balsara gives a citizen who has consumed or used liquid medicinal
or toilet preparations a defence to
a charge under s. 66(b) read with s. 13(b) of the Bombay Prohibition
Act and it is for the accused person to prove the facts on which
that declaration of law is based.
The State of Bombay and Another v.
F. N. Balsara
([1951]
S.C.R. 682) explained.
Kesava Madhova Menon v. The State of Bombay ([1951] S.C.R.
228) followed.
Rangarao Bala Mane v. The State ((1951] 54 Born. L. R. 325),
In re Kanakasabai Pillai (A.I.R. 1940 Mad. l) and Norton v. Shelby
...
County (118 U. S. 425) referred to.
>
..
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 42 of 1953.
Appeal by Special Leave from the Judgment and
Order dated the 5th February, 1953, of the High Court
of Judicature at Bombay in Criminal Appeal No. 1149
of 1952 arising out of the Judgment and Order dated
the 22nd April, 1952, of the Court of the Presidency
Magistrate 19th Court, Bombay, in Case No. 933/P of
1951.
B. M. Mistry,
J. B.
Dadachanji, Rajinder Narain
and R. D. Chadda for the appellant.
M. C.
Setalvad, Attorney-General
for India (R.
Ganapathy Iyer and P. G. Gokhale, with him) for the
respondent.
1954.
February
19, April 28, September 23, and • ""'
September 24.
[The present Criminal Appeal (No. 42 of 1953)
came up for hearing in the first instance before a Bench
of Hon'ble

## Text

_Characters 0–39,709 of 132,187. This is a partial read: ask again with offset=39709 for what follows._

,
•
•
S.C.R.
SUPREME COURT REPORTS
BEHRAM KHURSHED PESIKAK.A
ti.
THE STATE OF BOMBAY.
REFERENCE UNDER ARTICLE 145(3) OF THE
CoNSTITUTION OF INDIA .•
613
[MEHR CHAND MAHAJAN C. J., MuKHERJEA, MAsAN JJ.J
S. R. DAs,
VIVIAN BosE and GHULAM HASAN JJ.]
Constitution of
India, Arts. 13
and 141-Statute declared
unconstitutional-Effect
of-Declaration in
Balsara's
case-Effect
of-If the decision throws onus on the accused-Bombay Prohibition
Act, 1949 (Bombay Act XXV of 1949), ss. 2 (24), 13 (b), 66 (b).
Held (Per MEHR CHAND MAHAJAN C. J.,
MuKHERJEA,
VIVIAN
.;
EosE and GHULAM HASAN JJ. S. R. DAs J. dissenting) that the
effect of the declaration in the case of The State of Bombt>y and
Another v. F. N. Balsara(1 ) that clause (b) of s. 13 of the Bombay
Prohibition
Act (XXV of 1949) is void under Art. 13(1) of the
Constitution in so far as it affects the consumption or use of liquid
medicinal or toilet preparations containing alcohol, is to render
part of s. 13(b) of the Bombay Prohibition Act inoperative, ineffective and ineffectual and thus unenforceable.
In view of the constitutional invalidity of a part of s. 13(b) of
the
Bombay
Prohibition
Act having been declared void by · the
Supreme Court, that part of the section ceased to have legal effect
in judging cases of citizens and must be regarded as null and void
in determining whether a citizen was guilty of an offence.
The clear enactment of Art. 141 of the Constitution leaves no
scope in India for
the application of the
American doctrine that
"the declaration by a court of
unconstitutionality
of
a
statute
which is in conflict wjth the
Constitution affects the parties only
and there is no judgment against the statute and it does not strike
the statute from the statute book."
In India, on the other hand, once a law has been struck down
as unconstitutional by the Supreme Court, no notice can be taken
of it by any Court because aft_!:'r it is declared as unconstitutional
it is no longer law and is null and void.
The bare circumstance that a citizen accused of an offence
under s. 66(b) of the Bombay Prohibition Act is smelling of alcohol
is compatible both with his innocence as well as his guilt. The smell
of alcohol may J?e due to the fact that the accused had contravened
the enforceable part of s. 13(b) of the
Bombay Prohibition Act or
it may well be due to the fact that he had taken alcohol which fell
under the unenforceable
and
inoperative part of
the section.
Therefore the onus was laid on the prosecution to prove that the
(1) [1951] S.C.R. 682.
1954
B1hram lflwrs1114
PtsikoJ:a
v.
Till Stall ef
Bombay.
614
SUPREME COURT REPORTS
[1955]
alcohol of which he was smelling came under the category of
prohibited alcohol within the meaning of the enforceable part of
s. !3(b ).
Per S. R. DAs J. :-The declaration in the case of The State of
Bombay and Another v. F. N. Balsara gives a citizen who has consumed or used liquid medicinal
or toilet preparations a defence to
a charge under s. 66(b) read with s. 13(b) of the Bombay Prohibition
Act and it is for the accused person to prove the facts on which
that declaration of law is based.
The State of Bombay and Another v.
F. N. Balsara
([1951]
S.C.R. 682) explained.
Kesava Madhova Menon v. The State of Bombay ([1951] S.C.R.
228) followed.
Rangarao Bala Mane v. The State ((1951] 54 Born. L. R. 325),
In re Kanakasabai Pillai (A.I.R. 1940 Mad. l) and Norton v. Shelby
...
County (118 U. S. 425) referred to.
>
..
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 42 of 1953.
Appeal by Special Leave from the Judgment and
Order dated the 5th February, 1953, of the High Court
of Judicature at Bombay in Criminal Appeal No. 1149
of 1952 arising out of the Judgment and Order dated
the 22nd April, 1952, of the Court of the Presidency
Magistrate 19th Court, Bombay, in Case No. 933/P of
1951.
B. M. Mistry,
J. B.
Dadachanji, Rajinder Narain
and R. D. Chadda for the appellant.
M. C.
Setalvad, Attorney-General
for India (R.
Ganapathy Iyer and P. G. Gokhale, with him) for the
respondent.
1954.
February
19, April 28, September 23, and • ""'
September 24.
[The present Criminal Appeal (No. 42 of 1953)
came up for hearing in the first instance before a Bench
of Hon'ble Judges composed of Bhagwati, J agannadhadas and Venkatarama Ayyar JJ. who delivered
the
following Judgments dated 19th February, 1954].
BHAGWATI J.-This is an
appeal by special leave
from a judgment of the High Court of Judicature at
,..
Bombay reversing the order of acquittal passed
in
favour of the appellant by the Court of the Presidency
•
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•
.-X,
-
•
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>
•
S.C.R
SUPREME COURT REPORTS
615
Magistrate, 19th Court, Bombay, and convicting him of
an offence under section 66(b) of the Bombay Prohibition Act, 1949, and sentencing him to one month's
rigorous imprisonment and a fine of Rs. 500.
The appellant, who was
the Officiating Regional
Transport Officer,
Bombay
Region, was on the 29th
May, 1951, at about 9.30 P.M., proceeding in his jeep car
towards the Colaba Bus Stand when he knocked down
three persons, Mrs. Savitribai Motwani, her husband
and Miss Parvatibai
Abhichandani. Tht police arrested the appellant and took him to the police station.
From the
police station he was taken to St. George's
Hospital
in order to be examined by the doctor for
alleged consumption of liquor. The doctor found his
breath smelling of alcohol. He
however found the
conjunctiva were congested, the pupils were semi-dilated and reacting to light. The speech was coherent and
he could behave himself and walk along a straight line.
The doctor was therefore of opinion that he did not
seem to be under the influence of alcohol though he
had taken alcohol in some forl)l or the other.
The appellant was
put up before the Presidency
Magistrate for his trial under two offences, one under
section 338 of the Indian Penal Code on three counts
for causing grievous hurt to the three injured persons
by doing a rash
and negligent act, i.e.,
driving
his
motor car in a rash and negligent manner, and the other
under
section
66(b) of the Bombay Prohibition Act.
The appellant cross-examined the doctor and suggested
that he had taken a medicinal preparation, B. G. Phos,
and also stated in answer to the Magistrate on the 20th
December, 1951, that he had not consumed any liquor
but had taken medicinal preparation containing a small
percentage of alcohol. He also
filed a written statement on the 13th March, 1952, setting out in detail the
whole history of his case. He stated there that owing
to his ill health he had been
recommended to take
tonics, specially those containing vitamin
B Complex
~nd Phosphates and had regularly taken tonics, such as
· Wampole's Phospho Lecitin, B. G. Phos, and Huxley's
Nerve Vigour. He further stated that on the night in
question he had at about 9 or 9 .15 P.M. after dinner
1954
Behram Khurshld
Pesikaka
v.
The State of
Bamba;·
BhagwatiJ.
1954
Bthram Khur$htd
Pesikaka
v.
Tht Statt ef
Bombay.
Bhagwati].
616
SUPREME COURT REPORTS
[19551
taken a dose of B. G. Phos and was proceeding in his
jeep
car for a drive via Cuffee Parade and Marine
Drive when the accident took place. He produced his
driving licence and registration certificate and a copy
of the agenda of the Regional Transport Authority's
meeting to be held next day and a carton of B. G. Phos
on which it was stated
that it contained 17 per cent
alcohol according to its formula.
The learned
Presidency
Magistrate
acquitted the
appellant of both these offences. In
reg;ird to the
offence under section 66(b) of the Bombay Prohibition
Act he observed that the evidence did not go to show
conclusively that the appellant had consumed alcohol
without a permit, that there were certain medicinal
preparations which were allowed to be used by law and
there was no satisfactory
evidence to show that the
appellant had
not
consumed
those tonics but only
liquor for which he ought to have a permit.
The respondent, the State of Bombay,
took two
appeals before the High Court against each of these
two
cases. The High Court confirmed the acquittal
in regard to the charge under section 338 of the Indian
Penal Code but reversed the order acquitting him of
the charge under section 66(b) of the Bombay Prohibition Act.
The
High Court followed a decision of its
own Division Bench in Rangarao Bala Mane v. St.ate(')
where it had been held that-"Once it is proved by the
prosecution that a person has drunk or consumed liquor
without a permit, it is for that person to show that the
liquor
drunk by him was not prohibited liquor, but
was alcohol or liquor which he is permitted by law to
take, e.g., medicated alcohol. The prosecution is not to
discharge the burden of the accused, and if in answer
to a charge of drinking liquor without a permit the
accused suggests that the liquor which was drunk by
him was not liquor in a prohibited form or was alcohol
in a medicated form, he must show it." The High
Court observed that the
Magistrate had misdirected
himself on a point of law and it was therefore open to
it to examine the evidence and come to its own conclusion whether the appellant had shown that he had
(•) (195•) 54 Born. L. R. 325.
•
·"·
-
•
-
•
·"
_,
•
-
•
-
S.C.R.
SUPREME COURT REPORTS
617
taken B. G. Phos that night after dinner and that the
alcoholic smell which was still found in his mouth as
late as 11.30 P.M. when he was• examined by the doctor
was the smell of the alcoholic
contents
of B. G. Phos.
It came to the conclusion that the appellant had failed
to prove the existance of circumstances from which the
Court could
come to the
conclusion that the liquor
which was consumed by the appellant was not prohibited liquor but liquor which was excepted by the ~ombay
Prohibition
Act from its operation and set aside the
order of acquittal passed by the learned Presidency
Magistrate in his favour convicting him of the offence
and sentencing him as above.
It was contended on behalf of the appellant before
us that the Bombay Prohibition Act, 1949, was impugμed after the advent of the• Constitution and this Court
by its decision in The State of Bombay and Another v.
F. N. Balsara(1) inter alia declared the provisions of
clal:lse (b) of section 13 to be invalid so far as it affects
the consumption or use of liquid medicinal and toilet
preparations
containing
alcohol, that the effect of
that
declaration
was to lift the
consumption
or
use of liquid
medicinal and toilet preparations containing alcohol from the prohibition enacted in section 13 (b) and that section 66 (b) was inoperative and
unenforceable so far
as
such medicinal
and toilet
preparations contammg
alcohol
were
concerned. It
was therefore incumbent on the prosecution, if a charge
under section 66(b) was framed against an accused, to
orove
that
the
accused had consumed or used an
intoxicant in contravention of the provisions of the
Act, which provision so far as section 13 (b) was concerned was to be read as prohibiting the consumption
O! use of liquor, i.e., spirits of wine, methylated spirits,
wine, beer, toddy and all non-medicinal and non-toilet
liquid preparations consisting of or containing alcohol,
which were the only categories
of validly prohibited
liquor. On
this
interpretation
of the effect of the
judgment in The State of Bombay and Another v. F. N.
Balsara (supra) there was no question whatever of the
applicability of section 105 or of section 106 of the
(1) [1951] S. C.R. 682.
1954
Beflt"am KlumhtrJ
Pesikaka
v.
The State of
Bomba.v.
Bhagwati] •.
1954
Behram Khursh'd
Pesikaka
v.
Thl State ef
Bombay.
BhagwatiJ.
618
SUPREME COURT REPORTS
[1955]
Evidence Act as was sought to be done by the High
Court. It was further urged that even if an onus was
cast on the accused to prove that he had consumed a
liquid
medicinal
or
toilet preparation
containing
alcohol that onus was lighter in burden than the onus
on the prosecution and the moment the accused indicated his
defence the onus again shifted on the prosecution to negative such defence.
It was urged on the other hand on behalf of the
respondent that the
effect of the declaration in T lie
State of Bombay and Another v. F. N. Balsara (supra)
was to graft an exception or a proviso
to S"._ction 13 (b)
and that the onus and the burden of proving the
existence of circumstances bringing his case within the
exception or proviso lay on the accused and the Court
was to presume the absence
of such circumstances.
(Vide section 105 of the Evidence Act). It was further
urged that the prosecution
could
not possibly prove
that no form of liquid medicinal or toilet prepara,tion
containing alcohol was taken by the accused, that the
fact of the consumption
of
such
medicinal or toilet
preparation containing
alcohol was
especial! y within
the knowledge
of the accused and that therefore the
burden of proving such fact was upon him, and that
once the prosecution had discharged the onus which
lay upon it to prove that the
accused had consumei;I
liquor it would be for the accused to show that the
liquor which was taken by him was a liquid medicinal
or toilet
preparation
containing
alcohol. ( Vide
section 106 of the Evidence Act).
The relevant provisions of the Bombay Prohibition
Act, 1949, may be here set out. The Act was passed
inter alia to amend and consolidate the law relating to
the promotion and enforcement of and carrying into
effect the policy of
prohibition in the
Province of
Bombay.
Section 2(22)
defined an
"intoxicant" to
mean any liquor ................ Section 2(24)
defined
"liquor" to include
(a) spirits
of wine, methylated
spjrits, wine, beer, toddy and
all
liquids
consisting
of or
containing alcohol.
Chapter III enacted the
prohibitions,
and
section
13(b)
provided :-No
person
shall. . . . . . . . . . . . . . . . . . (b)
consume
or
use
•
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. ;.
•
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•.
S.C.R.
SUPREME COURT REPORTS
619
liquor ............ Section
66(b)
1s
the
penal section
and provided :-
"Whoever in contravention of the provisions of this
Act, or of any rule, regulation or order made, or of any
licence,
permit,
pass or
authorisation issued, thereunder ................ (b)
consumes, uses,
possesses or
transports any intoxicant or hemp .................. shall,
on conviction, be punished."
It may be noted that the Act as it stood before the
amendment by Bombay Act XXVI of 1952 which came
into
operation on the 22nd October, 1952, enacted in
section 103 the only presumption as to the commission
of offences in certain cases which cases had nothing to
do with the question before us.
This Court in The State of Bombay and Another v.
F. N. Balsara (supra) held that the definition of liquor
contained in section 2(24) was not ultra vires inasmuch
as the word liquor as understood in India at the time of
the Government of India Act, 1935, covered not only
those
alcoholic liquids which are generally used as beverages and produce
intoxication but also all liquids
containing
alcohol. It however considered the restrictions imposed by sections 12 and 13 of the Act on the
possession, sale, use and consumption of liquor not reasonable restrictions on the fundamental right
guaranteed by article 19(1) (b) of the Constitution to "acquire,
hold and dispose of property" so far as medicinal and
toilet preparations containing alcohol
were concerned
and declared
the
said
sections invalid so far as they
prohibited the possession, sale, use and consumption of
these articles. The sections
were however not wholly
declared void on this ground as the earlier categories
mentioned in the definition of liquor, viz.,
spirits
of
wine,
methylated
spirits,
wine,
beer
and toddy,
were distinctly
separable
items
which
were easily
severable from
the last
category, . viz., all
liquids
containing alcohol, and the restrictions on the possession,
sale, use
and
consumption of
these earlier
categories were not unreasonable restrictions. It therefore
declared
section 13(b)
invalid to the
extent
of the
inconsistency, i.e., so
far as it affected the
1954'
Behram Khurshetl.
P•sikaka
v.
The Stale of
Bombay.
Bhagwati] •.
1954
Behram KhursMd
Pesikaka
v.
Tht State ef
Bombay.
BhoguntiJ.
620
SUPREME COURT REPORTS
[1955]
consumption
or use of liquid medicinal and toilet
preparations containing alcohol.
The question that falls to be determined is what was
the effect of this declaration.
The effect of the declaration of a statute as unconstitutional has been thus set out by Cooley on
Conrtitutional Limitations, Vol. I, page 382 :-
"Where a Statute is adjudged to be unconstitutional,
it is as if it had never been. Rights
cannot be built
up under it; contracts which depend upon it for their
consideration are
void;
it constitutes
a protection to
no one who has acted under it and no one can be
punished for having refused obedience to it before the
decision was made. And what is true of an Act void in
toto is true also as to any part of an Act which is found
to be unconstitutional and which consequently has to be
regarded as having never at any time been possessed of
any legal force . ... "
See also the dictum of Field J. in Norton v. Shelby
County( 1) :
"An unconstitutional
Act is not law, it confers
no
rights, it imposes no duties, if affords no protection, it
creates
no
office; it is, in
legal contemplation, as
inoperative as though it had never been passed."
To the same effect are the passages from Rottschaefer
on Constitutional Law, at page 34 :
"The legal status of a legislative provision in so far
as its application involves
violation
of constitutional
provisions, must however be determined in
the
light
of the theory on which Courts ignore it as law in the
decision
of cases in which its
application produces
unconstitutional results. That
theory implies that the
legislative provision never had legal force as applied to
'Cases within that class."
Willoughby on
Constitution of the United States,
Second Edition, Vol. I, page JO :-
"The Court does not annul or repeal the statute if it
finds it in conflict with the Constitution.
It simply
refuses to recognise it and determines the rights of the
\1) n8 U.S. 425: 30 L. Ed. 178.
•
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J.
•
c
S.C.R.
SUPREME COURT REPORTS
621
parties just as if such statute had no application. The
Court may give its reasons for ignoring or disregarding
the statute, but the decision affects the parties only,
and there
is no judgment against the statute. The
opinion or reasons of the Court may operate as a precedent for the determination of other similar cases, but
it does not strike the statute from the statute book; it
does not repeal. ..... the statute. The
parties to that
suit are concluded by the judgment, but no one else is
bound. A new litigant
may bring a new suit, based
on the very same statute, and the former decision can
be relied on only as a precedent,. ....... "
"It simply refuses to recognise it and determines the
rights
of the parties just as if such statute had no
application. , .............. ".
And Willis on Constitutional Law, at page 89 :-
"A judicial declaration of the unconstitutionality of
a statute
neither
annuls nor repeals the
statute but
has the effect of ignoring or disregarding it so far as the
determination of the rights of private parties is concerned.
The courts generally say that the effect of an
unconstitutional statute is nothing. It is as though it
had never been passed ........ ".
The declaration was a judicial pronouncement and
even though under article 141 of the Constitution the
law declared by this Court is binding on all the Courts
within
the territory of India and is to be the law of
the land the effect of that declaration was not to enact
a statutory provision or to alter or amend section 13 (b)
of the Act. No exception or proviso was also grafted
in terms on section 13(b ).
The only
effect of the
declaration
was that the prohibition enacted in sec-
• • tion 13 (b) was to be enforceable in regard to the consumption or use of validly prohibited liquor, i.e., spirits
of wine, methylated spirits, wine, beer, toddy and all
non-medicinal
and non-toilet
liquid preparations consist.mg of or containing alcohol. The prohibition which
was enacted in section 13 (b) against the consumption or
use of liquor could in the light of the declaration made
by this Court only refer to the consumption or use of
validly prohibited liquor, i.e., spirits of wine, m~thylated
spirits, wine, beer, toddy and all non-medicinal and
1954
B1hram Klwrshtd
Pesikaka
v.
The Stat•of
Bombay.
Bhagwati].
-
1954
Bthram Khurihtd
Pesikaka
v.
Th• SUJie ef
Bombay.
Bhagwati J.
622
SUPREME COURT REPORTS
[1955]
non-toilet liquid preparations consisting of or containing
alcohol, and that was the only prohibition which could
be enforced under section B(b) and the penal section
66(b ). The consumption or use of liquid medicinal
or toilet preparations containing alcohol could not be
validly prohibited and any person consuming or using
such medicinal or toilet preparations containing alcohol
could
not
be hauled up for having contravened the
provisions of the Act. No offence could be committed
by
the
consumpti~n. of
liquid
medicinal or toilet
preparations
contammg
alcohol and
the provision
enacted in section 13(b) read in the light of the definitions of intoxicant and liquor contained in sections 2
(22) and 2(24) of the Act in so far as it prohibited the
consumption or use of liquor including liquid medicinal
or toilet preparations containing alcohol was rendered
inoperative
and
unenforceable bv the declaration to
the extent of the inconsistency and liquid medicinal or
toilet
preparations
containing alcohol were lifted out
of the category of validly prohibited liquor. Whatever
may be the implications or the consequences of the
unconstitutionality of section 13 (b) to the extent
of
the inconsistency in other respects, here was the State
enforcing
the penal
provisions of section 66(b) and
encroaching upon the liberties
of the subject.
Penal
statutes should be strictly construed and the State could
only penalise the consumption or use of validly prohibited liquor which only could constitute an offence under
section 66 ( b). The consumption or use of any intoxicant
meaning any liquor in contravention of the provisions
of this Act was to be punished and unless and until the
prosecution proved that the accused had consumed or
used liquor in contravention of the enforceable provisions of the Act the accused could not be held guilty
and punished under section 66(b). The accused could
be held guilty only if he had contravened the enforceable provisions of the Act and for the purpose of the
present enquiry the only provision of the Act which he
could be charged with having contravened was section 13 (b), the prohibition contained in which was by
reason of the declaration made by this Court enforceable only in regard to the consumption or use of validly
prohibited liquor, i.e., spirits of wine, methylated spirits,
•
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-
S.C.R.
SUPREME COURT REPORTS
623
wine, beer, toddy and all non-medicinal and non-toilet
liquid preparations consisting of or containing alcohol.
It was strenuously urged before us on behalf of the
respondent that the declaration in effect, though not
:in
terms,
enacted an
exception or proviso to
section 13(b) and that therefore the onus lay upon the
appellant
to
prove the
existence of
circumstances
bringing his case within the exception or proviso. (Vide
section 105 of the Evidence Act.) It cannot be disputed that no exception or proviso was in terms enacted
by this declaration. It had the effect of rendering the
prohibition of consumption or use of liquid medicinal
and toilet preparations
containing alcohol
as
having
never at any time been possessed of any legal force and
so not to be enforceable wherever any accused person
was charged with having contravened
the
provisions
of section 13 (b) of the Act. The effect of the declaration. on the provisions of section 13(b) could be worked
out in any of the following modes :
No person shall consume or use spirits of wine,
methylated
spirits, wine, beer, toddy and all liquids
consisting of or containing alcohol as are not or which
are not or other than or save or except or provided they
are not or but shall not include liquid medicinal or toilet
preparations
containing
alcohol
or all non-medicinal
and non-toilet liquid preparations consisting of or containing alcohol.
When these several interpretations were possible in
regard to the effect of the declaration on the provisions of section 13 (b), where would be the justification
for interpreting the effect of the declaration to be that
of grafting an exception or proviso on section 13(b) so·
as to attract the operation of the provisions of section
105 of the Evidence Act? It is clear that where several
interpretations are possible, the Court should adopt an
interpretation favourable to the accused, rather than
one which casts an extra or special burden
upon him,
which if at all should be done by clear and unequivocal
provision in that behalf rather than in
this indirect
manner. (See
also In re Kanakasabai Pillai(1) ) . It
would be more in consonance with the principles of
(r) A. I. R. 1940 Mad. r.
2-88 S. C. India/59
1954
Behram Khurshld
Pesikaka
v
The Stale of
Bomlug.
BkagwatiJ.
..
1954
/khram Kharshed
Puikalra
v.
T h4 Stak ef
BombaJ.
Bha1:"'4'i J.
624
SUPREME COURT REPORTS
(1955]
criminal jurisprudence to interpret the effect of this
declaration to be that the prohibition enacted in section 13(b) where it came to be enforced against any
accused person after the declaration should be enforceable as regards the consumption or use of validly prohibited liquor, i.e., spirits of wine, methylated
spirits,
wine, beer, toddy and all non-medicinal and non-toilet
liquid preparations consisting of or containing alcohol,
as above stated.
If this is the effect of the declaration made by that
Court there is no room for holding that the only duty
of the prosecution was
to prove that the accused had
taken liquor in some form or the other and that the
burden lay on the accused to prove that he had taken
a liquid
medicinal
or toilet preparation
containing
alcohol.
When an accused person is charged with
having committed an offence it is for the prosecution
to prove all the ingredients of the offence with which
he has been charged and the ingredients of the offence
under section 13 (b) as stated above were that he had
consumed or used liquor validly prohibited, i.e. spirits
of
wine, methylated spirits, wine, beer, toddy and all
non-medicinal and non-toilet liquid preparations consisting of or containing alcohol. There was no presumption enacted in the Act as it stood which would throw
the burden of proof on the accused to show that he had
consumed or used liquid medicinal or toilet preparation
containing alcohol. There was no exception or proviso
enacted either in
terms or in effect in section B(b)
which
attracted
the operation of section 105 of the
Evidence Act and cast upon the accused the burden of
proving the existence of
circumstances
bringing his
.case
within
such
exception or proviso. The mere
.circumstance that the fact in regard to his consumption or use of liquid
medicinal or toilet preparation
·containing alcohol was specially
within the knowledge
.of the accused also could not shift the burden of proving the ingredients of the offence from the prosecution
to the accused, because it is a
cardinal principle of
·criminal jurisprudence as administered in this country
·that it · is for the prosecution and prosecution alone to
;prove all the ingredients of the offence with which the
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S.C.R.
SUPREME COURT REPORTS
625
accused has been charged. The accused is not bound to
open his lips or to enter upon his defence unless and
until the prosecution has discharged the burden which
lies upon it and satisfactorily proved the guilt of the
accused.
Section 106 of the Evidence Act cannot be
construed to mean that the accused has by reason of
the
circumstance that the facts are especially
within
his own knowledge to prove that he has not committed
the offence.
(See Attygalle v. The King (1), also In re
Kanakasabai Pillai (2) ). It is for the prosecution to prove
that he has committed the
offence and that burden is
not in any manner whatsoever displaced by section 106
of the Evidence Act.
The High Court in arriving at its decision in Rangarao
•
•
Bala Mane v. State (supra) above referred to was impressed with the
circumstance
that
the
prosecution
<iould not possibly prove that no form of medicated
alcohol was taken by
the
accused, that there were
evidently numerous forms of medicated
alcohol and
that it was impossible for the prosecution on the very
face of things to exclude all those forms.
The difficulty
was illustrated by
the High
Court in the manner
following :-
"For instance, if the prosecution were to lead evidence
to show that the accused had not taken medicated
alcohol in the form of B. G. Phos, the accused would
contend that he had taken it in some other form.
If
the prosecution were to lead evidence that the accused
had not taken it in the form of Winedex. the accused
would say that he had taken it in the form of Water-
• , bury's Compound or Hall's Wine. These are only two
instances to show how, it is impossible for the prosecution to exclude all forms of medicated alcohol."
It therefore came to the conclusion that once the
prosecution had discharged the onus which was upon
it to prove that the accused person had consumed
liquor, it would be for the accused to show that the
liquor which was taken bv him was liquor in the form
of medicated alcohol in other words, not prohibited
liquor.
The difficulty thus envisaged by the High
Court was, in my opinion, imaginary. Where an accused
(1) A. I. R. 1936 P. C. 16g.
{2) A. I. R. 1940 Madras 1.
1954
Behram Klumllld
Pesikaka
v.
The Stau of
Bombay •
Bhagwati].
-
1954
Behratn Khursi1'd
Pesikaka
v.
TM State qf
. Bombqv.
.BhagwatiJ.
626
SUPREME COURT REPORTS
[1955J
person is suspected of having . committed the . prohibition
offence, it would be for
the
police to investigate the offence and while investigating the offence,
it would be for the police to
find out whether
the
accused has consumed liquor
which falls within 'the
enforceable
prohibition
enacted in section 13(b). As
there are a number of preparations which come within
the category of liquid medicinal and toilet preparations
consisting of or containing alcohol, there are a number
of preparations which come within the category of nonmedicinal or non-toilet liquid
preparations
consisting
of or containing alcohol and it would be really for the
police investigating
the
alleged offence to find out
which out of the latter category of preparations the
accused had consumed and bring him to book for the
same. The circumstance that the accused person was
smelling of alcohol and that he had consumed liquor in
some form or the other would not be an unequivocal
circumstance pointing to the guilt of the accused. The
smell of alcohol could as well be the result of his having
consumed medicinal or toilet preparations
consisting
of or containing alcohol as his having consumed validly
prohibited
liquor, i.e.,
spirits
of wine,
methylated
spirits, wine, beer,
toddy and all non-medicinal and
non-toilet liquid preparations consisting of or containing alcohol. To hold the accused
guilty under these
circumstances
would be to convict him merely because
he was smelling of alcohol and depriving him of the
benefit of doubt which an
accused
person is always
entitled to in the event of the facts and circumstances
being consistent either with his guilt or his innocence.
To adopt the reasoning which appealed to the High
Court would further be tantamount to laying down
that once an accused
person
was shown to have consumed liquor in some form or the other the presumption
was that he had consumed validly prohibited liquor
and the onus would be upon him to rebut that presumption by showing that he had consumed medicinal or
toilet preparation containing alcohol.
The difficulty in the way of the prosecution proving
its case need not deflect the Court from arriving at
a correct conclusion.
If these difficulties are genuinely
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S.C.R.
SUPREME COURT REPORTS
627
felt it would be for the Legislature to step in and
amend the law. It would not be the function of the
Court to read something in the provisions of the law
which is not there or to find out a way of obviating the
difficulties in enforcing the law howsoever meritorious
the intentions of
the Legislature might be. If these
difficulties were
felt in the matter of enforcing the
policy of prohibition by the State of Bombay the only
remedy was to effect the necessary amendments when
the
Bombay
Act XXVI of 1952 was enacted on the
22nd October, 1952, after this Court made the declaration in The
State
of Bombay and Another v. F. N.
Balsara (supra).
In my opinion it was not enough for the prosecution in the
present case merely
to prove that the
appellant had taken alcohol in some form or the other.
The prosecution ought to have proved that, the appellant had in contravention of the provisions of the Act
consumed an
intoxicant meaning any liquor which
having regard to the declaration made by this Court
could only be validly prohibited liquor, i.e., spirits of
wine, methylated spirits,
wine,
beer, toddy
and all
non-medicinal
and non-toilet liquid
preparations consisting of or containing alcohol. The evidence of the
doctor only went to show that the appellant had consumed alcohol in some form or the other. That was
not enough and I have therefore come to the conclusion
that the prosecution failed to prove that the appellant
had committed the offence with which he was charged.
In view of the conclusion reached above it is unnecessary to go into the interesting question which was
canvassed before us at some length as to the burden of
proof on the prosecution as well as the defence in a
criminal trial having regard to the provisions of section 105 of the Evidence Act as also the applicability
in India of the principles enunciated in W oolmington v.
The Director of Public Prosecutions (1).
J would therefore allow the appeal, and quash the
conyiction and sentence passed upon the appellant by
the High Court.
(1) [1935] A. C:. 462.
1954
Be/iram Khurs!.lil
Pesikaka
v.
The State of
Bombay
Bhagwati
1954
Bemam K!wshed
Ptsikaka
v,
Tb Staie of
Bombay
Jagannadhadas J.
628
SUPREME COURT REPORTS
[1955}
JAGANNADHADAS
J.-1 have
had
the
benefit of
perusing the judgments of both my learned brothers.
But,
with great regret, I feel unable to agree with the
view taken by my learned brother Justice Bhagwati.
Two questions of law have been raised in this case,
viz., (1) on whom does the burden of proof lie to make
out that the "liquor" consumed by the appellant was or
was not medicinal or toilet preparations though containing alcohol, and (2) what is the nature and quantum
of proof required if the burden is upon the appellant.
The answer to question No. 1 depends upon the effect
of the decision of this Court in The State of Bombay
and Another v. F. N. Balsara (supra) which,
while
holding that the definition ot liquor in sub-section (24)
of section 2 of the Bombay Prohibition Act, 1949 (Act
XXV of 1949) is valid, has declared that clause (b) of
section 13 in so far as it affects the consumption or use
of medicinal or toilet preparations
containing alcohol,
is
invalid.
My
learned
brother
Justice
Bhagwati,
while holding that the effect of the declaration was not
to alter and amend section 13 (b) of the Act, is of the
opinion that in the light thereof the prohibition under
section 13 (b) is to be understood to relate (so far as is
relevant for the present purpose) to
consumption or
use of "non-medicinal or non-toilet liquid
preparation
containing alcohol" and that, therefore,
the
burden
lies on the prosecution to make out all the ingredients
of the prohibition
so
understood with
the negative
thereof. On the other hand, my learned brother Justice
Venkatarama Ayyar is of the opinion that the effect of
the decision in The State of Bombay and Another v.
F. N. Balsara (supra) is not to amend or
alter section
13(b) but only to render it partly unenforceable, and
hence to provide a
defence
to the accused, on the
ground of unconstitutionality in so far as that section
is sought to be applied to medicinal or toilet preparations containing alcohol and that, therefore. the burden
of making out the facts required for this plea is on the
accused.
I agree that no legislative function can be attributed
to a judicial decision and that the decision in The State of
Bombay and Another v. F. N. Balsara (supra) does not,
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SUPREME COURT REPORTS
629
proprio vigore amend the Act.
The effect of a judicial
declaration of the unconstitutionality of a statute has
been stated at page 10 of Vol. I of Willoughby on the
Constitution of the
United States,
Second Edition, as
follows:
"The
Court does not annul or repeal the statute
if it finds it in conflict with the Constitution. It simply
refuses to recognize it, and determines the rights of the
parties just as if such statute had no application. The
Court may give its reasons for ignoring cir disregarding
the statute, but the decision affects the parties
only,
and
there is no judgment against
the statute.
The
op1mon or
reasons for the
court may
operate as a
precedent for the determination of other similar cases,
but it does not strike the statute from the statute book;
it does not repeal .............. the statute.
The parties
to that
suit are
concluded by the judgment, but no
one else
is bound. A new litigant may bring a new
suit, based on the very same statute, and the
former
decision ........ can be relied on only as a precedent."
This and other similar passages from other treatises
relate, however, to cases where the
entire legislation is
unconstitutional from the very commenceme11t of the
Act, a situation which falls within the scope of article
13(2) of our Constitution. They do not directly cover a
situation which falls within article 13(1). In the present
case,
though the decision in
The
State of
Bombay
and
Another v. F. N.
Balsara (supra) does not by
itself bring about a change in the Act, the declarations
made therein are founded on article 13(1) and it is with
the effect thereof we are
concerned. The question is
what is the effect
of article 13(1) on a
pre-existing
valid statute, which in respect of a severable part thereof violates
fundamental rights.
Under article
13 (I)
such part is "void" from the date of the commencement of tl1e Constitution, while the other part continues
to be yalid. Two views of the result brought about by
this voidness are possible, viz., (1) the
said severable
part becomes unenforceable, while it remains part of
the Act, or (2) the said part goes out of the Act and
the Act stands appropriately amended pro tanto.
The
first is the view which appears to have been adopted
1954
B1hram Kiuirsherl
Puikaka
The State of
·Bobmll!J
Jagnnadhadas J.
195+
Behram K/a11shtil
PesiJUJka
v.
The Stal< ef
Bombtg•
]aganwadiwdtJ>].
630
SUPREME COURT REPORTS
[1955]
by my learned brother, Justice Venkatarama Ayyar, on
the basis
of certain
American decisions. I feel inclined
to agree
with it. This aspect, however, was not fully
presented by either side and was only suggested from
the Bench in the course of argume_nts. We have not
had the benefit of all the relevant material being placed
before us by the learned advocates on either side. The
second view was the basis
of the arguments before us.
It is, therefore,
necessary and desirable to deal with
this case on that assumption.
The question, then, for consideration is what is the
notional amendment which must be imported into the
Act
consistently
with the decision in The State of
Bombay and Another v. F. N.
Balsara (supra).