# THE STATE OF BOMBAY AND ANOTHER v. F. N. BALSARA F. N. BALSARA

- **Citation:** [1951] 1 S.C.R. 682
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-bombay-and-another-v-f-n-balsara-f-n-balsara-196
- **Pages:** 48

## Headnote

!951
May 25.
682
SUPREME COURT REPORTS
[1951]
THE STATE OF BOMBAY AND ANOTHER
v.
F. N. BALSARA
F. N. BALSARA
v.
THE STA TE OF BOMBAY AND ANOTHER
[SA1Ym FAZL ALI, PATANJALI SAsTRI, MUKHERJEA,
S. R. DAs and V1v1AN BosE lf.]
Bombay Prohibition Act (XXV of 1949)-Constitutional validity
-Applicability of Act to foreign liquors-To medicinal and toilet
preparations containing alcohal-Validity of ss. 2(24) (a), 12, 13,
23, 24, 39, 40(1) (b), 46, 52, 53, 139 (c)-Law of Province prohibiting possession and sale of foreign liquor within Province-W he th er
encroaches on power of Dominion to make laws as to "ituport and
export" -Doctrine of original pack.age -Applicability to India -
Construction of Lists-Restriction on fundamental right uto acquire,
hold and dispose of property" and to "equal protection of the laws"
Government of India Act, 1935, s. 297 (4), Seventh Sched., List
I entry 19--List 11 entry 31-Constitution of India, Arts. 14, 19(1),
19 (2).
Under entry 31 of List 11 of
the
Seventh Schedule to the
Government of India Act, 1935, the Provincial . Legislatures had
the power to make laws in respect of "intoxicating liquors, that
is
to
say,
the
production,
manufacture,
possession,
transport,
purchase and sale of intoxiqting liquors" and under entry 19 of
List I, the Dominion Legislature had the power to make laws
with respect to "import and export across customs frontiers".
The constitutional validity of the Bombay Prohibition Act, 1949,
in so far as it rcstrict.ed the possession and sale of foreign liquors
was impugned on the ground that it was an encroachment on
the field assigned to the Dominion Legislature under entry 19 of
List I :
H eltl~ ( i) that the words "possession and sale" occurring in entry
31 of List II must be read without aJiy qualification, ahd
the
word "import" In ~ntry 19 of List 1 standing by itself will not
include either sale or possession of the article imported into the
country.
There was thus no conflict between entry 31 of List II
and entry 19 of List I and the Bombay Prohibition Act, in so
far as it purported to restrict the possession and sale of foreign
liquors, did not encroach upon the field of the Dominion Legislature; (ii) even assuming that the prohibition of purchase,
u~e,
possession, transport and sale of liquor will affect its import, the
Bombay Prohibition Act was in pith and substance an Act fall-
S.C.R.
SUPREME COURT Rm>ORTS
683
ing within entry 31 of List . II and. the fact th~t. the law. incid·
cntally encroached upon the powers i:lf the Domm1on Legislature
under entry 19 of List I would not effect its validity.
The American doctrine of "original package" which laid down
the importation was not over so long as the goods were still in
that original package, has no application in India having regard to
the scheme of legislation that has been outlined in the Govern·
roent of India Act, 1935, and in the present Constitution in which
the various entries in the Legislative Lists have been expressed
in clear and precise language.
BhQla Prasad v. The King Emperor [1942] F.C.R. 17 and Miss
IGshor, Sethi v. The King [ 1949] F.C.R. 650 relied on. In re the
Central Provinces and Berar Act No. XIV of 1838 [1939) F.C.R., 18,
The United Provinces v. Atiqa Begum [1940] F.C.R. 110, Governor
General in Council v. Province of Madras [1945] F.C.R. 179, Prafulla Kumar Mul(k_erjea and others v. Bank of Commerce, Khulna
[1947] F.C.R. 28, Subramanyan Chettiar v. Muthuswami Goundan
[1948) F.C.R. 207 referred to: Brown v. Maryland (25 U.S. 419)
and Leisy v. Hardin (135 U.S. 100) distinguished.
The Bombay Prohibition Act, 1949, does not in any way contravene the ptovisions of s. 297 ( 1) (a) of the Government of India
Act, 1935, inasmuch as it is
not a law made by virtue of the
entry relating to "Trade and commerce
within
the Province"
(entry 2 of List II) or the entry relating to "the production,
supply and distribution of commodities" (entry 29 of List II).
Bhola Prasad v. King Emperor [1942] F.C.R. 17 followed.

## Text

_Characters 0–39,819 of 104,903. This is a partial read: ask again with offset=39819 for what follows._

!951
May 25.
682
SUPREME COURT REPORTS
[1951]
THE STATE OF BOMBAY AND ANOTHER
v.
F. N. BALSARA
F. N. BALSARA
v.
THE STA TE OF BOMBAY AND ANOTHER
[SA1Ym FAZL ALI, PATANJALI SAsTRI, MUKHERJEA,
S. R. DAs and V1v1AN BosE lf.]
Bombay Prohibition Act (XXV of 1949)-Constitutional validity
-Applicability of Act to foreign liquors-To medicinal and toilet
preparations containing alcohal-Validity of ss. 2(24) (a), 12, 13,
23, 24, 39, 40(1) (b), 46, 52, 53, 139 (c)-Law of Province prohibiting possession and sale of foreign liquor within Province-W he th er
encroaches on power of Dominion to make laws as to "ituport and
export" -Doctrine of original pack.age -Applicability to India -
Construction of Lists-Restriction on fundamental right uto acquire,
hold and dispose of property" and to "equal protection of the laws"
Government of India Act, 1935, s. 297 (4), Seventh Sched., List
I entry 19--List 11 entry 31-Constitution of India, Arts. 14, 19(1),
19 (2).
Under entry 31 of List 11 of
the
Seventh Schedule to the
Government of India Act, 1935, the Provincial . Legislatures had
the power to make laws in respect of "intoxicating liquors, that
is
to
say,
the
production,
manufacture,
possession,
transport,
purchase and sale of intoxiqting liquors" and under entry 19 of
List I, the Dominion Legislature had the power to make laws
with respect to "import and export across customs frontiers".
The constitutional validity of the Bombay Prohibition Act, 1949,
in so far as it rcstrict.ed the possession and sale of foreign liquors
was impugned on the ground that it was an encroachment on
the field assigned to the Dominion Legislature under entry 19 of
List I :
H eltl~ ( i) that the words "possession and sale" occurring in entry
31 of List II must be read without aJiy qualification, ahd
the
word "import" In ~ntry 19 of List 1 standing by itself will not
include either sale or possession of the article imported into the
country.
There was thus no conflict between entry 31 of List II
and entry 19 of List I and the Bombay Prohibition Act, in so
far as it purported to restrict the possession and sale of foreign
liquors, did not encroach upon the field of the Dominion Legislature; (ii) even assuming that the prohibition of purchase,
u~e,
possession, transport and sale of liquor will affect its import, the
Bombay Prohibition Act was in pith and substance an Act fall-
S.C.R.
SUPREME COURT Rm>ORTS
683
ing within entry 31 of List . II and. the fact th~t. the law. incid·
cntally encroached upon the powers i:lf the Domm1on Legislature
under entry 19 of List I would not effect its validity.
The American doctrine of "original package" which laid down
the importation was not over so long as the goods were still in
that original package, has no application in India having regard to
the scheme of legislation that has been outlined in the Govern·
roent of India Act, 1935, and in the present Constitution in which
the various entries in the Legislative Lists have been expressed
in clear and precise language.
BhQla Prasad v. The King Emperor [1942] F.C.R. 17 and Miss
IGshor, Sethi v. The King [ 1949] F.C.R. 650 relied on. In re the
Central Provinces and Berar Act No. XIV of 1838 [1939) F.C.R., 18,
The United Provinces v. Atiqa Begum [1940] F.C.R. 110, Governor
General in Council v. Province of Madras [1945] F.C.R. 179, Prafulla Kumar Mul(k_erjea and others v. Bank of Commerce, Khulna
[1947] F.C.R. 28, Subramanyan Chettiar v. Muthuswami Goundan
[1948) F.C.R. 207 referred to: Brown v. Maryland (25 U.S. 419)
and Leisy v. Hardin (135 U.S. 100) distinguished.
The Bombay Prohibition Act, 1949, does not in any way contravene the ptovisions of s. 297 ( 1) (a) of the Government of India
Act, 1935, inasmuch as it is
not a law made by virtue of the
entry relating to "Trade and commerce
within
the Province"
(entry 2 of List II) or the entry relating to "the production,
supply and distribution of commodities" (entry 29 of List II).
Bhola Prasad v. King Emperor [1942] F.C.R. 17 followed.
The word "liquor" as understood in India lit the time of the
Government
of
India kt,
1935,
covered
not
only
those
alcoholic
liquids
which
arc generally used as beverages and
produce intoxication, but also all liquids containing alcohol;
the definition of "liquor" eontained in s. 2 (24) of the Bombay
Prohibition Act, 1949, is not therefore ultra 111'rei.
Section 39 of the Act which empowers the Provincial Government to permit the use or tonsumption of foreign liquor on cargo
boats, warships and troopships and in military and naval messes
and canteens does not contravene Att. 14 of the Constitution
(which provides that the State shall not deny to any
person
equality before the law or the equal protection of the laws) inasmuch as the relaxation · of the general law In respect of the
persons contemplated by the section is not arbitrary
or capti·
dous but is based on a reasonable classification.
Ru\e 67 of. the Bombay Foreign Liquor Rules which authorises
the granting of a permit to "any foreigner on a tour of India
who enters the! S~te of . Bombay and de!sircs to possess, use and
c~nsume foreign liquor" is not void on the ground of discrimina·
t1on, firstly because,· thought it provides for the case of a foreign
1951
The Staltqf
Bombily
find Anol/ler
. v.
F. N. Balsara.
1951
The Stat• ef
Bombay
and Anotlur
v.
F. N. Balsara.
684
SUPREME COURT REPORTS
S.C.R.
visitor, tl:Q:rc is no prohibition against .any other
outsider
being
granted a permit, .and secondly, because the policy underlying
the rule is quite consistent with the policy underlying s. 40 of
the Act which enables permits to be granted to foreigners under
certain c(Kl.ditions.
Section 52, 53 and 139 ( c) of the act do not constitute delegation of legislative power, and delegation of the character
which
these sections involve cannot in any view be held to be
invalid.
In re Delhi Laws Act, 1912 etc.(1 ) relied on.
The restrictions impose by ss. 12 and 13 of the Act on the
possession, sale, use and consumption of liquor
are not reasonable
restrictions
on
the fondamcntal
right
guaranteed
by
Art. 19 (1) (f) of the Constitution "to acquire, hold and dispose
of property", so far as medicinal and toilet preparations containing alcohol are concerned and the said sections arc invalid so far
as they prohibit the possession, sale, use and consumption of
these
articles, but the sections
arc not wholly void on this
around as the earlier categories mentioned in the
d~finition of.
liquor, namely, spirits of wine, methylated spirit, \Vine, beer and
toddy are distinctly separable items
which are easily
severable
from the last category, namCly, all liquors containing
alcoho~
and the restrictions on the
possession, sale, use arid
consumption
of these earlier categories are not unreasonable restrictions.
Romesh Thappar v. Tie Stue. of Madras (1950] S.CR. 594 anti
Chintaman Rab v. ]he Su~ of Madhya Pradesh [1950] S.C.R. 759
distinguished ..
Sections 23 (a) and 24 (1) (a) of the act in so far as they refer
to "commending" any intoxicant, conflict with the fundamental
right of freedom
of speech and
expression
guaranteed
by
Art. 19 (1) (a) of the Constitution and- none of the conditions
mentioned in ·cl. (2) of Art. 19 applies to the case and therefore
these provisions arc void. Section 23 {b) is also void, because
the words
0 incite" and
0-enc:ouragc''· Uc wide enough tO include
incitement and
encouragement by
words and speeches and also
by acts artd ·the wotds used in the section are so wide and vague
that the clause .must be held to. be void .in its entirety.
There is nothing unreuonab!c in a law relating to prohibition
discriminating
between . Indian
citizens
against
whom
it is
primarily to be tnforccd and. foreigners who ha•!c ·n<> intention
of permanently residing in India. A provisinn enabling a certain
class of pessons holding permits to offer drink to persons holding
similar permits
is
also
not
unreasonable.
Notilications
No. 10484/45C and 2843/49(a) arc not therefore invalid.
The requirement that an applicant .for a permit on .the ground
of health undct '· 40( 1) (b) must get a medical certificate declaring that he is 1111 "addict'' is n<>t warranted by the provisions of
( 1) Repc>rkd infra.
S.C.R.
SUPREME COURT REPORTS
685
the Act.
The word "addict" in the form of the medical certificate should therefore be replaced by the words used in s. 40 ( 1)
(b) of the Act or words corresponding to them.
The provisions of the Act which have been held to be invalid
are not so inextricably bound up with the remaining
provisions
of the Act as to render the whck Act void.
[The decision of the High Court that ss. 136 (1), 136 (2) (b),
136 (2) (c) 136 (2) (e) and 136 (2) (f) were void inasmuch as they
offended against Art. 19 of the Constitution was not assailed
before the Supreme Court.}
CIVIL APPELLATE JURISDICTION : Appeal under Article 132(1) of the Constitution of India from the Judgment and Order dated the 22nd August, 1950, of the
High Court of Judicature at Bombay in Miscellaneous
Application No. 139 of 1950.
M. C. Setalvad and C. K. Daphtary (M. M. Desai
and H. M. Seervai. with them) for the appellants in·
Case No. 182 and respondents in Case No. 183.
N. P. Engineer (G. N. Joshi, R. ]. Kolah and
.N. A. Palkhiwala, with him) for the respondent in
Case No. 182 and appellant in Case No. 183.
195. May 25. The judgment of the court was delivered by
FAzL Au J.-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
o~ 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 ProhibitiQn 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
3-4 S. C. India/68
1951
Th~ State of
Bombay
and Another
v.
F. N. Balsara.
Far.I Ali J.
1951
Tbt State qf
Bombay
and Anotbtr
v.
F. }{. Bahara.
Far.I Ali J.
686
SUPREME COURT REPORTS
[1951]
liquor,
eau-de..:ologne,
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 section
_ 45 of the 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 frpm the High Court under article 132 ( 1)
of the Constitution.
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 Government
Gazette on the 20th May, 1949, and came · into force
on the 16th June 1949.
The Act consis~ 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 provision in Chapter I his
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.
Chapter III, which contains a ntimber
of prohibitions in regard to liquor as defined in the
Act, is said to enact sweeping provisions which are
liable to be assailed.
Sections 12 a:nd 13 and the relevant provisions of sections 23 :ind 24 in this Chapter
may be quoted :-
12. No person shall-
(a) manufacture liquor;
S.C.R.
SUPREME COURT REPORTS
687
(b) construct or work any distilfery or brewery;
(c) import, export, transport or possess liquor; or
(d) sell or buy liquor.
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.
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 pufilic generally to
commit any act, which frustrates or defeats the provisions of this Act, or any rule, regulation or order made
thereunder, or. .....
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. pr mc1te any
individuals or the public generally to coll).mit 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.
Chapter IV
relates
to "control, regulation and
exemptions", and contains inter alia sections 30 to
38 and section 44 which provide for cases in which,
licenses for the manufacture, export, import, transport,
sale or possession of liquor may be granted;
section
39, which authorises the Government to permit the use
or consumption of foreign liquor on cargo boats, warships, troopships and in military and naval messes and
canteens; section 40, which provides for the grant of
1951
Th•State of
Bombay
and Another
v.
F. N. Balsara.
Faz! Ali J.
!95!
ThtStaie of
Bombay
and Another
v.
F. N. Balsara.
Fad Ali J.
688
SUPREME COURT REPORTS
[1951J
permits fot the use or consumption of foreign liquor
to persons whose health would be seriously 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; section 41, whicJ:i
enables special permits to be granted to diplomats and
foreign sovereigns; section 45, which authorises
use of
liquor for sacramental purposes; section 52, which empowers an authorised officer to grant licenses, permits,
etc., in cases not specifically provided for; section 53,
which deals with the form in which and the conditions
under which licenses, etc., may be granted; and section
54 which provides for the cancellation or suspension of
licenses and permits. The other material chapters of the
Act are Chapter VII, which provides for offences and
penalties, and Chapter IX which deals with "powers and
duties of officers and procedure." Sections 118 and 119
of the Act declare the offences under the Act to be
cognisable and some of them to be non-bailable. Under
section 121, any authorised prohibition officer or any
police officer may open any package and examine any
goods and may stop any vessel, vehicle, or other means
of conveyance and search for any
intoxicant. Section 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 section 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 lit for a period not
exceeding 15 days.
By section 136(2), the State Government is given the extraordinary power of imposing
restrictions 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.
Chapter XI contains
certain miscellaneous prmtlsions and the only sections
of this Chapter which need be referred to are section
139 ( c ), which statj:s that the State Government may
by general or special order exempt any person or class
of persons or institution or class of institutions from the
S.C.R.
SUPREME COURT REPORTS ,
689
observance of all or any of the provisions of the Act or
any rule, regulation or order made thereunder,
and
section 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 Government.
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 section to be invalid :-
Sections 23 (a) and 24 (1) (a) so far as they refer to
"commending"; section 23 (b); 24 (1) (b) so far· as it.
refers to "evasion"; section 39; section 52; section 53 ·in
part; section 136 (1); section 136 (2) (b), (c), (e), (f); and
section 139 (c). The High Coun also held Rule 67 of the
Bombay Foreign Liquor Rules and Notifications
Nos.
10484/45 (c) and 2843/49 (a), dated the
30th March,
1950, invalid.
It further held that the word "addict"
in the medical certificate was not warranted by the
provisions of the Act.
The two important questions which this Court is
called upon to decide in these appeals are :-
( l) whether there are sufficient grounds for declaring the whole Act to be invalid; and
(2) to ~hat extent the judgmerit of the High ·court
can be upheld with regard to · the specific
provisions
of the Aot which have been declared by it to be void.
It seems to me that it will be convenient to deal in
the first instance with the argument assailing the
validity of the Act as a whole, which is based ·on
three grounds, these being :-
( 1) that the law is an encroachment on the field
which has been assigned exclusively to the Central
Legislature under entry 19 of List I;
(2) that some of the material provisions of the Act
interfere with or are calculated to interfere with interState trade and commerce and as such transgress the
1951
Tiu Stale of
Bom/Jay
dlll/ 4.Mther
"·
F. N. Balsara.
Fazl Ali].
1951
Th< State qf
Bombay
and Anothtr
v.
F. N. Balsara.
Fazl Ali].
690
SUPREME COURT REPORTS
(1951}
provmons of section 2'J7 of the Government of India
Act, 1935; and
(3) that the High Court having held a number of
material provisions to be void, should have declared
the Act as a whole to be invalid, especially as the provisions found by the High Court to be void are not
severable from the rest of the Act and it cannot be
said that the legislature would have passed the Act in
the truncated form in which it is left after the decision
of the High Court.
It is obvious that the proper occasion to deal with
the third ground will be after examining the specific
provisions which have been declared by the High Court
to be void, but the first two grounds may be dealt with
at once.
·
The first question is whether the impugned law can
be said to have made any encroachment upon the field
of legislation . assigned to the centre.
In order to decide this point, it will be necessary to refer to entry
No. 31 in List II,· under which ·the law purports to have
been made, and entry No. 19 of List I,
which
is
said to have been transgressed. These
entires run as
follows:~
Entry 31, List 11 :. Intoxicating liquors and narcotic
drugs, that
is to
i!ay, the production, manufacture
possession, transport,· purchase and sale of· intoxicating
liquors, opium and other narcotic drugs, but subject
as respects opium, to the provisions of List I and, as
respects poisons and dangerous drugs, to the provisions
of List III.
Entry 19, List I : Import and export across customs
frontiers as defined by the Dominion Government.
Prima facie, it would seem that there is no real conflict between these two entries, because entry 31 of List
II has no reference to import or export but merely
deals with production, manufacture, possession,
transport, purchase and sale. Dealing with t1iis entry,
Gwyer C. J. observed as follows in the case of Bhola
Prasad v. The King Emperor(') :-
(')[1942] F.C.R. 17 at 25.
$.C.R •
SUPREME COURT REPORTS
691
. "A power to legislate 'with respect to intoxicating
liquors' ·could not well be expressed in wider terms,
and would, in our opinion, unless the meaning of the
words used is restricted or controlled by . the context
or by other provisions in the Act, undoubtedly include
the _power to prohibit intoxicating liquors throughout
the. Province or in any specified part of the Province."
Thus, under entry 31, the Provincial Legislature can
pass
any
law
regarding
production,
manufacture,
transport,
purchase, possession and sale of intoxicating liquor. But the point that is pressed for our consideration is that "import" does not end with
mere
landing of the goods on the shore or their arrival in
the customs house, but it implies that . the
imported
goods must reach the hands of the importer and he
should be able to possess · theμi.
On !ltls basis, it is
contended that there is no difference in effect between
a power to prohibit the possession and sale of an article and a power to prohibit ~ts import or
introductiqn
into the country, since the one would be a necessary
consequence of the other.
This contention is based
upon some American cases to which I shall refer l~ter,
but it may be stated at once that the point which is
raised in this case is precisely the point which
was
raised and negatived in Miss Kishori Shetty v. The
King(1).
In that case, the appellant had been convicted under section
14-B of the Bombay Abkari
Act, 1878, as amended by the Bombay Abkari (Amendment) Act, 1947, for having in
possession a· certain
quantity of foreign liquor in excess of the limit prescribed by a notification issued under the following
provision of the Act :-
"14-B (2) ...... the Provincial Government may by
notification in the Official Gazette prohibit the possession by any individual or a class or a body of
individuals or the public generally, either throughout
the whole Presidency 9r in any . local area, of any
intoxicant, either absolutely or subject to such conditions as it may prescribe."
(1) [1949] F.C.R. 650.
1951
The State qf
Bombay
anti AnotMt
v.
F. /(. Balsara.
Fa.i;l Ali J.
!951
TheStatt ef
Bombay
and Another
v.
F. N. Balsara.
692
SUPREME COURT REPORTS
[1951]
The main argument advanced in that case was reproduced in the judgment in these words :-
"But counsel for the appellant. drew attention to
item 19 of List I which covers "Import and
export
across customs frontiers as defined by the Dominion
Government",
and
argued
that
if
"intoxicating
liquors" in item 31 of List JI were held to include also
liquors imported from
abroad,
then the Provincial
Legislature, by prohibiting possession of such liquors
by all persons, whether private
consumers,
common
carriers or warehousemen, could defeat the power of
the Federal Legislature to regulate imports of foreign
liquors across the sea or land frontiers of British India
which are customs frontiers as defined by the Central
Government and thus seriously jeopardise an important
source of central customs revenue. As under
section 100 of the Constitution Act the Provincial legislative powers under List JI were subject to the exclusive
powers of the Federal Legislature in List I, the Bombay
Act to the extent to which it trenched upon the subject
of item 19 of the latter List must, it was submitted,
be regarded as a nullity."
It will be seen that the rationale of the argument
there is the same as that of the argument advanced in
the present case, but it was rejected for reasons which
are clearly set out in the following passage_:-
"There is, in our view, no irreconcilable
conflict
here
such
as
would
necessitate
recourse
to
the
principle
of
Federal
supremacy
laid
down in section 100 of the Constitution Act.
Section 14-B does not purport to restrict or prohibit
dealings in liquor in respect of its importation or
exportation across the sea or land frontiers of British
India.
It purports to deal with the possession of
intoxicating liquors which, in the absence of limiting
words, must include foreign liquors. It is far-fetched,
in our opinion, to suggest that, in so far as the provision covers foreign liquors,
it
is
legislation
with
respect to import of liquors into British India by sea
or land".
S.C.R.
SUPREME COURT REPORTS
693
Since the enactment of the Government of India Act,
1935, there have been several cases in which the
principles which govern the interpretation of the Legislative Lists have been laid down.
One of these principles is that none of the items in each List is to be read
in a narrow or restricted sense(1). The second principle
is that where there is a seeming conflict between an
entry in List II and an entry in List I, an attempt
should be made to see whether the two entries cannot
be reconciled so as to avoid a conflict of jurisdiction.
This principle has been stressed in a number of cases
by the Federal Court as well as by the Privy Council.
In re The Central PrOtlinces and Berar Act No. XIV
-0/ 1938(2), the question arose as to whether a tax on
the sale of motor spirits was a tax on the sale of goods
within entry 48 of the Provincial List or a duty of
excise within entry 45 of the Federal list. Dealing
with the difficulty which arose in that case, Gwyer C. J.
observed as follows :-
"Only in the Indian Constitution Act can the particular problem arise which is now under consideration;
and an endeavour must be made to solve it, as the
Judicial Committee have said, by having recourse to
the context and scheme of the Act, and a reconciliation
attempted between two apparently conflicting jurisdictions by reading the two entries together and by
interpreting,
and,
where
neceessary, 'modifying, the
language of the one by that of the other. If indeed
such a reconciliation should prove impossible,
then,
and only then, will the non-obstante clause operate and
the federal power prevail; for the clause ought to be
regarded as a last · resource, a witness to the imperfections of human expression and the fallibility of legal
craftsmanship."
To the same effect are the following observations
made by the Judicial Committee of the Privy Council
in Governor-General in Council v. Province of Madras(3),
(1) Vide United Provinces v. Atiqa
Begum, [1940) F. C. R. 110
at 134.
(2} [1939) F.C.R. 18.
(3) fl935] F.C.R. 179 at H!l.
1951
The State qf
Bombay
and Another
v.
F. N. Balsara.
Ea.ti Alj J.
1951
Thi Stale qf
Bombay
and Another
v.
F. N. Balsara.
Fazl Ali].
694
SUPREME COURT REPORTS
[1951]
after referring to section 100 of the Government
of
India Act, 1935 :-
"Their Lordships do not doubt that the effect of
these words is that, if the legislative powers of. the
Federal and Provincial Legislatures, which are enumerated in List I and List II of the Seventh
Schedule,
cannot fairly be reconciled, the latter must givJ: way
to the former.
But it appears to them that it is right
first to consider whether a fair reconciliation cannot be
effected by giving to the language of the Federal
Legislative List a meaning which, if less wide than it
might in another context bear; is yet one that can properly be given to it, and equally giving to the language
of the provincial Legislative List a meaning which
it
can properly bear."
In the present case, as already
pointed out, the words
"possession and
sale" occurring in entry 31 of List II are to be read without any
qualification whatsover, and it will not be doing any
violence to the construction of that entry to hold that
the Provincial Legislature has the power to prohibit
the possession, use and sale of intoxicating liquor
absolutely. If we forget for the time being the. principles which have been laid down in some of the
American cases, it would be difficult to hold that the
word 'import' standing by itself will include
either
sale or possession of the article imported into the
country by a person residing in the territory in which
it is "imported.
There is thus no real conflict between
entry 31 of List II and entry 19 of List I, and I find
it difficult to hold that the Bombay Prohibition Act in
so far as it purports to restrict possession, use and sale
of foreign liquor, is an encroachment on the field
assigned to the Federal Legislature under entry 19 of
List I.
There is also another way of dealing with the contention raised before us.
It is well settled that
the
validity of an Act is not affected if it incidentally
trenches· on matters outside the authorised field, and
therefore, it is necessary to inquire in each case what is
the pith and substance of the Act impugned.
If the
Act, when so viewed, substantially
falls
within
the
S.C.R.
SUPREME COURT REPORTS
695
powers expressly conferred upon the Legislature which
enacted it, then it cannot be held to be invalid, merely
because it incidentally encroaches on matters which
have been assigned to another
l~gislature. This
was
emphasised very clearly in Gallagher v. Lynn(1) in these
words:-
"It is well established that you are to look at the
"true nature and character of the legislation : Russell
v. the Queen(2) 'the. pith and substance of the legislation'. If, on the view of the statute as a whole, you
find that the substance of the legislation is within the
express powers, then it is not invalidated if incidentally
it affects matters which are outside the authorised
field".
In Prafulla Kumar Mukherjee and Others v. Bank
of Commerce, Ltd., Khulna(8) the question arose before
the Privy Council whether the Bengal Money-lenders
Act, 1940, which provided that no borrower shall be
liable to pay after the commencement of the Act more
than a limited sum in respect of 'principal and interest,
WM intra vires the Provincial Legislature as dealing in
pith and substance with money-lending and moneylenders, a subject-matter within the competence of the
Provincial Legislature under entry 27 of List II, or
whether
it
trenched
on
"promissory
notes"
and
"banking'', which were
subjects
reserved
for
the
Federal Legislature under entries 28 and 38 respectively
of List I. The Privy Council, notwithstanding the
fact that loans. on promissory notes would also have
been subject to the provisions of the impugned Act,
held that the Act was valid, and while rejecting the
argument . that it was beyond the legislative
competence of the Provincial Legislature which had enacted
it, their Lordships observed as follows :-
"As Sir Maurice Gwyer C. J. said in the Subrahmanyam Chettiar case: "It must
inevitably
happen
from time to time that legislation, though purporting
to deal with a subject in one list, touches also on a
( 1) [1937] A.e. 863 at 870.
( 2) 7A.C. 829.
(a) [1947] F.C.R. 28.
,
1951
The State qf'
Bombay
and &iolhn
v.
F. N. BalstZl'a •.
Fa(l AU J.
195!
Th•Statt of
Bombay
and Another
v.
F. N. Balsara.
Fa:! Ali J.
696
SUPREME COURT REPORTS
[1951]
subject in another list, and the different provisions of
the enactment may be so closely inter-twined that blind
observance to a
strictly
verbal
interpretation
would
result in a large number of statutes being declared
invalid because the legislature enacting
them
may
appear to have legislated in a forbidden sphere. Hence
the rule which has been
evolved
by
the
Judicial
Committee, whereby the impugned statute is examined
to ascertain its
'pith
and
substance',
or its
'true
nature and character', for the purpose of determining
whether it is legislation with respect to matters in this
list or in that". Their Lordships
agree
that
this
passage correctly describes the grounds on which the
rule is founded, and that it applies to Indian as well
as to Dominion legislation"(').
The same principle was reiterated
by the Federal
Court in Ralla Ram v. The Province of East Punjab(2)
and was also referred to in Miss Kishori Shetty v. The
King( 3 ) in the following passage :-
"It may be that a general adoption of the policy
of prohibition by the Provinces will lead to a fall in
the import of foreign liquors and to a consequential
diminution of the Central customs revenue, but where
the Constitution Act has given to the Provinces legislative power with respect to a certain matter in clear
and unambiguous terms, the Court should not deny it
to them or impose limitations on its exercise, on such
extraneous consideration.
It is now well settled that
if an enactment according to its true nature, its pith
and substance, clearly falls within one of. the matters
assigned to the Provincial Legislature, it is valid notwithstanding its incidental encroachment on a Federal
subject."
The short question therefore to be asked is whether
the inipugned Act is in pith and substance a law
relating to possession and sale etc. of intoxicating
liquors or whether it relates to impon and export of
intoxicating liquors. If the true nature and character
(') [1947] F.C.R. at p. 51.
(3) [1949] F.C.R. 650 at 655.
(•) [1948] F.R.C. 207 at 225.
S.C.R.
SUPREME COURT REPORTS
697
of the legislation or its pith and substance is not
import and export of intoxicating liquor but its s:ile
and possession etc., then it is very difficult to dechre
the Act to be invalid.
It is said that the prohibition
of purchase, use, possession, transport and sale of
liquor will affect its import. Even assuming that such
a result may follow; the encroachment, if any, is only
incidental and cannot affect the competence of the
Provincial Legislature to enact the law in question.
On these considerations, there is really nothing else to
be said on the question befoo:: us, but in view of the
very great stress laid upon the American doctrine of
"original package", it seems necessary to deal with what
that doctrine means and under what conditions it was
evolved. The wide meaning of 'import' on which reliance was placed on behalf of the petitioner was
adopted for the first time by Marshall C. J. in BrQwn
v. Maryland(1), in which the facts were these. The
State of Maryland had passed an Act prohibiting
importers of foreign goods from selling their goods
without . taking a license for which a certain amount
had to be paid. The question which was raised in that
case was that the Act was repugnant to the provisions
of the Constitution which provided that
"no
State
shall without the consent of Congress allow any imposts
or duties on imports or exports except what may be
absolutely necessary for executing its inspection laws."
In the course of his judgment, Marshall C. J. observed
inter alia as follows :-
"There is no difference, in effect, between a power
to prohibit the sale of an article and .a power to prohibit its introduction into the country. The one would
be a necessary consequence of the other.
No
goods
would be imported if none could be sold.
No object
of any description can be accomplished by laying a
duty on importation, which may not be accomplished
with equal certainty by laying a duty on the
thing
·imported in the hands of the importer." (2)
The learned Chief-Justice further observed :-
(1) (1827) 25 U.S. 419.
(2) (1827) 25 U.S. at p. 439·
1951
The State qf
Bombay
antf Another
v.
F. N. Balsara.
F ;:lll Ali J.
1951
'The Stat• qf
Bombay
and Anotlt1r
v •
. .F. N. Balsara.
.Fazl Ali J.
698
SUPREME COURT REPORTS
[1951]
"Sale is the object of importation, and is an
essential ingredient of that intercourse, of which importation constitutes a part.
It is as essential an
ingredient, as indispensable to the existence of the
entire thing, then as importation itself.
It must be
considered as a component part of the power to regulate
commerce. Congress has a right, not only to authorise
importation, but to authorise the importer to sell."(')
Upon principles so stated, what is known as the
"original package" doctrine was
evolved in America,
which was applied not only to commodities imp0rted
from foreign countries but also to commodities , which
were the subject of inter-state commerce. This doctrine
laid down that importation was not over so long as
the goods were in the original package and hence a
State. had no power to tax imports until the original
package was broken or there was one sale while the
goods were still in the original package. The principle
upon which this doctrine was founded is explained by
Marshall C. J. in the case referred to in these words :-
"There must be a point of time when the prohibition ceases, and the power of the State to tax commences; we cannot admit that this point of time is
the instant that the articles enter the country .... It is
sufficient for the present to say, generally, that when
the importer has so acted upon the th:ing imported that
it has become incorporated and mixed up with
the
mass of property in the country, it has, perhaps, lost
its distinctive character as an import, and has become
.imbject to the taxing power of the State ; but while
remaining the property of the importer, in his ware.-
house, in the original form of package in which it was
imported, a tax upon it is too plainly a duty on imports
to escape the prohibition in the Constitution."(2)
The doctrine was reiterated in a number of cases,
=d in Leisy v. Hardin(8 ), it was laid down that "the
importers had the right to sell in the original packages
unopened and unbroken, articles brought into the
(') (1827) 25 U.S. at p. 447.
{') (1827) 25 U.S. at p. 441.
( 8) 135 U.S. 100.
S.C.R.
SUPREME COURT REPORTS
6'»
State from another State or territory notwithstanding
a starute of the State prohibiting the sale of such
articles except for purposes
mentioned
therein
and
under a license from the State".
The American writers
have however pointed out the difficulty which
arose
from time to· time in apply_ing the "original package" -
doctrine, since sometimes very intricate questions arose
before the courts, such as whether the d9Ctrine applied
to the larger cases only or to _the smaller packages contained therein, or whether it applied to SJ:!laller paper
packages of cigarettes taken from loose piles of packages at the factory and transported in baskets.
The
difficulty in applying the doctrine was particularly
experienced in working prohibition schemes, :md to
combat its mischief and uncertainty, new legislative
measures had to be passed by the Congress like the
Wilson Act, Webb-Kenyon Act, etc. I do not wish to
pursue the matter, but wish only to point out that the
doctrine has no plac~ in this country, having regard to
the scheme of legislation that has been outlined in the
· Government of India Act, 1935, and in the present
Constirution, in which the various entries in the Legislative Lists have been expressed in cleat and precise
language. In The Province of Madras v. Boddu Paidanna and Sons(1), Gwyer C.J., while expressing hjs
profound respect for the views expressed by Marshall C.J. in Brown v. Maryland( 2 ), mildly hinted that
it was easier to follow the line of reasoning of Thompson J. in his dissenting judgment in that case and
concluded with the following remarks :-
"Next, it is to be observed that the American
Constitution also provides that Congress alone has
power "to regulate commerce with foreign nations,
among the several States and with the Indian tribes",
and it was held that the Maryland tax was no less
repugnant to this provision also. Marshal C. J.