THE STATE OF BOMBAY AND ANOTHER Vs. F.N.BALSARA 

FACTS OF THE CASE 

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.  

(1) to allow him to exercise his right to possess, consume and use certain articles -whisky,  brandy, wine, beer, medicated wine, eau-de-cologne etc., and also 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. 

(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.  

ISSUE IN THE CASE 

(1) Whether there are sufficient grounds for declaring the whole Act to be invalid? 

(2) What extent the judgment of the High Court can be upheld with regard to the specific  provisions of the Act which have been declared by it to be void. 

ARGUMENTS 

The constitutional validity of the Bombay Prohibition Act, 1949, in so far as it restricted 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  

(i) The words “possession and sale” occurring in entry 31 of List II must be read without  any qualification, and the word “import” in entry 19 of List I 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, use, possession, transport and sale of  liquor will affect its import. The Bombay Prohibition Act was in pith and substance  an Act falling within entry 31 of List II and the fact that the law incidentally  encroached upon the powers of the Dominion Legislature under entry 19 of List I  would not affect its validity. 

It should be noted that this provision refers to “trade and commerce within the province”,  which is the subject of entry 27 of List II and to “production, supply and distribution of  commodities”, which is the subject of entry 29 of List II.  

The Bombay Prohibition Act, 1949, does not in any way contravene the provisions of S. 297(1) (a) of the Government of India Act. 1935, in as much 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).  To follow the case Bhola Prasad v. King Emperor [1942] F.C.R. 17. 

The word “liquor” covered not only those alcoholic liquids which are generally used as  beverages and produce intoxication, but also all liquids containing alcohol; the definition of”  liquor” contained in S. 2 (24) of the Bombay Prohibition Act, 1949, is not therefore ultra vires.  

The argument assailing the validity of the Act as a whole, which is based on three grounds, these  being :– 

(1) The law is an encroachment on the field which has been assigned exclusively to the Central  Legislature under entry 19 of List I 

(2) 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 provisions of section 297 of the  Government of India Act, 1935 

(3) The High Court having held a number of material provisions to be void, should have  declared the Act as a whole to be invalid.  

The short question therefore to be asked is whether the impugned Act is in pith and substance a  law relating to possession, sale of intoxicating liquors or whether it relates to import and export  of intoxicating liquors. If the true nature and of the legislation or its pith and substance is not  import and export of intoxicating liquor but its sale and possession etc., then it is very difficult to  declare 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. 

The second attack on the Act is founded upon the provision contained in section 297(1)(a) of the  Government of India Act, 1935, and it is contended that the prohibitions contained in the  impugned Act in regard to the use, consumption, purchase, transport, possession and sale of  intoxicating liquor will necessarily amount to prohibiting and restricting interprovincial.  commerce, and in as much as they tend to stop and restrict entry into or export from the Province  of Bombay of goods of a particular class or description. 

Article 47 of the Constitution, which contains one of the directive principles of State policy,  provides that “the State shall regard the raising of the level of nutrition and the standard of living  of its people and the improvement of public health as among its primary duties and, in particular,  the State shall endeavor to bring about prohibition of the consumption, except for medicinal  purposes, of intoxicating drinks and of drugs which are injurious to health”. the idea of  prohibition is connected with public health, and to enforce prohibition. 

visitor, there 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 conditions. The Section 39 of the Act which empowers the Provincial Government to permit the use or  consumption of foreign liquor on cargo boats, warships and troopships and in military and naval  messes and canteens does not contravene Art 14 of the Constitution. The Section 39 of the Act  which has been impugned on the ground that it offends against article 14 of the Constitution  which states that “the State shall not deny to any person equality before the law or the equal  protection of the laws within the territory of India”. The meaning and scope of this article has  been fully discussed in the case of Chiranjit Lal Chowdhury v. The Union of India and  Others. While reasonable classification is permissible, such classification must be based upon  some real and substantial distinction bearing a reasonable and just relation to the object sought to  be attained, and the classification cannot be made arbitrarily and without any substantial basis.

JUDGEMENT 

Judgment of the Court was delivered by FAZL ALI J on 25 May 1951 These appeals arise from the judgment and order of the High Court of Judicature at Bombay  upon the application of one F.N. Balsara, assailing the validity of certain specific provisions of  the Bombay Prohibition Act, 1949 as well as of the Act as whole. 

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. The High Court also held Rule 67 of the Bombay  Foreign Liquor Rules which authorizes the granting of a permit to “any foreigner on a tour of  India who enters the State of Bombay and desires to possess, use and consume foreign liquor. 

The High Court has held it to be invalid. As regards the first notification, the High Court has stated  that section 139 (c) having been held to be ultra vires the legislature, this notification, which was  issued under that section is ultra vires the Bombay Government. But since this Court has taken a  different view in regard to the validity of section 139(c), the decision of the High Court as  regards the above notification cannot stand. 

It is said that the law should have been enforced alike against the civil population and military  personnel, between whom no distinction can be made at all on any rational ground in the  enforcement of the policy of prohibition. 

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. 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 article 132(1) of the Constitution. 

The Supreme Court therefore declared some provisions of Bombay Prohibition Act as illegal.  These provisions were with regard to keeping alcohol-mixed medicines, and toilet goods, and  also selling them. The other provisions were declared legal and valid. Thus, due to some  provisions being illegal, the whole of the Act cannot be declared illegal. 

Therefore, the Appeal No. 182, by the State of Bombay was substantially allowed and Appeal  No. 183, by the petitioner was dismissed. 

CONCLUSION 

The judgment of the High Court cannot be supported, because I think that there is an  understandable basis for the exemptions granted to the military canteens, etc. by the Act. The  armed forces have their own traditions and mode of life, conditioned and regulated by rules and 

regulations which are the product of long experience and which aim at maintaining at a high  level their morale and those qualities which enable them to face dangers and perform unusual  tasks of endurance and hardship when called upon to do qualities such as dash and courage,  unbreakable tenacity and energy ready for any sacrifice which should be unfaltering for long  days together. By these rules and regulations, drinking among the forces is not prohibited, but it  is properly and carefully regulated.  

REFERENCES 

1 https://indiankanoon.org/doc/21722097/ 

2. https://www.ourlegalworld.com/state-of-bombay-and-ors-v-f-n-balsara-case analysis/#_ftnref1 

3. https://www.lawinsider.in/judgment/state-of-bombay-and-ors-vs-f-n-balsara 

This Article is written by Sachin Chopade from Dr. Babasaheb Ambedkar Marathwada  University of Aurangabad, Maharashtra. Intern at Legal Vidhiya.

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