This is one of the major landmark cases in which an explanation regarding Article 14 was given. F.N. Balsara petitioner in the present case assailed the validity of the Bombay prohibition act 1949.
The petition was filed by Balsara after the High court rejected his arguments to invalidate the act. The high court in its judgment dated 22 August 1950 invalidated some sections of the act. F.N. Balsara filed an appeal under Article 132 of the constitution for enforcement of fundamental rights.
This act prohibited the citizens to manufacture liquor, possessing, import or export liquor. Sell or buy liquor. Advertising the use of liquor was also prohibited. This act prohibited the use of all substances which contain alcohol.
Petition filed by F.N Balsara was heard by a five-judge bench consisting of Justice Faizal ali, Vivan bose, M Patanjali Sastri, Bijan Kumar Mukherjea, Sudhi Ranjan Das. The judgment of this court was delivered by Justice Faizal Ali.
Petitioner’s challenge to the act was based on the 3 grounds.
- The provincial government had legislated in the matter which is reserved with the Central government under entry 19 of list 1.
- Some of the material provisions of the Act interfere with or are calculated to interfere with inter-State trade and commerce and as such transgress the provisions of section 297 of the Government of India Act, 1935.
- The high court has held a number of provisions to be void that should have declared the whole act as void.
Entry 31 deals with the production, manufacture, possession, and purchase of intoxicating liquor, and entry 19 lists 1 deal with import and export across the custom frontier as defined by the dominion legislature.
Appeal by F.N. Balsara
The petitioner Balsara conteded 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 them.
On this 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 its import or introduction into the country since the one would be a necessary consequence of the other.
This once said contention was based on the American doctrine of “original package”. The court while taking the help of judgment delivered by Geyer CJ in Madras v. Boddu Paidanna and Sons held that the original package doctrine is not applicable in India.
Court also held that mere enroachment in the field of another legislature do not invalidate the act.
There also said 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 path and substance of the Act impugned.
If the Act, when so viewed, substantially falls within the 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 as- signed to another legislature.
Petitioner Balsara challenged the validity of sec. 39 of the act on Article 14 of the constitution which deals with concept of equality and equal protection of laws.
Sec. 39 said that foreign liquor can be used in cargo boats, warships, and troopships and in the military and naval messes and canteens. Petitioner contended allowing above said people and not allowing citizens to possess is not a reasonable classification under article 14.
The Supreme court while taking a different view taken by the High court of bombay held that special treatment to the class of people who are treated as different class in other statue and provisions of other acts is not violative of article 14 and there is a resonable classification.
Section 143 of the Act provides that any foreigner who visited India who enters inside Bombay can possess, use and consume liquor shall apply to certain officers for obtaining a permit which can be renewed.
The high court invalidated this section on the ground that it creates the difference between a foreign citizen and an Indian citizen who visited Bombay. The Supreme court held though it provides for the case of foreign visitors there is no prohibition against any other outsider for obtaining a permit. Secondly, section 40 enables permits to be granted to foreigners under certain conditions.
The high court in its judgment declared sec 52, 53, and sec 139 (c) of the act invalid on the ground they constitute delegation of legislative power.
The high court said “In our opinion, in leaving it to Government to issue permits in cases other than those provided for by the Act, in permiting Government to vary or substitute conditions of the license, and in permitting Government to exempt persons or classes from the provisions of the Act, the legislature was clearly delegating to Government its own power of legisla- tion. This it can clearly not do.”
Supreme Court held that “A legislature while legislating cannot foresee and provide for all future contingencies, and section 52 does no more than enable the duly authorized officer to meet contingencies and deal with various situations as they arise. The same considerations will apply to sections 53 and 139 (c).“
Petitioner Balsara also contended that the act is violative of Article 19 (1) (f) of the constitution because it prohibits “acquire, hold and depose of property”. The court said it infringes the fundamental right but the question is that can it be prevented by clause 5 of article 19.
Court said by seeing directive principle that the state can prohit use of liquor but not for its legitimate use i.e., for the purpose of toilets and medicines liquids.
The next group of sections which the High Court has held to be invalid, are sections 23(a) and 24(1) (a) in so far as they refer to “commending” an intoxicant, section 23(b) in its entirety, and section 24(1)(b) in so far as it refers to “inciting or encouraging” any individual or class of individuals or the public generally “to evade the provisions of any rule, regulation or order made thereunder or the conditions of any license, etc.“
The Supreme court also held sec 23 (a) violative of Article 19(1) a right of freedom and expression. Article 19 which stands at the time states that “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”
Supreme court said “It seems that none of the conditions mentioned in clause applies to the present case, and therefore the provisions in question must be held to be void. Section 23 (b) must also be held to be void. because the words “incite” and “encourage” are wide enough to include incitement or encouragement by words and speeches and also by acts.“