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Issues Involved:
1. Constitutionality of Section 39 of the Calcutta Police Act, 1866. 2. Whether Section 39 imposes unreasonable restrictions on the fundamental right to carry on trade under Article 19(1)(g) of the Constitution. 3. Whether the discretion conferred on the Commissioner of Police under Section 39 is arbitrary and unguided. 4. Whether the absence of a provision for a hearing and for giving reasons for refusal makes Section 39 unconstitutional. 5. Allegations of mala fides in the rejection of the petitioner's licence application. Issue-wise Detailed Analysis: 1. Constitutionality of Section 39 of the Calcutta Police Act, 1866: The petitioner challenged the constitutionality of Section 39 of the Calcutta Police Act, 1866, arguing that it conferred naked and uncanalised powers on the Commissioner of Police to grant or refuse a licence without any guiding criteria, thus amounting to an unreasonable restriction on the fundamental right to carry on trade under Article 19(1)(g) of the Constitution. 2. Whether Section 39 imposes unreasonable restrictions on the fundamental right to carry on trade under Article 19(1)(g) of the Constitution: The Court examined whether Section 39 of the Act constitutes a reasonable restriction within the meaning of Article 19(6) on the fundamental right to practice any profession or to carry on any occupation, trade, or business under Article 19(1)(g). The Court noted that the Act was passed in 1866, long before the Constitution came into force, and thus, the language might not reflect the meticulousness expected in post-1950 statutes. The Court opined that the section must be read as a whole to determine if there is any guidance for the Commissioner in granting or refusing licences. 3. Whether the discretion conferred on the Commissioner of Police under Section 39 is arbitrary and unguided: The Court concluded that Section 39 does not confer absolute and unguided discretion on the Commissioner. It provides that the Commissioner must satisfy himself on three points: (i) the applicant must be the keeper of an eating house, (ii) the applicant must be of good behavior, and (iii) the applicant must be able to prevent drunkenness and disorder among patrons. The Court held that these criteria guide the Commissioner's discretion, thereby making the restriction reasonable. 4. Whether the absence of a provision for a hearing and for giving reasons for refusal makes Section 39 unconstitutional: The petitioner argued that the absence of a provision for a hearing and for giving reasons for refusal rendered Section 39 unconstitutional. The Court, however, held that procedural aspects must be examined in the context of the statute. It noted that the discretion is vested in a high police officer, and while the Commissioner is expected to act reasonably, there is no duty cast on him to act judicially. The Court stated that the absence of a provision for a hearing or for communicating reasons does not make Section 39 unconstitutional, as the petitioner has the remedy to apply to the High Court under Article 226 if the Commissioner acts unreasonably. 5. Allegations of mala fides in the rejection of the petitioner's licence application: The petitioner alleged that the order rejecting his licence application was mala fide. The Court found no grounds to support this allegation, noting that the petitioner did not claim any personal animus or favoritism by the Commissioner. The Court dismissed the petition on this ground as well. Separate Judgment by Subba Rao, J.: Subba Rao, J., dissented, arguing that Section 39 imposed unreasonable restrictions on the fundamental right to carry on trade. He emphasized that the discretion conferred on the Commissioner was uncanalised and arbitrary, lacking procedural safeguards such as a hearing or an appeal mechanism. He concluded that Section 39 infringed the petitioner's fundamental right under Article 19(1)(g) and recommended issuing a writ of mandamus against the Commissioner. Conclusion: The majority opinion upheld the constitutionality of Section 39 of the Calcutta Police Act, 1866, dismissing the petition with costs. Subba Rao, J., dissented, finding the section unconstitutional and recommending a writ of mandamus.
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