1950 (8) TMI 22 - HC - Indian Laws

Summary

Issues Involved:
1. Legislative Competence of the Bombay Prohibition Act, 1949.
2. Violation of Fundamental Rights under the Indian Constitution.
3. Delegation of Legislative Powers.
4. Severability of Provisions in the Act.

Issue-wise Detailed Analysis:

1. Legislative Competence of the Bombay Prohibition Act, 1949:
The petitioner contended that the Act's provisions regarding the use, consumption, and possession of liquids containing alcohol but not intoxicating liquors were beyond the Provincial Legislature's competence. The Act was passed under the Government of India Act, 1935, and its legislative competence had to be determined with reference to List II and List III in Schedule VII of the Act. The court noted that the Provincial Legislature had plenary powers within its ambit and was sovereign. The Act fell within the scope of Items 29, 31, and 40 in List II, dealing with the production, supply, and distribution of goods, intoxicating liquor, narcotic drugs, and excise duties. The court concluded that while the Legislature could prohibit intoxicating drinks, it could not prevent the legitimate use of non-beverages and medicinal and toilet preparations containing alcohol.

2. Violation of Fundamental Rights under the Indian Constitution:
The petitioner argued that the Act violated several fundamental rights guaranteed by the Indian Constitution, including the right to equality (Article 14), freedom of speech and expression (Article 19(1)(a)), and the right to acquire, hold, and dispose of property (Article 19(1)(f)). The court held that certain provisions of the Act, such as those preventing the legitimate use of non-beverages and medicinal and toilet preparations containing alcohol, were void as they offended the right to acquire, hold, and dispose of property. The court also found that the provisions regarding the exemption of certain classes (e.g., military messes and foreigners) violated the right to equality. Additionally, sections restricting freedom of speech and expression were found to be unconstitutional.

3. Delegation of Legislative Powers:
The petitioner contended that the Act constituted an improper delegation of legislative powers to the executive. The court agreed, noting that sections 52, 53, and 139(c) of the Act allowed the Government to grant licenses, vary conditions, and exempt persons or classes from the Act's provisions. This delegation was found to be beyond the Legislature's authority, as it allowed the executive to alter the policy laid down by the Legislature.

4. Severability of Provisions in the Act:
The court considered whether the invalid provisions could be severed from the rest of the statute. The test of severability was whether the remaining provisions were so inextricably bound up with the invalid parts that they could not independently survive. The court concluded that the Prohibition Act, being both an amending and consolidating Act, contained provisions beyond prohibition, such as those related to the Abkari law and excise duties. Therefore, the invalid provisions could be severed, and the rest of the Act could remain in force.

Conclusion:
The court held that certain provisions of the Bombay Prohibition Act, 1949, were beyond the legislative competence of the Provincial Legislature and violated fundamental rights guaranteed by the Indian Constitution. The provisions regarding the legitimate use of non-beverages and medicinal and toilet preparations containing alcohol were void. The court also found that the Act improperly delegated legislative powers to the executive. However, the invalid provisions could be severed from the rest of the Act, allowing the remaining provisions to remain in force. The petitioner was entitled to relief against the enforcement of the void provisions.