1940 (7) TMI 22 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the Notification dated July 17, 1939.
2. Power of the Provincial Legislature to introduce a policy of total prohibition in the Province of Bombay.
3. Application of Section 7 of the Bombay Act VI of 1940 to the Notification.

Detailed Analysis:

1. Validity of the Notification dated July 17, 1939:
The Notification issued on July 17, 1939, under Section 14B(2) of the Bombay Abkari Act, 1878, was declared "ultra vires and of no effect" by a full bench of the High Court on April 11, 1940. The basis of this decision was that the Government could not prohibit the possession of intoxicants by the public generally under Section 14B.

2. Power of the Provincial Legislature to Introduce a Policy of Total Prohibition:
The first question posed by the Magistrate was whether the Provincial Legislature had the power to pass a law introducing a policy of total prohibition in the Province of Bombay or certain areas thereof. The Court noted that the right of the Provincial Legislature to legislate on the subject is derived from Section 100 of the Government of India Act, 1935, and item 31 in List II of the 7th Schedule. The Court concluded that the Provincial Legislature had the power to legislate on the possession of intoxicating liquors, which necessarily includes the power to prohibit possession. However, this power must not encroach upon the legislative powers of the Central Legislature, especially concerning import and export across customs frontiers.

3. Application of Section 7 of the Bombay Act VI of 1940 to the Notification:
Section 7 of the Amending Act stated that any rule, order, or notification made or issued under the Abkari Act before the commencement of the Amending Act shall be deemed to have been made or issued under the Act as amended. The Court interpreted this section to mean that it does not embrace the Notification of July 17, 1939, as it had already been declared invalid and was a mere nullity. The Court further stated that even if Section 7 did apply, it would not revive the Notification, as the legislature had not explicitly enacted that the Notification should be treated as still in force despite the Court's decision.

Conclusion:
The Court answered the questions propounded by the learned Magistrate by stating that there is no effective Notification under Section 14B(2) of the Bombay Abkari Act, 1878, prohibiting the possession of intoxicants by persons generally in the City of Bombay. The Notification of July 17, 1939, having been declared invalid, remains invalid and cannot be revived by the Amending Act. The Provincial Legislature does have the power to legislate on the possession of intoxicating liquors, including prohibition, but this power is subject to the rights of the Central Legislature concerning import and export across customs frontiers.