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TMI Blog1949 (11) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an appeal from a conviction and sentence by the Presidency Magistrate, Fifth Court, Bombay, for an offence under the Bombay Abkari Act (V [5] of 1878). 2. The appellant was charged with having in her possession in contravention of the Act, a quantity of foreign liquor (White Label Scotch Whisky) in excess of the limit permitted under a Government notification dated 20th July 1948, issued under the Act, and she was convicted and sentenced to a term of three months' rigorous imprisonment and a fine of ₹ 500 or in default to a further term of 6 weeks' rigorous imprisonment. On appeal to the High Court her main contention was that the Provincial Legislature had no power under the Government of India Act, 1935, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the new cl. (10) of S. 3 they mean respectively the bringing into and taking out of the Presidency otherwise than across a customs frontier as defined by the Central Government. This modification had to be made because under the Constitution Act the exclusive power to legislate with respect to import and export across such frontiers was in the Federal Legislature. Further amendments in the Act were effected in 1940 with a view to supersede a pronouncement by a Special Bench of the High Court in Chinubhai Lalbhai v. Emperor, I.L.R. (1940) Bom. 587: (A.I.R 1940 Bom. 273: 41 Cr. L.J. 834) that the Provincial Government had no power under S. 14-B to prohibit the possession of intoxicants as there was nothing in the Act, as it appeared to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y prescribe. The amending Act deleted the proviso to sub-s. (1) and substituted in sub-s. (2) the words any individual or a class or body of individuals ox the public generally for the words any person or class of persons. That Act was repealed, but the amendments aforesaid were re-enacted by the Bombay Abkari (Amendment) Act, 1947, which was passed by the Provincial Legislature after the lapse of the Governor's Proclamation under S. 93. The appellant attacks the validity of these amendments and, in particular, the deletion of the proviso to sub-section (1), contending that the Provincial Legislature has no power to restrict or prohibit the possession of intoxicants imported from foreign countries. 4. Now, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Item 19 of the latter List must, it was submitted, be regarded as a nullity. We are unable to accede to this contention. As pointed out by this Court in Bhola Prasad v. Emperor, 1942 F.C.R. 17 : (A.I.R 1912 F.C. 17 : 43 Cr. L.J. 481 F.C.) the legislative power given to the Provinces under Item 81 of List II is expressed in wide and unqualified teems which in their natural and ordinary sense are apt to cover such an enactment as S. 14-B in its amended form, and we see nothing in the Federal Legislative List and more particularly in Item 19 to lead us to out down the fall meaning of the Provincial entry by excluding foreign liquors from its purview. There is, in our view, no irreconcilable conflict here such as would necessitate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to the Provinces legislative power with respect to a certain matter in clear and unambiguous terms, the Court should not deny it to them or impose limitations on its exercise, on such extraneous considerations. It is now well settled that if an enactment according to its true nature, its pith and substance, clearly falls within one of the matters assigned to the Provincial Legislature, it is valid notwithstanding its incidental encroachment on a Federal subject--Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna, 1947 F.C.R. 28: (A.I.R 1947 P.C. 60). 6. Reliance was placed by learned counsel en certain observations made obiter in Emperor V. S.M. Dantes, I.L.R. (1940) Bom. 777: (A.I.R 1940 Bom. 307: 42 Cr. L.J. 74 S.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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