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TMI Blog1940 (7) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... he Governor of Bombay, being the then legislative authority in Bombay, passed Bombay Act VI of 1940 amending the Bombay Abkari Act. The material Section s of that Act, which we will refer to as the Amending Act, are Section s 6 and 7. Section 6 amends Section 14B of the Bombay Abkari Act, and in order to appreciate the amendment it is necessary to state the terms of Section 14B, which were as follows: (1) No person not being a licensed manufacturer or vendor of any intoxicant of hemp and no licensed vendor except as authorised by his license shall have in his possession any quantity of any intoxicant or hemp in excess of such limit as the Provincial Government under Section 17 may declare to be the limit of retail sale, except under a permit from the Collector: Provided that nothing in Sub-section (i) shall extend to any foreign liquor, other than denatured spirit, in the possession of any common carrier or warehouseman as such, or purchased by any person for his bona fide private consumption and not for sale. (2) Notwithstanding anything contained in Sub-section (1) the Provincial Government may by notification in the Official Gazette prohibit the possession by any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Policy of total Prohibition in the Province of Bombay or in certain areas thereof; and (6) whether Section 3 and Section 6(b) of Bombay Act VI of 1940 are intra vires, in particular with regard to total prohibition of possession of liquor and of intoxicating drugs. Second Question: In the event of the first question being answered in the affirmative, whether there is in existence any effective Notification under Section 14B(2) of the Bombay Abkari Act, 1878, absolutely prohibiting the possession of intoxicants by persons generally in the City of Bombay; in other words;, whether Notification No. 374/39/(c), 'dated July 17, 1939, which was declared by the High Court to be ultra vires and of no effect, is to be considered as in force by virtue of Section 7 of the Bombay Act VI of 1940. 6. In our view the first question does not really arise in connection with the prosecution. It is admitted that the accused has not infringed any provision of the Abkari Act; he is alleged to have infringed the provisions of the said Notification of July 17, 1939, and the only question, therefore, which arises, is whether that Notification is valid and in force. No doubt the notification might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court having been made in favour of another accused, the present accused cannot take advantage of it, since the judgment of this Court is not a judgment in rem within Section 41 of the Indian Evidence Act. But the Notification having been held by this Court to be invalid, it is invalid according 'to the law in force in this Province, and everybody can act upon that view of the law. There having been no appeal from the decision of this Court, the only manner in which the law as declared by this Court could be altered would be by an Act of the legislature. The legislature could no doubt have enacted that notwithstanding the decision of this Court the Notification in question should be treated as being still in force, and as having been issued under the original Act as amended. But the legislature has not done that. All it has done is to say that the Notification shall be deemed to have been issued under the Bombay Abkari Act as amended. That is to say, the original Notification is not revived, or deemed to have been passed on a different date to that on which it was passed; it is merely deemed to have been passed under a law different from that which in fact existed at i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... throughout the whole Province; it only enforces Prohibition within the Town and Island of Bombay. We see no reason to doubt that the Provincial Legislature has power so to limit possession, provided that in so doing it does not encroach upon the legislative powers of the Central Legislature. Now, under item 19 of List I of the 7th Schedule, which contains the subjects on which the Central Government can legislate, is included import and export across customs frontiers as defined by the Federal Government. By a Notification of April 1, 1937, the Federal Government for the purpose of item 19 in List I has defined the customs frontier as the frontier, whether one or more than one, whether sea or land, whether exterior or interior, of British India. It is, therefore, clear in our view that the Central Legislature is the authority to legislate in respect of import and export of intoxicants across the sea frontier of Bombay, and the powers of the Provincial Legislature under item 31 in List II must be exercised subject to this right of the Central Legislature. It is settled that in cases of conflict between the items in List I and List II it is the duty of the Court to endeavo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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