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TMI Blog1954 (9) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... Abhichandani. The police arrested the appellant and took him to the police station. From the police station he was taken to St. George's Hospital in order to be examined by the doctor for alleged consumption of liquor. The doctor found his breath smelling of alcohol. He however found the conjunctiva were congested, the pupils were semi-dilated and reacting to light. The speech was coherent and he could behave himself and walk along a straight line. The doctor was therefore of opinion that he did not seem to be under the influence of alcohol though he had taken alcohol in some form or the other. 3. The appellant was put up before the Presidency Magistrate for his trial under two offences, one under section 338 of the Indian Penal Code on three counts for causing grievous hurt to the three injured persons by doing a rash and negligent act, i.e., driving his motor car in a rash and negligent manner, and the other under section 66(b) of the Bombay Prohibition Act. The appellant cross-examined the doctor and suggested that he had taken a medicinal preparation, B. G. Phos, and also stated in answer to the Magistrate on the 20th December, 1951, that he had not consumed any liquor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not liquor in a prohibited form or was alcohol in a medicated form, he must show it. The High Court observed that the Magistrate had misdirected himself on a point of law and it was therefore open to it to examine the evidence and come to its own conclusion whether the appellant had shown that he had taken B. G. Phos that night after dinner and that the alcoholic smell which was still found in his mouth as late as 11.30 P.M. when he was examined by the doctor was the smell of the alcoholic contents of B. G. Phos. It came to the conclusion that the appellant had failed to prove the existence of circumstances from which the Court could come to the conclusion that the liquor which was consumed by the appellant was not prohibited liquor but liquor which was excepted by the Bombay Prohibition Act from its operation and set aside the order of acquittal passed by the learned Presidency Magistrate in his favour convicting him of the offence and sentencing him as above. 6. It was contended on behalf of the appellant before us that the Bombay Prohibition Act, 1949, was impugned after the advent of the Constitution and this Court by its decision in The State of Bombay and Anr. v. F.N. Bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cially within the knowledge of the accused and that therefore the burden of proving such fact was upon him, and that once the prosecution had discharged the onus which lay upon it to prove that the accused had consumed liquor it would be for the accused to show that the liquor which was taken by him was a liquid medicinal or toilet preparation containing alcohol. (Vide section 106 of the Evidence Act). 8. The relevant provisions of the Bombay Prohibition Act, 1949, may be here set out. The Act was passed inter alia to amend and consolidate the law relating to the promotion and enforcement of and carrying into effect the policy of prohibition in the Province of Bombay. Section 2(22) defined an intoxicant to mean any liquor…. Section 2(24) defined liquor to include (a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol. Chapter III enacted the prohibitions, and section 13(b) provided :- No person shall…. (b) consume or use liquor…. Section 13(b) is the penal section and provided: Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made, or of any licence, permi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto is true also as to any part of an Act which is found to be unconstitutional and which consequently has to be regarded as having never at any time been possessed of any legal force…. 13. See also the dictum of Field J. in Norton v. Shelby County 118 U.S. 425 : 30 L.Ed. 178: An unconstitutional Act is not law, it confers no rights, it imposes no duties, if affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. 14. To the same effect are the passages from Rottschaefer on Constitutional Law, at page 34: The legal status of a legislative provision in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional results. That theory implies that the legislative provision never had legal force as applied to cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f validly prohibited liquor, i.e., spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet liquid preparations consisting of or containing alcohol, and that was the only prohibition which could be enforced under section 13(b) and the penal section 66(b). The consumption or use of liquid medicinal or toilet preparations containing alcohol could not be validly prohibited and any person consuming or using such medicinal or toilet preparations containing alcohol could not be hauled up for having contravened the provisions of the Act. No offence could be committed by the consumption of liquid medicinal or toilet preparations containing alcohol and the provision enacted in section 13(b) read in the light of the definitions of intoxicant and liquor contained in sections 2 (22) and 2(24) of the Act in so far as it prohibited the consumption or use of liquor including liquid medicinal or toilet preparations containing alcohol was rendered inoperative and unenforceable by the declaration to the extent of the inconsistency and liquid medicinal or toilet preparations containing alcohol were lifted out of the category of validly prohibited liquor. Whatever ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not or which are not or other than or save or except or provided they are not or but shall not include liquid medicinal or toilet preparations containing alcohol or all non-medicinal and non-toilet liquid preparations consisting of or containing alcohol. 20. When these several interpretations were possible in regard to the effect of the declaration on the provisions of section 13(b), where would be the justification for interpreting the effect of the declaration to be that of grafting an exception or proviso on section 13(b) so as to attract the operation of the provisions of section 105 of the Evidence Act? It is clear that where several interpretations are possible, the Court should adopt an interpretation favourable to the accused, rather than one which casts an extra or special burden upon him, which if at all should be done by clear and unequivocal provision in that behalf rather than in this indirect manner. (See also In re Kanakasabai Pillai (A.I.R. 1940 Mad. 1)). It would be more in consonance with the principles of criminal jurisprudence to interpret the effect of this declaration to be that the prohibition enacted in section 13(b) where it came to be enforced agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence. (See Attygalle v. The King A.I.R. 1936 P.C. 169, also In re Kanakasabai Pillai AIR 1940 Mad 1. It is for the prosecution to prove that he has committed the offence and that burden is not in any manner whatsoever displaced by section 106 of the Evidence Act. 22. The High Court in arriving at its decision in Rangarao Bala Mane v. State (supra) above referred to was impressed with the circumstance that the prosecution could not possibly prove that no form of medicated alcohol was taken by the accused, that there were evidently numerous forms of medicated alcohol and that it was impossible for the prosecution on the very face of things to exclude all those forms. The difficulty was illustrated by the High Court in the manner following: For instance, if the prosecution were to lead evidence to show that the accused had not taken medicated alcohol in the form of B. G. Phos, the accused would contend that he had taken it in some other form. If the prosecution were to lead evidence that the accused had not taken it in the form of Winedex, the accused would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d person was shown to have consumed liquor in some form or the other the presumption was that he had consumed validly prohibited liquor and the onus would be upon him to rebut that presumption by showing that he had consumed medicinal or toilet preparations containing alcohol. 24. The difficulty in the way of the prosecution proving its case need not deflect the Court from arriving at a correct conclusion. If these difficulties are genuinely felt it would be for the Legislature to step in any amend the law. It would not be the function of the Court to read something in the provisions of the law which is not there or to find out a way of obviating the difficulties in enforcing the law howsoever meritorious the intentions of the Legislature might be. If these difficulties were felt in the matter of enforcing the policy of prohibition by the State of Bombay the only remedy was to effect the necessary amendments when the Bombay Act XXVI of 1952 was enacted on the 22nd October, 1952, after this Court made the declaration in The State of Bombay and Anr. v. F.N. Balsara (supra). 25. In my opinion it was not enough for the prosecution in the present case merely to prove that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is of the opinion that in the light thereof the prohibition under section 13(b) is to be understood to relate (so far as is relevant for the present purpose) to consumption or use of non-medicinal or non-toilet liquid preparations containing alcohol and that, therefore, the burden lies on the prosecution to make out all the ingredients of the prohibition so understood with the negative thereof. On the other hand, my learned brother Justice Venkatarama Ayyar is of the opinion that the effect of the decision in The State of Bombay and Anr. v. F.N. Balsara (supra) is not to amend or alter section 13(b) but only to render it partly unenforceable, and hence to provide a defence to the accused, on the ground of unconstitutionality in so far as that section is sought to be applied to medicinal or toilet preparations containing alcohol and that, therefore, the burden of making out the facts required for this plea is on the accused. 30. I agree that no legislative function can be attributed to a judicial decision and that the decision in The State of Bombay and Anr. v. F.N. Balsara (supra) does not, proprio vigore amend the Act. The effect of a judicial declaration of the unconstitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not had the benefit of all the relevant material being placed before us by the learned advocates on either side. The second view was the basis of the arguments before us. It is, therefore, necessary and desirable to deal with this case on that assumption. 32. The question, then, for consideration is what is the notional amendment which must be imported into the Act consistently with the decision in The State of Bombay and Anr. v. F.N. Balsara (supra). The relevant portions thereof are as follows: (1) The definition of liquor in the Act to its full extent continues to be valid, (2) section 13(b) of the Act in so far as it relates to liquid toilet or medicinal preparations containing alcohol is invalid, and (3) this portion of the content of section 13(b) is severable. The argument of the appellant's learned counsel is that the essence of the valid prohibition under section 13(b) now is the consumption or use of liquor other than liquid medicinal or toilet preparations containing alcohol. He urges, therefore, that section 13(b) must be taken to stand amended accordingly. The argument, if I understood it aright, was that the word liquor stands amended as prohibited liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law defining the offence. If, on the other hand, the section is treated as amended by incorporating the portion marked 'B' omitting the portion marked 'A', it appears to me, with great respect, that it is to alter the very content of the word liquor in the section, for which I can find no legal justification. What the decision in The State of Bombay and Anr. v. F.N. Balsara (supra) authorises is, as I have already explained above, to keep the word liquor intact with its full content and sever from the provision taken as a whole (not merely from the word liquor ) medicinal or toilet preparations. I feel accordingly confirmed in the view that I have taken, viz., that this can only be done by engrafting an exception or a proviso. 35. As regards the other view suggested by my learned brother, Justice Bhagwati, that without importing any alteration or amendment in the section it self, the same is to be understood as having reference to what may be called prohibited liquor , understanding that word with reference to the decision in The State of Bombay and Anr. v. F.N. Balsara (supra), here again, with great respect, I feel difficulty in imputing into a specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be within his knowledge, to render the defence reasonably probable even if he may not have been able to prove the same strictly to the hilt. 38. I am, therefore, of the opinion that the conviction of the appellant under section 66(b) of the Bombay Prohibition Act, 1949, is correct, But in the circumstances, it is not necessary to send him back to jail. I would, therefore, reduce the sentence of imprisonment to the period already undergone. In the result, the appeal has to be dismissed subject to this modification. 39. I regret that I am unable to agree with the view taken by my learned brother, Bhagwati J. The facts giving rise to this appeal have been stated in his Judgment which I have had the advantage of reading and it is unnecessary to restate them. The point for decision shortly is whether in a prosecution under section 66(b) of the Bombay Prohibition Act, XXV of 1949, for contravention of section 13(b), the prosecution has to establish not merely that liquor had been taken in some form but that further what was taken was not a medicinal preparation. The learned Judges of the Bombay High Court held following an earlier decision of that Court in Rangarao Bala Mane v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at view no question of the accused having to rely on an exception arose and no question of the burden being thrown on him under section 105; and that as the offence it self consisted in consuming a liquor which was not a medicinal preparation, the burden would lie on the prosecution to establish that what was consumed was a prohibited liquor. On the other hand, the respondent contends that the definition of liquor in section 2(24) includes not only beverages but also medicinal preparations, that the extended definition would apply to section 13(b) as well, that the immunity of medicinal preparations containing alcohol from the operation of the section by reason of the decision in The State of Bombay and Anr. v. F.N. Balsara (supra) must in consequence be treated as an exception to it and that the section should be read as containing a saving in favour of those preparations, in the nature of an exception or proviso, the burden of establishing which under section 105 of the Evidence Act would be on the accused. I agree with the appellant that section 105 has no application. We are not here concerned with any exception, general or special, under the Penal Code or any other law definin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct a law in respect of medicinal preparations containing alcohol because the words intoxicating liquor meant beverages and not medicines but this contention was negatived by this Court on the ground that the words intoxicating liquor had acquired an extended sense as including medicinal preparations containing alcohol and that the Legislature was competent while enacting a law with reference to intoxicating liquors to legislate on medicinal preparations containing alcohol. The definition of liquor in section 2(24) in its extended sense having thus been held to be valid, it follows that unless there is something in the particular provision to the contrary, the word liquor must wherever it occurs in the statute include medicinal preparations and that is the meaning which it must bear in section 13(b). In The State of Bombay and Anr. v. F.N. Balsara (supra), it is on the footing that medicinal preparations are included in section 13 that the entire discussion on its validity with reference to article 19(1)(f) proceeds. We therefore start with this that under section 13(b), the Legislature has made it an offence to take alcohol in any form, whether as beverages or as medicinal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a check, whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of the Legislature, as for example, when a State enacts a law which is within the exclusive competence of the Union, it would be a nullity. That would also be position when a limitation is imposed on the legislative power in the interests of the public, as, for instance, the provisions in Chapter XIII of the Constitution relating to inter-State trade and commerce. But when the law is within the competence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals, it is not a nullity but is merely unenforceable. Such an unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well settled (Vide Cooley on Constitutional Limitations, Volume I, pages 368 to 371; Willis on Constitutional Law, at pages 524, 531, 542 and 558; Rottschaefer on Constitutional Law, at pages 28 and 29-30). In Shepard v. Barron 194 U.S. 553 : 48 L.Ed. 1115, it was observed that provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional prohibition could be enforced proprio vigore when once the prohibition is removed. The law is thus stated in Willoughby on the Constitution of the United States, Volume I, at page 11 The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature, and, if thus tested it is beyond the legislative power, it is not rendered valid, without re-enactment, if later, by constitutional amendment, the necessary legislative power is granted. However, it has been held that where an act is within the general legislative power of the enacting body, but is rendered unconstitutional by reason of some adventitious circumstance, as for example, when a State legislature is prevented from regulating a matter by reason of the fact that the Federal Congress has already legislated upon that matter, or by reason of its silence, is to be constructed as indicating that there should be no regulation, the act does not need to be re-enacted in order to be enforced, if this cause of its unconstitutionality is removed. 45. The authority cited in support of this observation is the decision in Wilkerson v. Rahrer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 263 et, seq., to which counsel for the respondent invited our attention. It is there pointed out that the word void in statutes and decisions might mean either that is absolutely void or relatively void ; that that is 'absolutely void' which the law or the nature of things forbids to be enforced at all, and that is 'relatively void' which the law condemns as a wrong to individuals and refuses to enforce as against them ; that what is absolutely void is incapable of confirmation and ratification; and that what is relatively void could be waived. 49. The true scope of article 13(1) was considered by this Court in Kesavan Madhava Menon v. State of Bombay 1951 CriLJ 680. There the point for determination was whether the Constitution was retrospective in its operation. In the course of his judgment Das J. observed: It should further be seen that article 13(1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he burden which lay on the prosecution of establishing the offence had not been discharged and reliance was placed on the decision in Woolmington v. Director of Public Prosecutions (1935) A.C. 462, and on Indian authorities wherein it was followed : Emperor v. U. Damapala I.L.R. 14 Rang. 666; Prabhoo v. Emperor I.L.R. 1941 All. 843. In opposition to these authorities counsel for the respondent relied on the decision in Government of Bombay v. Sakur A.I.R. 1947 Bom. 38; 48 Bom L.R. 616. The question is whether if the burden lay upon the appellant the conclusion of the learned Judges that it had not been discharged is on the evidence a reasonable one. If it is, this Court cannot interfere with it in an appeal under article 136. It must be noted that the appellant himself led no evidence in support of the plea. If at least the evidence which the prosecution adduced disclosed facts which would lend support to the defence, it might then have been open to the appellant to rely on them without himself having to adduce independent evidence but none such were elicited. The learned Judges in the Court below have approached the case from the correct standpoint and have discussed the entire ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the following order dated 28th April, 1954, referring the case for the opinion of the Constitution Bench.) 57. The Order of the Court was pronounced by N.H. Bhagwati, J. 58. We grant the review and reopen the case to enable us to obtain the opinion of a larger Bench on the constitutional question raised in the judgments previously delivered by us. Under proviso to article 145 of the Constitution, we refer the following question for the opinion of the Constitution Bench of the Court. What is the effect of the declaration in The State of Bombay and Anr. v. F.N. Balsara (1951)2SCR682 that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void, under article 13(1) of the Constitution, in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution ? 59. On receipt of the opinion the case will be taken up for further consideration. 60. (In pursuance of the above reference under the proviso to article 145(3) of the Constitution their Lordships of the Constitution Bench (Mehr Chand Mahajan C.J., Mukherjea, S. R. Das, Vivian Bose and Gh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence to show that the appellant had not consumed those tonics but only liquor for which he ought to have a permit. The State of Bombay appealed against the acquittal order to the High Court. The High Court confirmed the acquittal in regard to the charge under section 338, Indian Penal Code, but reversed the order acquitting him of the charge under section 66(b) of the Bombay Prohibition Act. It followed a decision of its own Division Bench in Rangrao Bala Mane v. The State (supra) where it had been held that once it was proved by the prosecution that a person had drunk or consumed liquor without a permit, it was for that person to show that the liquor drunk by him was not prohibited liquor, but was alcohol or liquor which he was permitted by law to take, e.g., medicated alcohol. On this view of the law, on the merits of the case it was held that the appellant had failed to prove the existence of circumstances from which the Court could come to the conclusion that the liquor which was consumed by the appellant was not prohibited liquor but liquor which was excepted by the Bombay Prohibition Act from its operation. In the result the appellant was sentenced to one month's rigo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rested on the accused to establish that his case fell within the exception and he had failed to discharge that onus. In accordance with the opinion of the majority the conviction of the appellant under section 66(b) of the Bombay Prohibition Act was confirmed and the appeal was dismissed but the sentence was reduced to that already undergone. 67. On a petition for review being presented, the learned Judges granted the review on the 26th April, 1954, and reopened the case, to enable them to obtain the opinion of the Constitution Bench of this Court on the constitutional question formulated and mentioned above. 68. For a proper appreciation of the question referred to us, it is necessary to set out what this Court decided in The State of Bombay and Anr. v. F.N. Balsara (supra). In that case the constitutional validity of the Bombay Prohibition Act (XXV of 1949) was challenged on different grounds. This attack substantially failed and the Act was maintained as it was passed, with the exception of a few provisions that were declared invalid. Inter alia, clause (b) of section 13(1) so far as it affected the consumption or use of such medicinal and toilet preparations containing al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can only be proved if it is established that they have used or consumed liquor or an intoxicant which is prohibited by that part of the section which has been declared valid and enforceable and without reference to its unenforceable part. No notice at all should be taken of that other part as it has no relevance in such an enquiry, having no legal effect. In a criminal case unless the prosecution proves a contravention of a provision that is legally enforceable and valid, it cannot succeed. No onus is cast on the accused to prove that his case falls under that part of the section which has been held unenforceable. The High Court was in error in placing the onus on the accused to prove that he had consumed alcohol that could be consumed without a permit merely on proof that he was smelling of alcohol. In our judgment, that was not the correct approach to the question. The bare circumstance that a citizen accused of an offence under section 66(b) is smelling of alcohol is compatible both with his innocence as well as his guilt. It is a neutral circumstance. The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of section 13(b) of the Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the majority view, that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth, has no application to cases concerning obligations incurred or rights accrued in accordance with an existing law that was constitutional in its inception, but that if any law was made after the 26th January, 1950, which was repugnant to the Constitution, then the same rule shall have to be followed in India as followed in America. The result therefore of this pronouncement is that the part of the section of an existing law which is unconstitutional is not law, and is null and void. For determining the rights and obligations of citizens the part declared void should be notionally taken to be obliterated from the section for all intents and purposes, though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to 26th January, 1950, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution. Thus, in this situation, there is no scope for introducing terms like relatively void coined by American Judges in cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 13(1) that the difference arose because it was felt that that article could not retrospectively invalidate laws which when made were constitutional according to the Constitution then in force. 73. Again, we are not able to subscribe to the view that in a criminal prosecution it is open to an accused person to waive his constitutional right and get convicted. A reference to Cooley's Constitutional Limitations, Vol. I, p. 371, make the proposition clear. Therein the learned professor says that a party may consent to waive rights of property, but the trial and punishment for public offences are not within the province of individual consent or agreement. In our opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. No inference in deciding the case should have been raised on the basis of such a theory. The learned Attorney-General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution affects the parties only and there is no judgment against the statute; that the opinion or reasons of the court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book; the parties to that suit are concluded by the judgment, but no one else is bound; a new litigant may bring a new suit, based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent. Once a statute is declared void under article 13(1) or 13(2) by this Court, that declaration has the force of law, and the statute so declared void is no longer law qua persons whose fundamental rights are thus infringed. In America there is no similar statutory provision and that being so, the doctrine enunciated by the learned author can have no application here. In this country once a law has been struck down as unconstitutional law by a Court, no notice can be taken of that law by any Court, and in every case an accused person need not start proving that the law is unconstitutional. The Court is not empowered to look at that part of the law which has been declared as void, and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch which originally heard the appeal. Sudhi Ranjan Das, J. 77. I respectfully beg to differ from the opinion of the majority of this Court just delivered by my Lord the Chief Justice. It is, therefore, incumbent on me to formulate my answer to the question referred to this Constitution Bench and state shortly the reasons in support thereof. 78. It is necessary at the outset to refer to the relevant statutory provisions bearing on the question. The appellant before us was prosecuted on a charge under section 13 read with section 66(b) of the Bombay Prohibition Act, 1949 (Act XXV of 1949). The relevant part of section 66(b) of the Act which is the penal section reads as follows: 66. Whoever in contravention of the provisions of this Act (a)… (b) consumes, uses, possesses or transports any intoxicant or hemp, (c)… (d)… shall, on conviction, be punished…. 79. By section 2(22) intoxicant is defined as meaning any liquor, intoxicating drug, opium or any other substance which the State Government may, by notification in the Official Gazette, declare to be an intoxicant. Read in the light of this definition c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... virtue of sub-article (5) the right conferred by sub-clause (f) cannot affect the operation of the Act in so far as it imposes reasonable restrictions of the kind mentioned in that sub-article. If, however, this existing law imposes restrictions which are unreasonable then it becomes inconsistent with the right guaranteed to the citizens by article 19(1)(f) and consequently under article 13(1) shall, to the extent of such inconsistency, be void . It is beyond all dispute that it is for the Court to judge whether the restrictions imposed by any existing law or any part thereof on the fundamental rights of citizens are reasonable or unreasonable in the interest of the general public or for the protection of the interests of any Scheduled Tribe. If the Court holds that the restrictions are unreasonable then the Act or the part thereof which imposes such unreasonable restrictions comes into conflict and becomes inconsistent with the fundamental right conferred on the citizens by article 19(1)(f) and is by article 13(1) rendered void, not in toto or for all purposes or for all persons but to the extent of such inconsistency , i.e., to the extent it is inconsistent with the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as they prohibited the possession, sale, use and consumption of these articles, but that those sections were not wholly void on this ground as the earlier categories mentioned in the definition of liquor, - namely, spirits of wine, methylated spirit, wine, beer and toddy were distinctly separable items which were easily severable from the last category, namely, all liquors containing alcohol and further that the last category of all liquids consisting of or containing alcohol were again capable of being split up in several sub-categories, e.g., liquid medicinal and toilet preparations containing alcohol and the restrictions on the possession, sale, use and consumption of the earlier categories and all liquids containing alcohol other than medicinal and toilet preparations were not unreasonable. 83. In the result this Court declared certain provisions of the Act invalid. Amongst the provisions declared invalid was section 13(b), but it was so declared only so far as it affects the consumption or use of such medicinal and toilet preparations containing alcohol. This declaration, no doubt, was made pursuant to article 13(1) of the Constitution. The very foundation of this d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect, correctly repelled the argument that the result of the decision in The State of Bombay and Anr. v. F.N. Balsara (supra) was to introduce, not in terms but in effect, an exception or proviso to section 13(b) and that consequently the onus lay on the appellant to prove the existence of circumstances bringing his case within the exception or proviso as laid down in section 105 of the Evidence Act. The learned Judge, however, observed: The only effect of the declaration was that the prohibition enacted in section 13(b) was to be enforceable in regard to the consumption or use of validly prohibited liquor, i.e., spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet liquid preparations consisting of or containing alcohol. The prohibition which was enacted in section 13(b) against the consumption or use of liquor could in the light of the declaration made by this Court only refer to the consumption or use of validly prohibited liquor, i.e., spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet liquid preparations consisting of or containing alcohol, and that was the only prohibition which could b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said to form an exception to section 13(b). He rested his decision on the ground that the inclusive definition of liquor adopted in section 2(24) of the Act having been held to be within entry 31 in List II of the Seventh Schedule to the Government of Indian Act, 1935, and, therefore, valid, that meaning should be its connotation in section 13(1) as well and that under the section so read the offence would be established as soon as consumption or use of liquor so defined was established and that the plea that what was consumed was medicinal preparation containing alcohol was really a plea that the section, in so far as it prohibits consumption or use of liquid medicinal or toilet preparations containing alcohol, infringed the citizens' fundamental right under article 19(1)(f) and was, therefore, unconstitutional as declared by this Court. His view was that it was for those who pleaded unconstitutionality to establish all the elements which would go to establish that plea. Jagannadhadas J. felt inclined to agree with view of the Venkatarama Ayyar J. but as that aspect of the matter had not been fully argued he passed on to the argument canvassed before them, namely, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to accept the proposition so widely stated. Even American text book writers have felt the statement of Field J. needs to be somewhat qualified. (See Willoughby on the Constitution of the United States, Volume I, page 11 and Willis on Constitutional Law, page 890). The dictum, it will be observed, related to a statute which was made after the commencement of the Constitution and which was in violation of the provisions of the Constitution. It cannot obviously apply to a case where a statue which was enacted before the commencement of the Constitution is declared to have become unconstitutional and void. In such a situation it cannot be said that the judicial declaration means that such a statute is void for all purposes including past transactions that took place before the commencement of the Constitution. The Bombay Act was an existing law and the declaration in The State of Bombay and Anr. v. F.N. Balsara (supra) cannot and does not affect anything done under the Act prior to the commencement of the Constitution. It will be further noticed that the decision in The State of Bombay and Anr. v. F.N. Balsara (supra) does not declare the entire Act or even the entire section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ineffective against and inapplicable to a citizen who consumes or uses liquid medicinal or toilet preparations containing alcohol in exercise of his fundamental right. In other words, when a citizen is charged with an offence under section 66(b) read with section 13(b) he will be entitled to say-- I am a citizen of India. I have consumed or used liquid medicinal or toilet preparations containing alcohol. I am entitled to do so under article 19(1)(f). The Supreme Court has in The State of Bombay and Anr. v. F.N. Balsara (supra) declared the law, namely, that in such circumstances the prohibition of section 13(b) is void as against me with respect to such consumption or use of liquid medicinal or toilet preparation containing alcohol. This plea, if substantiated, will be a complete answer to the charge. In short, the judicial declaration serves to provide a defence to a citizen who has consumed or used liquid medicinal or toilet preparations containing alcohol. Test the matter in this way. Suppose after the declaration a person is charged with an offence under section 66(b) read with section 13(b) and in such a case the prosecution proves that the accused has taken alcohol in some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute and that the effect of the declaration made by this Court in The State of Bombay and Anr. v. F.N. Balsara (supra) is not to lift or take away or add anything out of or to the section at all. What it does is to declare, as a matter of law, that in a certain situation, namely, when liquid medicinal or toilet preparations containing alcohol are consumed or used, a certain part of section 13(b), that is to say, that part of it which prohibits the consumption or use of liquid medicinal or toilet preparations containing alcohol, shall be void qua a particular class of persons, namely citizens. In other words, the declaration in The State of Bombay and Anr. v. F.N. Balsara (supra) serves to provide a defence only to a citizen who has consumed or used liquid medicinal or toilet preparations. It is for the accused person, who seeks to ward off the applicability of the section to him by having resort to the declaration made in The State of Bombay and Anr. v. F.N. Balsara (supra), to establish the situations or circumstances on which that declaration is founded. In short a person who challenges the validity of the section on the ground of its unconstitutionality has the advantage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple well established in law that a judicial declaration of invalidity does not repeal, alter or amend a statute. 93. As I hold that the declaration does not operate as an amendment of the section, I must logically hold, with respect to the view of Jagannadhadas J. that the declaration cannot be treated as having grafted an exception or proviso to section 13(b). 94. In coming to the conclusion that I have, I have in a large measure found myself in agreement with the views of Venkatarama Ayyar J. on that part of the case, I however, desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment, particularly those relating to waiver of unconstitutionality, the fundamental rights being a mere check on legislative power or the effect of the declaration under article 13(1) being relatively void. On those topics I prefer to express no opinion on this occasion. 95. BY THE COURT. - The reference is answered in accordance with the opinion of the majority. 96. (After the opinion of the Constitution Bench the following Order, dated 24th September, 1954, was pronounced by a Bench composed of Bhagwati, Jagannadhadas and Ven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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