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TMI Blog1942 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... its unlicensed persons (with certain exceptions) from having in their possession, without a permit granted by the Collector, any excisable article in excess of such quantity as the Board of Revenue may, under the powers given to it by the Act, have declared to be the limit of a retail sale. Licensed vendors are similarly prohibited from having in their possession at any place other than that authorized by their licence any quantity of excisable liquor in excess of the same amount. Sub-section (4) of the section then provides as follows: (4) Notwithstanding anything contained in the foregoing subsections, the local Government may, by notification, prohibit the possession by any person or class of persons, either in the Province of Bihar and Orissa or in any specified local area, of any excisable article either absolutely or subject to such conditions as it may prescribe. 3. By Section 47 of the Act, any person who, in contravention of the Act, or of any notification made under it, "imports, exports, transports, manufactures, possesses or sells any excisable article" is liable to be imprisoned or to be fined, or to be both imprisoned and fined. 4. By a Notification date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification, by all persons either in the Province of Bihar or in any specified local area ". The words in italics are those added by the amending Act to the Sub-section. The amending Act was followed by a fresh Notification dated November 18, 1940, in the same terms as the Notification which had been held by the High Court to be invalid, and it was on a charge under this Notification that the Magistrate's order of acquittal was subsequently reversed by the High Court, who held that in view of the amending Act the Appellant had no defence in law. 6. Counsel for the Appellant first contended that the amending Act of 1940 was in any case ultra vires the Provincial legislature, and therefore equally ultra vires the Governor of Bihar, exercising the powers of the Legislature by virtue of a proclamation under Section 93 of the Constitution Act. He contended also that the Act was invalid because it contravened the provisions of paragraph (a) of Section 297(1) of the Constitution Act. His third contention was that the Act of 1915 Was a Governor-General's Act within the meaning of paragraph (b) of Section 108(2) of the Constitution Act and that therefore the Act of 1940 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rugs". In our opinion these words are explanatory or illustrative words, and not words either of amplification or limitation. It is difficult to conceive of legislation with respect to. intoxicating liquors and narcotic drugs which did not deal in some way or other with their production, manufacture, possession, transport, purchase or sale; and these words seem apt to cover the whole field of possible legislation on the subject. We were however referred to three English authorities which, it was alleged, justified a different conclusion. These authorities do not seem-to us to be relevant, for they were concerned with the meaning and effect of a statutory power to "regulate"; and it was held in all three cases that a power to regulate does not include a power to prohibit. The first case was Dich v. Badart [1883] 10 Q.B.D. 387. In that case a dock company, who were undertakers under a special Act, had made by-laws prohibiting workmen of a specified class from working on board any vessel in the dock, unless authorized by the company or unless permission in writing had previously been obtained from the superintendent of the dock. The company had statutory powers to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the view that a power to regulate does not include a power to prohibit ; but since neither the word "regulation" itself nor any other comparable expression appears in entry No. 31, it does not appear necessary to pursue the argument further. A power to regulate may well imply the continued existence of the thing to be regulated ; but no such implication can arise from the words in the entry which, as we have said, only explain or illustrate the more concise expression which immediately precedes them. 8. We must again refer to the fundamental proposition enunciated in The Queen v. Burah [1878] 3 App. Cas. 859., that Indian Legislatures within their own sphere have plenary powers of legislation as large and of the same nature as those of Parliament itself. If that was true in 1878, it cannot be less true in 1942. Every intendment ought therefore to be made in favour of a Legislature which is exercising the powers conferred on it. Its enactments ought not to be subjected to the minute scrutiny which may be appropriate to an examination of the by-laws of a body exorcising only delegated powers, nor is the generality of its power to legislate on a particular subject to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnor-General. The amending Act of 1940 did not receive this previous sanction, and since it received the Governor's assent only, the defect was not cured by the provisions of Section 109(2) of the Constitution Act. The Governor-General's Act however to which Section 108 of the Constitution Act refers means, and can only mean, and Act such as the Governor-General is empowered to enact under Section 44 of the Constitution Act. The Appellant seems to have forgotten that all Acts required the Governor-General's assent before the present Constitution Act came into force ; and that therefore, if his argument is sound, this strange result would follow, that every Act passed by the Central or any local Legislature before April 1st, 1937, would be a Governor-General's Act, and no Bill repealing or amending it could be introduced without the previous sanction of the Governor-General. It is preposterous to suppose that Parliament intended to place fetters of this kind on the general legislative powers of Legislatures in India. 11. It was faintly suggested that, in the absence of any provision for compensating those whose livelihood might be taken away by the enactment of Proh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minds of the makers of the Act, and the mischiefs which they intended to redress'": Commissioners for Special Purposes of Income-tax v. Pemsel [1891] A.C. 531, per Lord Halsbury, L.C, at p. 542. But we doubt very much whether a preamble retrospectively inserted in 1940 in an Act passed 25 years before can be looked at by the Court for the purpose of discovering what the true intention of the Legislature was at the earlier date. A Legislature can always enact that the law is, and shall be deemed always to have been, such and such ; but that is a wholly different thing from imputing to dead and gone legislators a particular intention merely because their successors at the present day think that they might or ought to have had it. 14. It is however by no means clear to us that the Legislature of Bihar and Orissa (as the Province then was) in 1915 never had in mind the possible use of the Bihar and Orissa Excise Act, 1915, for the promotion of a policy of total or partial prohibition. The Act of 1915 was, as we have said, a consolidating and amending Act which replaced an earlier consolidating and amending Act, the Bengal Excise Act, 1909. An examination of the statutes whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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