G. Mehrotra, J.
1. This is a revision against the decision of the Sessions Judge, Upper Assam Districts, who confirmed the conviction and sentences passed against the two applicants'Balbir Sing and Inderjit Sing by Sri A. Ahmed, Magistrate, 1st Class at Jorhat. Applicant No. 1 was convicted under Section 61-A of the East Bengal and Assam Excise Act-hereinafter called the Act and applicant No. 2 was convicted under Section 53 (l) (a) of the Act, Each of these two applicants were sentenced to six months' rigorous imprisonment and to pay a fine of Rs. 500/- in default to undergo another period of three months' rigorous imprisonment.
2. The prosecution case is that on 21-11-54 the Excise Inspector under the authority of a search war- rant searched the Broadway Hotel and restaurant including its kitchen and recovered one bottle of Heyward's brandy, one kettle containing liquor, one bottle containing about a dram of Hey ward's brandy, one bottle containing traces of Heyward's whisky, six empty bottles of Heyward's whisky, rum, brandy, one tumbler with smell of liquor, from the kitchen and from the drawer of the Manager's secretariat table, one bottle containing about 2 1/2 ounces of Heyward's whisky was recovered.
There were other documents recovered from the table of the Manager which is not very material. On the recovery of these articles, Inderjit Sing, applicant No. 1, the manager of the hotel, John Games, Assistant Manager and Baldev Raj, the cook were arrested. Balbir Sing Bedi, applicant No, 2 later surrendered. The charge was denied by the two applicants. So far as the factum of recovery is concerned, the Court below believed the story given by the Deputy Superintendent of Excise and we do not think that in revision we can interfere with that finding. Balbir Sing is said to be the de facto proprietor of the hotel. The licence of the hotel stood in the name of his minor sonJasbir Sing Bedi.
3. The Sessions Judge held that Balbir Sing was the de tacto proprietor of the hotel although the licence stood in the name of his minor son. He also found that Balbir Sing knowingly permitted the hotel to be used for the storage of the incriminating articles. The Sessions Judge remarks that it was unthinkable that such a large number of incriminating articles would be kept in the hotel without the conscious knowledge and permission of the de facto proprietor. Section 61A of the Act is as Follows ;
Whoever, being the owner or occupier or having the use of any house, room, enclosure, space, vessel, vehicle or place, knowingly permits it to be used for the commission by any other person of an offence punishable under Section 53, S, 54 or Section 55, shall be punished with imprisonment which may extend to two years, or with fine or with both,
Section 53 of the Act runs as follows:
Whoever, in contravention of this Act or of any rule, notification or order made or issued under this Act, or of any licence, permit or pass granted under this Act, imports exports, transports, manufactures possesses or sells any intoxicant other than tari and pachwai shall be punished with imprisonment which may extend to two years and with fine.
The possession of an intoxicant is therefore an offence under Section 53 and if the owner or occupier allows the use of the building for storage of these incriminating articles, he would be guilty under Section 61-A. In order therefore to convict Balbir Singh under this section, it was not only necessary to prove that he was the owner of the hotel, but it was further necessary to prove that he knowingly permitted the building to be used for the commission of an offence. The Sessions Judge, as we have already pointed out, has come to the conclusion that the hotel building was permitted to be used for the storage of incriminating articles.
This inference was drawn by the Sessions Judge from the recovery of a large quantity of intoxicant from the kitchen of the hotel. There is no evidence from which it could be interred that the applicant Balbir Singh permitted the hotel for the storage of the incriminating articles. The articles were recovered mostly from the kitchen. The small quantity of liquor which was recovered from the office was also found from the drawer of the manager's table, the manager is himself being tried for possessing (these articles. Unless therefore it pan be established J-that there was some sort of implied consent by the owner to carry on this activity in the hotel premises, it cannot be said that the applicant permitted the hotel building to be used for such illegal purposes.
It is also not clear from the finding of the Court below that the applicant was the owner of the building. As the business of the hotel was carried on by the applicant, it could legitimately be argued that he was constructively in occupation of the building; but as we have already stated, we find that there is no evidence to prove the consent of the applicant nor have any circumstances been pointed out by the prosecution from which an irresistible inference can be drawn that the manager permitted the use of the building for the purposes of committing an offence under Section 53 of the Act. The case against the applicant Balbir Singh has, in our opinion, not been proved.
4. Coming to the case of Inderjit, he has been convicted under Section 53 for possessing the liquor. The liquor found from kitchen cannot be said to be in possession of the manager unless the prosecution could prove that it was kept there by the order of the manager. As regards the recovery of 2 1/2 ounces of whisky from the office drawer of the manager, it can be said that he was in possession of the liquor and is liable to be convicted imder Section 53, in case it is proved that this was in contravention or any provision of the Act, rule or notification made thereunder. On 25-8-1953 a notification was issued by the State Government under Section 17 (3) of the Act which runs as follows:
In exercise of the powers conferred by stib-s. (3) of Section 17 of the Assam Excise Act, 1910 (East Bengal and Assam Excise Act of 1910), as amended, and in supersession of Notification No. REX. 91/52/i 22, dated 30-1-1953, the Governor of Assam is pleased to prohibit the possession of liquor by any person in hotels, restaurants, tea-stalls, shops, places of public amusements including kitchens or in any room attached to a kitchen of such establishment, or in any house or room used by the proprietor or an employee for personal purposes within the compound of a hotel, restaurant, tea-stall, shop or place or public amusements in the district of Lakhimpur, Sib-sagar, Darrang, Nowgong, Kamrup, Goalpara and Cachar and also in Snillong Municipality excluding so much of the area as comprised within the autonomous district of the United Khasi and Jaintia Hills, unless such a place is covered by a license issued under the said Act. Possession of liquor is also prohibited in ferries and ferry approaches, railway stations, steamer-ghats and Airports throughout the above areas except where such possession is in course of transit and within the limit of private possession permissible under the Act.
The validity of Section 17 (3) has been challenged and it is contended that it is unconstitutional as it is violative of Article 19(1)(f) and Article 14 of the Constitution. Sub-section (3) of Section 17 of the Act reads a3 follows:
Notwithstanding anything contained in sub-ss. (1) and (2), the State Government may, by notification, prohibit the possession by any person or class f>f persons, either throughout the whole of the territories to which this Act applies or in any local area comprised therein, of any intoxicant, either absolutely or subject to such conditions, as it may prescribe.' Intoxicant has been defined in Section 3 (12) (a) as any liquor or intoxicant drug. Liquor has been defined as any intoxicant liquor and further includes all liquid consisting of or containing1 alcohol; also tari and pachwai in any form and any substance which the State Government may, by notification declare to be liquor for the purposes of this Act. The argument is that Article 19(1)(f) of the Constitution guarantees a fundamental right to a citizen to hold and possess any property which includes both moveable and immoveable properties. The Act, when it gives powers to the Government by notification to restrict the possession of the liquor, is violative of the fundamental rights guaranteed under Article 19(1)(f) unless such a legislation is saved by Clause 5 of Article 19.
In cases of liquids containing alcohol which are used as beverage, any power given to the Government to restrict the use of such a liquor cannot be regarded as unreasonable, having regard to the directive principles of the Constitution. But as the word 'liquor' also includes any liquid containing alcohol, it covers liquids which may be used as toilet or as medicine. In such cases, it cannot be said that it will be in consonance with the directive principles of the Constitution to prohibit entirely the use of such liquids and any restriction on use of such liquids will be unreasonable restriction and thus violative of Article 19(f) of the Constitution. In this connection it was further argued that fhe unconstitutional provisions are not severable from the constitutional provisions and consequently the entire Section 17 (3) is invalid.
5. The next ground on which the validity of the provisions of Section 17 (3) has been challenged is that this Sub-section gives uncontrolled, naked and arbitrary powers to the State Government to discriminate between various persons by issue of a notification and thus it cannot be regarded as a reasonable restriction on the rights of a citizen to hold and possess any property. It is also capable of being used in a manner to bring about discrimination and is hit by Article 14 of the Constitution. It was also urged that this is delegation of essential legislative function as the Act does not lay down any principle for the guidance of the Government in issuing the notification. It is thus an excessive delegation.
6. The East Bengal and Assam Excise Act (Act I of 1910) was passed in the year 1910 and was amended from time to time. The preamble of the Act provides that whereas it is expedient to consolidate and amend the law in force in Eastern Bengal and Assam relating to the import, export, transport, manufacture, sale and possession of intoxicating liquor and of intoxicating drugs this Act is enacted. Chapter 1 deals with the definition and Chapter II deals with the establishment and control of the excise administration in the district. Chapter III then deals with the control of the export and import of the intoxicants and Chapter IV with manufacture, possession and sale of the same.
Section 17 the constitutionality of which has been challenged is in this Chapter and Clause (1) of Section 17 provides that no person shall have in his possession any quantity of any intoxicant in excess of such quantity as the Board may under Section 6 declare to be the limit of sale by retail, except under the authority and in accordance with the terms and conditions of a license. Section 36 then gives powers to the Government to make rules. Section 72 provides that the provisions of this Act shall not apply to import, manufacture, possession, supply or sale of any bona fide medicated article for medicinal purposes by medical practitioners, chemists, druggists, apothecaries or keepers of dispensaries.
Section 73 gives power to the State Government by notification to exempt any intoxicant from all or any of the provisions of this Act, either throughout the territories to which this Act applies or in any specified area comprised therein or for any specified period or occasion or as regards any specified class of persons. Certain notifications have been issued by the State Government regulating the import, export and use of the medicinal or toilet preparations containing alcohol. This Act is a pre-Constitution Act and the validity of the Act has not been challenged on the ground of the legislative competence.
7. In the case of Miss Kishori Shetty v. The King 1949 FCR 650 : A.I.R. 1950 FC 69 (A), the appellant had been convicted under Section 14-B of the Bombay Abkari Act 1878 for having in her possession in contravention of the Act, a quantity of foreign liquor in excess of the limit permitted under a notification issued under the provisions of the Act and the constitutionality of the provisions under which the notification had been issued was challenged. Section 14-B of the Bombay Abkari Act was in the following terms:
No person not being a licensed manufacturer or vendor of any intoxicant or hemp and no licensed vendor except as authorised by his licence shall have in his possession any quantity of any intoxicant or hemp in excess .>f 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. Notwithstanding anything contained in Sub-section (1) the Provincial Government may by notification in the Official Gazette prohibit the possession by any person or class of persons, either throughout the whole Presidency or in any local area, or any intoxicant, either absolutely or subject to such conditions as it may prescribe.
The Federal Court held the provisions of Section 14-B of the Bombay Abkari Act as constitutional. On the principles laid down in that case, it cannot be said that the provisions of Section 17 (3) which are in similar terms ase invalid and beyond the legislative competence of the State Government. The main question however, as we have already pointed out, argued is; that Section 17 (3) is hit by Articles 19 and 14 of the Constitution and is thus void under Article 13 of the Constitution. The whole object of the Act is to control the manufacture, possession, import and export of intoxicants.
The word 'liquor' as defined in the Act, no doubt covers all liquids containing alcohol irrespective of the use to which it is put and as such it can be legitimately argued that Section 17 (3) when it gives power to control possession of all the liquors, it restricts the fundamental rights of a citizen to possess moveable property and as such unless it is saved by Cl. 5 of Article 19, it will be unconstitutional. Having regard to the directive principles of the Constitution, any restriction placed on the right of a citizen to hold, possess and use liquor which is used as beverage cannot be said to be unreasonable.
8. In the case of State of Bombay v. F. N. Balsara A.I.R. 1951 SC 318 (B), the provisions of the Bombay Prohibition Act came up for examination by the Supreme Court and it was observed that the restriction imposed by the section on the rights of a citizen to possess or to buy or to consume or use spirits of wine, methylated spirits, wine, beer, toddy are in view of the directive principles of the State Policy quite reasonable. It was however held that the restriction upon the rights of a citizen to acquire and hold and dispose of moveable property was illegal and thus to the extent to which tiie Prohibition Act affects the possession of liquid medicine and toilet preparations containing alcohol was held to be void under Article 19(1)(g) of the Constitution even though they were within the legislative competence of the legislature.
9. The next argument which was advanced before the Supreme Court and has been contended for here is that as the law purports to authorise the imposition of a restriction on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within constitutional limits as it is not severable. This argument was sought to be supported from the observations in the case of Romesh Thappar v. The State of Madras : 1950CriLJ1514 , and in the case of Chintaman Rao v. State of Madhya Pradesh : 1SCR759 . This question has been answered in the case of State of Bombay v. Balsara (B), referred to earlier in our judgment.
In that case also the argument was advanced that the clause in the definition of the liquor by which liquor includes any liquid containing alcohol could not be split up into different sub-categories and therefore the section in so far as it relates to this general item must be held to be void. The Supreme Court held in that case that Section 139 (d) of the Bombay Prohibition Act gave power to the Provincial Govt. by general or special order to exempt any intoxicant or class of intoxicants from all or any of the provisions of the Act and that power had been exercised in that case and thus the liquid containing alcohol used as medicine and toilet and toilet preparation formed a distinct category coming within the general class and thus is severable.
In the present Act also we have already referred to Section 73 which is in similar terms as Section 139 of the Bombay Act and thus in view of the decision in Balsara's case (B), this contention of the applicant's counsel can have no force, It cannot therefore be said that the provisions of Section 17 (3) are wholly void. So far as the non-beverage liq-uor,toilet preparations and medicinal preparations containing alcohol are concerned, the restriction will be unreasonable. In the present case however the intoxicant recovered from the possession of the applicant is one which is used as beverage and thus so far as this case is concerned, the restriction is not unreasonable. The next line of argument was that as Section 17 (3) gives unfettered powers to the Govt. to discriminate between the persons placed in similar circumstance, it is violative of Article 14 of the Constitution.
10. Reliance was placed in support of this contention on the case of State of West Bengal v. Anwar Ali Sarkar : 1952CriLJ510 . Particular reference was made to the following observations:
It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offences, cannot be said to discriminate in favour of or against any particular case or classes of persons or cases and if any charge of discrimination can be levelled at all, it can be levelled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it is couched in general terms; and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say: II am not to blame as I am acting under the Act, It is clear that if the argument were to be accepted, Article 14 could be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the insidious discrimination complained of is incorporated in the Act itself, it being so drafted that whenever any discrimination is made, such discrimination could be ultimately traceable to it.
In the case of Messrs. Dwarka Prasad Laxtni Narain v. State of Uttar Pradesh : 1SCR803 . dealing with certain provisions of the U. P. Coal Control Order it was observed as follows:
Legislation, which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control per- mitted by clause (6) of Article 19, it must be hold to be wanting in reasonableness.
That was a case where certain provisions of the U. P. Coal Control Order were struck down as violative of Article 19(g) of the Constitution. In the case of Sagir Ahmed v. State of U.P. : 1SCR707 where the Supreme Court was dealing with the validity of Section 3 of the U. P. Road Transport Act, an argument was advanced that as the Act gave an unguarded and unfettered discretion to the State Govt. to associate such persons as it likes in the transport business and thereby allows it to discriminate between one citizen and other, the section was hit by Article 14. The argument was held valid by the Supreme Court but on the interpretation of the section along with rules, it was held in that case that the power was not unguided and unfettered.
On these authorities, it has been contended that as Section 17(3) gives very wide powers to the Government to pick and chose any individual for being made subject of discrimination or hostile treatment, the provisions are hit by Article 14. The powers under Section 17(3) are no doubt very widely worded; but the object of the Act is to control the manufacture and possession of intoxicating liquors. Dealing with the argument under Article 19 of the Constitution, we have held that any restriction on the use and possession of liquor used as beverage can be considered to be a reasonable restriction on the individual's right to hold property.
Having regard to the directive principles of the Constitution, it cannot be said that any law prohibiting the use of any liquor used as a beverage can be said to place an unreasonable restriction on an individual's fundamental right guaranteed under the Constitution. The restriction being reasonable, any law authorising such restriction is saved by Article 19(5) of the Constitution. If that is so, then Section 17(3) only gives discretion to the Government to apply the said restriction to person of its own selection. Any discretion granted to the Government in the matter of regulating and applying certain permissible restrictions cannot be said to be discriminatory.
Taking an illustration in order to examine the argument, suppose there is a law which permits acquisition of any land for public purposes and gives power to the Government to acquire the property of any person for such a purpose, it cannot be argued that as very wide power has been given to the Government to acquire somebody's property and to leave that of others, such a power is hit by Article 14 of the Constitution. The discretion has been given, only in the matter of selection of the persons to-whom the restriction can be made applicable. Cases where arbitrary power has been given to the executive to select individual to be made subject of hostile treatment under a law stand on a different tooting, such as the cases of the Special Courts.
11. In the case of the State of West Bengal v. Anwar Ali Sarkar (B), power was given to apply special procedure in some cases which could otherwise have been tried by a regular Court and the procedure provided under the Special Courts Act was-undoubtedly disadvantageous to the accused. In these circumstances, the naked power of selecting persons or cases to be made subject of the Special Act was held discriminatory and was struck down. But where the restriction is a reasonable restriction, and the law permits the application of that restriction to every person, if a discretion is given to the-authority to select the persons to whom such a restriction can be applied, such a power cannot be regarded as discriminatory. In the case of Pannalal Binjraj v. Union of India : 1SCR233 , the matter was considered in connection with the-constitutionality of Section 5(7) A of the Income-tax Act. .
In an earlier decision of the Supreme Court reported in : 29ITR717(SC) in toe case of Bidi Supply Co. v. Union of India (I), by a majority it was held that Section 5 (7-A) of the Income-tax Act was '. intra vires although the order passed under the said section was set aside on the ground that it was not justified by the provisions of the Act. The constitutionality of this section on the ground that it violated Article 14 of the Constitution, was however considered in the later case to which we have referred to now. It was observed in that case as follows:
There is a broad distinction between discretion which has to be exercised with regard to a fundamental right guaranteed by the Constitution and some other right which is given by the statute. If the statute deals with a right which is not fundamental in character the statute can take it away but a fundamental right the statute cannot take away. Where for example, a discretion is given in the matter of issuing licences for carrying on trade, profession or business or where restrictions are imposed on freedom of speech etc. by the imposition of censorship, the discretion must be controlled by clear rules so as to come within the category of reasonable restrictions. Discretion of that nature must be differentiated from discretion in respect of matters not involving fundamental rights such as transfers of cases. An inconvenience resulting from a change of place or venue occurs when a case is transferred from one place to another but it is not open to a party to say -that a fundamental right has been infringed by such transfer. In other words, the discretion vested has to be looked at from two points of view, (1) does it admit of the possibility of any real and substantial discrimination? and (2) does it infringe a fundamental right guaranteed by the Constitution?
12. In the case of Kedamath Bajoria v. State of West Bengal : 1953CriLJ1621 , the Supreme Court observed that:
It is well settled that the equal protection of the laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain.
If the classification on which the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, for, if the legislation were all embracing in its scope, no question could arise of classification being based on intelligible differentia having a reasonable relation to the legislative purpose.
13. The power given to prohibit the possession of any liquor which is used as beverage is undoubtedly reasonable restriction on the individual's right. That being the premise, the wide discretion given to the Government is only confined to the matter of the selection of persons to whom the restriction is to apply and that is obviously controlled by the object and purpose of the Act to achieve which such a discretion has been granted. The policy of legislation has been fully set out in the Act and wide discretion has been given to the Government in the matter of working out that policy and' to achieve the objects.
If the Government in the exercise of that discretion selects some persons or places for the application of the statute, it cannot be said that the power of the Government is naked and uncontrolled. It will be inconsistent to hold that any order of prohibition will be valid and saved by Article 19(5) of the Constitution and yet the law which gives discretion to select the person on which such restriction is to be imposed is violative of Article 14 of the Constitution.
Cases where a power has been given to impose restrictions on the right to carry on business or trade which may be in some cases a reasonable restriction, in the others, it may be unreasonable, in such circumstance if a naked power is given to the executive to impose such a restriction on any person of its choice, it may be said that the provisions which give such power contain in themselves the germ of discrimination. Where the restriction is in all eases, having regard to the nature of the businessvalid and permissible restriction, any discretion given in the matter of its application cannot be said to be discriminatory. In our opinion, therefore, Section 17 (3) is not hit by the provisions of Article 14 of the Constitution.
14. The last argument was that Section 17(3) is a piece of excessive delegation. The contention is that as the legislature has given uncontrolled power to the Government to restrain any person from keeping in possession liquor even within the permissible quantity, as declared under Section 6, the legislature has in effect delegated an essential legislative function to the Government. As we have said, the power of selection of individuals to whom the permissible restriction is to be applied is controlled by the object and purpose of the Act and it cannot be said (hat it is a delegation of the essential legislative function. The legislature has laid down the guiding principles embodied in the Act and a discretion nas been given to the Government's responsible authorities to select the persons to whom the restrictions beyond the limit under Section 6 are to be applied to, having regard to the object and purpose of the Act.
15. In the case of A.I.R. 1951 SC 318 (B), dealing with the constitutionality of Sections 52, 53 and 139 (c) of the Bombay Prohibition Act, it had been held by the Bombay High Court that it is always open to the legislature to leave it to the Government to work out the policy in details, as it will be difficult for the legislature to provide for all circumstances and all eventualities that may arise in the actual working of the Act.
But it was not open to the legislature to permit Government to alter the policy and to leave it to Government to issue permits in cases other than those provided for by the Act to vary or substitute conditions of the licence, to permit Government to exempt persons or classes from the provisions of the Act. In doing so, the legislature was clearly delegating to Government its own power of legislation which it cannot do. Considering this reasoning, the Supreme Court observed as follows .
A legislature while legislating cannot foresee and provide for all future contingencies, and Section 52; does no more than enable the duly authorised' officer to meet contingencies and deal with various situations as they arise. The same considerations will apply to Sections 53 and 139 (c). The matter however need not be pursued further, as it has already been dealt with elaborately in the ease referred to.
In our opinion, therefore, Section 17 (3) is within the permissible limits of delegation. There is, therefore, no force in this contention of the petitioner either. After carefully considering, all the authorities cited, we are of opinion that the constitutional questions raised by the petitioner, have no substance. ;
16. Coming to the facts of the present case, both the Courts below have found it as a fact that the applicant, Indrajit Singh, was present and was actually engaged in the work as the Manager of the hotel when the excise party started search. The bottle containing about 2 1/2 ounces of Heyward's whisky was found in a drawer of the applicant's table. At any rate, therefore, so far as the whisky recovered from his table, it cannot be said that he had no knowledge of the fact that it was kept in his drawer within the hotel premises. He was thus rightly held to be in conscious possession of the incriminating article recovered by the excise party.
The offence, no doubt, has been wholly established against him. He was convicted by the Courts below under Section 53(1)(a) of the Assam Excise Act and was sentenced to six months' rigorous imprisonment and a fine of Rs. 500/-. The sentence, in our opinion, is excessive. Both the Courts found him guilty for possessing incriminating article found in the kitchen as he was regarded by the Courts below in constructive possession of the said articles as the Manager of the hotel. We do not however think that he can be held liable for the articles recovered from the kitchen. So far as die recovery of the whisky from his office drawer, he was certainly liable. That was a very small quantity and we consequently reduce his sentence of imprisonment to the period already undergone.
17. In the result, therefore, the petition on behalf of Balbir Singh is allowed, his conviction and sentence are set aside and die petition of Indrajit Singh is dismissed with the modification that the sentence of imprisonment is reduced to the period already undergone and the fine to Rs. 50/-, in default seven days' rigorous imprisonment.
Sarjoo Prosad, C.J.
18. I agree.