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Emperor Vs. Chinubhai Lalbhai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 105 of 1940
Judge
Reported in(1940)42BOMLR669
AppellantEmperor
RespondentChinubhai Lalbhai
Excerpt:
.....permissible under abkari act.; a notification issued by government, under section 14b (2) of the bombay abkari act, 1878, prohibiting all persons within a defined area from possessing any intoxicant is ultra vires and of no effect.; the proviso to sub-section (2) of section 14b of the act is clearly a part of sub-section (1). it is, therefore, competent to government under sub-section (2) to prohibit the possession by any person or class of persons of foreign liquor as fully as they can prohibit the possession of country liquor.; the power, under sub-section (2), to prohibit the possession by any person or class of persons either throughout the whole presidency or any local area of any intoxicant does not justify government in prohibiting possession by the public generally. the natural..........by the government of bombay issued in terms under sub-section (2) of section 14b of the bombay abkari act. in all the cases the notification in question was substantially in the same terms. it was expressed to be in exercise of the powers conferred by sub-section (2) of s 14b, and by it the government of bombay was pleased to prohibit the possession by any person without a pass, permit or license of any quantity of any intoxicants other than those specified in the schedule thereto, in the areas specified in the margin. in the case of appeal no. 105 of 1940 the area specified was the municipal area of ahmedabad, the cantonment of ahmeda-bad, and twenty-seven specified villages. in the other cases the area specified was the town and island of bombay, bombay suburban district,.....
Judgment:

John Beaumont, Kt., C.J.

1. The first of these appeals is from a conviction by the Sessions Judge of Ahmedabad of the accused under Section 43 (1) (a) of the Bombay Abkari Act, V of 1878. The other three appeals are by Government against orders of acquittal passed in two cases by the learned Presidency Magistrate, 2nd Court, and in the third case by the learned Presidency Magistrate, 5th Additional Court, Bombay, under Section 43 (1) (a) of the said. Act.

2. All the said appeals raise the question whether, in popular language, the Prohibition policy of the Government of Bombay is valid. It is necessary to state at the outset that this policy was not carried into effect by passing an Act through the Provincial Legislature, and we are not, therefore, concerned to consider in any way the limits of the powers of the Provincial Legislature. The policy was introduced by means of Notifications by the Government of Bombay issued in terms under Sub-section (2) of Section 14B of the Bombay Abkari Act. In all the cases the notification in question was substantially in the same terms. It was expressed to be in exercise of the powers conferred by Sub-section (2) of s 14B, and by it the Government of Bombay was pleased to prohibit the possession by any person without a pass, permit or license of any quantity of any intoxicants other than those specified in the schedule thereto, in the areas specified in the margin. In the case of Appeal No. 105 of 1940 the area specified was the Municipal area of Ahmedabad, the Cantonment of Ahmeda-bad, and twenty-seven specified villages. In the other cases the area specified was the town and island of Bombay, Bombay Suburban District, and that part of the Thana Mahal which is encircled by the Bassein-Thana Creek and the territorial waters appertaining thereto. The question which we have to consider is whether those notifications were justified by Section 14B. (2) of the Bombay Abkari Act.

3. The Bombay Abkari Act was passed in the year 1878, and it replaced earlier legislation on the subject which had commenced with Regulation XXI of 1827. We have been referred in detail to the provisions of the Act, but we think it sufficient to say that in our opinion the object of the Act was primarily to secure Abkari revenue, though some of the Section s, for example Section 17A and Section 35 (2) (g) and (h), show that the Legislature intended also to confer power to control the trade in drink and drugs, and to obviate abuses which might arise from such trades. We find, however, nowhere in the Act anything to suggest that the Legislature contemplated the introduction of total prohibition of intoxicants as a measure of social reform, and it is obvious that such introduction would virtually make an end of the purposes of the Act. That is a consideration which must weigh with us in construing Section 14B.

4. Turning to Section 14B, it is to be noted that it was incorporated by way of amendment in the year 1912, and it is the only Section in the Act which limits the right to possession of intoxicants. The Section is in the following terms:

14B(7). No person not being licensed manufacturer or vendor of any intoxicant or hemp and no license 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 (1) 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 person or class of persons, either throughout the whole Presidency or in any local area, of any intoxicant, either absolutely or subject to such conditions as it may prescribe.

It has been argued by Sir Chimanlal Setalvad on behalf of the appellant in Appeal No. 105 of 1940, and his argument was adopted by counsel in the other cases, that Sub-section (2) does not affect the rights conferred by the proviso to Sub-section (1). The argument was that in the proviso the expression ' Sub-section (1)' must refer to the rest of the Sub-section, since the proviso cannot be a proviso on itself, and consequently the reference to Sub-section (1) in Sub-section (2) must be given a similar meaning. In our opinion, there is no force in this argument. The proviso is clearly a part of Sub-section (1), and we entertain no doubt that it is competent to Government under Sub-section (2) to prohibit the possession by any person or class of persons of foreign liquor as fully as they can prohibit the possession of country liquor.

5. The only real question appears to us to be whether a power to prohibit the possession by any person or class of persons either throughout the whole Presidency or any local area of any intoxicant justifies Government in prohibiting possession by the public generally. As has been stated, the notifications prohibit possession by any person, and it has not been suggested,-nor do we think it could be seriously suggested-, that the persons for the time being in Ahmedabad and its Districts, or within the town and island of Bombay and the Suburban District, who would fluctuate from day to day, and indeed from hour to hour, can be regarded as a class of persons. The view which appealed to the learned Sessions Judge of Ahmedabad, and which has been strenuously pressed upon us by the learned Advocate General, is that the words ' any person ' are equivalent to the words ' every person ' in the Section, as they clearly are in the notifications, and that, therefore, the whole public may be brought within the Prohibition. On that construction it is difficult to see what effect can be given to the words which appear in the Section, but not in the notifications, ' or class of persons '. In our opinion, the natural meaning of the expression 'any person or class of persons' is a person designated by name or description or a class of persons designated. We are satisfied that if the Legislature had intended that the power of Prohibition might be extended to the public generally, it would have so stated in clear language. Our attention was drawn to the fact that in the amendment of the Abkari Act, Bombay Act VI of 1939, the expression was used in three places ' individuals, class of individuals, or public generally '. We refer to this merely as an illustration of the phraseology which the Legislature might be expected to have used if it had intended Sub-section (2) of Section 14B to extend to the public generally.

6. If we are right in our view that the natural and proper construction of the said Sub-section does not entitle Government to prohibit the possession by the public generally of any intoxicant, no further question arises. The learned Advocate General has argued that the Sub-section in question is clear and unambiguous in its extension to the public generally, but we are quite unable to accept that view. The very highest the case can be put on behalf of Government is to say that the words ' any person or class of persons' are capable of including the public generally, though also capable of the narrower construction. If that be so, and the language of the Sub-section is to be regarded as ambiguous, we can see no reason for adopting the wider construction. Such construction would place it in the power of the Government of the day, not only to bring the whole administration of the Abkari Act to an end, but further by a stroke of the pen, without any previous warning or the provision of any compensation, to destroy the value of businesses built up, it may be, over many years and with the expenditure of much capital, in reliance on the continuance of Government policy under the Abkari Act and the previous legislation on the subject. That this is no imaginary danger is clear from the fact that the notifications made no provision whatever for compensation. To adopt such a construction would be opposed to principles of construction which are well settled. (See Western Counties Railway Co. v. Windsor and Annapolis Railway Co (1822) 7 App. 178, 188; Attorney-General v. Homer (1884) 14 Q. B. D. 245, 256; Municipal Corporation of City of Toronto; v. Virgo 1896 A.C. 88 and Bond v. Norman [1939] 1 Ch. 847 on appeal 1940 W. N. 107. It is not, however, in our view necessary to pursue this question further, as we consider that the words in controversy are not susceptible of the meaning sought to be assigned to them by Government.

7. It follows that in our judgment the Notification of July 11, 1938, relating to Ahmedabad, and the Notification of July 17, 1939, relating to Bombay, are' ultra vires and of no effect.

8. Appeal No. 105 of 1940 is allowed. Fine and proceeds of articles sold to be refunded. Appeals Nos. 121, 122 and 123 of 1940 are dismissed.


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