M.C. Chagla, C.J.
1. The first petitioners are a private limited company carrying on the business of importers, merchants and dealers in medicinal preparations containing alcohol including Hall's Wine throughout India, and the second petitioner is the Managing Director and one of the major shareholders of the first petitioner company. It appears that in the beginning of January, 1952 the first petitioners were appointed sole agents for India for Hall's Wine which is manufactured by Stephen Smith & Co. of United Kingdom, The second petitioner buys, possesses and consumes Hall's Wine for the purpose of his health and according to him this Wine is productive of the beneficial effects of invigoration, strength and energy. The petition from which this appeal arises has been filed on the ground that the fundamental rights of the first petitioner company under Article 19(1)(g) and the fundamental rights of the second petitioner under Article 19(1)(f) in respect of Hall's Wine have been affected by certain legislation passed by the State Government. It is urged by the first petitioner company that their right to carry on business and to sell Hall's Wine has been interfered with and it is alleged by the second petitioner that his right to buy, possess and consume Hall's Wine has also been interfered with by the impugned legislation.
2. In order to understand the contentions of the parties it is necessary to go back to the legislative history in connection with the Prohibition law in our State. The policy of Prohibition was enforced in this State by Act, 25 of 1949 which came Into force on the 16th June, 1949. ThatAct was challenged before this Court and this Court gave a judgment coming to the conclusion that certain portions of that Act were invalid. The Full Bench held that the State Legislature was not competent to legislate with regard to medicinal and toilet preparations and it also held that to the extent that all medicinal and toilet preparations came within the ambit of the Prohibition law, that part of the law constituted an unreasonable restriction upon the fundamental rights of the citizens. In coming to this conclusion it is important to bear in mind that we put particular emphasis on the fact that the legitimate use of medicinal preparations was prohibited merely because those medicinal preparations might be converted by an addict to an illegitimate use. We gave an illustration in that judgment of eau-de-cologne which is a toilet article and we pointed out that merely because a person might choose to drink eau-de-cologne as liquor because he could not satisfy his thirst otherwise, there was no justification for preventing a large body of citizens from making a legitimate use of that toilet article. There was an appeal from our decision and the matter was decided by the Supreme Court and the judgment is reported in State of Bombay v. F.N. Balsara 53 Bom LR 982: AIR 1951 SC 318. The Supreme Court did not agree with us that the Legislature had no competence to legislate with regard to medicinal and toilet preparations, but with respect it agreed with us in the view that we had taken with regard to the violation of fundamental rights, and at page 997 (of Bom LR); (at p. 328 of AIR) the Supreme Court cited with approval a passage from the judgment of. the Full Bench :
'Therefore, we hold that to the extent to which the Prohibition Act prevents the possession, use and consumption of non-beverages and medicines and toilet preparations containing alcohol for legitimate purposes the provisions are void as offending against Article 19(1)(f) of the Constitution even it they may be within the legislative competence of the Provincial Legislature.'
Having agreed with the Full Bench, the Supreme Court declared certain provisions of the Act as invalid and those with which we are concerned are Clause (c) of Section 12, so far as it affects the selling or buying of such medicinal and toilet preparations containing alcohol; Clause (d) of Section 12, so far as it affects the selling or buying of such medicinal and toilet preparations containing alcohol; and Clause (b) of Section 13, so far as it affects the consumption or use of such medicinal and toilet preparations containing alcohol. Now, it must not be overlooked that the decision both of the Full Bench and of the Supreme Court proceeded on this important fact that the Prohibition Act which was before them brought about a total and complete prohibition with regard to all medicinal and toilet preparations no distinction was sought to be made under that law between a medicinal preparation which was strictly medicinal and a medicinal preparation which may be used or drunk as a beverage; and what impressed both the Full Bench here and the Supreme Court in Delhi was the rather startling fact that the Legislature had prevented citizens from obtaining, possessing or consuming liquids which were strictly medicinal and also possessing and using articles which were strictly toilet articles and that neither the medicinal nor the toilet preparations could be ordinarily or normally used as an intoxicatingliquor. Both the Courts felt that to penalize honest and law abiding citizens for the misdeedsof a few perverted addicts was hardly in consonance with the fundamental rights conferred upon the citizens of India.
3. After these two decisions, certain changes were brought about in the Prohibition Act and these changes are the subject matter of controversy before us today. It cannot be disputed that the changes were brought about in order to bring the law into conformity with the decision given by the Full Bench and the Supreme Court, and the real and perhaps the only contention which we have to consider is whether the State-Legislature has succeeded in effectuating its intention, or whether -- as in some cases the Legislature unfortunately does -- it has misfired. The first and most important change that was brought about was in the Act itself. An Amending Act was passed, Act 25 of 1952, which came into force on the 22nd October, 1952, and this Act did not merely introduce a few new sections, but we agree with Mr. Seervai who has appeared for the State that the amendments effected really altered and amended the whole basis of the Prohibition Act. To summarise these alterations to the extent that they are relevant for the purpose of the question that we have to decide, for the first time the law made a distinction between preparations containing alcohol which are fit for use as intoxicating liquor and preparations containing alcohol which are unfit for use as intoxicating liquor, and having made that distinction the Act removed from the ambit of the Prohibition Act those medicinal and toilet preparations which were unfit for use as intoxicating liquor. In other words, the Legislature clearly declared its intention that it wanted to remove the unreasonable restrictions upon the rights of citizens which had been pronounced upon by the Full Bench and the Supreme Court, and the manner in which these restrictions were sought to be removed was that in order to give effect to the Prohibition policy the Legislature would not permit the free use of medicinal and toilet preparations which could be drunk as beverages, because to permit the free use of such preparations would obviously be to defeat the very policy for which the Act was passed. But to the extent that there were toilet and medicinal preparations which could not normally and ordinarily be drunk as beverages and with regard to the free use of which the policy of prohibition would not be affected, the Legislature, as we just pointed out, removed them from the ambit of the Act. This basic alteration in the structure of the Act was brought about by Section 24A, which took out of the ambit of Chapter III, the main Chapter in the Act, toilet and medicinal preparations containing alcohol which were unfit for use as intoxicating liquor. It also set up a machinery under Section 6A of a Board of Experts for the purpose of determining whether a medicinal or toilet preparation was or was not an article unfit for use as intoxicating liquor and it gave the right to the State Government, after obtaining this advice from the Board of Experts, to determine whether any such article was fit or unfit for use as intoxicating liquor and on the determination by the State Government it introduced a rule of evidence by which a rebuttable presumption arose in favour of the determination made by the State Government- It also provided against the possibility of medicinal or toilet preparations containing alcohol being used in an illegitimate manner by enacting in Section 59A thatno person shall knowingly sell any article to which Section 24A applies for being used as an intoxicating drink or sell any such article under circumstances from which he might reasonably deduce the intention or the purchaser to use them for such purpose.
4. Certain rules under the Act called the Bombay Spirituous Medicinal Preparations (Sale) Rules were promulgated on the 26th June, 1954, and 'spirituous medicinal preparation' to which these rules applied was defined as any medicinal preparation in liquid form containing alcohol which is fit for use as intoxicating liquor. An application for licence to sell spirituous medicinal preparations had to be made under Rule 4 and the licence was to be granted by the Collector under Rule 5 if he was satisfied that there was no objection to grant the licence. Rule 7 provided that the licensee shall not sell any spirituous medicinal preparation to any person unless he produced a medical prescription in that behalf, and Rule 9 obliged the licensee to preserve all medical prescriptions presented to him for the purchase of the spirituous medicinal preparations or true copies thereof for a period of one year from the date of the sale. Therefore, the effect of these rules was that spirituous medicinal preparations could not be sold except under a licence to be issued by the Collector and no person could buy such spirituous medicinal preparation except on a medical prescription given to him by a qualified medical practitioner- On the same day an order of exemption was passed by the State Government under Clause (d) of Section 139 exempting medicinal preparations containing alcohol which are fit for use as intoxicating liquor from the operation of Section 12 (c), in so far as it related to possession by a person in such quantity under a medical prescription, from Section 12 (d), in so far as it related to buying of such preparations under a medical prescription, and from Section 13 (b), in so far as it related to the consumption or use of a preparation sold to a person under a medical prescription.
5. Government started working the machinery under Section 6A by a letter of reference which it addressed to the Board of Experts on the 24th September, 1954. Various spirituous medicinal preparations were referred to the Board and the Government sought the Board's advice as to whether they were medical preparations or wines and whether they were unfit for use as intoxicating liquor, and in respect of those which were regarded as being fit for use as intoxicating liquor, what quantity would be required to produce intoxication; and in the list under the heading 'Medicated and Tonic Wines' is to be found 'Hall's Tonic Wine' which is the subject matter of this petition. The Board made its report on the 13th December, 1954 and it came to the conclusion that Hall's Tonic Wine was fit for use as an intoxicating liquor, that it was not a medicine, and it also found that 9.3 f1. oz. of Hall's Wine were sufficient for producing intoxication. On the 22nd January, 1955 Government on the strength of this report passed a resolution declaring certain medicinal preparations containing alcohol as fit for use as intoxicating liquor, and in this list is to be found Hall's Wine, and they also accepted the quantity of Hall's Wine stated by the Board as sufficient to produce intoxication. On this resolution being passed, the provisions of the Act became applicable to Hall's Wine and sale or manufacture or possession or consumption only became permissible as provided by the Act and the rules framed thereunder, and itis these provisions of the Act and the rules to the extent that they affect the petitioners that are being challenged by this petition. The petition came before our learned brother Tendolkar j. and he came to the conclusion that the challenge to the law was unsustainable, and the petitioners have now come in appeal before us.
6. The first contention urged by Mr. Palkhivala is that notwithstanding the amendment, medicinal preparations still remain outside the ambit of Sections 12 and 13, and this argument is based on the submission that the Legislature cannot change the construction of a section given to it by the highest Court of the land. It is urged that it might be open to the Legislature to cure a constitutional defect in the law by taking the necessary legislative steps for that purpose, but it is not open to a Legislature to amend the law ignoring the construction placed upon certain sections and, while permitting those sections to form part of the statute, to enact other sections which seek to give a construction to the impugned sections different from the construction placed upon them by the High Court or the Supreme-Court. It is pointed put that the assumption underlying Section 24A is that fit medicinal preparations -- and we will use hereafter that compendious expression to indicate medical preparations fit for use as intoxicating liquor -- are within the ambit of Sections 12 and 13, because in removing from the ambit of Chapter III of the Act unfit preparations the Legislature has clearly indicated that fit preparations are controlled by the provisions of Sections 12 and 13, and what is pointed out by Mr. Palkhivala is that Sections 12 and 13 having been declared to be invalid with regard to medicinal and toilet preparations by the Supreme Court, it was not open to the Legislature to go behind the declaration and retain Sections 12 and 13 in the Act and make those sections applicable to medicinal and toilet preparations. Now, this argument is based on a clear fallacy. As we have already pointed out, the question of distinguishing between one medicinal and toilet preparation and another was never considered either by the Full Bench here or by the Supreme Court. The invalidity which was declared was wholly based on the fact that all medicinal and toilet preparations were sought to be brought within the ambit of the Prohibition Act. It is, in our opinion, wholly untenable to con-tend that we must look at the Supreme Court decision declaring these sections invalid quae medicinal and toilet preparations without looking to the reasons which led the Supreme Court to that conclusion.
7. In further support of his contention; strong reliance is placed by Mr. Palkhivala on a subsequent decision of the Supreme Court in Behram Khurshid Pesikaka v. State of Bombay, : 1955CriLJ215 ; which again had the Prohibition law before it in a different context. The Supreme Court was there considering the conviction of a person for consuming alcohol and the only simple question that the Court was called upon to consider was a question of burden of proof, whether it was for the State to prove that the accused had consumed prohibited liquor or whether it was for the accused who had admittedly consumed alcohol to establish that what he had consumed was not prohibited liquor; and it was in connection with this question that certain observations were made by the learned Chief Justice and they have been relied upon by Mr. Palkhivala. In order to decide this question the learned Chief Justice had to consider what was the effect of the de-claration of invalidity of Section 13 (b) by the Supreme Court in Balsara's case (A), and the learn-ed Chief Justice at page 649 says:
'The part of the section which has been declared void has no legal force so far as citizens are concerned and it cannot be recognized as valid law for determining the rights of citizens. In other words, the ambit of the section stands narrowed down so far as its enforceability against citizens is concerned and no notice can be taken of the part of the section struck down in a prosecution for contravention of the provisions of that section, with the consequence that in prosecutions against citizens of India under Section 13 (b), the offence of contravention of the section 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.'
Again at page 651 (of SCR): (at p. 145 of AIR) the learned Chief Justice says:
'The result therefore of this pronouncement is that the part of the section of an existing lawwhich 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.'
On the strength of these remarks what has been urged by Mr. Palkhivala is that although it was competent to the Legislature to cure the invalidity in Sections 12 and 13, it could only do so either by amending Section 12 or Section 13 or by enacting another section dealing with fit preparations, but it could not cure the invalidity in the manner In which it is sought to be done. In our opinion, this is a pure question of drafting. Courts arc disinclined, and in our opinion rightly so, to invalidate as far as possible any legislation passed by a Legislature even when there are sometimes substantial defects in that Legislation, but surely no Court would permit itself to defeat a legislation passed by the Legislature with an express intent, merely because in its opinion a better form of drafting might have been adopted. As we said before, the intention of the Legislature in amending the Act is perfectly clear. The question we have to ask ourselves is this : 'Has the Legislature so clearly failed to effectuate that intention as would compel us to strike down the impugned legislation?' It is impossible to suggest that the Legislature was not respecting the decision of the Supreme Court that Sections 12 and 13 were notionally obliterated from the statute to the extent that they referred to medicinal and toilet preparations. But in the very Act by incorporating Section 24A in Chapter III the Legislature effectively amended Sections 12 and 13 because whereas at the date when the Supreme Court made its declaration, Sections 12 and 13 applied to all medicinal and toilet preparations, by reason of the amendment Sections 12 and 13 only applied to a certain limited category of medicinal and toilet preparations. It seems to us futile to suggest that a different result could have been achieved by having a separate provision in a separate Chapter for medicinal and toilet preparations fit for use and leaving Sections 12 and 13unaffected and unamended and with the same infirmity attaching to them as pointed out by the Supreme Court.
8. The next submission made by Mr. Palkhivala is that the restrictions with regard to medicinal preparations fit for use as intoxicating liquor must be considered unreasonable on the simple ground that an identical set of restrictions were held to be unreasonable by the Supreme Court, that we are bound by the decision of the Supreme Court, and any investigation into the nature of restrictions now is entirely beside the point and we must dutifully give effect to the decision of the Supreme Court on an identical question. In this connection it is pointed out that in Balsara's case (A) various notifications and rules were referred to which are almost similar in terms to the rules which we have already pointed out, and it is said that if after considering those rules and notifications the Supreme Court came to the conclusion that the restrictions were unreasonable, there is no reason why we should come to a different or contrary conclusion. Now, in advancing this argument it is again being overlooked that what the Supreme Court was considering was a case where there was total prohibition of all medicinal and toilet preparations, and when it was urged that certain rights were conferred upon citizens under rules and notifications the Supreme Court rejected that contention because it took the view that no case was made out for any restriction whatsoever in case of medicinal and toilet preparations which were unfit for use, and that even compelling a citizen to possess medicinal and toilet preparations under a permit was an unreasonable restriction. What we are now asked to consider is whether differentiation having been made between fit and unfit preparations, the restrictions placed upon the use of fit preparations are such as could be considered to be unreasonable.
9. The next question brings us to the nature of the restrictions and whether they are reasonable. Before we deal with these restrictions, perhaps a few general observations may be useful. When a Legislature imposes restrictions upon the fundamental rights of a citizen, the Court must not judge these restrictions by any absolute standard. Whether the restrictions are reasonable or not must largely depend upon what is the object the Legislature is seeking to achieve by legislation and what is the mischief it is aiming at. If the restrictions are necessary and essential in order to achieve the object and to remove the mischief then ordinarily the Court must uphold those restrictions. To the extent that the restrictions go beyond the necessity for achieving the object or removing the mischief, undoubtedly the restrictions would be unreasonable. It is important to bear in mind that only those restrictions are permissible which are in the interests of general public. If the law which is passed and the policy which is sought to be enforced is in the interests of the general public, then it is obvious that any restriction which makes it possible to enforce the law must equally be in the interests of the policy. In this connection we must constantly bear in mind that the policy which the Legislature was seeking to enforce under the Act was the policy of Prohibition. For this policy it had received the mandate of the Legislature, the Courts had held that the Legislature was competent to enforce that policy, and any restrictions upon the general public in the interests of that policy and for thepurpose of enforcing that policy and the advancement of that policy must be held to be proper and valid restrictions so long as the Legislature has been permitted to give effect to the policy in question. Therefore, it is in the light of these observations that we must look at the restrictions which are challenged as unreasonable- It would be erroneous, in our opinion, to consider every restriction from the point of view of some vague and indefinite standard which might be set up as to personal liberty and individual rights- Personal freedom and the rights of the individual must be circumscribed by what the Legislature considers to be in the interests of the general public, and if the Legislature has taken the view that it is in the interests of the general public that the citizens should give up consuming or using intoxicating liquor except under severe restrict ions, then the Court must accept that policy as in the interests of the general public and must help the Legislature to enforce that policy and to bring it to fruition.
10. Before we deal with the actual restrictions themselves, there are one or two legal arguments o[ some considerable importance which were advanced and which we may first notice. It was urged by Mr. Palkhivala that in order to determine whether the restrictions imposed are reasonable or not, we must look at the Amending Act by itself and not in conjunction with the rules and notifications .subsequently passed, and what is said is that if we look at the Act by itself, the Act constitutes a clear invasion on the fundamental rights of the citizen and it must be struck down. It is further said that if the Act constitutes an invasion on the fundamental rights of citizens, then the Legislature was not competent to enact that law, that the law was void in its inception, and no subsequent rules or notifications can validate that piece of legislation. In this connection emphasis is placed upon the fact that the Act we are considering, Act 25 of 1952, is a post-Constitution Act and it is governed by Article 13(2) of the Constitution which provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this Clause shall, to the extent of the contravention, be void; and what is argued is that this prohibition in Article 13(2) makes the Legislature incompetent to pass a law which is in violation or in abridgment of the fundamental rights guaranteed by Part III, and if such a law is passed it was passed by a Legislature which was incompetent to do so.
11. Before we look at the authorities we may consider the question from the point of view of the basic features of our Constitution. The Constitution confers upon the State Legislature competence, and authority to legislate with regard to certain subjects. With regard to other subjects the Legislature has no competence whatever. Therefore, when a State Legislature attempts to legislate on a tonic which is not within its competence it is clearly acting without competence or jurisdiction. It is handling, if one might so put it, a subject which it is prevented from handling; it is dealing with a matter which the Constitution has asked it not to have anything to do with. In such a case it is clear that the Legislature has legislated without competence and any law so passed is clearly ultra vires of the Legislature. We are here concerned strictly with the vires of the Legislature and if a law is challenged on this ground the only question that the Court has to consider, looking to the Seventh Schedule and List in the Schedule, isas to whether the legislation was within the competence of the Legislature by reason of the topics left within its jurisdiction. In such a case, it may be pointed out, no question of the validity or invalidity of the law can arise because the lack or absence of vires is sufficient to invalidate the law and the invalidity arises not by reason of any violation of any injunction in the Constitution, but by the absence of jurisdiction in the Legislature to legislate on a particular question. But even though a Legislature may legislate with competence and with jurisdiction, the legislation may still be struck down if it violates or contravenes any provision of the Constitution. Confining ourselves to the fundamental rights, with which we are concerned, it is always open to a person, to whom a fundamental right has been guaranteed, to challenge even a competent legislation on the ground that it violates his fundamental right, and if the law which is impugned comes between him and the exercise of his fundamental right, the Court must declare that law to be invalid. But a distinction between a law which is bad on the ground that it is ultra vires of the Legislature and a law which is invalid as contravening fundamental rights is vital and fundamental. In the first case the law is a nullity, is bad from its inception, and nothing can be done to cure that law. It is as bad as a decree passed by a Court without jurisdiction which is a nullity for all purposes. In the second case the position is different. In the case of a violation or infraction of fundamental rights, before it is decided that there has been such violation or infraction, an investigation has to be held because whether a restriction is reasonable or not has been made justiciable and the Court has to decide after consideration of various circumstances whether the restriction imposed by the Legislature is justified or not. There is another respect in which the distinction is vital. In the case of a law which is passed by a Legislature which is incompetent, the law as pointed out is totally void from its inception. In the other case, where the law is passed by a competent Legislature but which may contravene fundamental rights, the law may still be good in case of those fundamental rights which are only guaranteed to citizens as regards non-citizens. Therefore, it would not be true to say that the position of a law passed by a Legislature without competence and the position of a law passed by a Legislature with competence but which violates fundamental rights is the same. In the first case, the law is obliterated from the statute book on the Court giving a declaration that it is ultra vires; it is void; it is a nullity; no rights flow from it. In the latter case, it is bad only quae the person who complains of violation of his fundamental rights, because what the Court does in the case of fundamental rights is to prevent the law from coming in the way of the citizen exercising his rights; the Court is not concerned with the other effects of the law. Finally, the other distinction that must be borne in mind is that a petitioner who comes to Court complaining of violation of his fundamental rights must establish his case as at the date of the petition. He must satisfy the Court that at the date of the petition the law is such as contravenes his fundamental rights. If the law holds out no threat, if the enforcement of the law as at that date does not deprive him of any of his rights, it would be futile on his part to hark back to what the position might have been when either his fundamental rights were not infringed or he did not makea complaint of that infringement. But in the case of an incompetent legislation, as already pointed out, no rights whatever can flow from that legislation. If what we have just said is the correct position in law, then what we have to examine is whether the Supreme Court has taken a view contrary to what we feel is the proper view to take of laws passed by the Legislature. Undoubtedly, if the Supreme Court has taken a different view, however strongly we may feel about the opinion we have Just expressed, we must discard our opinion and accept the position taken up by the Supreme Court.
12. In this connection reliance is first placed and very strongly placed, upon Pesikaka's case (B) and our attention is drawn to the passage in the judgment of the learned Chief Justice at page 652 (of SCR): (at p. 145 of AIR) in which, according to Mr. Palkhivala, the learned Chief Justice has made it clear that there is no distinction whatsoever between a case of a Legislature passing a law with regard to a subject matter over which it has no jurisdiction and the case where the Legislature passes a law infringing a fundamental right, and Mr. Palkhivala says that the learned Chief Justice has made it clear that in both these cases the Legislature is incompetent and the same situation arises with regard to both types of legislation, and the passage relied upon is this.
'We are also not able to endorse the opinion expressed by our learned brother, Venkatarama Ayyar, that a declaration of unconstitutionality brought about by lack of legislative power stands on a different footing from a declaration of unconstitutionality brought about by reason of abridgement of fundamental rights. We think that it is not a correct proposition that constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the law-making power of a State is restricted by a written fundamental law, then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but the two aspects of want of legislative power. The legislative power of Parliament and the State legislatures as conferred by Articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of the Constitution. A mere reference to the provisions of Article 13(2) and Articles 245 and 246 is sufficient to indicate that there is no competency in Parliament or a State Legislature to make a law which comes into clash with Part III of the Constitution after the coming into force of the Constitution.'
And then the learned Chief Justice refers to Article 13(2) which deals with post-Constitution laws.
Now, perhaps it would be over-simplification of this part of the judgment to say that the Supreme Court was not dealing with the case that we are dealing with or that the Supreme Court was concerned with a declaration of invalidity and not with a case of curing a constitutional defect, because undoubtedly there are weighty words of the learned Chief Justice where he has taken the view that there is a lack of legislative power and a check and control of legislative power not only with regard to the subject matter but also with regard to Part III of the Constitution, and he has referred to Article 13(2) onwhich, as already pointed out, Mr. Palkhivala places considerable reliance. Now, if the position in law stood thus, viz., concluded by this judgment and the observations of the learned Chief Justice, we would undoubtedly have found it rather difficult to come to a different and contrary conclusion. It may be stated that this Court took the same view of the law which we have Just enunciated in the United Motors' Case 55 Bom LR 246 .
13. But there is a subsequent judgment of the Supreme Court which, with respect, not only considerably shakes the authority of Pesikaka's case (B) on this particular point, but which, it seems to us, almost overrules Pesikaka's case (B), if not expressly, by implication. Turning to that judgment which is Bhikaji Narain Dhakras V. State of Madhya Pradesh, : 2SCR589 , in that case the validity of the O.P. and Berar Motor Vehicles (Amendment) Act, 1947, was challenged. It was a pre-Constitution Act and the Act, but for the subsequent constitutional amendment, would have been invalid as impairing fundamental rights of the petitioner, and the Acting Chief Justice Das, as he then was, at page 599 (of SCR): (at p. 785 of AIR) says:
'Therefore between the 26th January, 1950, and the 18th June, 1951 the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under Article 19(1)(g). The true position is that the impugned law be-came, as it were, eclipsed, for the time being, by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow and to make the impugned Act free from all blemish or infirmity.'
Therefore, according to this passage it is clear that the learned Acting Chief Justice clearly takes the view that when a law is impugned on the ground of contravention of a fundamental right, the law does not become obliterated nor does it become void, but it is eclipsed and the shadow which hangs over the law can be removed when the law ceases to contravene the fundamental right. What is pointed out by Mr. Palkhivala is that the learned Acting Chief Justice was dealing in that case with a pre-Constitution Act and the position with regard to a post-Constitution Act is different because even the language of Articles 13(1) and 13(2) according to Mr. Palkhivala is different and the position in law is not the same under Article 13(1) and Article 13(2). But this criticism of this passage has no validity because at the bottom of page 599 (of SCR): (at p. 785 of AIR) the learned Acting Chief Justice says:
'All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13, rendered void 'to the extent of such inconsistency'. Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and as against non-citizens. It is only as against the citizens that they remained in dormant or moribund condition.'
Therefore, it is clear from this passage that not only a pre-Constitution law, but a post-Constitution law as well does not become dead by reason of its being inconsistent with the provisions of Article 13, and therefore to the extent that the learned Chief Justice in Pesikaka's case (B) stated that Sections 12 and 13 of the Prohibition Act were obliterated from the statute because theLegislature which passed them was incompetent to enact those sections and that those sectionswere void and that there was no difference between the case of incompeteney clue to lack of jurisdiction with regard to particular matters and an act of incompeteney due to infringement of fundamental rights, that observation must be held not only not to have been accepted in the later judgment of the Supreme Court, but to have been expressly dissented from by the learned Acting Chief Justice. Nothing can be clearer than the passage just referred to where the learned Acting Chief Justice in terms refers to all laws, existing or future, and makes it clear that such laws are not dead for all purposes if they are inconsistent with the provisions of Part IIIof our Constitution. Attention should also be drawn to the fact that in the judgment in Pesikaka's case (B) the American Constitutional doctrine as to invalidity of laws was referred to, and referred to with seeming approval, and in the subsequent decision of the Supreme Court in Bhikaji's ease (D) the learned Acting Chief Justice, after drawing a distinction between pre-Constitution and post-Constitution law, which according to him was clear from the American authorities, states that the judgment of the Court need not rest on American doctrine and it must be held that these American authorities can have no application to our Constitution. Therefore, any attempt to distinguish Bhikaji's case (D) on the ground that it dealt with a pre-Constitution Act from the observations with regard to post-Constitution laws contained in Pesikaka's case, it seems to us, cannot succeed. The law as now formulated by the Supreme Court in Bhikaji's case (D) is clear and that is that where you are dealing with a pre-Constitution or a post-Constitution Act, if the Act has been passed by a competent Legislature and the constitutional infirmity only arises by reason of the fact that it is inconsistent with Part III of the Constitution, to the extent of that inconsistency the Act is moribund and cannot be given effect to, but it the provision of the Act at any time ceases to be inconsistent with the fundamental rights, then it becomes revived or revitalized and can have full force and effect- If that be the true position, then it is clear that the Amending Act 26 of 1952, assuming that it was inconsistent with Part III of the Constitution, was not a dead letter, and if subsequently the rules and notifications brought the law into line with the fundamental rights embodied in Part III, then what we have to look at is not the Act as originally passed but the Act with the rules and notifications which were in operation at the date when the petition was filed. Therefore, what the petitioners have got to establish in order to succeed is not that Act 26 of 3952 violated fundamental rights, but that the Act in conjunction with the rules and notifications violated their fundamental rights at the date when they presented the petition.
14. But even assuming Mr. Palkhivala was right, we are not at all satisfied that the Act read by itself was inconsistent with any of the provisions of Part III of the Constitution. What is pointed out by Mr. Palkhivala is that till the Bombay Spirituous Medicinal Preparations Act came into force on the 26th June, 1954 it was not possible for a citizen to obtain Hall's Wine on a medical prescription and that with regard to fit preparations there was complete prohibition and even though fit preparations might have been required as medicines the citizen was deprived of the benefit of those preparations- Now. when we look at the Act it is patent that theLegislature did not intend that the prohibition with regard to fit preparations should be complete and absolute. In the first place, Section 11 itself clearly contemplated that under certain circumstances it would be lawful to possess, consume, etc. prohibited liquor and the circumstances were to be determined by the necessary rules and notifications to be framed under the provisions of the Act. Our attention has also been drawn by Mr. Seervai to Section 31 which deals with licences for bona fide medicinal or other purposes, and under this section a permit could be issued for the sale or manufacture of a medicinal preparation and a person buying a medicinal preparation from such a licensee for a bona fide medicinal purpose could possess it and also consume or use it for a bona fide medicinal purpose. Mr. Seervai has also drawn our attention to the amendment in Section 31 which now permits not only manufacture, import, export and sale of a medicinal preparation, but also the possession, consumption or use of it. and turning to Section 139, Sub-Clause (d) contains the clear mandate of the Legislature that by rules the State Government may exempt any intoxicant or class of intoxicants from all or any of the provisions of the Act Therefore, it is fallacious to suggest that because fit preparations were kept within the ambit of the Act, the intention was that there should be a total prohibition with regard to these preparations and even the legitimate use of these preparations should be prohibited. It is true that the Legislature left it to the State Government to work out the details by means of rules and notifications, but that had to be so because it would have been impossible for the Legislature to decide which were fit preparations and which were not fit preparations and it was precisely because of this that the machinery under Section 6A was brought into existence. But in the view that we have formed it is academic to consider whether the Act by itself constituted an unjustifiable encroachment upon the fundamental rights of the petitioners. What we have to look at is the Act in conjunction with the rules and notifications and we do not think it can be seriously urged that the Act and the rules taken together constitute an unreasonable restriction upon the fundamental rights of the petitioners.
15. Now, in order to appreciate these restrictions, one significant and indisputable fact must be borne in mind and that is the nature of the article with which we are dealing. Hall's Wine has been described by the manufacturers themselves in a note issued by the manufacturers to the medical profession in England as ''a genuine high grade wine, rich and red, the Strength in proof spirit being between 29 and 35 per cent according to market requirements. The added vitamins are so skilfully blended into the wine that their presence is undetectable by the eye, the nose or the palate. The clear, brilliant wine and its fine bouquet are entirely unimpaired.' Therefore, all the arguments advanced by Mr. Palkhivala to convince us that this preparation is a medicine cannot convince us contrary to the emphatic declaration of the manufacturers themselves that they have done their best to see that Hall's Wine remains a wine, is looked upon as a wine, and that whether it is the eye or the nose or the palate it does not in any way come to the conclusion that the liquid in question has not the properties, the taste and the bouquet of a proper wine. It is true that this wine has certain vitamins added to it, but that fact on the record as it stands does not change the essential nature or the aspect of the liquidwe are dealing with, is it seriously suggested that when in pursuance of the policy of Prohibition citizens can be legally prohibited from drinking ordinary wines, they should have the pleasure of drinking and possessing unrestrainedly this particular type of wine which the manufacturers themselves tell us is as delectable as other wines which have been properly and legally prohibited? Therefore, in considering the restrictions we must constantly bear in mind that the restrictions are in respect of a medicinal preparation which is essentially a wine and the restrictions are intended to prevent citizens from drinking it as a wine. The only question is whether proper facilities are given to citizens to use it as a medicine and not as a wine. If such facilities are given, then the restrictions cannot be considered to be unreasonable.
16. The first restriction to which our attention has been drawn is that before a person can get any quantity of Hall's Wine he requires a doctor's prescription. It is difficult to understand, how this can constitute an unreasonable restriction. If a man is really in need of Hall's Wine as a medicine, just as he would go to a doctor for a prescription for any other medicine, he should equally go to him for having prescribed to him this particular type of medicine if his constitution requires it. Then it is urged that uncontrolled and absolute power is conferred upon the Collector to grant or refuse a licence under Rule 5 of the rules. We agree with the learned trial Judge that it is not left to the subjective determination of the Collector whether he should or should not issue a licence and that he must be objectively satisfied that there is some objection which should disentitle the applicant from a licence being granted to him. We also are in agreement with the learned trial Judge that inasmuch as a right of appeal is provided against the decision of the Collector, the Collector should state his reasons for refusing a licence in writing so that the appellate authority should be in a position to consider his reason. It is really difficult to understand how, when a right of appeal is provided against the decision of the Collector, it could possibly be urged that his decision is uncontrolled or untrammelled or absolute. It is then said that under Section GA the determination by the Board and decision by Government is arrived at without hearing the other side and that is a violation of the rules of natural justice and a restriction which is unreasonable. Now, it must be borne in mind that the determination both, by the Board and by the State Government is not a determination which is binding upon the party affected by it. The only result of the determination is, as already pointed out to raise a presumption in favour of the State Government and if the matter ever went to Court it would be open to the party affected to rebut that presumption and to call evidence in support of his case. Therefore, the ultimate judicial decision would only be arrived at after fully hearing the party affected by the determination by the Board or by the State Government. Therefore, in our opinion, looking to the circumstances of the case and looking to the object to be achieved by this Act, the restrictions imposed by the rules are reasonable.
17. The next question that was canvassed before us was as to the true construction which should be placed upon the expression used in Section 14A, viz., a preparation which is unfit for use as intoxicating liquor. The converse definition applies to Hall's Wine because Government havecome to the conclusion that it is a preparation fit for use as intoxicating liquor, and the question is, what is the proper meaning to give to this expression used by the Legislature? Two alternative constructions have been suggested by Mr. Palkhivala. One is that 'fit for use as intoxicating liquor' means designed or intended to be used as intoxicating liquor, and the alternative construction suggested is that it is a preparation which would cause intoxication and drunkenness. The construction which has been put upon this expression by the learned trial Judge is that it has the same meaning as the expression used in the American Valsteed Act, viz., fit for use for beverage purposes. It is true that the Legislature having the Valsteed Act before it could have used the same expression as is used by the American Legislature, but the fact that a different expression is used does not necessarily lead to the conclusion that a different meaning was intended to be given to the actual expression used by the Legislature. Turning to the two alternative constructions suggested by Mr. Palkhivala, Mr. Palkhivala says that what was intended to be brought within the mischief of the Act was so called medicinal preparations or wines masquerading as medicines, and therefore unless there was an intention on the part of the manufacturer that a particular liquor should be used as an intoxicating liquor it should not be held that the liquor falls within the mischief aimed at by the Legislature. In our opinion, it is difficult to accept this interpretation suggested by Mr. Palkhivala. Section 24A refers to medicinal preparations and therefore ex-hypothesi before we come to consider whether the medicinal preparation is fit or unfit for use as intoxicating liquor it must be a medicinal preparation. If it is not a medicinal preparation, but a wine which merely masqueraded as a medicine, then it would not come within the ambit of Section 24A at all. It would come within the mischief of the Act by reason of the fact that it was a spirit or a wine which was clearly prohibited- It is only when we have a genuine medicinal preparation that the question arises as to whether it is fit or unfit for use as intoxicating liquor. The further difficulty in the way of accepting Mr. Palkhivala's contention is that the Legislature could not have intended to put this construction on this expression inasmuch as such a construction would lead to infinite difficulties. It is always difficult to ascertain an intention and it would be even more diff-cult to ascertain the intention of a manufacturer who puts a wine on the market, and therefore what the Legislature wanted was that as far as possible there should be an objective appraisal of the particular medicinal preparation and for that purpose the machinery under Section 6A was set up. With regard to the alternative suggestion that in order that it should be fit for use as intoxicating liquor it should in fact lead to drunkenness and intoxication, that construction is equally unacceptable. It is difficult to ascertain objectively whether a particular preparation would in fact lead to drunkenness and intoxication. It depends upon so many factors; upon the constitution of the person who drinks an intoxicating liquor, upon the quantity he drinks, upon the mood in which he is when he drinks it, and several other factors. The Legislature was not concerned with the actual result or the consequence of consumption of an intoxicating liquor. What it was concerned with was that it was an intoxicating liquor which was being drunk, and therefore, in our opinion, the proper construction to place upon the expression 'for use as in-toxicating liquor' is that it must be a liquor which is capable of causing intoxication or a liquor which has the property of causing intoxication. If that be the true construction on the facts established on the record here, there is no dispute that Hall's Wine is capable of causing intoxication or has the property of causing intoxication.
18. Mr. Palkhivala has next drawn our attention to what he calls certain irrelevant circumstances which were taken into consideration both by the Board and by the Government in arriving at the determination. We may point out that it is immaterial whether these irrelevant circumstances were taken into consideration or even that the decision of the Government was not properly arrived at, because assuming the presumption under Section 6A does not arise, it is for us on the record to determine whether the particular preparation we are dealing with was or was not fit for use as intoxicating liquor, and, as already pointed out, it is difficult to even urge that Hall's Wine is not a medicinal preparation fit for use as intoxicating liquor in the light of the construction we have placed upon that expression. But for the guidance of the Board in future, perhaps we may consider what are the objectionable features which according to Mr. Palkhivala have vitiated the decision of the determination by the Government. Mr. Palkhivala points out that in the letter of reference Government wanted the Board to decide what quantity would be required to produce intoxication and in the final resolution passed by Government giving their decision they have also referred to this quantity. We agree with Mr. Palkhivala that this is an entirely irrelevant and superfluous factor and should not have been taken into consideration by Government in arriving at its decision. If all that the Government has to decide is whether the particular preparation has the property of causing intoxication, then it is entirely irrelevant what quantity in fact would cause .intoxication. The other factor to which Mr. Palkhivala has drawn our attention is one of the tests adopted by the Board and which is that they considered whether there was any deleterious or poisonous substance in the preparations and if there was such a substance the Board came to the conclusion that the preparations were unfit for use as intoxicating liquor. Now this test is clearly erroneous. It may serve as a negative test, in that if there are deleterious or poisonous materials in a preparation it would not be fit for use as a beverage or as an intoxicating liquor. But you may have a medicinal preparation which may not contain deleterious or poisonous materials and may yet be a pure medicinal preparation which cannot be drunk as a beverage and which cannot be considered to be fit for use as intoxicating liquor. One can easily conceive of several medicines on the market which contain alcohol which are genuine medicines and which do not contain any deleterious or poisonous materials. The absence of deleterious or poisonous materials would not necessarily put these medicinal preparations in the category of preparations fit for use as intoxicating liquor. Equally improper is the other test which was also adopted by the Board whether the preparation was calculated to bring about symptoms of intoxication. There is considerable difference of opinion as to what are the symptoms of intoxication, when intoxication starts, when it reaches its culmination, and we see no reason why the Board should have launched upon this interesting but entirely futile inquiry. As already pointed out, if themedicinal preparation has the property of causing intoxication and it can be drunk as a beverage, then the question as to at what stage the symptoms of intoxication would arise by consuming this liquor would be entirely irrelevant. On the whole, we are in agreement with the learned trial Judge that the test that should be applied is practically identical with the test that would! be applied under the Valsteed Act, and that is whether a particular medicinal preparation is fit for use as beverage purposes.
19. In the petition there was also a challenge under Article 14 of the Constitution on the ground of discrimination, but Mr. Palkhivala very fairly, looking to the state of the record, has not pressed that point any further.
20. In the result we agree with the learned trial Judge that the challenge made by the petitioners to the impugned legislation must fail. The result is that the appeal will be dismissed with costs.
21. With regard to costs, we should have mentioned that in the Court below the hearing took 18 days and that was due to the fact that expert evidence on both sides was called in order to assist the Court in deciding the nature of Hall's Wine. We have been fortunately spared the arduous task of going through this expert evidence because it was frankly conceded by Mr. Palkhivala that if we placed upon the expression 'fit for use' the same construction the learned trial Judge has put, then the evidence led was not relevant and we should not be troubled with it. The evidence only became relevant if we accepted either of the other two constructions. Inasmuch as we did not, the bulk of the paper book was not referred to before us. Looking to the complexity of the matter the learned trial Judge granted costs on the basis of a long cause and certified one counsel. In appeal too we must direct the Taxing Master to tax the costs on the basis of this appeal being from a long cause. With regard to certifying counsel, in the Court below the State of Bombay only appeared by one counsel. Here they appeared by three counsel. Looking to the importance of the appeal and the difficult constitutional questions which were argued, we think it only fair that two counsel should be certified.
22. Appeal dismissed.