1. This is an appeal from an order passed by the learned Presidency Magistrate 5th Court, Bombay, convicting the accused under Section 43 (1), Abkari Act and sentencing her to rigorous imprisonment for three months and a fine of Rs. 500, in default, rigorous imprisonment for six weeks. The accused was charged with being in possession of 12 bottles of whisky, one bottle of madeira, one bottle of Cream de Menthe and one bottle of sherry, the possession being in excess of what was permissible under the law.
2. This appeal has been argued mainly on the question as to whether the Provincial Legislature has the competence to control or restrict the possession by a citizen in respect of foreign liquor. In order to understand this argument we must first look at the scheme of the Bombay Abkari Act (Bom. V  of 1878), with which we are concerned, and the preamble of that Act states:
'Whereas it is expedient to consolidate and amend the law relating to the import, export, transport, manufacture, sale and possession of liquor and of intoxicating drugs in the Province of Bombay and whereas in order to promote, enforce and carry into effect the policy of prohibition it is necessary to prohibit the import, export, transport, manufacture, sale and possession of liquor and of intoxicating drugs in the Province of Bombay or in specified areas thereof.'
Therefore, it is in order to pursue the policy of prohibition that the Legislature has put this Act upon the statute book, and in order to carry out their policy it has enacted provisions, among others, with regard to the possession of liquor and intoxicating drugs. Section 14B provides:
'No person not being a licensed manufacturer or vendor of any intoxicant or hemp and no licensed 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.'
Therefore, the limit of foreign liquor which a person can possess under this section is with reference to the limit which he could sell by retail, and for that purpose we have got to look at Section 17, and Section 17 provides:
'The Provincial Government may by notification in the Official Gazette determine a limit of quantity within which and beyond which the sale of any intoxicant or hemp shall be deemed to be sale by retail and wholesale respectively; such limit may be fixed with respect to the whole Province of Bombay or to any local area, and with respect to purchasers generally or to any specified class of purchasers, and with respect to any specified occasion or generally.'
Under this section the Government issued a notification on 3lst March 1948, being Notification No. 7147/39, by which it prescribed the quantities which should be deemed to be sold by retail within the meaning of Section 17, and various quantities are prescribed with regard to brandy, whisky, rum, gin, wines and fermented foreign liquor, and the possession by the accused, if this Notification is a good and valid one, is indisputably in excess of the possession permitted under it.
3. The argument advanced by Mr. Gauba before us is that it is not competent to the Provincial Legislature to control or restrict, much less prohibit, possession of foreign liquor, because it would interfere with the rights of the Central Government to control imports of foreign liquor. Prior to the enactment of Bombay Act VI  of 1910 there was a proviso to Section 14B (1) to the following effect :
'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.'
Therefore, reading Section 14B (1) and the proviso, as it stood then, although the Provincial Government could restrict and control and prohibit possession of country liquor, it could not do so in the case of foreign liquor, if foreign liquor was possessed either by a carrier or a warehouseman or it was purchased by a person for his bona fide private consumption and not for sale. In this connection we must also draw attention to Sub-clause (2) of Section 14B which at that date was in the following terms :
'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.'
Therefore, it would not be true to say that prior to Act VI  of 1940 the Provincial Government had no power under the Abkari Act to prohibit or control or restrict the possession of foreign liquor. Mr. Gauba has asked us to read the proviso to Sub-section (1) as if it was a proviso to the whole section. That argument is obviously untenable because the proviso specifically mentions that it is a proviso to Sub-section (1), and Sub-section (2) starts with the opening words 'Not-withstanding anything contained in Sub-section (1),' which would include both the sub-section and the proviso. Therefore, under Section 14B, as it stood before the amendment it was open to the Provincial Legislature under the Abkari Act by a notification to prohibit the possession of foreign liquor qua any person or class of persons. It is unnecessary to consider whether any person or class of persons may or may not include carriers or ware-housemen or persons who had purchased foreign liquor bona fide for their private consumption.
4. Now, the proviso to Section 11B (1) was repealed by Act vi  of 1940 and that was a Governor's Act when the Governor was exercising powers under Section 93, Government of India Act, and the repeal of that proviso was again embodied in an Act of the Legislature which is Act xxix  of 1947, and the whole of Mr. Gauba's contention has been that the repeal of this proviso is ultra vires of the Provincial Legislature. Whether it is ultra vires or not can only be determined by considering the legislative competence of the Provincial Legislature, and in order to decide what the legislative competence of the Provincial Legislature is, we have got to look to Lists I and II of Schedule 7, Government of India Act. Item 31 in List II gives the power to the Provincial Legislature to legislate with regard to intoxicating liquors and narcotic drugs, that is to say, the production manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs, but subject, as respects opium, to the provisions of List I and, as respects poisons and dangerous drugs, to the provisions of List III. It will be noticed that no distinction is made in this item between foreign liquor and country liquor. The powers given to the Legislature are clear and explicit and within its legislative competence is the right to legislate among other things, with regard to the possession both of country liquor and of foreign liquor. It cannot be disputed that the light to deal with possession would include the right to prohibit possession. The right cannot be restricted merely to regulate or control possession. Turning to List I which deals with the Central Legislature, we have item 19 which is in the following terms: 'Import and export across customs frontiers as defined by the Dominion Government.' Here again it is not disputed that any foreign liquor coming to Bombay from across the seas would constitute import across customs frontier as defined by the Central Government. I need not once again state what was stated by me in a recent decision of this Court in Mulchand Jagtiani v. Raman Shah 51 Bom. L R. 86 : A. I. R 1949 Bom. 197, as to the scheme of the Government of India Act and how the legislative powers are distributed between the Centre and the Provinces. The duty of the Court is to try and reconcile the different items that appear in the different Lists. Where there is overlapping, attempt must be made to give such a meaning to each item as would lead to as little conflict and friction as possible. It is also clear that as between List I and List II, List I must prevail. In the hierarchy of Lists, list I occupies a pre-eminent position.
5. Now, in considering any legislation, what we have to first look at is the true effect of that legislation. We have to consider what the Legislature was legislating about in substance and we have also to determine whether in sub-stance the subject matter dealt with falls within one of the items in List II. In repealing the proviso to Section 14B (1) the Legislature was dealing with the question of possession of foreign liquor. In doing so it was legislating with regard to a subject which clearly fell under item 31 in List II. The scheme of the Government of India Act is that to the extent of List II the Provincial Legislature is supreme and sovereign and as a sovereign Legislature it has full legislative competence to deal with all matters that arise out of and fall under item 31 of List II. The next question is whether in legislating with regard to a matter which falls under item 31, the Legislature has trespassed upon the field which has been reserved for the Central Legislature under List I, and what we have to decide is whether in repealing the proviso to Section 14B the Legislature has trespassed upon item 19 of List I which deals with imports and exports. It is not as if it is not competent to the Provincial Legislature to trespass upon any item which is included in List I. In the complicated affairs of the State, it is very difficult to say with regard to any particular piece of legislation that there could not be and there should not be any trespass at all upon an item that falls in List I. But it is the duty of the Court to consider the nature of the trespass which the Legislature has made upon any particular item in List I. If the trespass is incidental, and the substance of the legislation still remains one which falls in List II, then the Court will disregard the trespass and come to the conclusion that the Provincial Legislature was acting within its legislative competence. If the trespass is substantial, so substantial as to make the legislation more with regard to the item that falls in List I rather than with regard to the item which falls in List II, then the Court would prevent the Provincial Legislature from making that trespass. But merely because in legislating with regard to a matter which falls in List II a mere ancillary or incidental effect of that legislation is to affect a matter which falls in List I, that by itself is not sufficient to lead the Court to hold that the impugned legislation is ultra vires of the Provincial Legislature.
6. Now, what is argued in this case is this that in prohibiting possession of the foreign liquor or in restricting it, the Legislature has interfered with the rights of the Central Government to regulate the import of foreign liquor. It is argued that if no one in the Province of Bombay can possess foreign liquor, then it would be impossible for him to import foreign liquor from across the seas. It is further pointed out that the proviso to Section 14B which has been repealed protected not merely a person who purchased foreign liquor for his bona fide consumption, but also a common carrier or a warehouseman and in repealing the proviso the Legislature has taken away the protection not only from the private citizen but also from the common carrier or warehouseman, and it is pointed out that how could it ever be possible to import any foreign liquor in Bombay if even a common carrier or a warehouseman cannot possess foreign liquor or can only possess such foreign liquor as may be regulated by a license of the Provincial Government. Now, in this particular case, we are not concerned with a common carrier or a ware, houseman. We are concerned here with the case of a person who alleges that she has purchased foreign liquor for her bona fide private consumption. Whether the Legislature is entitled to prohibit possession on the part of a common carrier or a warehouseman or restrict or regulate that possession is a question on which we express no opinion. When that question arises, there will be time enough for us to say what we think about it. But at present we are only consented with the narrow question as to whether the Provincial Legislature is competent to prohibit or restrict or control the possession of foreign liquor by a person who has purchased it for his private consumption. It is suggested that it is not open to us to treat the proviso in this fashion and to dissect it and to give different effect to one part of it from what might be given to the other part. It is not at all correct to say that if a legislation is challenged or impugned, it must necessarily be held to be ultra vires with regard to the whole of the legislation. The Legislature may exercise its powers within its competence to the extent of a part of the legislation and it may over-step those powers with regard to the other part of the legislation, and if those parts are severable, then the Court would only hold that a part of the legislation is ultra vires and not the whole. As was pointed out in a recent Privy Council case in A. G. of Alberta v. A. G. of Canada A. I. R 1948 P. C. 194 : 62 C. W. N. 236;
'the real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the Legislature would have enacted what survives without enacting the part that is ultra vires at all.'
We see no reason why we should hold that the question of a common carrier or a warehouse man is so inextricably interwoven with the case of a bona fide private consumer that the Legislature could not have legislated with regard to the private consumer leaving the carrier and the warehouseman alone, and therefore, in our opinion, it is open to us to say that we will express no opinion with regard to the first part of the repealed proviso and confine ourselves to the second part and decide whether the Legislature was competent to repeal the proviso to the extent that it affected a private consumer of foreign liquor.
7. Mr. Gauba goes to the length of saying that even with regard to a private consumer, if the Provincial Legislature prohibits possession of foreign liquor or controls or restricts it, it must inevitably interfere with imports from outside India and make an unjustifiable trespass upon that domain of legislation which is reserved for the Central Government. In our opinion that contention is not correct. The pith and substance of the legislation we are considering is the regulation of possession of foreign liquor. Incidentally it may affect imports into India, but that is not the substance of the legislation. That was not what the Legislature was intending when it passed this Act. It did not take into consideration at all the question of imports. Its main and primary object was to enforce prohibition by regulating possession, and if that was its intention, it was carrying out that intention by a piece of legislation which was within its competence as it fell under item 31 of List II. It is difficult to understand how import of foreign liquor can be said to be directly affected by this piece of legislation. It is not as if the port of Bombay is the only Port through which foreign liquor can be imported. Notwithstanding the difficulty or even the impossibility on the part of citizens of the Province of Bombay to import foreign liquor, it would still be open to the Central Government, if they wanted to import, to do so by other means and through other channels. At best and at highest the impugned legislation can only be said to have an incidental and ancillary effect upon item 19 of List I. Mr. Gauba has also drawn our attention to what he calls the legislative practice prevailing with regard to this matter, and Mr. Gauba is right that in interpreting the Constitution Act the Court must attach importance to the legislative practice, because very often a Constitution Act embodies a great deal of practice with regard to a particular legislation which has been built up in a country in the (sic). Mr. Gauba has drawn our attention to the fact that under the devolution rules framed under the Act of 1915, excise was a Provincial transferred subject and that the Provincial Government was never given any right to deal with imports.
8. Mr. Gauba then draws our attention to Section 3 of Act VI  of 1940 which amends the preamble of the then existing Abkari Act and by which amendment it was provided:
'and whereas in order to promote, enforce and carry into effect the policy of Prohibition, it is necessary to prohibit the import, export transport, manufacture, sale and possession of liquor and of intoxicating drugs in the Province of Bombay or in specified areas thereof.'
and argues Mr. Gauba that this amendment of the preamble clearly shows that the Provincial Legislature had made up its mind to stop imports in order to carry out the policy of prohibition, and, therefore, the intention of the Legislature can be gathered from this amendment of the preamble to be not confined merely to dealing with matters which fall under item 19 of List I but even to legislate with regard to matters that fail under item 31 of List II. (Sic.) That again is not a sound contention because we have to consider what is the connotation of the expression 'import' which was incorporated in the preamble by this amendment. When this section was passed, the definition of 'import' that appeared in the Abkari Act was as defined in Section 3 (10), viz., to import means to bring into the Province, otherwise than across a customs frontier as defined by the Central Government.' Therefore, when the Legislature intended to prohibit imports, it was not intending to prohibit such imports as fell within item 19 of List 1. The imports it wanted to prohibit were imports which did not come into the Province across a customs barrier. Therefore, reading the preamble in conjunction with the definition, it is perfectly clear that the Legislature never intended to transgress the limits laid down upon-its legislative competence by the Government of India Act. Even a consideration of the Abkari Act as it appeared on the statute book before the amendment makes clear that the Provincial Legislature always had the power to control, restrict, and even prohibit possession in certain cases, because if I may turn again to Sub-section (2) of Section 14B, that sub-clause makes it perfectly clear that the Provincial Government by a notification could always prohibit the possession of foreign liquor qua a person or a class of persons. Therefore, even before the Legislature launched upon the policy of prohibition, it had always been assumed that the Legislature had the competence to regulate possession in certain class of cases. Therefore, in our opinion, the legislative practise does not suggest that even incidentally or as an ancillary matter it is not competent to the Legislature to trespass upon item 19 of List I.
9. It is then argued that there are weighty observations in the judgment of Sir John Beaumont C. J. when he delivered the judgment of the Special Bench in Emperor v. Dantes : AIR1940Bom307 . It is conceded that these observations are obiter because the decision was given on the narrow point whether a notification issued by Government was or was not valid. But as the point had been argued at the bar, Sir John Beaumont expressed his opinion on the question which we are now considering, and the view that the learned Chief Justice took was that if a legislation prohibited possession altogether by any person in Bombay, it would render import and export across the sea frontier impossible and would interfere with the rights of the Central Government with regard to import of foreign liquor possessed by them under item 19 of List I. But the learned Chief Justice concedes that the right to legislate as to possession of intoxicating liquors must necessarily involve a right to prohibit possession. He also concedes that any legislation which restricts possession or consumption of as intoxicant is likely to have a prejudicial effect on the customs revenue of the Central Government, but he takes the view that that fact would not prevent the Provincial Government from exercising the power conferred upon it by item 31 of List II, and he attempts to reconcile item 19 in List I with item 31 in List II by saying that the Provincial Legislature has no power to legislate in respect of possession of intoxicants in such a way as to encroach upon the right to import and export across the customs frontier. But it is difficult to see how any distinction can be drawn between complete prohibition of possession and control or restriction of possession. Both in different degrees would undoubtedly encroach upon the power of the Central Legislature to import foreign liquor. With very great respect to the learned Chief Justice, either the Provincial Legislature has no power to deal with possession of foreign liquior at all because it interferes with the right of the Central Legislature with regard to imports, or, it has the power to deal with possession, in which case, whether it controls possession or restricts possession or prohibits possession, it must in varying degrees interfere with the power of the Central Legislature to deal with imports. Although the views expressed by the learned Chief Justice are obiter, we have the greatest respect for these views. But, in our opinion, again with respect, the approach to the question has not been a proper one. I should also like to point out that after this decision was given, there is the leading case reported in Prafulla Kumar v. Bank of Commerce Ld. 74 I. A. 23 : A. I. R 1947 P. C. 60, where the Privy Council has laid down in clear and unmistakeable terms the doctrine of the sovereignty of the Provincial Legislature and has also clearly stated to what extent the doctrine of the pith and substance of a legislation prevails. In our opinion, the views of Sir John Beaumont are not reconcilable with the view of the Privy Council, and we are of the opinion that in view of the decision of the Privy Council this obiter of the learned Chief Justice should not be accepted.
10. In our opinion, therefore, it is intra vires of the Provincial Legislature to legislate with regard to the possession of foreign liquor. As I started by saying, we are confining our opinion to the case which has arisen before us, and that is the case of a person who is alleged to be a bona fide purchaser of foreign liquor intended to be for her private consumption.
11. The next point urged by Mr. Gauba is that in the charge the excess of foreign liquor held by the appellant is not set out under different categories as mentioned in the notification. In our opinion, if it is at all an irregularity, it is an irregularity which has in no way prejudiced the accused. The charge is clear and the accused must have fully well realised what was the offence which she was charged with.
12. The next point urged is that the conviction should not have been under Section 43 (1) but under Section 45-A, Abkari Act. Section 43 (1) is the penal section which provides penalties for contravention of the Act or of any rule or order made under the Act or of any license permit or pass obtained under this Act, with regard to the various matters enumerated in that section, and one of those matters is with regard to possession of an intoxicant, and, in our opinion, this is a clear contravention of Section 14-B and therefore the penalty is provided in Section 43 (1). With regard to Section 45-A, it is a residuary section and it provided for penalties for matters which are not other-wise provided for, and therefore if a case falls under Section 43, it is unnecessary to look at Section 45-A.
13. The next question we have to consider is the question of sentence. There are no merits to this appeal. There was a raid by the vigilance branch on the flat of this woman where she was alleged to have been carrying on prostitution and the foreign liquor was alleged to have been kept not foe her own consumption but for the consumption of (sic) customers, and in her own defence she (sic) witnesses who themselves said that they had stored this liquor in the flat of the appellant. The possession by the appellant is not disputed, but she put forward the defence that it was not her liquor but liquor belonging to some others, which defence was rightly rejected by the learned Presidency Magistrate. In our opinion, the sentence is not excessive and no cause has been shown why we should interfere with the discretion exercised by the learned Presidency Magistrate.
14. The result is that the appeal fails and must be dismissed, and the order of conviction and sentence confirmed. Accused to surrender to her bail.