State of Bombay and Another
1951 AIR 318, 1951 SCR 682
Faizal Ali , saiyid
Sastri, M. Patanjali
Das, Sudhi Ranjan
The facts of the case are:
The petitioner (Balsara), showing himself as the citizen of India , presented before the petition in the Bombay High Court , requesting for passing an order forbidding the state and prohibition commission from enforcing the provision of the Bombay Prohibition Act , 1949 against him and also from passing an order to the effect.
To allow him to exercise his right to possess, consume and use whisky, brandy, wine and beer, medicated wine, Eau-de-cologne etc.
And to import and export across the custom limits and to purchase, possess, consume and use any stock of foreign liquor etc.
That the government may not obstruct under the prohibition act in the use of personal rights and the government takes no steps or proceedings against him, penal or otherwise.
The petitioner also prayed for a similar order under sec 45 of specific relief act.
So, High Court, agreeing with some of the petition contention and disagreeing with other , declared some of the provisions to be invalid and rest to be valid .
The court accepted the contention of the petitioner that the definition of liquors was to wide and beyond the power vested in the legislature to legislate with regard to intoxicating liquors under item 31 of list II of the constitution
It also held the following sections to be invalid :- Sections 23 (a) and 24 (1) (a) so far as they refer to “commending”; section 23 (b); 24 (1) (b) so far as it refers to “evasion”; section 39; section 52; section 53 in part; section 136 (1); and section 139 (c).
Both the State of Bombay and petitioner, being dissatisfied with the judgment of the HC, have appealed to this court after obtaining a certificate from HC under Art.132 (1) of the constitution of India.
• Prohibition of child marriage act, 2006
• The bearer laws act, 1941
• Delhi laws act, 1915
• Article 19 of the constitution of India, 1949
PLEAS OF PETITIONER
That Balsara (petitioner) should be given assent to use his right to keep whisky, brandy, wine mixed with medicine etc, and to use them and also to import and export them within the custom limit of that area.
That the government may not obstruct under prohibition act in the use of his personal rights and may not take any action against him for the right to keep whisky, brandy, wine with medicine etc also they can export or import.
The judgement given by high court and Supreme Court are as follows:
The high court stated that, agreeing with some of the petitioner’s allegations and not agreeing with some others, declared some provisions of the act as legal while some other are being illegal.
Aggrieved with the decision of HC both state govt. as well as Balsara with the permission of HC, filed appeals before the SC against that decision that was stated by high court.
It was observed by the SC that the state legislative has the power to completely prohibit the keeping, selling and using intoxication wine under the entry 31 in the list (ii) defined . There is, therefore, no dispute b/w the jurisdiction of the state and the state . The exemption allowed to the soldiers of the army , the messes of the land forces and water ships can therefore, not be declared illegal under sec.37
The SC, therefore, declared as illegal those provisions of the Bombay prohibition ac which were regarding keeping alcohol , wine and toiletry goods selling and buying the and also using them etc. and the rest of the provisions were declared as legal it was declared then an act by declaring certain provisions there of an illegal, cannot be wholly declared as illegal. The appeal no. 182 was sufficiently admitted while appeal no. 183 was rejected.
When two or more statutes are repugnant, the court will try to construe the provisions in such a manner , if possible, as give effect to both by harmonizing them with each other. The court may do so by regarding two or more apparent conflicting provisions as dealing with the separate situations or by holding that one provisions merely provisions for an exception of the general rule contained in each other. The basis of the principle of harmonious construction.
Probably is that the legislature must not have to contradict itself. When the legislature gives something by one hand it does not take away the same by the other. One provision of an act does not make another provision of the same act useless. The legislature cannot presumed to contradict itself by enacting apparently two conflicting provisions in the same act.
Author: Anjali Thakur,
Gitarattan international business school ip university