Emperor vs Bhola Prasad

Harries, C.J.—This is an appeal by the Provincial Government from an order of a learned Magistrate acquitting the respondent, Bhola Prasad, upon a charge u/s 47 (a), Bihar and Orissa Excise Act, 1915, and a notification of 18th November 1940 made u/s 19, Sub-section (4) of that Act. The facts of the case, which are no longer in dispute, can be shortly stated as follows:

At about 4 A.M. on the morning of 5th February 1941 the respondent arrived at Sonepur Railway Station by train from Motihari on his way to Chapra. He alighted from the Motihari train carrying a suit case and proceeded towards the Chapra train which was apparently standing at a platform in the station. The suit-case aroused the suspicion of Hanuman Singh, (P. W. 2), an excise peon, who stopped the respondent and asked him to open the suit-case and show him the contents thereof. The suit-case was opened before a number of witnesses, and it was found to contain two bottles of country liquor.

Later he was charged with an offence u/s 47(a), Bihar and Orissa Excise Act, for being in unlawful possession of two bottles of country liquor in the prohibited area of Saran, in which admittedly Sonepur Railway Station is situate, contrary to the terms of the notification already referred to issued u/s 19, Sub-section (4) of the Act.

The respondent pleaded not guilty but did not seriously challenge the evidence adduced by the prosecution. On his behalf, however, it was contended, in the first place, that he was a bona fide traveller proceeding through a prohibited area, and therefore not within the scope of the notification of 18th November 1940 which had been issued pursuant to powers granted by Section 19, Sub-section (4), Bihar and Orissa Excise Act. In the second place, it was urged that the notification issued under the said section was ultra vires and illegal, and therefore no offence had been committed.

The learned Magistrate accepted the evidence adduced by the prosecution and found the possession by the respondent of two bottles of country liquor at Sonepur on 2nd February 1941 had been established beyond doubt. He further held that the respondent was not a bona fide traveller proceeding through area. He however held that the notification was illegal and ultra vires and consequently acquitted the respondent as he had committed no breach of any valid notification made u/s 19, Sub-section (4), Bihar and Orissa Excise Act, 1915.

In this appeal it has been contended by the Assistant Government Advocate on behalf of the Provincial Government that the learned Magistrate entirely overlooked a recent piece of legislation, namely, the Bihar Excise (Amendment) Act, 1940 (Bihar Act 8 of 1940), which amended the Preamble to and Section 19, Sub-section (4), Bihar and Orissa Excise Act, 1915. It was contended that the notification of 18th November 1940 was validly made under the provisions of the Bihar and Orissa Excise Act, 1915, as so amended and that, therefore, an offence had been committed.

It is true that the Magistrate had entirely overlooked the provisions of the Bihar and Orissa (Amendment) Act, 1940. He held, following a Special Bench decision of this Court Kanhai Sahu Vs. Emperor, , that the Provincial Government had no power u/s 19, Sub-section (4), Bihar and Orissa Excise Act, 1915, as it stood before amendment, to make a notification prohibiting the public generally within the province or any part thereof from possessing intoxicating liquor. Clearly, the case in Kanhai Sahu Vs. Emperor, had no application to the facts of the present case as it was decided before the amending Act of 1940 was passed and was a case concerned solely with the construction, of the terms of Section 19, Sub-section (4), Bihar and Orissa Excise Act, 1915, before its amendment in 1940. As the offence alleged in this case was committed in February 1941, the Bihar Excise (Amendment) Act, 1940, clearly applies to it, and this case must be considered from that point of view. The Preamble to the Bihar and Orissa Excise Act, 1915, before amendment was as follows:

Whereas it is expedient to amend and re-enact the law in the Province of Bihar and Orissa relating to the import, export, transport, manufacture, possession and sale of certain kinds of liquor and intoxicating drugs;

And whereas the previous sanction of the Governor-General has been obtained, u/s 5, of the Indian Councils Act, 1892, to the passing of this Act;

It is hereby enacted as follows:

Section 19, Sub-section (4), Bihar and Orissa Excise Act, 1915, before amendment was in these terms:

Notwithstanding anything contained in the foregoing Sub-sections, the Local Government may, by notification, prohibit the possession by any person or class of persons, either in the province of Bihar and Orissa or in any specified local area, of any excisable article, either absolutely or subject to such conditions as it may prescribe.

Acting under the powers given by Section 19(4), Bihar and Orissa Excise Act, 1915, the Provincial Government had attempted to prohibit the public generally in specific areas from possessing certain forms of intoxicating liquor. As stated earlier, a Special Bench of this Court held in Kanhai Sahu Vs. Emperor, , that such a notification was ultra vires and illegal as the terms of the Sub-section did not empower the Provincial Government to prohibit possession by the public generally but only possession by designated persons or class of persons.

This decision made it difficult, if not impossible, for the Provincial Government to carry out a policy of prohibition or even partial prohibition of alcoholic liquor, and the Bihar Excise (Amendment)Act 8 of 1940, was immediately enacted to amend the law and to enable notifications to be issued applicable to the public generally in the province or in specified area thereof.

This amending Act was enacted by the Governor who had before 1940, by proclamation issued u/s 93, Government of India Act, 1935, assumed all the powers vested in the Provincial Legislature. The Preamble to this amending Act of 1940, so far as it is material, is in these terms:

Whereas it is expedient to amend the Bihar and Orissa Excise Act, 1915, for the purpose of promoting, enforcing and carrying into effect the policy of prohibition,

* * * * And whereas the Governor of Bihar has by the proclamation dated 3rd November 1939, issued by him u/s 93, Government of India Act, 1935, assumed to himself all powers vested by or under the said Act in the Provincial Legislature:

Now, therefore, in the exercise of the powers so assumed to himself, the Governor of Bihar is pleased to enact as follows:

The material portions of this amending Aot are Sections 2 and 3. Section 2 is in these terms:

"2. In the Preamble of the Bihar and Orissa Excise Act, 1915, (hereinafter referred to as the

said Act), after the word "drugs" the following shall be inserted, namely:

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 Bihar or in specified areas thereof."

Section 3 is as follows:

"3. For Sub-section (4) of Section 19 of the said Act, the following Sub-section shall be substituted, namely:

(4) Notwithstanding anything contained in the foregoing Sub-sections, the Provincial Government may, by notification, prohibit the possession by any person or class of persons, or, subject to such exceptions, if any, as may be specified in the notification, by all persons either in the Province of Bihar or in any specified local area of any intoxicant either absolutely or subject to such conditions as it may prescribe.

From the terms of this amending Act, it is clear that prohibition or partial prohibition was thereafter to be one of the objects of the Bihar and Orissa Excise Act, 1915, as amended. Further, the Provincial Government was given power to issue notification u/s 19(4) of the Act, prohibiting the public generally throughout the whole province or any part thereof from possessing any intoxicating liquor or any forms of such liquor.

Acting u/s 19(4), Bihar and Orissa Excise Act, as amended, the Governor issued on 18th November 1940, Notification No. 3914-L. Section G. published in the Bihar Gazette (Extraordinary) of that date. The terms of this notifications are as follows:

In exercise of the powers conferred by Sub-section (4) of Section 19, Bihar and Orissa Excise Act, 1915, (Bihar and Orissa Act 2 of 1915), the Governor of Bihar is pleased to prohibit the possession of country liquor, tari, ganja or bhang by any person in the areas specified in the schedule hereto annexed (hereinafter referred to as "prohibited areas") subject to the following exceptions:

(a) A bona fide traveller proceeding from a non-prohibited area to another non-prohibited area and halting within a prohibited area for a period not exceeding 48 hours may possess, in such prohibited area, country liquor, tari, ganja or bhang intended for his own personal use; and

(b) the Cawnpur Sugar Works, Ltd., may possess country liquor at their distillery at Marhowrah in the District o� Saran and in transit therefrom to any place outside the prohibited areas.

Notifications Nos. 6213 L.S.G., dated 4th November 1938 L.S.G. 1363, dated 19th March 1938, 1554 L.S.G., dated 25th March 1938, and 1634 L.S.G., dated 31st March 1938, are cancelled. The schedule.

(1) The whole of the District of Saran....

Possession by the respondent of two bottles of country liquor at Sonepur was contrary to the terms of this notification unless he was at the time in question a bona fide traveller proceeding from one non-prohibited area to another non-prohibited area. The respondent had at Motihari booked a return ticket to Chapra. On the morning in question he was proceeding to Chapra to attend a wedding. Motihari is admittedly a non-prohibited area, and it was urged on the respondent''s behalf that, the journey he was undertaking was a journey from Motihari to Motihari and that he was merely passing through a prohibited area whilst proceeding on such a journey. In my view the respondent was clearly not a bona fide traveller as defined in the notification. He was on a journey from Motihari to Chapra, a place within the prohibited area, and the fact that he intended to return home to Motihari after a short stay at Chapra cannot possibly make him a bona fide traveller travelling from one non-prohibited area to another. He was clearly not proceeding on the day in question from a non-prohibited area to another, and the learned Magistrate was right in rejecting this contention. The possession by the respondent of two bottles of country liquor at Sonepore station was, therefore, clearly contrary to the terms of the notification of 18th November 1940, and if such notification is a legal and effective one an offence was clearly committed.

It was contended, however, by Section C. Chakravarti, who argued this case very fully on behalf of the respondent, that the Governor had no power to enact the amending Act of 1940 and, therefore, that any notification issued under it was illegal and of up effect. It must be remembered that u/s 93, Government of India Act, 1935, the powers of legislation now possessed by the Governor are those possessed in normal times by the Provincial Legislature.

The powers of the Federal and the Provincial Legislatures to legislate are governed by Section 100, Government of India Act. That section is as follows:

(1) Notwithstanding anything in the two next succeeding Sub-sections, the Federal Legislature has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List 1 in Schedule 7 to this Act (hereinafter called the "Federal Legislative List".)

(2) Notwithstanding anything in the next succeeding Sub-section, the Federal Legislature, and, subject to the preceding Sub-section, a Provincial Legislature also, have power to make laws with respect to any of the matters enumerated in List 3 in the said schedule (hereinafter called the "Concurrent Legislative List".)

(3) Subject to the two proceeding Sub-sections the Provincial Legislature has, and the Federal Legislature has not, power to make law for a Province or any part thereof with respect to any of the matters enumerated in List 2 in the said schedule (hereinafter called the "Provincial Legislative List".)

(4) The Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof.

The Provincial Legislature has, therefore, sole power to legislate on matters enumerated in Schedule 7 List 2 of the Act. Article 31 of the list is in these terms:

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 1 and, as respects poisons and dangerous drugs, to the provisions of List 3.

It follows, therefore, that the power to legislate with respect to the production, manufacture, possession, transport, purchase and sale of intoxicating liquors and narcotic drugs is vested solely in the Provincial Legislature and now in the Governor.

It was contended by Mr. Chakravarti that this article read with Section 100, Government of India Act, gives the Provincial Legislature merely power to legislate with respect to regulation or restriction of production, manufacture, possession, etc., of intoxicating liquors and narcotic durgs and not power to prohibit such manufacture, production and possession. It was urged that it could never have been intended that the Provincial Legislature should have power to prohibit generally the manufacture, production or possession of such articles and thus extinguish or destroy wholly the subject-matter of Article 31. It is to be observed that Section 100, and Article 31, List 2 of Schedule. 7, Government of India Act, 1935, give Provincial Legislatures power to legislate with respect to intoxicating liquors, that is to say, with respect to the production, manufacture, possession, etc., of such liquors. The power is not confined to merely the regulation or restriction of such manufacture, production or possession, etc. It appears to me impossible to say that prohibiting possession of certain forms of intoxicating liquor in specified areas is anything more than legislation with respect to possession or transport of such intoxicating liquor in such areas.

It was, however, contended that the amending Act of 1940 envisages total prohibition throughout the Province of Bihar of all forms of intoxicating liquor, and it was urged that legislation carrying such into effect would be invalid and ultra vires. That being so, the whole Act must be declared to be ultra vires and, therefore it could not be legally effective to enforce partial prohibition of intoxicating liquor in specified portions of the province.

It is clear that the notification of 18th November 1940, refers, only to certain specified areas and to certain forms of intoxicating liquors. No attempt has been made by this or any other notification to enforce total prohibition in these specified areas, much less throughout the whole of the province. At present the prohibition sought to be enforced is of a limited kind in certain areas only, and even if it were held that the Provincial Legislature had no power to prohibit the possession of intoxicating liquors generally throughout the whole province, it might well be held that it had power to prohibit possession of some forms of liquor in some parts of the province. Where a Provincial Legislature has exceeded its powers it by no means follows that the whole Act is illegal and ultravires. It may be perfectly legal and valid to a limited extent: see AIR 1941 47 (Federal Court) (Per Varadachariar, J. at p. 192), the observations of Sulaiman J. in AIR 1939 74 (Federal Court) and the decision of their Lordships of the Privy Council in Macleod v. Attorney-General, New South Wales 1891 A.C. 455.

It is, in my view, unnecessary in this case to consider whether total prohibition of all intoxicating liquors throughout the whole province could be introduced by notification under the amended Section 19(4), Bihar and Orissa Excise Act, 1915, and I should prefer to reserve my opinion on that question until it actually arises. I am, however, perfectly '' satisfied that prohibition of possession of certain forms of intoxicating liquor in certain areas in the province is nothing more than legislation with respect to the possession of intoxicating liquors and, therefore, is within the power of the Provincial Legislature and, therefore, valid.

To support the argument that the Provincial Government were never intended to have power to prohibit generally the possession of intoxicating liquors throughout the province, reliance was placed by Mr. Chakravarti on certain English authorities which tended to show that a power to prohibit should not be deemed to have been granted by statute unless the clearest terms were used. In Dick v. Badart 10 Q.B.D. 387, the question arose as to whether a certain body was entitled to prohibit certain persons from working on board vessels in their dock. This body was authorized by 10 and 11 Vict. c. 27, Section 83, to make such by-laws as they should think fit for (amongst other purposes) regulating the shipping and unshipping of all goods within the limits of the dock, and for regulating the duties and conduct of all persons, as well the servants of the undertakers as others, employed in the dock. The dock company concerned made by-laws prohibiting a certain class of persons from working on board any vessel in the dock, unless permission in writing had been previously obtained from the superintendent of the dock. The Court held that this by-law was in excess of the power, conferred on the dock company by Section 83 of the Act previously referred to.

It is to be observed that power was given to this dock company to make by-laws for regulating the shipping and unshipping of goods within the limits of their dock or harbour and for regulating the duties and conduct of all persons employed in the said dock or harbour. As the power to make bylaws was limited to the regulation of such shipping and unshipping of goods and the duties and conduct of persons within the dock, it was held that such gave no power to prohibit certain persons being employed within the dock. As I have stated earlier, Section 100 and Article 31, List 2, Schedule 7, Government of India Act, 1935, give the Provincial Government power to legislate with respect to possession of intoxicating liquors and not merely power to legislate regarding regulation of possession. This English case is, therefore, clearly distinguishable.

Reliance was also placed on a decision of their Lordships of the Privy Council in Muncipal Corporation of the City of Toronto v. Virgo1896 A.C. 88, in which it was held that a statutory power conferred upon a Municipal Council to make by-laws for regulating and governing a trade does not, in the absence of an express power of prohibition, authorise the making it unlawful to carry on a lawful trade in a lawful manner. Again it must be observed that the power conferred in this case was a power to make by-laws for regulating and governing a trade, and prohibiting a trade cannot be held to fall within the powers of regulation or governance of a trade.

Mr. Chakravarti also relied upon Attorney-General v. Horner14 Q.B.D. 245, to support an argument that the power to prohibit should never be inferred unless a statute has provided compensation for loss suffered in consequence of such prohibition. At p. 256 Brett, M.R. observed:

Now it is to be observed that if those Acts have taken away and interfered with such rights they have done so without giving any compensation, and it seems to me that it is a proper rule of construction not to construe an Act of Parliament...as interfering with or injuring persons'' rights without compensation, unless one is obliged to so construe it. If it is clear and obvious that Parliament has so ordered, and there is no other way of construing the words of the Act, then one is bound to so construe them, but if one can give a reasonable construction to the words without producing such an effect, to my mind one ought to do so.

In this passage Brett, M.R. lays it down that if a statute clearly takes away a citizen''s right without compensation, effect must be given to it. On the other hand, if clear terms are not used, a statute should not be construed as taking away rights unless provision is made for compensation for the loss of such rights. In my view the terms of Section 100 and Article 81, List 2, Schedule 7, Government of India Act, 1935, clearly authorize the Provincial Government to legislate with respect to possession, and they can do so although no compensation is granted by the statute to persons whose interests are affected thereby.

In my judgment it cannot be said that the amending Act of 1940, in so far as it enables partial prohibition to be enforced in parts of the province, is ultra vires the powers of the Provincial Legislature and the Governor, and the notification in question cannot be impugned as being one beyond the power of the Governor to issue.

It was further contended by Mr. Chakravarti that the Bihar Excise (Amendment) Act, 1940, was invalid as it had not received the Governor.General''s sanction to its introduction or enactment. The Bihar and Orissa Excise Act 2 of 1915 which is the original Act required for its validity the assent of the Governor-General u/s 5, Councils Act, 1892 (55 & 56 Vict. c. 14). It received such assent on 31st December 1915, as will be seen from the Bihar and Orissa Gazette of 19th January 1916. It was, therefore, contended that the Act was a Governor-General''s Act which could not be amended without the previous sanction of the Governor-General. Reliance was placed on Section 108, Sub-section (2)(b), Government of India Act, 1935, which is as follows:

Unless the Governor-General in his discretion thinks fit to give his previous sanction, there shall not be introduced into, or moved in, a Chamber of a Provincial Legislature any Bill or amendment which

* * * * (b) repeals, amends or is repugnant to any Governor-General''s Act, or any ordinance promulgated in his discretion by the Governor-General....

In my view the Act of 1915 was in no sense a Governor-General''s Act or even an Act of the Governor-General in Council. It was an Act of the Bihar Legislative authority which at that time required the assent of the Governor-General for its validity u/s 5, Councils Act, 1892 (55 & 56 Vict. c. 14). Section 108(2)(b), Government of India Act, 1935, merely limits the power of Provincial Legislatures to repeal or amend Governor-General''s Acts or ordinances enacted or promulgated under Sections 42 to 44, Government of India Act. A Governor-General''s Act or ordinance is a very special form of legislation and cannot possibly include an Act of a Provincial Legislative authority, which in the past required the assent of the Governor-General for its validity.

It was further contended that the Bihar Excise (Amendment) Act, 1940, was ultra vires, as it prohibited or restricted or might prohibit or restrict the entry into or export from the province of goods, namely, intoxicating liquors and narcotic drugs. It was urged that a Provincial Legislature has no power whilst dealing with trade or commerce or the production, supply or distribution of commodities to pass any law or take any executive action prohibiting or restricting the entry into or export from the province of goods of any class or description. Reliance was placed on Section 297(1), Government of India Act, 1935, which is as follows:

(1) No Provincial Legislature or Government shall (a) by virtue of the entry in the Provincial Legislative List relating to trade and commerce within the province, or the entry in that List relating to the production, supply, and distribution of commodities, have power to pass any law or take any executive action prohibiting or restricting the entry into, or export from, the province of goods of any class or description.

It is clear from the Preamble to the Bihar Excise Act of 1915 as amended that one of the objects of the statute is to prohibit the import, export, transport, manufacture, sale and possession of liquor and of intoxicating drugs in the province. The words used are not clear. What it is sought to prohibit is import and export in the province, and it was contended that that cannot mean import into the province from without or export from the province to some place outside the province. However, even if the prohibition of export from the province or the import into the province is one of the objects of the Bihar and Orissa Excise Act, 1915, as amended, it does not, in my view, become invalid by reason of anything contained in Section 297(1), Government of India Act, 1935.

Intoxicating liquors and narcotic drugs are not ordinarily regarded as the legitimate subject-matter of trade or commerce and are not usually dealt with as ordinary commodities or articles of merchandise. In all civilized countries the right to manufacture, produce, possess, transport or sell such articles is the subject of special legislation. Intoxicating liquors and narcotic drugs are regarded as dangerous articles, the manufacture, possession and sale of which require strict control In my judgment, Section 297, Government of India Act, does not deal with intoxicating liquors or narcotic drugs. It merely limits the power of the Provincial Legislature to legislate with respect to trade and commerce within the province which is one of the items in Article 27, List 2, Schedule 7 of the Act and with respect to the production, supply and distribution of commodities which is one of the matters included in Article 29, List 2, Schedule 7 of the Act. All that Section 297(1), Government of India Act, means is that though a Provincial Legislature has power to legislate with respect to trade and commerce within the province and with respect to production, supply and distribution of commodities, it has no power to legislate or take any executive action prohibiting or restricting the entry into, or export from, the province of goods of any class or description. It is to be observed that intoxicating liquors and narcotic drugs appear in a different article and are not included in the general terms "trade or commerce" or "production, supply and distribution of commodities." In any event, the amending Act of 1940, in so far as it enables partial prohibition to be introduced, does not restrict legitimate import into, or export from the province, and therefore cannot infringe upon the provisions of Section 297(1), Government of India Act, even if they applied to liquor and drugs which in my view they do not.

Lastly, it was contended that Section 11, Bihar and Orissa Excise Act, 1915, rendered the amending Act of 1940 wholly invalid. Section 11, Bihar and Orissa Excise Act, 1915, as it originally stood, was as follows:

The Local Government may, by notification (a) with the previous sanction of the Government of India, prohibit the import or export of any excisable article into or from the Province of Bihar and Orissa or any part thereof, or

(b) prohibit the transport of any excisable article.

It was contended that this section made it clear that no notification or legislation prohibiting the import or export into or from the province was valid unless passed or made with the previous sanction of the Government of India. By the Devolution Act, 1920, this section was amended and the words "with the previous sanction of the Government of India" were deleted from the section and the following proviso added:

Provided that, where the interests of any other province may be affected, no notification shall be issued under Clause (a) without the previous sanction of the Government of India.

The matter, however, does not rest there, because the proviso was deleted from the section by the Government of India (Adaptation of Indian Laws) Order, 1937. Section 11 now is in these terms:

The Local Government may, by notification--

(a) prohibit the import or export of any excisable article into or from the Province of Bihar or any part thereof, or

(b) prohibit the transport of any excisable article.

It is clear, therefore, that the Bihar and Orissa Excise Act, 1915, as it now stands, so far from prohibiting notifications affecting import into or export from the province, actually permits such notifications, and it is to be observed that the last restriction placed on the powers of the Local Government was removed by the Government of India (Adaptation of Indian Laws) Order, 1937, which was an order in Council made after the Government of India Act, 1933, was passed to bring existing law into conformity with that Act. It appears to me that the last amendment to this section strongly suggests that Section 297(1), Government of India Act, 1935, was never intended to apply to dangerous articles such as intoxicating liquors or narcotic or dangerous drugs.

No other point was taken on behalf of the respondent. For the reasons which I have given, I am satisfied that the notification of 18th November 1940, issued under the amended provisions of Section 19(4), Bihar Excise Act, 1915, was valid and legal and that the respondent should have been convicted of an offence u/s 47(a) of the Act.

The offence was not a serious one. The respondent appears to be a respectable man who had no desire to break the law. The object of this appeal was not so much to secure his punishment but rather to secure a decision as to the validity of the Bihar Excise (Amendment) Act, 1940, and the various notifications made thereunder. The respondent is now being convicted for an offence which he committed over eight months ago and in spite of his acquittal by the Magistrate six months ago. In these circumstances it would not, in my view be proper to impose a substantial sentence. A nominal sentence would, in the circumstances, be sufficient, and I would, therefore, set aside the order of acquittal, convict the respondent of an offence u/s 47(a), Bihar and Orissa Excise Act, 1915, and order him to pay a fine of two rupees. It must be clearly understood, however, that the sentence of a purely nominal sum is passed in the peculiar circumstances of this case. It must not be thought that I regard such a punishment as appropriate in ordinary cases which will come before the criminal Courts under this Act. This appeal does involve substantial question of law as to the interpretation of the various sections of the Government of India Act to which I have referred, and I would, therefore, grant a certificate u/s 205(1), Government of India Act, 1938.

Fazl Ali, J.

I entirely agree and have nothing to add.