Kanhai Sahu vs Emperor

Harries, C.J.—The petitioner in this case was convicted by a learned sub-deputy Magistrate u/s 47(a), Bihar and Orissa Excise Act, and sentenced to five months'' rigorous imprisonment. It appears that at first he pleaded not guilty but later pleaded guilty and was convicted and sentenced as stated above.

On appeal a learned Magistrate with appellate powers upheld the conviction but reduced the sentence to two months'' rigorous imprisonment. The petitioner has petitioned this Court in its revisional jurisdiction and now contends that he had committed no offence whatsoever under the said Act and prays that his conviction and sentence should be set aside and that he should be acquitted. The charge upon which the petitioner was tried was of being in unlawful possession of a bottle of country liquor at village Sultana, Hazaribagh district, contrary to the provisions of the Local Government Notification No. 1600-L.S.G., dated 26th March 1939. The facts are not in dispute, and it is common ground that village Sultana is within the area mentioned in the said notification. The terms of the notification are as follows:

No. 1600-L.S.G.�In exercise of the powers conferred by Clause (4) of Section 19, Bihar and Orissa Act, 1915 (Bihar and Orissa Act 2 of 1915), the Governor of Bihar is pleased to prohibit with affect from 1st April 1939, the possession of country liquor, tari, pachwai, ganja and bhang in any quantity by any person at any place within the jurisdiction of the police stations of Hazaribagh, Ichak, Barkagaon, Mandu and Bamgarh in the district of Hazaribagh: Provided that bona fide travellers proceeding from one non-prohibited area to another and not halting within the aforesaid prohibited areas for more than 48 hours are exempted from the operation of this notification, so far as liquor and drugs intended for their personal use are concerned. Further provided that this notification will not operate against the possession of ganja and bhang by licensed wholesale dealers at the licensed warehouses under the control of an Excise Officer for transport to retail shops outside the prohibited areas. Provided also that this notification shall not debar the aboriginal tribes in the prohibited areas as named in Order No. XVI(1)(b) of Government notifications Nos. 14625-L.S.G., dated 19th December 1929, and 10514-L.S.G., dated 9th December 1932, u/s 94, Bihar and Orissa Excise Act, from possessing pachwai manufactured by them for their domestic use.

The possession by the petitioner of a bottle of country liquor in village Sultana was clearly contrary to the provisions of this notification, and if such notification is valid the petitioner was clearly guilty of an offence u/s 47 (a), Bihar and Orissa Excise Act, which is in these terms:

If any person, in contravention of this Act, or of any rule, notification or order made, issued or given, or license, permit or pass granted under this Act: (a) imports, exports, transports, manufactures, possesses or sells any intoxicant...he shall be liable to imprisonment for a term which may extend to six months or to fine which may extend to one thousand rupees or to both....

On behalf of the petitioner, however, it has been strenuously contended that this notification is invalid and could not be made, as it purports to be made, by the Provincial Government u/s 19(4), Bihar and Orissa Excise Act, 1915. Section 19 of the Act is in these terms:

(1) No person not being licensed to manufacture, cultivate, collect or sell any intoxicant shall have in his possession any quantity of any intoxicant in excess of such quantity as the Board has, u/s 5, declared to be the limit of a retail sale, except under a permit granted by the Collector in that behalf. (2) Sub-section (1) shall not apply to (a) any foreign liquor (other than denatured spirit) which is in the possession of any common carrier or warehouseman as such, or (b) any foreign liquor which has been purchased by any person for his bona fide private consumption and not for sale or for use in the manufacture of any article for sale, or (c) tari intended to be used in the manufacture of gur or molasses, (d) tari intended to be used solely for the preparation of food for domestic consumption and not (i) as an intoxicant, or (ii) for the preparation of any intoxicating article, or (iii) for the preparation of any article for sale. (8) A licensed vendor shall not have in his possession at any place other than that authorized by his license any quantity of any intoxicant in excess of such quantity as the Board has, u/s 5, declared to be the limit of a retail sale, except under a permit granted by the Collector in that behalf. (4) 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 intoxicant, either absolutely, or subject to such conditions as it may prescribe.

"Intoxicant" is defined in Section 2(12a) of the Act and means "any liquor or intoxicating drug". "Liquor" is defined in Section 2(14) of the Act and includes

all liquids consisting of or containing alcohol, such as spirits of wine, spirit, wine, fermented tari, pachwai and beer, and also unfermented tari, and also any other substance which the Local Government may, by notification, declare to be liquor for the purposes of this Act.

Intoxicating drug" is defined in Section 2(13) and includes bhang, sindhi, or ganja, charas or any mixture, with or without neutral materials, of any of the above forms of drug, or any drink prepared therefrom and any other intoxicating or narcotic substance which the Local Government, may, by notification, declare to be an intoxicating drug, such substance not being opium, coca leaf, or a manufactured drug, as defined in Section 2, Dangerous Drugs Act, 1930.

This petition first came for hearing before Agarwala J., who referred it to a Division Bench. The matter then came before Varma and Shearer JJ., who, by an order dated 4th October, referred the matter to the Chief Justice with a view to the case being heard by a larger Bench if the Chief Justice thought fit. As the case is one of great importance and involves a difficult point of construction, this Special Bench of five Judges has been constituted to hear and dispose of the petition.

On behalf of the petitioner it has been urged that Section 19(4) only gives the Provincial Government power to prohibit any particular person or particular persona or class of persons from possessing intoxicants either absolutely or upon conditions. It is said that this power to prohibit the possession of alcohol or drugs is not a power to prohibit generally but only a power to prohibit certain persons, such as convicted drunkards or drug addicts or certain classes of persons, such as criminal tribes addicted to drink from possessing intoxicants.

On the other hand, it is contended by the Crown that Section 19(4) gives the Provincial Government power by notification to enforce total or partial prohibition as that word is popularly understood throughout the whole province or in any part thereof. The decision of the case rests, therefore, on the meaning of the pharse, "the Local Government may, by notification, prohibit the possession by any person or class of persons...of any intoxicant."

According to the Crown, the words "any parson" are equivalent to "every person" as they clearly are in the notification and are wide enough to include every one in the province or in any particular part thereof. It is said that if there is power to prohibit possession by any person, there is power to prohibit such possession by every person or all persons throughout the province or any area therein. There can be no question that if this is the true construction of the phrase to which I have referred, Section 19(4) would give the Local Government power to prohibit the public generally throughout the whole province from being in possession of any form of intoxicant or in short to enforce complete and total prohibition. It must be observed, however, that the notification empowers the Provincial Government to prohibit the possession of intoxicants not by "any person" but by "any person or class of persons," and in my view this latter phrase must be considered as a whole. It cannot be split up as suggested by counsel on behalf of the Crown. When the pharse "any person or class of persons" is read as a whole and given its ordinary and natural meaning, it means, in my judgment, any designated person or class of persons, that is, any person or class of persons designated by name or description. The phrase cannot, in my view, mean the public generally in the province or in any particular area therein and is wholly inappropriate to convey such a meaning. If the words "any person" in the Sub-section are wide enough to cover all persons, then it is difficult to understand why the words "class of persons" were added immediately afterwards. If all persons, that is the public generally, could be prohibited, clearly a particular class or particular classes could be so prohibited as the greater must include the less. As the words "or class of persons" follow immediately after the words "any person", the words "any person" cannot mean any or all persons in the province or any part thereof. If the words in Section 19(4) of the Act had been "the Local Government may, by notification, prohibit the possession by any person of any intoxicant", there would be considerable force in the present contention of the Crown; but the addition of the words "or olassof persons" immediately after the words" any person" clearly, in my view, cuts down the meaning of "any person" and confines the meaning of those words to any designated person or persons'' if the words mean as I hold they do that the Local Government may, by notification, prohibit the possession of any intoxicant by any designated person or class of persons, then clearly the words are not wide enough to empower the Local Government by notification to prohibit the public generally from being in possession of intoxicants or any form thereof.

It is to be noted that the Grown does not contend that the words "class of persons" are appropriate to cover the public generally in the province or in any particular area thereof. The persons in the province or in any part thereof vary from day to day, and it would be impossible to hold that persons in the province or in any particular portion thereof at any particular time would constitute a class of persons. The sole contention of the Crown is that the power to prohibit is given by the words "any person", and for the reasons which I have given I am satisfied that those words found as they are, followed immediately by the words "or class of persons", cannot mean the public generally. It is to be observed that this alleged power to enforce total prohibition of alcoholic liquor or intoxicating drugs throughout the province or in any particular district is contained in the last Sub-section of Section 10. Sub-section (1) of that section places a limit on the amount of intoxicants which persons other than licensees can lawfully possess. They cannot possess intoxicants in any amount greater than the limit prescribed for retail sale u/s 5 of the Act, but they are entitled to possess intoxicants up to that limit.

Sub-section (2) is an exception to Sub-section (1) and entitles persons other than licensees to possess greater quantities of certain forms of intoxicants. Sub-section (3) prohibits licensees from possessing any quantity of intoxicants beyond the limit of retail sales at any place other than their places of business. Then follows Sub-section (4) which, it is said, gives the Local Government power totally or partially to prohibit the possession of any form of intoxicants throughout the province or in any part thereof.

Reading the section as a whole, it means, in my view, that all persons other than licensees under the Act may possess certain limited quantities of intoxicants, but in special cases the Provincial Government may prohibit particular persons or class of persons from possessing any intoxicants whatsoever or from possessing such intoxicants except upon certain conditions. In other words, the Sub-section is an exception to the other provisions of the section and the powers contained therein would appear to have been inserted to meet special cases such as habitual drunkards, addicts, classes of persons addicted to drink or drug''s or such like.

The fact that this power is found where it is, strongly suggests that it was never the intention of the Legislature to confer upon the Provincial Government the power which it now claims to possess. Again the Act is an Excise Act and is entitled "An Act to amend and re-enact the Excise Law in the Province of Bihar and Orissa." The Preamble of the Act is in these terms:

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.

It will be seen that there is nothing in the title of the Act or in the Preamble to suggest that total or partial prohibition of intoxicants was one of its objects, yet it is now said that the Act contains a provision entitling the Provincial Government to enforce complete and absolute prohibition throughout the province. The Act contains detailed provisions relating to import, export, transport, manufacture; possession and sale of intoxicants and for the levying of duties thereon.

If the present contention of the Crown be correct, then the Provincial Government could, by a notification u/s 19(4) of the Act, render practically all the sections of the Act wholly unnecessary and could defeat the main object of the Act, namely, the collection of excise duties. The Act undoubtedly contains provisions for the regulation and governance of the trade in intoxicants as well for the imposition and collection of duties upon such intoxicants. Powers of regulation and governance of a trade however do not give the Provincial Government a right totally to prohibit all trade in intoxicants unless there are express words in the statute clearly giving such a power.

In Municipal Corporation of the City of Toronto v. Virgo (1896) AC 88 Municipal Corporation of the City of Toronto v. Virgo Lord Davey who delivered the opinion of the Board observed at page 93:

No doubt the regulation and governance of a trade may involve the imposition of restrictions on its exercise both as to time and to a certain extent as to place where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed. An examination of other sections of the Act confirms their Lordships'' view, for, it shows that when the Legislature intended to give power to prevent or prohibit it did so by express words.

The facts of that case are very different from the facts of the present case, but in my view, the principle enunciated by Lord Davey should be applied to the present case. The object of the Act of 1915 is clearly the raising of revenue and the regulation and governance of the liquor trade and a right to prohibit generally cannot be inferred in the absence of express and clear words. The words relied upon by the Crown in Section 19(4) of the Act are not, in my view, words clearly giving the Provincial Government power to prohibit generally. When regard is had to the nature and purposes of the Act, it is impossible to place such a construction on Section 19(4) as that contended for by the Crown. The phrase "any person or class of persons" also appears in Section 90(9)(iv) of the Act which is in these terms:

The Board may make rules...prohibiting or regulating the employment by the licensee of any person or class of persons to assist him in Mb business.

It is, in my view, clear that the words "any person" in this Sub-section cannot mean every person as it could never have been the intention of the Legislature toempower the Board to make rules which would render it impossible for a licensee to carry on his business. If the words "any person" in this Sub-section cover all persons, then the Board could by a rule compel the licensee to carry on his business alone and in many cases render the conduct of such business impossible. In this Sub-section the words "any person or class of persons" can, in my view, only mean any designated person or class of persona. I can see no reason why the very same words appearing in Section 19(4) should be given a different meaning.

In Emperor v. Mukund Sahu AIR 1914 Cal. 684 a notification issued by Government u/s 19(4), Bengal Excise Act, was considered. In that case the notification which was issued by the Lieutenant-Governor of Bengal in Council and published in the Gazette on 20th November 1911, prohibited druggists or chemists, medical practitioners or dentists from possessing any cocaine or drugs having a like physiological effect to that of cocaine in any quantities exceeding those set out in the notification. It also provided that no other person should possess any of the aforesaid drugs at all, except such quantity as he might have obtained at one time on a single bona fide prescription by a qualified medical practitioner.

A Bench consisting of Holmwood and Sharfuddin JJ., held that under this notification it was an offence for any person other than those specified, namely, chemists, druggists, medical practitioners etc., to have any cocaine at all, except with a medical man''s prescription and then only to the extent of five grains.

In all cases, the burden of proof to show under what authority an accused obtained cocaine lay on him. This case is undoubtedly an authority that a conviction for being in unlawful possession of a dangerous drug contrary to a notification somewhat similar to the one in the present case is legal; but it is to be noted that in the Calcutta case Emperor v. Mukund Sahu AIR 1914 Cal. 684 it was assumed that the Local Government had power to make such a notification. It does not appear to have been even argued on behalf of the accused that the notification was invalid or ultra vires and the only question which the Court had to consider was whether possession of cocaine by the accused was contrary to the terms of the notification. It clearly was contrary to the terms of such notification; but it was never decided after argument that the notification itself was validly made u/s 19(4), Bengal Excise Act. The question which has to be decided in the present case was never considered, and the Court acted upon the assumption that the notification was valid. The case, therefore, is no authority for the present contention of the Crown that total or partial prohibition may be enforced by notification under this Sub-section.

On the other hand, the precise point, which this Court is now called upon to consider, was considered by a Special Bench of five Judges in Chunibhai lalbhat v. Emperor AIR 1940 Bom. 273. The facts of that case can be shortly stated as follows: By Government notifications u/s 14B(2), Abkari Act, 1878, the Local Government prohibited within the areas of Ahmedabad and Bombay the possession by any person, without a pass, permit or license of any quantity of certain intoxicants. The Special Bench held that these notifications were ultra vires and could not be lawfully made under that Sub-section. Consequently no person in Ahmedabad and Bombay could be convicted of being in possession of the forms of intoxicants mentioned in the said notifications contrary to the terms of the said notifications.

The terms of Section 14B, Bombay Abkari Act, are very similar to the terms of Section 19, Bihar and Orissa Excise Act, 1915, and there is no material difference whatsoever between the terms of Sub-section (2), Bombay Act and Sub-section (4) of Section 19, Bihar and Orissa Excise Act. The Special Bench had to consider, as this Court now has "to consider, the meaning of the words "prohibit the possession by any person or class of persons." The Special Bench held that these words did not empower the Provincial Government to prohibit the public generally from possessing intoxicants within the areas of Ahmedabad and Bombay, but on the other hand, only empowered the Provincial Government to prohibit designated persons or class of persons from so possessing intoxicants. At p. 603 Beaumont C.J., who delivered the judgment of the Court, observed:

The only real question appears to us to be whether a power to prohibit the possession by any person or class of persons either throughout the whole Presidency or any local area of any intoxicant justifies Government in prohibiting possession by the public generally. As has been stated, the notifications prohibit possession by any person, and it has not been suggested, nor do we think it could be seriously suggested, that the persons for the time being in Ahmedabad and its districts, or within the town and Island of Bombay and the Suburban District, who would fluctuate from day to day, and indeed from hour to hour, can be regarded as a class of persons. The view which appealed to the learned sessions Judge of Ahmedabad and which has been strenuously pressed upon us by the learned Advocate-General, is that the words "any person" are equivalent to the words "every person," in the section, as they clearly are in the notifications, and that, therefore, the whole public may be brought within the prohibition. On that construction, it is difficult to see what effect can be given to the words which appear in the section, but not in the notifications or class of persons." In our opinion, the natural meaning of the expression "any person or class of persons" is a person designated by name or description or a class of persons designated. We are satisfied that if the Legislature had intended that the power of prohibition might be extended to the public generally, it would have so stated in clear language.

This case is a direct authority in favour of the contention put forward by the petitioner, and I respectfully agree with it and with the reasoning of Beaumont, C.J.

In my judgment this case should be followed, and that being so, I am bound to hold that the Notification No. 1600-L.S.G., dated 26th March 1939, issued by the Provincial Government was ultra vires and could not be lawfully made u/s 19(4), Bihar and Orissa Excise Act, 1915. That being so, the petitioner could not be convicted u/s 47(a) of the Act, for being in possession of country liquor contrary to this notification. To sustain a conviction under that section, the notification must be one which the Provincial Government were empowered by statute to make.

The result therefore is that the conviction and sentence of the petitioner are illegal and must be set aside. I would therefore make the rule absolute, set aside the conviction and sentence passed upon the petitioner and acquit him. The petitioner, if in custody, must be released forthwith.

Fazl Ali, J. I agree.

Yarma, J.

I agree.

Manohar Lall, J.

I agree.

Shearer, J.

I agree.