State of M.P. vs Banarasilal

M. Hedayattullah, J.—This is an appeal by the State of Madhya Pradesh against the judgment and order of the High Court of Madhya Pradesh dated March 4, 1964 in Criminal Revision No. 307 of 1963 by which the conviction and sentence passed on the Respondent Banarasilal u/s 34 (a) of the Madhya Pradesh Excise Act was set aside. The Respondent is a proprietor of a hotel known as "Apna Hotel" situated at Indore. On August 24, 1959 the Station House Officer, Sanyogita Ganj Police Station, raided the hotel and found seven bottles of foreign liquor at the counter of the hotel which he seized and took in his possession. The prosecution under the above section followed because possession of liquor in a hotel is prohibited by a notification issued by the Madhya Pradesh Government and published in the Gazette of July 31, 1959 under the powers conferred on the Government by Section 16 (4) of the Madhya Pradesh Excise Act. We shall refer to the terms of the notification and the section presently. The Respondent was found guilty and was sentenced to imprisonment till the rising of the Court and to a fine of Rs. 100 and in default, to further imprisonment for 15 days. In revision the High Court set aside the conviction and sentence because in the opinion of the learned single Judge who decided the case the notification was ultra vires the section and no offence was, therefore, committed.

Section 16, to which we have referred, reads as follows:

(1) The State Government may, by notification prescribe a limit of quantity for possession of any intoxicant:

Provided that different limits may be prescribed for different qualities of the same article.

(2) No person shall have in his possession any quantity of any intoxicant in excess of the limit prescribed under Sub-section (1), except under the authority and in accordance with the terms and conditions of:

(a) a licence for the manufacture, cultivation, collection, sale or supply of such intoxicant, or

(b) a pass for the import, export or transport of such intoxicant, or

(c) a permit granted under this Act.

(3) Sub-section (2) shall not apply to any foreign liquor-

(a) which is in this possession of any common carrier or warehouseman as such, or

(b) which is lawfully procured by and in. the possession of any person for his bona fide private consumption and not for sale;

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

The notification which was issued under the last Sub-section and which is the subject-matter of debate in the case reads as follows:

E. Section 16 (4)-

(a) No person shall possess any Charas.

(b) No person shall possess any intoxicant in any quantity which has not been lawfully manufactured or lawfully obtained.

(c) No person shall have any country or foreign liquor in his possession in any restaurant, hotel, cafe, shop of aerated water and Sharbat unless such place is licensed for the sale or consumption of country or foreign liquor:

Provided that a bona fide traveller may possess country or foreign liquor within the limits allowed in the room occupied by him in a hotel in which he is staying.

We are concerned with Clause (c) of the notification which prohibits the possession in a restaurant or hotel etc. of country made or foreign liquor unless the place is licensed for the sale or consumption of country or foreign liquor. Taking the notification by itself it is quite clear that if the Respondent in the case was in possession of foreign liquor in his hotel or restaurant which was not a place licensed for the sale or consumption of the country or foreign liquor, prima facie the notification had been breached and an offence u/s 34 of the Excise Act had been committed. The High Court, however, came to the conclusion that the notification could not stand because no power to issue such a notification was given by the section. A reference in this connection was made to Sub-section (4) of Section 16 where it is said that the State Government may by notification prohibit the possession by any person or class of persons either in the State or in any specified area of any intoxicant either absolutely or subject to such conditions as it may prescribe. The argument which seems to have prevailed with the High Court is that the notification does not refer to any person or class of persons and does not refer also to any specified area. In our opinion, and we say respectfully, the High Court was in. error in both of its conclusions.

It is easy to see that the notification which is issued in respect of the whole of the State of Madhya Pradesh corresponds to the words "in the State" and if the notification is for the whole of the State, it would not be necessary to apply it to any specified area. It seems that an argument was raised in the High Court that a hotel would be a specified area. Whether or not this is a right approach, it is not necessary to decide, because, in any event, the notification which is for the whole of the State will be covered by the words "in the State". The conclusion of the High Court on this part of the ease is, therefore, erroneous.

The case of the Supreme Court reported in Diamond Sugar Mills ltd. and Anr. v. The State of Uttar Pradesh and Anr. (1961) 3 SCR 245, which dealt with a cess levied on sugarcane brought into a "local area" does not apply because the, words "local area" are not used here and, in any event, the words "in the State": cover this case.

The next contention is that the notification does not refer to "any person or class of persons" but merely Bays that 'no person' shall possess country or foreign liquor in any restaurant or hotel etc. According to the High Court, this does not indicate a class of persons and because by "class of persons" is meant a class of designated persons and no such class is designated here. Reliance is placed on the three cases, two of High Courts and one of the Federal Court, and we shall now deal with those cases.

In Kanhai Sahu Vs. Emperor, a question had arisen whether a person who was in possession of a bottle of country liquor at village Sultana, P.S. Hazaribagh was guilty, regard being had to a notification issued by the Bihar Government which reads as follows:

In exercise of the powers conferred by Clause (4) of Section 19 of the Bihar and Orissa Excise Act, 1915 (Bihar and Orisea Act II of 1918), the Governor of Bihar h pleased to prohibit with effect from the 1st April 1939 the possession of country liquor, Tari, Paohwai, Ganja and Bhang in any quantity by any person at any place within the jurisdiction of the police station of Hazaribagh, Ichak, Barkagaon, Mandu and Ramgarh in the district of Hazaribagh.

Sub-section (4) of Section 19, under the authority of which, the above notification was issued read as follows:

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.

In dealing with the notification their Lordships said that the phrase "any person or class of persons" must be construed as a whole and it indicated that there must be either a designated person or designated class of persons, that is to say, the person or class of persons must be designated by name or description. The phrase according to the Full Bench, could not mean the public generally in the Province or in any particular area therein. The same conclusion was reached earlier in Full Bench decision of the Bombay High Court in Sheik Cinubhai Lalbhai v. Emperor AIR 1940 Bom. 273 : ILR 1940 Bom 557. In fact the decision of the Full Bench of the Patna High Court relied strongly on the observations in the Bombay case. It is not necessary to refer to the earlier Bombay case because the section from which the notification had flowed in the Patna case is nearer to the section with which we are concerned.

In our judgment, a question of a class does not arise in this case in the same way as it did in the Bombay and Patna cases. Here the prohibition is in respect of persons in a hotel or restaurant etc. The intention is to prevent the possession of liquor in hotels, restaurants etc. when the hotels and restaurants are not licensed. It was impossible to provide for such prohibition without prohibiting all persons in the hotels or restaurants from possessing liquor. The notification in other words demarcates the people by reference to hotels and restaurants etc. and in this way indicates a class of persons to whom the prohibition applies. It is not necessary that the class of persons which is indicated by Section 16 (4) must have either a name or a very clear description such as was contemplated by the Bombay and the Patna High Courts. A thing is certain if it can be made certain and the class which is intended to be affected by the notification is clearly indicated with reference to the kind of place to which the prohibition attaches. The prohibition, in other words, is in respect of hotels and restaurants etc. and persons who are so affected are indicated as persons who would be found in the hotels in possession of liquor. This, in our opinion, satisfies the requirements of the section and the notification cannot, therefore, be said to go beyond the powers conferred on the State Government by the section,

The case of the Federal Court-Miss Kishori Shetty v. the King 1949 F.C.R. 651 does not concern the present matter. There, the question was whether Item 31 of List II of the Seventh Schedule to the Government of India Act in respect of intoxicating liquors, that is to say, "the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs" was intended to enable the State Government to prohibit completely the possession of liquor and narcotic drugs. It was held that the power given to the Provincial Legislature under this item was expressed in unqualified terms and there was nothing in the Federal Legislative List, particularly in item No. 19 ("to import and export across customs frontiers") which necessitated the cutting down of the full meaning of item 21 excluding foreign liquors from its purview.

The result, therefore, is that the notification is valid. Once the notification is held to be valid, there is nothing further to be said in this case, because it is admitted before us that the liquor was, in fact, found in the hotel and that the hotel did not possess a licence.

We accordingly allow the appeal of the State Government and set aside the order of the High Court and restore the conviction and sentence of the Respondent.

Appeal allowed.