Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1954 Supreme(SC) 117

SUPREME COURT OF INDIA
24th September, 1954.
M.C. MAHAJAN C.J.I., B.K. MUKHERJEA, S.R. DAS, BOSE AND GHULAM HASAN JJ.
Behram Khurshid Pesikaka, Appellant
Versus
State of Bombay.
Criminal Appeal No. 42 of 1953. 124
Advocates appeared
Shri B. M. Mistry and Shri J. B. Dadachanji, Advocates with Shri R. D. Chadha (permitted to appear in this appeal under Order IV, Rule 10 SCR 1950), instructed by Shri Rajinder Narain, Agent for Appellant; Shri M. C. Setalvad, Attorney-General for India, (Messrs. Porus A. Mehta, Ganpathy Iyer and P. G. Gokhale, Advocates with him), instructed by Shri. R. H. Dhebar, Agent, for Respondent.

Advocates:
B.M.MISTRY, GANAPATHY IYER, J.B.DADACHAN, M.C.SETALVAD, P.G.COKHALE, PARAS A.MEHTA, R.D.CHADHA, R.H.Dhebar, RAJENDER NARAIN

Headnote:“FUNDAMENTAL RIGHTS” ARE MODERN NAME OF “NATURAL RIGHTS”—MORE RIGHTS AS A RATIONAL AND MORAL BEING FUNDAMENTAL RIGHTS AND DOCTRINE OF WAIVER—WAIVER DOES NOR APPLY CONSTITUTIONAL AND FUNDAMENTAL RIGHTS PART OF STATUTE BEING VOID—EFFECT OF JUDICIAL DECISION - MEANING OF AMENDMENT EXPLAINED - OPERATES PROSPECTIVELY NOT RETROSPECTIVELY -INVALID ACT -EFFECT OF PART OF STATUTE BEING VOID—EFFECT OF JUDICIAL DECISION
       -held, when law is declared invalid by Court, no notice can be taken of that law.
       -held, part inoperative, unenforceable but not void in determining rights of citizens. Law declared by Supreme Court binding on all courts in India – American doctrine (Willoughby “Constitution of United States, Vo. I. P. 10) that unconstitutionality of statute affect parties only and no judgment against statute, - has no application in India – Once law declared void under Art. 13 (1) or (2) by Supreme Court the declaration has force of law. The decision in State of Bombay v. F.N. Balasara, AIR 1951 SC 318=(1951) SCR 682 cannot be given effect by engrafting exception on accused.

Judgement Key Points

Key Points: - The appellant was acquitted by the Presidency Magistrate of charges under Section 66(b) of the Bombay Prohibition Act and Section 338 IPC but convicted by the High Court under Section 66(b) (!) (!) (!) . - The doctor found the appellant's breath smelling of alcohol but opined he was not under its influence, having taken alcohol in some form (!) . - The appellant claimed he consumed B.G. Phos, a medicinal tonic containing 17% alcohol, after dinner on the night of the accident (!) (!) (!) . - In Balsara's case, the Supreme Court declared Section 13(b) invalid only insofar as it prohibited consumption of liquid medicinal or toilet preparations containing alcohol (!) (!) (!) . - The High Court placed the burden on the accused to prove consumption of permitted medicinal alcohol under Section 105/106 Evidence Act, following its prior decision (!) (!) (!) . - A three-judge bench split on burden of proof, leading to reference under Article 145(3) to a Constitution Bench on the effect of the Balsara declaration (!) (!) (!) . - The Constitution Bench (majority) held the declaration renders the relevant part of Section 13(b) inoperative and unenforceable against citizens; prosecution must prove consumption of prohibited liquor (!) (!) (!) . - Doctrine of waiver does not apply to fundamental rights; American views on statutes affecting only parties do not apply due to Article 141 (!) (!) . - No exception or proviso is engrafted onto Section 13(b); courts cannot rewrite statutes (!) (!) . - Final outcome: prosecution failed to prove prohibited liquor was consumed; conviction quashed (!) (!) .

What is the effect of the declaration in State of Bombay v. F.N. Balsara that Clause (b) of Section 13 of the Bombay Prohibition Act, 1949, is void under Article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol? [p_139][p_144]

Judgement

BHAGWATI J.: This is an appeal by special leave from a judgment of the High Court of Judicature at Bombay reversing the order of acquittal passed in favour of the Appellant by the Court of the Presidency Magistrate 19th Court, Bombay and convicting him of an offence under Section 66(b) of the Bombay Prohibition Act, 1949 and sentencing him to one month s rigorous imprisonment and a fine of Rs. 500/-

2. The Appellant who was the Officiating Regional Transport Officer, Bombay Region was on the 29th May 1951 at about 9.30 P. M. proceeding in his jeep car towards the Colaba Bus Stand when he knocked down three persons, Mrs. Savitribai Motwani, her husband and Miss Parvatibai Abhichandani.

The police arrested the Appellant and took him to the police station. From the police station he was taken to St. George s Hospital in order to be examined by the doctor for alleged consumption of liquor. The doctor found his breath smelling of alcohol. He however found that the conjunctive were congested, the pupils were semi-dilated and reacting to light. The speech was coherent & he could behave himself and walk along a straight fine. The doctor was therefore of opinion that he did not seem to be under the influence of alcohol though he had taken alcohol in some form or the other.

3. The Appellant was put up before the Presidency Magistrate for his trial under two offences, one under Section 338 of the Indian Penal Code on three counts for causing grievous hurt to the three injured persons by doing a rash and negligent act i. e. driving his motor car in a rash and negligent manner and the other under Section 66 (b) of the Bombay Prohibition Act.

The Appellant cross-examined the doctor & suggested that (Sic) had taken a medicinal preparation B. G. Phos & also stated in answer to the Magistrate on the 20th December 1951 that he had not consumed any liquor but had taken medical preparation containing a small percentage of alcohol.

He also filed a written statement on the 13th March 1952 setting out in detail the whole history of his case. He stated there that owing to his ill health he had been recommended to lake tonics, specially those containing Vitamin B Complex and Phosphates and had regularly taken tonics, such as Wampole s Phospho Lecitin, B. G. Phos, and Huxley s Nerve Vigour.

He further stated that on the night in question he had at about 9 or 9.15 P. M. after dinner taken a dose of B. G. Phose and was proceeding in his jeep car for a drive via Cuffee Parade and Marine Drive when the accident took place. He produced his driving licence and registration certificate and a copy of the agenda of the Regional Transport Authority s meeting to be held next day and a carton of B. G. Phos on which it was stated that it contained 17 per cent alcohol according to its formula.

4. The learned Presidency Magistrate acquitted the Appellant of both these offences.

In regard to the offence under Section 66 (b) of the Bombay Prohibition Act he observed that the evidence did not go to show conclusively that the Appellant had consumed alcohol without a permit, that there were certain medicinal preparations which were allowed to be used by law and there was no satisfactory evidence to show that the Appellant had not consumed those tonics but only liquor for which he ought to have a permit.

5. The Respondent, the State of Bombay took two appeals before the High Court against each of these two cases. The High Court confirmed the acquittal in regard to the charge under Section 338 or the Indian Penal Code but reversed the order acquitting him of the charge under Section 66(b) of the Bombay Prohibition Act.

The High Court followed a decision of its own Division Bench in - Rangrao Bala v. State , AIR 1952 Bom 327 (A), where it had been held that

"Once it is proved by the prosecution that a person has drunk or consumed liquor without a permit, it is for that person to show that the liquor drunk by him was not prohibited liquor, but was alcohol or liquor which he is