The Court held that the Bombay Prohibition Act, 1949, was intra vires the State Legislature, except for certain provisions that violated fundamental rights or constituted delegation of legislative powers.

Headnote:
Bombay Prohibition Act, 1949, was challenged on the grounds of ultra vires, contravention of fundamental rights, and delegation of legislation. The Court held that the Act was intra vires the Legislature, except for certain provisions that violated fundamental rights or constituted delegation of legislative powers. The Court also held that the petitioner was entitled to an order restraining the Government from enforcing the void provisions of the Act against him.
Fact of the Case:

The petitioner, a citizen of India, challenged the Bombay Prohibition Act, 1949, on the grounds that it was ultra vires the State Legislature, contravened several fundamental rights guaranteed to the citizen by the Indian Constitution, and constituted delegation of legislative powers.
Finding of the Court:

The Court held that the Act was intra vires the Legislature, except for certain provisions that violated fundamental rights or constituted delegation of legislative powers. The Court also held that the petitioner was entitled to an order restraining the Government from enforcing the void provisions of the Act against him.
Issues: 1. Whether the Bombay Prohibition Act, 1949, was ultra vires the State Legislature? 2. Whether the Act contravened several fundamental rights guaranteed to the citizen by the Indian Constitution? 3. Whether the Act constituted delegation of legislative powers?
Ratio Decidendi: 1. The Court held that the Act was intra vires the Legislature, except for certain provisions that violated fundamental rights or constituted delegation of legislative powers. The Court reasoned that the Act fell within the scope of Items 29, 31 and 40 in List II of Schedule VII of the Government of India Act, 1935, which dealt with production, supply and distribution of goods; intoxicating liquor and narcotic drugs; and excise duties respectively. The Court further held that the Act was not ultra vires on the ground that it prohibited the possession, use and consumption of certain articles, which were not intoxicating drinks, as such prohibition was ancillary to the prohibition of intoxicating drinks. 2. The Court held that certain provisions of the Act violated fundamental rights guaranteed to the citizen by the Indian Constitution. The Court held that the provisions prohibiting the possession, use and consumption of non-beverages and medicinal and toilet preparations containing alcohol violated the right to acquire, hold and dispose of property under Article 19(1)(f) of the Constitution. The Court also held that the provisions relating to preventive detention and restrictions on freedom of speech and expression violated Articles 19, 21 and 22 of the Constitution. 3. The Court held that certain provisions of the Act constituted delegation of legislative powers. The Court held that the provisions empowering the Government to grant licenses in cases other than those specifically provided for by the Act, to vary or substitute conditions of the license, and to exempt persons or classes from the provisions of the Act, constituted delegation of legislative powers.
Final Decision: The Court held that the Bombay Prohibition Act, 1949, was intra vires the State Legislature, except for certain provisions that violated fundamental rights or constituted delegation of legislative powers. The Court also held that the petitioner was entitled to an order restraining the Government from enforcing the void provisions of the Act against him.

Judgment

Chagla, G.J.

1. This is a petition by one Pram Nusserwanji Balsara who is a citizen of India, He has in his possession one bottle of whisky, one bottle of brandy (both partly used), one bottle of wine, two bottles of beer, one bottle of medicated wine, one bottle of eau-de-cologne, one bottle of lavender water, and some bottles of medicinal preparations. He alleges that be has been accustomed to drink and consume foreign liquor in a moderate manner for several years past and is also accustomed to the use of eau-de-cologne and lavender water. He challenges the Bombay Prohibition Act, 1949, as being ultra vires of the State Legislature and being also void as contravening several of the fundamental rights guaranteed to the citizen by the Indian Constitution. Originally he sought by his petition a writ of mandamus against the State of Bombay, which is respondent 1, and the Prohibition Commissioner, who is respondent 2, ordering these respondents to forbear from enforcing against him the provisions of the Bombay Prohibition Act. He also sought for a writ of mandamus or an order under Section 45, Specific Belief Act, ordering the respondents to allow the petitioner to exercise his right to possess, consume or use the articles which have been mentioned before. It was realised by the petitioner in the course of the argument of this petition that even if he were to succeed, reliefs of the nature asked for by him may not be available to him. He therefore sought for an amendment of the petition. The amendment was opposed by the Advocate-General on behalf of the respondents. We gave him leave to amend as we took the view that by this amendment the petitioner was in no way altering his cause of action. He relied on the same averments as were contained in the original petition and all that he asked for was reliefs different from those which he had originally asked. We will consider the nature of the reliefs, and whether he is entitled to any of them, later.

2. The impugned Act is Act XXV [25] of 1949 passed by the Bombay Provincial Legislature as it then was. It is both an amending and consolidating Act and it contains provisions for the promotion and enforcement of and carrying into effect the policy of prohibition and also the Abkari law. The Abkari Act which was on the statute book was repealed by this Act and its provisions were incorporated into this measure. It also contains naw provisions putting into force the policy of prohibition. Chapter I contains definitions of various expressions used in the statute and the material ones are those set out in Section 2 (225 and Section 2 (24). "Intoxicant" is defined as

". . . any liquor, intoxicating drug, opium or any other substance which the Provincial Government may, by notification in the Official Gazette, declare to be an intoxicant" ;, . ,

Liquor" has an inclusive definition and it is defined as

" (a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol; and

(b) any other intoxicating substance which the Provincial Government may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act. ..."

It will therefore be noticed that an "intoxicant" as defined by the Act is not merely an intoxicating liquor, but it embraces a much wider class of articles. It includes all liquids consisting of or containing alcohol. Chapter II deals with establishment with which we are not concerned. Chapter III is headed "Prohibitions". Section 11 makes it lawful to import, export, transport, manufacture, sell, buy, possess, use or consume any intoxicant only in the manner and to the extent provided by the provisions of the Act;, any rules, regulations or orders made or in accordance with the terms and conditions of a licence, permit pass or authorization granted thereunder. Therefore, the right to intoxicants is restricted in a manner laid down in this section. Then follow S3. 12 to 17 which contain prohibitions and these

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