1. This a petition for the issue of a direction, writ or order restraining the State of Bombay from enforcing the provisions of the Bombay Prohibition Act and the Rules and Resolutions passed thereunder in respect of a preparation known as Halls Wine. Petitioner are the sole agents of Halls Wine in India and petitioner 2 is the Managing Director of Petitioners 1 who are private Limited Company, and petitioner 2 states in his petition that he buys, possesses and consumes tor the purposes of his Health Halls Wine.

2. In order to appreciate the questions that arise for determination on this petition, it would be convenient at the outset to set out shortly the provisions of the prohibition law of the State, the challenge partially successful to that law in the Courts, subsequent amendments in the law designed to give effects to the decisions of the Courts and the Rules made and the Resolutions passed in pursuance of the law.

Now, the Bombay Prohibition Act is a pre-Constitution Act and was passed on 16-6-1949. Total prohibition was introduced in the State of Bombay on 6-4-1950. The Prohibition Act was challenged before a Pull Bench of this Court in the case of Fram Nusservanji Balsara v. Slate of Bombay, AIR 1951 Bom 210 (FB) (A). Now, shortly stated, the relevant provisions of the Act for the purposes of the prevent petition which were considered by the Full Bench were the definition of liquor and the prohibitions contained in Chapt. III, Prohibition Act.

Section 2, Sub-section (24) of the Act defines liquor as inter alia including "all liquids consisting of or containing alcohol" and Sections 12 to 17 of the Act enact certain prohibitions regarding the manufacture, import, export, transport, sale, purchase, consumption, use, etc., of any liquor. Section II of the Act, however, enacts that notwithstanding these provisions it shall be lawful to do the acts prohibited "in the manner and to the extent provided by the provisions of this Act or any Rules, Regulations or orders made or in accordance with the terms and conditions of a licence, permit, pass or authorization granted thereunder."

There Were a number of notifications issued under powers conferred on the State Government by the Prohibition Act, the object of the notifications being, generally speaking, to make non-beverages containing alcohol available for sale, use and consumption under certain restrictions prescribed in the notifications. This scheme of the Act was challenged before the Pull Bench and the challenge was that the Bombay Legislature did not have the competence to enact any law relating to medicinal and toilet preparations containing alcohol and therefore in so far as the Prohibition Act included such preparations within the definition of liquor, and the prohibitory Sections 12 to 17, the Act was ultra vires of the local Legislature.

It was further urged that even if the Act was read together with the notifications, the result was that the law imposed unreasonable restrictions on the right to sell, possess, use and consume such preparations and therefore the provisions were bad as being contrary to the fundamental rights guaranteed by Article 19(1) (f) and (g) of the Constitution. The Pull Bench, to which I was a party held that under Item 31 in List II, Schedule 7 Government of India Act, the Provincial Legislature had competence to legislate regarding any aspect of Intoxicating liquor, but medicinal and toilet pre- parations containing alcohol were excluded from the scope of Item No. 31.

The Full Bench, therefore, held that the definition of "liquor" was void to the extent to which it sought to include within its scope medicinal or toilet preparations containing alcohol. The Full Bench, however, made it plain that it was competent to the Legislature to prevent what the Full Bench described as the noxious use of such preparations, i.e., their use as a substitute for an intoxicating drink. The Full Bench also held that the provisions of the Act read al