Summary
Held (Per MEHR CHAND MAHAJAN C. J., MUKHERJEA, VIVIAN
BOSE and GHULAM HASAN JJ., S. R. DAS J. dissenting) that the effect of the declaration in the case of The State of Bombay and Another v. F. N. Balsara(1) that clause (b) of s.13 of the Bombay Prohibition Act (XXV of 1949) is void under Art. 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, is to render part of s.13(b) of the Bombay Prohibition Act inoperative, ineffective and ineffectual and thus unenforceable.In view of the constitutional invalidity of a part of s. 13(b) of the Bombay Prohibition Act having been declared void by the Supreme Court, that part of the section ceased to have legal effect in judging cases of citizens and must be regarded as null and void in determining whether a citizen was guilty of an offence.The clear enactment of Art. 141 of the Constitution leaves no scope in India for the application of the American doctrine that "the declaration by a court of unconstitutionality of a statute which is in conflict with the Constitution affects the parties only and there is no judgment against the statute and it does not strike the statute from the statute book."In India, on the other hand, once a law has been -struck down as unconstitutional by the Supreme Court, no notice can be taken of it by any Court because after it is declared as unconstitutional it is no longer law and is null and void.The bare circumstance that a citizen accused of an offence under s. 66(b) of the Bombay Prohibition Act is smelling of alcohol is compatible both with his innocence as well as his guilt. The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of s. 13(b) of the Bombay Prohibition Act or it may well be due to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section. Therefore the onus was laid on the prosecution to prove that the (I) [1951] S.C.R. 682.79 614alcohol of which he was smelling came under the category of prohibited alcohol within the meaning of the enforceable part of s. 13(b).Per S. R. DAS J. :-The declaration in the case of The State of Bombay and Another v. F. N. Balsara gives a citizen who has consumed or used liquid medicinal or toilet preparations a defence to a charge under s. 66(b) read with s. 13(b) of the Bombay Prohibition Act and it is for the accused person to prove the facts on which that declaration of law is based.The State of Bombay and Another v. F. N. Balsara ([1951] S.C.R. 682) explained.Kesava Madhava Menon v. The State of Bombay ([1951]S.C.R. 228) followed. rangarao Bala Maize v. The State ([19511 54 Bom. L. R.325), In re Kanakasabai Pillai (A.I.R. 1940 Mad. 1) and Norton v. Shelby County (118 U. S. 425) referred to.See the full content of this document
Extract
Behram Khurshed Pesikaka VS. The State Of Bombay.Reference Under Article 145(3) Of The
PETITIONER: BEHRAM KHURSHED PESIKAKA Vs.RESPONDENT: THE STATE OF BOMBAY.REFERENCE UNDER ARTICLE 145(3) OF THE CODATE OF JUDGMENT: 19/02/1954BENCH: ACT: Constitution of India, Arts. 13 and 141-Statute declared unconstitutional-Effect of-Declaration in Balsara's case--Effect of-If the decision throws onus on the accused- Bombay Prohibition Act, 1949 (Bombay Act XXV of 1949), ss. 2 (24),13 (b), 66(b).JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 42 of 1953.Appeal by Special Leave from the Judgment and Order dated the 5th February, 1953, of the High Court of Judicature at Bombay in Criminal Appeal No. 1149 of 1952 arising out of the Judgment and Order dated the 22nd April, 1952, of the Court of the Presidency Magistrate 19th Court, Bombay, in Case No. 933/P of 1951.B. M. Mistry, J. B. Dadachanji, Rajinder Narain and R. D. Chadda for the appellant.M. C. Setalvad, Attorney-General for India (R.Ganapathy Iyer and P. G. Gokhale, with him) for the respondent.1954. February 19, April 28, September 23, and September 24.[The present Criminal Appeal (No. 42 of 1953) came up for hearing in the first instance before a Bench of Hon'ble Judges composed of Bhagwati, Jagannadhadas and Venkatarama Ayyar JJ. who delivered the following Judgments dated 19th February, 1954].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 615Magistrate, 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.The appellant, who was the Officiating Regional Transport Officer, Bombay Region, was on the 29th May, 195 1, 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 the conjunctiva were congested, the pupils were semi-dilated and reacting to light. The speech was coherent and he could behave himself and walk along a straight line. 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.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 and suggested that he had taken a medicinal preparation, B. G. Phos, and also stated in answer to the Magistrate on the 20th December, 1951, that he had not consumed any liquor but had taken medicinal 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 take 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 616taken a dose of B. G. Phos 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.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.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 of the Indian Penal Code but reversed the order acquitting him of the charge under section 66(b) of the Bombay Prohibition Act. ...
See the full content of this document