BEHRAM KHURSHED PESIKAKA versus THE STATE OF BOMBAY.

Citation: [1955] 1 S.C.R. 613 · Decided: 24-09-1954 · Supreme Court of India · Bench: MEHR CHAND MAHAJAN, BIJAN KUMAR MUKHERJEA, SUDHI RANJAN DAS, VIVIAN BOSE, GHULAM HASAN · Disposal: Disposed off
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Judgment (excerpt)

, 
• 
• 
S.C.R. 
SUPREME COURT REPORTS 
BEHRAM KHURSHED PESIKAK.A 
ti. 
THE STATE OF BOMBAY. 
REFERENCE UNDER ARTICLE 145(3) OF THE 
CoNSTITUTION OF INDIA .• 
613 
[MEHR CHAND MAHAJAN C. J., MuKHERJEA, MAsAN JJ.J 
S. R. DAs, 
VIVIAN BosE and GHULAM HASAN JJ.] 
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). 
Held (Per MEHR CHAND MAHAJAN C. J., 
MuKHERJEA, 
VIVIAN 
.; 
EosE and GHULAM HASAN JJ. S. R. DAs J. dissenting) that the 
effect of the declaration in the case of The State of Bombt>y 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, ineffec-
tive 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 wjth 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 aft_!:'r 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 J?e 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 
(1) [1951] S.C.R. 682. 
1954 
B1hram lflwrs1114 
PtsikoJ:a 
v. 
Till Stall ef 
Bombay. 
614 
SUPREME COURT REPORTS 
[1955] 
alcohol of which he was smelling came under the category of 
prohibited alcohol within the meaning of the enforceable part of 
s. !3(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 consu-
med 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 Madhova Menon v. The State of Bombay ([1951] S.C.R. 
228) followed. 
Rangarao Bala Mane v. The State ((1951] 54 Born. L. R. 325), 
In re Kanakasabai Pillai (A.I.R. 1940 Mad. l) and Norton v. Shelby 
... 
County (118 U. S. 425) referred to. 
> 
.. 
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, J agannadha-
das and Venkatarama Ayyar JJ. who delivered 
the 
following Judgments dated 19th February, 1954]. 
BHAGWATI J.-This is an
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