THE STATE OF BOMBAY AND ANOTHER versus F. N. BALSARA

Citation: [1951] 1 S.C.R. 682 · Decided: 25-05-1951 · Supreme Court of India · Bench: M. PATANJALI SASTRI · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

!951 
May 25. 
682 
SUPREME COURT REPORTS 
[1951] 
THE STATE OF BOMBAY AND ANOTHER 
v. 
F. N. BALSARA 
F. N. BALSARA 
v. 
THE STA TE OF BOMBAY AND ANOTHER 
[SA1Ym FAZL ALI, PATANJALI SAsTRI, MUKHERJEA, 
S. R. DAs and V1v1AN BosE lf.] 
Bombay Prohibition Act (XXV of 1949)-Constitutional validity 
-Applicability of Act to foreign liquors-To medicinal and toilet 
preparations containing alcohal-Validity of ss. 2(24) (a), 12, 13, 
23, 24, 39, 40(1) (b), 46, 52, 53, 139 (c)-Law of Province prohibit-
ing possession and sale of foreign liquor within Province-W he th er 
encroaches on power of Dominion to make laws as to "ituport and 
export" -Doctrine of original pack.age -Applicability to India -
Construction of Lists-Restriction on fundamental right uto acquire, 
hold and dispose of property" and to "equal protection of the laws" 
Government of India Act, 1935, s. 297 (4), Seventh Sched., List 
I entry 19--List 11 entry 31-Constitution of India, Arts. 14, 19(1), 
19 (2). 
Under entry 31 of List 11 of 
the 
Seventh Schedule to the 
Government of India Act, 1935, the Provincial . Legislatures had 
the power to make laws in respect of "intoxicating liquors, that 
is 
to 
say, 
the 
production, 
manufacture, 
possession, 
transport, 
purchase and sale of intoxiqting liquors" and under entry 19 of 
List I, the Dominion Legislature had the power to make laws 
with respect to "import and export across customs frontiers". 
The constitutional validity of the Bombay Prohibition Act, 1949, 
in so far as it rcstrict.ed the possession and sale of foreign liquors 
was impugned on the ground that it was an encroachment on 
the field assigned to the Dominion Legislature under entry 19 of 
List I : 
H eltl~ ( i) that the words "possession and sale" occurring in entry 
31 of List II must be read without aJiy qualification, ahd 
the 
word "import" In ~ntry 19 of List 1 standing by itself will not 
include either sale or possession of the article imported into the 
country. 
There was thus no conflict between entry 31 of List II 
and entry 19 of List I and the Bombay Prohibition Act, in so 
far as it purported to restrict the possession and sale of foreign 
liquors, did not encroach upon the field of the Dominion Legis-
lature; (ii) even assuming that the prohibition of purchase, 
u~e, 
possession, transport and sale of liquor will affect its import, the 
Bombay Prohibition Act was in pith and substance an Act fall-
S.C.R. 
SUPREME COURT Rm>ORTS 
683 
ing within entry 31 of List . II and. the fact th~t. the law. incid· 
cntally encroached upon the powers i:lf the Domm1on Legislature 
under entry 19 of List I would not effect its validity. 
The American doctrine of "original package" which laid down 
the importation was not over so long as the goods were still in 
that original package, has no application in India having regard to 
the scheme of legislation that has been outlined in the Govern· 
roent of India Act, 1935, and in the present Constitution in which 
the various entries in the Legislative Lists have been expressed 
in clear and precise language. 
BhQla Prasad v. The King Emperor [1942] F.C.R. 17 and Miss 
IGshor, Sethi v. The King [ 1949] F.C.R. 650 relied on. In re the 
Central Provinces and Berar Act No. XIV of 1838 [1939) F.C.R., 18, 
The United Provinces v. Atiqa Begum [1940] F.C.R. 110, Governor 
General in Council v. Province of Madras [1945] F.C.R. 179, Pra-
fulla Kumar Mul(k_erjea and others v. Bank of Commerce, Khulna 
[1947] F.C.R. 28, Subramanyan Chettiar v. Muthuswami Goundan 
[1948) F.C.R. 207 referred to: Brown v. Maryland (25 U.S. 419) 
and Leisy v. Hardin (135 U.S. 100) distinguished. 
The Bombay Prohibition Act, 1949, does not in any way con-
travene the ptovisions of s. 297 ( 1) (a) of the Government of India 
Act, 1935, inasmuch as it is 
not a law made by virtue of the 
entry relating to "Trade and commerce 
within 
the Province" 
(entry 2 of List II) or the entry relating to "the production, 
supply and distribution of commodities" (entry 29 of List II). 
Bhola Prasad v. King Emperor [1942] F.C.R. 17 followed. 
The word "liquor" as understood in India lit the time of the 
Government 
of 
India kt, 
1935, 
covered 
not 
only 
those 
alcoholic 
liquids 
which 
arc generally used as beverages and 
produce intoxication, but also all liquids containing alcohol; 
the definition of "liquor" eontained in s. 2 (24) of the Bombay 
Prohibition Act, 1949, is not therefore ultra 111'rei. 
Section 39 of the Act which empowe

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