PETITIONER:
THE STATE OF BOMBAY AND ANOTHER

 Vs.

RESPONDENT:
F.N. BALSARA

DATE OF JUDGMENT:
25/05/1951

BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
BOSE, VIVIAN

CITATION:
 1951 AIR 318 1951 SCR 682
 CITATOR INFO :
 F 1952 SC 75 (21,54,70)
 RF 1952 SC 123 (45)
 F 1953 SC 156 (49)
 F 1953 SC 333 (13)
 R 1955 SC 58 (6)
 E 1955 SC 123 (6,7,9,17,20,21,22,23,24,25,27
 R 1955 SC 191 (5)
 F 1957 SC 503 (15,16)
 F 1957 SC 628 (12,14,19,20,21)
 R 1957 SC 877 (16)
 D 1957 SC 927 (9)
 R 1958 SC 328 (22)
 R 1958 SC 468 (44A)
 E 1958 SC 538 (11,12,17)
 F 1958 SC 560 (20)
 RF 1958 SC 578 (211)
 R 1959 SC 648 (21)
 R 1960 SC 554 (9)
 RF 1963 SC 703 (37,43)
 D 1963 SC1470 (7)
 R 1963 SC1531 (4,5)
 RF 1964 SC 648 (48)
 R 1966 SC 722 (7)
 RF 1967 SC1110 (16)
 F 1968 SC 888 (6)
 RF 1970 SC 564 (53)
 RF 1972 SC 425 (10)
 RF 1973 SC1461 (456,616,742,1212,1218)
 R 1974 SC 543 (30,32)
 RF 1975 SC 360 (19,24)
 F 1975 SC1121 (44,53)
 R 1977 SC 722 (29)
 E 1978 SC 449 (29)
 F 1978 SC 771 (13,44)
 RF 1980 SC 614 (10,11,12,15,16)
 RF 1980 SC1789 (121)
 RF 1981 SC 873 (33)
 RF 1981 SC1863 (15,17)
 R 1983 SC1019 (52)
 RF 1986 SC 987 (2)
 RF 1986 SC1541 (9)
 RF 1988 SC 771 (5)
 E 1990 SC1927 (27,28,29,41,56,67,73,75,76)
 RF 1990 SC2072 (48)
 RF 1991 SC 672 (33)
 RF 1992 SC1277 (85)

ACT:
 Bombay Prohibition Act (XXV of 1949)--Constitutional
validity --Applicability of Act to foreign liquors--To
medicinal and toilet preparations containing alcohol--Valid-
ity of ss. 2(24) (a), 12, 13, 23, 24, 39, 40(1) (b), 46, 52,
53, 139 (c)--Law of Province prohibiting possession and sale
of foreign liquor within Province--Whether encroaches on
power of Dominion to make laws as to "import and
export"--Doctrine of original package--Applicability to
India--Construction of Lists--Restriction on fundamental
right "to 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 II
entry 31--Constitution of India, Arts. 14, 19(1), 19 (2).

HEADNOTE:
 Under entry 31 of List II of the Seventh Schedule to
the Government of India Act, 1935, the Provincial Legisla-
tures had the power to make laws in respect of "intoxicating
liquors, that is to say, the production, manufacture, pos-
session, transport, purchase and sale of intoxicating liq-
uors" 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 validi-
ty of the Bombay Prohibition Act, 1949, in so far as it
restricted 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:
 Held, (i) that the words "possession and sale" occurring
in entry 31 of List II must be read without any qualifica-
tion, and the word "import" in entry 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 con-
flict between entry 31 of List i1 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 Legislature; (ii)
even assuming that the prohibition of purchase, use,
683
possession, transport and sale of liquor will affect its
import, the Bombay Prohibition Act was in pith and substance
an Act falling within entry 31 of List II and the fact that
the law incidentally encroached upon the powers of the
Dominion Legislature under entry 19 of List I would not
affect its validity.
 The American doctrine of "original package" which laid
down that importation was not over so long as the goods were
still in the original package, has no application in India
having regard to the scheme of legislation that has been
outlined in the Government 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.
 Bhola Prasad v. The King Emperor [1942] F.C.R 17 and
Miss Kishori Shetty v. The King [1949] F.C.R. 650 relied on.
In re the Central Provinces and Berar Act No. XIV of 1938
[1939] F.C.R. 18, The United Provinces v. Atiqa Begum [1940]
F.C.R. 110, Governor. General in Council v. Province
o/Madras [1945] F.C.R. 179, Prafulla Kumar Mukherjea and
Others v. Bank of Commerce, Khulna [1947] F.C.R. 28, Subrah-
manyan 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
contravene the provisions 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 If). Bhola Prasad v. King Emperor [1942]
F.C.R. 17 followed.
 The word "liquor" as understood India at the time of the
Government of India Act, 1935, covered not only those
alcoholic liquids which are generally used as beverages and
produce intoxication, but also all liquids containing
alcohol; the definition of" liquor" contained in s. 2 (24)
of the Bombay Prohibition Act, 1949, is not therefore ultra
vires.
Section 39 of the Act which empowers the Provincial Govern-
ment to permit the use or consumption of foreign liquor on
cargo boats, warships and troopships and in military and
naval messes and canteens does not contravene Art. 14 of the
Constitution (which provides that the State shall not deny
to any person equality before the law or the equal protec-
tion of the laws) inasmuch as the relaxation of the general
law in respect of the persons contemplated by the section is
not arbitrary or capricious but is based on a reasonable
classification.
 Rule 67 of the Bombay Foreign Liquor Rules which autho-
rises the granting of a permit to "any foreigner on a tour
of lndia who enters the State of Bombay and desires to
possess, use and consume foreign liquor" is not void on the
ground of discrimination, firstly because, though it pro-
vides for the case of a foreign
684
visitor, there is no prohibition against any other outsider
being granted a permit, and secondly, because the policy
underlying the rule is quite consistent with the policy
underlying s. 40 of the Act which enables permits to be
granted to foreigners under certain conditions.
 Sections 52, 53 and 139 (c) of the Act do not constitute
delegation of legislative power, and delegation of the
character which these sections involve cannot in any view be
held to be invalid
 In re Delhi Laws Act, 1912 etc.(1) relied on.
 The restrictions imposed by ss. 12 and 13 of the Act on
the possession, sale, use and consumption of liquor are not
reasonable restrictions on the fundamental right guaranteed
by Art. 19 (1) (1) of the Constitution "to acquire, hold and
dispose of property", so far as medicinal and toilet prepa-
rations containing alcohol are concerned and the said sec-
tions are invalid so far as they prohibit the possession,
sale, use and consumption of these articles, but the
sections are not wholly void on this ground as the earlier
categories mentioned in the definition of liquor, namely,
spirits of wine, methylated spirit, wine, beer and toddy are
distinctly separable items which are easily severable. from
the last category, namely, all liquors containing alcohol,
and the restrictions on the possession, sale, use and con-
sumption of these earlier categories are not unreasonable
restrictions.
 Romesh Thappar v. The State of Madras [1950] S.C.R. 594
and Chintaman Rao v. The State of Madhya Pradesh [1950]
S.C.R. 759 distinguished.
 Sections 23 (a) and 24 (1) (a) of the Act in so far as
they refer to "commending "any intoxicant, conflict with the
fundamental right of freedom of speech and expression gua-
ranteed by Art. 19 (1) (a) of the Constitution and none of
the conditions mentioned in cl. (2) of Art. 19 applies to
the case and therefore these provisions are void. Section
23 (b) is also void, because the words "incite" and "encour-
age" are wide enough to include incitement and encouragement
by words and speeches and also by acts and the words used in
the section are so wide and vague that the clause must be
held to be void in its entirety.
 There is nothing unreasonable in a law relating to
prohibition discriminating between Indian citizens against
whom it is primarily to be enforced and foreigners who have
no intention of permanently residing in India. A provision
enabling a certain class of persons holding permits to offer
drink to persons holding similar permits is also not unrea-
sonable. Notifications No. 10484/45C and 2843/49 (a) are
not therefore invalid.
The requirement that an applicant for a permit on the
ground of health under s. 40 (1) (b) must get a medical
certificate declaring that he is an "addict" is not warrant-
ed by the provisions of
(1) Reported infra.
685
the Act. The word "addict" in the form of the medical
certificate should therefore be replaced by the words used
in s. 40 (1) (b) of the Act or words corresponding to them.
 The provisions of the Act which have been held to be
invalid are not so inextricably bound up with the remaining
provisions of the Act as to render the whole Act void.
 [The decision of the High Court that ss. 136 (1), 136
(2) (b), 136 (2) (c), 136 (2) (e) and 136 (21 (f) were void
inasmuch as they offended against Art. 19 of the Constitu-
tion was not assailed before the Supreme Court.]

JUDGMENT: