1942 (3) TMI 20 - Other - Central Excise

Court Upholds Bihar Excise (Amendment) Act, 1940: Legislature's Authority on Intoxicating Liquors Affirmed.

Bhola Prasad Versus The King-Emperor

The Ct upheld the validity of the Bihar Excise (Amendment) Act, 1940, affirming the Provincial Legislature's competence under Section 100(3) of the ... - Issues Involved:1. Validity of the Bihar Excise (Amendment) Act, 1940.2. Interpretation of legislative powers under Section 100(3) of the Constitution Act.3. Alleged repugnancy to Section 297(1)(a) of the Constitution Act.4. Requirement of previous sanction by the Governor-General for amending a Governor-General's Act.5. Legislative intent regarding the use of excise legislation for prohibition.Detailed Analysis:1. Validity of the Bihar Excise (Amendment) Act, 1940:The primary issue was whether the Bihar Excise (Amendment) Act, 1940, which amended Section 19(4) of the Bihar and Orissa Excise Act, 1915, was within the legislative competence of the Provincial Legislature. The court held that the amending Act was valid and within the powers conferred upon the Provincial Legislature by Section 100(3) of the Constitution Act and entry No. 31 of the Provincial Legislative List. The amendment allowed for the prohibition of intoxicating liquor by any person or class of persons within Bihar or any specified local area, thus aligning with the legislative intent to enforce prohibition.2. Interpretation of Legislative Powers under Section 100(3) of the Constitution Act:The court examined whether Section 100(3) provided the Provincial Legislature with the power to introduce prohibition. The court concluded that the power to legislate 'with respect to intoxicating liquors' was expressed in broad terms and included the power to prohibit intoxicating liquors throughout the Province or in any specified part. The court rejected the argument that the words following 'intoxicating liquors and narcotic drugs' in entry No. 31 limited the legislative power, instead viewing them as explanatory and covering the entire field of possible legislation on the subject.3. Alleged Repugnancy to Section 297(1)(a) of the Constitution Act:The appellant argued that the amendment was invalid due to its repugnancy to Section 297(1)(a) of the Constitution Act, which restricts provincial legislation regarding trade and commerce within the Province. The court dismissed this argument, clarifying that Section 297(1)(a) only pertains to legislation under entries No. 27 and No. 29 in the Provincial Legislative List and does not apply to entry No. 31, which concerns intoxicating liquors and narcotic drugs.4. Requirement of Previous Sanction by the Governor-General:The appellant contended that the 1940 amending Act required the previous sanction of the Governor-General because the original 1915 Act was a Governor-General's Act. The court refuted this, explaining that a Governor-General's Act refers to legislation enacted under Section 44 of the Constitution Act, not to all Acts that received the Governor-General's assent before the current Constitution Act. The court found the appellant's argument to be without merit, as it would lead to an impractical restriction on legislative powers.5. Legislative Intent Regarding the Use of Excise Legislation for Prohibition:The court addressed the appellant's argument that the original 1915 Act was intended solely as an excise or revenue Act, not for promoting prohibition. The court noted that the insertion of a preamble in the 1940 amending Act was an attempt to clarify legislative intent retrospectively. However, the court expressed skepticism about using a retrospective preamble to determine the original legislative intent. The court argued that there was no reason why an Excise Act could not serve dual purposes, such as benefiting revenue and promoting public health or morals through greater control of the liquor trade. The court inferred from the language of the Act that the Legislature might have intended to address prohibition, thus rejecting the argument based on the assumed absence of such intent.Conclusion:The court upheld the validity of the Bihar Excise (Amendment) Act, 1940, dismissed the appeal, and made no order as to costs. The judgment emphasized the broad legislative powers of the Provincial Legislature concerning intoxicating liquors and reinforced the principle of plenary legislative authority within the Province's jurisdiction.