Behram Khurshid Pesikaka Vs State of Bombay

Name of Author- Bhavya Rathore, UFYLC, University Of Rajasthan, Jaipur

Edites by- Sulesh Choudhary

ABSTRACT / HEADNOTE

This appeal by special leave is against the judgment rendered by the High Court of Judicature at Bombay, which reversed the appellant’s order of acquittal from the Court of the Presidency Magistrate, 19th Court, Bombay, finding him guilty of a crime under section 66(b) of the Bombay Prohibition Act, 1949, and punishing him with a rigorous one-month jail sentence and a fine of Rs. 500.

About the judgments of the majority, the appeal will be dismissed subject to the modification that the sentence imposed upon the appellant will be reduced to that already undergone. Bail bonds will be cancelled[1].

In the seminal decision of Behram v. State of Bombay (1955), the Indian Supreme Court ruled that the laws enshrined in Part III of the Indian Constitution are exempt from the Doctrine of Waiver. It was noted that basic rights are not just legally protected rights but also rest on principles contained in the preamble of the Indian Constitution that an accused person cannot reject or forsake. This approach does not apply to matters concerning constitutional policy since fundamental rights are issues of national policy that cannot be changed.

CASE DETAILS

INTRODUCTION AND BACKGROUND OF JUDGEMENT

A seminal case that delves into the nuances of alcohol consumption laws, fundamental rights, constitutional lawmaking authority, and the concept of waiver is Behram Khurshid Pesikaka v. State of Bombay. Behram Khurshid Pesikaka, the appellant, was charged with using alcohol without a permit, as required by the Bombay Prohibition Act.

The appellant’s defence—that the liquor consumed was not prohibited under the Bombay Prohibition Act and hence did not require a permit—was the central argument in the case. This prompted concerns regarding how the Act’s provisions should be interpreted and applied and whether the appellant’s acts were within its scope.

In addition, the case touched on the subject of the fundamental rights protected by the Constitution. It brought up relevant issues regarding the boundaries of governmental authority in controlling individual decisions and actions, particularly about alcohol usage. Throughout the proceedings, a major point of disagreement was how to interpret basic rights in the context of prohibition legislation.  

The consideration of the legal ramifications of ruling legislation unconstitutional was another important facet of the case. The court had to weigh the effects of legislation that violated basic rights against the procedure for finding such a statute to be unconstitutional. This feature highlighted the difficult balancing act between the intent of the legislature and constitutional protections.

FACTS OF THE CASE

Procedural Background of the Case

• 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 Magistrate 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/-[2]

Factual Background of the Case

• The appellant was the Officiating Regional Transport Officer, Bombay Region, proceeding in his jeep car on 29th May 1951 when he knocked down three persons. From the police station, he was taken to St. George’s Hospital to be examined by the doctor for alleged consumption of liquor. The doctor thought 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 and the other under section 66(b) of the Bombay Prohibition Act.
• The appellant cross-examined the doctor and suggested that he had not consumed any liquor but had taken medicinal preparation containing a small percentage of alcohol. A written statement was filed on the 13th March, 1952, giving the whole history of his case.
• The respondent, the State of Bombay, took two appeals before the High Court against each of these two cases. The ruling clearing him of the accusation under section 66(b) of the Bombay Prohibition Act was overturned by the High Court, but it upheld the acquittal of the section 338 Indian Penal Code charge. In the case of Rangarao Bala Mane v. State (1951) 54 Bom. L.R. 325), the Division Bench of the High Court upheld the following ruling: ” Once it is proved by the prosecution that a person has drunk or consumed liquor without a permit, it is for that person to show that the liquor drunk by him was not prohibited liquor, but was alcohol or liquor which he is permitted by law to take, e.g., medicated alcohol.”
• It concluded that the appellant had failed to prove the existence of circumstances from which the Court could conclude that the liquor which was consumed by the appellant was not prohibited liquor but liquor which was expected by the Bombay Prohibition Act from its operation and set aside the order of acquittal passed by the learned Presidency Magistrate in his favour convicting him of the offence and sentencing him as above.

LEGAL ISSUES RAISED

• Whether the accused has consumed liquor which falls within the enforceable prohibition enacted in section 13(b)
• Whether the burden of proof lies on the prosecution to establish that the accused committed the offence under section 66(b) of the Bombay Prohibition Act.
• On whom, does the burden of proof lie to make our that the “liquor” consumed by the appellant was or was not medicinal or toilet preparations though containing alcohol, and
• What is the nature and quantum of proof required if the burden is upon the appellant?

PETITIONER / APPELLANT’S ARGUMENTS

• The appellant contends that the effect of the case of The State of Bombay and Another v. F. N. Balsarathat section 13(b) in so far as it prohibited the consumption of medicinal preparations was an unreasonable restriction on the rights of an owner to hold and enjoy the property and was therefore void as being repugnant to Article 19(1)(f) of the Constitution. Therefore, it is best to read that section as though it had been altered to state that alcohol should only be used for toilets or medical preparation; that in that view no question of the accused having to rely on an exception arose and no question of the burden being thrown on him under section 105; and that as the offence itself consisted in consuming a liquor which was not a medicinal preparation, the burden would lie on the prosecution to establish that what was consumed was a prohibited liquor.
• The appellant’s learned counsel argues that the essence of the valid prohibition under section 13(b)now is the consumption or use of liquor other than liquor medicinal or toilet preparations containing alcohol. He consequently argues that section 13(b) ought to be interpreted appropriately. The argument was that the word “liquor” stands amended as “prohibited liquor” or that it must be understood with this limited connotation.

RESPONDENT’S ARGUMENTS

• It was urged on the other hand on behalf of the respondent that the effect of the declaration in The State of Bombay and Another v. F. N. Balsarawas to graft an exception or a proviso to section 13(b) and that the onus and the burden of proving the existence of circumstances bringing his case within the exception or proviso lay on the accused and the Court was to presume the absence of such circumstances. (Vide section 105 of the Evidence Act).
• It was further urged that the prosecution could not possibly prove that no form of liquid medicinal or toilet preparation containing alcohol was taken by the accused, that the fact of the consumption of such medicinal or toilet preparation containing alcohol was especially within the knowledge of the accused and that therefore the burden of proving such fact was upon him, and that once the prosecution had discharged the onus which lay upon it to prove that the accused had consumed liquor it would be for the accused to show that the liquor which was taken by him was a liquid medicinal or toilet preparation containing alcohol. (Vide section 106 of the Evidence Act).
• The respondent contends that the definition of liquor in section 2(24)includes not only beverages but also medicinal preparations, that the extended definition would apply to section 13(b) as well, that the immunity of medicinal preparations containing alcohol from the operation of the section because of the decision in The State of Bombay and Another v. F. N. Balsara (supra) must, in consequence, be treated as an exception to it and that the section should be read as containing a saving in favour of those preparations, like an exception or proviso, the burden of establishing which under section 105 of the Evidence Act would be on the accused. [3]

RELATED LEGAL PROVISIONS

BOMBAY PROHIBITION ACT[4]:

S.13(b): (13) “excisable article” means —

(b) an intoxicating drug 5[or hemp],

CONSTITUTION OF INDIA[5]:

Art.141: The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Art.13: Laws inconsistent with or in derogation of the fundamental rights

Art.13(1): All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the extent of such inconsistency, be void.

EVIDENCE ACT[6]:

S.105: The burden of proving the case of the accused comes within exceptions.

JUDGEMENT

RATIO DECIDENDI

• It, therefore, concluded that, after the prosecution had satisfied its burden of proof regarding the accused’s alcohol consumption, the accused would have to demonstrate that the alcohol he had taken was alcohol in the form of medicated alcohol—that is, alcohol that was not illegal. The police would be in charge of determining if the accused has ingested alcohol, which is prohibited by section 13(b).
• Even though the accused had a strong odour of alcohol and admitted to having drunk alcohol, these facts would not conclusively prove the accused’s guilt. The presence of alcohol odour may also have resulted in his having consumed medicinal or toilet preparations consisting of or containing alcohol as his having consumed valid prohibited liquor.
• Holding the accused guilty in these circumstances would be denying him the benefit of the doubt, which an accused person is always entitled to if the facts and circumstances support either his guilt or his innocence. It would also mean convicting him for the sole reason that he stank of alcohol.
• Adopting the line of reasoning that was appealed to the High Court would also amount to establishing that, should it be demonstrated that an accused individual had consumed alcohol in any way, it would be assumed that he had done so in violation of the law, and it would be his responsibility to refute this assumption by demonstrating that he had instead consumed alcohol-containing medications or toilet preparations.

OBITER DICTA

• We have heard the learned Attorney-General on the question of whether that onus has been discharged and he has frankly conceded that on the material placed before us, it cannot be urged that onus has been discharged by the prosecution.[7]

CONCLUSION & COMMENTS

This is one of the early examples in which the plausible connection between Article 13 (1) and the Pre-Constitutional Laws was explored. The case of Behram Khurshed Pesikaka vs. State of Bombay [1954] INSC 15 serves as a significant legal precedent highlighting the delicate balance between individual rights and state regulations. Through this case, the Supreme Court of India deliberated on the constitutional validity of provisions within the Bombay Prohibition Act, of 1949, concerning the sale of liquor licenses.

REFERENCES

Important Cases Referred

• The State of Bombay and Another v. F. N. Balsara([1951] S.C.R. 682)
• Rangarao Bala Mane v. State ((1951) 54 Bom. L.R. 325)

Important Statutes Referred

• BOMBAY PROHIBITION ACT
• CONSTITUTION OF INDIA
• EVIDENCE ACT

ENDNOTES

[1] Behram Khurshed Pesikaka vs The State Of Bombay on 24 September 1954 (indiankanoon.org)

[2] Behram Khurshed Pesikaka vs The State Of Bombay on 24 September 1954 (indiankanoon.org)

[3] Behram Khurshid Pesikaka vs State Of Bombay – 1954 0 Supreme(SC) 117 (supremetoday.ai)

[4] BOMBAY ACT NO. XXV OF 1949

[5] CONSTITUTION OF INDIA, 1950

[6] THE INDIAN EVIDENCE ACT, 1872

[7] evidence+act+105 | Indian Case Law | Law | CaseMine