P L D 1949 Lahore 164 (PLP)

"No. 1235‑E & T.‑In exercise of the powers conferred by sub section (4) of section 24 of the Punjab Excise Act (I of 1914) the Governor of West Punjab is pleased to prohibit, with effect from the 1st October 1948, the possession of liquor fit for human consumption in any quantity throughout West Punjab except when it is possessed by‑ (1) a licensed distiller or brewer, (2) a licensed vendor, or a permit‑holder in accordance with the terms and conditions of a license or permit (such permit to be granted by the Excise and Taxation Commissioner or any Excise Officer of the first class authorised by him) (3) a public servant in the discharge of his duties as such, or (4) a common carrier, and to provide that, subject to such conditions as may be prescribed, this prohibition shall not extend to medical preparations, flavouring essences and extracts colourings, perfumes and toilet preparations, which contain alcohol, and such sacramental wine or liquor as may be iii the possession of a duly authorised person for bona fide religious purposes". So far as it affects persons desiring to possess liquor for private consump tion, this notification renders all possession. illegal; unless it is by a permit‑holder, and complies with the‑terms and conditions of the permit, and it further lays down that such permit shall be granted by the Excise Commissioner or any Excise Officer of the first class authorised by him. The notification purports to be made in the exercise of powers given by subsection (4) of section 24 of the Excise Act, ;which runs as follows :‑ "(4) Prohibition and restriction of possession of intoxicants in certain cases :‑ Notwithstanding anything contained in the foregoing subsections, the Provincial Government may by notification prohibit the possession of any intoxicant, or restrict such possession by such conditions as it may prescribe." Reference has already been made to subsection (1) of this section which expressly refers to section 5, in relation to the fixation of the "limit of retail sale"; subsection (2) merely contains two exceptions to the application of subsection (1) ; in subsection (3), which relates to posses sion by licensed vendors, there is again an express reference to section 5. with reference to the limitation of retail sale. The mention of section 5 in subsections (1) arid (3) of section 24 contrasts with the absence of mention of this section in subsection (4) of section 24, which also is expressed to have effect "notwithstanding anything contained in the foregoing subsections". The importance of the express mention of section 5 in certain parts of section 24, followed by absence of mention of this section in subsection (4) of section 24 lies in this that in section 5, the Provincial Government is empowered to fix inter alia the limit of retail sale "as regards purchasers generally or, any specified class of purchasers" and this imports the power of discrimination between classes of subjects. The conclusion which is to be drawn as regards the vires of the different parts of section 24 seems plainly to be that under sub sections (1) and (3), discriminatory power may be exercised, but, when the Provincial Government purports to exercise the powers in sub section (4), it must do so without regard to the persons or class of persons to be affected thereby. In other words, any measure taken by the Provincial Government under subsection (4) of section 24 must impugn upon every subject and every class of subject in exactly the same way. The pith and substance of this subsection seems to be the empowering of the Provincial Government in relation to particular' intoxicants, by reason of their deleterious nature, or for any other‑ good reason, to prohibit the possession altogether, or to impose conditions upon the possession, which in view of the already existing provision as to quantity in section 5, would presumably relate to matters other than the mere quantity which may be possessed. No words importing power to discriminate between persons or classes of persons when acting under this subsection appear in the subsection itself nor can any such power be construed to be implicit in the subsection by reference to any other part of the Act. Further analysis of subsection (4) of section 24 will show that ii gives powers to the Provincial Government to 'do one of two things, viz., it may "prohibit the possession of any intoxicant" or it may "restrict such possession by such conditions as it may prescribe" and by "such possession" the "possession of any intoxicant" is obviously meant. The powers are perfectly distinct in themselves ; there is either to be prohibition in respect of "any intoxicant" or there is to be restriction of possession, of "any intoxicant" under conditions which must be laid down by the Provincial Government, and as already seen whichever steps may be taken by the Provincial Government, they must apply to every subject and every class of subject equally, and without distinction such as that of colour or race or religion. To prohibit in relation to a certain class o persons, and to restrict by the same order in relation to another class, would in my judgment be a misuse of the powers conferred by sub section (4) of section

24. Another provision in this subsection which requires to be noted with care is, that it empowers the Provincial Government, when exercis ing its powers to restrict possession under conditions to do so itself ; this follows from the use of the words "such conditions as it may pres cribe". At the same time, by section 13 the Legislature has empowered the Provincial Government by notification to delegate to the Financial Commissioner or Commissioner all or any of its powers in certain sections including section

24. In the present case, it is clear from the notification cited above, that the conditions of the permit were not laid down therein ; the notification only says that the permit may be granted by the Excise Commissioner or any Excise Officer of the first class authorised by him. The permit in P. R. II contains a large number of conditions of a restrictive nature. The super‑subscription provides for a declaration of religion, i.e., whether Muslim or non‑Muslim, as well as for stating the quantity of liquor permitted and the period of validity of the permit. The permit then goes on to say that the applicant has shown good reasons to the issuing authority for grant of a permit and is, therefore, permitted to possess foreign liquor subject to a number of conditions. The first is that the possession is for the personal consumption and of bottled foreign liquor only, and that besides possession by the permit‑holder in his own premises, it covers possession for consumption in clubs, messes, etc., but not possession for consumption in "a public place" or in a residential house or building kept by a Muslim. The permit may be for acquisition of a maximum quantity not exceeding six units in a month, and the meaning of the expression "unit" is defined in terms of quantities of spirits, wines and beer, and it is further added that the permit holder may possess the quota of the current month together with that left over from the preceding month, the latter not to exceed six units. Liquor possessed under the permit should be obtained from a licensed vendor in the Province, and the permit holder is barred from transferring any liquor in his possession to any Muslim, whether with or without consideration, and is also pro hibited from entertaining or serving any Muslim with liquor. Other conditions are payment of the prescribed permit fee, liability to produce the permit on demand by certain Excise Officers, and liability to cancella tion of the permit, whether with or without reasons being given. The question has been raised as to the authority by whom these conditions have been prescribed. Ordinarily, the word "prescribed" under a statute means prescribed by rules made under that statute. Under the Excise Act, however, the expression "prescribed" is used indifferently to cover specification by rule or by notification. Section 58 gives power to the Provincial Government to make rules, and in sub section (2) power is given by such rules to prescribe in respect of a number of matters. But in section 56 power is given to the Provincial Government by notification to exclude any intoxicant from all or any of the provisions of the Act "subject to such conditions as it may think fit to prescribe." The conclusion would appear to be that any prescrip tion under subsection (4) of section 24 by the Provincial Government must be by either notification or by rules and as appears from section 56 the rules also must be notified it is open to the Provincial Government to delegate its functions under this subsection to the Financial Commissioner i. e. the Provincial Government could have left it to the Financial Commissioner to prescribe the conditions under which possession of any intoxicant was to be held, assuming that the Provincial Government chose to exercise its power to restrict possession rather than to prohibit possession. Power is given to the Financial Com missioner by section 34 to lay down the restriction and conditions as well as the form of permit granted under the Act, and reference to section 59, clause (f) will show that the Financial Commissioner may make rules, which requires to be notified, "prescribing the authority by the restrictions under and the conditions on which, any permit may be granted". It is arguable of course that the expression "permit" in these two sections can have reference only to the "permits" mentioned in sub sections (1) and (2) of section 24 of the Act, which are to be issued by the Collector, these being the only specific permits mentioned in the Act itself and that the permit provided for by notification of the 15th September 1948, is to be regarded as falling in a class by itself and merely as an instrument whereby the Provincial Government exercises its powers under subsection (4) of section

24. Assuming, however, for the moment that a 'permit in Form P. R. II is also covered by sections 34 and 59 of the Excise Act, it becomes plain that its conditions could have tic validity unless it was first published in the form of a notification, and it is admitted before me that this has not been done. It does not appear that the Excise Commissioner as such is empowered by the Act either to prescribe the restriction and conditions of permits, or to issue notifi cations of any kind. So far as is provided by powers given under the Act, it seems to me quite clear that a permit in Form P. R. II, embodying as it does a number of restrictive conditions could only have been issued, validity under section 24, subsection 4, Excise Act, either by the Provincial Government itself or by a Financial Commissioner and in each case, Provincial Government or the Financial Commissioner would have to act by the method of notification. The wording of the notification of the 15th September 1948 which does not itself prescribe the conditions of the permit which it rendered necessary, but at the same time, directed that such permits should be granted by the Excise Commissioner or any Excise Officer of the first class authorised by him, might of course be construed as an act whereby the power of the Provincial Government to prescribe the conditions of the permit was delegated to the Excise Commissioner or specified Excise Officer. If such was the intention the delegation is in contravention of the provisions of the Act, which as seen above in section 13, allows the Provincial Government to delegate its powers either to the Financial Commissioner or to the Commissioner and to no other authority. The expression "Commissioner" is defined in section 3 as the "chief officer in charge of the revenue administration of a division" and is clearly differen tiated from the expression "Excise Commissioner" which means "the offi cer appointed by the Provincial Government under section 9" of the Act. By section 9 of the Act the Provincial Government is empowered to appoint an Excise Commissioner and to invest him with all or any of the powers :conferred by the Act upon the Financial Commissioner subject to such conditions and instructions as the Provincial Government may deem fit. It does not appear that the present Excise Commissioner has been invested with any of the powers of the Financial Commissioner under the Act. When questioned on the point, the learned Advocate‑General explained that his predecessor Mr. M. R. Suchdeva, when he was appointed Excise and Taxation Commissioner, was invested by notification with all the powers of the Financial Commissioner uncle the Excise Act and it was argued that this notification had the effect of investing Agha Muhammad Yusaf Khan the present Exise Commissioner, with these powers. I have seen the notification relating to Mr. Suchdeva, which is No. 7131‑Fx., dated the f5th December 1945 and find that the investment of powers was in respect of Mr. M. R. Suchdeva by name, and cannot be deemed to confer the same powers on his suc cessor. The notification by which Agha Muhammad Yusaf Khan's appointment as Exise and Taxation Commissioner was published in the Gazette has not been produced. Even, however, had Agha Muhammad Yusaf Khan been invested with the powers of a Financial Com missioner, if the fact be that the conditions in Form P R. II have been prescribed by him, that would not be valid in the absence of notification. But it is also clear that conferment by the Provincial Government upon the Excise Commissioner of any of its own powers under the Act is not countenanced by the Act, at all, and further section 13 only enables the Provincial Government to confer upon the Excise Commissioner the powers given to a Financial Commissioner by the Act itself, and not any powers which the Provincial Government is permitted by section 13 to delegate to Financial Commissioner. There is some obscurity as to the precise authority which issued the Form P. R.

11. The form itself does not show by what authority it has been introduced. When I questioned the learned Advocate‑General on this point, he admitted that the form had never been public shed by notification, but stated that it had been drafted in the office of the Financial Commissioner and had received the approval of the Provincial Cabinet (i.e. the Provincial Government) before it was issued. This is not a sufficient answer to the objections raised regarding the validity of its form as an instrument by which conditions have been imposed under subsection (4) of section 24 of the Excise Act. There are a great many matters in which action is taken ostensibly by a subordinate authority of the Government which has already been approved in advance by the Government itself, but the vires of such action must in all such cases be judged in relation to the powers of the authority by which the action purports to be taken. It appears that Form P. R. II cannot be described as an act of the Provincial Government or of the Financial Commissioner, for in each of these two cases it would require for its validity to be duly notified ; it appears that the Excise Commissioner is not willing to accept the respon sibility for the issue of this form, and it is clear that if he issued it, it was clearly beyond his powers to do so; at best it can be said to be a form issued by the Excise Department, but the department as such has no specified statutory powers in this behalf at all. Some remarks may also be made regarding the discriminatory nature of the action taken under the notification of the 15th September 1948 and for this purpose it is necessary to refer also to Form P. R. I. which is prescribed for applications for the grant of a permit. Among the blanks in Form P. R. I one is for declaration of religion i.e., whether a Muslim or a non‑Muslim, and there is a note which runs as follows :‑ "For a permit for possession of liquor by a Muslim under medical orders, a Civil Surgeon's certificate specifying the quantity of liquor should be added". Also in the heading of this form, it is made to appear clearly that the application is for permits either for personal consumption by non-M uslims, or for the possession of foreign liquor by Muslims under medical orders, Muslims who are not required to take liquor under orders of their medical attendants would appear debarred from possessing liquor. Moreover, a further obstruction is placed in the was of Muslims who wish to possess foreign liquor even under medical orders, in that they must produce a certificate from a Civil Surgeon, and there ire as is well known, only as mans Civil Surgeons. in this Province as there are districts, i.e.

16. When this is taken in conjunction with the strict conditions in Form P. R. II that liquor may not be possessed under the permit "in a residential house or building occupied by a Muslim" and that a permit‑holder may not transfer or give any liquor to a Muslim, it becomes obvious that, in its operation the action taken by the Provin cial Government under subsection (4) of section 24 was such as made it impossible for all Muslims, except those falling in a very limited class, to possess, or even to partake of liquor. The argument that the permit and the application form emanated from the Excise Department would be of no avail to avoid the implication that such was the intention of the Government in issuing the notification of the 15th September 1948 since it has been stated on behalf of the Provincial Government that the permit form was actually considered and approved by the Provincial Government before it was put into operation. I have already stated that, as a result of applying the known principles of construction to the terms of subsection (4) of section 24, Excise Act, I am clearly of the view that it does not empower the Provincial Government to impose restrictions upon possession of any intoxicants which are of a nature causing discrimination between person and person, or one class of persons and another class of persons, and it would, therefore, appear that the action taken by the Provincial Government by means of its notification of the 15th September 1948, as subsequently put into operation, is directly in contravention of the statutory powers. The second argument raised on behalf of the petitioner is that this discriminatory effect is also in contravention of the provisions of sub section (1) of section 298, Government of India Act. That subsection provides that "no subject of His Majesty domiciled in Pakistan shall on grounds only of religion be prohibited from acquiring, holding, property", and it was strongly contended that since liquor was an article of property, any law which prohibited a Muslim, only because he was a Muslim, from possessing liquor, was without force, by reason of such provisions. To this the reply was made that the notification in question and the consequential action taken by the Provincial Govern ment fell under clause (b) of subsection (2) of the same section as constituting recognition of the existence of a disability attaching to Muslims by virtue of the personal law. The learned Advocate General referred me to paragraph 24 in Mulla's Principles of Muhammadan Law, where the sources of Muhammadan Law are specified as being the Holy Quran, Hadith, Ijmaa and Qiyas. He cited verses from the Holy Quran as well as an extract from Mujtabai Tirmazi (a compilation of Hadith) and another compilation of Hadith by Ibn‑i‑Maja, where the dictates of God and the Holy Prophet regarding intoxicants are set out. It was argued by the learned Advocate General that intoxicants have been described as a thing "of which the sin is greater than the profit", as "uncleanliness" and "Devil's work" which should he shunned if the faithful desire to be successful, and as something from which the faithful shoul4 desist since it is used by the Devil to cause enmity and hatred to spring among the people and keep them from the remembrance of Allah and from prayer. This is in verse 290 of Chapter 2 and verses 90 and 91 in Chapter 5 of the Holy Quran. According to the Hadith, Ans, the companion of the Holy Prophet, declared that the Holy Prophet had said that the curse of God descends upon ten kinds of persons concerned with liquor, namely, the makers, he for whom it is made, he who drinks he who carries it, he for whom it is carried, lie who offers it for drink, he who sells it, he who profits by its sale, he who purchases it and lie for whom it is purchased. It was urged that in the face of the cleat language contained in these authoritative sources of Muhammadan La\z there can be no doubt that upon Muslims, their personal law place disability in regard to possession and consumption of liquor, and the effect of the action taken by the Provincial Government was merely to. impose and enforce this disability by statute. It was also urged that since the permits themselves provide for Muslims who are equipped with medical certificates from Civil Surgeons to he granted permits, it cannot be said that by the legal action taken, all Muslim were prevented from holding or consuming liquor by reason .of their religion alone. The reply to the last argument by the learned counsel for the petitioner was the mere exclusion of a very small class from among the Muslims who form the bulk of the population could not operate to save the discriminatory character of the action taken by the Government under forms of law. As to the argument based upon enforcement of the personal law, it was contended that the injunctions taken from the Holy books when read in their true meaning could not be regarded a prohibition under pains and penalties, but merely as moral precepts of a directory nature, such as all religions provide against the common sense, e, g., lying in order to strengthen mankind against temptation. At the same time, it was urged that the expression "personal law" occurring in clause (b) of subsection 2 of section 298, Government of India Act, could not be interpreted to include every duty laid upon the follower of a particular religion by the precepts of that religion, but only such of those duties as have received recognition under the law as enforced by the State. Reference was made to section 5 of the Punjab Law Act which lays down that in a number of matters such as succession, the special property of females, matrimonial relations, guardianship of minors and their property, legitimacy, gifts, partitions, testamentary dispositions and in regard to any religious usage or institution, where no custom is shown to apply, the Muhammadan Law shall apply where the parties are Mohammadans and Hindu Law where the parties are Hindus, except where such law has been altered or abolished by a statute. It was argued that the list of matters contained in section 5 under which the rule of personal law was declared to be enforceable by the Courts, should be regarded as exhaustive, and nothing contained in Muhammadan Law which cannot be related to one or other of these matters can fall within the meaning of the expression "personal law" The point which has been raised by the learned counsel for the petitioner is certainly a substantial one, and by reason of the rep]., raised by the learned Advocate‑General, its resolution has been rendered a matter of no small difficulty. If the decision of the case rested oil this point alone, I should have felt bound to refer the matter to larger Bench so that this very difficult question might be authoritatively decided. But as has been seen already, the action taken by the; Provincial Government namely, issue of the notification, and the imposition of permits thereunder is clearly beyond the powers conferred by the Provincial Statute, namely the Punjab Excise Act, and consequently is invalid in law. A final argument was raised by the learned Advocate‑General that even if, in the view of the petitioner, the provisions relating to the conditions applicable to possession were void and of no effect, he should have felt himself bound by the injunction of the Provincial Government contained in the notification prohibiting the possession of liquor, on the ground that this was covered by the power given under sub section (4) of section 24 to "prohibit possession of any intoxicant" Now it is entirely unfair to require the subject to make himself the judge of the validity of a statute and to decide what part of it is valid and what invalid. In a case like the present, the validity or otherwise of the legal restrictions are to be judged as a whole and if they are not valid then disobedience of those provisions attracts no penalty since it is no offence. As I have already remarked, subsection (4) of section 24 does not permit the Provincial Government to confuse prohibition with restriction and the argument of the learned Advocate‑General appears also to be unsustainable on this account. For these reasons, I am of opinion, that in having in his possession two bottles of beer at the time when he was arrested, the petitioner was guilty of no offence in law and I accordingly accept the petition and direct that he be set at liberty. A.H. Petition accepted.