One day, Behram Khurshed Pesikaka, a middle-aged government servant, left home after dinner for a drive to escape the oppressive summer heat. As he returned to his home at 9:30 p.m., some people emerged from behind a stationary vehicle and suddenly stepped out on the path of his jeep. Although he braked, he was unable to avoid them, and his jeep knocked down three of them. A police constable on the scene reported that Pesikaka’s breath smelled of alcohol. Pesikaka was accordingly charged under the Indian Penal Code for rash and negligent driving, as well as under the Maharashtra Prohibition Act, a state law. Section 279 of the Indian Penal Code defines the offence of rash and negligent driving as: “Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment”. The Maharashtra Prohibition Act prohibits “the import, export, transport, manufacture, sale, purchase, possession, use, or consumption of any intoxicant, except in accordance with the terms and conditions of a license granted under the Act.”
During the trial the neighbourhood watchman, an independent witness, testified that Pesikaka was driving at an ordinary speed and exercising adequate care. Furthermore, the medical evidence confirmed that even though Pesikaka had smelled of alcohol, his pupils reacted to light, his speech was coherent, he was well behaved, and he could walk in a straight line. The police doctor testified that Pesikaka had not been acting under the influence of alcohol. Pesikaka attributed the smell of alcohol to BG Phos, a health tonic with 17% alcohol content. He also argued that while he did not have the necessary license, the Maharashtra Prohibition Act did not extend to the consumption of BG Phos, because of Article 19 of the Constitution. Article 19 provides that the powers of the state legislature do not extend to the legitimate use of medicinal preparations and non-alcoholic beverages. The Constitution prevails over all other laws in the country.
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