riminal Appeals Nos
20 to 23 of 1955
Appeals by special leave from the judgment and order dated May 7 1954 of the Madras High Court in Criminal Revision Cases Nos 57 to 60 of 1954 and Case Referred Nos
2 to 5 of 1954
N C Chatterji section Venkatakrishnan and section Subramanian for the appellants
V K T Chari Advocate General Madras Ganapathy Iyer and T M Sen for the respondent
November 28
The Judgment of the Court was delivered by VENKATARAMA AYYAR J
The point for decision in these appeals is whether sections 42 28 29 30 31 and 32 of the Madras Prohibition Act No X of 1937 hereinafter referred to as the Act are unconstitutional and void
It will be convenient first to set out the impugned statutory provisions
Section 4 omitting what is not material runs as follows 401 41  Whoever a imports exports transports or possesses liquor or any intoxicating drug or g uses keeps or has in his possession any materials still utensil implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug or j consumes or buys liquor or any intoxicating drug  or k allows any of the acts aforesaid upon premises in his immediate possession shall be punished Provided that nothing contained in this sub section shall apply to any act done under and in accordance with the provisions of this Act or the terms of any rule notification order licence or permit issued thereunder
2 It shall be presumed until the contrary is shown a that a person accused of any offence under clauses a to j of sub section 1 has committed such offence in respect of any liquor or intoxicating drug or any still utensil implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug for the possession of which he is unable to account satisfactorily  and b that a person accused of any offence under clause k of sub section 1 has committed such offence if an offence is proved to have been committed in premises in his immediate possession in respect of any liquor or intoxicating drug or any still utensil implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug
402 Section 28 provides that if any Collector Prohibition Officer or Magistrate has reason to believe that an offence under section 41 has been committed he may issue a warrant for search
Section 29 confers on certain officers power to search and seize articles even without a warrant under certain circumstances
Section 30 provides for certain classes of officers entering any place by day or night for inspection of stills implements liquor and the like
Section 31 authorises the officers empowered to make entry under sections 28 29 or 30 to break open any door or window and remove obstacles if otherwise they could not make entry
Section 32 confers authority on a Prohibition Officer or any officer of the Police or Land Revenue Departments to arrest without warrant any person found committing any offence under section 41
Now the facts are that on November 18 1953 the Prohibition Officer Madras City and the Deputy Commissioner of Police made a search of premises No 28 Thanikachala Chetty Street Thyagarayanagar Madras and seized several bottles of foreign liquor and glasses containing whisky and soda
The appellant Lakshmanan Chettiar was residing at the premises and the other three appellants A section Krishna R Venkataraman and V section Krishnaswamy were found drinking from the glass tumblers
All the four were immediately put under arrest and in due course charge sheets were laid against them for offences under the Act
The three appellants other than Lakshmanan Chettiar were charged under sections 4 1 a and 4 1 j for possession and consumption of liquor and Lakshmanan Chettiar was charged under section 4 1 k for allowing the above acts in premises in his immediate possession a under section 12 for abetment of the offences
He was also charged under section 4 1 a on the allegation that though he was a permit holder he was in possession of more units than were allowed under the permit and that by reason of the proviso to that section he had committed an offence under section 4 1 a
Immediately after service of summons the appellants filed an application unders
432 of the Criminal Procedure Code wherein they contended that sections 42 and 28 to 32 of the Act were 403 repugnant to the provisions of the Constitution and were therefore void and prayed that the above question might be referred for the decision of the High Court
The Third Presidency Magistrate before whom the proceedings were pending allowed the application and referred to the High Court as many as seven questions on the constitutionality of various sections of the Act
This reference was heard by Rajamannar CJ and Umamaheswaram J who held disagreeing with the appellants that sections 42 and 28 to 32 were valid and answered the reference against them
Against this judgment the appellants have preferred the present appeals under article 136 of the Constitution
Two contentions have been urged in support of the appeals 1 Section 42 and sa
28 to 32 of the Act are void under section 107 of the Government of India Act 1935 which was the Constitution Act in force when the Act in question was passed because they are repugnant to the provisions of existing Indian laws with respect to the same matter to wit I of 1872 and Criminal Procedure Code Act No V of 1898 and 2 the impugned sections are repugnant to article 14 of the Constitution and have therefore become void under article 131
1 Taking the first contention the point for  decision is whether the impugned provisions are hit by section 107 of the Government of India Act 1935
Subsection 1 of section 107 which is the relevant provision runs as follows If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal legislature is competent to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List then subject to the provisions of this section the Federal law whether passed before or after the Provincial law or as the case may be the existing Indian law shall prevail and the Provincial law shall to the extent of the repugnancy be void
 For this section to apply two conditions must be fulfilled 1 The provisions of the Provincial law and those of the Central legislation must both be in respect 404 of a matter which is enumerated  in the Concurrent List and 2 they must be repugnant to each other
It is only when both these requirements are satisfied that the provincial law will to the extent of the repugnancy become void
The first question therefore that has to be decided is is the subject matter of the impugned legislation one that falls within the Provincial List in which case section 107 would be inapplicable or is it one which falls within the Concurrent List in which case the further question whether it is repugnant to the Central legislation will have to be decided  The Entries in the Lists which are material for the present discussion are the following List II Provincial Legislative List
Jurisdiction and powers of all courts except the Federal Court with respect to any of the matters in this list procedure in Rent and Revenue Courts
Intoxicating liquors and narcotic drugs that is to say the production manufacture possession transport purchase and sale of intoxicating liquors opium and other narcotic drugs but subject as respects opium to the provisions of List I and as respects poisons and dangerous drugs to the provisions of List 111
Offences against laws with respect of any of the matters in this list
List III Concurrent Legislative List
Criminal Procedure including all matters included in the Code of Criminal Procedure at the date of the passing of this Act
Evidence and oaths recognition of laws public acts and records and judicial proceedings
Now it is not contested that the Madras Prohibition Act as a whole is a law in respect of intoxicating liquors falling within Entry 31 of the Provincial list
The declared object of the enactment as stated in the preamble to it is to bring about the prohibition of the production manufacture possession export import transport purchase sale and assumption of 405 intoxicating liquors 
And this is carried out in section 41 which enacts prohibition in respect of the above matters and imposes penalties for breach of the same
The other provisions of the Act may broadly be divided into those which are intended to effectuate section 41 and those which regulate the grant of licences and permits
The legislation is thus on a topic which is reserved to the Provinces and would therefore fall outside a 1071 of the Constitution Act
The argument of Mr N C Chatterjee for the appellant is that though the Act is within the competence of the Provincial Legislature in so far as it prohibits possession sale consumption etc of liquor under 3
41 the matters dealt with under section 42 and sections 28 to 32 fall not within Entry 31 of List II but within Entries 5 and 2 respectively of List III and to that extent the legislation is on matters enumerated in the Concurrent List
He contends that a 42 enacting as it does a presumption to be drawn by the court on certain facts being established deals with what is purely a matter of evidence and it is therefore not a law on intoxicating liquors but evidence
Likewise he argues the provisions in sections 28 to 32 deal with matters pertaining to Criminal Procedure such as warrants seizure and arrest and have no connection with intoxicating liquors
It is accordingly contended that sections 42 and 28 to 32 are legislation under Entries 5 and 2 of List III and that their validity must be tested under section 1071
The appellants are right in their contention that section 42 of the Act enacts a rule of evidence but does it follow from this that it is a law on evidence such as is contemplated by Entry 5 in the Concurrent List  so also sections 28 to 32 undoubtedly deal with matters of Procedure in relation to crimes but are they for that reason to be regarded as legislation on Criminal Procedure Code within Entry 2 of List III  The basic assumption on which the argument of the appellants rests is that the heads of legislation set out in the several Lists are so precisely drawn as to be mutually exclusive
But then it must be remembered that we are construing a federal Constitution It is of the 406 essence of such a Constitution that there should be a distribution of the legislative powers of the Federation between the Centre and the Provinces
The scheme Of distribution has varied with different Constitutions but even when the Constitution enumerates elaborately the topics on which the Centre and the States could legislate some overlapping of the fields of legislation is inevitable
The British North America Act 1867 which established a federal Constitution for Canada enumerated in sections 91 and 92 the topic  on which the Dominion and the Provinces could respectively legislate
Notwithstanding that the lists were framed so as to be fairly full and comprehensive it was not long before it was found that the topics enumerated in the two sections overlapped and the Privy Council had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures
It was in this situation that the Privy Council evolved the doctrine that for deciding whether an impugned legislation was intra vires regard must be had to its pith and substance
That is to say if a statute is found in substance to relate to a topic with
in the competence of the legislature it should be held to be intra vires even though it might incidentally trench on topics not within its legislative competence The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable that is whether in the guise of making a law on a matter within it competence the legislature is in truth making a law on a subject beyond its competence
But where that is not the position then the fact of encroachmen does not affect the vires of the law even as regards the area of encroachment
Vide Citizens Insurance Company of Canada vs William Parson81 The Attorney General of Ontario vs The Attorney General for the Dominion of Canada1 The Attorney General of Ontari vs The Attorney General for the Dominion3  Union Colliery Company of British Columbia vs Bryden4 Attorney General for  Canada vs Attorney General for 1 1881 7 A C 96
3 2 4 407 Ontario Attorney General for Alberta vs AttorneyGeneral for Canada2  and Board of Trustees of Letherbridge Northern Irrigation District vs Independent Order of Foresters1
The principles laid down in the above decisions have been applied in deciding questions as to the vires of statutes passed by the Indian legislatures under the Government of India Act 1935
In Subrahmanyan Chettiar vs Muttuswami Goundan4 the question was as to whether the Madras Agriculturalist  Relief Act IV of 1938 which was within the exclusive competence of the Provincial Legislature under Entries 20 and 21 in List 11 was ultra vires in so far as it related to promissory notes executed by agriculturists by reason of the fact that under Entry 28 List I cheques bills of exchange promissory notes and other like instruments  were matters falling within the exclusive jurisdiction of the Centre
In holding that the legislation was intra vires Sir Maurice Gwyer C J stated the reason in these terms  It must inevitably happen from time to time that legislation though purporting to deal with a subject in one list touches also on a subject in another list and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere
Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its  pith and substance  or its true nature and character  for the purpose of determining whether it is legislation in respect of matters in this list or in that   This point arose directly for decision before the Privy Council in Prafulla Kumar Mukherjee vs The Bank of Commerce Ltd 5
There the question was whether the Bengal Money Lenders Act 1940 which 1 4 2 5 1946 47 74 IA 23
3 53 408 limited the amount recoverable by a money lender for principal and interest on his loans was valid in so far as it related to promissory notes
Money lending is within the exclusive competence of the Provincial Legislature under Item 27 of List II but promissory note is a topic reserved for the Centre vide List 1 Item 28
It was held by the Privy Council that the pith and substance of the impugned legislation being money lending it was valid notwithstanding that it incidentally encroached on a field of legislation reserved for the Centre under Entry 28
After quoting with approval the observations of Sir Maurice Gwyer CJ in Subrahmanyan Chettiar vs Muttuswami Goundan supra above quoted Lord Porter observed Their Lordships agree that this passage correctly describes the grounds on which the rule is founded and that it applies to Indian as well as to Dominion legislation No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars and the existence of the Concurrent List has made it easier to distinguish between those matters which are essential in determining to which list particular provision should be attributed and those which are merely incidental
But the overlapping of subjectmatter is not avoided by substituting three lists for two or even by arranging for a hierarchy of jurisdictions
Subjects must still overlap and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found
If these questions could not be asked much beneficent legislation would be stifled at birth and many of the subjects entrusted to Provincial legislation could never effectively be dealt with
 Then dealing with the question of the extent of the invasion by the Provincial legislation into the Federal fields Lord Porter observed No doubt it is an important matter not as their Lordships think because the validity of an Act can be determined by discriminating between degrees of invasion but for the purpose of determining what is the 409 pith and substance of the impugned Act
Its provisions may advance so far into Federal territory as to show that its true nature is not concerned with ProVincial matters but the question is not has it trespassed more or less but is the trespass whatever it be such as to show that the pith and substance of the impugned Act is not money lending but promissory notes or banking Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content
 Then there is the decision of the Federal Court in Lakhi Narayan Das vs The Province of Bihar 1
There the question related to the validity of Ordinance No IV of 1949 promulgated by the Governor of Bihar
It was attacked on the ground that as a legislation in terms of the Ordinance would have been void under section 1071 of the Government of India Act the Ordinance itself was void
The object of the Ordinance was the maintenance of public order and under Entry I of List II that is a topic within the exclusive competence of the Province
Then the Ordinance provided for preventive detention imposition of collective fines control of processions and public meetings and there were special provisions for arrest and trial for offences under the Act
The contention was that though the sections of the Ordinance relating to maintenance of public order might be covered by Entry I in List II the sections constituting the offences and providing for search and trial fell within Items I and 2 of the Concurrent List and they were void as being repugnant to the provisions of the Criminal Procedure Code
In rejecting this contention Mukherjea J observed  Thus all the provisions of the Ordinance relate to or are concerned primarily with the maintenance of public order in the Province of Bihar and provide for preventive detention and similar other measures in connection with the same
It is true that violation of the provisions of the Ordinance or of orders passed under it have been made criminal offences but offences against laws with respect to matters specified in List 11 1 410 would come within Item 37 of List II itself and have been expressly excluded from Item I of the Concurrent List
The ancillary matters laying down the procedure for trial of such offences and the conferring of jurisdiction on certain courts for that purpose would be covered completely by Item 2 of List II and it is not necessary for the Provincial Legislature to invoke the powers under Item 2 of the Concurrent List He accordingly held that the entire legislation fell within Entries I and 2 of List II and that no question of repugnancy under section 1071 arose
This reasoning furnishes a complete answer to the contention of the appellants
The position then might thus be summed up When a law is impugned on the ground
that it is ultra vires the powers of the legislature which enacted it what has to be ascertained is the true character of the legislation
To do that one must have regard to the enactment as a whole to its objects and to the scope and effect of its provisions
If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be valid in its entirety even though it might inci dentally trench on matters which are beyond its competence
It would be quite an erroneous approach to the question to view such a statute not as an organic whole but as a mere collection of sections then disintegrate it into parts examine under what heads of legislation those parts would severally fall and by that process determine what portions thereof are intra vires and what are not
Now the Madras Prohibition Act is as already stated both in form and in substance a law relating to intoxicating liquors
The presumptions in section 42 are not presumptions which are to be raised in the trial of all criminal cases as are those enacted in the Evidence Act
They are to be raised only in the trial of offences under section 41 of the Act
They are therefore purely ancillary to the exercise of the legis lative power in respect of Entry 31 in List 11
So also the provisions relating to search seizure and arrest in sections 28 to 32 are only with reference to offences 411 committed or suspected to have been committed under the Act
They have no Operation generally or to offences which fall outside the Act
Neither the presumptions in section 42 nor the provisions contained in sections 28 to 32 have any operation apart from offences created by the Act and must in our opinion be held to be wholly ancillary to the legislation under Entry 31 in List II
The Madras Prohibition Act is thus in its entirety a law within the exclusive competence of the Provincial Legislature and the question of repugnancy under section 1071 does not arise
2 It is next contended that the presumptions raised in section 42 of the Act are repugnant to article 14 of the Constitution and that the section must accordingly be declared to have become void under article 131
We are unable to see how section 42 offends the requirement as to equality before law or the equal protection of laws
The presumptions enacted therein have to be raised against all persons against whom the facts mentioned therein are established
The argument of Mr N C Chatterjee is that the facts set out in section 42 on which the presumption of guilt is raised have no reasonable relation to the offences themselves that for example possession of liquor can be no evidence of possession of materials or apparatus for manufacture of liquor under section 41g nor possession of materials apparatus for manufacture of liquor evidence of possession or consumption of liquor under section 41 a and j and that therefore the impugned provision must be struck down as denying equal protection
He relied in support of this contention on the following observations of Holmes J in William N McFarland vs American Sugar Refining Company 1  As to the presumptions of course the legislatures may go a good way in raising one or in changing the burden of proof but there are limits
It is essential that there shall be some rational connection between the fact proved and the ultimate fact presumed and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate
Mobile J  KCR Co vs Turnipseed2 1  at 86 87    904
2   43   80
412 The law on this subject is thus stated by Rottschaefer on Constitutional Law 1939 Edition at page 835  The power of a legislature to prescribe rules of evidence is universally recognised but it is equally well established that due process limits it in this matter
It may establish rebuttable presumptions only if there is a rational connection between what is proved and what is permitted to be inferred therefrom
 The law would thus appear to be based on the due process clause and it is extremely doubtful whether it can have application under our Constitution
But a reference to American authorities clearly shows that the presumptions of the kind enacted in section 4 2 have been upheld as reasonable and not hit by the due process or equal protection clause
In Albert J Adams vs People of the State of New York 1 a law of New York had made it an offence to be knowingly in possession of gambling instruments and enacted further that possession of such instruments was presumptive evidence of knowledge
It is thus in terms similar to section 41a of the Act which makes it an offence to be in possession of liquor and to section 42 which raises a rebuttable presumption of guilt under section 41a
In rejecting the contention that the presumption was a violation of the due process clause the Court observed  We fail to perceive any force in this argument
The policy slips are property of an unusual character and not likely particularly in large quantities to be found in the possession of innocent parties
Like other gambling paraphernalia their possession indicates their use or intended use and may well raise some inference against their possessor in the absence of explanation
Such is the effect of this statute
Innocent persons would have no trouble in explaining the possession of these tickets and in any event the possession is only prima facie evidence and the party is permitted to produce such testimony as will show the truth concerning the possession of the slips
Furthermore it is within the established power of the state to prescribe the evidence which is to be received in the courts of its own government 1   413 In Robert Hawes vs State of Georgia 1 the question arose with reference to a statute of the State of Georgia which had made it an offence to knowingly permit persons to locate in premises apparatus for distilling and manufacturing prohibited liquors
It also enacted a presumption that when such apparatus was found in a place the person in occupation thereof shall be presumed to have knowingly permitted the location of the apparatus
The question was whether this presumption was repugnant to the due process clause
In holding that it was not the Court observed  Distilling spirits is not an ordinary incident of a farm and in a prohibition state has illicit character and purpose and certainly is not so silent and obscure in use that one who rented a farm upon which it was or had been conducted would probably be ignorant of it
On the contrary it may be presumed that one on such a farm or one who occupies it will know what there is upon it
It is not arbitrary for the state to act upon the presumption and erect it into evidence of knowledge
not peremptory of course but subject to explanation and affording the means of explanation
 It is therefore clear that even on the application of the due process clause the presumptions laid down in section 42 cannot be struck down as unconstitutional
We should add that the construction which the appellants seek to put on section 4 2 that a person in possession of liquor could under that section be presumed to have committed an offence under section 41 g or that a person who is in possession of materials implement or apparatus could be presumed to have committed offences under section 4 1 a and j is not correct
In our opinion the matters mentioned in section 4 2 should be read distributively in relation to the offences mentioned in section 41
Possession of liquor for example is an offence under section 41 a
The presumption in section 42 is that if it is found in the possession of a person he should be presumed to have committed the offence under section 41a unless he could give satisfactory explanation therefor as for example that it must have been foisted in the place without his knowledge
Likewise it would be an 1   414 offence under section 41g to be in possession of materials still implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor
Under section 42a if a person is found to be in possession of materials or other things mentioned in the sub section there is a presumption that he has committed an offence under section 41g but it is open to him to account satisfactorily therefor
The contention therefore that there is no reasonable relation between the presumption and the offence is in our opinion based on a misreading of the section
Both the contentions urged on behalf of the appellants having failed these appeals are dismissed
Appeals dismissed


Summary:
The appellants were charged before the Presidency Magistrate for offences under the Madras Prohibition Act 1937 and when the cases were taken up for trial they raised the contentions that SS
42 and 28 to 32 of the Act are void under section 107I of the Government of India Act 1935 because they are repugnant to the provisions of the  and the Code of Criminal Procedure 1898 and also because they are repugnant to article 14 Of the Constitution of India
On their application the Magistrate referred the questions for the opinion of the High Court under section 432  of the Code of Criminal Procedure
The High Court having answered the questions against the appellants they preferred the present appeal under article 136
Held that the Madras Prohibition Act 1937 is both in form and in substance a law relating to intoxicating liquors and that the presumptions in section 42 and the provisions relating to search seizure and arrest in SS 28 to 32 of the Act have no operation apart from offences created by the Act and are wholly ancillary to the exercise of the legislative power under Entry 31 in List II Sch 7 of the Government of India Act 1935
Accordingly the Act is in its entirety a law within the exclusive competence of the Provincial Legislature and the question of repugnancy under section 1071 of the Government of India Act 1935 does not arise
When a law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it what has to be ascertained is the true character of the legislation
To do that one must have regard to the enactment as a whole to its objects and to the scope and effect of its provisions
If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be valid in its entirety even though it might incidentally trench on matters which are beyond its competence
It would be quite an erroneous approach to the question to view such a statute not as an organic whole but as a mere collection of sections then disintegrate it into parts examine under what heads of legislation those parts 52 400 would severally fall and by that process determine what portions thereof are intra vires and what are not
Subrahmanyan Chettiar vs Muthuswami Goundain 1940 FCR 188 Pyafulla Kumar Mukherjee vs The Bank of Commerce Ltd 1940 LR 74 IA 23 and Lakhi Narayan Das vs The Province of Bihar  relied on
Held further that the presumptions in section 42 Of the Act do not off end the requirements as to equality before law or the equal protection of laws under article 14 as they have to be raised against all persons against whom the facts mentioned therein are established
Even assuming that the law in America that a presumption of guilt would offend the requirement of the equal protection of laws unless there is a rational connection between the act proved and the ultimate fact presumed could have application to the Indian Constitution on a proper reading of the sections there is a reasonable relation between the presumption raised in section 42 and the offences under section 41
William N McFarland vs American Sugar Refining Company  24I US 79  Albert 1
Adams vs People of the State of New York  and Robert Hawes vs State of Georiya 258 US
I   referred to