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PETITIONER:

A. S. KRISHNA

Vs.

RESPONDENT:

STATE OF, MADRAS.(with connected appeals)

DATE OF JUDGMENT:

28/11/1956

BENCH:

AIYYAR, T.L. VENKATARAMA

BENCH:

AIYYAR, T.L. VENKATARAMA

DAS, SUDHI RANJAN (CJ)

BHAGWATI, NATWARLAL H.

SINHA, BHUVNESHWAR P.

DAS, S.K.

CITATION:

1957 AIR 297 1957 SCR 399

ACT:

Madras Prohibition Act, 1937 (Mad. X Of 1937), ss. 4(1),

4(2), 28, 29, 30, 3I, 32-Constitutional validity-Legislative

competency Pith and substance of the legislation -The

Government of India Act, 1935 (26 Geo. 5 & 1 Edw. 8 Ch. 2),

s. 1O7(r), Sch. 7 List II, Entry 31-Constitution of India,

Art. I4.

HEADNOTE:

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. 4(2) and 28 to 32 of the Act are void

under S. 107(I) of the Government of India Act, 1935,

because they are repugnant to the provisions of the Indian

Evidence Act, 1872, and the Code of Criminal Procedure,

1898, and also because they are repugnant to Art. 14 Of the

Constitution of India. On their application, the Magistrate

referred the questions for the opinion of the High Court

under S. 432' of the Code of Criminal Procedure. The High

Court having answered the questions against the appellants

they preferred the present appeal under Art. 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 S. 4(2) 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 S. 107(1)

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

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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 v. Muthuswami Goundain, (1940) F.C.R.

188, Pyafulla Kumar Mukherjee v. The Bank of Commerce Ltd.

(1940) L.R. 74 I.A. 23 and Lakhi Narayan Das v. The Province

of Bihar (1949) F.C.R. 693, relied on.

Held further, that the presumptions in s. 4(2) Of the Act do

not off end the requirements as to equality before law or

the equal protection of laws under Art. 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 S.

4(2) and the offences under s. 4(1).

William N. McFarland v. American Sugar Refining Company, 24I

U.S. 79; 6o L. Ed. 899, Albert 1. Adams v. People of the

State of New York, 192 U.S. 585 48 L. Ed. 575 and Robert

Hawes v. State of Georiya, 258 U.S. I 66 L. Ed. 431,

referred to.

JUDGMENT:

CRIMINAL APPELLATE, JURISDICTION: Criminal 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, S. Venkatakrishnan and S. Subramanian,

for the appellants.

V. K. T. Chari, Advocate-General, Madras, Ganapathy Iyer

and T. M. Sen, for the respondent.

1956. November 28. The Judgment of the Court was delivered

by

VENKATARAMA AYYAR J.-The point for decision in these appeals

is whether ss. 4(2), 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;

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4(1) " 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

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(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.

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Section 28 provides that if any Collector, Prohibition

Officer or Magistrate has reason to believe that an offence

under s. 4(1) 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 ss. 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 s. 4(1).

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. S. Krishna, R. Venkataraman and V. S.

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 ss. 4 (1) (a) and 4 (1) (j) for

possession and consumption of liquor, and Lakshmanan

Chettiar was charged under s. 4 (1) (k) for allowing the

above acts in premises in his immediate possession, a under

s. 12 for abetment of the offences. He was also charged

under s. 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 s. 4

(1) (a). Immediately after service of summons, the

appellants filed an application unders. 432 of the Criminal

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Procedure Code, wherein they contended that ss. 4(2) and 28

to 32 of the Act were

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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, C.J., and Umamaheswaram, J., who held,

disagreeing with the appellants, that ss. 4(2) and 28 to 32

were valid,, and answered the reference against them.

Against this judgment, the appellants have preferred the

present appeals under Art. 136 of the Constitution.

Two contentions have been urged in support of the appeals:

(1) Section 4(2) and sa. 28 to 32 of the Act are void under

s. 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, Indian Evidence Act I of 1872 and Criminal Procedure

Code Act No. V of 1898, and (2) the impugned sections are

repugnant to Art. 14 of the Constitution, and have therefore

become void under Art. 13(1).

(1) Taking the first contention, the point for' decision is

whether the impugned provisions are hit by s. 107 of the

Government of India Act, 1935. Subsection (1) of s. 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 s. 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.

2. 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.

31. 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.

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37. Offences against laws with respect of any of the

matters in this list.

List III-Concurrent Legislative List.

2. Criminal Procedure, including all matters included in

the Code of Criminal Procedure at the date of the passing of

this Act.

5. 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

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intoxicating liquors............ And this is carried out in

s. 4(1), 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 s. 4(1) 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. 107(1) 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. 4(1), the

matters dealt with under s. 4(2) and ss. 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. 4(2) 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 ss. 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 ss.

4(2) and 28 to 32 are legislation under Entries 5 and 2 of

List III, and that their validity must be tested under s.

107(1).

The appellants are right in their contention that s. 4(2) 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 ss. 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

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federal Constitution for Canada, enumerated in ss. 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 v.

William Parson8(1), The Attorney General of Ontario v. The

Attorney-General for the Dominion of Canada(1), The

Attorney-General of Ontari, v. The Attorney-General for the

Dominion(3 ), Union Colliery Company of British Columbia v.

Bryden(4) Attorney-General for' Canada v. Attorney-General

for

(1) [1881] 7 A. C. 96. (3) [1896] A.C. 348.

(2) [1894] A.C. 189. (4) [1899] A.C. 580.

407

Ontario(,), Attorney-General for Alberta v. AttorneyGeneral

for Canada(2 ), and Board of Trustees of Letherbridge

Northern Irrigation District v. Independent Order of

Foresters(1).

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 v. Muttuswami

Goundan(4), 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

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Council in Prafulla'Kumar Mukherjee v. The Bank of Commerce,

Ltd. (5). There, the question was whether the Bengal Money-

Lenders Act, 1940, which

(1) [1937] A.C. 355. (4) [1940] F.C.R. 188.

(2) [1939] A.C. 117. (5) [1946-47] 74 I.A. 23.

(3) [1940] A.C. 513.

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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 C.J. in Subrahmanyan Chettiar v. 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 v. 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 s. 107(1) of the Government of

India Act, the Ordinance itself was void. The object of the

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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) [1949] F.C.R. 693.

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 s. 107(1) 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 s. 4(2) 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 s. 4(1) 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 4(2)

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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 s. 107(1) does not arise.

(2) It is next contended that the presumptions raised in s.

4(2) of the Act, are repugnant to Art. 14 of the

Constitution, and that the section must accordingly be

declared to have become void under Art. 13(1). We are

unable to see how s. 4(2) 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 s. 4(2) 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 s. 4(1)(g), nor possession of

materials, apparatus for manufacture of liquor, evidence of

possession or consumption of liquor under s. 4(1) (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 v. 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. & K.C.R. Co.

v. Turnipseed(2)."

(1) 241 U.S. 79 at 86-87 ; 60 L. Ed. 899, 904.

(2) 219 U.S. 35, 43; 55 L. Ed. 78, 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 s. 4 (2) have been upheld as reasonable

and not hit by the due process or equal protection clause.

In Albert J. Adams v. 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 s. 4(1)(a) of the

Act, which makes it an offence to be in possession of

liquor, and to s. 4(2) which raises a rebuttable presumption

of guilt under s. 4(1)(a). 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

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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) 192 U.S. 585; 48 L. Ed. 575.

413

In Robert Hawes v. 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 s. 4(2)

cannot be struck down as unconstitutional. We should add

that the construction which the appellants seek to put on s.

4 (2) that a person in possession of liquor could, under

that section, be presumed to have committed an offence under

s. 4(1) (g) or that a person who is in possession of

materials, implement or apparatus could be presumed to have

committed offences under s. 4 (1) (a) and (j) is not

correct. In our opinion, the matters mentioned in s. 4 (2)

should be read distributively in relation to the offences

mentioned in s. 4(1). Possession of liquor, for example, is

an offence under s. 4(1) (a). The presumption in s. 4(2) is

that if it is found in the possession of a person, he should

be presumed to have committed the offence under s. 4(1)(a),

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) 258 U.S. 1 ; 66 L. Ed. 431.

414

offence under s. 4(1)(g) to be in possession of materials,

still, implement or apparatus whatsoever for the tapping of

toddy or the manufacture of liquor. Under s. 4(2)(a), 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 s. 4(1)(g), 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,

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based on a misreading of the section.

Both the contentions urged on behalf of the appellants

having failed, these appeals are dismissed.

Appeals dismissed.