TMI Blog1956 (11) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 tapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing 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 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), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial 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' Cana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 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 legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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). The law on this subject is thus stated by Rottschaefer on Constitutional Law, 1939 Edition, at page 835: The power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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