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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; 401 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. 402 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                             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,   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                             405 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. 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  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.