A. S. Krishna Vs. State of, Madras
 INSC 76 (28 November 1956)
AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN
(CJ) BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
CITATION: 1957 AIR 297 1957 SCR 399
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.
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.
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 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 offend 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.
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
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
(k) allows any of the acts aforesaid upon premises in his immediate possession,
shall be punishedProvided 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 there
(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
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 otherthan 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 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 this judgment, the appellants have
preferred the present appeals under Art. 136 of the Constitution.
Two contentions have been urged in support of
(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
(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.
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
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
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
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 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
Bryden(4) Attorney-General for' Canada v.
Attorney-General for (1)  7 A. C. 96. (3)  A.C. 348.
(2)  A.C. 189. (4)  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
Council in Prafulla'Kumar Mukherjee v. The Bank of Commerce, Ltd. (5). There,
the question was whether the Bengal MoneyLenders Act, 1940, which (1) 
A.C. 355. (4)  F.C.R. 188.
(2)  A.C. 117. (5) [1946-47] 74 I.A.
(3)  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 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)  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 incidentally trench on matters which are beyond its
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 legislative 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)
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
(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
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
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 distributive
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 there for, 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 there for. 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.