# A. S. Krishna v. State of Madras

- **Citation:** [1957] 1 S.C.R. 399
- **Court:** Supreme Court of India
- **Decided:** 1954-05-07
- **Case number:** Criminal Appeals Nos. 20 to 23 of 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-s-krishna-v-state-of-madras-1347
- **Pages:** 16

## Headnote

S.C.R..
SUPREME COURT REPORTS
399
A. S. KRISHNA
t!.
STATE OF MADRAS.
(with connected appeals)
(S.
R.
DAS
C.J.,
BHAGWATI,
VENKATARAMA
AYYAR,
B. P. SINHA and S. K. DAs, JJ.)
Madras Prohibition Act, 1937 (Mad. X of 1937), ss. 4(1), 4(2),
28, 29, 30, 31, 32-Constitutional validity-Legislative competencyPith and substance of the legislation-The Government of India Act,
1935 (26 Geo. 5 & 1 Edw. 8 Ch. 2), s. 107(1), Sch. 7 List II, Entry
31-Constitution of India, Art. 14.
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(1) 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 hav~ regard to the enactment as a whole, to its objects
and to the scope and effect of its provisions. If on such e)famination 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
1956
November, 28.
1956
A. S. Krishna
v.
State of Madras
400
SUPREME COURT REPORTS
[1957]
would severally fall, and by that process determine \vhat portions
thereof are intra vires, and what are not.
Subrahrnanyan
Chettiar v. · Muthustvanzi
Goundan,
(1940)
F.C.R. 188, Prafulla Kumar Mukherjee v. The Bank of Commerce
Ltd. (1940) L. R. 74 I.A. 23 and Lakhi Narayan Das v. The Province
of Bihm· (1949) F.C.R. 693, relied on,
Held fm·ther, 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 who1n
the facts
tnentioncd therein are
estab~
lishe<l.
Even assun1ing that the law in An1crica that a
presu1np~
tion of guilt would offend the requirement of the equal protection
of
la\\'S
unless
there is a
rational
connection bet\veen 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
bet\.vcen
the presumption
raised in s. 4(2)
and the offences under s. 4( 1 ).
T-Villiam N. McFarland v. Atnerican Sugar Refining
Con1pa11y,
241 U.S. 79 ; 60 L. Ed. 899, Aibel'f /. Adams v. People of the State
of New York, 192 U.S. 585; 48 L. Ed. 575. and Robert Hawes v.
State of Georgia, 258 U.S. 1; 66 L. Ed. 431, referre

## Text

S.C.R..
SUPREME COURT REPORTS
399
A. S. KRISHNA
t!.
STATE OF MADRAS.
(with connected appeals)
(S.
R.
DAS
C.J.,
BHAGWATI,
VENKATARAMA
AYYAR,
B. P. SINHA and S. K. DAs, JJ.)
Madras Prohibition Act, 1937 (Mad. X of 1937), ss. 4(1), 4(2),
28, 29, 30, 31, 32-Constitutional validity-Legislative competencyPith and substance of the legislation-The Government of India Act,
1935 (26 Geo. 5 & 1 Edw. 8 Ch. 2), s. 107(1), Sch. 7 List II, Entry
31-Constitution of India, Art. 14.
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(1) 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 hav~ regard to the enactment as a whole, to its objects
and to the scope and effect of its provisions. If on such e)famination 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
1956
November, 28.
1956
A. S. Krishna
v.
State of Madras
400
SUPREME COURT REPORTS
[1957]
would severally fall, and by that process determine \vhat portions
thereof are intra vires, and what are not.
Subrahrnanyan
Chettiar v. · Muthustvanzi
Goundan,
(1940)
F.C.R. 188, Prafulla Kumar Mukherjee v. The Bank of Commerce
Ltd. (1940) L. R. 74 I.A. 23 and Lakhi Narayan Das v. The Province
of Bihm· (1949) F.C.R. 693, relied on,
Held fm·ther, 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 who1n
the facts
tnentioncd therein are
estab~
lishe<l.
Even assun1ing that the law in An1crica that a
presu1np~
tion of guilt would offend the requirement of the equal protection
of
la\\'S
unless
there is a
rational
connection bet\veen 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
bet\.vcen
the presumption
raised in s. 4(2)
and the offences under s. 4( 1 ).
T-Villiam N. McFarland v. Atnerican Sugar Refining
Con1pa11y,
241 U.S. 79 ; 60 L. Ed. 899, Aibel'f /. Adams v. People of the State
of New York, 192 U.S. 585; 48 L. Ed. 575. and Robert Hawes v.
State of Georgia, 258 U.S. 1; 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. Venkatakrislznan
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, arc unconstitutional and
void.
It will he convenient first to set out the impugned
statutory prov1s10ns.
Section 4, omitting what is not
material, runs as follows ;
S.C.R.
SUPREME COURT REPORTS
401
4(1) "Whoever
1.956
A. S. Kri.<hna
v.
(a) imports, exports, transports or possesses liquor
or any intoxicating drug ; or
""'slau~f Madras
..................................................
(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 8.cts
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 suc]i 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."
Venkatarama
Ayyar].
1956
A. S. Krishna
v.
State of Madras
Venkatarama
AY.Jlar J.
402
SUPREME COURT REPORTS
[1957]
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, and
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 under
s. 432 of the Criminal Procedure Code, wherein they
contended that ss. 4(2) and 28 to 32 of the Act were
S.C.R.
SUPREME COURT REPORTS
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 ss. 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 prov1s1on,
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 pjlssed 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
1956
A. S. Krishna
v.
State of M mlrtll
Venkatarama
4.Y;•ar J.
1956
A. S. Krishna
v.
State of Madras
V en.l;atarama
AyyarJ.
404
SUPREME COURT REPORTS
[1957]
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 bas 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 m 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, io the provisions
of List III.
37. Offences against laws with respect of any of
the matters in this list.
List Ill-Concurrent Legislative List.
2. Criminal
Procedure,
including
all
included in
the Code of Criminal Procedure
date of the passing of this Ac~.
matters
at the
5. Evidence
and
oaths ;
recogmtion
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,
puchase,
sale and consumption
of
S.C.R.
SUPREME COURT REPORTS
405
intoxicating liquors ........ ". And this is carried out in
s. 4 ( 1), which enacts prohibition in respect of the
aSo\'e matters, and imposes penalties for breach of the
same. The other proYisions 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 r~served to the Provinces and would therefore fall
ouu;ide s. 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 Legishture in so far as it prohibits
porcsession,
sale,
consumption.
etc.,
of
liquor
under
s. 4(1), the matters dealt with under s. 4(2) and ss. 28
to 32 fall not \Vithin
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 s. 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
vnrrants, 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 ;md 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
4-77 8. C. India/59
1956
A. S. Krishna
v.
State of Madras
Venkatarama
4.J.Y•r J.
v.
State of Madras
V enkatatama
AJ!)'ar ].
406
SUPREME COURT REPORTS
[1957]
essence of such a Constitution that there should be a
distribution of the legislative powers of the Federation
between the Central 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 topics 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 sectio.1s 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 within 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 its
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
encroachment
does not affect the vires of the law even as regards the
area of encroachment. Vide Citizens Insurance Company of Canada v. William Parsons('), The AttorneyGeneral of Ontario v. The Attorney-General for the
Dominion of Canada(2), The Attorney-General of Ontario
v. The Attorney-General for the Dominion ( 3), Union
Colliery Company of British Columpia v. Bryden('),
Attorney-General for Canada v. Attorney-General for
(1) [1881) 7 A.C.96.
(2) [1894) A.C. 189.
(3l [1896) A.C. 348.
(4) [1899) A.C. 580.
S.C.R.
SUPREME COURT REPORTS
407
Ontario (1), Attorney-General for Alberta v.
AttorneyGeneral for Canada ( 9 ), and Board of Trustees of Letherbridge Northern Irrigation District v. Independent Order
of Foresters( 3 ).
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 ( • ), the question was
as to whether , the Madras Agriculturists Relief Act
IV of 1938, which was within the exclusive competence of the Provincial Legislature under Entries 20
and 21 in List II 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 dee! 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' of 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 Prafull 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) [19-to] F.C.R. 188.
(2) [1939] A. C. 117.
(5) [1946-{7] 74 I.A.23.
(3) f1940] A. C. 513.
53
1956
A. S. Kri.shna
v.
State of Madras
Venkatarama
AyyarJ.
1956
A. L"', Krishna
v.
State of Madras
Ve11katarama
Ayyar J.
408
SUPREME COURT REPORTS
[1957]
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
1s
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 I, Item
28. It was held by the Privy Council that the pith and
substance of the impugned legislation
being
moneylending, it was valid notwithstanding
that it
incidentally encroached on a field of legislation reserved for the
Centre under Entry 28.
After quoting
with
appmval
the observations of Sir Maurice Gwyer C.J. in Subra!imanyan Chettiar v. Muttuswami Goilndan, (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 heirarchy of jurisdictions.
Subjects r.rnst 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 beneficient legislation would be stifled at birth,
and many of the subjects entrusted to Provincial legislation could never effectivelv 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
S.C.R.
SUPREME COURT REPORTS
409
~ith 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
Laklii 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, [he Ordinance
itself was void. The object of the Ordinance wa~ the
maintenance of public order, and under Entry 1 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 1 in List II,
the sections constituting the offences and providing for
search and trial fell within Items 1 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, Mukheriea 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 rt:spect to matters specified in List II
(1) (1g+9] F.C~R. 693.
1956
A. S. Krishna
v •.
State of Madras
Venkatarama
AyyarJ.
1957
A. S. Krishna
v.
State of Madras
V tnkalaro.ma
Ayyar ].
410
SUPREME COURT REPORTS
(1957]
would come within Item 37 of List II itself, and
have been expressly excluded from
Item 1 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. I 07 (!) 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 competence.
It would be quite an erroneous approcah 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 II. So also,
the provisions relating to search, seizure and arrest in
sections 28 to 32 are only with reference to
offences
S.C.R.
SUPREME COURT REPORTS
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 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
m1terials 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 liquqr 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 '"
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 unreason:i.ble as to be a purely arbitrary
mandate. Mobile f. & K.C.R. Co. v. Turnipseed ( • )."
(1) 241 U.S. 79 at 86-87 ; 60 L. Ed. 899,904.
(2) 219 U.S.35,43 ; 55 L. Ed. 78,80.
1956
A. S. Krishna
v.
State of M adrlJI
V enkatarama
Ayyar J.
1956
A. S. Krishna
v.
State of Madras
Venkatarama
Ay;·arJ•
412
SUPREME COURT REPORTS
[1957]
The law on this subject is thus stated by Rottaschaefer
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 Neu1 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 unusal 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 posseS>ion 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.
S.C.R.
SUPREME COURT REPORTS
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, an<l 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 ~he 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 iaid down in
s. 4(2) cannot be ftruck down as unconstitutional. We
should adp 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. I; 66.L. Ed. 431.
1956
A. S. Krishna
v.
State of Madras
Venkatarama
AyyarJ.
1956
A. S. Erishna
v.
State of Madras
Venkalarama
Ayy"' ],
November, 29.
414
SUPREME COURT REPORTS
[1957J
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, based
on a misreading of the section.
Both the contentions urged on behalf of the appellants having failed, these appeals are dismissed.
Appeal dismissed.
MOHAMMAD GHOUSE
ti.
STATE OF ANDHRA
[S.
R.
DAS
C.J.,
BHAGWATI,
VENKATARAMA
AYYAR,
B. P. SINHA and S. K. DAs, JJ.J
Government - Servant-Judicial
Officer-DiscipHnary
Proceedings-Enquiry into charges-Jurisdiction of the High Court-Order
of suspension pending final orders by the Government-Power of the
High Court-Constitution of India, Art. 311-.Madras Civil Services
( ClaSJification, Control and Appeal) Rules, rr. 13, 17(e)-Madras
Civil
Services
(Disciplinary
Proceed in gs Tribunal) Rules, 1948And hra Civil Services (Disciplinary Proceedings Tribunal) Rules,
1953, r. 4(1) (a).
The appellant was at the relevant dates posted as Subordinate
Judge at Masulipatam and
Amalapuram.
Charges
were made
against him of bribery and serious irregularities in the discharge
of official duties, and they were enquire<l into by one of the judges
of the Madras High Court who sent his reports on
August
20,
1953, and November 10, 1953.
On the basis of the reports the
High Court decided on January 25, 1954, that the appellant
should be dismissed from service on the charge of bribery and
ren1oved from
service on the charge of irregularities, and on
January 28, 1954, placed hi1n on suspension until further orders.
The appellant moved the High Court under Art. 226 of the Con~
. stitution of lndia for quashing the order of suspension on the
grmJnd (1) that under r. 4(1)(a) of the Andhra Civil Services (Dis·
ciplinary Proceedings Tribunal) Rules, 1953, an enquiry into the·