A. S. Krishna vs State of Madras

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeals Nos. 20 to 23 of 1955

Decision Date: 28 November 1956

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, S.K. Das, Venkatarama Ayyar

In this case the petitioners, A S Krishna and others, were charged before the Presidency Magistrate for offences punishable under the Madras Prohibition Act of 1937. When the matters came up for trial the petitioners contended that sections 4(2) and 28 to 32 of that Act were void under section 107(r) of the Government of India Act, 1935 because they conflicted with the Indian Evidence Act, 1872, the Code of Criminal Procedure, 1898, and also violated article 14 of the Constitution of India. The magistrate, upon receiving these objections, referred the questions of law to the High Court for its opinion under section 432 of the Code of Criminal Procedure. The High Court examined the submissions and answered the questions against the petitioners. Dissatisfied with that outcome, the petitioners appealed to this Court under article 136 of the Constitution. The case was heard by a bench consisting of Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha and Justice S. K. Das, and the judgment was delivered on 28 November 1956. The citation for the decision is reported as 1957 AIR 297 and 1957 SCR 399. The provisions of the Madras Prohibition Act that were under scrutiny included sections 4(1), 4(2), 28, 29, 30, 31 and 32, and the constitutional issues raised concerned legislative competence under entry 31 of List II of the Government of India Act, 1935, as well as the doctrine of pith and substance and the guarantee of equality before law under article 14 of the Constitution.

The Court held that the Madras Prohibition Act, 1937, in both its form and its substance, is a law dealing with intoxicating liquors. Accordingly, the presumptions contained in section 4(2) and the provisions relating to search, seizure and arrest in sections 28 to 32 are ancillary to the offences created by the Act and fall within the legislative power exercised under entry 31 of List II of the Government of India Act, 1935. Consequently the Act is wholly within the exclusive competence of the Provincial Legislature, and the question of repugnancy under section 107(1) of the Government of India Act does not arise. The Court explained that whenever a law is challenged on the ground that it exceeds the powers of the enacting legislature, the true character of the legislation must be ascertained by viewing the enactment as a whole, considering its objects, and examining the scope and effect of its provisions. If, on such an examination, the legislation is found to be, in substance, concerned with a matter assigned to the legislature, it must be upheld in its entirety even though it may incidentally touch upon matters beyond its competence. The Court warned against a mistaken approach that treats a statute as a mere collection of separate sections, dissects it into parts, and then decides the validity of each part in isolation. In arriving at its conclusion the Court relied on the authorities set out in 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. Further, the Court held that the presumptions in section 4(2) of the Act do not offend the requirement of equality before law or the equal protection of laws guaranteed by article 14, because the presumptions are applied uniformly to all persons against whom the factual circumstances described in the provision are established. Even if a presumption of guilt might be regarded as inconsistent with the principle of equal protection under American law unless there is a rational connection between the proved act and the presumed fact, such a consideration does not invalidate the provision under the Indian Constitution.

The Court warned that a statute must not be treated as a loose collection of isolated sections that are broken up, examined separately according to the headings under which they might fall, and then judged part by part to decide which portions are within the legislative power and which are not. The Court cited the decisions in 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 as authorities supporting this approach. The Court further held that the presumptions contained in section 4(2) of the Madras Prohibition Act do not defeat the constitutional requirements of equality before the law and equal protection of the laws under Article 14, because those presumptions must be applied uniformly to every person against whom the factual circumstances described in the provision are proved. Even if one assumes that American law would consider a presumption of guilt to violate equal protection unless there is a rational link between the proven act and the presumed fact, the Court observed that a proper reading of the relevant sections shows a reasonable relationship between the presumption in section 4(2) and the offences listed in section 4(1). To illustrate this point, the Court referred to the American cases of William N. McFarland v. American Sugar Refining Company, 24 U.S. 79; 60 L. Ed. 899, Albert I. 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. 166; 66 L. Ed. 431.

In the judgment of the Criminal Appellate jurisdiction, the matters before the Court were Criminal Appeals Nos. 20 to 23 of 1955, filed by special leave against the order dated 7 May 1954 of the Madras High Court in Criminal Revision Cases Nos. 57‑60 of 1954 and the referred cases Nos. 2‑5 of 1954. Counsel for the appellants appeared, while the Advocate‑General of Madras, representing the respondent, also appeared. The judgment was delivered on 28 November 1956. The central issue for determination was whether sections 4(2), 28, 29, 30, 31 and 32 of the Madras Prohibition Act No. X of 1937 (hereinafter referred to as “the Act”) were unconstitutional and void. The Court first set out the impugned provisions. Section 4, in the material part, reads as follows: “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 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 …”

Section 4(2) of the Madras Prohibition Act stated that a presumption existed until proved otherwise. It presumed that any person accused of an offence falling under clauses (a) to (j) of sub‑section (1) had committed the offence with respect to any liquor, intoxicating drug, still, utensil, implement or apparatus used for tapping toddy or manufacturing liquor, or any material ordinarily employed for those purposes, for which he could not satisfactorily account for possession. It also presumed that a person accused under clause (k) of sub‑section (1) had committed the offence if an offence was proved to have been committed in premises immediately possessed by him involving any liquor, intoxicating drug, still, utensil, implement or apparatus used for tapping toddy or manufacturing liquor, or any such material ordinarily used for those purposes. Section 28 authorized a Collector, Prohibition Officer or Magistrate, upon believing that an offence under section 4(1) had been committed, to issue a warrant for search. Section 29 gave certain officers the power to search and seize articles without a warrant under specific circumstances. Section 30 permitted designated officers to enter any place, day or night, to inspect stills, implements, liquor and similar items. Section 31 allowed officers who entered under sections 28, 29 or 30 to break open any door or window and remove obstacles if necessary for entry. Section 32 empowered a Prohibition Officer or any police or land‑revenue officer to arrest without a warrant any person found committing an offence under section 4(1).

The factual background recorded that on 18 November 1953 a Prohibition Officer of Madras City together with the Deputy Commissioner of Police conducted a search of premises numbered 28, Thanikachala Chetty Street, Thyagarayanagar, Madras. During the search they seized several bottles of foreign liquor and glasses that contained whisky mixed with soda. The appellant, Lakshmanan Chettiar, was residing at the premises, while three other appellants—A. S. Krishna, R. Venkataraman and V. S. Krishnaswamy—were found drinking from the glass tumblers. All four individuals were immediately arrested, and subsequently charge‑sheets were filed against them for offences under the Act. The three appellants other than Lakshmanan Chettiar were charged under sections 4(1)(a) and 4(1)(j) for possession and consumption of liquor. Lakshmanan Chettiar was charged under section 4(1)(k) for permitting the acts in premises in his immediate possession, as well as under section 12 for abetment of the offences. He was additionally charged under section 4(1)(a) on the allegation that, although he held a permit, he possessed more units of liquor than his permit allowed, thereby committing an offence under the proviso to that section.

In the present case the respondents were alleged to have possessed a quantity of liquor that exceeded the limit authorized by their permit, and it was argued that, because of the proviso attached to section 4(1)(a) of the Act, they had therefore committed an offence under that provision. After the summons were served, the respondents moved an application under section 432 of the Criminal Procedure Code, contending that sections 4(2) and 28 to 32 of the Act were inconsistent with the Constitution and consequently void, and they prayed that the question of constitutionality be referred to the High Court for determination. The Third Presidency Magistrate, before whom the proceedings were pending, granted the application and referred seven questions concerning the validity of the aforementioned sections to the High Court. The reference was heard by the Chief Justice Rajamannar and Justice Umamaheswaram, who held that sections 4(2) and 28 to 32 were constitutionally valid and answered the reference against the respondents. Dissatisfied with that decision, the respondents filed appeals before this Court under article 136 of the Constitution. Two principal grounds were raised in support of the appeals. First, it was submitted that sections 4(2) and 28 to 32 were void under section 107 of the Government of India Act, 1935—the constitutional enactment in force when the Act was enacted—because they conflicted with existing Indian statutes governing the same subject, namely the Indian Evidence Act 1872 and the Criminal Procedure Code 1898. Second, it was contended that the impugned sections were violative of article 14 of the Constitution and therefore void under article 13(1). The Court first addressed the initial contention, framing the issue as whether the provisions of section 107 apply to the present dispute. Section 107(1) provides that if any provision of a provincial law is repugnant to a provision of a federal law within which the federal legislature has competence, or to any existing Indian law on a matter enumerated in the Concurrent Legislative List, then, subject to the provisions of that section, the federal law shall prevail and the provincial law shall, to the extent of the repugnancy, be void. For this provision to be invoked, two conditions must be satisfied: (i) both the provincial enactment and the central legislation must relate to a matter listed in the Concurrent List, and (ii) the two must be in direct conflict. Only when both conditions are met will the provincial law be rendered void to the extent of the inconsistency. Consequently, the first question for determination was whether the subject‑matter of the challenged provisions falls within the Provincial List, which would render section 107 inapplicable, or whether it falls within the Concurrent List, in which case the Court must further examine whether a repugnancy with the central law exists.

In deciding whether section 107 of the Constitution was applicable, the Court first examined whether the impugned legislation fell within the Provincial List or the Concurrent List. If the legislation belonged to the Provincial List, section 107 would not apply; if it fell within the Concurrent List, the Court would then have to consider whether it was repugnant to any Central law. The relevant entries from the legislative lists were set out for the purpose of this analysis. Under List II, the Provincial Legislative List, entry 2 deals with the jurisdiction and powers of all courts, except the Federal Court, concerning matters that appear in the list, and also prescribes the procedure in Rent and Revenue Courts. Entry 31 concerns intoxicating liquors and narcotic drugs, encompassing the production, manufacture, possession, transport, purchase and sale of such liquids, opium and other narcotics, while noting that opium is governed by List I and poisons and dangerous drugs by List III. Entry 37 covers offences against laws relating to any matter in the list. In List III, the Concurrent Legislative List, entry 2 concerns Criminal Procedure, including all matters contained in the Code of Criminal Procedure as it stood at the time the Act was passed. Entry 5 addresses Evidence and oaths, the recognition of laws, public acts, records and judicial proceedings.

The Court noted that there was no dispute that the Madras Prohibition Act, taken as a whole, was legislation dealing with intoxicating liquors and therefore fell within entry 31 of the Provincial List. The preamble of the Act declared its purpose to be “to bring about the prohibition of the production, manufacture, possession, export, import, transport, purchase, sale and consumption of intoxicating liquors.” This purpose was implemented by section 4(1), which imposed a blanket prohibition on the listed activities and prescribed penalties for violations. The remaining provisions of the Act could be broadly categorized into two groups: those that gave effect to the prohibition set out in section 4(1), and those that regulated the issuance of licences and permits.

The Court therefore concluded that the subject‑matter of the Act was a matter reserved exclusively to the provinces, placing it squarely outside the scope of section 107(1) of the Constitution. Nonetheless, counsel for the appellant argued that while the prohibition elements of the Act (section 4(1)) were within provincial competence, other sections—specifically section 4(2) and sections 28 to 32—did not fall under entry 31 of List II. Instead, they contended, these provisions corresponded to entry 5 and entry 2 of List III respectively. According to this argument, section 4(2) created a presumption that the court could draw on certain established facts, thereby dealing purely with evidentiary matters rather than with intoxicating liquors. Similarly, the provisions in sections 28 to 32 were said to address issues of criminal procedure, such as the issuance of warrants, seizure of property and arrest, and were therefore matters of the Criminal Procedure Code rather than matters relating to intoxicating liquors. On this basis, the appellant maintained that sections 4(2) and 28‑32 should be regarded as legislation falling under the Concurrent List, and consequently their validity ought to be examined under section 107(1).

The Court observed that the provisions in question fell under List III and therefore their validity had to be examined according to section 107(1) of the Constitution. The Court agreed that the appellants were correct in asserting that section 4(2) of the Act created a rule of evidence; however, the Court questioned whether this alone made the provision a law of evidence as contemplated by Entry 5 of the Concurrent List. In the same way, the Court noted that sections 28 to 32 clearly dealt with procedural matters relating to crimes, but asked whether this fact automatically classified them as legislation on the Criminal Procedure Code within Entry 2 of List III. The Court identified the appellants’ underlying assumption that the heads of legislation enumerated in the various Lists were drawn with such precision that they were mutually exclusive. The Court reminded that the task at hand involved interpreting a federal Constitution, which inherently required a division of legislative authority between the Centre and the Provinces. The Court explained that although the scheme of distribution has differed among various Constitutions, even a detailed enumeration of subjects for the Centre and the States inevitably leads to some overlap of legislative fields. The Court referred to the British North America Act, 1867, which established a federal Constitution for Canada and listed subjects for the Dominion and the Provinces in sections 91 and 92. The Court noted that despite the comprehensive nature of those lists, the Privy Council promptly discovered that the subjects overlapped and repeatedly ruled on the constitutionality of statutes passed by both the Dominion and Provincial legislatures. In response to such difficulties, the Privy Council had developed the doctrine of examining the “pith and substance” of impugned legislation to determine its intra‑vires nature. The Court explained that if, in substance, a statute related to a subject within the competence of the legislature, it should be regarded as intra‑vires even if it incidentally touched upon matters outside that competence. The Court added that the degree of encroachment on matters beyond competence could be relevant in assessing whether the law was colourable—that is, whether the legislature, under the pretense of legislating on a valid topic, was in fact legislating on a matter beyond its authority. However, where the legislation was not colourable, the Court held that the mere fact of incidental encroachment did not affect the validity of the law with respect to the encroached area. The Court cited several authorities to illustrate the doctrine, including Citizens Insurance Company of Canada v. William Parsons, The Attorney‑General of Ontario v. The Attorney‑General for the Dominion of Canada, The Attorney‑General of Ontario v. The Attorney‑General for the Dominion, Union Colliery Company of British Columbia v. Bryden, and Attorney‑General for Canada v. Attorney‑General for the Dominion, with the respective citations as recorded in the judgment.

The Court noted that earlier decisions such as the 1899 case reported in the appeal reports, the decision of the Attorney‑General for Alberta against the Attorney‑General for Canada, and the judgment of the Board of Trustees of Letherbridge Northern Irrigation District against the Independent Order of Foresters, established principles for testing the constitutional validity of statutes. Those principles have subsequently been applied to determine the validity of laws enacted by the Indian legislatures under the Government of India Act, 1935. In the case of Subrahmanyan Chettiar versus Muttuswami Goundan, the question before the Court was whether the Madras Agriculturalist Relief Act IV of 1938, which lay within the exclusive competence of the Provincial Legislature under Entries 20 and 21 of List II, could be declared ultra vires to the extent that it dealt with promissory notes issued by agriculturists, because Entry 28 of List I reserved “cheques, bills of exchange, promissory notes and other like instruments” to the Centre. Sir Maurice Gwyer, Chief Justice, answered that it is inevitable that legislation aimed at a subject in one list will sometimes touch upon a subject in another list, and that the provisions of a statute may be so closely interwoven that a strict verbal approach would invalidate many statutes merely because they appear to legislate in a prohibited field. Accordingly, the Judicial Committee had developed a rule requiring the court to examine the “pith and substance” or the true nature and character of the impugned law to decide whether it falls within the competence of the relevant list. This principle was directly relevant in the Privy Council decision of Prafulla Kumar Mukherjee versus The Bank of Commerce, Ltd., where the issue was whether the Bengal Money‑Lenders Act, 1940, which limited the amount recoverable by a money‑lender on principal and interest, could be upheld insofar as it affected promissory notes. Money‑lending, under Item 27 of List II, lay within the exclusive jurisdiction of the Provincial Legislature, while promissory notes, under List I, Item 28, were reserved to the Centre. The Privy Council held that the pith and substance of the legislation was money‑lending; therefore the Act was valid despite an incidental encroachment on a field reserved for the Centre. Lord Porter, citing Sir Maurice Gwyer’s observations in Subrahmanyan Chettiar, affirmed that the rule was correctly described and applied to both Indian and Dominion legislation. He further observed that experience of past difficulties has rendered the provisions of the Indian Constitution more precise in certain respects, and that the existence of the Concurrent List has aided in distinguishing essential matters from merely incidental ones.

In the judgment, the Court explained that the Indian Act was more precise in certain details and that the presence of the Concurrent List had facilitated the task of distinguishing matters that were essential for assigning a provision to a particular list from those that were merely incidental. The Court observed, however, that merely increasing the number of lists from two to three or establishing a hierarchy of jurisdictions did not eliminate the possibility of overlapping subject‑matter; where overlap persisted, the enquiry had to focus on the pith and substance of the enactment complained about and on the list in which its true nature and character belonged. The Court warned that if such questions could not be posed, many beneficial statutes would be suppressed at their inception and numerous subjects allocated to Provincial legislation could never be dealt with effectively. Turning to the extent of provincial encroachment upon Federal fields, Lord Porter was cited as noting that the importance of the issue lay not in measuring degrees of invasion but in ascertaining the pith and substance of the contested Act. He remarked that even if the provisions of the legislation extended far into Federal territory, the decisive enquiry was whether that intrusion demonstrated that the essential character of the Act was something other than money‑lending, such as promissory notes or banking; once that determination was made, the Act would fall on one side of the constitutional line and would be judged valid or invalid according to its true content. The Court then referred to the decision of the Federal Court in Lakhi Narayan Das v. The Province of Bihar, which concerned the validity of Ordinance No. IV of 1949 issued by the Governor of Bihar. The Ordinance was challenged on the ground that, if the legislation it authorized would have been void under section 107(1) of the Government of India Act, then the Ordinance itself was void. Its stated purpose was the maintenance of public order, an area assigned exclusively to the Province under Entry I of List II. The Ordinance also contained provisions for preventive detention, collective fines, control of processions and public meetings, and special rules for arrest and trial of offences created by the Ordinance. The challengers argued that while the sections dealing with public order fell within Entry I of List II, the provisions defining offences and prescribing search and trial procedures lay within Items I and 2 of the Concurrent List and were therefore repugnant to the Criminal Procedure Code. Justice Mukherjea rejected this contention, observing that all the provisions of the Ordinance related primarily to the maintenance of public order in Bihar and that, although violations of the Ordinance were made criminal offences, those offences fell within Item 37 of List II, which was expressly excluded from Item I of the Concurrent List. He further explained that the procedural aspects concerning trial and jurisdiction were completely covered by Item 2 of List II, eliminating any need for the Province to invoke powers under Item 2 of the Concurrent List. Consequently, the Court held that the entire legislation fell within Entries I and 2 of List II and that no question of repugnancy under section 107(1) arose.

The Court observed that the Ordinance was aimed principally at preserving public order within the Province of Bihar and that it authorised preventive detention along with other comparable measures for that purpose. Although the Ordinance made it a criminal offence to breach its provisions or to contravene orders issued under it, the Court noted that such offences fell within Item 37 of List II and were expressly excluded from Item I of the Concurrent List. Consequently, the ancillary provisions setting out the procedure for trying those offences and the conferment of jurisdiction on particular courts were wholly covered by Item 2 of List II, removing any necessity for the Provincial Legislature to invoke powers under Item 2 of the Concurrent List. On that basis the Court held that the entire legislation lay within Entries I and 2 of List II, and therefore no question of repugnancy under section 107(1) arose. The Court explained that when a law is challenged on the ground that it exceeds the legislature’s authority, the true character of the law must be determined by looking at the enactment as a whole, considering its objects, scope and effect. If, on such an examination, the law is found to deal in substance with a matter assigned to the legislature, it must be regarded as valid in its entirety, even though it may incidentally touch on matters beyond the legislature’s competence. The Court warned against dissecting the statute into isolated sections and analysing each part under different heads of legislation, a method which would incorrectly separate the statute into intra‑vires and extra‑vires portions. Applying this principle, the Court described the Madras Prohibition Act as a law, both in form and substance, relating to intoxicating liquors and thus falling within Entry 31 of List II. The presumptions in section 4(2) were characterised as provisions that apply only in trials of offences under section 4(1) of the Act, making them ancillary to the legislative power over intoxicating liquors. Likewise, the provisions concerning search, seizure and arrest in sections 28 to 32 were confined to offences committed or suspected to have been committed under the Act and did not have a general application to offences outside the Act. Accordingly, the Court concluded that neither the presumptions in section 4(2) nor the provisions in sections 28 to 32 possessed any operation beyond the offences created by the Act, and they were wholly ancillary to the legislation under Entry 31 of List II.

The Court observed that the provisions relating to search, seizure and arrest in sections twenty‑eight to thirty‑two of the Madras Prohibition Act have no operation apart from offences created by the Act and, in the Court’s opinion, must be regarded as wholly ancillary to the legislation that falls under Entry thirty‑one of List II. Consequently, the Court held that the Madras Prohibition Act, taken as a whole, is a law that lies within the exclusive competence of the Provincial Legislature, and therefore the question of any repugnancy with section one hundred and seven clause one of the Constitution does not arise. The Court then turned to the second contention raised by counsel, namely that the presumptions created in section four two of the Act are repugnant to article fourteen of the Constitution and that, on that basis, the section should be declared void under article thirteen clause one. The Court expressed its inability to see how section four two offends the constitutional requirement of equality before the law or the principle of equal protection of the laws. It noted that the presumptions set out in that provision must be raised against every person against whom the factual circumstances mentioned in the provision are established. The argument advanced by Mr N C Chatterjee was that the facts enumerated in section four two, which give rise to a presumption of guilt, bear no reasonable relation to the offences themselves. For instance, he argued, possession of liquor cannot be taken as evidence of possession of the materials or apparatus for manufacturing liquor under sub‑section four one g, nor can possession of such materials or apparatus, or evidence of possession or consumption of liquor, be linked to offences under sub‑sections four one a and four one j. Accordingly, Mr Chatterjee submitted that the impugned provision must be struck down as a denial of equal protection. To support this position, he relied on observations of Justice Holmes in William N McFarland v. American Sugar Refining Company, wherein Holmes warned that while legislatures may shift or raise presumptions, there must be a rational connection between the proved fact and the ultimate fact presumed, and that the inference must not be so unreasonable as to amount to a purely arbitrary mandate. The Court cited the passage: “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.” The citation referred to United States reports volume two hundred and forty‑one page seventy‑nine at pages eighty‑six to eighty‑seven, and to the parallel citation in Lawyers’ Edition. The Court also quoted the decision in Mobile J. & K C R Co. v. Turnipseed, cited from United States reports volume two hundred and nineteen page thirty‑five, and its Lawyers’ Edition counterpart. Further, the Court referred to the commentary of Rottschaefer in Constitutional Law (1939 edition, page eight hundred and thirty‑five), which states that while the power of a legislature to prescribe rules of evidence is universally recognised, due‑process limits apply, and rebuttable presumptions may be established only where a rational connection exists between what is proved and what may be inferred. The Court noted that this principle appears to arise from the due‑process clause and expressed doubt as to its direct applicability under the Indian Constitution. Nevertheless, the Court observed that American authorities have upheld presumptions of the kind created in section four two as reasonable and not violative of due‑process or equal‑protection requirements. The Court specifically referenced the case of Albert J Adams v. People of the State of New York, illustrating that similar presumptions have been sustained in foreign jurisprudence.

In the New York case, the legislature had defined it as an offence to be knowingly in possession of gambling instruments and had further provided that the possession of such instruments created a presumption of knowledge on the part of the possessor. This statutory scheme is described as being analogous to the provisions of section 4(1)(a) of the Act, which criminalises the possession of liquor, and to section 4(2), which creates a rebuttable presumption of guilt in relation to the offence specified in section 4(1)(a). When the argument was raised that the presumption in section 4(2) infringed the due‑process clause, the Court dismissed that contention with a forceful remark: “We fail to perceive any force in this argument.” The Court explained that the policy slips concerned are of an unusual character and are not likely, especially when present in large quantities, to be found in the hands of innocent persons. The possession of such gambling paraphernalia, the Court observed, indicates either use or an intended use, and therefore may give rise to an inference against the possessor unless a satisfactory explanation is offered. The Court further stressed that the statutory provision creates only prima‑facie evidence, and that the accused is entitled to present testimony that explains the true circumstances of the possession. Finally, the Court affirmed that a state possesses the established authority to prescribe the evidence that its own courts shall admit, citing the decision reported at 192 U.S. 585; 48 L. Ed. 575.

In the case of Robert Hawes v. State of Georgia, the issue concerned a Georgia statute that made it an offence to knowingly permit persons to locate in a premises apparatus for distilling or manufacturing prohibited liquors, and that also created a presumption that any occupant of a premises where such apparatus was found was presumed to have knowingly allowed its presence. The Court examined whether this presumption conflicted with the due‑process clause and concluded that it did not. The Court observed that “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.” The Court further noted that it may be presumed that a person who occupies such a farm will be aware of the apparatus present. The Court clarified that the presumption is not arbitrary; it is not peremptory, but rather subject to explanation and provides the means for the accused to offer a satisfactory account. Consequently, the Court held that even when the due‑process clause is applied, the presumptions contained in section 4(2) cannot be struck down as unconstitutional. Moreover, the Court rejected the appellants’ attempt to interpret section 4(2) as implying that possession of liquor could automatically be presumed to constitute an offence under section 4(1). The Court emphasized that the presumption must be read in a distributive manner, linking the possession of liquor specifically to the offence under section 4(1)(a), and that any deviation from this construction would be erroneous.

In the present case, the Court examined whether a person who possessed materials, implement or apparatus could be presumed to have committed offenses under sections 4(1)(a) and (g), and found that such a presumption was incorrect. The Court held that the provisions listed in section 4(2) should be interpreted in a distributive manner with respect to the separate offenses enumerated in section 4(1). Accordingly, possession of liquor constituted an offense specifically under section 4(1)(a), and the presumption created by section 4(2) was that any individual found in possession of liquor was to be deemed to have committed the offense under section 4(1)(a) unless he was able to provide a satisfactory explanation, such as claiming that the liquor had been placed on the premises without his knowledge. Similarly, the Court explained that possession of any material, implement or apparatus used for tapping toddy or for manufacturing liquor fell within the offense described in section 4(1)(g). Under the provision of section 4(2)(a), the Court stated that when a person was discovered to be in possession of such materials, a presumption arose that he had committed the offense under section 4(1)(g) (1) 258 U. S. 1; 66 L. Ed. 431, but that the presumption remained rebuttable if the person could offer a satisfactory account for his possession. The Court further observed that the argument advanced by the appellants, asserting that there was no reasonable nexus between the statutory presumption and the specific offense, resulted from a misreading of the statutory language. Consequently, having found that both of the appellants’ contentions were untenable, the Court concluded that the appeals could not be sustained. As a result, the Court dismissed the appeals and ordered that the petitions be rejected.