PETITIONER: STATE OF KERALA Vs. RESPONDENT: <NAME> & SONS DATE OF JUDGMENT: 11/02/1966 BENCH: <NAME>, <NAME>: <NAME>, J.C. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SIKRI, S.M. <NAME>, V. CITATION: 1966 AIR 1738 1966 SCR (3) 582 CITATOR INFO : RF 1969 SC 78 (17,25) D 1975 SC1801 (2) RF 1975 SC2238 (22) R 1991 SC 435 (19) ACT: Travancore-Cochin, General Sales Tax Act (11 of 1125 M.E.)- Suit to recover excess tax paid-Jurisdiction of civil court if barred. HEADNOTE: Part of Sales-tax paid by the respondent was assessed upon the amount which it collected frOm its customers as sales- tax and which was included in its net turnover. A suit by the respondent for refund of that part of the sales-tax which was charged on the sales-tax collected by the res- pondent on the basis that it was not lawfully due under the Travancore-Cochin General Sales Tax Act, 1950, was decreed by the trial court and the decree was confirmed by <ORG>. In appeal to this Court, it was contended that the civil court had no jurisdiction to try the suit. HELD : By constituting appropriate authorities under the Act and ,creating a hierarchy of authorities to deal with the problem of levying tax as contemplated by the Act, the jurisdiction of the civil court to entertain the suit was excluded by necessary implication. [586 G] Jurisdiction of the civil court to try the suit was not barred by s. 23A ousting the jurisdiction of the civil court, because that section which was not retrospective in operation was incorporated into the Act after the suit was filed. But the jurisdiction of the civil court may be excluded by express enactment or by necessary intendment arising from the scheme of the Act. The Travancore-Cochin Sales Tax Act is a complete code dealing with the levy, assessment, collection and refund of tax. It authorises in- vestment of power in a hierarchy of authorities to administer the Act. For the purpose of making assessment of tax, the authorities have power to decide all questions arising before them, and the orders of the appellate authorities, subject to the exercise of revisional jurisdiction by <ORG>, were declared filial. The liability to pay tax arose under and by virtue of the provisions of the Act and the quantum of liability was determined under the Act alone. Further, at the material time, there was no express provision in he Act, which obliged the taxing authority to exclude from the computation of the taxable turnover the amount of sales-tax collected by the dealer. Hence, it could not be said that by assessing sales-tax on such amount, the taxing authority had infringed a prohibition imposed by the statute upon him. Therefore the principle in Secretary of <ORG> for <CITATION> . 67 I.A. 222, that civil courts have jurisdiction to examine a case where the provision-, of the statute have been infringed did not apply in the instant case. [583 F; 584 C; 585 H-586 B; 589 <CITATION> ,  5 S.C.R. 517; 15 S.T.C. 144 (S.C.), overruled'. <CITATION> ,  1 S.C.R. 64, followed. <CITATION> ,  2 S.C.R. 570; A.I.R. 1962 S.C. 1037 and <CITATION> ,  2 S.C.R. 229 referred to. 583 JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1104 of 1964.

Appeal by special leave from the judgment and decree dated the October 7, 1963 of <ORG> in A.S. No. 190 of 1959.

<NAME>, Attorney-General and <NAME>, for the appellant.

<NAME> and <NAME>, for the respondent.

The Judgment of the Court was delivered by <NAME>, J. For the period August 16, 1950 to March 31, 1951 the respondents were assessed to sales-tax under the Travancore Cochin General Sales-tax Act, 1950, by the assessing authority, Moovattupuzha, on a turnover of Rs. 14,04,732/716 which included Rs. 49,318/7/4 collected by the respondents from their constituents as tax on their sale transactions. The respondents paid the tax assessed and commenced an action in the Court of the District Judge, Parur, for a decree for Rs. 7,577/9/1 claiming that the amount was in excess of tax lawfully due from them under the.Act. <ORG> decreed the claim for Rs. 7,477/9/1 with interest and proportionate costs, and <ORG> confirmed that decree. In this appeal with special leave, on behalf of the State of Kerala the principal ground which falls to be determined is whether the jurisdiction of <ORG> to try the suit is excluded. Section 23-A of the Travancore-Cochin General Sales-tax Act 11 of 1125 M. E. provides that :

".No suit or other civil proceeding shall, except as expressly provided in this Act, be instituted in any court to set aside or modify any assessment made under this Act."

But this express bar on which counsel for the <ORG> relied did not exclude the jurisdiction of the civil court, for s. 23-A was incorporated in the Travancore-Cochin General Sales-tax Act by Act 18 of 1955 after the suit was instituted by the respondents, and by s. 23-A as incorporated the jurisdiction of the civil court to try a suit properly instituted before it was enacted is not ousted.

Counsel for the respondents submitted that in the absence of an express provision in the Act excluding the jurisdiction of the civil court, the courts below were right in holding that the suit was maintainable, and in support of that contention, he relied upon the decision of this Court in <CITATION> (1). In <NAME>'s case the (1)  S.C.R. 517:15 S.T.C. 144.

assesee who was taxed in respect of certain sales which took place outside the taxing State, sued the State for a decree for refund of the amounts paid by him on the plea that the transactions in respect of which the tax was levied were not taxable under the law. This Court held that without a provision like S. 18-A of the Madras General Sales-tax Act, 1939, the jurisdiction to entertain the suit was not taken away, specially where the action of the authorities was "wholly outside the law". It was observed in that case that finality attached to orders passed in 1 appeal by the Act was a finality for the purposes of the Act and I did not make valid an, action which was not warranted by the Act, as for example the levy of tax on a commodity which was not taxed at all or was exempt."

But the jurisdiction of the civil court may be excluded expressly or by clear implication arising from the scheme of the Act. Where the <ORG> sets up a special tribunal to determine 'questions relating to rights or liabilities which are the creation of a statute, the jurisdiction of the civil court would be deemed excluded by implication. In <ORG> v. GovernorGeneral in Council(1) <ORG> in dealing with the question whether the jurisdiction of the civil court to entertain a suit for refund of income-tax may be deemed to be excluded, apart from the express exclusion prescribed by s. 67 of the Income-tax Act , by the scheme of the Income-tax Act , observed ".............. the scheme of the Act (the Incometax Act) is to set up a particular machinery by the use of which alone total income assessable for income-tax is to be ascertained. The income-tax exigible is determined by reference to the total income so ascertained, and Only by reference to such total income. Under the Act (S.45) there arises a duty to pay the amount of tax demanded on the basis of that assessment of total income. Jurisdiction to question the assessment otherwise than by use of the machinery expressly provided by the Act would appear to be inconsistent with the statutory obligation to pay arising by virtue of the assessment. The only doubt, indeed, in their Lordships' mind, is whether an express pro- vision was necessary in order to exclude jurisdiction in a civil court to set aside or modify an assessment."

In delivering the judgment of the majority in <CITATION> (2), <NAME>,

1., observed :

"If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also, confer exclusive jurisdic- (1) L.R. 74 I.A. 50.

(2) [1966] 1 S.C.R, 229.

tion on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil court in that regard."

in a case recently decided by this Court <CITATION> (1) exclusion of the jurisdiction of the civil court to entertain and decide suits for refund of tax paid fell to be determined. In that case a dealer was assessed to tax under the Bombay Sales-tax Act 5 of 1946 in respect of "outside $ales" which by virtue of the ban imposed by Art. 286 of the Constitution were not taxable. The dealer sued to recover the tax paid by him. This Court held that where the Sales-tax Officer by misconceiving the nature of the transactions brings to tax transactions in respect of which the State has no authority to legislate for levying tax because of the ban imposed by Art. 286 of the Constitution, the validity of the order of assessment of tax cannot be reopened in a suit for refund of tax paid. The Bombay Sales-tax Act 5 of 1946, it is true, contained s. .20 which in terms enacted that an assessment shall not be called in' question in any civil court, but the court in Kamala, Mills case(1) held that the jurisdiction of the civil court to entertain a suit for tax assessed under the Act was excluded expressly, and by the clear implication of the Act as well.

The assessing authority invested with' power under the Tra- vancore-Cochin General Sales-tax Act is constituted by the Act a tribunal, which within the limits of its authority is competent to decide all questions of fact and law Arising before him in the course of proceedings for assessment and of his own jurisdiction as well. The Act sets up machine for levy,assessment, and collection of tax. By s. 3 of the Act charge is imposed, subject to exemptions prescribed by ss. 4, 5 and 6 upon every dealer to pay tax on his total turnover of each year. Duty to pay the tax is imposed by s. 11(2) of the Act. Section, 12 sets up the procedure of the assessing authority in making assessments and s. 13 deals with recovery of tax. A taxpayer aggrieved by an order of assessment may appeal under s. 14 against the order of assessment, and the decision of the appellate authority is by cl. (4) subject to the power of revision conferred by s. 1 expressly declared final. Section 15 as it stood at the relevant time provided for the exercise of revisional jurisdiction by <ORG> against the order of the taxing authorities-original as well as appellate. By s. 24 power is conferred upon <ORG> to frame rules' setting up machinery for determination of the not chargeable turn over, for refund of tax collected in excess of true liability and for other incidental matters. The Act is therefore a complete code dealing with the levy, assessment and collection and refund of tax. (1)  1 S.C.R. 64: A.I.R. 1965 S.C. 1942.

it authorises investment of power in a hierarchy of authorities to administer the Act. For the purpose of making assessment of tax, the authorities have power to decide all questions arising before them, and the orders of the appellate authorities subject to the exercise of revisional jurisdiction under S. 15 are declared final. Liability to pay tax arises under and by virtue of the provisions of the Act, and, the quantum of liability may be determined under the Act alone.

It is true that in <NAME> case(1) reliance was placed on behalf of the claimant upon <NAME>'s case(2), and the following observations were made by the <ORG> :

" <CITATION> it was held by this Court that the finality attached to orders passed in appeal by section 11(4) of the Madras General Sales-Tax Act (IX of 1939) was a finality for the purposes of the said Act and did not make valid an action which was not warranted by the Act, as for "ample, the levy of tax on a commodity which was not taxable at all or was exempt. We ought to add that this decision was based on the fact that the said Act at the relevant time did not contain section 18A which came into force on May 15, 1951; and it was section 18A which was construed by this Court in Firm of Illuri Subbayya Chetty & Sons [(1964) 1 SCR 752]."

In <NAME>'s case(2) the taxpayer sought in an action for refund of tax paid, a decree on the plea that, the transactions in respect of which tax was levied were "outside sales", and it was held that in the absence of express exclusion of the jurisdiction of the civil court, the action for refund of tax was maintainable. But the nature of the transactions taxed in the Kamala Mills' case(1) was not different. In the judgment in Kamala Mills' case(1) it was pointed out that the jurisdiction of the civil court to entertain a suit for refund of tax paid in compliance with an order of assessment may be excluded either expressly or necessary implication, and as the scheme of the Bombay Sales Tax Act, 146, indicated that a complete machinery was set up by constituting appropriate authorities under the Act, and creating a hierarchy of authorities to deal with the problem of levying tax as contemplated by the Act, jurisdiction of the civil court to entertain the suit was excluded by implication as well as by express enactment. That is clear from the following observations in the Kamala Mills' case(1):

"Whether or not a return is correct; whether or. not transactions which are not mentioned in the return, but about which the appropriate authority has knowledge, fall (1) [1966] 1 S.C.R. 64.

(2) [1964] 5 S.C.R. 517.

within the mischief of the charging section; what is the true and real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves; and so, we find it impossible to accept Mr. <NAME>'s argument that the finding of the appropriate authority that a particular transaction is taxable under the provisions of the Act, is a finding on a collateral fact which gives the appropriate authority jurisdiction to take a further step and make the actual order of assessment."

The action of the taxing authority in <NAME>'s case(1) in taxing transactions which he erroneously held were taxable was no. more outside the Act, than the action of the taxing authority in <NAME> case(2). If it be granted that the jurisdiction of the civil court may be excluded by express enactment or by necessary intendment arising from the scheme of the Act, <NAME>'s case(1) must be regarded as wrongly decided.

It is true that even if the jurisdiction of the civil court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine those cases : Secretary of <ORG> for <CITATION> (2). Counsel for the respondents urged that the case of the respondents fall within that exception, since the Sales-tax Officer in imposing tax-liability acted in defiance of the mandatory provisions of the Act and in support of the argument he placed reliance upon r. 7 of the Rules framed under the Act and the definition of "turnover" under the Act. Under the Act sales-tax is charged for the year at the prescribed rates on the total turnover of the dealer. <ORG> promulgated rules in exercise of powers under s. 24 of the Travancore- Cochin General Sales Tax Act, and r. 7 dealt with computation of "net turnover". In r. 7(1) by cls. (a) to

(k) certain exemptions admissible in the computation of the net turnover were set out. By notification No. SRI-1643-51- RD dated March 31, 1951 it was directed that with effect from April 1, 1951, the following clause shall be added :

"(1) all amounts of sales-tax collected by the dealer."

By this amendment in the computation of the taxable turnover, the amounts of sales tax collected by the dealer were not to be included. But this amendment was to have effect only from April 1, 1951, and in the proceeding in this appeal tax-liability for the assessment period ending March 31, 1951 fell to be determined.

(1) [1964] 5 S. C. R. 517.

(2) [1966] 1 S. C. R. 64.

(3) L. R. 67 1. A. 222.

The exemption was therefore inoperative in the computation of taxable turnover for the assessment year in question. Counsel for the. respondents however contended that the effect of the amendment w s merely to clarify what was implicit in the content of the expression "turnover". By s. 2(k) "turnover" means-insofar as the definition is relevant "the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration "Turnover" being the aggregate amount for which goods are bought or sold, and normally the aggregate amount would include such amount as the purchaser pays to the dealer for the goods, the expression "aggregate amount for which goods are . . . sold" within the meaning of "turnover" in s. 2(k) would include the amount of sales-tax received by the dealer. There is no provision in the Act which may' by implication suggest that from the connotation of the expression 'turnover' the sales tax collected in the year of assessment ending March 31, 1951 was to be excluded. Exclusion prescribed by cl. (1) of r. 7(1) enacted with effect from April 1, 1951 is not clarificatory, but prescribes an additional head in the computation of net turnover.

This Court in <CITATION> (1) in dealing with the question whether sales tax charged by the dealer may be excluded within the meaning of the expression "turnover" as used in the Madras General Sales-Tax Act, 1939, observed:

"Under the definition of turnover the aggregate amount for which goods are' bought or sold is taxable. This aggregate amount "includes the tax as part of the price paid by the buyer. 'the amount goes into the common till of the dealer till he pays the tax. It is money which he keeps using for his business till he pays it over to Government. Indeed, he may, turn it over again and again till he finally hands it to Government. There is thus nothing anamolous in the law treating it as part of the amount on which tax must be paid by him. This conception of a turnover is not new. It is found in England and America and there is no reason to think that when the legislatures in India defined turnover' to include tax also, they were striking out into something quite unknown and unheard of before."

Counsel for the respondents contended that these observations made in interpreting the terms of the Madras General Sales tax (Definition of Turnover and Validation of Assessments) Act, 1954, have no bearing on the interpretation of the expression "turnover"' as in the Travancore-Cochin General Sales tax Act. But the (1) [1962] 2 S.C.R. 570 : A.I.R. 1962 S. C. 1037.

observations made by the <ORG> were not made in the context of any special statute.

There was in the Travancore-Cochin General Sales-tax Act at the material time no express provision which obliged the taxing authority to exclude from the computation of taxable turnover the amount of sales-tax collected by the dealer. The argument of counsel for the respondents that the taxing authority has infringed a prohibition imposed upon him has therefore no substance.

The appeal is therefore allowed and the suit is dismissed. There will be no order as to costs throughout.

Appeal allowed.

M11 Sup.C.I/66-6


PETITIONER: <NAME>, ETC. Vs. RESPONDENT: STATE OF UTTAR PRADESH AND ORS. DATE OF JUDGMENT28/07/1995 BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) SEN, S.C. (J) CITATION: 1995 SCC (5) 173 JT 1995 (5) 505 1995 SCALE (4)573 ACT: HEADNOTE: JUDGMENT:

J U D G M E N T B.P. JEEVAN REDDY.J.

These writ petitions highlight the faulty manner in which reservations have been provided and implemented by <ORG> and its authorities in the matter of admission to medical courses for the year 1994-95. Though the dispute pertains to the academic year 1994-95, we are told that the admissions have been made only in June- July, 1995 and are yet to be finalised in respect of certain courses.

The story begins with the announcement of policy of reservation in the matter of admission to medical courses issued by the <ORG> on May 17, 1994. According to this notification, sixty five percent of seats were reserved in favour of various classes/categories leaving only thirty five percent for open competition (O.C.) category. The reservations provided were to the following effect:

1. Backward Class 27% 2. Hill Region 3% 3. Uttarakhand Region 3% 4. Scheduled Caste 21% 5. Scheduled Tribe 2%

6. Real dependents of freedom fighters 5%

7. Son/daughter of soldier died in war/handicapped solders 2%

8. For Handicapped Candidates 2%

A further reservation in favour of women was also provided to the extent of thirty percent in each of the above categories. The reservations so provided were challenged by way of a writ petition in this Court under Article 32 of the Constitution-Civil Writ Petition No.777 of 1994 ( <CITATION> .). The contention of the petitioner was that reservation of sixty five percent of seats was contrary to the decision of this Court in <CITATION> . (1992 Suppl. (3) S.C.C. 217) and, therefore, void. Pending the said writ petition, the Government issued a notification on December 17, 1994 modifying the reservation policy contained in the notification of May 17, 1994. It would be appropriate to set out the notification dated December 17, 1994 in its entirety:

No. 6550/Sec-14/V-111/93 From: <NAME>, Sachiv, Uttar Pradesh Shasan To: Director General, Medical Education, Training, U.P.Lucknow Medical Section-14 Lucknow dated 17.12.94 Sub: Reservation in seats of M.B.B.S./B.D.S./B.H.M.S. /B.A.M.S./B.U.M.S. Courses to be filled through C.P.M.T. in State Allopathic Medical Colleges/K.G.

<ORG>, Lucknow/All State Homeopathic/Ayurvedic/Unani <ORG>s.

Sir, In continuation of G<ORG>O<ORG>No<ORG> 2697/Sec-14/V- 94/111/93 dated 17<ORG>5<ORG>94, on the above subject, I am directed to say clarifying the <ORG><ORG> policy that horizontal reservation be granted in all medical colleges on total seats of all the courses to be filled through combined Pre-Medical Test (CPMT) 1994 as given below:

1. Real dependents of freedom fighters 5%

2. Sons/daughters of deceased/disabled soldiers 2%

3. Physically handicapped candidates 2%

4. Candidates belonging to hill areas 3%

5. Candidates belong to Uttaranchal areas 3%

2. The above reservation would be horizontal and the candidates of the above categories, selected on the basis of merit, would be kept under the categories of Scheduled Castes/Scheduled Tribes/Other Backward Classes/ General to which they belong. For example, if a candidate dependent on a Freedom Fighter selected on the basis of reservation belongs to reserved for scheduled caste, (he will be adjusted against the seat reserved for S.C.?) Similarly, if a physically handicapped candidate selected on the basis of reservation belongs to other backward class or general category, he would be adjusted against the seats reserved for other backward classes or general category.

3. I am also directed to say that vertical reservation shall be granted in all medical colleges on total seats of all courses to be filled through C.P.M.T. 1994 as given below:

a) Scheduled Caste Candidates-21%} 30 seats

b) Scheduled Tribe Candidates-21%} in each

c) Other Backward Class } category candidates -27%} reserved } for ladies

4. 'Other Backward Classes' mean the classes mentioned in Annexure-1 of Notification No. 488/XVII-V-1-1(Ka) 8-1994 dated 23.3.94 notified by Vidhiyaka Anubhag, Uttar Pradesh Adhiniyam No.4/1994. The candidates of backward classes mentioned in Annexure-II of the aforesaid Adhiniyam would not be entitled for the reservation.

5. I am also directed to clarify that if a candidate of reserved category, mentioned in para 3 above, is selected alongwith general category candidates on the basis of merit, he shall not be adjusted against reserved seats, as G.O. in this regard has already been issued. So, 50% seats of general category shall be filled on the basis of merit prior to filling of reserve seats mentioned in para 3 above.

Please ensure strict compliance of these orders.

Yours faithfully, sd/-

<NAME>"

This revised notification was brought to the notice of this Court at the hearing of the aforesaid writ petition. After noticing both the aforesaid notifications this Court (the Bench comprising <NAME>, J. and one of us, <NAME>,J.) observed as follows:

"2. Reservation of 65% resulting in reducing the general category of 35% was undoubtedly violative of Article 16. Further by reserving 30% of the general seats for ladies the general category shrank to 5%. But these glaring infirmities have been rectified by the amended circular. Reservation of 30% for ladies has now been confined to para 3 of the amended circular. Dr. <NAME>, learned Senior Counsel appearing for the <ORG> clarified that he has instructions to make a statement on the amended circular that now there is no reservation for ladies in the general category.

3. Similarly, the other defect in the circular reserving 35% seats for general category has been removed. The vertical reservation is now 50% for general category and 50% for Scheduled Castes, Scheduled Tribes and Backward Classes.

Reservation of 15% for various categories mentioned in the earlier circular which reduced the general category to 35% due to vertical reservation has now been made horizontal in the amended circular extending it to all seats. The reservation is no more in general category. The amended circular divides all the seats in <ORG> into two categories - one, general and other reserved. Both have been allocated 50%. Para 2 of the circular explains that candidates who are selected on merit and happen to be of the category mentioned in para 1 would be liable to be adjusted in general or reserved category depending on to which category they belong, such reservation is not contrary to what was said by this <ORG> in <NAME>. Whether the reservation for such persons should have been made or not was not challenged, therefore, this <ORG> is not required to examine it.

4. In the result this petition is disposed of by directing that in view of the circular issued by the Government on 17-12-1994 clarified by para 2 the grievance of the petitioner cannot be said to have been survived. The interim order passed by this Court staying the declaration of results is discharged." This decision was rendered on February 2, 1995. On February 14, 1995 the Government issued a clarification stating:

"I have been directed to say that partly modifying the G.O.No.6550-Sec.14- V/111/93 dt.17.12.94 on the above subject, clause para 3 of the said G.O. shall be read as under:

3. I am also directed to say that vertical reservations shall be granted in all Medical Colleges on total seats of all Courses to be filled through C.P.M.T. 1994.

i) Scheduled Caste Candidates 21%

ii) Scheduled Tribes Candidates 2%

iii) Other Backward Class Candidates 27% The effect of this clarification is that reservation in favour of women has been removed from all the reserved categories.

<ORG> had issued a notification calling for applications for admissions to medical courses in the State in accordance with the notification of May 17, 1994. After the decision of this Court in <NAME> and in the light of the revised notification by the <ORG>, as also the clarification issued on February 14, 1995, the University issued a corrigendum stating that the reservation in favour of five categories, viz., (1) actual dependents of freedom fighters - 5%, (2) sons/daughters of soldiers/deceased/disabled in war - 2%, (3) physically handicapped - 2%, (4) candidates of hill area - 3%, and (5) candidates of Uttarakhand area - 3% (hereinafter referred to as in this judgment as "Special Categories") shall be horizontal reservations and not vertical reservations. The corrigendum stated:

".....following Horizontal reservation has been provided on the total seats of all the courses of every Medical College to be filled on the basis of Combined Pre-Medical Test, 1994:

1) Actual dependents of freedom fighters 5%

2)Sons/daughters of Soldiers/deceased/disabled inwar 2%

3) Physically handicapped 2%

4) Candidates of Hill Area 3%

5) Candidates of Uttarakhand Area 3%

2. The above reservation will be horizontal and the candidates of above categories, selected on the basis of merit, would be kept under the categories of Schedule Caste/Schedule Tribe/Other Backward Class/General to which they belong.

3. It is also informed that on total number of seats of every course in every Medical College through C.P.M.T. 1994. The following vertical reservations have been provided:

(1) Scheduled Caste Candidates 21% (2) Scheduled Tribe Candidates 2% (3) Other Backward Class Candidates 27% 4. It is also clarified that if any candidate belonging to Schedule Caste/Schedule Tribe/Other Backward Class categories is selected in open

competition on the basis of merit, then he will not be adjusted in the seats reserved for concerned categories. Therefore after filling the seats on the basis of horizontal reservation, the unreaserved seats will be filled on the basis of merits and thereafter reserved seats for Schedule Caste/schedule tribe/Other Backward Class will be filled.

5. As per above mentioned provisions the provisions for reservations in application form and important guidlines for C.P.M.T.1994 issued earlier will deemed to be modified accordingly.

6. Therefore, it is desired from the candidates falling under horizontal reservations that if they belong to Scheduled Caste, Scheduled Tribe or Other Backward Class Category, then they should send Caste Certificate on the following proforma giving his Roll number and examination details to the Registrar, <ORG> by 28.2.95. If Caste Certificate is not receivedwithin the prescribed period, then it will be deemed that concerned candidates belongs to the General Category. Once a Caste Certificate is furnished same cannot be changed subsequently. The prescribed proforma of Caste Certificate is being sent to the concerned candidates falling under Horizontal reservation through UPC for necessary action as aforesaid. In case proforma of Caste Certificate is not received by post, then same can be obtained by contacting Registrar, <ORG>."

In accordance with the procedure aforesaid, admissions have been made which are questioned in the present two writ petitions.

At the outset, we may mention a glaring illegality which has unfortunately not been raised in these writ petitions but is self-evident from the decisions of this Court. Under the revised notification dated December 17, 1994, three percent of the seats have been reserved for candidates belonging to hill areas and another three percent in favour of candidates belonging to Uttaranchal areas. These two reservations along with the reservations in favour of physically handicapped, children of deceased/disabled soldiers and dependents of freedom fighters are treated as horizontal reservations. In other words, the reservations in favour of hill areas and Uttaranchal areas are understood and treated as reservations relatable to Article 15(1) of the Constitution and not as reservations in favour of "socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes" within the meaning of Article 15(4) of the Constitution. It has been held by this Court in <CITATION> (1975 (1) S.C.C.267) that the reservation of seats in favour of candidates belonging to hill areas and Uttarakhand areas are reservations within the meaning of Article 15(4) of the Constitution, i.e., they are reservations in favour of socially and educationally backward classes of citizens. This Court found that "the <ORG> has established that the people in hill and Uttarakhand areas are socially and educationally backward classes of citizens". It, therefore, follows that a separate horizontal reservation of six percent of the seats in favour of candidates from hill areas and Uttaranchal apart from and in addition to twenty seven percent reservation in favour of other backward class candidates is clearly illegal. Though this contention has not been specifically raised in these writ petitions we must yet take notice of this circumstance while making the appropriate directions in these matters. It isindeed surprising that the <ORG> of Uttar Pradesh which is a party to the above decision has failed to bear it in mind. The said decision has also been referred to approvingly in <NAME>. The <ORG> of Uttar Pradesh shall keep this in mind for future selections as also in respect of those which may be now under way and make necessary corrections.

We may now turn to the contentions raised in the writ petition.

In the initial notification calling for applications, the fifteen percent special reservations were treated as vertical reservations along with reservations in favour of Other Backward Classes, Scheduled Castes and Scheduled Tribes. Applications were accordingly received. But with the issuance of the revised notification of December 17, 1994, the decision of this Court in <NAME> and the clarification contained in the letter dated February 14, 1995, these special reservations became horizontal reservations. Accordingly, a corrigendum was issued by <ORG> calling upon the candidates belonging to these special categories to specify to which social reservation category they belong. In other words, the candidates who had applied under any of the said special reservations were asked to specify whether they belong to Scheduled Tribes, Scheduled Castes, Other Backward Classes or to open competition category, as the case may be. It is stated that the candidates did indicate the same. According to the counter-affidavit now filed on behalf of the respondents, it appears that out of 2130 candidates who had applied against the five special reservation categories only nine stated that they belong to Other Backward Classes. None stated that they belong to Scheduled Tribes or Scheduled Castes which meant that but for nine candidates, all the rest applying under the aforesaid special categories were from the general/non-reserved category. As we shall indicate presently, 110 out of 112 special reservation candidates have been accommodated only in O.C. category and none in the O.B.C., S.C. or S.T. category.

Now, coming to the manner in which the said two-way reservations, viz., social reservations (vertical reservations) and special reservations (horizontal reservations) have been implemented, a few facts may be noticed. In the Counter-affidavit filed by the respondent (sworn-to by Sri <NAME>) it is stated that the total number of seats available in M.B.B.S, course in the government colleges in Uttar Pradesh is 746. Fifteen percent of the said number comes to 112 seats. In Para 16, it is stated:

"16. That in C.P.M.T. 1994 out of this 112 seats 101 students were selected and all of them belong to the General Category. The replying respondent filled up unreserved seats first and while doing so, 101 students selected on the basis of horizontal reservation since they belong to General Category, hence they have to be adjusted against unreserved seats. 9 belonging to Other Backward ClassesCategory has secured equivalent marks as General Candidates and thus were selected on merits. These candidates have been adjusted against unreserved category. The Roll number, names and total marks out of 1200 of these candidates are as follows:

1. 33936 <NAME> S/o J.P.Gupta 974/1200

2. 16678 <NAME> s/o B.S. Yadava 971/1200

3. 28415 <NAME> S/o S.C.S. Yadava 957/1200

4. 10506 <NAME> S/o O.P.Yadava 950/1200

5. 60497 <NAME> 947/1200

6. 47946 Vishal Singh S/o Y. Singh 947/1200

7. 47684 <NAME> S/o V.S. Yadava 1003/1200

8. 15633 <NAME> S/o S.K. Yadava 954/1200

9. 57620 <NAME> 944/1200 The remaining 263 seats were filled through General Candidates and last candidate selected has secured 891 marks out of 1200 marks. 201 candidates of Other Backward Classes were selected against reserved seats 157 against seats reserved for Scheduled Castes and 15 against seats reserved for Schedule Tribe. Similarly same procedure was applied in all the categories. Therefore, the contention of the petitioner that only 36% seats are filled with General Candidates is wrong. A photostat copy of tabulated result is being filed herewith and marked as Annexure R-IV to to this affidavit."

A reading of Para 16 makes it clear that the authorities in-charge of making admissions first took up the special category reservations and filled them up. Of the 112 candidates, 101 were from what may be called for the sake of convenience, `unreserved category' while nine candidates belonged to Other Backward Class category. But it appears that inasmuch as the said nine candidates belonging to Other Backward Classes had secured equal marks with the general candidates and were accordingly selected on merit in the O.C. quota, they were treated as Open competition candidates. The result was that out of 112 seats reserved for special categories, 110 seats were taken away from the Open competition (O.C.) category, thus leaving only 263 seats for the general candidates, i.e., O.C. candidates not belonging to any of the special reservations. It is the above method of filling of seats that has been challenged in these writ petitions.

The contention of the learned counsel for the petitioners is two fold: (i) by virtue of the revised notification of December 17, 1994, the decision of this Court in <NAME> and the corrigendum notification issued by <ORG>, it is clear that the special reservation seats are to be distributed and allocated proportionately among the social, i.e., vertical reservation categories. Had it been so done, only fifty six candidates belonging to special reservation categories could be accommodated in the O.C. category. But, the respondents have accommodated 110 special reservation candidates in the O.C. category, an excess of fifty four seats. These fifty four seats must be taken away from the special reservation categories and allotted to O.C. candidates not belonging to any special reservation category. (ii) The procedure prescribed in the aforesaid revised notification for filling up the vacancies is equally illegal which has also resulted in the dimunition of seats available for O.C. category. The admissions should be re-done thoroughly to rectify the said error.

On the other hand, the learned counsel for the respondents justify the procedure prescribed in the revised notification for making the admissions. With respect to the first contention of the learned counsel for the petitioners, the submission of the learned counsel for <ORG> and the State of Uttar Pradesh is that the fifteen percent reservation in favour of special categories (special reservation) is an overall reservation and not a compartmentalised reservation. They submit that these special reservations are not divided proportionately among the vertical (social) reservation categories and, therefore, these special reservation candidates have to be provided fifteen percent of the total seats (i.e., 112 seats) overall, whether by adjusting them against any of the social/vertical reservations or otherwise.

The question is which of the above interpretations is the correct one having regard to the language employed in the concerned notifications?

On a careful consideration of the revised notification of December 17, 1994 and the aforementioned corrigendum issued by <ORG>, we are of the opinion that in view of the ambiguous language employed therein, it is not possible to give a definite answer to the question whether the horizontal reservations are overall reservations or compartmentalised reservations. We may explain these two expressions. Where the seats reserved for horizontal reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalised reservations. We may illustrate what we say: Take this very case; out of the total 746 seats, 112 seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C.,O.B.C.,S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in the O.B.C. category; but say only ten special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in O.C. category or not; the special reservation would be a water tight compartment in each of the vertical reservation classes (O.C.,O.B.C.,S.C. and S.T.). As against this, what happens in the over-all reservation is that while allocating the special reservation students to their respective social reservation category, the over-all reservation in favour of special reservation categories has yet to be honoured. This means that in the above illustration, the twenty remaining seats would be transferred to O.C. category which means that the number of special reservation candidates in O.C. category would be 56+20=76. Further, if no special reservation candidate belonging to S.C. and S.T. is available then the proportionate number of seats meant for special reservation candidates in S.C. and S.T. also get transferred to O.C. category. The result would be that 102 special reservation candidates have to be accommodated in the O.C. category to complete their quota of 112. The converse may also happen, which will prejudice the candidates in the reserved categories. It is, of course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be altered.

Now coming to the revised notification of December 17, 1994, it says that "horizontal reservation be granted in all medical colleges on total seats of all the courses....". These words are being interpreted in two different ways by the parties; one says it is over-all reservation while other says it is compartmentalised. Paragraph 2 says that the candidates selected under the aforesaid special categories "would be kept under the categories of Scheduled Castes/Scheduled Tribes/Other Backward Classes/General to which they belong. For example, if a candidate dependent on a freedom fighter selected on the basis of reservation belongs to Scheduled Castes, he will be adjusted against the seat reserved for Scheduled Castes". This is sought to be read by the petitioners as affirming that it is a case of compartmentalised reservation. May be or may not be. It appears that while issuing the said notification, the Government was not conscious of the distinction between overall horizontal reservation and compartmentalised horizontal reservation. At any rate, it may not have had in its contemplation the situation like the one which has arisen now. This is probably the reason that this aspect has not been stated in clear terms.

It would have been better - and the respondents may note this for their future guidance - that while providing horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally correct to presume that <ORG> was not aware of this distinction between "overall horizontal reservation", since it appears from the judgment in <NAME> that in the first notification issued by <ORG> on May 17, 1994, the thirty percent reservation for ladies was split up into each of the other reservations. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty seven percent but at the same time it was stated that thirty percent of those seats were reserved for ladies. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalised horizontal reservation". We are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are comparmentalised in the sense explained above. In other words, the notification inviting applications should itself state not only the percentage of horizontal reservation(s) but should also specify the number of seats reserved for them in each of the social reservation categories, viz., S.T., S.C., <ORG> and O.C. If this is not done there is always a possibility of one or the other vertical reservation category suffering prejudice as has happened in this case. As pointed out hereinabove, 110 seats out of 112 seats meant for special reservations have been taken away from the O.C. category alone - and none from the <ORG> or for that matter, from S.C. or S.T. It can well happen the other way also in a given year.

Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen percent special reservation seats to be filled up first and then take up the O.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T. quotas). The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special rreservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the O.C. quota.

In this connection, we must reiterate what this Court has said in <NAME>. While holding that what may be called "horizontal reservation" can be provided under clause (1) of Article 16 , the majority judgment administered the following caution in para 744: "(B)ut at the same time, one thing is clear. It is in very exceptional situation - and not for all and sundry reasons - that any further reservations of whatever kind, should be provided under clause (1). In such cases, the <ORG> has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress the specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simply. If reservations are made both under clause (4) as well as under (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do". Though the said observations were made with reference to clauses (1) and (4) of Article 16 , the same apply with equal force to clauses (1) and (4) of Article 15 as well. In this case, the reservation of fifteen percent of seats for special categories was on very high side. As pointed out above, two categories out of them representing six percent out of fifteen percent are really reservations under Article 15(4 ), wrongly treated as reservations under Article 15(1). Even otherwise, the special reservation would be nine percent. The respondents would be well advised to keep in mind the admonition administered by this Court and ensure that the special reservations (horizontal reservations) are kept at the minimum.

Having pointed out the errors in the rule of reservation and its implementation, the question arises what should be done now? Should we interfere with the admissions already finalised? We think it inadvisable to do so. It may be remembered that the admissions now finalised (in June- July, 1995) are really the admissions which ought to have been finalised one year back. The delay has occured on account of the first faulty notification (issued on May 17, 1994). When a writ petition was filed in this court - probably some writ petitions in <ORG> also - the Government realised its mistake and issued the revised notification on December 17, 1994. It dropped the reservation in favour of women in stages. The <ORG> had then to issue a corrigendum asking the special category candidates to indicate their social status. This was a delayed exercise which ought to have been undertaken at the beginning itself. Even the manner in which the seats have been filled up, as indicated above, is faulty. What we have laid down herein is more for the purpose of future guidance for the respondents. At the same time, we have to rectify the injustice done to the open competition candidates in the admissions in question, to the extend feasible. Accordingly, we direct that in the matter of admissions made pursuant to C.P.M.T.1994, while the admissions already finalised shall not be disturbed, <ORG> shall create thirty four additional seats in the M.B.B.S. couse and admit thirty four students from the O.C. category against those seats. If any seats are vacant as on today, they shall also be filled from the O.C. category alone. (It is made clear that O.C. category means the merit list and no distinction shall be made among the candidates in the O.C. list on the basis of their social status because it is well settled that even a S.T./S.C./O.B.C. candidate is entitled to obtain a seat in the O.C. category on the basis of his merit.) The counsel for the petitioners complain that fifty four students belonging to O.C. category have been deprived on account of respondents' faulty actions and that it should be directed to be made up. We cannot agree. The factual basis of this submission is debatable in view of the ambiguity mentioned hereinbefore. We have directed creation of thirty four seats (making a total of 780 seats this year) having regard to all the facts and circumstances of the case. This creation of additional seats is restricted to current admissions only and shall not be a permanent feature. The Uttar Pradesh Government/concerned authorities shall allocate the said thirty four additional seats appropriately among the government medical colleges and make admissions thereto as early as possible.

We hope and trust that the respondents will ensure that a similar situation does not arise for the ensuing admissions.

The writ petitions are disposed of with the above terms. No costs.

A copy of this judgment shall be communicated to the Chief Secretary, <ORG> and the Secretary, <ORG>, <ORG> eo nomine (i.e., by their designation) for their attention and implementation.


JUDGMENT <NAME>, C.J.

1. In this case, the prisoner <NAME> was tried and convicted, at the February Sessions of the High Court, for using certain forged documents, and sentenced to ten years' transportation. At the trial before <NAME>, J., it was proposed on the part of the prosecution to put in a confession made by the prisoner. The confession was made, in the first instance, to two policemen, and taken down in writing, and the prisoner was then brought before the Deputy Commissioner of Police, Mr. <NAME>, at the Police Office in Calcutta, where he again affirmed the truth of his former statement to Mr. <NAME>, and Mr. <NAME>, in his capacity of a Magistrate, received and attested the statement.

2. Upon this confession being tendered in evidence, it was objected to by the prisoner's Counsel, upon the ground that it was a confession made by the prisoner to a police officer, and therefore not admissible, by reason of the 25th section of the Evidence Act (I of 1872). In answer to this objection, it was urged on the part of the prosecution, 1st, that Mr. <NAME> was not a "police officer" within the meaning of the section; 2nd, that, if he were, the statement was made to him as a Magistrate, and not as a police officer; and that the 26th section was intended to qualify the 25th, so as to make a statement even to a police officer admissible, if made in the presence of a Magistrate. The learned Judge at the trial admitted the evidence, and declined to reserve the point; but the Advocate-General having since given a certificate, under Section 26 of the Letters Patent of the High Court, that the point was a proper one to be considered, it has been brought before this Court for review, and has been well and fully argued before us.

3. It was urged by Mr. <NAME>, for the prisoner, that the terms of Section 25 are imperative; that a confession made to a police officer, under any circumstances, is not admissible in evidence against him, and that the 26th section is not intended to qualify the 25th, but means that no confession made by a prisoner in custody, to any person other than a police officer, shall be admissible, unless made in the presence of a Magistrate. I am of opinion that this is the true meaning of the 25th section. Its humane object is to prevent confessions obtained from accused persons through any undue influence, being received as evidence against them. It is an enactment to which the <ORG> should give the fullest effect, and I see no sufficient reason for reading the 26th section so as to qualify the plain meaning of the 25th.

4. But then comes the question whether Mr. <NAME> was a police officer within the meaning of Section 25 . It was argued, and with some force, that the term " police officer" did not mean a Deputy Commissioner of Police; that it comprised only that class of persons who are called in the Bengal Police Act (Beng. Act IV of 1866) "members of <ORG>;" and that the object of the Evidence Act was not to prevent a gentleman in Mr. <NAME>'s position from taking a confession, but only ordinary members of <ORG>, who are personally and constantly engaged in the detection of crime and the apprehension of offenders.

5. There is no doubt that, looking at the various sections of Beng. Act IV of 1866, the Deputy Commissioner of Police is not a member of <ORG> within the meaning of that Act, and, moreover, on looking back to the Police Act of 1861, it will be found that the term "police officer," as used in that Act, has generally the same meaning as a member of <ORG> in the Act of 1866; but, in construing the 25th section of the Evidence Act of 1872, I consider that the term "police officer" should be read not in any strict technical sense, but according to its more comprehensive and popular meaning. In common parlance and amongst the generality of people, the Commissioner and Deputy Commissioner of Police are understood to be officers of police, or in other words "police officers," quite as much as the more ordinary members of the force; and, although in the case of a gentleman in Mr. <NAME>'s position, there would not be, of course, the same danger of a confession being extorted from a prisoner by any undue means, there is no doubt that Mr. <NAME>'s official character, and the very place where he sits as Deputy Commissioner, is not without its terrors in the eyes of an accused person; and I think it better in construing a section such as the 25th, which was intended as a wholesome protection to the accused, to construe it in its widest and most popular signification.

6. I am of opinion, therefore, that the confession made by the prisoner in this case ought not to have been admitted at the trial.

7. But then comes the further very important question, what should be the effect of this improper admission of evidence on the proceedings? The 167th section of the Evidence Act provides that "the improper admission of evidence shall not be ground of itself for the reversal of any decision in any case, fi it shall appear to the <ORG> before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision;" and I was certainly disposed to think, before hearing Mr. <NAME>'s argument, not only that this section applied to criminal as well as civil cases, but that the <ORG> which had to determine whether, independently of the evidence objected to, there were sufficient materials to justify, a conviction, was the <ORG> below, before which the case was originally tried; and, upon this assumption, my learned colleague and I consulted <NAME>, J., who certified that there was ample evidence in the <ORG> below, independently of the admission, to justify the conviction in this case.

8. Mr. <NAME>, however, desired to be heard upon the effect of Section 167 , and he had urged upon us,--first, that the section does not apply at all to criminal cases, and, secondly, that, if it does, the <ORG> to determine whether the conviction ought to stand, is not the <ORG> which tried the case, but the <ORG> before whom the point of the admissibility of the evidence was argued. Mr. <NAME> insisted that the word decision" used in Section 167 was one inapplicable to a criminal case tried on the original side of this <ORG>, and that it never could have been intended by the <ORG> that a case triable by a jury, and of the facts of which a jury alone are the proper judges, should be virtually re-tried by any <ORG> not consisting of a jury; and in aid of his argument, he cited the case of Reg. v. <NAME> 9 Bom. H.C.R. 358.

9. I am unable, however, to discover any sufficient reason why the 167th section of the Evidence Act should not apply to criminal as well as civil cases. It is perfectly true that the word "decision" is more generally used as applicable to civil proceedings, but it is by no means inappropriate to criminal cases; and, if it was the intention of the <ORG> to use an expression which would apply equally to civil as to criminal proceedings, there is probably no other word which would have answered their purpose better. Many other provisions of the Evidence Act apply equally to all judicial enquiries, and, if the nature of the mischief which the section was intended to remedy is considered, there is at least as much reason why it should apply to criminal as to civil proceedings. The <ORG> have no power in a criminal case to order a new trial, and, if, in each instance, where evidence is improperly admitted or rejected, the conviction is to be quashed, a lamentable failure of justice would often be the consequence.

10. I am of opinion therefore that Section 167 does apply to criminal cases, but, upon consideration, I think that the Court mentioned in that section which is to decide upon the sufficiency of the evidence to support the conviction is <ORG>, and not the Court below. The point is certainly "raised," properly speaking, in the Court below, but it is both raised and argued in <ORG>, and we think that the proper course of proceeding is for <ORG> to decide upon the case, upon being informed from the Judge's notes, and, if necessary by the Judge himself, of the evidence adduced at the trial.

11. Apart, however, from Section 167 of the Evidence Act, I think that, under Section 26 of the Letters Patent, by virtue of which this case has been submitted to us for review, we have a right either to quash or to confirm the conviction, as we may think proper. The section enables the <ORG>, after deciding upon the point reserved or certified, to pass such judgment or sentence as it may think right. If, therefore, upon reviewing the whole case, we are of opinion that, upon the evidence properly received, there is sufficient ground to convict the prisoner, I consider that we ought to allow the conviction to stand. In the present case, therefore, we have obtained copies of the Judge's notes at the trial, and have also obtained information from the Judge as to what particular portion of the evidence applied to the prisoner <NAME>, and we are now prepared to hear the case argued upon its merits, as to whether there is sufficient evidence, apart from that improperly admitted, to support the conviction.

<ORG>, J.

12. I also am of opinion that the confession made by the prisoner in Mr. <NAME>'s presence ought not to have admitted at the trial. Without going so far as to say that Section 25 of the Evidence Act renders inadmissible a confession made to any person connected with the police, for there are cases in which a person holding high judicial office has control over and is the nominal head of the police in his district, I think that, in the present case, it was impossible for Mr. <NAME>, residing in the house allotted to him as Deputy Commissioner of Police, and surrounded by police immediately under his control, to divest himself of his character of a police officer. I also agree that, under Clause 26 of the Letters Patent, which clause deals with cases tried before a jury, we are bound to consider the admissible evidence in this case, and to pass such judgment and sentence as we shall think right, and I come to this conclusion without reference to Section 167 of the Evidence Act.

13. I agree that such last mentioned section is applicable to criminal trials, but I have some doubt whether, if we were proceeding under it alone, we should be the proper <ORG> to consider the sufficiency or insufficiency of the evidence in relation to the verdict. (The counsel for the prisoner then went through the evidence to show that it was insufficient, apart from the confession, to justify the conviction being upheld. A certificate by a majority of the jury who tried the case, to the effect that if the confession had not been in evidence they would have given a verdict of acquittal, was tendered, but was rejected by the <ORG>. The <ORG> took time to consider their judgment, and eventually upheld the conviction on the evidence).


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF, MADRAS.(with connected appeals) DATE OF JUDGMENT: 28/11/1956 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> DAS, <NAME> (CJ) <NAME>, <NAME>, BHUVNESHWAR P. DAS, S.K. CITATION: 1957 AIR 297 1957 SCR 399 ACT: Madras Prohibition Act, 1937 (Mad. X Of 1937), ss. 4(1), 4(2), 28, 29, 30, 3I, 32-Constitutional validity-Legislative competency Pith and substance of the legislation -The Government of India Act, 1935 (26 Geo. 5 & 1 Edw. 8 Ch. 2), s. 1O7(r), Sch. 7 List II, Entry 31-Constitution of India, Art. I4. HEADNOTE: The appellants were charged before the Presidency Magistrate for offences under the Madras Prohibition Act, 1937 and when the cases were taken up for trial they raised the contentions that SS. 4(2) and 28 to 32 of the Act are void under S. 107(I) of the Government of India Act, 1935, because they are repugnant to the provisions of the Indian Evidence Act , 1872, and the Code of Criminal Procedure, 1898, and also because they are repugnant to Art. 14 Of the Constitution of India. On their application, the Magistrate referred the questions for the opinion of <ORG> under S. 432 ' of the Code of Criminal Procedure. <ORG> 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 <ORG> 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. <NAME> v. <NAME>, (1940) F.C.R. 188, <CITATION> . (1940) L.R. 74 I.A. 23 and <CITATION> (1949) F.C.R. 693, relied on. Held further, that the presumptions in s. 4(2) Of the Act do not off end the requirements as to equality before law or the equal protection of laws under Art. 14 , as they have to be raised against all persons against whom the facts mentioned therein are established. Even assuming that the law in America that a presumption of guilt would offend the requirement of the equal protection of laws unless there is a rational connection between the act proved and the ultimate fact presumed, could have application to the Indian Constitution, on a proper reading of the sections there is a reasonable relation between the presumption raised in S. 4(2) and the offences under s. 4(1) . <NAME> v. <ORG>, 24I U.S. 79; 6o L. Ed. 899, <NAME> 1. Adams v. People of the State of New York, 192 U.S. 585 48 L. Ed. 575 and <CITATION> , 258 U.S. I 66 L. Ed. 431, referred to. JUDGMENT:

CRIMINAL APPELLATE, JURISDICTION: Criminal Appeals Nos. 20 to 23 of 1955.

Appeals by special leave from the judgment and order dated May 7, 1954, of <ORG> in Criminal Revision Cases Nos. 57 to 60 of 1954 and Case Referred Nos. 2 to 5 of 1954.

<NAME>, <NAME> and <NAME>, for the appellants.

<NAME>, Advocate-General, Madras, <NAME> and <NAME>, for the respondent.

1956. November 28. The Judgment of the Court was delivered by <NAME> <NAME> point for decision in these appeals is whether ss. 4(2), 28, 29, 30, 31 and 32 of the Madras Prohibition Act No. X of 1937, hereinafter referred to as the Act, are unconstitutional and void.

It will be convenient first to set out the impugned statutory provisions. Section 4 , omitting what is not material runs as follows;

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 any rule, notification, order, licence or permit issued thereunder. (2) It shall be presumed until the contrary is shown-

(a) that a person accused of any offence under clauses (a) to (j) of sub-section (1) has committed such offence in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug, for the possession of which he is unable to account satisfactorily ; and

(b) that a person accused of any offence under clause (k) of sub-section (1) has committed such offence if an offence is proved to have been committed in premises in his immediate possession in respect of any liquor or intoxicating drug or any still, utensil, implement or apparatus whatsoever for the tapping of toddy or the manufacture of liquor or any intoxicating drug, or any such materials as are ordinarily used in the tapping of toddy or the manufacture of liquor or any intoxicating drug.

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 <ORG> or <ORG> 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, <NAME>, was residing at the premises, and the other three appellants, <CITATION> , 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 <NAME> were charged under ss. 4 (1) (a) and 4 (1) (j) for possession and consumption of liquor, and <NAME> 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 repugnant to the provisions of the Constitution, and were therefore void, and prayed that the above question might be referred for the decision of <ORG>. The Third Presidency Magistrate, before whom the proceedings were pending, allowed the application, and referred to <ORG> as many as seven questions on the constitutionality of various sections of the Act. This reference was heard by <NAME>, <NAME>, and <NAME>, J., who held, disagreeing with the appellants, that ss. 4(2) and 28 to 32 were valid,, and answered the reference against them. Against this judgment, the appellants have preferred the present appeals under Art. 136 of the Constitution. Two contentions have been urged in support of the appeals: (1) Section 4(2) and sa. 28 to 32 of the Act are void under s. 107 of the Government of India Act, 1935, which was the Constitution Act in force when the Act in question was passed, because they are repugnant to the provisions of existing Indian laws with respect to the same matter, to wit, Indian Evidence Act I of 1872 and Criminal Procedure Code Act No. V of 1898, and (2) the impugned sections are repugnant to Art. 14 of the Constitution, and have therefore become void under Art. 13(1).

(1) Taking the first contention, the point for' decision is whether the impugned provisions are hit by s. 107 of the Government of India Act, 1935. Subsection (1) of s. 107 , which is the relevant provision, runs as follows: "If any provision of a Provincial law is repugnant to any provision of a Federal law which the Federal legislature is competent to enact or to any provision of an existing Indian law with -respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Federal law, whether passed before or after the Provincial law, or, as the case may be, the existing Indian law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void. " For this section to apply, two conditions must be fulfilled: (1) The provisions of the Provincial law and those of the Central legislation must both be in respect 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 <ORG>, with respect to any of the matters in this list; procedure in <ORG>.

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 Act.

5. Evidence and oaths; recognition of laws, public acts and records and judicial proceedings.

Now, it is not contested that the Madras Prohibition Act, as a whole, is a law in respect of intoxicating liquors, falling within Entry 31 of the Provincial list. The declared object of the enactment as stated in the preamble to it is "to bring about the prohibition...... of the production, manufacture, possession, export, import, transport, purchase, sale and assumption of intoxicating liquors............ And this is carried out in s. 4(1), which enacts prohibition in respect of the above matters, and imposes penalties for breach of the same. The other provisions of the Act may broadly be divided into those which are intended to effectuate s. 4(1) and those which regulate the grant of licences and permits. The legislation is thus on a topic which is reserved to the Provinces and would therefore fall outside a. 107(1) of the Constitution Act .

The argument of Mr. <NAME> for the appellant is that though the Act is within the competence of <ORG> in so far as it prohibits possession, sale, consumption, etc., of liquor under 3. 4(1), the matters dealt with under s. 4(2) and ss. 28 to 32 fall not within Entry 31 of List II but within Entries 5 and 2 respectively of List III, and to that extent, the legislation is on matters enumerated in the Concurrent List. He contends that a. 4(2) enacting as it does a presumption to be drawn by the court on certain facts being established, deals with what is purely a matter of evidence, and it is therefore not a law on intoxicating liquors but evidence. Likewise, he argues, the -provisions in ss. 28 to 32 deal with matters pertaining to Criminal Procedure, such as warrants, seizure and arrest, and have no connection with intoxicating liquors. It is accordingly contended that ss. 4(2) and 28 to 32 are legislation under Entries 5 and 2 of List III, and that their validity must be tested under s. 107(1) .

The appellants are right in their contention that s. 4(2) of the Act enacts a rule of evidence but does it follow from this that it is a law on evidence, such as is contemplated by Entry 5 in the Concurrent List ? so also ss. 28 to 32 undoubtedly deal with matters of Procedure in relation to crimes, but are they for that reason to be regarded as legislation on Criminal Procedure Code within Entry 2 of List III ? The basic assumption on which the argument of the appellants rests is that the heads of legislation set out in the several Lists are so precisely drawn as to be mutually exclusive. But then, it must be remembered that we are construing a federal Constitution, It is of the essence of such a Constitution that there should be a distribution of the legislative powers of the Federation between the <ORG> and the Provinces. The scheme Of distribution has varied with different Constitutions, but even when the Constitution enumerates elaborately the topics on which the <ORG> 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 <ORG> had time and again to pass on the constitutionality of laws made by the Dominion and Provincial legislatures. It was in this situation that <ORG> 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. <NAME>), <NAME> of Ontario v. The Attorney-General for the Dominion of Canada(1), <CITATION> for the Dominion(3 ), <ORG> v. Bryden(4) Attorney-General for' Canada v. Attorney-General for (1)  7 A. C. 96. (3)  A.C. 348.

(2) [1894] A.C. 189. (4) [1899] A.C. 580.

Ontario(,), Attorney-General for Alberta v. AttorneyGeneral for Canada(2 ), and <ORG> of Letherbridge Northern Irrigation District v. <ORG>).

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 <NAME> v. <NAME>), the question was as to whether the Madras Agriculturalist' Relief Act IV of 1938, which was within the exclusive competence of <ORG> 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 <ORG>. In holding that the legislation was intra vires, Sir <NAME> 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 <ORG> enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by <ORG> 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 <ORG> in <CITATION> . (5). There, the question was whether the Bengal Money- Lenders Act, 1940, which (1)  A.C. 355. (4)  F.C.R. 188. (2)  A.C. 117. (5) [1946-47] 74 I.A. 23. (3)  A.C. 513.

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 <ORG> under Item 27 of List II, but promissory note is a topic reserved for the <ORG>, vide List 1, Item 28. It was held by <ORG> 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 <ORG> under Entry 28. After quoting with approval the observations of Sir <NAME> in <NAME> v. <NAME>, (supra) above quoted, Lord <NAME> 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 <ORG> 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 <ORG> fields, Lord <NAME> 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 pith and substance of the impugned Act. Its provisions may advance so far into <ORG> 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 <ORG> in <CITATION> (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, <NAME> 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.

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 <ORG> to invoke the powers under Item 2 of the Concurrent List."

He accordingly held that the entire legislation fell within Entries I and 2 of List II, and that no question of repugnancy under s. 107(1) arose. This reasoning furnishes a complete answer to the contention of the appellants. The position, then, might thus be summed up When a law is impugned-on the ground. that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might inci- dentally trench on matters which are beyond its competence. It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not. Now, the Madras Prohibition Act is, as already stated, both in form and in substance, a law relating to intoxicating liquors. The presumptions in s. 4(2) are not presumptions which are to be raised in the trial of all criminal cases, as are those enacted in the Evidence Act . They are to be raised only in the trial of offences under s. 4(1) of the Act. They are therefore purely ancillary to the exercise of the legis- lative power in respect of Entry 31 in List 11. So also, the provisions relating to search, seizure and arrest in sections 28 to 32 are only with reference to offences 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 <ORG>, 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. <NAME> 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 <NAME> in <NAME> v. <ORG> (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. <ORG> v. <NAME>)."

(1) 241 U.S. 79 at 86-87 ; 60 L. Ed. 899, 904.

(2) 219 U.S. 35, 43; 55 L. Ed. 78, 80.

The law on this subject is thus stated by <NAME> 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 <NAME> v. <ORG> (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 <ORG> 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.

<CITATION> (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 <ORG> observed: " Distilling spirits is not an ordinary incident of a farm, and, in a prohibition state, has illicit character and purpose, and certainly is not so silent and obscure in use that one who rented a farm upon which it was or had been conducted would probably be ignorant of it. On the contrary, it may be presumed that one on such a farm, or one who occupies it, will know what there is upon it. It is not 'arbitrary for the state to act upon the presumption and erect it into evidence of knowledge;. not peremptory, of course, but subject to explanation, and affording the means of explanation."

It is therefore clear that even on the application of the due process clause, the presumptions laid down in s. 4(2) cannot be struck down as unconstitutional. We should add that the construction which the appellants seek to put on s. 4 (2) that a person in possession of liquor could, under that section, be presumed to have committed an offence under s. 4(1) (g) or that a person who is in possession of materials, implement or apparatus could be presumed to have committed offences under s. 4 (1) (a) and (j) is not correct. In our opinion, the matters mentioned in s. 4 (2) should be read distributively in relation to the offences mentioned in s. 4(1) . Possession of liquor, for example, is an offence under s. 4(1) (a). The presumption in s. 4(2) is that if it is found in the possession of a person, he should be presumed to have committed the offence under s. 4(1)(a) , unless he could give satisfactory explanation therefor, as for example, that it must have been foisted in the place without his knowledge. Likewise, it would be an (1) 258 U.S. 1 ; 66 L. Ed. 431.

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. Appeals dismissed.