ORDER
Alfred Henry Lionel Leach, C.J.
1. These three petitions all raise the question whether Section 4(1)(a) of the Madras Prohibition Act, 1937 is ultra vires the Provincial Legislature in so far as it relates to dangerous drugs. Section 4(1)(a) states that whoever imports, exports, transports or possesses liquor or any intoxicating drug shall be punished with imprisonment which may extend to six months or with fine which may extend to one thousand rupees, or with both. To the sub-section there is a proviso which says that nothing contained in the sub-section shall apply to any act done under, and in accordance with, the provisions of the Act or the terms of any rule, notification, order, licence or permit issued thereunder, but so far as dangerous drugs are concerned, the total prohibition imposed by the sub-section has been left unaffected.
2. The petitioners reside in the North Arcot district of the Madras Presidency and have been convicted on charges framed under this sub-section of being in unlawful possession of ganja. The petitioner in Criminal Revision Case No. 1052 of 1940 was sentenced in the Court of the Second Class Magistrate of Vellore to four months' rigorous imprisonment for being in. possession of ten tolas of ganja. The petitioner appealed to the Sub Divisional Magistrate of Vellore, who confirmed the conviction and sentence. The Second Class Magistrate of Vellore convicted the petitioner in Criminal Revision Case No. 1053 of 1940 of being in possession of one tola of ganja, and the petitioner in Criminal Revision Case No. 1054 of 1940 of being in possession of two grains of the drug, and sentenced them to four months' and six weeks' rigorous imprisonment respectively. These convictions and sentences were also upheld by the Sub Divisional Magistrate.
3. Ganja, which is a form of Indian hemp, is not only an intoxicating drug, but is regarded as a dangerous drug both in England and India. The English Act, is the Dangerous Drugs Act, 1925. Section 1 (2) of that Act defines Indian hemp as meaning dried flowering or fruiting tops of the pistillate plant known as cannabis satival, from which the resin has not been extracted, by whatever name such tops are called. The Indian Act is the Dangerous Drugs Act, 1930. Hemp is defined by Section 2 (c) of that Act as meaning:
(i) the leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (cannabis salival), including all forms known as bhang, siddhi or ganja;
(ii) Charas, that is the resin obtained from the Indian hemp plant, which has not been submitted to any manipulations other than those necessary for packing and transport, and
(iii) any mixture, with or without neutral materials, of any of the above forms of hemp or any drink prepared therefrom.
4. Rule 2 of the Hemp Drugs Rules which were framed and notified under the Madras Abkari Act, 1886, as subsequently amended, defines ganja as meaning the dried flowering tops of cultivated female hemp plants which have been coated with resin in consequence of having been unable to seed freely and by Rule 3, 'hemp drugs' are given the same definition as 'hemp' in the Indian Drugs Act, 1930.
5. The Madras Prohibition Act applies to the Salem, North Arcot, Cuddapah and Chittoor districts of the Madras Presidency. It came into force in the North Arcot district on the 1st October, 1939. Section 2 provides for the total repeal of the Madras Abkari Acts of 1886, 1905, 1913, 1915 and 1929 in respect of areas to which the Prohibition Act is applied and for the repeal of so much of Schedule II of the Dangerous Drugs Act, 1930 as relates to the Madras Abkari Act, 1886. With the exception of the Dangerous Drugs Act, 1930, which is an Act of the Central Legislature, all these Acts are local Acts, being either the Acts of the Governor of Fort St. George in Council or of the Madras Legislature.
6. The Madras Abkari Acts did not prohibit the possession of ganja altogether. Section 13 of the Act of 1886, as amended by subsequent Acts, states that no person, not being a licenced manufacturer or vendor of liquor or intoxicating drugs shall have in his possession any quantity of liquor or intoxicating drugs in excess of such quantities as the Governor in Council may from time to time prescribe by notification, unless under a licence granted by the Collector in that behalf. The Hemp Drugs Rules framed under statutory authority were notified on the 1st February, 1936. By Rule 23, a person may have in his possession in the Agency Tracts of Ganjam, Vizagapatam and East Godavari any quantity of ganja not exceeding six tolas, in the Madras District any quantity not exceeding two tolas, and elsewhere in the Presidency, any quantity not exceeding three tolas. Therefore, before the application of the Prohibition Act to the North Arcot district, a person there could lawfully possess three tolas of ganja.
7. The petitioners say that in passing the Prohibition Act the Madras Legislature had no power to repeal the Abkari Acts so far as the possession of dangerous drugs is concerned or to prohibit the possession of such drugs, and they rely on the provisions of Section 107 of the Government of India Act, 1935. Eliminating the words of Sub-section ( I ) of that section which have no application here, the sub-section says that if any provision of a Provincial law is repugnant 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 the section, the existing Indian law shall prevail, and the Provincial law shall, to the extent of the repugnancy, be void. Sub-section 2 provides that where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List contains a provision repugnant to the provisions of an existing Indian law with respect to the matter, then, if the Provincial law having been reserved for the consideration of the Governor-General, or for the signification of His Majesty's pleasure, has received the assent of the Governor-General or of His Majesty, the Provincial law shall in that Province prevail, subject to a right given to the Federal Legislature to enact further legislation with respect to the same matter after obtaining the previous sanction of the Governor-General in his discretion.
8. Section 311(2) defines 'existing Indian law' as meaning:
any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of Part III of this Act by any Legislature, authority or person in any territories for the time being comprised in British India, being a Legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation.
9. Part III of the Government of India Act, 1935 came into force on the 1st April, 1937, and the learned Advocate-General naturally concedes that the rules framed under the Madras Abkari Act, 1886, as amended, constitute an existing Indian law within the meaning of Section 107 of the Government of India Act, 1935.
10. A Provincial Legislature has power, subject to restrictions, to legislate with regard to intoxicating liquors and narcotic drugs. The power and the restrictions are both embodied in Clause 31 of the Provincial Legislative List. This Clause reads as follows:
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 III.
11. List III is the Concurrent Legislative List and by reason of the terms of Clause 31 of the Provincial Legislative List a Provincial Legislature in legislating with regard to intoxicating liquors and narcotic drugs can only do so subject to the provisions of the Act relating to the Concurrent Legislative List and Clause 19 of the Concurrent Legislative List places dangerous drugs in that list.
12. Dangerous drugs being in the Concurrent Legislative List and there being an existing Indian law permitting ganja to be possessed, the Madras Legislature could not by reason of the provisions of Section 107 legislate to prohibit entirely the possession of ganja without reserving the measure for the consideration of the Governor-General, or for the signification of His Majesty's pleasure. The Prohibition Act was not reserved for the assent of the Governor-General or for the signification of His Majesty's pleasure and this being the case the Madras Legislature had no power to interfere with the Madras Abkari Acts so far as the possession of dangerous drugs was concerned.
13. The learned Advocate-General has very properly said that he cannot resist this argument, but he has asked the Court not to declare Section 4(1)(a) of the Prohibition Act to be ultra vires the Provincial Legislature altogether so far as dangerous drugs are concerned. Pointing to the words 'to the extent of the repugnancy' in Section 107 of the Government of India Act, 1935, the learned Advocate-General suggests that the Court should re-write Sub-section 4 (1) (a) of the Prohibition Act to make it read that no person shall be in possession of ganja in excess of the quantities allowed by Rule 23 of the Hemp Drugs Rules. The Court has no power to re-write the sub-section. The effect of Section 107 of the Government of India Act, 1935 is that where the offending statute offends to a limited extent it shall be void only so far as it is repugnant to the dominant measure. As Section 4(1)(a) now stands, it is entirely repugnant to the Hemp Drugs Rules because it prohibits a person possessing any ganja whatsoever. Therefore it must be declared to be completely ultra vires so far as the possession of ganja or any other dangerous drug is concerned. The learned Advocate-General has been unable to point to a single case, Canadian or Australian, which supports the contention that the Court is entitled to say that Section 4(1)(a) is only ultra vires the Provincial Legislature in part so far as dangerous drugs are concerned. If the Prohibition Act had permitted of the possession of ganja in quantities different from those permitted by the Hemp Drugs Rules, the position would have been different, but here the Prohibition Act imposes a total prohibition and therefore there is no room for even a partial reconciliation of the two Acts.
14. It follows from what has been said that the Provincial Legislature had no power to repeal the Abkari Acts in so far as dangerous drugs are concerned and those Acts and the rules made thereunder remain in force in relation to ganja, which means that the petitioners in Criminal Revision Cases Nos. 1053 of 1940 and 1054 of 1940 have been wrongly convicted, because they were not in possession of more ganja than the law allowed. Consequently, their convictions and sentences will be set aside.
15. The conviction of the petitioner in Criminal Revision Case No. 1052 of 1940 stands on a different basis. While the Court was wrong in convicting her under Section 4(1)(a) of the Prohibition Act, she did commit an offence under the Abkari Act, 1886, as amended. She was found to be in possession of ten tolas of ganja whereas the maximum she could have lawfully held without a licence granted by the Collector was three tolas and she possessed no licence to hold a larger quantity than three tolas. The conviction under the Prohibition Act will be altered to a conviction under Section 55 of the Madras Abkari Act, but the sentence will be reduced to one of rigorous imprisonment for twenty days, the period during which she was in prison before being liberated on bail.
16. A certificate will be issued under Section 205 of the Government of India Act, 1935 to the effect that the cases involve a substantial question of law as to the interpretation of the Act.