The main legal point established in the judgment is that the Provincial Legislature had no power to repeal the Abkari Acts in so far as dangerous drugs are concerned, and the convictions and sentences of the petitioners were set aside.

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, st