P.K. Goswami, J.
1. This Criminal revision is directed against the petitioner's conviction under Section 4 of the Assam Liquor Prohibition Act, for consuming liquor in the prohibited area, and sentence of three months' rigorous imprisonment and a fine of Rs. 100/-, in default one month's rigorous imprisonment.
2. Briefly the prosecution case is that on the night of 22nd of March. 1964 at about 9 P. M. the accused petitioner was found in a drunken state at the platform of Jakhalabandha Railway Station. He was caught by the Excise staff and then produced before the Medical Officer at Silghat Dispensary, who examined him then and there, and found as follows:
(1) Smell of alcohol in breath found.
(2) Conjunctiva congested,
(3) Gait unsteady.
(4) Speech incoherent.
In the opinion of the doctor, the accused took alcohol in sufficient quantity as to make him intoxicated.
3. The accused pleaded not guilty to the charge and stated that he did not take liquor. The learned Magistrate examined the doctor and two Excise officials. The accused did not adduce any evidence. The learned Magistrate relying on the evidence of the prosecution convicted the accused, and the learned Additional Sessions Judge on appeal affirmed the conviction.
4. The State Legislature of Assam passed the Assam Liquor Prohibition Act (Assam Act I of 1953), hereinafter called 'the Act', in 1953. This Act has since been amended. The preamble of the Act shows that it was passed in order to prohibit consumption and manufacture of liquor in and smuggling thereof into the Sub-division of Barpeta and in other areas of the State as may be necessary from time to time. The Act has since been extended to other areas and it is not disputed that the place, where the offence Is said to have been committed in this case, is within the prohibited area. This Act has since been amended by four successive Acts, namely, Assam Act XXXI of 1953, Assam Act XIII of 1956, Assam Act XIX of 1956 and Assam Act XI of 1963, and we will describe them hereinafter as the first, second, third and fourth amendment, respectively. The definition of liquor is given under Section 2(3) and it has been amended under the second and third amendments. The third amendment besides deleting the Explanation inserted new Sections 3-A, 3-B and 3-C. In the fourth amendment, inter alia, another Section 3-A is added regarding presumption as to the State of drunkenness. Section 3-A in this amendment is not numerically correct as there had already been a Section 3-A introduced in the third amendment. We will, therefore, refer to this section as Section 3-A (1963) and the earlier Section 3-A as Section 3-A (1956) to avoid confusion. The original definition of liquor under Section 2(3) runs as follows:
'Liquor' means any intoxicating liquor and includes all liquid consisting of or containing alcohol, also tari and pachwai in any form and any substance which the State Government may, by notification, declare to be liquor for the purposes of this Act.
Explanation.--This definition shall not apply to any toilet preparation or medicine containing alcohol.
This definition as it stands after the amendments reads as follows:
'Liquor' means any intoxicating liquor and includes all liquid consisting of or containing alcohol, also Tari containing alcohol and Pachwai in any form and any substance which the State Government may, by notification, declare to be liquor for the purpose of this Act.
Explanation.--Tari in an unferment-ed stage is not included within the term liquor and is exempted from the operation of this Act.
By the third amendment, as noted earlier, the following new sections were inserted:
3A. Provisions of the Act not to apply to certain articles.--Nothing in this Act shall be deemed to apply to--
(1) Any toilet preparation containing alcohol which is unfit for use as intoxicating liquor;
(2) Any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor;
(3) Any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor;
(4) Any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor,
3B. Board of Experts,--(1) For the purpose of determining whether any of the preparations mentioned in 3-A is fit or likely to be used as intoxicating liquor the State Government shall constitute a Board of Experts.
(3) It shall be the duty of the Board to advise the State Government on the question of whether any article or preparation containing alcohol is fit for use as intoxicating liquor and on such other matters incidental thereto as may be referred to it by the State Government.
3C. Restrictions on use of medicinal and toilet preparations,--On the advice of the Board constituted under Section 3A, the State Government may by notification in the official Gazette declare any such preparation to be liquor within the definition of the Act and thereupon the State Government may, notwithstanding anything contained in any other provision of the Act, impose such restriction and in such manner as may be prescribed.'
By the fourth amendment, an important Section 3A has been introduced which we will, as stated earlier, describe as Section 3A (1963):
3A. Presumption as the (sic) state of drunkenness.--Whenever any person is found in a state of drunkenness within a prohibited area, the Court shall presume that the person has consumed liquor within the prohibited area.
The result is that medicinal and toilet preparations containing alcohol which are unfit for use as intoxicating liquor, are excluded from the provisions of the Act. But if on the advice of the Board of Experts to the effect that such articles containing alcohol are fit for use as intoxicating liquor, the Government may declare such preparation to be liquor within the meaning of the Act and it may also impose such restrictions as may be necessary.
It is thus clear that liquor under the definition includes all liquid consisting of or containing alcohol and at the same time toilet or medicinal preparations etc. containing alcohol which are unfit for use as intoxicating liquor are excluded from the definition separately under Section 3A (1956).
Broadly speaking there are the following prohibitions under the Act which may be grouped under two categories. Firstly, no person shall import, transport, possess, sell or buy or manufacture liquor, use or keep any material for manufacture of liquor. These prohibitions are subject to condition for the issue of license under Section 21. The second category is that no person shall consume liquor except on a prescription from a registered medical practitioner. This prohibition is in terms conditional. Section 20 provides for permit for use or consumption of foreign liquor on certain conditions. So far as the first category is concerned, it is ap-parent that the liquor must be produced in court in order to satisfy it that what is produced is liquor within the meaning of the Act. To illustrate, prior to the third amendment, suppose some liquid is produced in Court as liquor by the prosecution, it has to establish that the liquid produced is intoxicating liquor or contained alcohol and that it is not toilet or medicinal preparations containing alcohol. After the third amendment also, prosecution has to establish in addition to the above that what is produced in Court is not toilet or medicinal preparation etc. containing alcohol which is unfit for use as intoxicating liquor. Under Section 3C on the advice of the Board of Experts to the effect that such articles are fit for use as intoxicating liquor. Government may declare such toilet, medicinal or other preparations mentioned in Section 3A as liquor within the definition of the Act and impose such restrictions as may be prescribed. Our attention has not been drawn to any such declaration by the Government. Assuming there are some articles declared as liquor, the prohibitions of the Act will apply. But if there is no such declaration by the Government, it cannot be assumed that all such articles mentioned in Section 3A are unfit for use as intoxicating liquor in absence of proof to that effect. While dealing with the expression 'unfit for use as intoxicating liquor' appearing in the Bombay Prohibition Act, in : AIR1962SC579 , the Supreme Court observed as follows: (Naran Das's case)
Again the preparation even if it is medicinal, toilet, antiseptic or flavouring must be unfit for use as intoxicating liquor i.e., it must be such that it must not be capable of being used for intoxication without danger to health. If the preparation, may be consumed for intoxication, it would still not attract the application of Section 24A provided the intoxication would not be accompanied by other harmful effects. A medicinal preparation which may, because of the high percentage of alcohol contained therein, even if taken in its ordinary or normal dose intoxicate a normal person, would be regarded as intoxicating liquor. The medicinal preparation containing a small percentage of alcohol may still be capable of intoxicating if taken in large quantities but if consumption of the preparation in large quantities is likely to involve danger to the health of the consumer, it cannot be regarded as fit for use as Intoxicating liquor.
It will be useful to have a look at the Bombay Prohibition Act, 1949, some of the provisions of which were declared Invalid by the Supreme Court in Balsara's case AIR 1951 SC 318. For example un-like the definition of this term in the original Assam Act with the Explanation excluding toilet preparation or medicine containing alcohol, there was no such exclusion in the Bombay definition. Fazl Ali, J,, who delivered the judgment of the Court, summarised his conclusions as follows:
In the result I declare the following provisions of the Act only to be invalid:
(1) Clause (c) of Section 12, so far as it affects the possession of liquid medicinal and toilet preparations containing alcohol.
(2) Clause (d) of Section 12, so far as it affects the selling or buying of such medicinal & toilet oreparations containing alcohol.
(3) Clause (b) of Section 13, so far as it affects consumption tor use of such medicinal and toilet preparations containing alcohol.
Section 2(24) of the Bombay Act, defines 'Liquor' as including
(a) Spirit of wine, methylated spirits, wine, beer and toddy and liquids consisting of or containing liquor; and
(b) any other intoxicating substance which the Provincial Government may by notification in the Official Gazette declare to be liquor for the purposes of this Act.
The Act thereafter had to be amended by the Bombay Amendment Act, 26 of 1952, which added amongst others Section 24A, which without the two provisos in the Bombay Act corresponds to Section 3A of the Assam Act introduced by the third amendment. Another section was also introduced by the same amendment in the Bombay Act, namely Section 6A, of which Section 6A(l)(a), (b) and (c) materially correspond to Section 3B(1) of the Assam Act. Section 6A(2) materially corresponds to Section 3B(2) of the Assam Act. Section 6A(6) has two parts and the first part materially corresponds to Section 3B(3) and the second part in the Bombay Act introduces a presumption which is absent in Section 3C of the Assam Act.
In the above Naran Das's case : AIR1962SC579 (Supra) while dealing with the burden of proof, the Supreme Court observed as follows:
It was for the State to prove that the substance seized, if a medicinal preparation, was not unfit for use as intoxicating liquor. The State has even under the Prohibition Act to establish that the respondent has infringed the provisions contained in Sections 12 and 13' (which materially correspond to Section 3 of the Assam Act). 'Undoubtedly by virtue of Section 24A. the prohibitions do not apply to certain categories of toilet, medicinal, antiseptic and flavouring preparations. Even if they contain alcohol but on that ground the burden lying upon the State to establish in any given case. In which it is alleged that the accused has infringed the provisions contained in Sections 12 and 13, that the infringement was not in respect of an article or preparation which was covered by Section 24A, is not shifted on to the shoulders of the accused. Section 24A is in substance not an exception. It takes out certain preparations from the prohibitions contained in Sections 12 and 13. But the operation of Section 24A does not extend to all medicinal toilet, antiseptic or flavouring preparations containing alcohol; even if the preparation is a toilet, medicinal, antiseptic or flavouring preparation, if it is fit for use as intoxicating liquor, the prohibitions contained in Sections 12 and 13 will apply.
To summarise, in view of the relevant provisions of the Bombay Prohibition Act, which we have noticed above, as they stood prior to the amendment of Section 6A (6) and insertion of Sub-section (7) therein, by the Bombay Act 22 of 1960, the Supreme Court held that in a prosecution for offences for import and possession of liquor under Section 65(a)(l) and 66(b)(l) of the Bombay Act (which materially correspond to Section 4 of the Assam Act), the State had to prove that the substance seized, if a medicinal preparation, was not unfit for use as intoxicating liquor and that the accused had infringed the provisions contained in Sections 12 and 13.
In the next case reported in : 1966CriLJ597 , the same question came up for decision. After the amendment of Section 6A(6) and insertion of Sub-section (7) therein, by Act 22 of 1960, the Supreme Court gave effect to the presumption raised under Sub-section (7). Sub-section (7) of Section 6A of the Bombay Act reads as follows:
Until the State Government has determined as aforesaid any article mentioned in Sub-section (1) to be fit for use as intoxicating liquor, every other article shall be deemed to be unfit for such use.
The Supreme Court, therefore, found that by the amendment of Section 6A and by insertion of Sub-section (7) therein, there remained only one mode of proof regarding an article which is fit for use as intoxicating liquor and that is by obtaining the advice of the Board of Experts and recording its determination that the article is fit for use as intoxicating liquor and until so determined, every article mentioned in Sub-section (1) of Section 6A is to be deemed as unfit for use as intoxicating liquor. This presumption under Section 6(7), however, has been held to be rebuttable. After this amendment in the Bombay Act in 1960, therefore, there was no onus on the accused to establish that he has possessed or consumed medicinal or toilet preparation, which is unfit for use as intoxicating liquor as he can now rely on the presumption under Sub-section (7) in absence of a determination by the Government that the particular articles are fit for use as intoxicating liquor. The law as it stood after the amendment clearly enables the accused to rely on the presumption and unless it is rebutted by the prosecution, it will be deemed in law that a medicinal or toilet preparation possessed by the accused is unfit for use as intoxicating liquor, and in that view of the matter, the Supreme Court set aside the conviction of the accused in the above decision. The Supreme Court has noticed that the Bombay High Court in this case relied on the earlier decision of the Supreme Court in Naran Das's case : AIR1962SC579 (Supra) having lost sight of the amendment of the Act in 1960, and indeed in the aforesaid case the effect of Sub-section (7) of Section 6A did not fall to be considered. This is the position under the Bombay Act.
We may now read Section 3 of the Assam Act:
3. Prohibition. No person shall--
(1) import transport or possess liquor;
(2) sell or buy liquor;
(3) consume liquor except on a prescription from a registered medical practitioner;
(4) manufacture liquor; and
(5) use or keep any material, utensil, Implement or apparatus whatsoever for manufacture of liquor.
Section 4 after the fourth amendment, omitting the proviso, which is not material for our purpose, stands as follows:
4. Punishment for contravention. Whoever contravenes the provisions of Section 3 of this Act, shall be punished with imprisonment for a term which may extend to two years but not less than three months and also with fine which may extend to one thousand rupees but not less than one hundred rupees:
5. The learned Counsel submits that even if it be assumed that the accused consumed liquor, there is no evidence to establish that he consumed prohibited alcohol. His submission is that although the definition of liquor has undergone a change, the insertion of a new Section 3A (1956) excludes some type of liquor from the definition and in that respect the effect of the original definition continues in force although in another place in the same Act. He further submits that the presumption under Section 3A (1963) cannot relieve the prosecution of the duty to establish the offence charged. In this context he draws our attention to a decision of the Supreme Court in the case of Beharam Khurshid Pesikaka v. State of Bombay, reported in : 1955CriLJ215 , and relies on the following passage:
The High Court was in error in placing the onus on the accused to prove that) he had consumed alcohol that could be consumed without a permit merely on proof that he was smelling of alcohol. In our judgment, that was not the correct approach to the question. The bare circumstance that a citizen accused of an offence under Section 66 (b) is smelling of alcohol is compatible both with his innocence as well as his guilt. It is a neutral circumstance. The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of Section 13 (b) of the Prohibition Act. It may well be due also to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section. That being so, it is the duty of the prosecution to prove that the alcohol of which he was smelling was such that it came within the category of prohibited alcohols and the onus was not discharged or shifted by merely proving a smell of alcohol.
We should also read the following passage in the same decision:
The onus thus cast on the prosecution may be light or heavy according to the circumstances of each case. The intensity of the smell itself may be such that it may negative its being of a permissible variety. Expert evidence may prove that consumption in small dose of medicinal or other preparations permitted cannot produce the smell or a state of body or mind amounting to drunkenness. Be that as it may, the question is one of fact, to be decided according to the circumstance of each case. It is open to the accused to prove in defence that what he consumed was not prohibited alcohol, but failure of the defence to prove it cannot lead to his conviction unless it is established to the satisfaction of the judge by the prosecution that the case comes within the enforceable part of Section 13(b), contravention of which alone, is made an offence under the provisions of Section 66 of the Bombay Prohibition Act.
Counsel also relies upon a decision of a Single Bench of this Court, in the case of Harendra Nath Das v. State of Assam, reported in AIR 1967 Assam and Naga-land, 56. As seen from the original records of the case, the date of offence in this case was 21-8-61. Nayudu, C. J. relying upon the above mentioned Supreme Court decision and also the decision of the Andhra Pradesh High Court in the case of Madiga Boosenna, reported in : AIR1964AP429 , held as follows:
Having regard to the merits of the case, as none of the scientific method open to the prosecution to follow had been adopted, they lost the opportunity of proving that liquor was present in the stomach contents of the petitioner or it got itself transferred into the urine and blood of the petitioner.
Having regard to the evidence in this case of the doctor who admits that symptoms are consistent with the conclusion that these have been produced by reason of the accused having taken some medicine containing alcohol, the doubt which exists has remained unresolved and .... the accused is entitled to the benefit of doubt.
Referring to the presumption under Section 3A (1963), the learned Chief Justice further observed:
When the question is whether a person has taken liquor, to say that he should be presumed to have taken liquor because he was in a drunken state seems to be meaningless, as it would amount to a sort of argument in a circle. This is particularly so when the meaning of the word 'state of drunkenness' is not defined in the Act. If it is proved that a man is in a state of drunkenness, it amounts to a proof that he has taken liquor and there is no more necessity of invoking the presumption of the Amending Act. This amendment, in my opinion, becomes otiose and completely unnecessary. Further, if the invoking of this presumption under Section 3A of the Amending Act may be regarded as inescapable, then it would amount to countering the well known principle of criminal jurisprudence that the burden of proving the guilt of the accused in the case is on the prosecution and continues to be so until the guilt is established.
In Harendra Das's case AIR 1967 Assam 56 (supra), the accused being found within a prohibited area exhibiting symptoms of a person who had taken liquor was charged and convicted under Section 4 for contravention of Section 3(3) of the Act. As noted earlier, the offence was committed on 21-8-61, that is, prior to the fourth amendment introducing a rule of presumption under Section 3A (1963). It was, therefore, not necessary in this case to consider the effect of Section 3A (1963). On the admission of the doctor in that case that the symptoms exhibited by the accused were consistent with taking of some medicine containing alcohol, the accused was entitled to an acquittal since the question of raising the presumption under Section 3A (1963) did not at all arise. The observations of the learned Chief Justice with regard to Section 3A (1963) are, therefore, mere obiter, and as will show hereinbelow that we are unable, with respect, to agree with the same.
6. Since the learned Counsel strenuously relies on Harendra Das's case AIR 1967 Assam 56 (supra), even for the purpose of dealing with the present case, which arose after the fourth amendment, we have to give our views on the two above-quoted points that were dealt with by the learned Chief Justice and also pressed before us. Firstly, the learned Counsel submits that the legal position has not been altered by Section 3A (1963) and that we should agree with the decision in Harendra Das's case AIR 1967 Assam 56 (supra) even in the present case. It is clear that Section 3A (1963) has definitely introduced a rule of evidence by which a person who is found in a state of drunkenness shall be presumed to have consumed liquor within the prohibited area. This is, of course, a re-buttable presumption. Once the prosecution establishes by evidence to the satisfaction of the court that the accused was found in a state of drunkenness, the prosecution can rely on the presumption and it is then up to the accused to rebut the presumption. We are unable to agree, with respect, with the learned Chief Justice when he observed that Section 3A (1963) is 'otiose and completely unnecessary.' This section was introduced in 1963 in the wake of the third amendment whereby the Explanation in the definition of liquor was deleted and new Sections 3A (1956), 3B and 3C were added. Although the Explanation was deleted, the addition of Section 3A (1956) served the same object, which had earlier been fulfilled by the Explanation. The Explanation in the definition made the provision prima facie immune from such constitutional objections as were raised against the provisions of the Bombay Prohibition Act, 1949. Section 3A (1956) is not an exception, but has explained what liquid containing alcohol will be excluded from the general definition of liquor after the deletion of the Explanation. Section 3A (1956) clearly suggests that but for this exclusion the definition of liquor would include the articles mentioned in this section. With regard to a case prior to the fourth amendment, the Act has defined the offence, viz., as consumption of liquor without a prescription from a regis tered medical practitioner. Prosecution is required under the law to establish the ingredients of the offence, that is to say, that the accused has consumed liquor and not one of the articles excluded under Section 3A (1956). Since Section 3A (1956) is not an exception, there is no onus on the accused to prove that he comes under the exception. It is for the prosecution to prove that what the accused has consumed is liquor and that it does not come under the category of the articles mentioned in Section 3A (1956). The above would be the posi-tion as the law stood prior to the fourth amendment. But after the introduction of Section 3-A (1963) when the accused is proved to be found in a state of drunkenness within the prohibited area, the prosecution is relieved from further establishing that he has consumed liquor. By force of the presumption, prosecution establishes that the accused consumed liquor and it is open to the accused to rebut the presumption and satisfy the Court that what he has consumed is under a prescription from a registered medical practitioner or that he has consumed one of the articles mentioned under Section 3-A (1956) which is unfit for use as intoxicating liquor. It, therefore, follows that Section 3-A (1963) is a necessary provision to achieve the object of the Act in tackling the cases of consumption of liquor, within the prohibited area when people are found in a state of drunkenness, since it may be highly inconvenient and difficult, if not impossible, for the prosecution to establish what sort of liquor the accused has consumed earlier, a matter which may be said to be specially within the knowledge of the accused alone.
Secondly, in a case where the accused is charged for consumption of liquor on the allegation that he is found in a state of drunkenness within the prohibited area, there is no legal obligation to resort to any chemical test of his stomach contents to discover whether there is any alcohol present or if possible to find out what type of liquor the accused has consumed. The presumption under Section 3-A (1963) shifts the onus in this respect to the accused and although the onus may be heavy or light in the circumstances of each case, it is for the accused to rebut the same to the satisfaction of the Court. The decision of the Supreme Court in Beharam Khurshid's case : 1955CriLJ215 (supra), on which Harendra Das's case was based, was with regard to an offence for consumption of liquor after the decision in Balsara's case AIR 1951 SC 318 (supra) and which was sought to be established from smell of liquor In absence of a rule of presumption in the Bombay Act, such as we find under Section 3-A (1963) in the Assam Act. The ratio decidendi in Beharam's case : 1955CriLJ215 on this aspect of the matter, with all respect, will not apply to the present case as the presence of Section 3-A (1963) makes all the difference.
For the reasons given above, with respect, we disagree with the observations of the learned Chief Justice In Harendra Das's case AIR 1967 Assam 56 on the two points mentioned above.
7. The presumption under Section 3-A (1963) of the Act is a rebuttable presumption. The Court shall presume that a person who is found in a state of drunkenness within a prohibited area has consumed liquor within the same area. This does not, however, mean that the accused is deprived of an opportunity to show that the state of drunkenness, which is deposed to by the witnesses, is either not true or real or that the condition under which he was found was a result of taking something other than liquor. The burden on the prosecution to prove that the accused was found in a state of drunkenness never shifts and it is only when that is established to the satisfaction of the Court that the question of presumption under Section 3A (1963) arises, and when that stage is reached, in absence of an explanation from the accused, the Court will be justified in finding him guilty under the charge. The burden which the accused has to discharge in such a case is not as heavy as that of the prosecution. He has to make out a prima facie case to rebut the presumption.
8. To summarise, dealing with the prosecution for offences under Section 4 for violating the provisions of Section 3 of the Assam Act, so far as import, transport or possession, selling, or buying or manufacture of liquor, of the first category mentioned earlier, is concerned, the prosecution has to satisfy the Court that the liquor which is produced in Court is intoxicating liquor and contains alcohol and is not excluded by the provisions contained in Section 3A (1956). So far as the first category of offences mentioned above, there is no onus on the accused whatsoever, as the law stands now after the fourth amendment, to establish that liquor for import, transport or possession, selling or buying and manufacture of liquor of which he may be charged, is unfit for use as intoxicating liquor. The onus is entirely on the prosecution to establish the offence, which includes proof of the incriminating article as liquor within the meaning of the Act and that the same is not unfit for use as intoxicating liquor as described under Section 3A (1956) Mere introduction of Section 3A (1956) separately under the Act after deletion of the explanation in the original definition would not have the effect of shifting the onus in this matter on the shoulders of the accused.
So far, however, the aforesaid second category of offence is concerned, namely consumption of liquor, the position has become different after the fourth amendment, as has been earlier noted.
9. While dealing with the above submissions we may only like to notice the provisions of Sections 105 and 106 of the Evidence Act, which read as follows:
105. When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances.
106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
In a case under the present Act, with the definition as amended and introduction of Section 3A (1956) and in view of the presumption under Section 3A (1963), Section 106 of the Evidence Act may be justifiably called in aid to tackle a case involved in this revision petition. If the accused, as has been held by the courts below, was in a state of drunkenness showing signs and manifestations supporting that state, the prosecution will be at a great disadvantage to establish as to what particular things the accused had taken which led him to that state. It will be certainly especially within the knowledge of the accused as to what he had already taken for which he was found in that state by the witnesses.
Dealing with Section 106 of the Evidence Act the Supreme Court in the case of Shambhu Nath Mehra v. The State of Ajmer, reported in : 1956CriLJ794 , observed as follows:
Section 106 is an exception to Section 101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that, it means facts that are pre-eminently or exceptionally within his knowledge.
This does not, however, mean that the burden shifts from the prosecution to the accused, but the latter has to satisfy the Court in order to rebut the presumption against him which the Court will be authorised to draw under Section 3A (1963).
10. The learned Counsel for the petitioner at one stage submitted that this will be doing violence to the well-settled principles of criminal jurisprudence. We are, however, not impressed with that argument. In Bailey v. Alabama (1910) 55 Law Ed 191 (A) at p. 200, Hughes, J. who delivered the opinion of the Court, made the following observations:
This Court has frequently recognised the general power of every Legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the Courts of its own Government... In the exercise of this power numerous statutes have been enacted providing that proof of one fact shall be prima facie evidence of the main fact in issue; and where the inference is not purely arbitrary, and there is a rational relation between the two facts, and the accused is not deprived of a proper opportunity to submit all the facts bearing upon the issue, it has been held that such statutes do not violate the requirements of due process of law, or a denial of the equal protection of the law.
In another case,--Mobile, J. & K. C. R. Co. v. Turnipseed (1910) 55 Law Ed 78 at p. 80, the Supreme Court of the United States affirmed the same principle and held as follows:
If a legislative provision not unreasonable in itself, prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defence all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied to him.
We are clearly of the opinion that there is nothing wrong in invoking the presumption under Section 3-A in the particular circumstances of the case and in absence of any explanation from the accused, we are satisfied that the evidence establishes a state of drunkenness of the accused and the conviction under Section 4 of the Act is fully justified.
11. Mr. Bhuyan also drew our attention to an unreported decision of my learned brother Pathak, J. in Criminal Revision No. 65 of 1965, disposed of on 29-2-1968. It was held in that case that the state of drunkenness was not proved by the prosecution in order to enable them to avail of the presumption under Section 3-A. This decision does not assist the learned Counsel in throwing out the presumption, when the state of drunkenness is established by the prosecution and the accused has not submitted any explanation. His Lordship was not prepared to hold from the outward symptoms found in that case that the state of drunkenness was established.
The learned Counsel also referred to another unreported decision of mine in Criminal Revision No. 170 of 1964, disposed of on 2-8-1967. That was a case in which the accused was a tea-stall owner and was charged for possession of liquor which was found in the dregs of one or two glass tumblers of his tea-stall. There was no question of presumption under Sprtinn 3A (1963) in that case and this Court was not prepared to hold that the accused, on the state of evidence, as disclosed, could be guilty of possession of