E.T. Candy, Acting C.J.
1. It is necessary to pub forth the facts which have led be the present prosecution. The case is admittedly a test one, and the main question for cam consideration is whether the cocaine which is the subject-matter of the present case comes within the definition of 'intoxicating drug' as set forth in Section 3, Clause (9) of Bombay Act V of 1878.
2. There were two lines of defence. One is under Section 62 which provides: 'Nothing in the foregoing provisions of this Act applies to the manufacture, sale or supply of any bona fide medicated article for medicinal purposes by medical practitioners, chemists, druggists, apothecaries or keepers of dispensaries; but it shall be lawful for Government at any time, by notification in the Bombay Government Gazette, to prohibit the sale of any such article within any defined local area or place except under a license from the Collector, which shall be granted on payment of such fees and subject to such conditions as Government may deem fit to prescribe.'. We are dearly of opinion that the bottle of cocaine which was the subject of this prosecution is not a medicated article within the terms of that section. It appears to us that it is a medicine per se and that the term medicated article must apply to something which is manufactured and by that manufacture is imbued with certain medicinal properties. This appears to us to be a salt of the base cocaine.
3. Now we turn to the second line of defence, i.e., the ground upon which the learned Chief Presidency Magistrate considered that the accused had not committed the offence within the terms of the Act.
4. Clause (9) of Section 3 runs: 'Intoxicating drug includes ganja, bhang, charas and every preparation and an admixture of the same and every intoxicating drink or substance prepared from hemp, grain or other materials not included in the term liquor but does not include opium.'
5. The learned Chief Presidency Magistrate was of opinion that cocaine did not come within these terms, because he held that the. intoxication which must be caused by any intoxicating drug falling within the terms of the section must be such an intoxication as is caused by ganja, bhang, etc., and also that the other material referred to in this section must be ejusdem generis with hemp, etc.
6. We are finable to concur with that opinion. The learned Chief Presidency Magistrate quoted a case in which it was held in accordance with well-known rulings that in construing a penal clause the Court must be very strict. The clause which we are considering is not a penal clause; it is an interpretation clause, and what we have to look at is whether the inclusion of cocaine within the term 'intoxicating drug' is within the mischief contemplated by the Act and within the four corners of the definition.
7. A perusal of the previous legislation on this subject in the Bombay Presidency would seem to show that the mischief aimed at was the vicious use of intoxicating drugs of any description. A reference to the preamble to Regulation XXI of 1872 and to Section 10 of Act III of 1852 will show that there was apparently no intention in the mind of the Legislature to limit the provisions of the law to any particular kind of intoxicating drugs. With reference to the inclusion of charas made by Bombay Act V of 1891, it is evident from the perusal of that Act that, the object of that legislation was not simply to include charas as an intoxicating drug, but to make She most stringent provisions with regard to both the manufacture and the sale of charas as suggested by the Hemp Drugs Commission. The inclusion, therefore, of charas within the interpretation clause by recent legislation does not assist us.
8. Coming now to the words of the clause we find that there is some difficulty in ascertaining whether the words 'not included in the term liquor' apply to the words 'drink or substance' or to the words 'other material.' If id is permissible for us to refer to the words of the corresponding Act in the Madras Presidency in which the word 'and' is found before the words 'not included is the term liquor.' the presumption would be that those words were intended to apply to 'drink or substances.' In whichever way we regard the clause, we think it is clear that the Legislature did not intend the definition to apply solely to hemp, grain, or other material of the same kind as hemp. It is noticeable that liquor as defined in Clause (7) of the same section and opium as defined in the Opium Act are both purposely excluded from the definition of 'intoxicating drug.' This exclusion would hardly have been necessary had the meaning of the Legislature been that the term in question should apply only to hemp or materials of that nature. In connection with this point it may be well to refer to the judgment of Mr. Justice Quain in the Queen v. Midland Railway Co. (1875) L.R. 10 Q.B. 389 where he says: 'I start with this proposition that it is a mistake to apply the rule of ejusdem generis at all to the construction of the statute. If the words had been 'houses, buildings and property,' and had stopped there, I agree that the rule would be applicable; but the words are 'houses, buildings and property other than land.''
9. In the same way hare, had the words stopped at 'hemp, grain or other material' it is possible that the argument used for the defence would have some force.
10. In our opinion the word 'intoxicating' used in the interpretation clause cannot be confined to its derivative meaning, namely, 'poisonous.' We think that the word must be taken in its popular sense. That cocaine can have 'intoxicating' effects has been amply proved in this case. It is unnecessary to refer to the evidence at any length. It will suffice to mention the paper by a well-known acknowledged authority, Dr. Bose, in which he describes all those intoxicating effects at great length.
11. For these reasons we think that the cocaine, the subject of this prosecution, is an 'intoxicating drug' within the meaning of the Act. We reverse the acquittal recorded by the Magistrate and we record a conviction under Section 43, Clause (g) of the Abkari Act (Bom. Act V of 1378); and as this is a test case we impose merely a nominal fine of Rupee one (1).