1. This order will govern the disposal of both these matters.
2. Criminal Appeal No. 234 of 1962 filed by the State is against the order of acquittal of the respondent Shri Vijaysingh Rajurkar by the Sessions Judge, Akola, in respect of the offence under Section 66(1)(b) of the Bombay Prohibition Act in Criminal Appeal No. 117 of 1962. Criminal Revision Application No. 224 of 1962 is filed by accused Vijaysingh against his conviction under Section 85(1)(1), (2) and (3) of the Bombay Prohibition Act and sentence of 7 days' rigorous imprisonment and a fine of Rs. 25 or in default rigorous imprisonment for 7 days more, passed by the Judicial Magistrate, First Class, and confirmed by the Sessions Judge, Akola, in the above appeal.
3. The accused Vijaysingh was charge-sheeted before the Judicial Magistrate, First Class, Akola, on the allegation, that the accused along with one Namdeo Shinde, was found to have consumed liquor and in a state of intoxication in ii public place and under its influence. He was medically examined in the Main Hospital at Akola by Dr. Deshmukh who collected blood from him and the blood was sent in a sealed bottle to the Chemical Analyser, Bombay. The Chemical Analyser certified that the presence of ethyl alcohol in his blood was 0.207 per cent. w/v. The accused did not hold a permit under the Bombay Prohibition Act. The accused was thus found to have prima facie committed offences under Section 66(1)(b) and Section 85(1)(1), (2) and (3) of the Bombay Prohibition Act.
4. The incident leading to these accusations is alleged to have taken place at about 2 p.m. on June 12, 1961. It is alleged that accused Vijaysingh was heavily drunk and came in a state of intoxication, in the office of the District Superintendent of Police, Akola. The accused was driving a jeep car No. BYJ 6299. One Namdeo Shinde, who was also drunk, was occupying a rear seat in the jeep car. The accused was unable to drive the jeep car properly and the jeep dashed against a corner wall of the office of the District Superintendent of Police. This damaged the front left side buffer and the front left wheel and the rim. This was noticed by one Purushottam, a peon in that office. When Purushottam noticed the condition in which the accused had driven the car and halted it in the porch, he informed the Home Inspector Shri Ghai who was then, acting as a Personal Assistant to the District Superintendent of Police, that the accused had arrived in a drunken condition. The, Home Inspector asked Purushottam that they should be brought inside, and they were taken into the office of the Home Inspector by Purushottam. and Janrao. Janrao was another peon in the office of the D.S.P. When questioned by the Home Inspector, the accused told him that he wanted to see the D.S.P. The Home Inspector therefore took the accused into the room where the D.S.P. was doing work. The D.S.P. had a talk with the accused, found him drunk and asked Shri Ghai to call a police Inspector from the City Kotwali and to send the accused for medical examination. The accused was brought back to the room of the Home Inspector. Then the Home Inspector sent a telephone message to Shri Niyamatkhan in the City Kotwali. Niyamatkhan and two other police officers soon reached the office of the D.S.P. and the accused along with Namdeo was handed over to Shri Niyamatkhan to act according to the instructions of the D.S.P. Niyamatkhan called two persons, Prabhakar and one motor driver, and in their presence a Panchnama noting the condition of the accused was prepared. While this Panchnama was under preparation, the peon Janrao brought a bottle from the jeep car. This bottle was found to contain about two ounces of liquid. This bottle was seized.
5. This bottle was subsequently sent to the Chemical Analyser, Bombay, and the Chemical Analyser's report shows that the liquid was weak Ginger Tincture, called 'Tincture Zingiberis' (according to the technical term used in British Pharmacopia, 1958 edition). The sample showed that the alcohol contents were 90 per cent, w/v of ethyl alcohol.
6. Niyamatkhan then took the accused in a wireless van to the Government Hospital for medical examination. He was taken to Dr. Deshmukh who was on duty. Dr. Deshmukh examined the accused and then took a sample of blood of the accused. He also gave a certificate in form A and the sealed phials containing blood samples were handed over with form B to the Sub-Inspector, who registered an offence under Section 66(1)(b) and Section 85(1)(1), (2) and (3) of the Bombay Prohibition Act. The blood samples were sent with constable Pandurang to Bombay for obtaining certificate of the Chemical Analyser. On receipt of the report of the Chemical Analyser the accused were charge-sheeted, as already mentioned. It may be noted that the accused Vijaysingh was separately tried and not along with Namdeo Shinde.
7. The accused denied to have committed any offence when the particulars of the offence were explained to him at the commencement. The prosecution examined quite a large number of witnesses in this case. As to the actual incident in the office of the District Superintendent of Police, the prosecution has examined the Home Inspector Shri Ghai (P.W. 8), Purushottam (P.W. 5) and two Panchas namely Mohammad Sirajuddin (P.W. 6) and Prabhakar Jadhao (P.W. 10) in whose presence the actual condition of the accused was noted and a Panchnama was prepared. Niyamatkhan (P.W. 11) is the police officer who investigated into the offence. The phials containing blood samples, with the memo, of the medical officer and the forwarding report from the police, were taken to the Forensic Laboratory in Bombay by Pandurang (P.W. 7). The medical examination of the accused was conducted at Akola by Dr. Deshmukh (P.W. 9) who has also given a certificate as to the condition in which the accused was found daring examination. That certificate is exh. 15. The Chemical Analyser who issued a certificate regarding the result of the test carried out by him under exh. 9, has been examined as P.W. 4 (Shri Vithal Chitale). Besides his evidence, the prosecution has examined Shri Manudhane (P.W. 1), who is a Technical Officer appointed to collect data for the Board constituted under Section 6-A of the Bombay Prohibition Act. Harbhajan Mahal (P.W. 2) is another expert witness who was working as Director of Forensic Science Laboratory, with the Government of Maharashtra. Prahbakar Vaidya (P.W. 3) is the Assistant Chemical Analyser who actually received the phials containing blood samples of the accused.
8. The bottle containing liquid, seized from the jeep driven by the accused, was also sent for a report on the liquid content of the bottle, to the Chemical Analyser. That report, though received by the police, was not produced or filed by the police during the trial. A complaint was made about non-production of this report both in the appellate Court and in this Court. When the counsel for the accused was asked whether the accused wanted that report to he produced and admitted, the counsel was not able to make a statement one way or the other. I had, however, asked the learned Assistant Government Pleader to have the report produced. The report was sent for and the hearing was adjourned for that purpose. After the report was received, both the parties agreed that the report should be admitted to record and accordingly the report of the Chemical Analyser as to the contents of the bottle seized is placed on record and it is marked as exh. H.C. Both parties have addressed arguments on the basis of this report and this report now forms part of the record.
9. The accused in his examination under Section 342, Criminal Procedure Code, admitted that he went driving a jeep car belonging to the Central Co-operative Bank, Akola, to the office of the D.S.P. at about 2.15 p.m. on June 12, 1961. He also admitted that the jeep car had slightly dashed against the wall and the vehicle was stopped in the porch. He has explained that there was shade under the porch and so he took the vehicle near the wall. The accused denies the allegation that the ear was driven recklessly because the accused was under the influence of drink. The accused has admitted that he asked Purushottam, the peon, whether the D.S.P. was there and that Purushottam had replied in the affirmative. He denied that his mouth was smelling of liquor. His case was that he had consumed medicine and not liquor. He has stated that he had taken the medicine which was found in the vehicle and which was seized by the police, because he was suffering from some stomach trouble and indigestion. As to the incident in the office room of the Home Inspector Shri Ghai, the version of the accused was that the peon Purushottam told him that Ghai was calling him. He refused to go because he wanted to see the D.S.P. and he wanted that the necessary permission may be obtained, but the peon came out with a superior air. The accused refused to go to see Shri Ghai and thereupon Purushottam and another peon, Janrao, dragged him and took him to the office of Shri Ghai by force. He admits that the conversation between himself and Shri Ghai took place in English. He admits that he was taken before the D.S.P. and that the D.S.P. told him that he had drunk liquor. According to the accused he told the D.S.P. also that he had taken medicine and not liquor. In his presence the D.S.P. told Shri Ghai to look into the matter. The bottle from the vehicle was then brought by the peon and the accused was protesting all along that he had not drunk liquor. The accused says that he could not control his anger and that he also wept there. Then Niyamatkhan was called from the police station and he was taken to the Medical Officer. The accused denied that he was talking irrelevantly or that his eyes were red or that his mouth was smelling of liquor or that he was unable to walk and he had to be held by Purushottan and Janrao when he was taken into the office. The accused has denied the presence of two Panchas Prabhakar and Sirajuddin, who were invited to note the condition of the accused when the Panchnama was prepared. The accused admitted that Dr. Deshmukh took the blood sample from his body, but he denied that Dr. Deshmukh examined him otherwise. The accused has suggested that Inspector Ghai gave him an insulting treatment and manhandled him and so he said that he would prosecute Shri Ghai, and therefore this case was started falsely against him. To the last question the accused answered as follows:
As I was not well, I took medicine once at 8 o'clock in the morning, I took medicine at 10 o'clock, at 12 o'clock, at noon and at 1.45 o'clock after meals and then I went to the office of the D.S.P. Every time I took 3 to 4 teaspoonfuls of medicine. The medicine was taken in mixture with glucose water. And then after going to the D.S.P. Office the peon took me inside by force, and so I was aggrieved. Ghai spoke about my father; and so I was aggrieved. I was put into the police van by force, I was not released on bail. I was not allowed to contact my manager Wamanrao. My counsel was not allowed to see me....
10. The accused has examined three witnesses in defence. Two of them, Ramgopal (D.W. 1) and Krishanrao (D.W. 2) have stated that they had gone to the Police Chowki to offer bail but bail was not accepted. The third witness Ramakant Joshi (D.W. 3) professes to be a private medical practitioner, and an Ayurvedic Visharad of All India Vidyapith, Poona. He was examined to prove that Vijaysingh had gone to him for advice and treatment and that he had advised him to take 'Tincture Zingiberis Mitis', with glucose water. This evidence has not been accepted by either of the two Courts below.
11. The trial Court in a well considered and elaborate judgment dealt with all the aspects of the controversy between the parties and found that the accused was liable to be convicted both under Section 66(1)(b) and under Section 85(1)(1), (2) and (3) of the Bombay Prohibition Act. That Court took the view that if the prosecution proved that the percentage of alcohol in the blood of the accused was in excess of 0.05 of ethyl alcohol, then the burden of proving that the liquor consumed was a medicinal preparation, the consumption of which was not in contravention of the Prohibition Act, or any rules or regulations made thereunder, was on the accused person and the Court held that the accused had failed to discharge that burden. The trial Court has considered the effect of the provisions of Section 24A and the meaning of the expression 'unfit for use as intoxicating liquor' as expounded in the decision of this Court in C.R.H. Readymoney Ltd. v. State of Bombay : AIR1958Bom181 and observed that if the intrinsic nature of the preparation is such that it contains anything which is deleterious or poisonous, then obviously it cannot be said to befit for use for beverage purposes. The Magistrate has also referred to the decision of this Court in the same ease in appeal, reported in C.R.H. Beadymoney Ltd. v. Bombay State : AIR1958Bom181 . Having thus informed himself of the test to-be applied, in determining whether a preparation alleged to have been consumed could be said to be fit or unfit for use as intoxicating liquor, the learned Magistrate proceeded to consider whether the accused had proved that he had consumed Tincture Zingiberis. Ha pointed out that the accused did not state in his statement under Section 342, Criminal Procedure Code, that the medicine he consumed was Tincture Zingiberis. As the prosecution has not produced and has not relied upon the report of the Chemical Analyser as to the contents of the bottle seized from the jeep car, that Court had no material to hold what was the nature of the liquid in the bottle which the accused claimed was consumed by him. The Magistrate also rejected the evidence of Dr. Joshi (D.W. 3) as he had not maintained any case records or copy of prescription, nor was one given to the accused. The Magistrate also found that. Dr. Joshi was not an expert witness. His statements in the deposition were confusing and he was considered as a got-up witness brought for supporting the defence of the accused. The Magistrate also remarked that the conduct of the witness was unworthy of any medical practitioner and he could not be believed. As there was no evidence to show that the accused had consumed Tincture Zingiberis, the Magistrate held that the accused had failed to prove that what he consumed was a medicinal preparation, much less it was as per recorded prescription permitted under the law. In view of the Chemical Analyser's report as to the presence of alcohol in his blood and other evidence on record and the failure of the accused to satisfy the Court that what he consumed was a medicinal preparation permissible under the Act, the Magistrate held that both the charges were brought home against the accused.
12. When the matter came before the Sessions Court, the principal attack seems to have been concentrated on the conviction under Section 66(1)(b) of the Prohibition Act. It appears that the learned Sessions Judge was also impressed with the manner in which the case was dealt with in the trial Court, and in para. 8 of the judgment the learned Judge observed that the Magistrate has done his job so thoroughly and satisfactorily that he deserves all appreciation for the labour taken by him and for the manner in which he has discussed those points carefully and exhaustively in his long judgment.
13. The learned Sessions Judge has dealt with the maintainability of the conviction under Section 66(7)(b) of the Prohibition Act in paras. 11 to 26 of his judgment. Much of the criticism levelled by the learned Judge on account of the failure of the prosecution to place on record the report of the Chemical Analyser as to the liquid contents of the bottle seized from the jeep car, loses force once that report is placed on record. The learned Judge felt entitled to draw an inference adverse to the prosecution case from the mere failure of the prosecution to produce and place on record the Chemical Analyser's report regarding the contents of the bottle. It is in the light of this fact that certain observations made by the learned Judge in the course of the judgment obviously appear to be an over-statement or over-simplification of what the law requires an accused person to do when prosecuted on a charge under Section 66(1)(b) of the Prohibition Act.
14. It is first necessary to consider the challenge to conviction under Section 85(1)(1), (2) and (3) of the Prohibition Act in Criminal Revision Application No. 224 of 1962 filed by the accused Vijaysingh. Both the Courts below have accepted the evidence showing that the accused was in a drunken state when he went to the office of the District Superintendent of Police, driving a jeep car. The jeep car was being driven in such a negligent and rash manner that it dashed against a portion of the wall and the peon Purushottam who was standing in the porch had to leave the place by jumping over the adjacent steps to save himself. That the accused was drunk has been testified by Purushottam (P.W. 5), Ghai (P.W. 8), Niyamatkhan (P.W. 11) and Dr. Deshmukh (P.W. 9). He was smelling of liquor from the mouth; he was talking at random and had to be taken into the office of Shri Ghai by two peons. Purushottam had stated that he was unable to walk and had to be supported by Purushottam and another peon for bringing him in Shri Ghai's office. Because of intoxication the accused was not able to speak properly. The extent to which the accused was under the influence oft drink while driving the jeep ear is indicated from the evidence of Sirajuddin (P.W. 6) who had gone to the office of the D.S.P. that noon. According to this witness be was present when the jeep car came there and he felt that the ear was being driven by a novice because of the speed and the manner in which the ear dashed against the corner of the wall before it halted in the porch. The two Panch witnesses Prabhakar and Sirajuddin obviously tried to prevaricate in the witness-box in their examination-in-chief Prabhakar, however, seems to be interested in the accused though he had to admit that what is stated in the Panchnama about the accused smelling of liquor in the mouth was true and the further fact that the accused was not able to walk properly, was stumbling, and was also not able to talk properly is also true. Similarly, the other Panch Sirajuddin has admitted that the accused was taken forcibly as he could not walk, and that his eyes were red. As rightly pointed out by the Sessions Judge, there is no reason why all these witnesses like Purushottam, Shri Ghai or Niyamatkhan would speak falsely against the accused merely because they were serving in the police department. Thus, there is no doubt that the condition of the accused when he went into the office of the D.S.P., which is a public place, was that of a man overcome by intoxication and in whose case drink has resulted in drunkenness. It is, however, urged that the symptoms of disorderly behaviour or incapacity to take care of himself are not sufficient to hold that the accused could be guilty either under Sub-clause (1) or Sub-clause (2) of Section 85(1) of the Bombay Prohibition Act. If a person, having taken an intoxicant, drives a jeep car in a rash and negligent manner, dashes it against a wall before it comes to a halt, is unable to walk or talk properly or coherently, smells of liquor in his mouth, has unsteady gait, has to be supported for being taken into a room, and talks incoherently, it is difficult to see what other symptoms are necessary to be proved to hold that he was incapable of taking care of himself or was behaving in a disorderly fashion. The accused has not explained why ho wanted to see the District Superintendent of Police that afternoon. No questions have been asked to Shri Ghai who had taken the accused to the D.S.P. as to what business the accused had to barge into the office of the D.S.P. in the manner he wanted to do. The facts are fairly eloquent of the condition of the accused and it can scarcely be held that the conviction is wrong for want of evidence.
15. It is, however, seriously urged that the accused is absolved from the offences charged under any of the three clauses of Sub-section (1) of Section 85 because of Sub-section (2) of Section 85. Section 85(2) is as follows:
In prosecution for an offence under Sub-section (1), it shall be presumed until the contrary is proved that the person accused of the said offence has drunk liquor or consumed any other intoxicant for the purpose of being intoxicated and not for a medicinal purpose.
According to the accused he had become intoxicated, because he had taken an intoxicant for a medicinal purpose and inasmuch as the purpose of taking the intoxicant was innocent and not for being intoxicated, he has committed no offence even if his behaviour satisfied one or the other ingredients of Section 85(1) of the Act. In other words, the argument is that if an accused person gets intoxicated by consuming an intoxicant for medicinal purpose and is found drunk or is drunk and incapable of taking care of himself or is drunk and behaves in a disorderly manner in a public place, he cannot be convicted of an offence under Section 85(1)(1), (2) or (3) of the Act. In support of this proposition the learned Counsel has relied on a Division Bench decision of this Court reported in State v. Trimbak Dhondu Bhoir : (1955)57BOMLR541 where the learned Chief Justice observed as follows (p. 545):.If a person has been proved to have committed any act which falls under Sub-sections (1), (2) and (3) of Section 85(1), it may still be open to him under Sub-section (2) to prove that he consumed liquor not for the purpose of being intoxicated but for a medicinal purpose. It may happen that a person may bona fide and under medical advice take a medicine containing alcohol and it may also happen, though it may be very rare, that such medicine may go to his head and may lead to a state of intoxication. In the circumstances like these, it would be open to the accused to rebut the presumption which the Legislature has raised under Sub-section (2) of Section 85.
But on that very page the learned Chief Justice has also observed that it was foolish to suggest that the Legislature permitted a person to consume what is sometimes euphemistically called a medicinal preparation even though he may drink in such quantity that it may result in his becoming intoxicated.
16. Reference was also made to a recent decision of a Full Bench of the Gujerat High Court in State of Gujerat v. Ukaji Devaji : AIR1962Guj84 F.B. where the above decision of this Court was reconsidered and affirmed.
17. In my judgment the accused in this ease cannot derive any assistance from the provisions of Sub-section (2) of Section 85. Under the first part of Sub-section (2) a presumption arises that the accused has drunk liquor or intoxicant for the purpose of being intoxicated. It was for the accused to establish that the purpose for which he took the intoxicant was a medicinal purpose and not for being or getting intoxicated. The two Courts below have already rejected the evidence of Dr. Joshi (D.W. 2) as thoroughly unreliable and unconvincing to hold that that practitioner of Ayurvedie medicine had prescribed for the accused consumption of Tincture Zingiberis. Now, the liquid which was actually found in the bottle seized from the jeep ear which bore the label of the contents as Tincture Zingiberis Mitis, has been found to he a very weak preparation of Tincture Zingiberis, containing alcohol to the extent of 90 per cent. This percentage of alcohol has been found by the Chemical Analyser as per exh. H.C. admitted on record at the instance of both the parties in this case in this Court. The accused's own statement is that he took 4 doses of the liquid from the bottle at an interval of two hours, beginning from 8 o'clock in the morning, the last dose being taken at 1.45 o'clock. Bach time, he states, he took 3 to 4 teaspoonfuls of this liquid. In para. 5 of his cross-examination Dr. Joshi admitted that though he prescribed Tincture Zingiberis to the accused, he did not tell him for how many days he was to take this Tincture, nor did he tell him the dose and the time at which this Tincture was to be taken because, according to him, it is so written on the bottle. He directed the accused to consume the Tincture according to the directions on the bottle and he himself did not give any more directions to him. The prosecution has examined Shri Manudhane (P.W. 1), who is a Technical Officer appointed for collecting scientific data for the Board appointed under Section 6-A of the Prohibition Act. He has stated in para. 7 of his deposition that 4 c.c. is a normal dose of any Tincture. Tinctures roughly contain 40 to 90 per cent, of alcohol. He knew Tincture Zingiberis Mitis B.P. 1958. According to him, concentration of alcohol in blood after taking a normal dose of 4 c.c. of Tincture Zingiberis Mitis will be approximately 007 per cent. w/v. He has also stated that from the concentration of blood alcohol he could give the quantity of Tincture Zingiberis Mitis that might have been consumed by using Widmark's formula. The estimate of quantity will be approximate and according to him if the blood alcohol concentration is 0.207 per cent., the quantity of Tincture Zingiberis Mitis containing 90 per cent, alcohol w/v will be 4.16 ounces or approximately 125 c.c. Now, it could not be disputed that the blood concentration of alcohol found in the blood sample of the accused was 207 per cent, and, therefore, on the basis of this evidence of Shri Manudhane the accused must have consumed a large quantity of Tincture Zingiberis Mitis. If the normal dose of Tincture Zingiberis is only 4 c.c. and the accused might have consumed a fairly large quantity necessary to produce the high percentage of blood alcohol, it could hardly be claimed that the purpose for which the accused consumed this intoxicant or this preparation was a medicinal purpose. This evidence on record clearly establishes that even if the accused claims to have consumed the contents of the bottle seized from the jeep car, the purpose for which he consumed them was not medicinal but in order that he may attain the state of intoxication. In view of 'these circumstances, it is difficult to hold that the provisions of Sub-section (2) of Section 85 would furnish any defence in favour of this accused. It is not, therefore, necessary to consider the other aspect of the question, namely, whether proof of the purpose of consumption of intoxicant being medicinal has relevance in considering the offences under Sub-clauses (1) and (2) of Section 85(1) of the Prohibition Act. Even assuming that the accused has a right to claim that Sub-section (2) of Section 85 would be a valid defence to a charge under any of the Sub-clauses (1), (2) or (3) of Section 85(1) of the Act, in the instant case the accused must be held to have failed to prove that what he consumed was for medicinal purpose. As observed by the Division Bench in the case already quoted above, ordinarily, in a criminal revision application it is not open to the accused to go into any question of fact, namely, the state of drunkenness or intoxication in which the accused was found and that his behaviour was disorderly' or that he was incapable of taking care of himself in a public place. The conviction of the applicant Vijaysingh under Section 85(1)(1), (2) and (3) of the Prohibition Act is, therefore, correct. There is no question of interfering with the sentence. The behaviour was most improper and the accused has made a public exhibition of his drunkenness by going to the office of the District Superintendent of Police and behaving in a manner most unbecoming of any citizen. The conviction and sentence are, therefore, affirmed and Criminal Revision Application No. 224 of 1962 is dismissed.
18. Now, this takes us to the appeal filed by the State against the acquittal of the accused Vijaysingh of the charge under Section 66(1)(b) of the Bombay Prohibition Act. Under that section, whenever the prosecution alleges that the accused had consumed liquor in contravention of Section 13(b) of the Prohibition Act and it is proved that the concentration of ethyl alcohol in the blood of the accused is in excess of 0.05 per cent., then under the provisions of Sub-section (2) of Section 66 the accused is required to prove that the liquor consumed by him was a medicinal or toilet preparation, or an antiseptic, preparation or solution, or a flavouring extract, essence or syrup, containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder; and if no such proof is given, the Court is required to presume to the contrary, that is, what was consumed by the accused was liquor, the consumption of which is contrary to the provisions of the Act. According to the learned Sessions Judge, the presumption which the Court may draw under Sub-section (2) of Section 66 of the Act is not conclusive and can be rebutted by the accused. The prosecution does not dispute this proposition of law.
19. The learned Sessions Judge has held that the defence of the accused was that what he had consumed was not liquor but was a medicine and it was the same medicine which was found in the bottle seized from the jeep by the police. Such burden, according to him, is usually light. The finding of a bottle containing Tincture Zingiberis would itself go to support the defence that the appellant had consumed the same medicine and, therefore, it had to be held that the burden was discharged and the presumption under Sub-section (2) of Section 66 was rebutted. It was not necessary for the accused to disclose the name of the medicine which he had taken as it was described by him and also produced before the Court. According to the learned Judge the police should have produced the bottle seized by them, in Court, and though the accused had not made any such request to the Court that the prosecution should produce the bottle and the relevant papers, this failure would not affect his defence. The prosecution seemed to have withheld the bottle from the Court and, therefore, the learned Judge presumed that the report of the analysis of the contents of the bottle was not favourable to the prosecution. The learned Sessions Judge has presumed from the finding of the bottle of Tincture Zingiheris in the jeep that the accused must have consumed the same liquid which was in the same bottle, though he did not exclude the possibility that the bottle may contain some liquid other than Tincture Zingiberis as described by the label on the bottle. But this possibility was excluded by the learned Judge because the prosecution had an opportunity to have the contents of the bottle examined and the contents were sent for analysis and the prosecution could have proved that the bottle contained not Tincture Zingiberis but some liquor in liquid form. Having thus held that the accused must be taken to have proved that what he consumed was Tincture Zingiberis, the learned Judge held that the initial burden which was on the accused to prove that what he had consumed was a medicinal preparation and not prohibited liquor, must be taken to have been sufficiently discharged, and therefore, the presumption arising from the quantity of concentrated alcohol in the blood that what the accused consumed must be liquor, was rebutted. The learned Judge next proceeded to consider whether the consumption of Tincture Zingiberis was in contravention of the Act, rules, regulations and orders. In this context he refers to Section 24-A of the Prohibition Act. The view of the trial Magistrate that it was for the accused to prove that what was consumed by him was unfit for use as an intoxicating liquor has been criticized by the learned Sessions Judge as incorrect and contrary to the decision of their Lordships of the Supreme Court in State of Bombay v. Narandas : AIR1962SC579 . In view of this interpretation the learned Judge held that it was for the prosecution to prove that the substance seized, if a medicinal preparation, was fit for use as an intoxicating liquor, in order that it may be established that the accused had infringed prohibitions contained in Section 13. In view of the failure of the prosecution to produce the result of the analysis of the contents of the bottle, it was held that the prosecution has failed to establish that the liquid was not unfit for use as an intoxicating liquor. In the absence of the Analyser's certificate being produced in Court, the learned Judge also observed that there was no evidence, to show that the medicine bearing the label Tincture Zingiberis on the bottle was having more than 12 per cent, of concentrated alcohol. The Court rejected the evidence of experts such as Shri Manudhane (P.W. 1) and Dr. Deshmukh (P.W. 9) to the effect that the medicine called Tincture Zingiberis contained 90 per cent, alcohol, on the ground that the actual sample was not subjected to analysis by either of these witnesses. The learned Judge, therefore, held that the prosecution has failed to lead satisfactory evidence to prove what were the exact contents of the bottle recovered from the jeep and which the accused was claiming to have consumed and whether the content was medicine, and if it was medicine whether it was fit for use as an intoxicating liquor. As the accused was held to have proved that he had consumed some medicine, the learned Judge came to the conclusion that that statement of the accused was enough to discharge the burden on him under Section 66(2) of the Prohibition Act. The learned Judge drew support for this conclusion also by reference to the decision of the Supreme Court in State of Maharashtra v. Laxman : AIR1962SC1204 .
20. The learned Judge has also referred to another aspect, namely, that Tincture Zingiberis was declared as a drug injurious to health by the Government of Bombay under the Bombay Drugs Control Act, 1952, under its notification issued on January 9, 1958. Though this notification was not operative in the Vidarbha region at the relevant date of the offence, the learned Judge has held that the Tincture Zingiberis being notified as a notified drug was a sufficient indication of the fact that it was unfit for use as an intoxicating liquor. Referring to the case of State of Bombay v. Narandas the learned Judge felt that for a medicinal preparation to be unfit for use as an intoxicating liquor it must be such as should be incapable of being used as an intoxicant without danger to health. To determine whether it is unfit for use in this sense, it would be necessary to know the percentage of alcohol found in a particular drug, and as that was not proved by the prosecution in this case and the drug being a notified drug under the Bombay Drugs Control Act of 1952, it was held that Tincture Zingiberis consumed by the accused was unfit for use as an intoxicating liquor. On these findings the learned Judge acquitted the accused.
21. There has been considerable debate at the Bar as to the nature of the burden on the prosecution to prove its case under Section 66 of the Bombay Prohibition Act and the circumstances which the accused has to prove to get out of the charge. The learned Assistant Government Pleader has cited the following decisions in support of his contentions : Harprasad v. State A.I.R.  Bom. 148 : 53 Bom. L.R. 938, Mohinder Singh v. The State : 1SCR821 , Gurcharan Singh v. State of Punjab : 1956CriLJ827 and State of Madras v. Yaidyanatha Iyer : 1958CriLJ232 . On the basis of express words of Sub-section (2) of Section 66 it is urged that once the prosecution establishes that the charge against the accused is consumption of liquor, and concentration of ethyl alcohol in his blood is shown to be 0.207 per cent, w/v, it is for the accused to show not only what he consumed was medicinal preparation but that it was a medicinal preparation, use or consumption of which is permitted under the Act or the rules or regulations made thereunder. It was not for the prosecution, according to the counsel for the State, to prove anything in respect of the medicine which the accused alleged he had consumed. The argument is that the accused could have asked the prosecution to produce the report of the Chemical Analyser in respect of the contents of the bottle seized from the jeep. The accused did not take that risk probably because he must have known that it was some kind of preparation which was fit for use as an intoxicating liquor. It was no part of the duty of the prosecution, according to this line of argument, to place before the Court any material on which the prosecution did not rely in substantiating the charge brought by it against the accused. If the prosecution had withheld this document on demand by the accused or by the Court, an inference against the prosecution could have been legitimately drawn; but the accused having made no such attempt nor the Court asking for the document to be produced before it, no adverse inference could be drawn against the prosecution. As the accused has failed to discharge the burden invited by him by alleging that he took some medicine which obviously caused intoxication, the accused cannot escape the consequences of such act.
22. On the other hand, the learned Counsel for the accused has disputed that there is any burden on the accused to prove his innocence. The rule in criminal prosecutions is that the burden to prove guilt is always on the prosecution and never shifts; this rule is not altered even by the provisions of Section 66(2) of the Bombay Prohibition Act. If the accused introduces facts or evidence from which a reasonable inference could be drawn that what the accused consumed is a medicinal preparation, the accused is entitled to the benefit of the section and, therefore, to an acquittal. The learned Counsel supports the line of reasoning on which the learned Sessions Judge accepted the plea of the accused that the prosecution has failed to prove that the medicinal preparation which was actually seized from the jeep and which the accused claims to have consumed was fit for use as an intoxicating liquor. As the prosecution has failed to prove this fact the order of acquittal cannot be challenged. It was also complained that the evidence of Dr. Deshmukh that; a man may be intoxicated if he takes Tincture Zingiberis Mitis in excessive dose but that it will not have other harmful effects on the body and that it is not a dangerous drug has not been put to the accused to seek an explanation from him. In view of this complaint made, the counsel for the accused was asked to state whatever he had to state with reference to this evidence. With respect to this evidence it is stated by the learned Counsel for the accused that this statement of Dr. Deshmukh is merely an opinion of a medical man and is not entitled to any weight in view of the fact that Dr. Deshmukh was a fresh graduate and had little experience in these matters. In fact, Dr. Deshmukh had admitted that that was his first case of examining an intoxicated person. In view of the alleged inexperience of Dr. Deshmukh, the accused urges that his evidence regarding Tincture Zingiberis Mitis being fit for use as intoxicating liquor and not having any harmful effects should not be accepted. As to the nature of the burden on the accused the learned Counsel relied on the following decisions : C.S.D. Swami v. The State : 1960CriLJ131 , Bala Prasad v. State of Madh. Para. : AIR1961MP241 , Government of Bombay v. Samuel : AIR1947Bom38 and an article by Mr. Justice Denning in 61 Law Quarterly Review at page 379, entitled 'Presumptions and Burdens'.
23. In my judgment, it is true to say that the legal burden to prove the guilt of the accused and to prove all material facts to prove the guilt beyond reasonable doubt is always on the prosecution and never shifts. But when rules of evidence are introduced in a statute, and particularly in a statute creating a criminal offence, there may be what are called by Mr. Justice Denning, 'provisional presumptions and burdens'. The presumptions may be presumptions of law or presumptions of fact. It is also true that the nature of the burden expected to be discharged by an accused person may not be of the same degree of probability as to be beyond reasonable doubt, but may lead to a reasonably probable inference to satisfy the Judge. A fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence probable and the probability is of such a degree that a prudent man ought under the circumstances of the case to act upon the supposition that it exists. It all ultimately would be a matter relative to the degree of probability as to the existence of a fact which a prudent man ought to consider to be existing. On an examination of the provisions of Section 66 of the Bombay Prohibition Act, it appears that it is for the prosecution to prove that the accused has consumed liquor. This the prosecution can do by taking a blood sample from the body of the accused, subjecting it to analysis to find out the concentration of ethyl alcohol in it; and if the percentage is in excess of 0.05 w/v, then there is a legal presumption that the accused has consumed liquor prohibited by the Act. In spite of the certificate the accused may contend that the concentration of ethyl alcohol in his blood is due to his consumption of a medicinal preparation. As to what the accused actually had consumed cannot possibly be a fact within the knowledge of the prosecution. An accused person has a right to give no such information to the investigating agency. Therefore, the Legislature has advisedly required that it is for the accused to show what he consumed and further to show that what he consumed was a medicinal preparation. Now, the Act does not define what is a medicinal preparation. But it must bear the ordinary meaning to the expression and must mean anything taken for a curative or a healing purpose. The law further requires the accused to establish or introduce evidence to indicate that what he consumed was not only a medicinal preparation but a medicinal preparation, consumption of which is not in contravention of the Act, or any rules, regulations or orders made thereunder. This again is a fact which is ordinarily within the knowledge of the accused and is expected to be established by the accused. The accused is certainly entitled to prove it by bringing material on record in the examination of witnesses called for the prosecution or documents seized by the prosecution or by independent evidence on his own, but the responsibility of introducing evidence regarding these facts is certainly cast on the accused by the Legislature in enacting Sub-section (2) of Section 66 of the Act. It is in this sense that the provisional presumption arising in favour of the prosecution can be said to be displaced if the accused introduces facts showing that what he consumed was a medicinal preparation, and further that the medicinal preparation was of the kind permitted under the Act, rules and regulations made thereunder. The presumption that Sub-section (2) of Section 66 draws from the presence of a certain percentage of alcohol concentration in the blood of the accused charged of having consumed prohibited liquor is a compelling presumption. This presumption is liable to he rebutted by showing that what was consumed was not only a medicine but a medicinal preparation permitted under the Act or its rules and regulations. It would not, therefore, be a correct proposition to say that the burden which is to be borne by the accused when prosecuted under Section 66(1)(b) is discharged the moment the accused states or establishes even as a reasonable probability that he had consumed medicinal preparation which had an intoxicating effect. In my opinion, though the ultimate burden, which is a legal burden, is always on the prosecution and does not shift, there is a certain shifting of provisional burdens as the trial progresses from stage to stage and evidence is introduced by one side or the other. For instance, even if the accused were to prove that what he consumed was a medicinal preparation and one permitted under the Act, the prosecution can still show that the quantity of such medicinal preparation consumed by the accused is in excess of what is a permitted dose. This it can show by introducing evidence establishing that an inference of excessive consumption of the dose can be reasonably drawn from the high percentage of concentration of alcohol found in the blood sample taken from the accused. It is this process which goes on as evidence and material is placed on record by one side or the other, either in examination or cross-examination, and it may not be possible to predicate at any one point of time until the whole trial is over, as to whether one side or the other has discharged the onus the law places upon it. Thus, though there cannot be any hard and fast rule as to the provisional burdens resting on one side or the other, it can be safely conceded that the legal burden never shifts from the prosecution, but the legislative enactments can assist the discharge of this burden by raising presumptions of facts or law on basis of what would seem to be primary facts. If the prosecution has established these primary facts, then certain presumptions arise which would be enough to discharge the burden unless the accused, in discharge of his duty placed by the Legislature, introduces other facts or evidence displacing these provisional presumptions.
24. But in the instant case much of the discussion about the burden of proving one fact or the other, which was apparently strenuously argued before the learned Sessions Judge, has lost its importance in view of the admission to record of the report of the Chemical Analyser in respect of the liquid in the bottle found in the jeep. In view of the claim of the accused Vijaysingh that he consumed the liquid in this bottle, the finding of the learned Sessions Judge that the accused consumed this liquid may be accepted. Now the report of the Chemical Analyser, which is exh. H.C. as admitted in this Court, shows that the liquid was a weak Ginger Tincture. The label of the bottle stated that the contents were Ginger Tincture B.P. 1958 (Tincture Zingiberis Mitis), Absolute alcohol content 89.1 per cent. v/v. The report further states as regards alcohol content of the liquid that the sample contained 90.0 per cent. of v/v. of ethyl alcohol though the B.P. Limits are 86 to 90 per cent. v/v. The analysis has also given the quantity of total solids as 0.62 per cent., weight per ml. at 90 degrees to be 0.925 g. In the opinion of the Chemical Analyser, the sample complied with pharmacopoeia specifications. On the basis of this data, therefore, it has to be held that the accused consumed a medicinal preparation which is listed in the British Pharmacopoeia, 1958 edition, and which had alcohol contents to the extent of 90 per cent. v/v. of ethyl alcohol. The accused has further given a reason for consuming this preparation, and that was because he was suffering from some stomach trouble and indigestion.
25. The learned Counsel for the accused, therefore, submits that the moment the accused shows that what he has consumed is a medicinal preparation and that medicinal preparation accounts for the concentration of alcohol found in his blood, the accused must be taken to have discharged the burden placed on him under Sub-section (2) of Section 66 of the Bombay Prohibition Act. It is then for the prosecution to show that what was consumed by the accused was a medicinal preparation fit for use as intoxicating liquor. In other words, the accused contends that on establishing that his intoxication is accountable to consumption of a medicinal preparation containing alcohol, it is for the prosecution to prove that what he might have consumed is not a medicinal preparation unfit for use as intoxicating liquor within the meaning of Section 24-A of the Bombay Prohibition Act, According to the learned counsel, the ratio of the decision of the Supreme Court in Narandas's case is that in all prosecutions for contravention of Section 13(b), which is made punishable under Section 66(1)(b) of the Prohibition Act, it is for the prosecution to prove that the infringement was not in respect of the article or preparation which is covered by Section 24-A and that this burden is not shifted to the shoulders of the accused. In my opinion, in view of the facts of the case which went to the Supreme Court, and in view of the special provisions introduced in the Act in respect of an offence under Section 66(1)(b) regarding consumption of liquor, in Section 66(2) of the Act, this interpretation is not tenable. The offence in Narandas's case was committed on July 29, 1955. On that date, Section 66 did not include Sub-sections (2) and (3) introduced for the first time in 1959. Observations on which the accused relied in this decision have to be understood in the light of law as it was in 1955. So far as offence of consumption of liquor is concerned a drastic and far-reaching change has been introduced by the amendments made in Section 66 as regards presumptions and burden of proof in case of an accusation of consumption of liquor. There are several difficulties in accepting this interpretation. When a person is accused of having consumed liquor in contravention of Section 13(b) of the Act, as to what was consumed is generally a matter within the knowledge of the person who consumes. It may be that in a few cases prosecution may be able to prove affirmatively by oral testimony that an accused person had consumed liquor within the meaning of the Act. What generally happens, however, is that a person is found under the influence of drink already consumed and is taken for medical examination, and it is only by such examination and after taking a sample of his blood and subjecting it to an analytical test that it is possible to find whether the subject has consumed liquor. This presumption is drawn from the percentage of alcohol in the blood, sample as provided in Section 66(2) of the Act. An accused person is not bound to disclose what he consumed at any stage. It may be that the accused may make a statement in defense in Court disclosing what he actually consumed. It is, therefore, difficult to see at what stage it could be possible for the prosecution to prove affirmatively that what the accused consumed was not a medicinal preparation within the meaning of Section 24-A of the Act, for the simple reason that the prosecution may have no means to know what article was consumed by the accused. It is a mere speculation without any data to introduce evidence in the absence of this vital information. It is precisely for this reason that Sub-section (2) of Section 66 has cast a duty on the accused to introduce evidence to show what he consumed and that it was a medicinal preparation. It is also not disputed that he has a further duty to show that what he consumed was a medicinal preparation which can account for the presence of alcohol found in his blood by the Chemical Analyser. But, in my opinion, the duty will not rest there. Sub-section (2) of Section 66 in terms says that the accused must also show that the medical preparation which he alleges to have consumed is one, the consumption of which is not in contravention of the Act or any rules or regulations or orders made thereunder. It is in this context that the learned Counsel for the accused contends that the further burden of proving that the alleged consumption of the medicinal preparation by the accused is in contravention of the Act would rest on the prosecution and this burden, according to the accused, is to show that the medicinal preparation alleged to be consumed by the accused is not one of the medicinal preparations within the meaning of Section 24-A of the Prohibition Act. It is seriously pressed in argument that to hold otherwise would be tantamount to a requirement that the accused shall prove his innocence, a proposition which is repugnant to all canons of criminal jurisprudence. It is difficult to uphold this contention. Once it is accepted that in compliance with the provisions of Section 66(2) of the Prohibition Act it is for the accused to show what medicinal preparation he consumed, that section itself requires the accused further to show that it was a medicinal preparation, the consumption of which is not prohibited under the Act, rules and regulations made thereunder. I do not see any way to get out of this position.
26. In support of his proposition the learned Counsel has relied on two decisions of this Court and a recent decision of the Supreme Court. These cases are (1) State of Maharashtra v. Laxman, (2) State v. Domnic Robert Desilva (1960) Criminal Appeal No. 1611 of 1963 and (3) State v. Estani Joseph Saldanha (1954) Criminal Appeal No. 1611 of 1963.
27. In the case that went before the Supreme Court one Laxman Jairam was produced before the Medical Officer Dr. Rochiram. He was found smelling of liquor, but his speech, behaviour, gait, co-ordination and memory were normal. When sample of his blood was taken and examined, it was found that the blood contained 0.148 per cent. w/v. of ethyl alcohol. The defence of the accused was that he had not consumed prohibited alcohol but he had taken 6 ounces of Neem as he was used to it. The Medical Officer had answered in cross-examination that consumption of 6 to 8 ounces of Tincture Neem will produce blood concentration of 0.148 per cent. w/v. of ethyl alcohol. The Presidency Magistrate held that Neem is a medicinal preparation, containing 40 per cent, alcohol and readily available in the market. The Magistrate, therefore, accepted the explanation given by the accused that he had taken Neem to satiate his desire for alcohol, and referring to the two decisions of this Court, acquitted the accused. In the appeal filed by the State, the Supreme Court held that the Presidency Magistrate had accepted the explanation given by the accused regarding the cause of his smelling of liquor and blood concentration as sufficient to discharge the onus placed on him. The argument on behalf of the State was that mere statement of the accused should not have been accepted as sufficient to discharge the onus on the accused. This contention was repelled and their Lordships observed that if the Courts below have accepted this explanation it must be held that the respondent had discharged the onus which was placed on, him by Section 66 of the Act. From this statement in the body of the report it cannot be said that their Lordships also laid down what the content and. nature of that onus was. In that particular case the onus was held to be discharged within the meaning of Section 66(2) of the Prohibition Act and the acquittal was not interfered with.
28. In State v. Domnic Robert Desilva also the question was whether the accused had discharged the onus on him when he stated that he had consumed what is called essence of Neem. That essence of Neem was a medicinal preparation was proved by the Medical Officer examined in that case. This Court then observed that it was open to the learned Magistrate to hold on the basis of admission of the Medical Officer and on the strength of the statement of the accused that the burden which was cast by law on the accused was discharged by him, and in view of this finding the appeal filed by the State in that case was dismissed.
29. In the third case, Estani Joseph Saldanha v. State of Bombay, which was at the instance of the accused, the charge was under Section 66(b) of the Bombay Prohibition Act before its amendment in 1959. The contention of the accused was that he had taken 5 ounces of Hall's wine. The Magistrate had disbelieved the defence and convicted him. The High Court held that all that the accused had to say was that he had taken the particular medicated wine if he wanted to bring his case within the rulings of this Court and the Supreme Court; and once an accused made a statement showing what exactly he took, the burden was discharged. There was evidence of the medical officer examined in that case that 5 ounces of Hall's wine would produce the symptoms which the doctor noticed when he examined the accused. The conviction of the accused was, therefore, set aside. So far as this case is concerned, it must be pointed out that the amendment made in Section 66 by introducing Sub-sections (2) and (3), was not on the statute book when the accused in Estani Joseph Saldanha v. State of Bombay was found to have contravened the then provisions of the Bombay Prohibition Act. This case, therefore, is not of assistance to the accused in view of the addition of Section 66(2) in the Prohibition Act.
30. Unless the respondent Vijaysingh is able to establish that the ratio of the decision of the Supreme Court in Laxman's case is that in a prosecution under Section 66(1)(b) of the Bombay Prohibition Act for having consumed liquor, the only duty of the accused is to show that he consumed a medicinal preparation and that consumption of such medicinal preparation accounts for the concentration of ethyl alcohol in his blood sample, and having established these facts he is entitled to acquittal, it will not be possible to accept the contention. The decision of the Supreme Court case was in an appeal against acquittal, and so also the decision of this Court in State of Bombay v. Domnic Robert Desilva is also in an appeal against an acquittal. In each of these cases the trying Magistrate felt satisfied that the burden on the accused had been discharged by the accused. But in neither of these cases is there any discussion as to what that burden was. It may be possible to hold that the burden is not as heavy as on the prosecution to prove the guilt of the accused, but even granting that the responsibility on the accused under Section 66(2) is to introduce evidence to make it a reasonable probability that his intoxication and concentration of alcohol in his blood may be due to consumption of a medicinal preparation, it will still be necessary to find out whether the consumption of medicinal preparation was or was not in contravention of the Act and its rules and regulations.
31. But, in my opinion, in the instant case it is not necessary to enter into a further debate as to which side has to prove what in order to find out the guilt or innocence of the accused in the instant case. The prosecution has adduced sufficient evidence in this case as to the quality of the medicinal preparation which the accused claims to have consumed, namely Tincture Zingiberis Mitis. When this evidence was pointed out to the learned Counsel for the accused, which consists of the testimony of Dr. Deshmukh as well as Shri Manudhane, Technical Officer attached to the Board, it was urged that this evidence was inadequate to show that Tincture Zingiberis Mitis was a medicinal preparation fit for use as an intoxicating liquor. As far as the record goes, there is no evidence to show, nor any attempt in that direction by the accused, that Tincture Zingiberis Mitis, claimed to have been consumed by the accused, is a medicinal preparation unfit for use as an intoxicating liquor. In para. 7 of his deposition Shri Manudhane has said that he has known about common tinctures, 4 c.c. is the normal dose of any tincture usually. Tinctures roughly contain about 40 to 90 per cent, of alcohol. He knew about Tincture Zingiberis Mitis B.P. 1952. Blood alcohol concentration on taking a normal dose of this preparation will be about 007 w/v. Then the witness has also given an approximate quantity of this preparation which will have to be consumed to induce alcohol concentration of 207 per cent., as found by the Chemical Analyser. Dr. Deshmukh has made a positive statement that a person may be intoxicated if he takes Tincture Zingiberis Mitis in excessive doses but it will have no other baneful effect on the body, nor is it a dangerous drug.
32. Now, authentic information about Tincture Zingiberis Mitis is to be found at page 292 of the British Pharmacopoeia, 1958 edition. It contains strong Ginger Tincture 200 ml., alcohol 90 per cent, (sufficient to produce 1000 ml.); the dose that is given is 2 to 4 ml. (30 to 60 min.). This dose conforms to the statement of Dr. Deshmukh that 4 c.c. is the normal dose of Tincture Zingiberis Mitis. The evidence of Dr. Joshi (D.W. 3), examined by the accused, shows that that medical practitioner did not prescribe any dose because dose is indicated on the bottle available in the market. The British Pharmacopoeia has given information about statement of doses etc. in the Monographs in respect of each medicinal preparation. It is stated with regard to doses at page 7 of the Book under General Notices, that the doses indicated are intended for general guidance and represent the average range of quantities which are generally suitable for adults when administered by mouth; the oral doses of many substances may be repeated three or four times in 24 hours. Thus the therapeutic dose of this medicinal preparation is not more than 4 c.c. or 4 ml. to be taken three or four times in 24 hours. That this medicinal preparation contains a very high degree of alcohol percentage is obvious, it being as high as 90 per cent. Other spirits which are admittedly liquor or intoxicants such as whisky, gin, champagne or beer contain much lesser percentage of alcohol. The percentage etc. of these and other alcoholic beverages is noted in the following table at page 196 of pharmacology in Medicine by Drill, second edition:
Table 16-1. Alcoholic beverages.--------------------------------------------------------------------------------AlcoholBeverage Raw Melting Distillation content Calories*Material per cent per 100 cc.by volume--------------------------------------------------------------------------------Wine Grape Juice No No 10-22 60-175Hard Cider Apple Juice No No 8-12 35-60Beer ... Cereals Yes No 3.5-6 40-60Ale ... Cereals Yes No 6-8 55-70Brandy Wine No Yes 40-55 225-300Whisky Cereals Yes Yes 40-55 225-300Rum ... Molasses No Yes 40-55 225-300Gin ... Neutralspiritsplusorangepeel andjuniperberries No Usually 40-53 225-300Vodka Neutralspirits No No 40-55 225-300Milk for comparison - - - - 60-30---------------------------------------------------------------------------------
*Almost half the calories in beer and about one third of the calories in ale are furnished by unfermented carbohydrate. Sweet wine may contain 4 to 10 per cent, of sugar.
33. A comparison of the alcohol content of the known wines or liquors with the alcohol content of the medicinal preparation Tincture Zingiberis Mitis would show that this medicinal preparation is fit for use as an intoxicating liquor. In this connection the learned Counsel contended that the expression 'unfit for use as intoxicating liquor' must, only mean a medicinal preparation, use of which will lead to harmful results even though it may produce intoxication. For this interpretation the learned Counsel invited my attention to the decision of the Supreme Court in Narandas's case. At page 263 their Lordships observed as follows:.If alcohol in excess of the quantity prescribed by Section 59A is found in the article, the provisions of Section 24A will not apply irrespective of the question whether it is fit or unfit to be used as intoxicating liquor. 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 24At provided the intoxication would not be accompanied by other harmful effects.
34. Now, there is evidence in this case that Tincture Zingiberis Mitis is a preparation which may be consumed for intoxication and that intoxication would not be accompanied by other harmful effects. That is the positive statement of Dr. Deshmukh in the witness-box and he has not been cross-examined or questioned on the point. The only criticism offered in this respect was that Dr. Deshmukh has not much experience of examining cases of persons who had consumed liquor, but that would hardly be a ground for rejecting his opinion as a Medical Officer as to the effect of this medicinal preparation.
35. But, in my opinion, the construction placed on the expression 'fit for use as intoxicating liquor' in this Court still holds the field. The question was directly in issue in this Court in C.R.H. Readymoney Ltd. v. State of Bombay. One of the questions raised was whether the test to determine whether the preparation was fit or unfit for use as intoxicating liquor would in some manner depend upon the actual effect, and this test was not accepted as a proper test. This very case, however, went before a Division Bench in Letters Patent Appeal and the learned Chief Justice in C.R.H. Readymoney Ltd. v. Bombay State at page 184 observed as follows:.To summarise these alterations to the extent that they are relevant for the purpose of the question that we have to decide, for the first time the law made a distinction between preparations containing alcohol which are fit for use as intoxicating liquor and preparations containing alcohol which are unfit for use as intoxicating liquor, and having made that distinction the Act removed from the ambit of the Prohibition Act those medicinal and toilet preparations which were unfit for use as intoxicating liquor. In other words, the Legislature clearly declared its intention that it wanted to remove the unreasonable restrictions upon the rights of citizens which had been pronounced upon by the Full Bench and the Supreme Court, and the manner in which these restrictions were sought to be removed was that in order to give effect to the Prohibition policy the Legislature would not permit the free use of medicinal and toilet preparations which could be drunk as beverages, because to permit the free use of such preparations would obviously be to defeat the very policy for which the Act was passed. But to the extent that there were toilet and medicinal preparations which would not normally and ordinarily be drunk as beverages and with regard to the free use of which the policy of prohibition would not be affected, the Legislature, as we just pointed out, removed them from the ambit of the Act.
Further at pages 190 and 191 the Division Bench observed as follows:.It is difficult to ascertain objectively whether a particular preparation would in fact lead to drunkenness and intoxication. It depends upon so many factors; upon the constitution of the person who drinks an intoxicating liquor, upon the quantity he drinks, upon the mood in which he is when he drinks it, and several other factors. The Legislature was not concerned with the actual result or the consequence of consumption of an intoxicating liquor. What it was concerned with was that it was an intoxicating liquor which was being drunk, and therefore, in our opinion, the proper construction to place upon the expression 'for use as intoxicating liquor' is that it must be a liquor which is capable of causing intoxication or a liquor which has the property of causing intoxication..One can easily conceive of several medicines on the market which contain alcohol which are genuine medicines and which do not contain any deleterious or poisonous materials. The absence of deleterious or poisonous materials would not necessarily put these medicinal preparations in the category of preparations fit for use as intoxicating liquor. Equally improper is the other test which was also adopted by the Board whether the preparation was calculated to bring about symptoms of intoxication. There is considerable difference of opinion as to what are the symptoms of intoxication, when intoxication starts, when it reaches its culmination, and we see no reason why the Board should have launched upon this interesting but entirely futile inquiry. As already pointed out, if the medicinal preparation has the property of causing intoxication and it can be drunk as a beverage, then the question as to at what stage the symptoms of intoxication would arise by consuming this liquor would be entirely irrelevant. On the whole, we are in agreement with the learned trial Judge that the test that should be applied is practically identical with the test that would be applied under the Valsteed Act, and that is whether a particular medicinal preparation is fit for use as beverage purposes.
36. Judged by this test, there can hardly be any doubt that Tincture Zingiberis Mitis alleged to be consumed by the accused, is a medicinal preparation fit for use as intoxicating liquor, the percentage of alcohol is much higher than even ordinary wines and liquors and it is not unlit for use as intoxicating liquor.
37. As a branch of this argument, the learned Counsel also contended that under the Bombay Drugs Act, 1952, (Bombay Act No. XXIX of 1952), the State Government had the power to notify certain drugs as notified drugs under Section 6 of that Act. Once a drug is so notified as a notified drug, no person, other than a dealer or a medical practitioner, was entitled to have in his possession at any one time a quantity greater than that specified in the notification. Now this Act was subsequently replaced by the Bombay Drugs Control Act, 1959, but the provisions were identical. The Government of Bombay has issued a notification on January 9, 1958, under Section 3(1) of the Bombay Drugs (Control) Act, 1952, and according to this notification weak Tincture of Ginger was one of the drugs to which the Act applied. This notification is to be found at pages 41-42 of the Bombay Government Gazette, dated January 16, 1958, in its Part IV-B. On the basis of this notification it is urged that according to the Government, Tincture Zingiberis Mitis is a notified drug and the very fact that it is a notified drug shows that its sale or consumption is required to be regulated and, therefore, it is a harmful drug. Though no such notification was in force in the Vidarbha region after the Bombay Drugs (Control) Act, 1952, was applied to this region it is contended that the previous notification itself is a relevant fact to show that this medicinal preparation is a harmful preparation. In my opinion, this conclusion does not follow from the action taken by the Government in notifying this drug. The Act is made to control the possession, sale and use of certain drugs. Even assuming that it is possible to infer that the consumption, use or sale of the spirituous drugs was required to be controlled because of their misuse, that again will not lead to the conclusion that Tincture Zingiberis Mitis is unfit for use as an intoxicating liquor in the sense that it is incapable of producing that effect or that if taken in quantities it is bound to have a deleterious affect. Probably, the use, consumption and sale is being regulated because the availability of this drug may be abused. The Government has already made rules, called the Bombay Spirituous Medicinal Preparations (Sale) Rules, 1954, in exercise of the powers under Section 143 of the Bombay Prohibition Act. Under these rules 'spirituous medicinal preparation' means any medical preparation in liquid form containing alcohol which is fit for use as intoxicating liquor. Under the rules licences have to be taken for sale of spirituous medicinal preparations. A registered medical practitioner or any person in charge of a hospital or dispensary desiring to dispense spirituous medicinal preparations are also required to obtain licences under the rules. Thus, the prescription, sale and consumption of spirituous medicinal preparations such as Tincture Zingiberis Mitis has been regulated and controlled by rules because they are fit for use as intoxicating liquor. The same purpose could be achieved by taking action under the Bombay Drugs (Control) Act. Nothing, therefore, turns on the fact that the article in question is also a notified drug under that Act.
38. As observed by a Division Bench of this Court in State v. Bhausa (1961) 64 Bom. L.R. 303 the genesis of the law contained in Section 24-A is that originally in totally prohibiting the use of medicinal and toilet preparations the State Legislature was imposing unreasonable restriction on the right to acquire, hold and dispose of property guaranteed under Article 19(1)(f) of the Constitution. It was, therefore, necessary to amend the law by declaring that such preparations were not intended to come within the mischief of the Act if they were incapable of being used as intoxicants. The effect of the decision of the Supreme Court in Balsara's case can only be that any unreasonable restraint on the bona fide use of medicinal and toilet preparation was unconstitutional and therefore void. If a medicinal preparation contains alcohol of a very high percentage, then it is reasonable to take the view that the preparation is fit for use as intoxicating liquor. In that sense it will fall within the mischief of the Prohibition Act. It is not possible to accept the contention urged on behalf of the accused that a medicinal preparation is not fit for use as intoxicating liquor unless other harmful effects are produced by consumption of such medicinal preparation. The expression 'fit for use as intoxicating liquor' can only be reasonably interpreted to mean capable of being used as intoxicant or producing intoxicating effect.
39. The moment it is claimed that a preparation is a medicinal preparation containing alcohol, it postulates being prescribed in regulated doses under medical advice. The medical adviser takes the responsibility of prescribing a medicinal preparation containing alcohol, and it cannot possibly be said that a responsible medical practitioner will prescribe any doses which will result in the patient getting drunk. In the case of this accused Vijaysingh, even assuming that his claim that he was advised to consume Tincture Zingiberis Mitis is true, the therapeutically dose for this preparation as prescribed in British Pharmacopoeia, 1958, was a maximum dose of 4 ml. or 60 min. Dr. Deshmukh as well as Shri Manudhane (P.W. 1) state that normal dose of this medicine is 4 c.c. which is equal to 4 ml. This much dose, taken at intervals, was unlikely to produce concentration of blood alcohol of 207 per cent. w/v. When the concentration of alcohol found in the blood of the accused was as high as 207 per cent. w/v, it is absurd to suggest that the accused consumed this preparation as medicine or in therapeutically doses. Probably, it is because of very high percentage of alcohol in this preparation that the therapeutically dose restricts maximum quantity to 4 ml. or 4 c.c. A preparation containing such high percentage of alcohol, if taken in excess, is bound to result in intoxication like all other alcoholic preparations. Alcoholic beverages such as wine, cider, beer, ale, brandy, whisky, rum and gin, contain within 3.6 to 55 per cent. of alcohol w/v. It cannot, therefore, possibly be accepted as a valid defence to a prosecution for being intoxicated under Section 66(1)(b) that the moment the accused person shows that he had taken a medicinal preparation containing high percentage of alcohol he has discharged the burden under Section 66(2).
40. The law has allowed use of medicinal preparation containing alcohol but not its abuse. It is an abuse of the provision of law permitting use of medicinal preparation containing alcohol to consume such preparations for the purpose of getting intoxicated. In my opinion, the interpretation sought to be put on the provisions of the Act or the decisions of this Court that the moment an accused showed that what he consumed was a medicinal preparation containing high percentage of alcohol, he has discharged the burden is untenable. In my judgment, therefore, when the accused admitted to have consumed Tincture Zingiberis Mitis, a medicinal preparation having 90 per cent. of alcohol and fit for use as intoxicating liquor, the accused has committed an offence under Section 66(1)(b) of the Prohibition Act and there is no escape from the conclusion.
41. The learned Sessions Judge was oppressed by the fact that the prosecution had not produced and placed on record the report of the Chemical Analyser in respect of the liquid found in the bottle seized from the jeep of the accused. The learned Judge drew an inference adverse to the prosecution from this omission and held that the prosecution had not proved that the medicinal preparation which the accused claimed to have consumed was unfit for use as intoxicating liquor. Now that report is admitted to record at the instance of both the parties, and what the accused consumed and the nature of the constituents of that preparation regarding alcoholic contents is not a mystery. This material on record does establish that the accused had consumed a medicinal preparation which resulted in concentration of alcohol in his blood to be as high as 0.207 per cent. w/v. The explanation of the accused that this was brought about by his consuming Tincture Zingiberis Mitis does not absolve the accused inasmuch as that medicinal preparation is fit for use as intoxicating liquor. In fact, the result of consumption patently showed that it is so fit. Once that conclusion is reached, and in my judgment no other conclusion is possible in the instant case, the accused must be held guilty.
42. One of the contentions raised by the accused is that false charge is brought against him because of the tiff he had with Shri Ghai, Home Inspector. There were exchange of words between them and the accused has stated that Ghai gave him insulting treatment and manhandled him and threatened him that he would be prosecuted, and therefore this case was started. It was on that account, the accused complains that he was not granted bail but detained in police custody though the offence was bailable, till next morning. In support of this complaint he has examined two defence witnesses. It is not possible to accept that in a town like Akola where the accused was known and it was also known that he was held up in police lock-up, either of the two defence witnesses D.W. 1 and D.W. 2 could not have approached for legal aid in securing his release on bail. But even assuming that the bail was unreasonably refused by police authorities, this factor can hardly enter into consideration of the merits of the prosecution for offences under the Prohibition Act. These are all subsequent events and if the accused had made a complaint to the proper authorities the complaint could have been enquired into for unreasonable refusal of bail. This complaint is irrelevant in considering whether the accused went into the office of the D.S.P. in a drunken state and was intoxicated. Finding on these issues has to be given on evidence on record regarding incidents and condition of the accused prior to his arrest.
43. The learned Sessions Judge has maintained the sentence of 7 days' rigorous imprisonment and a fine of Rs. 25 imposed on the accused for offences under Sections 85(1)(1), (2) and (3) of the Prohibition Act. In considering the question of sentence the learned Sessions Judge has observed that only minimum sentence has been imposed and the mere fact that the appellant Vijaysingh belongs to a respectable family and is an educated young man would not deserve any leniency. In fact, the learned Sessions Judge has further observed that this background should have induced the accused to refrain from committing such offences and should have impelled him to abide by law, unless getting desperate the accused wanted to take advantage of his status. It is not possible to differ from this estimate of the behaviour of the accused in the instant case. The case reveals a very unfortunate and distressing tendency of irresponsible behaviour in educated young men of status not only in committing breach of the law but flaunting that breach in public places in defiance of the law. The conduct of the accused in going in a drunken state in a jeep driven recklessly by him and barging into the office of the head of the district police administration and creating scene in his office hardly redounds to the credit as a respectable and responsible citizen. Neither the law nor the Courts can consider this conduct deserving of any leniency and there is no extenuating circumstance to depart from the normal sentence liable to be imposed for these offences.
44. The acquittal of the accused under Section 66(1)(b) is set aside and he is held guilty under that section and sentenced to rigorous imprisonment for three months and a fine of Rs. 500 which is the minimum sentence the law imposes for the offence. In default of payment of fine, further R.I. for one month. The conviction of the accused under Section 85(1)(1), (2) and (3) is already confirmed by the Sessions Judge and the revision petition of the accused against that conviction and sentence is rejected. Both the sentences are to run concurrently.
45. Thus Criminal Appeal No. 234 of 1962 is allowed and Criminal Revision Application No. 224 of 1962 is rejected. The accused shall surrender to his bail immediately.