Subba Rao, J.
1. This appeal by certificate issued by the High Court of Judicature atBombay raises the question of the construction of some of the provisions of theBombay Prohibition Act, 1949, hereinafter called the Act.
2. On June 12, 1961, Vijaysingh, the appellant, and one Namdeo Shinde drovein a jeep at an excessive speed and dashed in against the wall of the office ofthe District Superintendent of Police, Akola. Both of them appeared to beintoxicated. In the jeep there was also a bottle with a label on it as'Tincture Zingeberis'. Vijaysingh was prosecuted before the JudicialMagistrate, First Class, Akola, under s. 66(1)(b) and s. 85(1)(1), (2), and (3)of the Act. The said Magistrate convicted the appellant both under s. 66(1)(b)and s. 85(1)(1), (2) and (3) of the Act, but sentenced him only under ss.66(1)(b) and 85(1)(1) of the Act. On appeal, the learned Sessions Judge, Akola,acquitted the appellant under s. 66(1)(b) of the Act, but confirmed theconviction and sentence under s. 85(1)(1) thereof. Against the judgment of theSessions Judge acquitting the appellant under s. 66(1)(b) of the Act the Stateof Maharashtra preferred an appeal to the High Court; and against the order ofconviction under s. 85(1)(1) of the Act the appellant preferred a revision tothe High Court. The High Court heard both the matters together and allowed theappeal filed by the State and dismissed the revision petition preferred by theaccused-appellant. In the result it set aside the order of acquittal made bythe Sessions Judge under s. 66(1)(b) of the Act and sentenced the accused torigorous imprisonment for 3 months and a fine of Rs. 500 and confirmed theconviction and sentence of the accused under s. 85(1)(1) of the Act. Hence thepresent appeal.
3. Learned counsel for the appellant raised before us several contentionsfor dislodging the judgment of the High court. We shall now proceed to dealwith them in the order in which they were addressed to us.
4. The first contention may be put thus. Under s. 66(2) of the Act all thatan accused need prove is that he has consumed a medical preparation; if heestablished that, the burden of proving that the medicinal preparation is fitfor use as an intoxicating liquor shifts to the prosecution. In the presentcase the accused has established that he had taken 'tincturezingeberis', which is a medicinal preparation, but the prosecution failedto prove that it was fit for use as an intoxicating liquor.
5. To appreciate this contention it is necessary to notice the relevantprovisions. Under s. 66(1) of the Act, 'Whoever in contravention of theprovisions of this Act, or of any rule, regulation or ordermade..........consumes..........any intoxicant shall, on conviction, bepunished for a first offence, with imprisonment for a term which may extend tosix months and with fine which may extend to one thousand rupees.''Intoxicant' is defined to mean, among other things, any liquor; and'liquor' is defined to include, among others, all liquids consistingor containing alcohol. Under s. 13(b), no person shall consume or use liquor.Relevant part of s. 24A enacts that nothing in Ch. III shall be deemed to applyto any medicinal preparation containing alcohol which is unfit for use asintoxicating liquor. The effect of these sections, in so far as they are materialfor the present case, is that if a person consumes liquor, i.e., any liquidconsisting of or containing alcohol, be commits an offence under s. 66(1) ofthe Act and, therefore, is liable to be convicted thereunder. But by reason ofs. 24A(2) of the Act if it is established that the liquor consumed is containedin any medical preparation which is unfit for use as intoxicating liquor, theconsumption of such liquor is not an offence under the Act, for the Act itselfdoes not apply to such medicinal preparations. We shall revert to the questionof burden of proof a little later.
6. The facts found in this case may now be noticed. The accused says that heconsumed 'tincture zingeberis' and produced before the police asample bottle out of which he says he had consumed tincture zingeberis. Asample of the liquid was analysed by the Chemical Analyser. His report showsthat the liquor was a weak Ginger Tincture B.P. 1958 (Tincture ZingeberisMitis); absolute alcohol content was 89.1 per cent. V/V. The report furtherstates as regards alcohol contents of the liquid that the sample contained 90.0per cent. of V/V of ethyl alcohol, though the B.P. limits were 86 to 90 percent. V/V. 'The analysis has also given the quantity of total solids as0.62 per cent. weight per ml. at 20 degrees to be 0.825 g.' In the opinionof the Chemical Analyser, the sample complied with pharmacopicalspecifications. On the basis of the report, the High Court found that theaccused consumed a medicinal preparation which was listed in the BritishPharmacopia, 1958 edition, and which had alcohol contents to the extent of 90per cent. V/V of ethyl alcohol. The Chemical Analyser to the Government ofMaharashtra examined the sample blood taken from the body of the accused byapplying 'modified Cavette's method' and gave his report to the factthat the sample blood of the accused contained 0.207 mg. p.c. w/v of ethylalcohol. The High Court also found on the expert evidence that blood alcoholconcentration on taking a normal dose of tincture zingeberis mitis would beabout 0.007 per cent. W/V and the accused should have taken roughly about 125c.c. of tincture zingeberis to induce an alcohol content of 0.207 per cent.found in his blood by the Chemical Analyser. On the basis of the evidence ofDr. Deshmukh, the High Court also found that Tincture Zingeberis Mitis was apreparation which might be consumed for intoxication and that intoxicationwould not be accompanied by any other harmful effects. On the other hand theaccused has not adduced any evidence that the said medicine is a medicinalpreparation unfit for use as intoxicating liquor.
7. The question whether the prosecution has discharged its burden of proofin this case will have to be considered on the basis of the said facts found bythe High Court. Section 66(2) of the Act, which bears on the question of burdenof proof, reads thus :
'Subject to the provisions of sub-section (3),where in any trial of an offence under clause(b) of sub-section (1) for theconsumption of an intoxicant, it is alleged that the accused person consumedliquor, and it is proved that the concentration of alcohol in the blood of theaccused person is not less than 0.05 per cent, weight in volume then the burdenof proving that the liquor consumed was a medicinal or toiletpreparation.....containing alcohol, the consumption of which is not in ccontravention of the Act or any rules, regulations or orders made thereunder,shall be upon the accused person, and the Court shall in the absence of suchproof presume the contrary.'
8. It has been proved in this case that the accused person consumed liquorand that the concentration of alcohol in his blood was more than 0.05 per cent,weight in volume. So in terms of sub-s. (2) of s. 66 of the Act the burden ofproviding that the liquor consumed was a medicinal preparation containingalcohol, the consumption of which was not in contravention of the Act etc., orthe rules made thereunder, shifted to the accused. He could have dischargedthis burden by proving, inter alia, that the medicinal preparation containingalcohol which he had taken was unfit for use as an intoxicating liquor; if somuch had been established, as under s. 24A of the Act, the Act itself does notapply to such medicinal preparations, the accused would not have committed anyoffence under the Act. The High Court found that the accused had not placed anymaterial to prove that tincture zingeberis mitis was unfit for use as anintoxicating liquor; indeed, it accepted the evidence adduced on behalf of the prosecutionand held that it was fit for use as an intoxicating liquor. In this case notonly the accused failed to discharge the burden so shifted to him by thestatue, but the prosecution had also established that the said medicinalpreparation was fit for use as an intoxicating liquor. Reliance is placed bythe learned counsel for the appellant on the decision of this Court in TheState of Bombay (now Gujarat) v. Narandas Mangilal Agarwal  Supp. 1 S.C.R. 15 wherein it was held, in the circumstances of the case, that it wasfort the State to prove that the medicinal preparation was not unfit for use asintoxicating liquor. But that division was given on the relevant provisions ofthe Act before it was amended by the Bombay Act XII of 1959. Section 66(2) wasadded by the said Act which in express terms states that in the circumstancesmentioned in the sub-section the burden of proof shifts to the accused. Thesaid decision cannot, therefore, be invoked in the changed circumstances. Thepresent case falls to be decided on the interpretation of s. 66(2) of the Act.We, therefore, hold that the High Court came to the correct conclusion on thequestion of burden of proof and gave its finding on the evidence adduced beforeit.
9. It was then argued that even if the burden of proof in the circumstancesof the case shifted to the accused that burden was discharged by reason of s.6A of the Act. Under s. 6A of the Act for the purpose of enabling the StateGovernment to determine whether any medicinal preparation containing alcohol isan article fit for use as intoxicating liquor, the State Government shallconstitute a Board of Experts; and under sub-s. (6) thereof, it shall be theduty of the Board to advise the State Government on the question whether any articlementioned in sub-s. (1) of s. 6A is fit for use as intoxicating liquor and upondetermination of the State Government that it is so fit, such article shall,until the contrary is proved, be presumed to be fit for use as intoxicatingliquor. Under sub-s. (7) thereof, 'Until the State Government hasdetermined as aforesaid any article mentioned in sub-section (1) to be fit foruse as intoxicating liquor, every such article shall be deemed to be unfit forsuch use.' On the basis of this section, the argument proceeded that theState Government did not determine under s. 6A of the Act that 'TinctureZingeberis Mitis' was fit for use as intoxicating liquor and, therefore, thesaid article shall be deemed to be unfit for such use, with the result theburden which shifted to the accused under s. 66(2) off the Act was statutorilydischarged. There is considerable force in this argument; but unfortunatelythis point was raised only for the first time before us. There is nothing onthe record to show that the State Government has not decided that the saidarticle is fit for use as intoxicating liquor. If this question had been raisedat the appropriate time, the relevant material would have been placed beforethe Court. Even though the argument was raised no attempt was made even afterthe filing of the appeal or even at the time of the arguments to place therelevant material before this Court to sustain the said legal argument. Wecannot, therefore, permit the appellant to raise the point for the first timebefore us, particularly when there is utter lack of factual basis.
10. The next argument of the learned counsel that the High Court came to theconclusion it did on irrelevant evidence has no force. It is said that theprosecution did not adduce any evidence to prove that 'Tincture ZingeberisMitis' was not unfit for use as an intoxicating liquor. To state itdifferently, the argument is that unless it was established by the prosecutionthat the consumption of a medicinal preparation had no harmful effects on thehealth of the person consuming it, it could not be said that it was not unfitfor use as intoxicating liquor. In the present case the High Court found on theevidence that 'Tincture Zingeberis Mitis' was a preparation whichmight be consumed for intoxication and that intoxication would not beaccompanied by any harmful effects. This contention, therefore, must berejected.
11. The last argument turns upon the provisions of s. 85(1)(1) and (2) ofthe Act. The relevant part of s. 85 reads :
(1) Whoever in any street orthoroughfare or public place or in any place to which the public have or arepermitted to have access -
(1) is drunk and incapable oftaking care of himself,
* * * * *
(2) In prosecution for anoffence under sub-section (1), it shall be presumed until the contrary isproved that the person accused of the said offence has drunk liquor or consumedany other intoxicant for the purpose of being intoxicated and not for a medicinalpurpose.
12. It was contended that s. 85 of the Act laid down two conditions, namely,that the accused should have been drunk and incapably of taking care of himselfand also that he should have taken the drink for the purpose of beingintoxicated and not for a medicinal purpose. This conclusion, the argumentproceeded, would flow from sub-s. (2), for otherwise, so it was said, thepresumptive rule of evidence enacted in sub-s. (2) would be unnecessary andeven irrelevant if the purpose mentioned therein was not an ingredient of theoffence.
13. This raises an interesting question of law, but, in view of the findingof fact arrived at by the High Court it does not call for a decision in thisappeal. Assuming without deciding that the argument has some substance, thefinding of the High Court satisfies the test suggested by the argument.Whatever meaning is given to the expression 'drunk', in this casethere is clear evidence that the accused has taken the drink for the purpose ofintoxication and not for medication and that under the influence of drink hehad rashly driven his jeep into the office of the District Superintendent ofPolice and dashed it against the wall of that office. He was drunk and was,therefore, incapable of taking care of himself. On the facts found the HighCourt rightly held that the accused committed an offence under s. 85(1) of theAct.
14. In the result, the appeal fails and is dismissed.
15. Appeal dismissed.