1. The Government have preferred this appeal against the order of the First Class Magistrate, Surendranagar, acquitting the respondent of the offence of consuming an intoxicant (spirit) tinder Section 66(b) of the Prohibition Act. The facts of the case are very simple. Raghuvirsinh, the Homeguard Officer, received1 information on 5.10.50 that one Bai Takhu kept and sold liquor in her house. Thereupon Raghuvirsinh took with him other members of the Home-guard and the Sub-Inspector in order to raid the house. The house was closed but four or five persons came out of an adjoining house in a. drunken condition. One Ramji also passed by with a bottle of spirit in his hand and he and all these persons were arrested by the raiding party. The party then proceeded to the respondent's house where he was found in a drunken condition. A bottle of spirit was found from his house and he was also arrested.
All the arrested persons were taken in the chowk where a panchnama of their condition was made. The respondent and others were then sent to the dispensary where Dr. Chamanlal Manila!, the Medical Officer, examined them. The mouths of the respondent and others were smelling of spirit though they were all completely conscious. The learned Magistrate tried the respondent on these facts under Section 66(b) of the Prohibition Act. He held that it was proved that the respondent had consumed spirit but as the prosecution had not shown that the spirit which the respondent had consumed was not exempted spirit, he acquitted the respondent. This means that, according to him, it was for the prosecution to prove that the respondent not only consumed spirit but that the spirit contained more than 2 per cent, alcohol or was not medicated spirit. The Government has preferred this appeal against the learned Magistrate's order.
2. There is no doubt that the respondent had consumed spirit. Dr. Chamanlal, Ex. 5, states that the mouths of the respondent and all others whom he had examined the same day were smelling oil spirit. The learned Advocate for the respondent referred us to the deposition of the Panch Hargovind Sukhlal who states that they had not smelt the respondent's mouth. This does not affect the learned Magistrate's finding because the respondent was examined shortly thereafter by the Doctor who proves that he (respondent) had consumed spirit. It is not disputed that he had thereby consumed an intoxicant.
3. We have next to see whether having proved that the respondent had consumed an intoxicant, it is necessary for the prosecution to prove further that the spirit was not an exempted spirit under Notification No. Rev. Ex. 52/2270 dated 7/12.7.50. On this point the Bombay High Court has recently held in an unreported judgment, - State v. Rangrao Bala, Criminal Appeal No. 1064 of 1951 (Bom) that the burden of proof lies on the accused to show that the intoxicant which was taken by him was in the form of medicated alcohol or not prohibited liquor. We agree with this view of the burden of proof. Our attention was drawn in this reference to two cases decided by this Court on the question of the burden of proof in cases under the Prohibition Act. In the first of these cases - State v. Pranjivan Gandalal Cri. Appeal No. 165 of 1950 (Sau), the accused was found coming to Bhavnagar over a bicycle in a drunken condition. He was convicted by the First Class Magistrate, Bhavnagar, under Section 66(b) o the Prohibition Act. The learned Sessions Judge however directed an acquittal of the accused and ordered his trial under Section 85(1) of the Act because he held that though the accused was found in a drunken condition in Bhavnagar and could be tried by the First Class Magistrate, Bhavnagar, under Section 85(1) of the Act, it was not proved that the appellant had consumed the intoxicant in Bhavnagar and the Magistrate had consequently (no?) jurisdiction to try the accused for the offence under Section 66(b) of the Act.
That decision was upheld in appeal by this Court. One of the arguments advanced by the learned Advocate General in that case was that the accused was the only person who could have special means of knowledge of the place where he had consumed the liquor and if he questioned the court's jurisdiction, it was for him to show under Section 106 of the Indian Evidence Act that he had not consumed it in Bhavnagar. In rejecting this argument, Chhatpar J. observed that the section applied to cases contemplated by illustration (b) to the section when the prosecution cannot prove a negative fact. But positive facts giving jurisdiction to a Court must in all cases be established by the prosecution.
The second case was - Memon Jusab Ibrahim v. State Cri. Bevn. No. 45 of 1951 (Sau). In that case the applicant-accused was found in unauthorised possession of four bottles of country liquor. The High Court held that before he could be convicted under Section 66(b), the prosecution must prove that the liquor was not exempted liquor within the above mentioned notification. Neither of these cases can affect our decision. In the Bhavnagar case the prosecution had been rightly called upon to prove all the facts which gave the Court jurisdiction to try the offence. These are positive facts which must always be proved by the prosecution. But the same rule cannot apply to negative facts as regards which the rule about the burden of proof would be governed by Section 106 provided of course other conditions for the application of that section are satisfied.
Now in this case the positive fact was that the respondent had drunk spirit or consumed an intoxicant. The prosecution proved that fact. The negative fact which constituted an exception was that the intoxicant did not contain more than a certain percentage of alcohol. This fact can only be within the special knowledge of the accused and the burden of proving it lies on him. In the very nature of things evidence of the alcoholic content of the liquor consumed would not be available to the prosecution. The case of Jusab Ibrahim must be deemed to have been decided with reference to the special facts of that case and to the charge of unauthorised possession of liquor. In a case of unauthorised possession the percentage of the alcohol in the liquid cannot be regarded as a fact within the accused's special knowledge which he is required to prove. That knowledge is available to the prosecution also if they only took the trouble of getting the liquid analysed.
The case of unauthorised possession of liquor therefore presents points of distinction from the case of unauthorised drinking of liquor and the considerations which determine the burden of proof in the case of unauthorised possession of'' liquor do not apply to the case of unauthorised drinking. Consequently while the person in possession of liquor need not prove that it is an exempted liquor, a person who is proved to have drunk liquor can only escape conviction if he can show that the liquor consumed by him was exempted liquor.
4. We, therefore, cannot agree with the learned Magistrate that the prosecution should prove that the spirit consumed by the respondent was not exempted spirit. That duty is cast on the respondent which he has made no attempts to discharge. The learned Magistrate's order must therefore be set aside and the respondent convicted of the offence under Section 66(b) of the Prohibition Act.
5. This is however the first conviction of the respondent. He has been at large from the date of the order of acquittal in February 1951 i.e. about a year ago. Under the circumstances, we are not disposed to meet out substantial punishment of the respondent. We prefer to give him the benefit of Section 92 of the Act. Accordingly, we order that the respondent shall execute a bond of Rs. 100/- with one surety for a like amount to appear before the High Court and receive sentence when called upon during one year and in the meantime to keep the peace and be of good behaviour. The respondent shall appear before the trying; Magistrate within 15 days to execute the bonds.
6. I agree.