M.K. Shah, J.
1. This is State's appeal against an order of acquittal passed by the learned Metropolitan Magistrate, 2nd Court, Ahmedabad, acquitting the respondent-accused for the offences under Sections 67 and 66(b) of the Bombay Prohibition Act ('the Act').
2. A few facts may be stated to appreciate the points which arise for consideration in this appeal. On information received, the police raided the place of the accused in Kadia's chawl, Chamanpura, Ahmedabad and from a back room of his house, drums containing a liquid appearing to be liquor were found. Samples were taksn from the said drums in three bottles and after performing the necessary formalities of sealing bottles and affixing slips thereon in the presence of panchas, the samples were sent for analysis to the chemical analyser. The chemical analyser's report showed that the sample bottles contained 'diluted denatured spirit.' The accused was, thereupon, prosecuted for the aforesaid offences punishable under Sections 67 and 65(1)(b) of the Act. The learned Magistrate, on the evidence led before him, found that the samples analysed showed that the bottles contained diluted denatured spirit which was not potable and was not fit for being used as an intoxicant. He, therefore, recorded a finding of not guilty against the accused and acquitted him of the offences with which he was charged. It is this order of acquittal which is challenged by the State in this appeal.
3. Mr. Vaidya, the learned Public Prosecutor submits that the learned Magistrate erred in acquitting the accused on the ground that as the liquid was diluted denatured spirit, the accused could not be held guilty of possessing any spirit in respect of which he knew or had reason to believe that any such alteration or attempt to altjr, as provided in Section 21 of the Act was made. It is also submitted by Mr. Vaidya that the learned Magistrate also erred in not convicting the accused for the offence under Section 65(1)(b) because the chjtnical analyser's report, in terms, shows that the sample analysed contained alcohol, percentage whereof was set out in the concerned report under the head 'Quantitatives.'
4. Section 2(22) of the Act defines intoxicant as meaning 'any liquor, intoxicating drug, opium or any other substance, which the State Government may, by notification in the official gazette, declare to be an intoxicant;' and as per Section 2(24), 'liquor' includes 'spirits, denatured spirits, wine, beer, toddy and all liquids consisting of or containing aleohol.' Clause (10) of Section 2 defines the word 'denatured' as meaning 'subjected to a process prescribed for the purpose of rendering unfit for human consumption.' Now, if we turn to Section 21 to which my attention has been drawn by Mr. Vaidya, it is found to provide that 'no person shall (a) alter or attempt to alter any denatured spirit by dilution with water or by any method whatsoever, with the intention that such spirit may be used for human consumption, whether as a beverage or internally as a medicine or in any other way whatsoever or (b) have in his possession any denatured spirit in respect of which he knows or has reason to believe that such alteration or attempt has been made; and Section 67 prescribes penalty for breach of Section 21.
5. Relying on these provisions, Mr. Vaidya's submission is that as the liquid found from the place of the accused was diluted denatured spirit containing some alcohol it should b; presumed, as provided in Section 103 of the Act, that the accused had committed an offence in respect of this substance, that nuan?, he was in possession of liquor i.e. iitouciat and should have been, therefore, hell guilty under Section 66(1)(b) of the Act, it also means, he was in possession of denatured spirit which bad been altered or attempted to be altered by dilution with water or by any other method whatsoever, with the intention that the same may be used for human consumption and, therefore, he should have been also held guilty for the offence under Section 67, Section 103 reads thus,-
In prosecutions under any of the provisions of this Act, it shall be presutred without further evidence, until the contrary is proved, that the accused person has, committed an offence under this Act in respect of any intoxicant, hemp, mhowra flowers or molasses or any still, utensil, implement or apparatus, whatsoever for the manufacture of any intoxicant or any other materials which have undergone any process towards the manufacture of any intoxicant or from which an intoxicant has been manufactured, for the possession of which he is unable to account satisfactorily.
But while canvassing the point, what is lost sight of by Mr. Vaidya, in this connection, is that the presumption under Section 103 would arise only when the prosecution discharges the initial burden of proving that the accused was found in possession of any such article as is mentioned in the said section. In the instant case, therefore the initial burden which is required to be discharged by the prosecution will be to show that the accused was found in possession of an intoxicant or any material which has undergone any process towards the manufacture of an intoxicant Diluted denatured spirit cannot be equated with intoxicant or any material which has undergone any process towards the manufacture of any intoxicant or from which intoxicant has been manufactured. It is true, liquor will be an intoxicant and liquor includes, as per Section 2(24), denatured spirit, as also any liquid which consists of or contains alcohol. But 'diluted denatured spirit' again, cannot be equated with 'denatured spirit' so as to be included within the definition of liquor. It is, however, true that any liquid which consists of or contains alcohol is also liquor and in that sense, the three samples which were analysed by the Assistant Chemical examiner of the Government of Gujarat, Drugs Laboratory, Baroda did contain alcohol as per the percentage mentioned in reports, Exs. 10, 11 and 12. But here also, as pointed out by Mr. Shah, the bar contained in Section 24 A of the Act will come into play. Section 24 A provides thus-'Nolhing in this Chapter shall be deemed to apply to-
(1) any toilet preparation containing alcohol which is unfit for use as intoxicating liquor;
(2) any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor;
(3) any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor;
(4) any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor.
The prosecution, therefore, will have to establish that though the sample contained alcohol, it was not any toilet preparation, medicinal preparation, antiseptic proportion or any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor. The burden is on the prosecution to show that the samples did not contain any such preparation.
6. Reliance is placed in this connection on a decision of B.J. Divan, J. (as he then was) in Criminal Revision Application No. 361 of 1964 decided on 21st July 1965 Bai Teji v. State of Gujarat. Here also, similar question arose and reference was made to Section 24A and relying on a Supreme Court decision in Slate of Bombay v. Narandas : AIR1962SC579 as also an earlier decision of this Court in Mansukh Morarji v. State of Gujarat I.L.R. IV Gujarat 1197, it was held that the burden lying upon the State to establish in any given case in which it is alleged that the accused has infringed the prohibition contained in Sections 12 and 13 of the Act, that the infringement was not in respect of an article or preparation which was not covered by Section 24A is not shifted on to the shoulders of the accused. The burden lying upon the State is not shifted on to the accused even in a case where there is no plea raised by the accused that the substance found with him was medicinal or toilet or antiseptic preparation. This was a case in which the opinion of the chemical analyser did not indicate that the sample did not contain or was not an antiseptic preparation or a solution containing alcohol or a syrup which was unfit for use as intoxicating liquor, and it was held that the burden of proving that the substance which was found in possession of the accused was not one of the substances mentioned in Section 24A and, therefore, it fell within the prohibition contained in Sections 12 and 13 of the Act, had not been discharged by the prosecution. In the instant case also, neither the evidence of the Assistant chemical examiner nor any of the reports Exs. 10 to 12 indicates that the sample did not contain any such preparation as is mentioned in Section 24A, Clauses (1) to (4), and therefore, no order of conviction could be passed against the accused for possession of intoxicant or liquor merely on the ground that the substance found from the accused contained some alcohol.
7. So far as Section 21 is concerned, it has to be established first that the accused was in possession of any denatured spirit in respect of which he had knowledge or belief that any alteration or attempt to alter by dilution with water or by any other method whatsoever was made with the intention that such spirit may be used for human consumption. Now, apart from the knowledge or belief aspect concerning the accused, the preparation has to be such that it may be used for human consumption, whether as a beverage or internally as a medicine or in any other way whatsoever. In the instant case, as the Assistant Chemical Analyser says, the liquid was not potable and was not such as could be used for the purpose of instruction. The provisions of Section 21, therefore, will not apply to any such case.
8. In order to bring the case within the prohibition contained in Section 21(b), the prosecution has not only to prove that the accused is in possession of denatured spirit in respect of which any alteration or attempt to alter has been made to the knowledge of the accused, or about which the accused has reason to believe that such alteration or attempt to alter denatured spirit has been made by diluting the same with water or by any other method but also that the intention in making such alteration or in attempting such Alteration is that such spirit may be used for human consumption, be it as a beverage or internally as a medicine or in any other way whatsoever. Unless these ingredients are fulfilled, no breach under Section 21(b) can be brought home. In the case oil hand, apart from showing that the substance found from the accused was diluted denatured spirit, which is one of the requirements under Section 21(b); the prosecution has failed to establish the other requirements of the section. Thus, in any view of the matter, there is no ground for convicting the accused either for the offence under Section 67 or for the offence under Section 66(1)(b) of the Act, and no case is made out for interference with the order of acquittal passed by the trial court. The result will be the following order: Appeal fails and is dismissed.