1. In this case the petitioners before us have been convicted in respect of the manufacture and sale of a liquid substance spoken of as Mrita Sanjivani Sudha and have been sentenced under Section 46(a) of the Bengal Excise Act V of 1909 each to pay a fine of Rs. 200 or in default to undergo six weeks' rigorous imprisonment.
2. The manufacture and sale is admitted and the contention of the petitioners, who are Kavirajes by profession, is that Mrita Sanjivani Sudha is a beneficent drug, prepared in accordance with a formula to be found in an Ayurvedic Pharmacopoeia, and used for medicinal purposes only. The ingredients, it is said, are gur, ginger, betel nut and various barks, and after a certain period of fermentation from this base with certain additions in the shape of spices, crushed fruits, and balela skins the finished product is obtained by a process of distillation. The preparation, there is evidence, is prescribed for women suffering from fever or bowel complaints after childbirth and other virtues claimed for it are that it stimulates the appetite, aids digestion, and when taken at bed time soothes the wakeful.
3. It may be conceded that the preparation possesses all these virtues, but the question still remains whether it is an excisable article within the meaning of the Bengal Excise Act. In that Act excisable article has been defined as meaning 'any liquor or intoxicating drug as defined by or under this Act' and in Section 2, Clause (14), as amended by Bengal Act VII of 1914, 'liquor has again been defined as meaning liquid consisting of or containing alcohol' and as including various specified substances.
4. It is not disputed that Mrita Sanjivani Sudha contains alcohol and analysis shows that the four sample phials or bottles submitted to the Chemical Examiner consisted of the usual volatile bye products of distillation and fermentation, volatile essential oils, water and alcohol, the proportion of alcohol ranging from 68'3 per cent, to 87 per cent. In other words, the preparation as sold or as prepared and put up for sale is an alcoholic liquid varying in strength from 317 to 13 underproof. There can, therefore, be no question that the manufacture and sale of this preparation otherwise than in conformity with the provisions of the Excise Act is an offence, unless the petitioners can show that this article has been exempted by notification under the provisions of Section 90 of the Act or that by reason of repugnancy in the subject the definition is not applicable. It is conceded that the article is not within the terms of any notification issued under Section 90. It is, however, contended that to Mrita Sanjivani Sudha, as a medicinal preparation manufactured, prescribed and sold by Kavirajes, the definition contained in the Act does not apply and in support of this contention reliance is placed on the cases reported as Gonesh Chunder Sikdar v. Queen-Empress 24 C. 157 : 12 Ind. Dec. (N.S.) 770; Emperor v. Moti Lal Chander 15 Ind. Cas. 961 : 39 C. 1053 : 16 C.W.N. 785 : 13 Cr. L.J. 545 and Satish Chandra Boy v. Emperor 19 Ind. Cas. 956 : 17 C. W.N. 939 : 14 Cr. L.J. 300. It is unnecessary to discuss these cases which were all decided prior to the amendment of the Act made in 1914. Whatever may have been the state of the law at the time when the foregoing cases were decided, the intention of the law has been made clear by the amended Act of 1914, and to say now that a preparation containing alcohol is not within the provisions of the Bengal Excise Act simply because it is a medicinal preparation or may be used for medicinal purposes, would be to stultify this Court and ignore the plain purpose of the Legislature.
5. On the question of sentence, having regard to the fact that the manufacture of this Mrita Sanjivani Sudha has been continued on the strength of the decision in favour of the elder petitioner in Gonesh Chunder Sikdar v Queen-Empress 24 C. 157 : 12 Ind. Dec. (N.S.) 770 and the further fact that it does not appear that prior to the present proceedings the petitioners were warned by the excise authorities, we think that a lesser sentence will meet the ends of justice. We, therefore, reduce the sentence in each case to a fine of Rs. 100, in default three weeks' rigorous imprisonment.