http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: LAXMAN JAIRAM

DATE OF JUDGMENT: 16/02/1962

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1962 AIR 1204            1962 SCR  Supl. (3) 230  CITATOR INFO :  RF         1969 SC 381  (5)  R          1973 SC 246  (8)

ACT: Prohibition-Consumption of liquor-Prosecution for  Accused’s Statement-Consumption  of medicinal preparations  with  high alcoholic   content-Burden  of  proof-Discharge  of   Bambay Prohibition Act,1949-(Bom. 25 of 1949), as amended by Bombay Act  12  of 1959, ss. 66 (1) (b), 66 (2)  Code  of  Criminal Procedure, 1898 (Act 5 of 1898), s. 342.

HEADNOTE: Respondent was arrested by a police constable on the  ground that  he -was smelling of liquor.  The doctor  who  examined him  gave evidence at the trial that though  the  respondent had  consumed  alcoholic  substance he  was  not  under  the influence of liquor.  In cross-examination the doctor stated that consumption of Neem would produce a blood concentration of  0. 146%.  The respondent in examination under s. 342  of the  Code  of  Criminal Procedure stated  that  he  had  not consumed  prohibited  alcohol but that he had  consumed  six ounces  of Neem.  He was acquitted by the  Magistrate.   The appellant  appealed to the High Court.  The main  ground  of appeal was that the mere statement of the respondent that he had consumed 6 ozs. of Neem was not sufficient to rebut  the presumption  under  sub-s.  (2)  of  s.  66  of  the  Bombay prohibition Act, 1949, as amended by the Bombay  Prohibition (Extension  and  amendment)  Act,  1959.   The  High   Court dismissed  the  appeal in limine.  Thereupon  the  appellant appealed to the Supreme Court by way of Special Leave on the same ground as was raised before the High Court. Held,  that the statement of the accused recorded  under  s. 342  of  the Code of Criminal Procedure can  be  taken  into consideration in judging the innocence or guilt of a person. If the explanation given by the accused in his statement  is acceptable to the court it must be held that the accused has discharged the burden under s. 66 (2) of the Bombay Prohibi- tion Act. 1949. O.   S.  D.  Swamy  v.  State,  (1960) 1  S.  C.  R.  46  1, distinguished.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 58  of 1961.  231 Appeal  by special leave from the judgment and  order  dated October  17,  1960, of the Bombay s High Court  in  Criminal Appeal No. 1235 of 1960. R. H. Dhebar, for the appellant. The respondent did not appear. 1962.  February 16.  The Judgment of the Court was delivered by Kapur  J.-This appeal by Special Leave against the  decision of  the High Court of Bombay dismissing the  State’s  appeal against the acquittal of the   respondent  arises  out   of- proceedings under s.     66(1)(b) of the Bombay  Prohibition Act, 1949 (Act25    of 1949), as amended, hereinafter called the Act’. The  respondent  was  arrested by  Police  Constable  Laxman Sabaji on August 8, 1959, at 8-15 p.m. on the ground that he was  smelling  of liquor and bad therefore  contravened  the provisions  of  the Act.  The respondent was  taken  to  the hospital  where  he  was  examined  by  Dr.  Dadlani  Prabhu Rochiram  P.  W., who has deposed that  the  respondent  was Smelling   of  liquor  but  his  speech,  behaviour,   gait, coordination and memory were normal.  From this he concluded that  the respondent had consumed some  alcoholic  substance but  was  not  under the influence  of  liquor.   In  cross- examination he stated that Tincture Neem would produce blood concentration   of  0.146%  M/V  of  ethyl   alcohol.    The respondent in his examination under s. 342 stated: Question: "What  do  you wish to say with reference  to  the evidence given and recorded against you? Answer :I have not consumed prohibited alcohol.  I had taken 6 ounces of Neem as I am used to it". 232 On  this  evidence  the Presidency  Magistrate  Mr.    Lokur acquitted the respondent.  He observed:-               "Neem  is a medicinal  preparation  containing               about 40% of alcohol and is readily  available               in the market.  I do not see why I should  not               accept  the explanation given by  the  accused               that he had taken Neem in order to satiate his               craving  for  alcohol.  It has  been  held  by               Bavdekar and Chainani, JJ., in Criminal Appeal               No.  1611 of 1954 dated 25-2-1954 that  taking               an  excess dose of medicinal preparation  does               not   amount  to  consumption  of   prohibited               liquor.   In Criminal Appeal No. 1562 of  1959               State v. Domnic Robert D’Sliva where a similar               defence   was  taken  up  it  was  held   that               consumption of 6 ounces of essence of Neem did               not  constitute an offence.   Following  these               judgments  I  hold that the  accused  has  not               committed any offence.  I therefore acquit the               accused". Against this order an appeal was taken to the High Court and one  of  the grounds taken in the memorandum of  Appeal  was that  the  mere  statement of the  respondent  that  he  had consumed 8 ounces of Tincture of Neem was not sufficient  to rebut the presumption arising out of sub-s. (2) of s. 66  of the Act.  But the High Court dismissed the appeal in limine. It is against that order that the State has come by  Special Leave to this Court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

The  main question raised on behalf of the State is that  by the  introduction of s. 66(2) in the Act as a result of  the Bombay Prohibition (Extension and amendment) Act, 1959, (Act 12 of 1959), the onus is on the accused person and that that onus  had not been discharged in the present case.   Section 66(2) is as follows :-               S.    66(2)  ",Subject  to the  provisions  of               subsection                233               (3)   wherein in any trial of an offence under               clause (b) of sub-section(1) for the  consump-               tion  of an intoxicant it is alleged that  the               accused  person  consumed liquor,  and  it  is               proved  that the concentration of  alcohol  in               the  blood of the accused person is  not  less               than 0.05 per cent. weight in volume, then the               burden of proving that the liquor consumed 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,  regulation or orders made  thereunder,               shall be upon the accused person,and the Court               shall in the absence of such proof presume the               contrary". The  argument  was put in this way that if  the  prosecution proves that the concentration of alcohol in the blood of  an accused person is more than 0.05% then under s. 66(2) of the Act  the burden was on him to show that the liquor which  he had  consumed  was  a medicinal or  toilet  preparation  the consumption  of which is not in contravention of the Act  or any Rules made thereunder.  It was further submitted that in order to discharge the onus mere statement of the accused is not  sufficient.  Our attention was drawn to the scheme  and some of the provisions of the Act. The  prosecution, in the present case, has proved  that  the respondent’s  breath  was  smelling of liquor  and  that  on examination of his blood it was found to contain 0.146%  bat the respondent gave an explanation showing that he had taken 6 ounces of Tincture of Neem and Dr. Dadlani Prabhu Rochiram has  deposed that the consumption of 6 to 8 ounces  of  that substance  will  produce  that amount  of  concentration  of blood.  This was 234 accepted  by  the learned Presidency Magistrate and  by  the -High Court.  Therefore on this finding it must be held that the explanation given by the respondent of the cause of  his smelling  of  liquor  and of  the  blood  concentration  was accepted by the High Court as being sufficient to  discharge the  onus  placed  on him.  But Mr.  Dhebar  for  the  State submits  that  mere statement of an accused  person  is  not sufficient  for the discharge of such onus and relies  on  a judgment  of this Court in C. S.D. swamy v. The  State  (1), where Sinha, J. (as he then was), observed:-               "In this case, no acceptable evidence,  beyond               the  bare statements of the accused, has  been               adduced to show that the contrary of what  has               been  proved  by  the  prosecution,  has  been               established,  because the requirement  of  the               section  is that the accused person  shall  be               presumed  to be guilty of criminal  misconduct               in  the  discharge -of his official  duties  "               unless the contrary is proved".  The words  of               the  statute  are peremptory, and  the  burden

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

             must lie all the time on the accused to  prove               the contrary". All  that the learned Judge there meant to Ray was that  the evidence   of   the  statement  of  the   accused   in   the circumstances  of that case was not sufficient to  discharge the  onus  but that does not mean that in no  case  can  the statement of an accused person be taken to be sufficient for the purpose of discharging the onus if a statute places  the onus  on him.  Under s. 342 of the Criminal  Procedure  Code the Court has the power to examine the accused so as to  en- able  him to explain any circumstance appearing in  evidence against  him.  Under sub-s. 3) of that section  the  answers given  by an accused person may be taken into  consideration in  such enquiry or trial.  The object of examination  under s. 342 therefore is to give the, accused an opportunity to (1)  [1960] 1 S.C.R. 461, 471. 235 explain the case made against him and that statement can  be taken  into consideration in judging the innocence or  guilt of  the  person so accused.  Therefore if the  courts  below have  accepted  this explanation it must be  held  that  the respondent  has discharged the onus which was placed on  him by s.     65(2) of the Act. The appeal is therefore dismissed. Appeal dismissed.