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PETITIONER: VIJAY SINGH

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 12/03/1965

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SHAH, J.C. BACHAWAT, R.S.

CITATION:  1966 AIR  145            1965 SCR  (3) 358

ACT: Bombay Prohibition Act, 1949 (Bom. 25 of 1949), ss. 24A,  66 and, 85(1)-Medicinal Preparation containing alcohol-Drinking not for intoxication-Burden of Proof.

HEADNOTE: The appellant, drove a jeep at an excessive speed and dashed against a wall.  In the jeep was also a bottle with a  label on it as "Tincture Zingeberis".  On medical examination  the appellant  was found to be intoxicated.  He  was  prosecuted under ss. 66(1)(b) and, 85(1)(1), (2) and (3) of the  Bombay Prohibition  Act, 1949; the Magistrate convicted  him  under the aforesaid sections and sentenced him under ss.  66(1)(b) and  85(1)  of  the  Act.   On  appeal  the  Sessions  Judge acquitted the appellant under s. 66(1)(b) but confirmed  the sentence under s. 85(1)(1).  The respondent filed an  appeal against  the  acquittal and the appellant filed  a  revision against the conviction, which the High Court heard  together and  allowed  the  respondent’s  appeal  and  dismissed  the revision of the appellant.  In appeal by certificate;  HELD    Whatever  meaning  may be given  to  the  expression "drunk",  in  this case there was clear  evidence  that  the appellant   had   taken  the  drink  for  the   purpose   of intoxication  and  not  for indication and  that  under  the influence  of drink he had rashly driven his Jeep.   He  was drunk  and was, therefore, incapable of taking care of  him- self. [363 G] If  a person consumes liquor, i.e. any liquid consisting  of or containing alcohol, he commits an offence under s.  66(1) of  the  Act  and,  therefore, is  liable  to  be  convicted thereunder.   But by reason of s., 24A(2) of the Act, if  it is established that the liquor consumed is contained in  any medicinal preparation which is unfit for use as intoxicating liquor,  the  consumption of such liquor is not  an  offence under  the  Act, for the Act itself does not apply  to  such medicinal preparation. [360 B, C] In terms of s. 66(2) of the Act, the burden of proving  that the, liquor consumed was a medicinal preparation  containing alcohol,  the consumption of which was not in  contravention of  the Act etc., or the rules made thereunder,  shifted  to the accused. [361 E]

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In  this case not only the accused failed to  discharge  the burden so shifted to him by the statute; but the prosecution had also established that the said medicinal preparation was fit for use as an intoxicating liquor. [361 G] State  of  Borabay  (Now  Gujarat)  v.  Naraindas   Mangilal Agarwal, (1962] Supp. 1 S.C.R. 15, held inapplicable.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 154  of 1963. Appeal from the judgment and order dated May 2, 1963 of  the Bombay  High  Court  (Nagpur Bench) at  Nagpur  in  Criminal Appeal No. 234 of 1962. M.   N. Phadke and Naunit Lal, for the appellant. O.   P.  Rana, B. R. G. K. Achar and R. H. Dhebar,  for  the respondent. 359 The Judgment of the Court was delivered by Subba Rao, J. This appeal by certificate issued by the  High Court  of  Judicature at Bombay raises the question  of  the construction  of  some  of  the  provisions  of  the  Bombay Prohibition Act, 1949, hereinafter called the Act. On June 12, 1961, Vijaysingh, the appellant, and one  Namdeo Shinde  drove in a jeep at an excessive speed and dashed  it against   the   wall   of  the  office   of   the   District Superintendent  of Police, Akola.  Both of them appeared  to be intoxicated.  In the jeep there was also a bottle with  a label  on  it  as  "Tincture  Zingeberis".   Vijaysingh  was prosecuted  before  the Judicial  Magistrate,  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  the  conviction and sentence  under  s.  85(1)(1) thereof.   Against  the  judgment  of  the  Sessions   Judge acquitting the appellant under s.  66(1)(b)  of the Act  the State of Maharashtra preferred an appeal to  the High Court; and against the order of conviction under s. 85(1) (1) of the  Act  the  appellant preferred a revision  to  the  High Court.  The High Court heard both the matters  together  and allowed  the  appeal filed by the State  and  dismissed  the revision  petition preferred by the  accused-appellant.   In the  result it set aside the order of acquittal made by  the Sessions  Judge under s. 66(1)(b) of the Act  and  sentenced the accused to rigorous imprisonment for 3 months and a fine of Rs. 500 and confirmed the conviction and sentence of  the accused  under  s. 85(1)(1) of the Act.  Hence  the  present appeal. Learned  counsel for the appellant raised before us  several contentions  for dislodging the judgment of the High  Court. We shall now proceed to deal with them in the order in which they were addressed to us. The first contention may be put thus.  Under s. 66(2) of the Act all that an accused need prove is that he has consumed a medical  preparation; if he established that, the burden  of proving that the medicinal preparation is fit for use as  an intoxicating  liquor  shifts  to the  prosecution.   In  the present  case the accused has established that he had  taken "tincture zingeberis", which is a medicinal preparation, but the  prosecution failed to prove that it was fit for use  as an intoxicating liquor.

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To appreciate this contention it is necessary to notice  the relevant provisions.  Under s. 66(1) of the Act, "Whoever in contravention of the provisions of this Act, or of any rule, regulation  or  order  made.........  consumes.........  any intoxicant  shall,  on conviction, be punished for  a  first offence,  with imprisonment for a term which may  extend  to six months and with fine which may extend 360 to  one thousand rupees." "Intoxicant" is defined  to  mean, among  other things, any liquor; and "liquor" is defined  to include,   among  others,  all  liquids  consisting  of   or 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  apply  to  any  medicinal preparation  containing  alcohol which is unfit for  use  as intoxicating  liquor.  The effect of these sections,  in  so far as they are material for the present case, is that if  a person  consumes liquor, i.e., any liquid consisting  of  or containing alcohol, he commits an offence under s. 66(1)  of the   Act  and,  therefore,  is  liable  to   be   convicted thereunder.  But by reason of s. 24A(2) of the Act if it  is established  that  the liquor consumed is contained  in  any medicinal preparation which is unfit for use as intoxicating liquor,  the  consumption of such liquor is not  an  offence under  the  Act, for the Act itself does not apply  to  such medicinal preparations.  We shall revert to the question  of burden of proof a little later. The  facts  found  in this case may  now  be  noticed.   The accused  says  that he consumed  "tincture  zingeberis"  and produced  before the police a sample bottle out of which  he says  he had consumed tincture zingeberis.  A sample of  the liquid  was analysed by the Chemical Analyser.   His  report shows  that the liquor was a weak Ginger Tincture B.P.  1959 (Tincture  Zingeberis Mitis); absolute alcohol  content  was 89.1  per cent.  V/V.  The report further states as  regards alcohol  contents  of the liquid that the  sample  contained 90.0  per  cent.  of V/V of ethyl alcohol  though  the  B.P. limits were 86 to 90 per cent.  V/V.  "The analysis has also given the quantity of total solids as 0.62 per cent.  weight per ml. at 20 degrees to be 0.825 g." In the opinion of  the Chemical  Analyser, the sample complied  with  pharmacopical specifications.  On the basis of the report, the High  Court found  that  the accused consumed  a  medicinal  preparation which  was listed in the British Pharmacopia, 1958  edition, and which had alcohol contents to the extent of 90 per cent. V/V of ethyle alcohol.  The Chemical Analyser to the Govern- ment of Maharashtra examined the sample blood taken from The body of the accused by applying "modified Cavette’s  method" and  gave his report to the effect that the sample blood  of the  accused contained 0.207 mg. p.c. w/v of ethyl  alcohol. The High Court also found on the expert evidence that  blood alcohol  concentration on taking a normal dose  of  tincture zingeberis mitis would be about 0.007   per  cent.  W/V  and the accused should have taken roughly about  125   c.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 of Dr. Deshmukh, the  High  Court also found that Tincture Zingeberis Mitis was a  preparation which   might   be  consumed  for  intoxication   and   that intoxication  would not be accompanied by any other  harmful effects.  On the either hand the accused has not adduced any evidence  that the said medicine is a medicinal  preparation unfit for use as intoxicating liquor. 361 The  question  whether the prosecution  has  discharged  its

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burden  of proof in this case will have to be considered  on the  basis  of  the  said facts found  by  the  High  Court. Section  66(2)  of the Act, which bears on the  question  of burden of 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 the  consumption  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......  containing   alcohol,   the consumption  of which is not in contravention 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  such proof presume the contrary." It has been proved  in this  case that the accused person consumed liquor and  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 of proving that the liquor consumed was   a  medicinal  preparation  containing   alcohol,   the consumption  of  which was not in contravention of  the  Act etc.  or the rules made thereunder, shifted to the  accused. He could have discharged this burden by proving, inter alia, that the medicinal preparation containing, alcohol which  he had taken was unfit for use as an intoxicating liquor; if so much  had been established, as under s. 24A of the Act,  the Act  itself does not apply to such  medicinal  preparations, the  accused would not have committed any offence under  the Act.   The High Court found that the accused had not  placed any  material to prove that tincture zincreberis  mitis  was unfit for use as an intoxicating liquor; indeed, it accepted the  evidence adduced on behalf of the prosecution and  held that it was fit for use as an intoxicating liquor.  In  this case not only the accused failed to discharge the burden  so shifted to him by the statute, but the prosecution had  also established that the said medicinal preparation was fit  for use  as an intoxicating liquor.  Reliance is placed  by  the learned  counsel for the appellant on the decision  of  this Court  in  The  State of Bombay (now  Gujarat)  v.  Narandas Mangilal   Agarwal(1)   wherein   it  was   held,   in   the circumstances  of  the case, that it was for  the  State  to prove  that the medicinal preparation was not unfit for  use as intoxicating liquor.  But that decision was given on  the relevant provisions of the Act before it was amended by  the Bombay Act XII of 1959.  Section 66(2) was added by the said Act which in express terms states that in the  circumstances mentioned  in the sub-section the burden of proof shifts  to the accused.  The said (1)  [1962] Supp.  1 S.C.R. 15. 362 decision  cannot,  therefore,  be  invoked  in  the  changed circumstances.  The present 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  the question  of  burden of proof and gave its  finding  on  the evidence adduced before it. It  was then argued that even if the burden of proof in  the circumstances of 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 State  Government to  determine whether any medicinal  preparation  containing alcohol  is an article tit for use as  intoxicating  liquor, the  State Government shall constitute a Board of  Experts-, and  under sub-s. (6) thereof, it shall be the duty  of  the

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Board to advise the State Government on the question whether any article mentioned in sub-s. (1) of s. 6A is fit for  use as  intoxicating liquor and upon determination 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 intoxicating  liquor.  Under sub-s. (7) thereof, "Until  the State  Government  has determined as aforesaid  any  article mentioned   in  sub-section  (1)  to  be  fit  for  use   as intoxicating  liquor, every such article shall be deemed  to be  unfit for such use." On the basis of this  section,  the argument  proceeded  that  the  State  Government  did   not determine  under s. 6A of the Act that ’Tincture  Zingeberis Mitis’   was  fit  for  use  as  intoxicating  liquor   and, therefore, the said article shall be deemed to be unfit  for such  use, with the result the burden which shifted  to  the accused   under  s.  66(2)  of  the  Act   was   statutorily discharged.   There is considerable force in this  argument; but  unfortunately this point was raised only for the  first time before us.  There is nothing on the record to show that the  State Government has not decided that the said  article is fit for use as intoxicating liquor.  If this question had been  raised at the appropriate time, the relevant  material would  have been placed before the Court.  Even  though  the argument  was  raised  no attempt was made  even  after  the filing of the appeal or even at the time of the arguments to place the relevant material before this Court to sustain the said  legal  argument.   We cannot,  therefore,  permit  the appellant  to raise the point for the first time before  us, particularly when there is utter lack of factual basis. The  next  argument ’of the learned counsel  that  the  High Court  came to the conclusion it did on irrelevant  evidence has  no  force.   It is said that the  prosecution  did  not adduce  any  evidence  to prove  that  "Tincture  Zingeberis Mitis" was not unfit for use as an intoxicating liquor.   To state  it  differently, the argument is that unless  it  was established  by  the prosecution that the consumption  of  a medicinal  preparation had no harmful effects on the  health of the person consuming it. it could not be said that it was not  unfit for use as intoxicating liquor.  In  the  present case  the  High Court found on the evidence  that  "Tincture Zingeberis Mitis" was a preparation                             363 which   might   be  consumed  for  intoxication   and   that intoxication  would  not  be  accompanied  by  any   harmful effects.  This contention, therefore, must be rejected. The  last argument turns upon the provisions of s.  85(1)(1) and 2)    of the Act.  The relevant part of s. 85 reads: (1)  Whoever  in any street or thoroughfare or public  place or in any place to which the public have or are permitted to have access- (1)  is drunk and incapable of taking care of himself, (2)  In prosecution for an offence under sub-section (1), it shall  be  presumed until the contrary is  proved  that  the person  accused  of  the said offence has  drunk  liquor  or consumed  any  other  intoxicant for the  purpose  of  being intoxicated and not for a medicinal purpose. It was contended that s. 85 of the Act laid down two  condi- tions,  namely, that the accused should have been drunk  and incapable of taking care of himself and also that he  should have  taken the drink for the purpose of  being  intoxicated and  not  for  a medicinal purpose.   This  conclusion,  the argument   proceeded,  would  low  from  sub-s.   (2),   for otherwise, so it was said, the presumptive rule of  evidence enacted in sub-s. (2) would be unnecessary and even relevant if  the purpose mentioned therein was not an  ingredient  of

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the offence.  This raises an interesting question of law, but, in view of the finding of fact arrived at by the High Court it does not call  for  a  decision in  this  appeal.   Assuming  without deciding  that the argument has some substance, the  finding of  the  High  Court satisfies the  lest  suggested  by  the argument.   Whatever  meaning  is given  to  the  Expression "drunk",  in  this  case there is clear  evidence  that  the accused had taken the drink for the purpose of  intoxication and not for medication and that under the influence of drink he  had  rashly  driven  his jeep into  the  office  of  the District Superintendent of Police 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 High  Court  rightly  held that  the  accused  committed  an offence under s. 85(1) of the Act. In the result, the appeal fails and is dismissed. Appeal dismissed. 364