| Headnote |
Prohibition-Medicinal preparation with excess of alcohol- Intoxicating effect - Offence under the Prohibition Act-- Burden of proof- Board of Experts under the Act-Consultation with, if and when obligatory-Payment of excise duty to and licence to export granted by Bhopal State-Validity of conviction under Bombay prohibition laws-Bombay Prohibition Act, 1949 (Bom. 25 of 1949), as amended by Bombay Act 26 of 1952, ss. 6A, 11, 12, 13, and 24A.The respondents were charged with offences punishable under ss. 65(a) and 66(1)(b) of the Bombay Prohibition Act, 1949, for violating the provisions of ss. 12 and 13 of the Act. The prosecution case was that the respondents brought in their motor truck into the State of Bombay from the adjoining State of Bhopal, bottles labelled Mrugmadasav, and that the bottles did not contain genuine Mrugmadasav, an Ayurvedic preparation, but only intoxicating liquor, import transportation and possession whereof without permit or licence under the Act were prohibited. The Magistrate found that the bottles contained 75.50% alcohol-much in excess of the normal percentage of alcohol used in preparing Mrugmadasav, according to the standard Ayurvedic formula that it did not contain any appreciable quantity of musk essential in such a preparation, and that having regard to the large percentage of alcohol it was capable of being used for purposes of intoxication. Accordingly he held that the preparation was not saved by s. 24A from the prohibitions contained in ss. 12 and 13 of the Act, and convicted the respondents. The High Court, however, acquitted the respondents on the grounds (a) that the State had failed to prove that the contents of the bottles were liquor meant for consumption as intoxicant, and (b) that the State could not validly come to the conclusion that the bottles contained intoxicating liquor without obtaining the opinion of the Board of Experts constituted under 5. 6A of the Act. In the appeal filed by the State of Bombay with special leave, the respondents pleaded that, in any case, as the Government of Bhopal had levied a duty on the preparation and had granted a permit, no offence was commit- ted by importing and possessing the preparations in the State of Bombay. Held: (1) that it was for the State to prove that the substance, if a medicinal preparation, was not unfit for use as intoxicating liquor and to establish that the prohibitions contained in ss. 12 and 13 of the Bombay Prohibitions Act, 1949, had been infringed, and that the burden of proof that infringement was not in respect of a preparation which was covered by s. 24A was not shifted on the shoulders of the accused; (2) that if alcohol in excess of the quantity prescribed by s. 59A was found in the article, the provisions of s. 24A would not apply irrespective of the question whether it was fit or unfit to be used as intoxicating liquor; (3) that a medicinal preparation which may, because of the high percentage of alcohol contained therein, even if taken in its ordinary or normal dose intoxicate a normal person, would be regarded as intoxicating liquor within the meaning of s. 24A, but such a preparation containing a small percentage of alcohol even though it might be capable of intoxicating if taken in large quantities, could not be regarded as fit to be used as intoxicating liquor within the meaning of that section. (4) that a State may in a prosecution for infringement of the prohibitions contained in ss. 12 and 13 of the Act rely upon the presumption after resorting to the machinery under 5. 6A(6), but there was no obligation upon the State in any given case to consult the Board of Experts under s. 6A nor was consultation with the Board a condition precedent to the institution of proceedings for breach of the provisions of the Act;(5) that the payment of excise duty to the Bhopal State under the law in force in the State for exporting the preparation from the State did not protect tho respondents from liability to prosecution for the infringement of the prohibition laws in force in the State of Bombay ; and (6) that in the instant case die preparation though styled Mrugmadasav was not a genuine medicinal preparation and having regard to the large percentage of alcohol contained therein, it was capable of intoxicating taken even in a normal dose, and was not saved by s. 24A from the prohibitions contained in ss. 12 and 13 of the Act. |
