iminal 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
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 section 661b 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 pm 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 0146 MV of ethyl alcohol
The respondent in his examination under section 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 vs 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 section
2 of section 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
The main question raised on behalf of the State is that by the introduction of section 662 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 662 is as follows  section 662 Subject to the provisions of subsection 233 3 wherein in any trial of an offence under clause b of sub section1 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 005 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 personand 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 005 then under section 662 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 0146 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 SD swamy vs 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 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 section 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 section 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 section 342 therefore is to give the accused an opportunity to 1   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 section 652 of the Act
The appeal is therefore dismissed
Appeal dismissed


Summary:
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 section 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 section
2 of section 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 section 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 section 66 2 of the Bombay Prohibi tion Act
O section D Swamy vs State 1 distinguished