iminal Appeal No 65 of 1959
Appeal by special leave from the judgment and order dated January 9 1959 of the Bombay High Court in Criminal Revision Application No 1485 of 1958
C K Daphtary Solicitor General of India B R L Iyengar and TM Sen for the appellant
Nur ud din Ahmed and Naunit Lal for respondent No 1 1961
October 6
The Judgment of the Court was delivered by SHAH J
This is an appeal by the State of Bombay against the order passed by the High Court of Judicature Bombay acquitting the respondents of offences punishable under sections 65a1 and 66b1 of the Bombay Prohibition Act XXV of 1949 hereinafter referred to as the Act
The respondents are residents of Sehore a town in what was at the material time the territory of the State of Bhopal
Respondent 1 is the brother of the owner of a concern which carries on business of manufacturing drugs in the name and style of Rajkumar Laboratories Sehore
Prabhat Trading Company a firm carrying on business at Ahmedabad in the State of Bombay placed an order on January 26 1955 with the Rajkumar Laboratories for 4800 bottles of Mrugmadasav  an Ayurvedic 18 preparation
The Rajkumar Laboratories prepared the drug and as it contained rectified spirit paid Rs 3600 as excise duty to the Bhopal State
A permit authorising export of the preparation out of the Limits of Bhopal State was also obtained on July 28 1955
A motor truck belonging to the second respondent was engaged for transporting the preparation from Sehore to Ahmedabad
On July 29 1955 Sub Inspector Shintre stopped the motor truck at Dohad a
town in the State of Bombay The motor truck on examination was found carrying 7073 bottles of various sizes labelled Mrugmadasav Rajkumar Laboratories Sehore
 on the label was also printed the legend that the preparation contained 855 alcohol
Respondents 1 and 2 who were accompanying the motor truck in a jeep in which also bottles of Mrugmadasav were found were arrested
Samples of the contents of the bottles were drawn and collected in the presence of Panchas and were sent to the Assistant Chemist Drugs and Excise Laboratory Baroda for analysis and report
Samples were also sent to the Principal of R A Poddar Ayurvedic college at Bombay
The respondents and eight others were then prosecuted in the Court of the Judicial Magistrate 1st class Dohad State of Bombay for offences punishable under SS 65a and 661b of the Bombay Prohibition Act XXV of 1949
The Magistrate convicted the first respondent of offences under 88
65a and 661b the second respondent of offences under 8
65a read with 8 81 of the Bombay Prohibition Act and four other accused with whom we are not concerned in this appeal of certain offences
The Court of Session at Panch Mahals at Godhra in appeal confirmed the order and sentence but in exercise of its revisional Jurisdiction the High Court of Bombay set aside the conviction and sentence passed upon the respondents and acquitted them
The High Court held a that the State failed to prove that the contents of the bottles were liquor meant for consumption 19 as intoxicant and b that the State Government could not validly come to the conclusion that the bottles contained intoxicating liquor without obtaining the opinion of the Board of Experts constituted under section 6A of the Bombay Prohibition Act
Against the order of acquittal the State of Bombay has preferred this appeal with special leave
It was the Case for the State that the bottles seized by the police though labelled Mrugmadasav which is an Ayurvedic preparation indicated foruse in delirious fever and cholera did not contain genuine Mrugmadasav but contained intoxicating liquor import transportation and possession whereof without a permit or licence under the Bombay Prohibition Act were prohibited
H P Parikh Assistant Chemist Drugs  Excise Laboratory Baroda stated that on analysis the samples were found to contain 7555 to 7997 VV ethyl alcohol and that in his opinion contents of the bottles were not an Asav preparation
In his opinion the liquid analysed was fit for use as intoxicating liquor and that it was not a standard preparation though he could not say whether it was a medicinal preparation he having no means of examining the other active ingredients
M Y Lele Principal of R A Podar Ayurvedic College stated that the principal constituent of Mrugmadasav is musk Mrugmad which has a characteristic and penetrating odour and that he could not get any odour of musk out of the sample sent to him and that in his opinion the contents of the bottles were not Mrugmadasav at all
He also stated that in about 6 12 seers of Mrugmadasav prepared according to the Ayurvedic formula there would be 20 tolas of musk and that the current market rate of musk was Rs 60 to Rs 80 per tola
One Ansare Excise Inspector of Sehore was also examined on behalf of the prosecution
He stated that the alcoholic proof strength of the liquid in the bottles was 150 and the percentage of alcohol therein was 855 VV and that the rest was water
The 20 witness deposed that the Mrugmadasav which was meant for export to Ahmedabad was manufactured under his supervision and that it was a proprietary ayurvedic preparation of added alcohol and that it was not a genuine preparation of self generated alcohol
To a question asked in cross examination the witness stated that in his presence 50 tolas of rectified spirit were added to 4 tolas of musk and 2 tolas each of black pepper jaifal pipal and cinnamon
This part of the statement of the witness was disbelieved by the trial Magistrate and by the Sessions Judge
The Magistrate held on review of the evidence that the respondents had imported into the State of Bombay a preparation which contained a large percentage of alcohol which was not self generated that the preparation did not contain musk and that it did not conform to the standard formula of Mrugmadasav and that the preparation seized by the police was meant for internal consumption and as consumption thereof was likely to cause intoxication it was not exempt from the operation of sections 12 and 13 of the Act
The Sessions Judge agreed with the Magistrate
But the High Court disagreed with that view on the ground that the testimony of Lele who relied solely upon his sense of smell could not justify the conclusion that the liquorl seized was alcohol meant for consumption as intoxicating liquor and that Parikh who found on examination that the preparation seized contained 75 alcohol Was unable to state what the other ingredients were
Section 224 of the Bombay Prohibition Act defines liquor as including a spirit of wine denatured spirit beer toddy and all liquids consisting of or containing alcohol and b any other intoxicating substance which the State Government may by notification in the Official Gazette declare to be liquor for the purpose of the Bombay Prohibition Act
Section 222 defines intoxicant as meaning any liquor intoxicating drug opium or any other substance which the State Government may by notification in the official Gazette declares 21 to be an intoxicant
Sections 12 to 24 in Chapter Ill of the Act contain diverse prohibitions
By section 12 it is provided that No person shall a manufacture liquor  b construct or work any distillery or brewery c import export transport or possess liquor or sell or buy liquor
Section 13 provides that no person shall a bottle any liquor for sale b consume or use liquor or c use keep or have in his possession any materials still utensils implements or apparatus whatsoever for the manufacture of any liquor
These prohibitions have to be read subject to section 11 which in so far as it is material provides that notwithstanding the prohibitions contained in the Chapter it shall be lawful to import export transport manufacture sell buy possess use or consume any intoxicant in the manner and to the extent provided by the provisions of the Act or any rules regulations or orders made in accordance with the terms and conditions of a licence permit pass or authorization granted thereunder
The prohibitions contained in ss12 and 13 are also subject to restrictions contained in section 24A which was added by Bombay Act 26 of 1952
In the Act as originally enacted the prohibitions contained in the various sections were subject to section 11 absolute
The validity of the Bombay Prohibition Act was challenged in the Bombay High Court and that High Court declared certain provisions of the Act ultra vires Fram Nusservanji Balsara vs State of Bombayl
Against the decisions of the High Court an appeal was preferred to this Court2
Fazal Ali J who delivered the judgment of the Court summarised his conclusions in so far as they are material to this appeal as follows In the result I declare the following provisions of the Act only to be invalid 1 1
L R 2 The State of Bombay vs
FN Balsara  22 1 Clause c of section 12 so far as it affects possession of liquid medicinal and toilet preparations containing alcohol
2 Clause d of section 12 so far as it affects the selling or buying or such medicinal and toilet preparations containing alcohol
3 Clause b of section 13 so far as it affects the consumption or use of such medicinal and toilet preparations containing alcohol The Bombay Legislature there after enacted Act 26 of 1952 which by section 7 added s24A which as subsequently amended reads as follows Nothing in this Chapter shall be deemed to apply to 1 any toilet preparation containing alcohol which is unfit for use as intoxicating liquor 2 any medicinal preparation containing alcohol which is unfit for use as intoxicating liquor 3 any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor 4 any flavouring extract essence or syrup containing alcohol which is unfit for use as intoxicating liquor Provided that such article corresponds with the description and limitations mentioned in section 59A Provided further that the purchase possession or use of any liquor or alcohol for the manufacture of any such article shall not be made or h d except under a licence granted under section 31A By this addition the prohibitions imposed by sections 12 and 13 were not to apply to toilet medicinal 23 antiseptic and flavouring extract essence or syrup preparations containing alcohol specified therein
The respondents contend that Mrugmadasau imported by them and found in their possession by the Sub Inspector of Police was a genuine Ayurvedic medicinal preparation that in ay event the State must prove that it was not a medicinal preparation and that the burden lies on the State to prove their case that the importation and possession by the respondents of the contents of the bottles was in violation of the prohibitions imposed by sections 12 and 13 of the Act inviting as a consequence the penal provisions of sections 65 and 66 of the Act
In a criminal prosecution normally the burden lies upon the prosecution to prove all the ingredients which constitute the offence charged against the accused and we are unable to agree with the submission of the Solicitor General that a different rule is indicate in the trial of offences under the Act
It was for the State to prove that the substance seized if a medicinal preparation was not unfit for use as intoxicating liquor
The State has even under the Prohibition Act to establish that the respondents had infringed the prohibitions contained in sections 12 and 13
Undoubtedly by virtue of section 24 a the prohibitions do not apply to certain categories of toilet medicinal antiseptic and flavouring preparations even if they contain alcohol but on that account the burden lying upon the State to establish in any given case in which it is alleged that the accused has infringed the prohibitions contained is sections 12 and 13 that the infringement was not in respect of an article or preparation which was not in respect of an article or preparation which was covered by section 24 A is not shifted on to the shoulders of the accused
Section 24 A is in substance not an exception it takes out certain preparations from the prohibitions contained in sections 12 13 But the operation of section 24A does not extend to all medicinal toilet antiseptic or flavouring preparations containing alcohol even if the preparation 24 is a toilet medicinal antiseptic or flavouring preparationif it is fit for use as intoxicating liquor the prohibitions contained in sections 12 and 13 will apply
In order that the provisions contained in section 24A is attracted the contents of the article
even as a medicinal preparation has by the first proviso to correspond with the description and limitations contained in section 59A ie no more alcohol shall be used in the manufacture of such article than the quantity necessary for extraction or solution of the elements contained therein and for the preservation of the article and in case of manufacture of an article in which the alcohol is generated by a process of fermentation the amount of such alcohol does not exceed 12 per cent
If alcohol in excess of the quantity prescribed by s59A is found in the article the provisions of section 24 A will not apply irrespective of the question whether it is fit or unfit to used as intoxicating liquor
Again the preparation even if it is medicinal toilet antiseptic or flavouring must to unfit for use as intoxicating liquor i e it must be such that it must not be capable of being used for intoxication without danger to health
If the preparation may be consumed for intoxication it would still not attract the application of section 24 A provided the intoxication would not be accompanied by other harmful effects
A medicinal preparation which may because of the high percentage of alcohol contained therein even if taken in its ordinary or normal dose intoxicate liquor A medicinal preparation containing a small percentage of alcohol ma still be capable of intoxicating if taken in large quantities but if consumption of the preparation in large quantities is likely to involve danger to the health of the consumer it cannot be regarded as fit to be used as intoxicating liquor
In the case before us the preparation which is styled Mrugmadasau was sought to be passed off as a medicinal preparation
If genuine it could have 25 been used in the treatment of certain fevers and cholera
The preparation however contained 755  alcohol which is much in excess of the normal percentage of alcohol found in that preparation according to the standard Ayurvedic formula
The other constituents of Mrugmadasav as given in Bharat Bhishag Ratnakar Part IV are honey water and comparatively small quantities of musk black pepper cloves nut meg and cinnamon and these are not such as to create any harmful effects or danger to health
From the evidence of Lele it is clear not withstanding the assertion to the contrary of Ansare which is disbelieved by the Trial Magistrate and the Sessions Court that the preparation seized could not contain any substantial quantity of musk
Having regard to the market price of musk which ranged between Rs 60 to Rs 80 per tola at the material time it would be impossible for any manufacturer intending to do business as a seller of drugs to price a bottle of Mrugmadasav at Rs1 120 per Lb
When according to the standard formula it would contain about 4 of musk and according to Ansare the preparation contained 8 of musk by weight
Even according to the standard formula the value of musk alone in one Ib
Of Mrugmadasav would be from Rs100 to Rs140
The preparation seized by the police therefore could not contain genuine musk in any substantial or even appreciable quantity
The High Court did not rely upon the bare assertion of Lele because it was founded only upon the sense of smell but the evidence of Lele is corroborated by the circumstance that musk could not be a constituent of the preparation which was seized in the large quantity which it was claimed it contained
The other constituents of the preparation according to Ansare are comparatively speaking harmless drugs and having regard to the large percentage of alcohol even if it be regarded as a medicinal preparation though not a standard 26 preparation which was medicinal prima facie it was capable of intoxicating taken in a normal dose in which any Asav may be consumed
In any serious danger to health or concomitant deleterious effect
In that view of the case it must be held that the preparation seized by the police was not saved by virtue of section 24 A from the prohibitions contained in sections 12 and 13 of the Act
It is not the case of the accused and the burden of proving that case would lie upon the accused that the importation or possession of the article seized was permitted under section 11 of the Act
The High Court following an earlier judgement of the Bombay High Court in D k Merchant vs The State of Bombay 1 decided against the State also on the ground that the prosecution for the offences under sections 65 and 66 could not be maintained unless the State Government was satisfied after consulting the Board of Experts under section 6A that the article was intoxicating liquor
In our view section 6A is not susceptible of the interpretation placed upon it by the High Court
Section 6A provides as follows 6A 1 For the purpose of determining whether a any medicinal or toilet preparation containing alcohol or b any antiseptic preparation or solution containing alcohol or c any flavouring extract essence or syrup containing alcohol is or is not an article unfit for use as intoxicating liquor the State Government shall constitute a Board of Experts
1 27 2 The Board of Experts constituted under sub section 1 shall consist of such members not less than three in number with such qualifications as may be prescribed
The members so appointed shall hold office during the pleasure of the State Government
3 To members shall form a quorum for the disposal of the business of the Board 4 Any vacancy of the number of the Board shall be filled in as early as practicable Provided that during any such vacancy the continuing members may act as if no vacancy had occurred
5 The procedure regarding the work of the Board shall be such may be prescribed
6 It shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub section 1 containing alcohol is unfit for use as intoxicating liquor and on such other matters incidental to the said question as may be referred to it by the State Government
On obtaining such advice the State Government shall determine whether any such article is fit or unfit for use as intoxicating liquor or not and such article shall be presumed accordingly to be fit or unfit for use as intoxicating liquor until the contrary is proved
 By the first sub section a duty is cast upon the State Government to constitute a Board of Experts for the purpose of determining whether the medicinal toilet or antiseptic preparations or flavouring materials containing alcohol are unfit for use as intoxicating liquor
Sub sections 2 to 5 deal with matters purely procedural
By sub section
6 duty is imposed upon the Board to advise the State Government on the question whether any substance mentioned in sub section
 1  containing alcohol is unfit for use as intoxicating liquor and on such other 28 matters incidental to the said question as may be referred to it by the State Government
If the opinion of the Board is obtained duty is imposed on the Government to determine whether the article is fir or unfit to be used as intoxicating liquor and on the determination so made by the Government a rebuttable presumption arises that the article is fit or unfit for use as intoxicating liquor
Substantially the section creates three distinct obligations 1 upon the State to constitute a Board for the purposes specified in sub s1 2 upon the Board when consulted to advise the State Government whether a substance mentioned in sub section 1 is unfit for use as intoxicating liquor  and 3 an obligation on the State when the advice of the Board is received to determine whether the article is fit or unfit to be used as intoxicating liquor
There is however no obligation expressly imposed upon the State in any given case to consult the Board of Experts nor can such a provision be implied and there is nothing in sections 65 and 66 which make the consultation with the Board a condition precedent to the institution of proceedings for breach of the provision of the Act
Section 6A WAS Incorporated in the Bombay Prohibition Act by Act 26 of 1952 which also incorporated section 24 A
In view of the judgement of this Court in Balsaras case 1 it was found that the Bombay Prohibition Act in so far as it sought to impose restrictions and to provide penalties for infringement of those restrictions in respect of genuine medicinal toilet antiseptic preparations and flavouring extracts was ultra vires
The Legislature enacted section 24 A and restricted the prohibitions contained in sections 12 and 13 qua these preparations
It also provided for setting up machinery for determining whether the preparations specified were unfit for use as intoxication liquor but the Legislature did not impose any obligation upon the State to resort to the MACHINERY PROVIDED BY section 6A By declining to avail itself of the machinery provided 1 The State of Bombay vs F N Balsara 1951 section C R 
682 29 by sub section
6 of section 6A in cases which are not sent to the Board the State may undertake an onerous burden ie it will not be entinled to rely on the presumption arising under the last sentence of that sub section and will have affirmatively to establish the ingredients of the offence
Consultation with the Board and the determination contemplated by 8
6A would make the task of the State in a prosecution in respect of infringement of prohibitions regarding the liquor contained in ss12 and 13 somewhat less onerous
The State may in a prosecution for infringement of the prohibition contained in sections 12 and 13 rely
upon the presumption after resorting to the machinery under section 6A6 but is not obliged to rely upon the presumption
Imposition of a duty to constitute a Board for the purposes specified in sub section
1 does lot involve a duty to consult the Board and imposition of a duty upon the Board to advise the State Government does not involve a duty to consult the Board in every case where a prosecution is sought to be launched in respect of any medicinal toilet antiseptic or flavouring preparation containing alcohol
The plea that because the Government of Bhopal had levied a duty on the preparation anl had granted a permit no offence was committed by importing and possessing the offending preparations in the State of Bombay has in our judgment no substance
C which is a permit issued by the Government of Bhopal to export spirit medicinal toilet preparations and perfume containing Bhopal made spirit on payment of duty in Bhopal State does not protect the importer of the preparation in another State against prosecution for an offence according to the law of that other State committed by the importation of such articles
The export permit has not and cannot have extra territorial effect it merely enables a person seeking to export preparation to do so
The statement in Ext
L a letter by the Prabhat Trading Co to 30 Rajkumar Laboratories Sehore that the former hold a licence for possession and sale without production of such licence cannot be set up in set up in defence
If it was the case of the respondents and the burden of proving lay upon the respondents that the importation and possession of the article was lawful in view of a licence issued under section 11 it was for them to produce the licence granted under that section
None such having been produce the defence is not available to the respondents
Nor does the order of the Commissioner of Excise Department Bhopal dated October 14 1955 Ext
M advising against the exportation to the State of Bombay by the manufacturers to in the State of Bhopal of proprietary spirituous preparations including Mrugmadasav or other Ayurvedic preparations which contain a large percentage of alcohol without getting the preparations classified for duty purposes assist their case
It appears that in July  1954 the Excise and prohibition Director of Bombay had addressed a letter to the Chief Commissioner of Bhopal informing that Officer that 28 restricted Asavas and Arishtas mentioned in the list appended thereto were liable in the State of Bombay to duty at the rate of Rs 3 per Imperial Gallon of six reputed quart bottles and further requesting that Officer to issue instructions to manufacturers in the State of Bhopal that these preparations should not be exported to the State of a Bombay except on payment of the duty at the above prescribed rate to the credit of the State of Bombay and under cover of an export pass granted by the competent Excise authority of the District of export
The list of restricted Asavas and Arishtas does not include Mrugmadasav and it expressly refers to Ayurvedic preparations prepared according to Ayurvedic process containing self generated alcohol
 There is nothing in the letter dated July 23 1954 which may lend support to the contention of the respon 31 dents that they had on payment of excise duty been authorised to import Mrugmadasav and the prohibitions contained in sections 12 and 13 in respect of preparations containing alcohol were suspended for the preparation is not one listed in the Schedule nor does it contain self generated alcohol
We are of the view therefore that the prohibitions contained in 88
12 and 13 operated in respect of the preparation seized by the police and that the payment of excise duty to the Bhopal State under the law in force in that State for exporting the preparation from that State did not protect the respondents from liability to prosecution for infringement of provisions of the Bombay Prohibition Act XXV of 1949 within the State of Bombay
We further hold that the High Court was in error in holding that the consultation with the Board under section 6AG of the Act was condition precedent to the launching of prosecution against the respondents
We set aside the order passed by the High Court and restore the order passed by the Judicial Magistrate 1st Class Dohad and confirmed by the Court of Session at Panch Mahals sentencing the respondent No 1 to rigorous imprisonment for six months and to pay a fine of Rs 500 and in default of payment of fine to suffer rigorous imprisonment for three month and respondent 2 to rigorous imprisonment for one month and to pay a fine of Rs 300 and in default of payment of fine to uudergo rigorous imprisonment of one month and fifteen days in addition
The order of confiscation of the property is also restored
Appeal allowed


Summary:
The respondents were charged with offences punishable under sections 65a and 661b of the Bombay Prohibition Act 1949 for violating the provisions of sections 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 Mrugmasadav 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 7550 alcohol much in excess of the normal percentage of alcohol used in preparing Mrugmadasav according to the standard Ayurvedic formula 16 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 sections 12 and 13 of the Actand 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
s 6A if 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 committed by importing and possessing the preparations in the State of Bombay
 Held1 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 sections 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 s24A was not shifted on the shoulders of the accused 2 that if alcohol in excess of the quantity prescribed by s59A was found in the article the provisions of section 24A would not apply irrespective of the question whether it was fit or unfit to he 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 section 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 sections 12 and 13 of the Act rely upon the presumption after resorting to the machinery under s 6A6 but these was no obligation upon the State in any given case to consult the Board of Experts under section 6A nor was consultation with the Board a condition precedent to the institution of proceedings for breach of the provisions of the Act 
17 D R Merchant vs The State of Bombay 1958 Bom
I R 1183 disapproved
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 the 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 the 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 section 24A from the prohibitions contained in sections 12 and 13 of the Act