minal 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 section 661b and section 851 1 2 and 3 of the Act
The said Magistrate convicted the appellant both under section 661b and section 8511 2 and 3 of the Act but sentenced him only under sections 661b and 8511 of the Act
On appeal the learned Sessions Judge Akola acquitted the appellant under section 661b of the Act but confirmed the conviction and sentence under section 8511 thereof
Against the judgment of the Sessions Judge acquitting the appellant under section 661b of the Act the State of Maharashtra preferred an appeal to the High Court and against the order of conviction under section 851 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 section 661b 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 section 8511 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 section 662 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
To appreciate this contention it is necessary to notice the relevant provisions
Under section 661 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 section 13b no person shall consume or use liquor
Relevant part of section 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 ie any liquid consisting of or containing alcohol he commits an offence under section 661 of the Act and therefore is liable to be convicted thereunder
But by reason of section 24A2 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 BP 1959 Tincture Zingeberis Mitis absolute alcohol content was 891 per cent
The report further states as regards alcohol contents of the liquid that the sample contained 900 per cent
of VV of ethyl alcohol though the BP limits were 86 to 90 per cent
VV The analysis has also given the quantity of total solids as 062 per cent
weight per ml
at 20 degrees to be 0825 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
VV 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 0207 mg
wv 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 0007 per cent
WV and the accused should have taken roughly about 125 cc of tincture zingeberis to induce an alcohol content of 0207 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 burden of proof in this case will have to be considered on the basis of the said facts found by the High Court
Section 662 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 005 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 005 per cent
weight in volume
So in terms of sub section
2 of section 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 section 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 vs Narandas Mangilal Agarwal1 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 662 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 SCR 15
362 decision cannot therefore be invoked in the changed circumstances
The present case falls to be decided on the interpretation of section 662 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 section 6A of the Act
Under section 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 section
6 thereof it shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub section
1 of section 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 section
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 section 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 section 662 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 section 8511 and 2 of the Act
The relevant part of section 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 section 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 section
2 for otherwise so it was said the presumptive rule of evidence enacted in sub section
2 would be unnecessary and even relevant if the purpose mentioned therein was not an ingredient of 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 section 851 of the Act
In the result the appeal fails and is dismissed
Appeal dismissed


Summary:
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 sections 661b and 8511 2 and 3 of the Bombay Prohibition Act 1949 the Magistrate convicted him under the aforesaid sections and sentenced him under sections 661b and 851 of the Act
On appeal the Sessions Judge acquitted the appellant under section 661b but confirmed the sentence under section 8511
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 ie any liquid consisting of or containing alcohol he commits an offence under section 661 of the Act and therefore is liable to be convicted thereunder
But by reason of section 24A2 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 section 662 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 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 vs Naraindas Mangilal Agarwal 1962 Supp 1 SCR 15 held inapplicable