Case: Ratan Lal Vs. The State Of Maharashtra

66 could not be maintained unless the State Government was satisfied after consulting the Board of Experts under S. 6A that the article was fit to be used as intoxicating liquor. The offence in Narandas Mangilals case, 1962 Supp (1) SCR 15: (AIR 1962 SC 579 ), was committed in July 1955 and on the terms of sub-s. (6) as it then stood it was open to the State in a prosecution for infringement of a prohibition contained in Ss. 12 and 13 to rely upon the presumption under S. 6A or to establish that the medicinal preparation was fit for use as intoxicating liquor aliunde. By Act 22 of 1960 which was brought into force on April 20 1960, the Bombay Legislature amended, inter alia, sub. s. (6) of S. 6A, and incorporated sub-s. (7) therein. Sub-section (6) and (7) as amended and incorporated read as follows:"(6) It shall be the duty of the Board to advise the State Government on the question whether any article mentioned in sub-s. (1) is fit for use as intoxicating liquor and also on any matters incidental to the question, referred to it by the State Government. On obtaining such advice, the State Government shall determine whether any such article 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.(7) Until the State Government has determined as aforesaid any article mentioned in sub-s. (1) to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use."9. The scheme of S. 6A has by the amending Act been completely altered. The Legislature has prescribed by sub-s. (7) that until the State Government has determined any article mentioned in sub-s. (1) to be fit for use as intoxicating liquor, every such article shall be deemed to be unfit for such use. The Legislature has, therefore, prescribed a fiction which continues to function till the State Government has determined on the report of the Board of Experts, that any article mentioned in sub-s. (1) is fit for use as intoxicating liquor. By sub-s. (6) as amended it is provided that after the State Government has obtained the advice of the Board of Experts, the State Government shall determine whether such article is fit for use as intoxicating liquor and upon such 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 the amended S. 6A there is only one mode of proof by the State that an article is fit for use as intoxicating liquor, and that is by obtaining the advice of the Board of Experts and recording its determination, that the article is fit for use as intoxicating liquor. Until it is otherwise determined by the State, after obtaining the report of the Board of Experts, every article mentioned in sub-s. (1) is to be deemed unfit for use as intoxicating liquor. After it is determined as fit for use as intoxicating liquor, in a proceeding relating to the article it would under sub-s. (6) be presumed, that it is fit for use as intoxicating liquor. But the presumption is rebuttable.10. In the present case the offence is alleged to have been committed in September 1960. After consulting the Board of Experts the Government of Maharashtra issued a declaration on October 4, 1960, declaring that both the preparations Mahadrakshasava and Dashmoolarishta were medicines fit for use as intoxicating liquor. Thereafter a police report was filed in the Court of the Magistrate, First Class, on June 2, 1962 charging the appellant with the offence under S. 66 (1) (b) of the Bombay Prohibition Act. But on the date on which the medicinal preparations were attached, the statute had provided that they shall be deemed for the purpose of the Act as articles unfit for use as intoxicating liquor. Possession of the medicinal preparations which were unfit for use as intoxicating liquor was, at the date when they were attached, not an offence. A subsequent declaration by the State that they were fit for use as intoxicating liquor, could not have any retrospective operation, and possession which was innocent could not be subsequent act of the State, be declared as offending the statute.11. It is unfortunate that the High Court lost sight of the change in the scheme of S. 6A and followed the judgment of this Court in Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ). In Narandas Mangilals case, 1962 SC 579) . In Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579 ), at all material times when the question fell to be considered, the Court had to decide whether sub-s. (6) of S. 6A, as it then stood, prescribed the only method of proof whether an offending medicinal preparation was unfit for use as intoxicating liquor, and this Court on the phraseology used by the Legislature came to the conclusion that it was not the only method of proof. But the incorporation of sub-s. (7) by the Legislature has altered the scheme of the Act. Sub-section (6) incorporated in its second part both before and after the amendment, a rule of evidence but the rule in sub-s. (7), that until a declaration is made to the contrary by the State Government under sub-s. (6) every article mentioned in sub-s. (1) shall be deemed unfit for use as intoxicating liquor, is not a rule of evidence. It defines for the purpose of S. 24A and related sections was an article unfit for use as intoxicating liquor is. It is plain that in Narandas Mangilals case, 1962 Supp (1) SCR 15: (AIR 1962 SC 579 ), the effect of sub-s. (7) of S. 6A did not fall to be considered.12.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Attention must, therefore, be directed to ascertain whether the preparations did correspond with the description and limitations mentioned in S. 59A. If they did not, exemption under S. 24A will be inoperative, even if they are medicinalthe amended S. 6A there is only one mode of proof by the State that an article is fit for use as intoxicating liquor, and that is by obtaining the advice of the Board of Experts and recording its determination, that the article is fit for use as intoxicating liquor. Until it is otherwise determined by the State, after obtaining the report of the Board of Experts, every article mentioned in sub-s. (1) is to be deemed unfit for use as intoxicating liquor. After it is determined as fit for use as intoxicating liquor, in a proceeding relating to the article it would under sub-s. (6) be presumed, that it is fit for use as intoxicating liquor. But the presumption is rebuttable.In the present case the offence is alleged to have been committed in September 1960. After consulting the Board of Experts the Government of Maharashtra issued a declaration on October 4, 1960, declaring that both the preparations Mahadrakshasava and Dashmoolarishta were medicines fit for use as intoxicating liquor. Thereafter a police report was filed in the Court of the Magistrate, First Class, on June 2, 1962 charging the appellant with the offence under S. 66 (1) (b) of the Bombay Prohibition Act. But on the date on which the medicinal preparations were attached, the statute had provided that they shall be deemed for the purpose of the Act as articles unfit for use as intoxicating liquor. Possession of the medicinal preparations which were unfit for use as intoxicating liquor was, at the date when they were attached, not an offence. A subsequent declaration by the State that they were fit for use as intoxicating liquor, could not have any retrospective operation, and possession which was innocent could not be subsequent act of the State, be declared as offending the statute.It is unfortunate that the High Court lost sight of the change in the scheme of S. 6A and followed the judgment of this Court in Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579  ). In Narandas Mangilals case, 1962 SC 579)  . In Narandas Mangilals case, 1962 Supp (1) SCR 15 : (AIR 1962 SC 579  ), at all material times when the question fell to be considered, the Court had to decide whether sub-s. (6) of S. 6A, as it then stood, prescribed the only method of proof whether an offending medicinal preparation was unfit for use as intoxicating liquor, and this Court on the phraseology used by the Legislature came to the conclusion that it was not the only method of proof. But the incorporation of sub-s. (7) by the Legislature has altered the scheme of the(6) incorporated in its second part both before and after the amendment, a rule of evidence but the rule in sub-s. (7), that until a declaration is made to the contrary by the State Government under sub-s. (6) every article mentioned in sub-s. (1) shall be deemed unfit for use as intoxicating liquor, is not a rule of evidence. It defines for the purpose of S. 24A and related sections was an article unfit for use as intoxicating liquor is. It is plain that in Narandas Mangilals case, 1962 Supp (1) SCR 15: (AIR 1962 SC 579  ), the effect of sub-s. (7) of S. 6A did not fall to be considered.