Ftbrua1y JG.

230 SUPREME COURT REPORTS [1962] SUPP.

STATE OF MAHARASHTRA

LAXMAN JAIRAM J. L. KAPUR, K. C. DAs GUPTA and

RAGHUBAR

DAYAL, JJ.)

Pro/iibition-Consumption of liquor-Prosewtion for- Acr.used'" statement-Consumption of medicinal preparatfrms

with high alro/wlic r.ontent-Burdm of proof-Discharge of- Rambay Pro/iibition Aet,1049-( Rom. 25 of 1949), as amended

b.~ Bomba!/ Act 12 of 19.;9, .<s. 66 (1) (b), 66 (2) Code of

Criminal Procedure, 1898 (Act 5 of 1898), s. 342.

Respondent was arrested by a police constable on the ground that he was smelling of liquor, The doctor who examined him !<'ave evidence at the trial that though the respondent had consumed alcoholic substanr.e he was not under the influence of liquor. In cross-examination the doctor stated that consumption of Necm wpuld produce a blood concentration of 0. 146~~- The respondent in examination under s. 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->. (2) of s. 66 of the Bombay prohibition Act. 1949, as amended by the Bombay Prohibition (Extension and amendment) Act, 19.59.

The High Court dismissed the appeal in /imine.

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 st•tement of the accused recorded under s. 342 of the C>dc of Criminal Procedure can be taken into consideration in _juclging the innocence or guilt of a person.

If the explanation given by the accused in. his statement is acccptahle to the court it must be held that the accused has discharged the burden under s. 66 (2) of the Rombay Prohibition Act. 1949.

O. S. D.

S1r, r11ny v. Stla'e, distinguished.

CRDfi:\AL APPl'Jf, LATE f\ppeal No. 58 of 1961,

(1950)

S. C.R. 461,

Appeal by special leave from the judgment and order dated October 17, 1960, of the Bombay High Court in Criminal Appeal No. 1235 of 1960.

R. H. Dhebar, for the appellant.

The respondent did not appear.

1962. 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 res, Pondent arises out of proceedings under s. 66(l)(b) of the Bombay Prohibition Act, 1949 (Act 25 of 1949), as amended.. hereinafter called the •Act'.

The respondent was arrested by Police Constable Laxman Sabaji on August 8, 1959, at 8-15 p.m. on the ground that he was smelling of liquor and had 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 th11t the respon dent was smelling of liquor but his speech, beha viour, 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 0.146% M/V of ethyl alcohol.

The respondent in his examination under s. 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 eem as I am

IJSed to W'1

196!

Stat, of Maharashlr•

•• /Axman J air am

Kapur J.

232 SUPREME OOURT REPORTS (1962] SUPP.

1961 On this evidence the Presidency Magistrate Mr.

Stat, of Mahorosht,. Lokur acquitted the respondent. Ho observed:-

•· Laxman Jci111m

Kapur J,

"Neem is a medicinal preparation con taining 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 hail taken Necm in order to satiate his craving for alcohol. It has £cen 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 docs not amount to consumption of 'prohibited liquor. In Criminal Appeal No. 1562 of 195!) State v. Domnic Robert D'Sliva where a

similar defence was taken up it was held that con!!umption of 6 ounces of essence of Neem did not constitute an offonco. Following these judgments I hold that tho 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 reapondent that he had consumed 8 ounces of Tincture of Ncem was not sufficient to rebut the presumption arising out of sub-s.(2) of

R. 66 of the Act. But tho High Court dismissed the appeal in limine. It i~ 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 hy tho introduction of s. 66(2) in th11 Act as a result of tho Bombay Prohibition (Extension and amendment) Act, 1959, (Act 12 of 1959), the onus is on the accused person and that that onus had llot been discharged in the predent oase.

Section li6(2) is as follows:-

S. 66(:!) "Suliject to the provisions of sub-sectioµ,

...

19GZ

(3) wherein in any trial of an offence under cla.use(b) of sub-section(!) 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 tha.n 0.05 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 person, and the Court shall in the absence of such proof presume the contrary".

Slate of Maharashtra

The argument was put in this way that if thA prosecution proves that the concentration of alcohol in the blood of an accused person is more than 0.05% then under s. 66(2) 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.

Onr attention was drawn to the scheme and some of the provisions of the Act.

The prosecution, in the present case, has provE"d that the respondent's breath was smelling of liquor and that on examination of his blood it • was found to contain 0.146% but the respondent gave an explanation showing that he had taken 6 ounces of Tincture pf Neem and Dr. Dadlani Prabhu Rochiram has deposed that the consumption of 6 to 8 ounces of that substance will produce that l\IllOUQt of coqcentration of blood. This was

v, Laxman Jairam

Kapur J,

St.Jlt llf M aiiarashtra

La.'( man J air am

234 SUPREME COURT REPORTS [1962] SUPP.

accepted by the learned Presidency Magistrate and by the High Court. 'fherefore on this finding it must be held that the explanation given by the res. pondent of the cause of his smelling of liquor and of the blood concentration was accepted by the High Court a.a being sufficient to discharge the ·

onus placed 011 him. But Mr. Dhebar for the State submits th1it mere statement of an accused person is not sufficient for the discharge of such onus and relics on a judgment of this Court in C. S. D.

Swamy v. The State('), 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 contnuy

of whiit has been proved by the prosecution, has been <'StabliBhed, because tlw requirement of the section is that the accused person shall be prosumcd to be guilty of criminal misconduct in the discharge of hie official duties "unless the contriiry is proved.,.

The words of the statute are pernmptory, and the hurdcn must lie all the time on the accused to prove

the contrary".

All that thl• learned Judge there meant to say waH that the cviclcnce of the statement. of the accused in the circumstanl'eB of that ease was not sufficient to discharge the onus but that does not mean that in no case can thn statement of an accuHcd rJerson be taken to be sufficic11 t for the purpose of 'discharging the onus if a statute placeR the onus on him.

Under s. 342 of the Criminn.I Prncedure Code the Court has the power to examine the accused so as to enable him to explai11 n.ny circumstance iippearing in evidence against him.

Under suh-s. (3) of tha.t section the answers given by an accused person may be taken i11t o consideration in such enquiry or trial. The object of examination under s. 342 therefore is to give the accused an opportunit; v tg

(1) [l 960J I S.C.R. 461, 471. .

explain the case made against hiin and that state ment 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 s. 65(2) of the Act.

The appeal is therefore dismissed.

Appeal dismissed.

IZHAR AHMAD KHAN v.

UNION OF INDIA

(P. B. GAJENDRAGADKAR,

A. K. SARKAR,

K. N.

WANCHOO, K. C. DAS GUPTA and N. RAJAGOPALA

AYYANGAR, JJ.)

Citizenship, Termination of-Determination by Central Government-Rule rnaking obtaining of passport from another country conclusive evidence-Validity-Citizenship Act, 1955( 57 of 1955), s. 9(2)-Citizenship Rules, 1956, Sch. Ill, r 3.

The petitioners claiming to be Indian Citizens sought to enforce their fundamental rights under Art. 19 (1) (e) of the Constitution. The crucial question was \Vhethcr they \Vere citizens of India.

While the petitions were pending the Government of India under s. 9(2) of the citizenship Act, 1955

determined that they had voluntarily acquired the citizenship of Pakistan by the application of r. 3 of Sch. III of the Citizenship Rules, 1956, framed by the Central Government under s. 18 of the Act.

Section 9 of the Citizenship Act, 1955, provides as follows:-

"( I) Any citizen of India who by naturalisation, regist ration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950, and the commencement of this Act voluntarily acquired, the citizenship of another country, shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India .

(2} If any question arises as to whether, when or how any person has acquired the citizenship of another country, jl Jlla!! be detertnil)ed by such uthority! in s.uGh i; nanqer1 alj~

198%

Stat1 of Mahorasher a

•• Luman J airam

KapurJ.

19•1