Case ID: 1331

Judgment:
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 T.M. 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 65(a)(1) and 66(b)(1) 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 85.5% 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. 65(a) and 66(1)(b) of the Bombay Prohibition Act XXV of 1949. The Magistrate convicted the first respondent of offences under 88. 65(a) and 66(1)(b)	 the second respondent of offences under 8. 65(a) 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 75.55% to 79.97% V/V 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 1/2 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% V/V 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 liquor(l 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 2(24) 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 2(22) 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 ss.12 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 Bombay(l). Against the decisions of the High Court an appeal was preferred to this Court(2). 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 F.N. 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 s.24A	 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 preparation	if 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 i.e. 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 s.59A 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 75.5 ^ 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 Rs.1 12.0 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 Rs.100 to Rs.140. 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 s.(1): (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	 i.e. 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 ss.12 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 6A(6)	 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 an(l 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 6A(G) 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 65(a) and 66(1)(b) 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 75.50% 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 Act	and 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. ^ Held:(1) 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 s.24A was not shifted on the shoulders of the accused; (2) that if alcohol in excess of the quantity prescribed by s.59A 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 6A(6)	 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.