Cr. Revn. Appln. No. 175 of 1980

28th November, 1980.

Petitioner Counsel: P.V. Hardas
Respondent Counsel: A.A. Desai

Cases Cited:
AIR 1973 SC 246.
AIR 1951 SC 318.
AIR 1955 SC 575.
AIR 1964 SC 575.
AIR 1962 SC 1204.

JUDGMENT

JUDGMENT-Applicant Vishnu Fakira Wakode seeks to challenge the Judgment and order in Criminal Case No. 967 of 1979, decided on 8-4-1980, by Judicial Magistrate, First Class, Khamgaon, finding him guilty of an offence punishable under section 66(1)(b) of The Bombay Prohibition Act, 1949 and sentencing him to suffer rigorous imprisonment for three months and a fine of Rs. 500, in default of which he had to suffer further rigorous imprisonment for one month. He bad challenged this judgement and order of conviction in criminal case No. 63 of 1980 before Additional Sessions Judge Khamgaon who dismissed his appeal on 20th August, 1980.

2. Prosecution alleged that accused Vishnu Fakira Wakode consumed liquor, got drunk and entered the premises occupied by P.W. 1 Kausalyabai at about 4-40 P.M. on 6-9-1979. P.W. 3 Head Constable Shankar of Police Station, Khamgaon, raided the spot along with staff and found that accused was hurling vulgar abuses at the daughter of Kaushalyabai. The Police Patil therefore, apprehended the accused and recorded a panchnama and accused was taken to the Police Station and was sent for medical-examination. P.W. 5 Dr. Choudhary, Medical Officer, Khamgaon examined accused at 6-10 P.M. and opined that the accused had consumed alcohol but was not under the influence of alcohol. He also collected sample of blood of accused as per rules and it was carried to the office of Assistant Chemical Analyser by Police Constable Pandit (P.W. 4). The sample was delivered in the office of Assistant Chemical Analyser, Nagpur on 10 9-1979 and on analysis, it was found that the blood contained 0.069% w/v of ethyl alcohol. It was on these allegations that particulars for offences punishable under section 110 read with section 117 of the Bombay Police Act and 66(1)(b) of The Bombay Prohibition Act were explained to the accused. The defence of accused was that he was called by Police from his house and sent for medical examination. The fact that Doctor Choudhary examined him and took sample of his blood was not challenged. The further allegation that the report of Chemical Analyser, which is at Ex. 16, pertained to the examination of his blood, was also not challenged. According to the accused he had consumed two bottles of beer and drakshasava because of pain in stomach. Trial Court found that mere statement in examination of accused under section 313 Criminal Procedure Code, that accused had consumed two bottles of beer and drakshasava was not sufficient to discharge the burden cast upon the shoulders of accused to prove that he had consumed medicinal toilet preparation or antiseptic preparation or essence or syrup containing alcohol, the consumption of which was not in contravention of the Actor any rule, regulation or orders made thereunder, as provided by sub-section 2 of section 66 of The Bombay Prohibition Act and found the accused guilty of an offence punishable under section 66(1)(b) of The Bombay Prohibition Act, while acquitting him of offence punishable under section 110 read with section 117 of the Bombay Police Act. The learned Trial Judge placed reliance on a decision of Supreme Court in the case of Ram Kishan Bedu Rane v. State of Maharashtra1, for coming to the conclusion that reasonable and plausible explanation offered by accused in statement under section 313 Criminal Procedure Code was not enough to discharge burden cast upon accused u/s 66(2) of The Bombay Prohibition Act and something more was necessary.

3. The learned Appellate Judge found in paragraph 9 of the appellate judgement that,

"In view of the law contained in section 66(2) of the Bombay Prohibition Act, it must be presumed that this much percentage of alcohol in blood was produced on account of consumption of prohibited alcohol. The burden to prove to the contrary is on the accused".

According to the learned Appellate Judge, it was not established as to whether beer and drakshasava were medicines effective on colitis. It was not proved as to who advised the accused to consume beer and drakshasava for treatment of stomach pain. P.W. 5 Dr. Choudhary was not cross-examined to show that the accused had complaint of abdominal pain; he was not cross-examined to show that consumption of beer and drakshasava was necessary for controlling stomach pain and he was not cross-examined to show that consumption of two bottles of beer and drakshasava could produce concentration of alcohol in blood to the extent of 0-069% w/v and there was no evidence besides the statement of accused that accused had really consumed two bottles of beer and drakshasava on that day. According to the learned Appellate Judge, even the explanation offered by accused may sometimes be sufficient to rebut the presumption, but the explanation must be plausible and readily acceptable without any evidence and such was not the case in the appeal before him. Reference to the case of Ram KishanBedu Ram (supra) was made by the learned Appellate Judge in support of his conclusion.

4. Shri P.V. Hardas, the learned counsel for applicant, while contending that both the Courts below have erred in finding that explanation offered by the accused, in his statement recorded under section 313 Criminal Procedure Code, was not sufficient to discharge the burden placed upon the shoulders of accused under section 66(2) of the Bombay Prohibition Act, has further raised an interesting question as to the interpretation of section 66(2), particularly with relation to a defence of consumption of beer. Since this question goes to the root of the matter, I propose to postpone the question of discharge of burden by accused in this case with reference to the case of Ramchandra Bedu Rane to a subsequent part of this judgment. The presumption raised under sections 66(2) and 85(2) of the Bombay Prohibition Act is different in nature. Section 66(2) provides that in those cases in which prosecution alleges consumption of liquor and proves that concentration in the blood of accused is not less than 0.05% w/v, the burden of proving that the liquor consumed was medicinal or toilet or antiseptic preparation or flavouring extract containing alcohol, the consumption of which is not in contravention of the Act, Rules, Regulations or Orders, shall be upon the accused and that in such a case, if accused fails to discharge tins burden, the Court shall "presume the contrary". It can, thus, be seen that the presumption that arises is not that accused consumed prohibited alcohol but that he had not consumed medicinal toilet or antiseptic preparations permitted by law. As against this sub-section (2) of section 85 provides that in all prosecutions for offences under sub-section (1) of section 85, 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 can be seen that sub-section (2) of section 85 of the Bombay Prohibition Act provides two presumptions, (1) that the accused drank liquor or consumed any other intoxicant and (2) that he did so for being intoxicated and not for a medicinal purpose and it was for the accused to prove to the contrary. Thus, under section 66(2) a limited presumption arises, while under sub-section (2) of section 85, a presumption sufficient enough to establish the offence itself arises. In the case before us, we are not concerned with presumption under section 85(2) of the Bombay Prohibition Act. We are only concerned with presumption arising under sub-section (2) of section 66 of the Bombay Prohibition Act. Therefore, the presumption that arises is not that he had consumed prohibited alcohol, as found by the learned Appellate Judge in paragraph 9 of the judgment, but "presumption to the contrary". A plain reading of the section shows that presumption to the contrary could only be contrary to what was provided earlier The presumption would be that the liquor consumed was not a medicinal or toilet preparation or an antiseptic preparation or flavouring extract, essence or syrup, containing alcohol, the consumption of which is not in contravention of any Act, Rules and Regulations or Orders made thereunder This pre sumption is just to the contrary of what the accused is required to prove Therefore, even if such presumption arises, it does not affect the case of the applicant, when he says that he had consumed two bottles of beer, because it is neither a toilet preparation nor an antiseptic preparation or solution and it is also not a flavouring extract, essence or syrup. Twentieth Century dictionary defines toiletry as "any article or preparation used in washing and dressing oneself." Therefore, beer, obviously, cannot come under this category. "Antisepsis" means "destruction or inhibition of growth of bacteria" and, therefore, antiseptic preparation would mean nothing but a preparation containing an antiseptic agent. Beer could not be labelled even under this It, certainly, is not a flavouring extract or essence, nor is it a syrup, which means a saturated solution of sugar boiled to prevent fermentation of any liquid. It is, therefore, clear to me that in those cases in which defence is that the accused had consumed beer, he is not burdened with proving that he had consumed any medicinal or toilet or antiseptic preparation or flavouring extract, essence or syrup, containing prohibited alcohol and, therefore, in such cases, question of his omission to discharge the burden would not arise which necessarily means that the court cannot draw presumption to the contrary.

5. This can be appreciated if we refer to certain cases, on account of which sub-section (2) of section 66 of The Bombay Prohibition Act providing presumption to the contrary was introduced by Bombay Act No. XII of 1969 In the case of State of Bombay and another v. F.N. Balsara2, a challenge to the validity of section 13(b), which provides that "no person shall consume or use liquor", in addition to similar challenge to various other provisions of the Bombay Prohibition Act was made by F.N. Balsara on the ground that his right to possess, consume and use certain articles, namely, whisky; brandy, wine, beer, medicated wine, eau-de-cologne etc. and to import and export across the Customs frontier and to purchase, possess, consume and use any stock of foreign liquor, eau-de-cologne, lavendar water, medicated wines and medicinal preparations containing alcohol was infringed. This Court came to a conclusion that certain provisions of the Act were void and the matter was taken in appeal by the State of Bombay to Supreme Court. Regarding clause (b) of section 13 of the Bombay Prohibition Act, Supreme Court of India declared that it was invalid, so far as it affected the consumption and use of toilet preparation containing alcohol. The result was that section 13(b) of the Bombay Prohibition Act continued to remain on the statute book, but it was declared invalid, so far as it affected the consumption and use of medicinal or toilet preparation containing alcohol. This decision gave rise to a question as to whose burden it was to prove that the accused had or had not consumed medicinal preparation containing alcohol. Behram Khurshid Pesikaka knocked down three persons while proceeding towards the Colaba Bus Stand in his jeep car and was prosecuted for an offence punishable under section 66(b) of The Bombay Prohibition Act. His defence was that owing to his ill health, on the night in question, at about 9 or 9.15 P.M. he had taken a dose of B.G. Phos and was proceeding in his jeep car for a drive via Cuff Parade and Marine Drive when the incident took place. His defence was accepted by the Trial Court, but his acquittal was reversed by this Court and when the matter went to Supreme Court of India, it was found that the effect of Balsaras' decision was not as if to create an exception to section 13(b) of The Bombay Prohibition Act, as was urged on behalf of the State, but the effect was that the ambit of the section stood down so far as its enforceability against citizens is concerned. Therefore, what Supreme Court observed in a majority judgment in that case of Behram Pesikaka v. State of Bombay5:

"In a criminal case, unless the prosecution proves a contravention of a provision that is legally enforceable and valid, it cannot succeed. No onus is cast on the accused to prove that his case fails under that part of the section which has been held unenforceable.

The bare circumstance that a citizen accused of an offence under section 66(b) is smelling of alcohol is compatible both with his innocence, as well as his guilt. It is a neutral circumstance, the smell of alcohol may be due to the fact that the accused had contravened the enforceable part of section 13(b) of the Prohibition Act. It may well be due also to the fact that he had taken alcohol which fell under the enforceable and inoperative part of the section. That being so, it is the duty of the prosecution to prove that the alcohol of which he was smelling was such that it came within the category of prohibited alcohols and the onus was not discharged or shifted by merely proving a smell of alcohol.

The onus, thus, cast on the prosecution may be light or heavy according to the circumstances of each case. The intensity of the smell itself may be such that it may negative it's being of a permissible variety. Expert evidence may prove that consumption in small doses of medicinal or other preparations permitted cannot produce the smell or a state of body or mind amounting to drunkenness. Be that as it may, the question is one of fact, to be decided according to the circumstance of each case. It is open to the accused to prove in defence that what he consumed was not prohibited alcohol, but failure of the defence to prove it cannot lead to his conviction unless it is established to the satisfaction of the judge by the prosecution that the case comes within the enforceable part of section 13(b), contravention of which alone, is made an offence under the provisions of section 66 of The Bombay Prohibition Act."

It was argued on behalf of State of Bombay in this case that it was virtually impossible for the State to prove that a given accused had not consumed thousand and one medicines, available in market, containing alcohol and permitted under law and, therefore, it should be held that it was for the accused to prove that he had consumed a particular medicine that fact being within bis exclusive knowledge. This argument was repelled and the conclusion was that it was for the State to overcome the difficulties and existence of insurmountable difficulties could not throw the burden of proving, that a permitted medicinal preparation was consumed, on the shoulders of the accused. Faced with this difficulty, the Bombay Prohibition Act came to be amended by Bombay Act No. XII of 1959 and presumption under subsection (2) of section 66 was provided. The result of providing this presumption was that it was not necessary for the State to prove that accused had not consumed number of medicines containing alcohol and available in market and permitted under the law, but it was for the accused to prove that he had consumed such medicines and if he failed to discharge this burden, the contrary was to be presumed, i.e. that he had not consumed such medicines.

6. In view of this, it may even be possible to urge that in the absence of a provision in sub-section (2) of section 66, throwing burden of proving that the accused had consumed beer upon the shoulders of accused and consequential inability to raise a presumption to the contrary, an accused was entitled to an acquittal for the offence of consumption of liquor without even uttering a word, if State did not prove that he had not consumed beer.

7. Burden of proving consumption of medicinal or toilet or antiseptic preparation or flavouring extract, essence or syrup can stand shifted to the shoulders of accused only in those cases in which defence in those terms is taken and not in those cases in which some other defence, for example consumption of two bottles of beer is taken. In view of this position, controversy as to whether mere statement of accused was enough to discharge the burden cast by sub-section (2) of section 66 does not survive. However, even on the view that such a controversy survives, I feel that the approach of the learned Trial Judge and the Appellate Judge in this behalf is prima facie erroneous. Ramkisan Bedu Rane's case (supra) lays down a proposition that in those cases in which mandatory statutory presumption is raised, it is not enough that the explanation offered by the accused is reasonable and plausible. That may be enough for rebutting presumption arising under section 114 of The Indian Evidence Act, which the Court may or may not raise. It was not true in respect of mandatory statutory presumption, as provided by section 4 of the Prevention of Corruption Act or section 85(2) of The Bombay Prohibition Act. Appellant in that case was convicted for two offences punishable under section 66(1)(b) and section 85 of The Bombay Prohibition Act. The question, therefore, which was before the Supreme Court of India, was as to whether the appellant had discharged the burden throw upon him not only by section 66(2) of The Bombay Prohibition Act, but also by section 85(2) of the said Act. It is in this context that their Lordships of the Supreme Court referred to the decision in the case of Dhanwantrai Desai v. State of Maharashtra4. Dhanwantrai's case related to the question of discharge of burden on accused to rebut statutory presumption that arises under section 4 of The Prevention of Corruption Act. A distinction between such statutory presumption and presumption which Court may raise under section 114 of the Indian Evidence Act was drawn for repelling defence contention that even for discharge of burden to rebut statutory presumption arising under section 4 of the Prevention of Corruption Act, the only thing necessary is an explanation or evidence which need be only reasonably true and need not be necessarily true. It was found that, that may be enough to rebut presumption which Court may raise under section 114 of the Evidence Act but in case of statutory presumptions like one arising under section 4 of the Prevention of Corruption Act, which Court must raise, the defence must further prove that the explanation was true. The other case referred was State of Maharashtra v. Laxman Jairam5 where Supreme Court was concerned with discharge of burden to rebut presumption raised under section 66(2) of the Bombay Prohibition Act alone and not 85(2) thereof. It must be remembered that we are concerned in this case only with presumption under section 66(2) of the Bombay Prohibition Act and, therefore, law laid down in the case of State of Maharashtra v. Laxman Jairam (supra) is clearly applicable. As indicated by me earlier, the learned Appellate Judge was inclined to reject the explanation offered by accused on the basis that it was not shown that beer and draksha-sava were medicines for colitis and that it was not shown that the same was advised by some doctor and that consumption of two bottles of beer and drakshasava resulted in the percentage of 0.069. According to me, these questions do not arise so far as consumption of two bottles of beer is concerned. They may at the most arise in so far as consumption of drakshasava is concerned. As is well known, drakshasava is hardly a preparation which can give rise to any appreciable percentage of alcohol in blood. Therefore, what matters is the defence regarding consumption of two bottles of beer. For consuming beer, it is not necessary that a person must be sick. It is also not necessary that beer should be prescribed by some doctor. In fact, there is nothing in the Bombay Prohibition Act, which prohibits consumption of beer, even for the purpose of intoxication, in one's own house, as distinguished from a public place. Therefore, so far as defence of consumption of two bottles of beer is concerned, accused could hardly do anything much, except saying that he had consumed two bottles of beer. It is well known that beer is freely available in market and it does not require any permit. I do not see any reason as to why the bare statement that two bottles of beer were consumed should not be accepted as sufficient discharge of burden, if any, arising under sub-section (2) of section 66 of the Bombay Prohibition Act, as in the case of Dhanwantrai Balwantrai Desai v. State of Maharashtra, wherein the defence was that the accused had consumed tincture of him and no evidence besides the bare statement of accused was adduced.

8. What remains is consideration of the question as to whether the defence could be accepted in the absence of cross-examination of Doctor for establishing that consumption of two bottles of beer can lead to a percentage of 0.069 weight in volume ethyl alcohol in blood of accused. According to a table given at page 601 of Medical Jurisprudence and Toxicology by Glaister, (eleventh edition), consumption of 1.4 pints of beer containing alcohol 3.28 percent by volume can lead to a percentage of 0.063 mili-litres per 100 mili-litres of blood. One pint is half a bottle of beer. The accused has consumed two bottles of beer. Percentage of beer consumed by accused must have been upto 5% as permitted under law, while the beer which is referred to in the table is a beer containing a percentage of 3.28 only. I do not see any reason as to why percentage of 0.069 w/v ethyl alcohol in the blood of accused could not be found on consumption of two botttes of Indian beer, the maximum percentage of which as prescribed by rules and regulations under the Bombay Prohibition Act is 5.

9. The result, therefore, is that the revision application is allowed and both the Judgments of Courts below and conviction of appellant for offence punishable under section 66(1)(b) of The Bombay Prohibition Act, as well as the consequential sentence imposed upon him are hereby quashed. Fine, if paid, shall be refunded. Bail bond shall stand cancelled.

Revision application allowed.