The State of Bombay (Now Gujarat) Vs.
Naraindas Mangilal Agarwal & ANR  INSC 296 (6 October 1961)
GUPTA, K.C. DAS
CITATION: 1962 AIR 579 1962 SCR Supl. (1) 15
CITATOR INFO :
F 1963 SC1531 (31) D 1966 SC 145 (7) D 1966
SC 722 (7,9)
Prohibition-Medicinal preparation with excess
of alcohol-Intoxicating effect-Offence under the Prohibition Act-Burden of
proof-Board of Experts under the, Act-Consultation with, if and when
obligatory-Payment of excise duty to and licence to export granted by Bhopal
State-Validity of conviction under Bombay prohibition laws-Bombay Prohibition
Act, 1949 (Bom. 25 of 1949), as a amended by Bombay Act 26 of 1952,ss. 6A, 11,
12, 13, and 24A.
The respondents were charged with offences
punishable under ss. 65(a) and 66(1)(b) of the Bombay Prohibition Act, 1949,
for violating the provisions of ss. 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 ss. 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 ss. 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 s. 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 s. 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 ss. 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 s. 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 v. 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 s.
24A from the prohibitions contained in ss. 12 and 13 of the Act.
CRIMINAL APPELLATE JURISDICTION: Criminal
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 ss. 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 s. 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 ss. 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 s. 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 s. 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 s. 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 s. 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 v. 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.  Bom. 210.
(2) The State of Bombay v.F.N. Balsara 
S. C. R. 682.
22 (1) Clause (c), of section 12, so far as
it affects possession of liquid medicinal and toilet preparations containing
(2) Clause (d) of section 12, so far as it
affects the selling or buying or such medicinal and toilet preparations
(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 s. 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
(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 ss.
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 ss. 12 and 13 of the Act inviting as a consequence the penal
provisions of ss. 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 ss. 12 and 13.
Undoubtedly, by virtue of s. 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 ss. 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 s. 24 A is not shifted on to the shoulders of
Section 24 A is in substance, not an
exception; it takes out certain preparations from the prohibitions contained in
ss. 12 13 But the operation of s. 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 ss. 12
and 13 will apply. In order that the provisions contained in s. 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 s. 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 s. 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 s. 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
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 "Sava" 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 s. 24 A
from the prohibitions contained in ss. 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 s. 11 of the Act.
The High Court following an earlier judgement
of the Bombay High Court in D. k. Merchant v. The State of Bombay (1), decided
against the State also on the ground that the prosecution for the offences
under ss. 65 and 66 could not be maintained unless the State Government was
satisfied after consulting the Board of Experts under s. 6A that the article
was intoxicating liquor. In our view s. 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) (1958) 60 Bom. L. R. 1183.
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-s. (6) duty is imposed upon the Board to advise the
State Government on the question whether any substance mentioned in sub-s. ( 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
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 ss. 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 s. 24
A. In view of the judgment 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 s. 24 A and restricted the prohibitions
contained in ss. 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 S. 6A. By declining to
avail itself of the machinery provided (1) The State of Bombay v. F. N.
Balsara,  S. C. R . 682.
29 by sub-s. (6) of s. 6A, in cases which are
not sent to the Board, the State may undertake an onerous burden, i.e. it will
not be entitled 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 ss..
12 and 13 rely. upon the presumption, after
resorting to the machinery under s. 6A(6), but is not obliged to rely upon the
Imposition of a duty to constitute a Board
for the purposes specified in sub-s. (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. Ext. 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 s. 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 ss. 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 s. 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 undergo rigorous
imprisonment of one month and fifteen days in addition. The order of
confiscation of the property is also restored.