State of Maharashtra Vs. Laxman Jairam
 INSC 61 (16 February 1962)
16/02/1962 KAPUR, J.L.
GUPTA, K.C. DAS DAYAL, RAGHUBAR
CITATION: 1962 AIR 1204 1962 SCR Supl. (3)
RF 1969 SC 381 (5) R 1973 SC 246 (8)
Prohibition-Consumption of liquor-Prosecution
for Accused's Statement-Consumption of medicinal preparations with high
alcoholic content-Burden of proof-Discharge of Bambay Prohibition
Act,1949-(Bom. 25 of 1949), as amended by Bombay Act 12 of 1959, ss. 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 gave
evidence at the trial that though the respondent had consumed alcoholic
substance he was not under the influence of liquor. In cross-examination the
doctor stated that consumption of Neem would 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-s. (2) of s. 66 of the Bombay prohibition Act, 1949, as
amended by the Bombay Prohibition (Extension and amendment) Act, 1959. The High
Court dismissed the appeal in limine. 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 statement of the accused
recorded under s. 342 of the Code of Criminal Procedure can be taken into consideration
in judging the innocence or guilt of a person.
If the explanation given by the accused in
his statement is acceptable to the court it must be held that the accused has
discharged the burden under s. 66 (2) of the Bombay Prohibition Act. 1949.
O. S. D. Swamy v. State, (1960) 1 S. C. R. 46
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 58 of 1961.
231 Appeal by special leave from the judgment
and order dated October 17, 1960, of the Bombay s 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 respondent arises out of proceedings under s. 66(1)(b) of the Bombay
Prohibition Act, 1949 (Act25 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 bad 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 that the respondent was Smelling of
liquor but his speech, behaviour, 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 Neem as I am used to
232 On this evidence the Presidency
Magistrate Mr. Lokur acquitted the respondent. He observed:"Neem is a
medicinal preparation containing 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 had taken Neem in order to satiate his craving for alcohol.
It has been 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 does
not amount to consumption of prohibited liquor. In Criminal Appeal No. 1562 of
1959 State v. Domnic Robert D'Sliva where a similar defence was taken up it was
held that consumption of 6 ounces of essence of Neem did not constitute an
offence. Following these judgments I hold that the 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 respondent that he had consumed 8 ounces of Tincture
of Neem was not sufficient to rebut the presumption arising out of sub-s. (2)
of s. 66 of the Act. But the High Court dismissed the appeal in limine.
It is 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 by the introduction of s. 66(2) in the Act as a result of the
Bombay Prohibition (Extension and amendment) Act, 1959, (Act 12 of 1959), the
onus is on the accused person and that that onus had not been discharged in the
present case. Section 66(2) is as follows :S. 66(2) ",Subject to the
provisions of subsection 233 (3) wherein in any trial of an offence under
clause (b) of sub-section(1) 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 than
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 there under, shall be upon the accused person and the
Court shall in the absence of such proof presume the contrary".
The argument was put in this way that if the
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 there under. It was further submitted that in order to discharge the
onus mere statement of the accused is not sufficient. Our attention was drawn
to the scheme and some of the provisions of the Act.
The prosecution, in the present case, has
proved that the respondent's breath was smelling of liquor and that on
examination of his blood it was found to contain 0.146% bat the respondent gave
an explanation showing that he had taken 6 ounces of Tincture of Neem and Dr.
Dadlani Prabhu Rochiram has deposed that the consumption of 6 to 8 ounces of
that substance will produce that amount of concentration of blood. This was 234
accepted by the learned Presidency Magistrate and by the -High Court. Therefore
on this finding it must be held that the explanation given by the respondent of
the cause of his smelling of liquor and of the blood concentration was accepted
by the High Court as being sufficient to discharge the onus placed on him. But
Mr. Dhebar for the State submits that mere statement of an accused person is
not sufficient for the discharge of such onus and relies on a judgment of this
Court in C. S.D. swamy v. The State (1), 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 contrary of what has been
proved by the prosecution, has been established, because the requirement of the
section is that the accused person shall be presumed to be guilty of criminal
misconduct in the discharge -of his official duties " unless the contrary
is proved". The words of the statute are peremptory, and the burden must
lie all the time on the accused to prove the contrary".
All that the learned Judge there meant to Ray
was that the evidence of the statement of the accused in the circumstances of
that case was not sufficient to discharge the onus but that does not mean that
in no case can the statement of an accused person be taken to be sufficient for
the purpose of discharging the onus if a statute places the onus on him. Under
s. 342 of the Criminal Procedure Code the Court has the power to examine the
accused so as to enable him to explain any circumstance appearing in evidence
against him. Under sub-s. 3) of that section the answers given by an accused
person may be taken into consideration in such enquiry or trial. The object of
examination under s. 342 therefore is to give the, accused an opportunity to
(1)  1 S.C.R. 461, 471.
235 explain the case made against him and
that statement 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.