Shah, J. - (1.)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.
(2.)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 Ayrvedic 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 or transporting the preparation from Sehore to Abmedabad. 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.
(3.)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 Ss. 65 (a) and 66 (1) (b), the second respondent of offences under S. 65 (a) read with S. 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 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.